AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
AMENDMENT
NO. 1
TO
AMENDED
AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS
AMENDMENT NO. 1 (this “Amendment”)
is
made and entered into as of March ___, 2007 to amend that certain Amended and
Restated Agreement and Plan of Merger, dated as of February 6, 2007 (the
“Merger
Agreement”),
by
and among U.S. Wireless Data, Inc., a Delaware corporation (“Parent”),
StarVox Acquisition, Inc., a California corporation and a wholly owned
subsidiary of Parent (“Merger
Sub”),
and
StarVox Communications, Inc., a California corporation (the “Company”).
All
other capitalized terms that are used in this Amendment shall have the
respective meanings ascribed thereto in the Merger Agreement.
RECITALS
A. Parent,
Merger Sub and Company entered into the Merger Agreement providing for the
merger of Merger Sub with and into the Company.
B. Parent,
Merger Sub and Company desire to make certain amendments to the Merger Agreement
as set forth in this Amendment.
NOW,
THEREFORE, the parties hereby agree to amend the Merger Agreement as
follows:
1. Amendment
of Section 7.1(b). Section 7.1(b) of the Merger Agreement is amended and
restated in its entirety to read as follows:
“(b)
by
either of the Company or Parent if the Merger shall not have been consummated
by
March 31, 2007; provided,
however,
that
the right to terminate this Agreement under this Section 7.1(b) shall not
be available to any party whose action or failure to act has been a principal
cause of or resulted in the failure of the Merger to occur on or before such
date and such action or failure to act constitutes a breach of this Agreement.”
2. Remaining
Provisions. Except as expressly amended by this Amendment, all provisions of
the
Merger Agreement shall remain in full force and effect.
3. Governing
Law. This Amendment shall be governed by and construed in accordance with the
law of the State of New York regardless of the law that might otherwise govern
under applicable principles of conflicts of law thereof.
4. Counterparts;
Facsimile Signatures. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart. Delivery by facsimile to counsel
for
the other party of a counterpart executed by a party shall be deemed to meet
the
requirements of the previous sentence.
IN
WITNESS WHEREOF, the undersigned parties have caused this Amendment to be
executed by their respective duly authorized representatives to be effective
as
of the date first written above.
| U.S. WIRELESS DATA, INC. | ||
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| STARVOX ACQUISITION, INC. | ||
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| STARVOX COMMUNICATIONS, INC. | ||
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