EXHIBIT 10.25
AMENDMENT TO
EXCHANGE AGREEMENT
THIS AMENDMENT NO. 1 TO THE EXCHANGE AGREEMENT ("Amendment") is made and
entered into as of the 30th of June, 2002, by and among (i) MDSI Mobile Data
Solutions Inc., a Canadian corporation ("MDSI"); (ii) Xxxxxxx X. Xxxxxxxx
("Xxxxxxxx") and Xxxx X. Xxxxxx ("Xxxxxx," and collectively with Xxxxxxxx, the
"Shareholders"), residents of the State of Missouri; and (iii) Connectria
Corporation, a Missouri corporation ("Connectria").
RECITALS
A. Pursuant to an Agreement and Plan of Reorganization, dated as of May
9, 2000 (the "Reorganization Agreement"), MDSI acquired all of the outstanding
voting securities of Connectria by a merger of a subsidiary of MDSI with and
into Connectria as the surviving corporation (the "Merger") in a reorganization
pursuant to Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code").
B. In order to unwind the Reorganization Agreement, and the transactions
contemplated thereby, MDSI, Connectria and the Shareholders entered into an
Exchange Agreement dated as of June 26, 2002 ("Exchange Agreement").
C. The parties wish to amend the Exchange Agreement as provided in this
Amendment.
In consideration of the foregoing and the mutual covenants and agreements
contained herein and in the Exchange Agreement, the parties hereto agree as
follows:
1. Capitalized Terms. Except as otherwise defined in this Amendment,
capitalized terms used herein shall have the meanings ascribed thereto in the
Exchange Agreement.
2. Section 1. Section 1 of the Exchange Agreement is hereby deleted
in its entirety and replaced with the following:
1. Amendment of Connectria's Articles of Incorporation and
Bylaws. Prior to Closing (as defined in Section 5 below), MDSI shall take
all appropriate action to cause Article III of the Articles of
Incorporation of Connectria to be amended (i) to authorize the issuance of
up to one hundred thousand (100,000) shares of preferred stock, par value
.01 per share (the "Preferred Stock"), and (ii) to authorize the Board of
Directors of Connectria, by resolution or resolutions, at any time and from
time to time, to divide and establish any or all of the unissued shares of
Preferred Stock into one or more series and, without limiting the
generality of the foregoing, to fix and determine the designation of each
such share, the number of shares which shall constitute such series and
certain powers, preferences and relative participating, optional or other
special rights and qualifications, limitations and restrictions of the
shares of each series so established (such amendment, the "Charter
Amendment"). In addition, the parties hereto shall cause the bylaws of
Connectria to be amended to include a new Article XIII containing
restrictions on the transferability of shares of stock of Connectria, such
Article to be in form and substance mutually satisfactory to the parties
hereto.
3. Section 3. Section 3 of the Exchange Agreement is hereby deleted
in its entirety and replaced with the following:
3. Capital Contributions and Warrant. Immediately following the
proper filing of the Series A Designations with the office of the Secretary
of State of Missouri, MDSI shall take all appropriate action to cause its
subsidiary Mobile Data Solutions Inc., a Delaware corporation ("MDSI-USA"),
to contribute to the capital of Connectria the principal amount of the
$2,519,000 indebtedness of Connectria to MDSI-USA (the "Contributed Debt").
In recognition of such contribution, MDSI shall cause Connectria to issue
to MDSI-USA a warrant to purchase up to 50,380 shares of Series A Nonvoting
Preferred Stock, such warrant to have the exercise price, rights,
expiration date and other terms set forth in Exhibit B attached to this
Agreement (the "Warrant").
4. Section 5(c). Section 5(c) of the Exchange Agreement is
hereby deleted in its entirety and replaced with the following:
(c) In exchange for the shares of MDSI Common Stock and
options therefor surrendered by Xxxxxxxx and Xxxxxx, MDSI shall
distribute to Xxxxxxxx two-thirds of one share of common stock, par
value $0.01 per share, of Connectria ("Connectria Common Stock"), and
shall distribute to Xxxxxx one-third of one share of Connectria Common
Stock.
5. Section 6(b). Section 6(b) of the Exchange Agreement is hereby
deleted in its entirety and replaced with the following:
(b) Since the Merger, except for the amendment to the articles
of incorporation of Connectria referenced in Section 1 above and
amendments to the articles and bylaws of Connectria relating to the
number of directors of Connectria and to the transferability of shares
of the Corporation, no amendment to the articles of incorporation or
bylaws of Connectria has been effected or approved by the Board of
Directors of MDSI or, to the knowledge of MDSI, by Connectria. To the
knowledge of MDSI, MDSI has delivered to the Shareholders all minutes
of meetings of the Board of Directors and shareholder of Connectria
since the date of the Merger, which minutes, to the knowledge of MDSI,
contain an accurate record of all formal actions taken by the Board of
Directors and shareholder of Connectria during such period.
6. Section 6(c). Section 6(c) of the Exchange Agreement is hereby
deleted in its entirety and replaced with the following:
(c) MDSI is the record and beneficial owner of one (1) share of
Connectria Common Stock, which is owned by MDSI free and clear of all
liens, security interests, claims, encumbrances, options, transfer
restrictions and other rights of third parties claiming by, through or
under MDSI. Since the Merger, to the knowledge of MDSI, except as
contemplated by this Agreement, Connectria has not issued or
authorized any additional shares of stock of any class of Connectria,
or granted to any person any option, warrant, preemptive right,
convertible security or other right to purchase any equity security of
Connectria, nor has Connectria granted or authorized any "phantom"
stock rights or similar participation interests in the profits of
Connectria.
7. Schedule 6(g). Schedule 6(g) to the Exchange Agreement is hereby
deleted and replaced in its entirety with Exhibit A attached hereto.
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8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto as of the day and year first above written.
MDSI MOBILE DATA SOLUTIONS INC.
By /s/ Xxxxx Xxxxx
-----------------------------------
Authorized Officer
CONNECTRIA CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Authorized Officer
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
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Exhibit A
Schedule 6(g)
1. The Exchange Agreement and the Exhibits and Schedules thereto provide that
MDSI and its subsidiaries are parties to certain agreements with
Connectria, hold certain claims, debts or other obligations of Connectria,
furnish certain goods and services to Connectria, and own or have other
rights with respect to certain assets that are used by Connectria in the
conduct of its business.
2. MDSI provides accounting and record keeping services to Connectria on X.X.
Xxxxxxx financial software.
3. The $1,000,000 in loan guarantees and equipment leases made by MDSI on
behalf of Connectria, as set forth on the attached Summary of Leases
Guaranteed by MDSI - 7/1/2002, which the Shareholders represent and warrant
is a true and complete summary of MDSI's commitments as of July 1, 2002.
4. The parties acknowledge and agree that the domain names "xxxxxxxx.xxx",
"xxxxxxx.xxx", "xxxxxxx.xxx", "xxxxxx.xxx" and "xxxxxx.xxx" are the
property of MDSI. Connectria and the Shareholders agree to execute such
instruments and to take such actions as MDSI shall reasonably request to
evidence MDSI's ownership of such domain names and to transfer to MDSI any
rights of Connectria and the Shareholders in such domain names.
Summary of Leases Guaranteed By MDSI - 7/1/2002
Months
Lessor's Amount Monthly Lease Term Maturity Remaining Connectria
Lessor Lease # Financed Pymt (w/o taxes) (Months) Date At 7/1/02 Vendor Lease ID#
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FNF Capital #267203-004 $107,768.06 $ 3,450.73 36.00 7/9/2003 12.00 CDW Lease #33
GE Capital
Colonial
Pacific
Leasing #339283001 $229,642.52 $ 7,313.20 36.00 11/15/2003 16.00 GWI,Keylink,
MCI,XXX Lease #36
HSBC #000-0000000-000 $160,500.00 $ 4,640.26 36.00 12/24/2003 18.00 Access Lease #37
Technologies
HSBC #000-0000000-000 $189,978.46 $ 5,492.53 36.00 1/31/2004 19.00 CDW Lease #39
HSBC #000-0000000-000 $136,937.29 $ 3,959.04 36.00 1/14/2004 19.00 XXX Lease #40
HSBC #000-0000000-000 $118,826.00 $ 3,393.45 36.00 2/28/2004 20.00 CDW Lease #41
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Totals $943,652.33 $28,249.21
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