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EXHIBIT 2.5
AMENDMENT AGREEMENT NO. 3
This AMENDMENT AGREEMENT NO. 3 ("Agreement"), dated as of June 6, 2000,
by and between PACIFIC LITHIUM LIMITED, a New Zealand corporation (together with
its successors is referred to herein as "PLL"), and LITHIUM TECHNOLOGY
CORPORATION, a Delaware corporation ("LTC").
RECITALS
WHEREAS, PLL and LTC have entered into an Agreement and Plan of Merger
dated as of January 19, 2000 ("Merger Agreement") and the Bridge Loan Financing
Agreements (as defined in the Merger Agreement) as amended by Amendment
Agreement No. 1 dated as of March 31, 2000 and Amendment Agreement No. 2 dated
as of May 4, 2000.
WHEREAS, PLL and LTC desire to amend certain provisions of the Merger
Agreement and Bridge Loan Financing Agreement subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual
agreements contained in this Agreement, PLL and LTC agree as follows:
I. The following specifically indicated section paragraphs of the Merger
Agreement are amended and restated as follows:
7.5 Transfer of Employees and Benefit Plans
(b) Upon the Closing, PLL will offer employment to Xxxxx Xxxx in
accordance with the terms and conditions of the Employment Agreement; and
(c) PLL will grant a minimum of three hundred thousand (300,000)
options (the "Options") to the Transferred Employees for the purchase of PLL
Stock at an exercise price of $2.25 per share. The Options will be distributed
to the Transferred Employees on the Closing Date in the amounts set forth in
Schedule 7.5(c). The Options shall vest on the Closing Date. The Options will be
issued by PLL (Delaware) in the form of the Employee Share Option Deed attached
hereto as Exhibit D and shall be registered on a Form S-8 (or equivalent form)
as promptly as reasonably practicable following the effectiveness of the IPO
Registration Statement but in no event later than the Closing Date.
7.6 Proxy and Registration Statements. In connection with the
transactions contemplated by this Agreement:
(a) As soon as practicable after the filing of the IPO Registration
Statement (as defined in Section 7.16), but in no event later than five business
days after the consummation of the Ilion
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IPO, LTC and PLL shall jointly file with the SEC a combined proxy statement to
be mailed to LTC's shareholders in connection with the meeting to be called to
consider the Merger and registration statement to register under the Securities
Act the Merger Securities to be issued to the holders of the LTC Common (the
"Proxy Statement/Prospectus") on Form S-4 or any other appropriate form (the
"Form S-4 Registration Statement"). PLL and LTC shall file all such amendments
to the Form S-4 Registration Statement as shall be necessary to keep it current
and effective until the Merger Securities have been distributed. As soon as
practicable after the Effective Time of the Merger, PLL shall distribute the
Merger Securities to the shareholders of LTC pursuant to the Form S-4
Registration Statement.
(b) Each of LTC and PLL shall take, in accordance with applicable
law, and its respective articles of incorporation and by-laws, all action
necessary to convene, respectively, (i) a meeting of stockholders of PLL, if
required or appropriate, to consider and vote upon the approval of the Merger,
and any other stockholder approval matters required for consummation of the
Merger and the transactions contemplated hereby as promptly as practicable after
the Form S-4 Registration Statement is declared effective (the "PLL Meeting"),
and (ii) a meeting of stockholders of LTC to consider and vote upon the approval
of the Merger and any other stockholder approval matters required for
consummation of the Merger and the transactions contemplated hereby as promptly
as practicable after the Form S-4 Registration Statement is declared effective
(the "LTC Meeting").
(c) In connection with the preparation of the Form S-4 Registration
Statement and the Proxy Statement/Prospectus (i) LTC shall provide to PLL in
writing all information relating to LTC or its Subsidiaries and the management,
operations and finances of any of them which may be advisable or necessary to
include in the Form S-4 Registration Statement or any amendment thereto as may
be necessary to keep it current and effective until the distribution of the
Merger Securities, none of which information, with respect to the subject matter
thereof shall contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (ii) PLL shall provide LTC in writing with all information
relating to PLL or its Subsidiaries and the management, operations and finances
of any of them which may be advisable or necessary to include in the Form S-4
Registration Statement or any amendment thereto as may be necessary to keep it
current and effective until the distribution of the Merger Securities, none of
which information, with respect to the subject matter thereof shall contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
Each of PLL and LTC agrees that the Proxy Statement/Prospectus (except,
in the case of PLL, with respect to portions thereof prepared by LTC, and
except, in the case of LTC, with respect to portions thereof prepared by PLL)
will comply as to form in all material respects with the requirement of the
Exchange Act and the rules and regulations of the SEC thereunder, and the Proxy
Statement/Prospectus (except, in the case of PLL, with respect to portions
thereof prepared by LTC, and except, in the case of LTC, with respect to
portions thereof prepared by PLL) will comply as to form in all material
respects with the requirements of the Securities Act and the rules and
regulations of the SEC thereunder.
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(d) Contemporaneously with the Ilion IPO process described in
Section 7.16, PLL and LTC shall file all applicable state securities or "blue
sky" applications and use its reasonable efforts to qualify the Merger
Securities issuable pursuant to this Agreement under such applicable state
securities or "blue sky" laws prior to the Closing Date.
(e) Information which is obtained by either party pursuant to this
Section 7.6 will be kept confidential by such party; provided, however that in
the event the party or any of its representatives is requested or required
pursuant to applicable Law by any Governmental Authority to disclose any such
information, the party may do so after providing the other party with notice of
the request or requirement so that the other party may attempt, at its own
expense, to obtain a protective order. Each party will use reasonable efforts to
limit access to such information on a "need to know" basis. Neither party may
use information obtained from the other party pursuant to this subsection to
compete with the other party.
(f) PLL will advise LTC, promptly after PLL receives notice thereof,
of the time when the Form S-4 Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of any stop order or the
suspension of the qualification of the Merger Securities for offering or sale in
any jurisdiction, of the initiation or threat of any proceeding for any such
purpose, or of any request by the SEC for the amendment or supplement of the
Form S-4 Registration Statement or for additional information.
(g) PLL shall use its reasonable efforts to list, prior to the
Effective Date, on Nasdaq, the Merger Securities to be issued to the holders of
LTC Common Stock in the Merger.
7.16 IPO; Reincorporation. As soon as practicable, PLL will use all
reasonable efforts (subject to market, economic and business conditions) to file
a registration statement for the IPO (the "IPO Registration Statement") and to
consummate an IPO. Prior to closing the IPO, PLL will change its name to "Ilion
Technology Corporation" and its jurisdiction of incorporation to Delaware by
means of a domestication in Delaware pursuant to Section 388 of the Delaware
General Corporation Law or otherwise.
8.1 Conditions to Obligations of PLL. The obligations of PLL to
consummate the Closing are subject to the satisfaction (or waiver by PLL) of the
following conditions:
8.1.1 Representations, Warranties and Covenants of LTC (a) The
representations and warranties of LTC made in this Agreement shall be true and
correct in all respects (or, if any such representation is not expressly
qualified by "materiality," "Material Adverse Effect" or words of similar
import, then in all material respects) as of the date hereof and as of the
Closing Date, as though made as of the Closing and (b) LTC shall have performed
and complied in all material respects with all terms, agreements and covenants
contained in this Agreement required to be performed or complied with by LTC on
or before the Closing Date.
8.1.2 No Injunction, etc. No provision of any applicable Law and no
judgment, injunction, order or decree of any Governmental Authority shall be in
effect which shall prohibit the consummation of the Closing.
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8.1.3 No Proceedings. No action, suit or proceeding challenging this
Agreement, the Interim Agreements, the Ancillary Closing Agreements or the
transactions contemplated hereby or thereby or seeking to prohibit, alter,
prevent or materially delay the Closing or seeking material damages shall have
been instituted or threatened by any Person.
8.1.4 Ancillary Closing Agreements. Each of the Ancillary Closing
Agreements shall have been executed and delivered by LTC where LTC is a party
thereto.
8.1.5 Third-Party Consents; Governmental Approvals. The Registration
Statement shall have been declared effective by the SEC, the information
contained therein shall be true and correct in all material respects as of the
Closing Date, no stop order shall have been issued or proceedings instituted or
threatened to suspend the effectiveness of the Registration Statement and all
consents, approvals, waivers, subordinations and Permits, if any, disclosed or
required to be disclosed on any Schedule attached hereto or otherwise required
in connection with the consummation of the transactions contemplated by this
Agreement shall have been received including, but not limited to, any consents
from Ben Franklin or relating to the Mitsubishi Materials and the approval by
LTC's and PLL's shareholders of the transactions contemplated by this Agreement
and the Ancillary Closing Agreements.
8.1.6 No Material Adverse Change. Prior to the Closing Date, no event
shall have occurred which, individually or when considered together with all
other matters, has had, or could reasonably be expected to have, a Material
Adverse Effect on LTC, and PLL shall not have discovered any fact or
circumstance (previously unknown to PLL) which, individually or when considered
together with all other matters, has, or could reasonably be expected to have, a
Material Adverse Effect on LTC.
8.1.7 Transfer of Intellectual Property Rights. If PLL deems it
necessary, LTC shall have Transferred all of its Intellectual Property Rights to
an entity organized under the laws of the Netherland Antilles or a similar
jurisdiction, for tax purposes.
8.1.8 SEC Filings. LTC's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1999, containing audited financial statements and all
other required SEC filings shall have been filed with the SEC.
8.1.9 Due Diligence. PLL shall have completed to its satisfaction its
due diligence review of LTC and its subsidiaries in connection with the
transactions contemplated by this Agreement, the Interim Agreements and the
Ancillary Closing Agreements.
8.1.10 IPO Closing. The IPO shall have closed prior to the Closing of
the Merger.
8.1.11 Termination of Options and Employment Agreements. All option
plans, option agreements and employment agreements between LTC or its
subsidiaries and its employees, directors or any other Person (whether oral or
written) shall have been terminated prior to the Closing Date with no further
obligation or liability to LTC or PLL.
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8.1.12 Stockholder Vote. The Merger shall have been approved by the
requisite vote of the stockholders of PLL.
8.1.13 Effective Registration Statement. The Form S-4 Registration
Statement shall have become effective and no stop order suspending the
effectiveness of the Form S-4 Registration Statement shall have been issued and
no proceedings for that purpose shall have been initiated or threatened by the
SEC or any other Regulatory Authority.
8.1.14 Blue -Sky Permits. PLL shall have received all state securities
laws and "blue sky" permits necessary to consummate the Merger.
8.2 Conditions to Obligations of LTC. The obligations of LTC to
consummate the Closing are subject to the satisfaction (or waiver by LTC) of the
following conditions:
8.2.1 Representations, Warranties and Covenants of PLL. The
representations and warranties of PLL made in this Agreement shall be true and
correct in all respects (or, if any such representation is not expressly
qualified by "materiality," "Material Adverse Effect" or words of similar
import, then in all material respects) as of the date hereof and as of Closing,
as though made as of the Closing and (b) PLL shall have performed and complied
in all material respects with all terms, agreements and covenants contained in
this Agreement required to be performed or complied with by PLL on or before the
Closing Date.
8.2.2 No Injunction, etc. No provision of any applicable Law and no
judgment, injunction, order or decree of any Governmental Authority shall be in
effect which shall prohibit the consummation of the Closing.
8.2.3 No Proceedings. No action, suit or proceeding challenging this
Agreement, the Interim Agreements, the Ancillary Closing Agreements or the
transactions contemplated hereby or thereby or seeking to prohibit, alter,
prevent or materially delay the Closing or seeking material damages shall have
been instituted or threatened by any Person.
8.2.4 Ancillary Closing Agreements. Each of the Ancillary Closing
Agreements shall have been executed and delivered by PLL where PLL is a party
thereto.
8.2.5 Third-Party Consents; Governmental Approvals. The Form S-4
Registration Statement shall have been declared effective by the SEC, the
information contained therein shall be true and correct in all material respects
as of the Closing Date, no stop order shall have been issued or proceedings
instituted or threatened suspending the effectiveness of the Registration
Statement and all consents, approvals, waivers and Permits, if any, disclosed or
required to be disclosed on any Schedule attached hereto or otherwise required
in connection with the consummation of the transactions contemplated by this
Agreement shall have been received including, but not limited to, any consents
relating to the Mitsubishi Materials and the approval by LTC's and PLL's
shareholders of the transactions contemplated by this Agreement and the
Ancillary Closing Agreements.
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8.2.6 No Material Adverse Change. Prior to the Closing Date, no event
shall have occurred which, individually or when considered together with all
other matters, has had, or could reasonably be expected to have, a Material
Adverse Effect on PLL and LTC shall not have discovered any fact or circumstance
(previously unknown to LTC) which, individually or when considered together with
all other matter has, or could reasonably be expected to have, a Material
Adverse Effect on PLL.
8.2.7 IPO Closing. The IPO shall have closed prior to the Closing of
the Merger.
8.2.8 Fairness Opinion. LTC shall have received from its financial
adviser, Xxxxxxx Associates, an opinion, dated the date of the execution of the
Merger Agreement and the mailing of the Proxy Statement, that the proposed
Merger is fair from a financial point of view to the LTC shareholders, and such
opinion shall not have been withdrawn prior to the Closing Date.
8.2.9 Tax Opinion. LTC shall have received an opinion from Xxxxx
Xxxxxxxx in form and substance reasonably satisfactory to LTC and its counsel to
the effect that the Merger will qualify as a tax free reorganization under the
Code.
8.2.10 Stockholder Vote. The Merger shall have been approved by the
requisite vote of the stockholders of LTC.
8.2.11 Effective Registration Statement. The Form S-4 Registration
Statement shall have become effective and no stop order suspending the
effectiveness of the Form S-4 Registration Statement shall have been issued and
no proceedings for that purpose shall have been initiated or threatened by the
SEC or any other Regulatory Authority.
8.2.12 Blue -Sky Permits. PLL shall have received all state securities
laws and "blue sky" permits necessary to consummate the Merger.
8.2.13 Nasdaq Listing. The Merger Securities issuable pursuant to the
Merger shall have been approved for listing on Nasdaq.
9.1 Termination.
(a) This Agreement may be terminated and the Merger abandoned at any
time prior to the Closing upon any of the following events (the date on which
this Agreement is terminated under this Section 9.1 is the "Termination Date"):
(i) By the mutual written consent of PLL and LTC;
(ii) By PLL, if there has been a material violation or breach by LTC
of any covenant, representation or warranty contained in this Agreement and such
violation or breach has not been waived by PLL or cured by LTC within 60 days
after written notice thereof from PLL;
(iii) By LTC, if there has been a material violation or breach by PLL
of any covenant, representation or warranty contained in this Agreement and such
violation or breach has not been
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waived by LTC or cured by PLL within 60 days after written notice thereof from
LTC (a "PLL Default");
(iv) By PLL or LTC if the transactions contemplated hereby have not
been consummated by February 28, 2002; provided, however, that (i) neither PLL
nor LTC will be entitled to terminate this Agreement pursuant to this Section
9.1(a)(iv) if such Person's breach of this Agreement has prevented the
consummation of the transactions contemplated hereby;
(v) By PLL if LTC's shareholders fail to approve the transactions
contemplated herein within 90 days of the effectiveness of the Form S-4
Registration Statement, or, in such circumstances, by LTC if LTC has met its
obligations under Section 7.4 and 7.6 (a) with respect to such approval;
(vi) By LTC, if PLL's shareholders fail to approve the transactions
contemplated herein or, in such circumstances, by PLL if PLL has met its
obligations under Section 7.4 and 7.6(a) with respect to such approval;
(vii) By PLL, if the condition to Closing set forth in Section 8.1.6
has not been satisfied; or
(viii) By LTC, if the condition to Closing set forth in 8.2.6 has not
been satisfied.
II. The term "PLL Default" as used in the Commitment Warrant (as defined in
the Bridge Loan Financing Agreements) shall have the meaning set forth in the
Merger Agreement.
III. Section 3(a) of each Note delivered and to be delivered under the
Bridge Loan Financing Agreement is amended and restated as follows:
This Note (including both principal and accrued Default Interest, if
any) shall be automatically converted into the Conversion Consideration (as
defined below) on the date after the Termination Date (as defined in the Merger
Agreement). Notwithstanding the foregoing, if the closing of the Transaction
does not occur on or before the Termination Date due to (i) a PLL Default (as
defined in the Merger Agreement), or (ii) a failure by the Lender's Board of
Directors to act on good faith in proceeding with the Transaction contemplated
under the Merger Agreement, then the Conversion Consideration shall consist
solely of the shares.
IV. In all other respects, the Merger Agreement and the Bridge Loan
Financing Agreements are hereby ratified and affirmed in their entirety.
The parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
PACIFIC LITHIUM LIMITED
By:
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Xxxxx X. Xxxxxxxxx
Managing Director
LITHIUM TECHNOLOGY CORPORATION
By:
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Xxxxx X. Xxxx
Chairman and Chief Executive Officer
