EXHIBIT 5
AMENDMENT TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
(the "Amendment"), is made and entered into as of March 6, 1998, by and among
VDC CORPORATION LTD., a Bermuda corporation ("Acquiror"), VDC (DELAWARE), INC.,
a Delaware corporation and wholly-owned subsidiary of Acquiror ("Sub"), SKY KING
COMMUNICATIONS, INC., a Connecticut corporation ("Sky King"), and those
individuals and entities whose names appear on the signature page hereof in
their capacity as holders of the outstanding common stock of Sky King (the "Sky
King Shareholders").
R E C I T A L S:
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WHEREAS, the parties hereto have entered into an Amended and Restated
Agreement and Plan of Merger effective as of December 10, 1997 (the "Merger
Agreement") pursuant to which Sub shall merge with and into Sky King (the
"Merger");
WHEREAS, the parties hereto desire to amend the Merger Agreement in the
manner set forth herein effective as of the date hereof; and
WHEREAS, any capitalized term used but not defined herein shall have
the meaning ascribed to such term in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree that the Merger Agreement is hereby amended as follows:
1. Section 6.1(a)(i) of the Merger Agreement is amended to require that
Acquiror shall have assets at the Closing consisting of at least
$600,000.00 in cash or other liquid assets and the right to receive
$370,000.00 in immediately available funds from Tasmin Limited by March
13, 1998. In the event the remaining funds are not timely received from
Tasmin Limited, the Acquiror may draw upon such number of Investment
Banking Shares as are necessary to satisfy any such deficiency in
funding to the extent of Investment Banking Shares at the rate of $2.00
per share. Assets available at Closing will also include approximately
50,000 shares of the Common Stock of PortaCom that were acquired for
approximately $30,000.
2. Xxxxx Xxxxx, a Sky King Shareholder, shall be deemed to have not given
any of the representations and warranties of Sky King and the Sky King
Shareholders set forth in Article IV of the Merger Agreement.
3. Schedule 4.2(d)(i) to the Merger Agreement is hereby amended and
restated in its entirety by the following Schedule:
Schedule 4.2(d)(i)
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VDC Corporation Ltd. Warrants
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Number of Warrants Exercise Price Expiration Date
------------------ -------------- ---------------
45,000 $5.00 Aug. 30, 1998
85,000 $4.00 Aug. 30, 1998
41,110 $4.00 Aug. 30, 1998
90,909 $4.00 Aug. 30, 1998
90,909 $4.00 Aug. 30, 1998
9,890 $4.00 Aug. 30, 1998
250,000 $4.00 Aug. 30, 1998
30,000 $4.00 Aug. 30, 1998
100,000 $4.00 Aug. 30, 1998
145,728 $4.00 Aug. 30, 1998
50,000 $4.00 Aug. 30, 1998
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938,546
4. Paragraph 5.15 of the Merger Agreement shall be amended to provide that
Acquiror has funded at least $240,000 of the PortaCom Advances.
Subparagraph (i)(A) of Paragraph 5.15 shall be amended to provide that
the Investment Banking Shares shall serve as an escrow fund for the
payment of the Remaining PortaCom Advances or that the Remaining
PortaCom Advances may be satisfied upon the early collection of
outstanding subscriptions receivable. See Paragraph 5 below. The
remainder of Paragraph 5.15 shall remain in full force and effect.
5. Paragraph 4.2(L) of the Merger Agreement provides that the Acquiror has
agreed to pay an investment banking fee in stock equal to 5% of the
Merger Consideration or 500,000 shares of Acquiror Common Stock for
arranging this transaction (the "Investment Banking Shares"). This
Amendment will confirm that the Investment Banking Shares will be paid
through the issuance by Acquiror following the transaction of 500,000
shares of Common Stock to the following persons: FAC Enterprises, Inc.
- 185,000 shares; KAB Investments, Inc. - 185,000 shares; SPH
Investments, Inc. - 70,000 shares; and SPH Equities, Inc. - 60,000
shares.
Notwithstanding the above, the Investment Banking Shares will not be
distributed at the Closing, and instead, will be subject to offset in
the following manner: (i) to the extent the Remaining PortaCom Advances
are not satisfied by the early collection of outstanding subscriptions
receivable, the Investment Banking Shares will serve as an escrow fund
upon which the Acquiror will be able to draw from these shares in order
to sell shares in one or more private placement transactions in order
to, and to the extent necessary, to secure cash proceeds sufficient to
satisfy the obligation to advance the Remaining PortaCom Advances
identified within Subparagraph 5.15(b)(i)(A) of the Merger Agreement.
To the extent the Remaining PortaCom Advances are satisfied, then, with
the exception of Investment Banking Shares that are otherwise serving
as an escrow fund under Paragraph 1 hereof, the remaining Investment
Banking Shares may be issued in the manner identified above.
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6. Notwithstanding anything to the contrary in the Merger Agreement, the
Merger shall become effective as of the filing of a Certificate of
Merger with the Secretary of State of the State of Connecticut in
accordance with Section 38-821 of the CBCA and a Certificate of Merger
with the Secretary of State of the State of Delaware in accordance with
Section 252 of the DGCL; and confirmation that both Certificates of
Merger have become effective as of such filing date; and at such time
the Merger shall be deemed completed and such time shall be referred to
herein as the "Effective Time."
7. Except as otherwise set forth herein, the terms of the Merger Agreement
shall remain in full force and effect.
8. This Amendment may be executed in two or more counterparts and
delivered via facsimile, each of which shall be deemed to be an
original, and all of which together shall be deemed to be one and the
same instrument.
9. This Amendment shall be governed by and construed in accordance with
the laws of Bermuda, without regard to the laws that might otherwise
govern under principles of conflicts of laws applicable thereto.
IN WITNESS WHEREOF, Acquiror, Sub, Sky King and the Sky King
Shareholders have caused this Amendment to be signed by their respective
officers hereunto duly authorized, effective as of the date first written above.
VDC CORPORATION LTD.
By: /s/ Xxxxxx Xxxxxxxx Xxxxx
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Xxxxxx Xxxxxxxx Lacey, President
VDC (DELAWARE), INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, President
[Signatures continue on next page]
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SKY KING COMMUNICATIONS, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx,
Chief Executive Officer
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Chief Operating Officer
SKY KING SHAREHOLDERS
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxxxxx X. Xxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxxx X. Xxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxx X. Xxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxx X. Xxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature (Xxxxxxxxx X. Xxxxx)
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature (Xxxx X. Xxxxx)
Name: Xxxxxxxxx X. and Xxxx X. Xxxxx
[Signatures continue on next page]
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(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxx Xxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxxx Family Trust
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxx Xxxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Watchung Road Associates, L.P.
By: Xxxx X. Xxxxxxxxx, General Partner
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxx Xxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxx Xxxxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxxx Xxxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxx xx Xxxx XXX
By: Xxxxx & Co., Trustee
[Signatures continue on next page]
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(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxxx Tech, LLC
By: Xxxx Xxxxxxx, Managing Partner
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxx Xxxxxxxx Xxxxxx
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Capital Growth Trust
By: Xxxxx Xxxxxxx, Trustee
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Xxxxxx Finance Ltd.
By: Xxxxxx Xxxxxx,
Financial Controller
(*) /s/ Xxxxxxxxx X. Xxxxx
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Signature
Name: Gibralt Holdings Ltd.
By: Xxxxx XxXxxxxxx
Title: Vice President
(*) By Power of Attorney granted to Xxxxxxxxx X. Xxxxx.
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