EXHIBIT 10.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT (the "Amendment"), dated as of March 15, 2007 is entered
into by and among INNOZEN, INC., a Delaware corporation ("COMPANY"),
HEALTHSPORT, INC., a Delaware corporation ("PARENT") INNOZEN ACQUISITION SUB,
INC., a Delaware corporation and a wholly owned subsidiary of Parent
("ACQUISITION SUB"), to the AGREEMENT AND PLAN OF MERGER (the "MERGER
AGREEMENT"), dated as of January 31, 2007, by and between Company, Parent and
Acquisition Sub.
WHEREAS, Company, Parent and Acquisition Sub are parties to the Merger
Agreement, which provides, among other things, for the merger of Acquisition Sub
with and into the Company (the "MERGER") upon and subject to the terms and
conditions contained therein;
WHEREAS, pursuant to Section 5.3 of the Merger Agreement, the Parent was
required to complete a private placement of at least $6 million but not more
than $12 million of Parent Common Shares at a price not less than $1.50 per
share (the "PRIVATE PLACEMENT"), on the following timetable: (a) execution and
delivery by the investors of subscription agreements for the minimum amount of
the Private Placement by no later than February 15, 2007; and (b) the closing of
the Private Placement by no later than February 28, 2007.
WHEREAS, pursuant to Section 6.1.2 of the Merger Agreement, the completion
of the Private Placement in Section 5.3 was a condition to Closing of the
Merger;
WHEREAS, Section 7.1.3 of the Merger Agreement provided that the Merger
may be terminated by Company if Parent failed to complete the Private Placement
by the dates set forth in Section 5.3;
WHEREAS, Section 7.1.6 of the Merger Agreement provided that the Merger
may be terminated if the Closing had not occurred by February 28,2007;
WHEREAS, the parties orally agreed to extend the provisions of Section
7.1.6 of the Merger Agreement pending this Amendment;
WHEREAS, the parties hereto desire to amend the dates required for
completion of the Private Placement in Section 5.3 and the date of termination
of the Merger Agreement as set forth in Section 7.1.6;
WHEREAS, the parties hereto desire to amend the definition of "EXCHANGE
RATIO" to reflect potential changes in the number of Parent Common Shares issued
to Company in the Merger;
WHEREAS, Section 7.3 of the Merger Agreement requires that any amendment
to the Merger Agreement be in writing and signed on behalf of each of the
parties; and
WHEREAS, the Boards of Directors of each of Company, Parent and
Acquisition Sub have approved and deemed advisable this Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 5.3 of the Merger Agreement is hereby amended as follows:
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"Section 5.3 PRIVATE PLACEMENT. Parent shall use its best efforts to complete
a private placement of at least $6 million but not more than $12 million of
Parent Common Shares at a price not less than $1.50 per share (the "PRIVATE
PLACEMENT"), on the following timetable: (a) execution and delivery by the
investors of subscription agreements for the minimum amount of the Private
Placement by no later than March 19, 2007, which execution and delivery of
subscription agreements shall constitute "completion" of the Private Placement
for purposes hereof; and (b) the closing of the Private Placement by no later
than April 30, 2007. The date set forth in Section 5.3(A) and the number of
Parent Common Shares issued in the Merger may be adjusted as follows:
i. If Parent completes the Private Placement by March 19, 2007, it
shall issue 17,500,000 Parent Common Shares to the Company in the Merger;
ii. If Parent fails to complete the Private Placement by March 19, 2007
but before March 30, 2007, it shall be required to increase the number of
Parent Common Shares issued to the Company in the Merger from 17,500,000to
17,750,000;
iii. If Parent fails to complete the Private Placement by March 30, 2007
but before April 15, 2007, it shall be required to increase the number of
Parent Common Shares issued to the Company in the Merger from 17,750,000
to 18,000,000;
iv. If Parent fails to complete the Private Placement by April 15, 2007
but before April 30, 2007, it shall be required to increase the number of
parent Common Shares issued to the Company in the Merger from 18,000,000
to 18,250,000; or
v. If Parent fails to complete the Private Placement by April 30, 2007,
Company shall be entitled to terminate the Merger as set forth in Section
7.1.3.
For purposes of this Section 5.3, Parent shall be deemed to have failed to meet
the condition of completion of the Private Placement if it does not provide
executed copies of the subscription documents to Company in some format,
including mail, fax or email, by 5:00 p.m. Pacific coast time on the relevant
date."
2. Section 7.1.6 of the Merger Agreement is hereby amended to change
the date of termination from February 28, 2007 to April 2, 2007. The remainder
of Section 7.1.6 shall remain unchanged and in full force and effect.
3. The definition of "Exchange Ratio" on Schedule A of the Merger
Agreement is hereby amended as follows: "EXCHANGE RATIO" shall equal the ratio
determined by dividing the number of Parent Common Shares to be issued to
Company as determined in Section 5.3 by the number of outstanding Company
Capital Shares at Closing."
4. Except as expressly provided in this Amendment, the Merger Agreement
shall remain unchanged and in full force and effect.
5. This Amendment and all questions with respect to this Amendment and
the rights and liabilities of the parties will be governed by the laws of
Delaware, regardless of the choice of law provisions of Delaware or any other
jurisdiction.
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6. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties have caused this Amendment to the Agreement and
Plan of Merger to be duly executed as of the date first written above.
INNOZEN, INC.
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: CEO
HEALTHSPORT, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: President
INNOZEN ACQUISITION SUB, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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