1
Exhibit 10.26
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made and entered into as of this 1st day of June 1995, by and
among First Aviation Services Inc., a Delaware corporation ("Purchaser"), FE
Acquisition Sub, a California corporation and wholly owned direct or indirect
subsidiary of Purchaser ("Acquisition Sub"), Triton Group Ltd., a Delaware
corporation ("Seller"), and National Airmotive Corporation, a California
corporation and wholly owned subsidiary of Seller (the "Company").
BACKGROUND
A. Purchaser, Acquisition Sub, Seller and Company entered into
that certain Agreement and Plan of Merger dated as of March 3, 1995 (the "Merger
Agreement").
B. Purchaser sent a letter dated May 30, 1995 to Seller
terminating the Merger Agreement (the "Termination Notice").
C. The parties desire to reinstate the Merger Agreement and to
amend certain terms and provisions contained in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
1. All parties hereby agree that the Merger Agreement is
reinstated in full force and effect as if the Termination Letter had never been
delivered.
2. Subparagraph (a) of Section 2.2 of the Merger Agreement is
hereby deleted in its entirety and replaced with the following and a
corresponding change shall be made to the Agreement of Merger attached to the
Merger Agreement as Exhibit A.
"(a) AMOUNT. Subject to the terms and conditions hereof, the
aggregate consideration payable for all shares of Stock surrendered and
canceled pursuant to the Merger is equal to Eleven Million Two Hundred
Fifty Thousand Dollars ($11,250,000) without interest (the "Merger
Consideration")."
1
2
3. Section 5.2 of the Merger Agreement is hereby deleted in
its entirety and replaced with the following:
"5.2 INTEREST. No interest shall be payable with respect to
the Merger Consideration."
4. Section 6.2 of the Merger Agreement is hereby deleted in
its entirety and replaced with the following:
"6.2 EXCLUSIVE DEALING. During the period from the date of
this Agreement through May 2, 1995, Seller and the Company shall not
directly or indirectly, through any officer, director, employee, agent
or otherwise, (i) participate in any negotiations or solicit, initiate
or encourage submission of inquiries, proposals or offers from any
potential buyer relating to the assets or stock of the Company or any
material part thereof or (ii) enter into any agreement pertaining
thereto. The May 2, 1995 date referred to above may, at the election of
Purchaser, be extended to June 7, 1995 upon the payment of an
additional $250,000 to the Escrow Account on or before May 2, 1995 and
notice thereof to Seller."
Seller hereby acknowledges that the additional $250,000 payment has been made by
Purchaser.
5. Subparagraph (c) of Section 9.2 of the Merger Agreement is
hereby deleted in its entirety and replaced with the following:
"(c) by Purchaser by written notice to Seller, if the
conditions set forth in Article VII hereof shall not have been complied
with or performed on or prior to the Closing Date in any material
respect and, in either case, such noncompliance or nonperformance shall
not have been cured or eliminated (or by its nature cannot be cured or
eliminated) on or before May 2, 1995 (June 7, 1995 if Purchaser makes a
payment of an additional $250,000 to the Escrow Account on or before
May 2, 1995);"
Seller hereby acknowledges that the additional $250,000 payment has been made by
Purchaser.
6. Subparagraph (e) of Section 9.2 of the Merger Agreement is
hereby deleted in its entirety and replaced with the following:
"(e) by Seller by written notice to Purchaser, if the
conditions set forth in Article VIII hereof shall not have been
complied with or performed on or prior to the Closing Date in any
material respect and, in either
2
3
case, such noncompliance or nonperformance shall not have been cured or
eliminated (or by its nature cannot be cured or eliminated) on or
before May 2, 1995 (June 7, 1995 if Purchaser makes a payment of an
additional $250,000 to the Escrow Account on or before May 2, 1995)."
Seller hereby acknowledges that the additional $250,000 payment has been made by
Purchaser.
7. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8. Except as specifically set forth herein, the Merger
Agreement shall remain unmodified and in full force and effect.
3
4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
SELLER
TRITON GROUP LTD., a Delaware
corporation
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
NATIONAL AIRMOTIVE CORPORATION,
a California corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
PURCHASER
FIRST AVIATION SERVICES INC.,
a Delaware corporation
By: /s/ XXXX X. XXXXX
-----------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
FE ACQUISITION SUB,
a California corporation
By: /s/ XXXX X. XXXXX
-----------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
4
