FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (this
"Amendment") is dated as of this 4th day of October 2002 and entered into by and
among GATEWAY INTERNATIONAL HOLDINGS, INC., a Nevada corporation (the "Parent"),
GWIH ACQUISITION CORP. II, a Nevada corporation (the "Sub"), XXXXXX ENGINEERING,
INC., a California corporation (the "Company") and Xxx Xxxxxx and Xxxxxxx Xxxx
(collectively, the "Shareholders"). Capitalized terms used herein shall have the
meanings ascribed to them in the Agreement and Plan of Reorganization, unless
otherwise defined.
RECITALS
A. The parties hereto desire to amend that certain Agreement and Plan
of Reorganization, entered into as of April 26, 2002 (the "Merger Agreement"),
by and between Parent, Sub, the Company and the Shareholders.
NOW, THEREFORE, in consideration of the respective covenants and
promises contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
1. Amendment to Merger Agreement.
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1.1 Section 1.2 of the Merger Agreement is deleted in its entirety
and replaced by the following:
"1.2 Merger Consideration. As consideration for the Merger
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(the "Merger Consideration"), Parent shall issue to the Shareholders an
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aggregate of Twenty-Three Million Six Hundred Seventy-Five Thousand Three
Hundred (23,675,300) shares of Parent common stock, $0.001 par value (the
"Parent Common Stock")."
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1.2 The Merger Agreement is hereby amended to add the following
provision:
"3.7 Company Capital Structure. The authorized capital stock
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of the Company consists of 100,000,000 shares of authorized Company Common Stock
and 10,000,000 shares of authorized preferred stock, $0.001 par value (the
"Preferred Stock"), of which 17,021,000 shares of Company Common Stock and zero
shares of Preferred Stock are issued and outstanding as of the date of this
Agreement. All outstanding shares of Company Capital Stock are duly authorized,
validly issued, fully paid and non-assessable and not subject to preemptive
rights created by statute, the Articles of Incorporation or Bylaws of the
Company or any agreement to which the Company is a party or by which it is bound
and have been issued in compliance with federal and state securities laws. There
are no declared or accrued unpaid dividends with respect to any shares of the
Company Capital Stock. The Company has no other capital stock authorized, issued
or outstanding."
1.3 The Merger Agreement is amended to add the following provision:
"5.12 Confidentiality. The Company and the Shareholders shall
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treat in confidence all non-public information that the Company or the
Shareholders shall have obtained regarding the Parent or Sub or their business,
and the Parent or Sub shall treat in confidence all material non-public
information obtained by the Parent or Sub regarding the Company or the
Shareholders. In the merger called for by this Agreement shall not be
consummated, the Company and the Shareholders, on the one hand, and the Parent
and Sub, on the other hand, shall return or destroy (verified in writing) all
copies of non-public documents and materials which have been furnished by the
other in connection with this Agreement. However, nothing contained herein shall
prohibit any party from:
(i) Using such documents, materials and other
information in connection with any action or proceeding brought or any
claim asserted with respect to any breach of any representation,
warranty or covenant made in or pursuant to this Agreement; or
(ii) Supplying or filing such documents, materials or
other information to or with any governmental entity or other person
which either party deems reasonably necessary in connection with the
obtaining of any consent, waiver, amendment, modification, approval,
authorization, permit or license which may be necessary to effectuate
this Agreement and to consummate the transactions contemplated hereby;
or
(iii) Supplying such documents, materials or other
information to such party's counsel, accountants and other consultants
and representatives in connection with the transactions contemplated
hereby.
2. Merger Agreement in Effect. Except as hereby amended by this Amendment,
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all of the terms and provisions of the Merger Agreement shall remain in full
force and effect.
3. Counterparts. This Amendment may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4. Choice of Law. This Amendment shall be construed, interpreted and the
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rights of the parties determined in accordance with the internal laws of the
State of California applicable to contracts executed, delivered and fully
performed within the State of California, except with respect to matters of law
concerning the internal affairs of any entity (corporate or partnership) which
is a party to or the subject of this Amendment, and as to those matters the law
of the jurisdiction under which the respective entity derives its powers shall
govern.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed on their respective behalf, by their respective officers thereunto
authorized, all as of the day and year first above written.
"Company"
XXXXXX ENGINEERING, INC.,
a California corporation
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Its: President
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"Parent"
GATEWAY INTERNATIONAL HOLDINGS, INC.
a Nevada corporation
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Its: President & CEO
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"Sub"
GWIH ACQUISITION CORP. II,
a Nevada corporation
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Its: President & CEO
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"Shareholders"
/s/ Xxx Xxxxxx
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XXX XXXXXX
/s/ Xxxxxxx Xxxx
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XXXXXXX XXXX
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