EXHIBIT 1.2 TO FORM 10-QSB
AMENDMENT TO
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
This Amendment to Agreement and Plan of Reorganization and Merger (this
"Amendment"), is dated as of March 6, 1998, by and among TATONKA ENERGY, INC.,
an Oklahoma corporation ("Tatonka"), TATONKA ENERGY SUBSIDIARY, INC., a Texas
corporation and a wholly-owned subsidiary of Tatonka ("Tatonka Sub"), PHY. MED.,
INC., a Texas corporation (the "Company") and XXXXXX X. XXXXXX, a Texas resident
("Xxxxxx") and the EMPLOYEE STOCK OWNERSHIP PLAN OF PHY. MED., INC. (the
"ESOP")(Xxxxxx and the ESOP are collectively the "Stockholders").
Recitals
A. The parties have entered into an Agreement and Plan of Reorganization
and Merger dated as of March 6, 1998 (the "Agreement"), pursuant to which
Tatonka, Tatonka Sub, and the Company intend that Tatonka Sub be merged with and
into the Company, and that the Company be the sole surviving corporation
(sometimes called the "Surviving Corporation"), and Tatonka Sub be the
disappearing corporation (sometimes called the "Disappearing Corporation").
B. Tatonka, Tatonka Sub and the Company have each determined to engage in
the transactions contemplated hereby, pursuant to which (i) Tatonka Sub will
merge with and into the Company upon the terms and conditions set forth in this
Agreement and in accordance with the laws of the State of Texas, (ii) 80% of the
outstanding shares of the Company Common Stock shall be converted at such time
into shares of common stock, par value $.001 per share, of Tatonka (the "Tatonka
Common Stock") as set forth in this Agreement, and (iii) the Company shall
become an 80% owned subsidiary of Tatonka.
C. Recital F of the Agreement incorrectly states that Tatonka has
9,916,487 shares of Common Stock issued and outstanding or reserved for
issuance, when the correct number is 10,416,487 shares issued and outstanding or
reserved for issuance.
D. Section 2.11 contains several erroneous numbers of shares and
percentages.
E. "Exhibit A-Merger Consideration" to Exhibit "A" to the Articles of
Merger erroneously
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states:
"The Stockholders shall receive the following Tatonka Common Stock as
their Merger Consideration:
Xxxxxx X. Xxxxxx.........................................54,230,788 shares
The ESOP..................................................5,184,621 shares
Total Merger Consideration..............................69,415,409 shares"
NOW, THEREFORE, in consideration of the preceding recitals and their
mutual desire that the Agreement read correctly, the parties mutually agree to
correct said errors, as follows:
1. Recital F correctly reads as follows:
"F. Tatonka has 50,000,000 shares of Common Stock authorized for
issuance and 10,416,487 shares issued and outstanding or reserved for
issuance. Issuance at the effective Time of all the shares representing
the Merger Consideration would result in the issuance of more than such
50,000,000 authorized shares."
2. Section 2.11 of Exhibit "A" attached to the Articles of Merger
correctly reads as follows:
"Section 2.11 Percentage Protection Provision. The parties to this
Agreement agree that they are entering into this Agreement with the
intention that Xxxxxx and the ESOP will have at least 86.87% of the shares
of Tatonka Common Stock outstanding after (a) the Effective Time and (b)
the conversion of all the Tatonka Preferred Stock, but before the exercise
of any of the three stock options contemplated to be issued by Tatonka
(after the Effective Time) and referred to in Section 4.4 of this
Agreement. The numbers of shares of Tatonka Common Stock set forth on
Exhibit A as being issued to Xxxxxx and the ESOP at the Effective Time are
based on the assumptions that (a) no more than 9,515,556 shares of Tatonka
Common Stock, as presently constituted, will be outstanding at the
Effective Time (exclusive of any shares that may be issued upon conversion
of Tatonka Preferred Stock prior to the Effective Time), (b) no more than
900,931 shares will be issued upon conversion of all the Tatonka Preferred
Stock, (c) no other shares of Tatonka Common Stock will be issued by
virtue of any rights to receive any shares of Tatonka Common Stock or
other securities of Tatonka that exist at the date of this Agreement or
will exist at the Effective Time, and (d) the aggregate of 10,416,487
shares enumerated in (a) and (b) above will constitute no more than 13.13%
of the shares of Tatonka Common Stock outstanding after the events
described above.
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The parties to this Agreement covenant and agree that if more than the
10,416,487 shares of Tatonka Common Stock referred to in the foregoing
paragraph are ultimately issued by Tatonka as a consequence of the matters
referred to in such paragraph, Tatonka shall issue to Xxxxxx and the ESOP,
pro rata, such additional number of shares of Tatonka Common Stock as
shall be necessary to increase their collective ownership percentage of
all shares of Tatonka Common Stock outstanding after the events described
above to 86.87%."
3. (2) "Exhibit A-Merger Consideration," which is attached to Exhibit "A"
to the Articles of Merger, correctly reads as set forth below:
"Exhibit A - Merger Consideration
(As Corrected)
The Stockholders shall receive the following Tatonka Common Stock as their
Merger Consideration:
Xxxxxx X. Xxxxxx.........................................53,840,164 shares
The ESOP.................................................15,075,245 shares
Total Merger Consideration..............................68,915,409 shares"
IN WITNESS WHEREOF, the parties have duly executed this Amendment to
Agreement and Plan of Reorganization and Merger as of the date first written
above.
TATONKA: TATONKA ENERGY, INC.
By: /s/ Xxx Xxxx
-----------------------------
Xxx Xxxx
President
TATONKA SUB: TATONKA ENERGY SUBSIDIARY, INC.,
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By: /s/ Xxx Xxxx
-----------------------------
Xxx Xxxx
President
THE COMPANY: PHY. MED., INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
President
XXXXXX:
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
ESOP: EMPLOYEE STOCK OWNERSHIP
PLAN OF PHY. MED, INC.
By: /s/ Xxxxxx X. Xxxxxx, Trustee
-----------------------------
Xxxxxx X. Xxxxxx, Trustee
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