EXHIBIT 2.1
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "AMENDMENT") to that certain Amended and
Restated Agreement and Plan of Merger, dated as of August 11, 2004 (the "MERGER
AGREEMENT"), by and among ADVANCED TECHNOLOGY INDUSTRIES, INC., a Delaware
corporation ("PARENT"), LTDN ACQUISITION CORP., a Delaware corporation
("ACQUISITION"), and LTDNETWORK, INC., a Delaware corporation (the "COMPANY"),
is made as of December 15, 2004, by and among Parent, Acquisition and the
Company. Capitalized terms used but not otherwise defined herein shall have the
meanings given such terms in the Merger Agreement.
WHEREAS, the Merger Agreement provides for the merger of the Company
with and into Acquisition; and
WHEREAS, each of Parent, Acquisition and the Company desires to amend
the Merger Agreement on the terms set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
SECTION 1. AMENDMENT. (a) Section 2.1(b)(iii)(C) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"(C) "AGGREGATE PARENT NUMBER" means the sum of (1)
the number of shares of Parent Common Stock issued and outstanding immediately
prior to the Effective Time, (2) the number of shares of Parent Common Stock
issuable upon exercise, conversion or exchange of any security (including any
Parent Indebtedness (as hereinafter defined)) of Parent (other than the LTDN
Interim Notes) issued and outstanding as of the Effective Time that is
exercisable, convertible or exchangeable into Parent Common Stock (including
Parent Stock Options (as hereinafter defined)) whether by the terms of such
security or pursuant to an agreement with the holder thereof to convert or
exchange such security and (3) 12,000,000; provided that shares of Parent Common
Stock issued to the Company or any of its Subsidiaries (as hereinafter defined)
or their respective officers and directors prior to, on or after the date of
this Agreement shall not be included in the calculation of the Aggregate Parent
Number. Without limiting the forgoing, the Aggregate Parent Number shall include
(1) the 50,000 shares of Parent Convertible Preferred Stock issued or issuable
pursuant to the Stock and Intellectual Property Purchase Agreement dated as of
December 13, 2004 among Parent, Xxxxx Xxxxxxxx, Xxxxxxx GBR, Xxxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx and (2) the 1,692,388 shares of Parent
Common Stock and the 10,536 shares of Parent Convertible Preferred Stock issued
or issuable pursuant to a certain Settlement Agreement dated as of December 2,
2004 among Parent and the other parties thereto."
(b) Section 2.1(b)(iii)(G) of the Merger Agreement is hereby
amended and restated in its entirety as follows:
"(G) "BASE PERCENTAGE" means the sum of (1) 0.36 and
(2) the difference between (x) 0.22 and (y) the product obtained
by multiplying (i) the difference between (a) $5,000,000 and (b)
the Certified Total Amount by (ii) 0.000000044."
(c) Section 2.1(b)(iii)(J) of the Merger Agreement is hereby
amended and restated in its entirety as follows:
"(J) "LTDN INTERIM NOTE AMOUNT" means the sum of
(1) the aggregate principal and interest outstanding at the
Effective Time under the LTDN Interim Notes, (2) the aggregate
principal and interest that was outstanding prior to the Effective
Time under the LTDN Interim Notes that has been converted into
shares of Parent Common Stock prior to the Effective Time and (3)
the aggregate amount of out-of pocket expenses incurred and paid
by the Company on behalf of Parent and not otherwise reimbursed by
Parent prior to the Effective Time, such amount of out-of pocket
expenses not to exceed $550,000."
SECTION 2. CONTINUING EFFECT. Except as provided in Section 1, this
Amendment shall not constitute an amendment or waiver of any provision of the
Merger Agreement and the Merger Agreement shall remain in full force and effect
in accordance with its terms.
SECTION 3. COUNTERPARTS. This Amendment may be executed in two or more
counterparts (and may be delivered by facsimile or similar reproduction), each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SECTION 4. GOVERNING LAW. This Amendment, and all claims arising
hereunder or relating hereto, shall be governed and construed and enforced in
accordance with the Laws of the State of Delaware, without giving effect to the
principles of conflicts of Law thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
THE COMPANY:
LTDNETWORK, INC.
By: _______________________________
Name:
Title:
PARENT:
ADVANCED TECHNOLOGY INDUSTRIES, INC.
By: _______________________________
Name:
Title:
ACQUISITION:
LTDN ACQUISITION CORP.
By: _______________________________
Name:
Title:
