First Amendment to the Amended and Restated Agreement and Plan of Merger
Exhibit 10.2
First Amendment to the Amended and Restated Agreement and Plan of Merger
This First Amendment to the Amended and Restated Agreement and Plan of Merger (this
“Amendment”) is made effective as of December 29, 2006 by and among Synthesis Energy Systems, Inc., a
Delaware corporation (“SES”) f/k/a Tamborine Holdings, Inc., a Mississippi corporation
(“Tamborine”), SES Acquisition Corporation, a Florida corporation (“Acquisition”),
Synthesis Energy Holdings, Inc., a Florida corporation (“Synthesis Florida”), and the
shareholders of Synthesis Florida listed on the signature page hereto (the “Shareholders”).
Recitals
A. Tamborine, Acquisition, Synthesis Florida and the Shareholders entered into that certain
Amended and Restated Agreement and Plan of Merger dated April 4, 2005 (the “Agreement”)
pursuant to which Acquisition was merged with and into Synthesis Florida (the “Merger”),
with Synthesis Florida as the surviving corporation of the merger and the successor to Acquisition.
B. Pursuant to Section 1.8(c) of the Agreement, at the effective time of the Merger, all of
the outstanding shares of common stock of Synthesis Florida were converted into 21,050,000 shares
of common stock of Tamborine.
C. Section 1.8(c) of the Agreement should have stated that the outstanding shares of common
stock of Synthesis Florida were converted into 21,000,000 shares of common stock of Tamborine, and
in fact 21,000,000 shares of common stock were issued to the Shareholders.
D. Subsequent to the Merger, Tamborine reincorporated in Delaware and changed its name to
“Synthesis Energy Systems, Inc.”
E. SES has requested that the Agreement be amended to reflect that the outstanding shares of
common stock of Synthesis Florida were actually converted into 21,000,000 shares of common stock of
Tamborine at the effective time of the Merger.
F. Pursuant to Section 11.1 of the Agreement, the Agreement may only be amended by the written
agreement of all of the parties thereto.
G. All of the parties to the Agreement have agreed to make the requested change, and the
purpose of this Amendment is to amend the Agreement in order to reflect this change.
H. The defined terms used in this Amendment shall have the same meaning as set forth in the
Agreement, unless otherwise indicated in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual promises made herein,
and in consideration of representations, warranties, and covenants contained herein and in the
Agreement, the parties agree as follows:
Section 1. Section 1.8(c) of the Agreement is hereby amended so that all references to
“21,050,000 shares of the Purchaser Common Stock” shall now be read as “21,000,000 shares of the
Purchaser Common Stock.”
Section 2. Except as set forth herein, the Agreement shall remain in full force and effect.
Section 3. This Amendment shall be binding upon and inure to the benefit of each of the
undersigned and their respective successors and permitted assigns.
Section 4. This Amendment may be executed in any number of counterparts with the same effect
as if all signatories had signed the same document. All counterparts must be construed together to
constitute one and the same instrument. This Amendment may be transmitted and signed by facsimile.
The effectiveness of any such documents and signatures shall, subject to applicable law, have the
same force and effect as manually-signed originals and shall be binding on all parties hereto.
[Signature Pages Follow]
In Witness Whereof, SES, as the successor to Tamborine, Acquisition, SES Florida and
the Shareholders have executed this Amendment all as of December 29, 2006.
| Synthesis
Energy Systems, Inc. f/k/a Tamborine Holdings, Inc. |
||||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||||
| Title: President and Chief Executive Officer | ||||||||
| SES Acquisition Corporation | ||||||||
| By: | Synthesis
Energy Holdings, Inc., for itself and as successor by merger to SES Acquisition Corporation |
|||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: Xxxxxx X. Xxxxxxx | ||||||||
| Title: President and Chief Executive Officer | ||||||||
| The Shareholders: | ||||||||
| /s/ Xxxxxxx Xxxxxxxx | ||||||||
| Xxxxxxx Xxxxxxxx | ||||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||||
| Xxxxxxx X. Xxxxxx | ||||||||
| /s/ Xxxxxx X. Xxxxxxx | ||||||||
| Xxxxxx X. Xxxxxxx | ||||||||
/s/ Xxxx X. Xxxxxxxxxxx
Xxxx X. Xxxxxxxxxxx |
||||||||
| /s/ Xxxxx Xx Li | ||||||||
| Xxxxx Xx Li | ||||||||
| Azure International Holdings Ltd. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||||
| Title: Finance Director | ||||||||
| /s/ Xxxx Xxxx Dong | ||||||||
| Xxxx Xxxx Dong | ||||||||
| /s/ Xxxx Xx | ||||||||
| Xxxx Xx | ||||||||
| /s/ Xxxxxxxxx Xxxxx | ||||||||
| Xxxxxxxxx Xxxxx | ||||||||
