AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 2
TO
This Amendment No. 2 to Agreement and Plan of Merger (this “Amendment”) is entered into as of December 31, 2013 (the “Effective Date”), by and among BROADBAND NETWORK AFFILIATES, INC., a Delaware corporation (“BBNA”), OCEAN THERMAL ENERGY CORPORATION, a Delaware corporation (“OTEC”), and XXXXXXXX XXXXXX, an individual (“Xxxxxx”). BBNA, OTEC and Xxxxxx are collectively referred to herein as, the “Parties.”
A. On December 24, 2013, the Parties entered into that certain Agreement and Plan of Merger (the “Original Agreement”), providing, among other things, that at the Closing, OTEC will purchase and Xxxxxx will assign the Repurchased Xxxxxx Shares (as defined therein).
B. On December 27, 2013, the Parties entered into that certain Amendment No. 1 to Agreement and Plan of Merger (the “Amendment No. 1,” and, together with the Original Agreement, the “Agreement”).
D. As a result of changes in the capitalization structure of OTEC since the date of Amendment No. 1, the correct and proper definition of the Repurchased Xxxxxx Shares should be 7,525,263 Xxxxxx Shares.
E. The Parties desire to amend the Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Recitals. Paragraph B of the Recitals on page 1 of the Agreement shall be superseded and replaced, as follows:
X. Xxxxxx owns 9,018,074 of the 11,170,000 issued and outstanding BBNA Shares (the “Xxxxxx Shares”), and OTEC desires to purchase 7,525,263 of the Xxxxxx Shares (the “Repurchased Xxxxxx Shares”) on the terms and conditions hereinafter set forth.
2. Conflict. If there is a conflict between the terms and conditions of this Amendment and the terms and conditions of the Agreement, the terms and conditions of this Amendment shall control. Except as modified by this Amendment, the terms and conditions of the Agreement shall remain in full force and effect.
3. Authority. The persons executing this Amendment on behalf of the Parties hereto represent and warrant that they have the authority to execute this Amendment on behalf of said Parties and that said Parties have authority to enter into this Amendment.
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4. Counterparts. This Amendment may be executed in counterparts. Each counterpart shall be deemed an original, and all counterparts shall be deemed the same instrument with the same effect as if all Parties hereto had signed the same signature page.
OCEAN THERMAL ENERGY CORPORATION
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Its: Chief Executive Officer
BROADBAND NETWORK AFFILIATES, INC.
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Its: President
/s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
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