AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF MERGER
Exhibit
10.6
AMENDMENT
NO. 3 TO AGREEMENT AND PLAN OF MERGER
This
Amendment No. 3 (the “Amendment”), entered into
September 28, 2009, to the Agreement and Plan of Merger (the “Agreement” or “Merger Agreement”), executed
on or around May 22, 2009, and amended on or around July 8, 2009 and on July 15,
2009, by and between SARS Corporation (“SARS”), a corporation formed
under the laws of the State of Nevada, and/or its assignees, Environmental
Insulation, LLC (“EI”),
a limited liability company formed under the laws of the State of Nevada, EI
Acquisition Corp. (the “EI
Merger Sub”), a corporation to be formed under the laws of the State of
Nevada and a wholly owned subsidiary of SARS, ESDD, LLC (“ESDD”), a limited liability
company formed under the laws of the State of Tennessee, ESDD Acquisition Corp.,
a corporation to be formed under the laws of the State of Nevada and a wholly
owned subsidiary of SARS (the “ESDD Merger Sub”),
Alternatech, Inc. (“Alternatech”), a corporation
formed under the laws of the State of Illinois, Alternatech Acquisition Corp.
(the “Alternatech Merger
Sub”), a corporation to be formed under the laws of the State of Nevada
and a wholly owned subsidiary of SARS, Associated Mechanical, Inc. (“AMI”), a corporation formed
under the laws of the State of Illinois, AMI Acquisition Corp. (the “AMI Merger Sub”), a
corporation to be formed under the laws of the State of Nevada and a wholly
owned subsidiary of SARS, Swank Enterprises, Inc. (“SEI”) d/b/a Art and Print,
Inc. (“A&P”), a
corporation formed under the laws of the State of Illinois, A&P Acquisition
Corp. (the “A&P Merger
Sub”), a corporation to be formed under the laws of the State of Nevada
and a wholly owned subsidiary of SARS and X.X. Power Plumbing &
Heating Company (“RJP”),
a corporation formed under the laws of the State of Illinois, RJP Acquisition
Corp. (the “RJP Merger Sub”), a corporation to
be formed under the laws of the State of Nevada and a wholly owned subsidiary of
SARS. Hereinafter, EI, ESDD, Alternatech, AMI, A&P and RJP shall
be referred to collectively as the “Acquisition
Entities.” The Agreement and amendment thereto are attached as
Exhibit
A:
WHEREAS,
the Parties desire to complete the Merger Agreement of the Acquisition Entities
into FasTech Services, Inc., a Nevada corporation and wholly owned subsidiary of
SARS;
WHEREAS,
the Parties now wish to amend the Agreement to facilitate the completion of the
Merger Agreement, as set forth herein; and
WHEREAS, except as set forth herein,
all other terms to the Agreement shall remain in full force and
effect.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, it is hereby covenanted and agreed to by the Parties as
follows:
|
1.
|
Section
1.01(a) of the Merger Agreement is deleted in its entirety, the
obligations previously contained therein are hereby waived in their
entirety, and replaced with the following
language:
|
“
(a) As mutual
consideration for the exchange of the Exchange Shares and the Merger Shares, the
Parties shall undertake, on a “best efforts” basis, to raise up to Ten Million
U.S. Dollars ($10,000,000), which shall be secured in connection with the
Execution (defined herein, below) in order to satisfy certain identified
liabilities, provide working capital and facilitate the expansion and
restructuring of the balance sheets for the Surviving Entities resulting from
the Merger (the “Financing”). The
Financing shall not be a condition either precedent or subsequent to the
Closing;
|
2.
|
Section
1.01(e) of the Merger Agreement is hereby stricken from the Merger
Agreement and deleted in its entirety, the obligations previously
contained therein are hereby waived in their entirety, and not replaced
with any language whatsoever.
|
|
3.
|
Section
1.01(3) of the Merger Agreement is deleted in its entirety, the
obligations previously contained therein are hereby waived in their
entirety, and replaced with the following
language:
|
“(g) SARS
shall undertake, on a “best efforts” basis, to secure a credit facility to
effectuate the assumption of certain liabilities as agreed between the Parties,
in order to consolidate such liabilities into one (1) central credit
facility.”
|
4.
|
Section
5.03(g) of the Merger Agreement is hereby stricken from the Merger
Agreement and deleted in its entirety, the obligations previously
contained therein are hereby waived in their entirety, and not replaced
with any language whatsoever.
|
|
5.
|
Except
as set forth herein, all other terms to the Agreement shall remain in full
force and effect.
|
|
6.
|
This
Amendment to the Merger Agreement, and the Agreement itself, set forth the
entire understanding and agreement of the parties, and supersede any and
all prior contemporaneous oral or written agreements or understandings
between the parties as to the subject matter of this
Amendment. This Amendment shall be governed by the laws of the
State of Washington.
|
|
7.
|
This
Amendment may be executed by facsimile and in one (1) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same
instrument.
|
[Remainder of this page left
intentionally blank; signature page to follow]
IN
WITNESS WHEREOF, the Parties have executed this Amendment on the date indicated
above:
|
SARS
CORPORATION
|
By: /s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
|
Its: Director,
Chief Technical Officer
|
FASTECH
SERVCES, INC.
By: /s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Its: Authorized
Officer
ENVIRONMENTAL
INSULATION, LLC
|
By:
|
/s/ Xxxx
Xxxxx
|
|
Name:
|
Xxxx
Xxxxx
|
Title: Manager
ESDD,
LLC
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
Title: Manager
ALTERNATECH,
INC.
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
President
|
ASSOCIATED
MECHANICAL, INC.
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
President
|
SWANK
ENTERPRISES, INC. d/b/a ART & PRINT, INC.
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
President
|
X.X.
POWER PLUMBING & HEATING COMPANY
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxx
|
Title: President
