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FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
(the "Amendment") is made and entered into as of the 12th day of November, 1999,
by and among XXXXXXX.XXX, INC., a Minnesota corporation formerly known as CAFE
ODYSSEY, INC. ("Parent"), ROI ACQUISITION CORPORATION, a Texas corporation and a
wholly owned subsidiary of Parent ("Sub"), ROI INTERACTIVE, LLC, a Texas limited
liability company (the "Company"), and the holders of membership interests of
the Company (the "Membership Interests") identified on the signature page hereto
(the "Members").
W I T N E S S E T H:
WHEREAS, on July 19, 1999, the parties hereto executed that certain
Agreement and Plan of Reorganization (the "Reorganization Agreement") pertaining
to the acquisition of all of the assets of the Company including the Acquired
Business and the assumption of certain liabilities of the Company in exchange
solely for voting stock of Parent;
WHEREAS, all defined terms not otherwise defined herein shall have the
meaning ascribed to such term in the Reorganization Agreement;
WHEREAS, Section 7.11 of the Reorganization Agreement provided in part
that as a condition to the Closing, the Members shall have found a Third Party
Purchaser to purchase the Unrestricted Parent Exchange Shares at a purchase
price that would result in the Members receiving aggregate gross proceeds of
$2,450,000 from such sale or sales prior to income tax but after applicable
broker commissions on such sale or sales, and that such Third Party Purchaser
shall have entered into a binding agreement to purchase the Unrestricted Parent
Exchange Shares on the foregoing terms; and
WHEREAS, the parties hereto desire to (i) modify Section 1.5(a) of the
Reorganization Agreement to change the number of shares of Parent Common Stock
to be delivered at Closing, (ii) modify Section 1.6 of the Reorganization
Agreement to extend the Closing Date and provide for a subsequent extension at
the election of Parent, and modify Section 7.11 to provide for the sale of the
Unrestricted Parent Exchange Shares received in a delayed Closing, (iii) add a
new Section 6.17 to provide for the sale of the Additional Unrestricted Exchange
Shares, (iv) delete the provisions of Section 7.7 of the Reorganization
Agreement pertaining to a minimum $3.00 per share market value of Parent Common
Stock in their entirety, and (v) amend Section 6.13 of the Reorganization
Agreement to increase the minimum required value of the Restricted Parent
Exchange Shares.
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NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, the parties hereto agree as follows:
1. Amendment of Agreement.
(a) Amendment of Section 1.5(a). Section 1.5(a) of the Reorganization
Agreement is hereby amended to read in its entirety as follows:
1.5. Consideration for Assets.
(a) Parent Common Stock. In exchange for the Assets transferred
by the Company, Sub shall issue and deliver to the Company an aggregate
number of shares of the voting Common Stock, par value $.01 per share,
of Parent (the "Parent Common Stock") equal to the sum of:
(i) (A) 1,402,500 shares of Parent Common Stock if the
Closing occurs at the Scheduled Closing in accordance with Section 1.6
or (B) 1,530,000 shares of Parent Common Stock if there is a Delayed
Closing pursuant to an extension in accordance with Section 1.6 (such
shares are referred to herein as the "Restricted Parent Exchange
Shares"), plus
(ii) (A) 1,225,000 shares of Parent Common Stock if the
Closing occurs at the Scheduled Closing in accordance with Section 1.6
or (B) 1,347,500 shares of Parent Common Stock if there is a Delayed
Closing pursuant to an extension in accordance with Section 1.6 (such
shares are referred to herein as the "Unrestricted Parent Exchange
Shares"), plus
(iii) 122,500 shares of Parent Common Stock (such shares
are referred to herein as the "Additional Unrestricted Parent Exchange
Shares").
The Restricted Parent Exchange Shares, the Unrestricted Parent Exchange
Shares and the Additional Unrestricted Parent Exchange Shares are
hereinafter sometimes referred to as the "Acquisition Consideration."
(b) Amendment of Section 1.6. The first sentence of Section 1.6 of the
Reorganization Agreement is hereby amended to read in its entirety as follows:
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1.6 Closing. The Closing of the sale of the Assets pursuant to
this Agreement (the "Closing") shall take place at the offices of
Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx,
at 9 o'clock a.m., local time on or before December 3, 1999 or such
other time or place or such other date as the parties hereto shall
agree (the "Scheduled Closing"); provided, however, Parent or Sub shall
have the right to extend the Closing from the Scheduled Closing until
December 30, 1999 (a "Delayed Closing") upon written notice of such
election to the Company not later than December 2, 1999.
(c) Amendment of Section 6.13. Section 6.13 of the Reorganization
Agreement is hereby amended to read in its entirety as follows:
6.13 Adjustment of Restricted Parent Exchange Shares. If and only
if the aggregate value of the Restricted Parent Exchange Shares (as
adjusted for any shares of Parent Common Stock received or surrendered
by the Members as the result of a stock split, stock dividend,
combination, reclassification, recapitalization or other distribution
payable in Parent Common Stock) is less than $2,805,000 on the first
anniversary of the Closing Date based upon the average of the closing
sales prices of a share of Parent Common Stock as reported on a
national securities exchange or quotation system for each trading day
in the 60-calendar day period ending on the day before the day that is
the first anniversary of the Closing Date (the 60-Day Average Adjusted
Price"), then Parent shall issue the Additional Restricted Parent
Exchange Shares to the Members within 10 days after the first
anniversary of the Closing Date. For purposes of this Agreement the
Additional Restricted Parent Exchange Shares shall mean shares of
Parent Common Stock equal in the aggregate to the lesser of (i) the
minimum number of shares of Parent Common Stock required to be issued
to the Members so that the aggregate value of the Restricted Parent
Exchange Shares as determined in accordance with the prior provisions
of this Section and such additional shares valued at the 60-Day Average
Adjusted Price equals $2,805,000, or (ii) the aggregate number of the
Restricted Parent Exchange Shares issued to the Members at the Closing.
Such Additional Restricted Parent Exchange Shares, if any, shall be
allocated among the Members in proportion to their respective
Membership Interests. The parties to this agreement shall treat the
issuance of any Additional Restricted Parent Exchange Shares pursuant
to this Section as additional Acquisition Consideration. The Members'
rights to receive Additional Restricted Parent Exchange Shares pursuant
to this Section are not assignable except by operation of law.
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(d) Addition of New Section 6.17. A new Section 6.17 is hereby added
to the Reorganization Agreement, which Section shall read in its entirety as
follows:
6.17 Sale of Additional Unrestricted Parent Exchange Shares. The
Members (acting by and through Xxxxxxxxx or Palms as their authorized
attorney-in-fact) shall have the option to sell to a qualified Third
Party Purchaser (as defined in Section 7.11) the Additional
Unrestricted Parent Exchange Shares on or before March 30, 2000 at a
purchase price that would result in the Members receiving aggregate
gross proceeds of $245,000 from such sale or sales prior to income tax
but after applicable broker commissions on such sale or sales. The
Members (acting by and through Xxxxxxxxx or Palms as their authorized
attorney-in-fact) shall give notice to Parent of their intent to engage
in such a sale during the month of February 2000.
(e) Deletion of Section 7.7. Section 7.7 of the Reorganization
Agreement is hereby deleted in its entirety.
(f) Amendment of Section 7.11. Section 7.11 of the Reorganization
Agreement is hereby amended to read in its entirety as follows:
7.11 Sale of Unrestricted Parent Exchange Shares. The Members
shall have found an independent third party who is neither (i) acting
on behalf of or as agent of Parent, Sub or the Company, nor (ii)
otherwise a Related Person with respect to Parent, Sub or the Company
(a "Third Party Purchaser") to purchase the Unrestricted Parent
Exchange Shares issued hereunder at a purchase price that would result
in the Members receiving aggregate gross proceeds of $2,450,000 (if the
Closing occurs at the Scheduled Closing in accordance with Section 1.6)
or $2,695,000 (if there is a Delayed Closing pursuant to an extension
in accordance with Section 1.6) from such sale or sales prior to income
tax but after applicable broker commissions on such sale or sales. The
Third Party Purchaser shall have entered into a binding agreement to
purchase the Unrestricted Parent Exchange Shares on the foregoing
terms, and the Third Party Purchaser shall have established (to the
reasonable satisfaction of the Company and the Controlling Members) its
financial ability to consummate such purchase immediately after the
Closing.
2. Counterpart and Facsimile Execution. This Amendment may be
executed by the parties hereto in any number of counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
agreement. Each counterpart may consist of a number of copies hereof each signed
by less than all, but together signed by all, the parties hereto. In order to
facilitate the execution of this
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Amendment, an executed counterpart of the signature page or pages to the
Amendment may be delivered by facsimile transmission to the other parties hereto
and such facsimile signature shall be deemed an original signature for purposes
of this Amendment and shall be binding on the parties hereto. An original
executed counterpart of said signature page shall be promptly forwarded to the
other parties hereto.
3. Ratification of Reorganization Agreement. Except as modified by
the provisions of Section 1 hereof, the Reorganization Agreement and the
Exhibits attached thereto are not otherwise modified hereby.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed on its behalf by its representative thereunto duly authorized, all as
of the date first above written.
"PARENT"
XXXXXXX.XXX, INC.
By: s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX,
Chief Executive Officer
"SUB"
ROI ACQUISITION CORPORATION
By: s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX,
President
"THE COMPANY"
ROI INTERACTIVE, LLC
By: s/ Xxxx X. Xxxxxxxxx
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XXXX X. XXXXXXXXX,
Chief Executive Officer
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MEMBERS
s/ Xxxx X. Xxxxxxxxx
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XXXX X. XXXXXXXXX
s/ Xxxx X. Palms, Jr.
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XXXX X. PALMS, JR.
s/ Xx Xxxxxxxx
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XX XXXXXXXX
s/ Xxxxx XxXxxx
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XXXXX XxXXXX
s/ Xxxxx Xxxxx
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XXXXX XXXXX
s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
s/ Xxxxx Xxxx
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XXXXX XXXX
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XXXXXXXXXXX.XXX, INC.
By: s/ signature illegible
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Title: CFO
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CONSENT AND AGREEMENT OF SPOUSES
We, the undersigned, do severally certify that we are the respective
spouses of the Members identified in the foregoing First Amendment to Agreement
and Plan of Reorganization, which Members entered into and signed the foregoing
Amendment. Each of us has read the foregoing Amendment and we understand its
provisions, purposes and effect. We severally approve and consent to the
foregoing Amendment. We do not hereby or otherwise assume any liability or other
obligation, including without limitation, the obligation of indemnification
other than to the extent of our interest in the Acquisition Consideration as
defined in the Agreement and Plan of Reorganization, subject to the provisions
of Section 10.2 thereof. We disclaim any ownership interest, whether legal or
beneficial, either in the Membership Interests of the Company or the assets of
the Company other than to the extent of that portion of the Acquisition
Consideration transferred to our respective spouses under the Agreement and Plan
of Reorganization, as amended.
s/ Xxxxx Xxxxxxxxx
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XXXXX XXXXXXXXX
s/ Xxxx Palms
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XXXX PALMS
s/ Xxxxx Xxxxxxxx
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XXXXX XXXXXXXX
s/ Xxxxx X. Xxxxx
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XXXXX XXXXX
