EXHIBIT 2.2
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FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
EPL RESOURCES (DELAWARE) CORP.
SKYNET HOLDINGS, INC.
AND
THE PRINCIPAL SHAREHOLDERS OF
SKYNET HOLDINGS, INC.
Dated: October 8, 1998
This FIRST AMENDMENT to the AGREEMENT AND PLAN OF MERGER is made and entered
into as of October __, 1998, by and among EPL RESOURCES (DELAWARE) CORP., a
Delaware corporation or its successors or assigns ("Acquiror"), SKYNET HOLDINGS,
INC., a Nevada corporation ("SkyNet"), Xxxxxxxxx X. Xxxxx ("Xxxxx"), DEANSLEY
LIMITED, an Isle of Man Corporation ("Deansley"), Xxxx X. Xxxxxxxx ("Xxxxxxxx"),
Xxxxxxxxx Xxxxx ("Nizic") and FIR Construction Pty. Limited, an Australian
corporation ("Fir"). Xxxxx, Deansley, Xxxxxxxx, Nizic and Fir are hereafter
collectively referred to as the "Principal Shareholders."
Recitals:
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WHEREAS, the parties to that certain Agreement and Plan of Merger dated
September 28, 1998 (the "Merger Agreement") wish to amend the Merger Agreement
in accordance with the following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing premises and agreements
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT OF THE PARTIES
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1. Principal Shareholder Escrow Shares. Section 1.4(b) is hereby amended to
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provide in its entirety as follows:
"In order to secure the Principal Shareholders' indemnification obligations
under Article 7 hereof, 3 million shares of Acquiror Common Stock issuable
to the Principal Shareholders hereunder (the "Principal Shareholder Escrow
Shares") shall be placed into escrow pursuant to the escrow agreement
attached hereto as Exhibit 1.4(b) (the "Principal Shareholder Escrow
Agreement"). Subject to the terms of the Principal Shareholder Escrow
Agreement, the Principal Shareholder Escrow Shares, unless otherwise
subject to claims for indemnification under Section 7.1 hereunder and the
Principal Shareholder Escrow Agreement, shall be released from escrow to
the Principal Shareholders in the following manner: (i) 1,250,000 of the
Principal Shareholder Escrow Shares shall be released upon completion of
Audited Financial Statements in compliance with Section 5.10 hereunder;
(ii) an additional 1,000,000 of the Principal Shareholder Escrow Shares
shall be released six (6) months after the Closing; and (iii) the remaining
Principal Shareholder Escrow Shares shall be released one (1) year after
the Closing."
2. Delivery of Stock Certificates. Section 2.2(b)(i) is hereby amended to
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include the following at the end of the section:
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"; provided, however, that Acquiror shall not issue any certificates
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evidencing any shares of Acquiror Common Stock to any SkyNet Shareholder
unless and until such SkyNet Shareholder has delivered to Acquiror (X) an
executed Investment Letter; (Y) any and all certificates evidencing shares
of SkyNet Common Stock being surrendered in the Merger duly endorsed for
transfer or together with stock powers duly endorsed in blank; and (Z) if
applicable, an executed Amendment No. 1. In the event that a SkyNet
Shareholder is unable to deliver certificates evidencing his shares of
SkyNet Common Stock being surrendered in the Merger to Acquiror, Acquiror
shall accept, in lieu thereof, an Affidavit of Lost Note executed by such
SkyNet Shareholder which includes appropriate indemnification provisions in
favor of Acquiror, in form and substance acceptable to Acquiror."
3. Representations and Warranties of the Principal Shareholders.
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(A) Section 4.1(y) is hereby added to provide in its entirety as follows:
"SKYCOMS LIMITED. Each of that certain (i) License Agreement dated as of
May 17, 1996 by and between Xxxxxxx-Xxxxxx Associates Limited and SkyComs
Limited; (ii) Consultancy and Software Support Agreement dated as of June
1, 1996 by and among Xxxxxxx-Xxxxxx Associates Limited, SkyComs Limited and
Sky International Limited; (iii) Shareholders Agreement relating to SkyComs
Limited dated as of May 17, 1996 by and among Sky International Limited,
Xxxxxxx-Xxxxxx Associates Limited and SkyComs Limited; and (iv) NCC UK
Multi Licensee Escrow Agreement dated as of June 7, 1996 (Agreement No.
8060) by and between Xxxxxxx-Xxxxxx Associates and the NCC Ltd. together
with the Confirmation Agreement forming Schedule 3 thereto executed by
SkyComs Limited as of June 7, 1996 (collectively the "SkyComs Agreements")
is valid, binding and enforceable against the respective parties thereto in
accordance with their respective terms and is in full force and effect on
and as of the date hereof. Following the Merger, the Acquiror as the
surviving entity shall become entitled to all rights of SkyNet under the
SkyComs Agreements. All parties to all of the SkyComs Agreements have
performed all obligations required to be performed to date under such
SkyComs Agreements, and neither SkyNet, the Subsidiaries, nor, to the best
of their knowledge, any other party, is in default or in arrears under the
terms thereof, and no condition exists or event has occurred which, with
the giving of notice or lapse of time or both, would constitute a default
thereunder. The consummation of this Agreement and the Merger will not
result in an impairment or termination of any of the rights of SkyNet or
the Subsidiaries under any SkyComs Agreement. None of the terms or
provisions of any SkyComs Agreement materially adversely affects the
business, prospects, financial condition or results of operations of SkyNet
or the Subsidiaries. In addition, that certain Exclusive Perpetual License
dated as of on or about May 17, 1996 by and between Xxxxxxx-Xxxxxx
Associates and Xxxx Xxxxxxx-Xxxxxx (the "Perpetual License Agreement") is
valid, binding and enforceable against the parties thereto in accordance
with its terms and is in full force and effect on and as
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of the date hereof. To the best of SkyNet's knowledge, each of the parties
to the Perpetual License Agreement has performed all obligations required
to be performed to date thereunder, and no party to the agreement is in
default or in arrears under the terms thereof, and no condition exists or
event has occurred which, with the giving of notice or lapse of time or
both, would constitute a default thereunder. The consummation of this
Agreement and the Merger will not result in an impairment or termination of
any of the rights of SkyNet or the Subsidiaries under the Perpetual License
Agreement. None of the terms or provisions of the Perpetual License
Agreement materially adversely affects the business, prospects, financial
condition or results of operations of SkyNet or the Subsidiaries."
(B) Section 4.1(z). Section 4.1(z) is hereby added to provide in its
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entirety as follows:
"DISSENTER'S RIGHTS. Neither SkyNet nor any of the Principal Shareholders
has received any notice from any person that any SkyNet Shareholder intends
to assert his, her or its right to dissent from the Merger and demand
payment for his, her or its shares of SkyNet Common Stock as provided under
applicable Nevada law."
(C) Section 4.1(aa). Section 4.1(aa) is hereby added to provide in its
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entirety as follows:
"YEAR 2000 PROBLEM. No computer program or application utilized by SkyNet
or any Subsidiary in the operation of its business is or will be unable to
recognize and properly perform date sensitive functions involving dates
prior to and after December 31, 1999 (the "Year 200 Problem"). The Year
2000 problem has not, and is not expected to, materially adversely effect
the business, prospects, financial condition or results of operations of
SkyNet or the Subsidiaries or require the expenditure of any material
amount of resources of SkyNet or the Subsidiaries"
4. Interim Operations of Acquiror. Section 5.3(b)(v) shall be amended to
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provide in its entirety as follows:
"Placement Activities. Prior to the Closing, Acquiror shall have completed
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a private placement to accredited investors which, after expenses, yields
net proceeds (exclusive of those costs and expenses set forth on Schedule
4.2(g) hereto) of no less than $500,000 to Acquiror."
5. Registration Statement. Section 5.5(b) shall be amended to delete the
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number "150,000" and replace it with the number "160,000."
6. Private Offering. Section 5.12(b) is hereby amended to provide in its
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entirety as follows:
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"Promptly following the Closing, Acquiror agrees to undertake a private
placement (the "Private Offering") to accredited and institutional
investors which is intended to yield proceeds, after payment of all sales
commissions, of between $2.5 million (the "Minimum Offering") and $5.0
million (the "Maximum Offering") through the sale of shares of newly issued
restricted common stock at $2.25 per share. The Minimum Offering will be
completed within sixty (60) days of the completion of a standard and
customary private placement document relating to the Private Offering
(which shall include the Audited Financial Statements and be completed as
soon as reasonably practicable after completion of the Audited Financial
Statements). The Private Offering may be completed through the use of
broker-dealers who are registered with the Securities and Exchange
Commission and in good standing with the NASD, upon payment of a sales
commission not to exceed 7% of the gross proceeds. As more fully set forth
within Section 1.4 of this Agreement, the Acquiror has agreed to cause
certain of its principal stockholders to place 2 million shares of its
Common Stock in escrow in order to secure timely completion of the Minimum
Offering."
7. Appointment of Directors.
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(A) Section 1.1(c)(vii) is hereby amended to include the following at the
end of the section:
";provided, however, nothing contained in this Section 1.1(c)(vii) or
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Schedule 1.1(c)(vii) shall effect Acquiror's or the Principal Shareholders'
rights under Section 5.18 hereof to appoint persons to serve on the Board
of Directors of Acquiror."
(B) Section 5.18(a) is hereby amended to provide in its entirety as
follows:
"Concurrent with the Closing, members of Acquiror's Board of Directors
shall resign and shall be replaced with those persons identified on Exhibit
1.1(c)(vii) and as soon as reasonably practicable after Closing, the Board
of Directors shall be composed of five (5) members, consisting of: (i) one
designee of Acquiror's Board of Directors immediately prior to the Closing
(the "Acquiror Designee"); (ii) two (2) designees of the Principal
Shareholders; (iii) a designee of the Acquiror Designee, who shall be
acceptable to the Principal Shareholders; and (iv) a designee of the
Principal Shareholders, who shall be acceptable to the Acquiror Designee."
8. Use of Proceeds. Section 5.20 is hereby added to provide in its entirety as
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follows:
"USE OF PROCEEDS AND REPAYMENT OF OUTSTANDING INDEBTEDNESS. Except as set
forth on Schedule 5.20 attached hereto and delivered herewith by the
Principal Shareholders, the $500,000 (less those expenses identified on
Schedule 4.2(g))
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raised in the private placement identified in Section 5.3(b)(v) shall not
be utilized by Acquiror after Closing to repay any existing indebtedness of
SkyNet or the Subsidiaries. In addition, the Principal Shareholders hereby
covenant and agree that Acquiror and the Subsidiaries will not repay the
principal amount due under that certain Loan Agreement dated as of August
31, 1998 by and among SkyNet, SkyNet Worldwide Express Pty Limited and
Pearlgold Pty Ltd. in the principal amount of AUD $1,000,000 in cash, but
rather shall repay such principal amount through the issuance of shares of
Acquiror Common Stock in the Private Offering."
9. Capitalized Terms. All capitalized terms used herein and not otherwise
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defined herein shall have the same meaning ascribed thereto in the Merger
Agreement.
10. Full Force and Effect. All other provisions in the Merger Agreement shall
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remain in full force and effect except those identified within this First
Amendment to the Agreement and Plan of Merger.
11. Counterpart and Facsimile. This First Amendment to the Agreement and Plan
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of Merger may be executed in two or more counterparts and delivered via
facsimile, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, Acquiror, SkyNet and the Principal Shareholders
have caused this Agreement to be signed by their respective officers hereunto
duly authorized, all as of the date first written above
EPL RESOURCES (DELAWARE) CORP.
By:/s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
SKYNET HOLDINGS, INC.
a Nevada corporation
By:/s/ Xxxxxxxxx Xxxxx
Name: Xxxxxxxxx Xxxxx
Title: Chief Executive Officer
PRINCIPAL SHAREHOLDERS:
/s/ Xxxxxxxxx Xxxxx
Signature
Name: Xxxxxxxxx Xxxxx
Address:_____________________________
_____________________________________
__________________________
/s/ Xxxxxxxxx X. Xxxxx
Signature
Name: Xxxxxxxxx X. Xxxxx
Address:_____________________________
_____________________________________
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/s/ Xxxx X. Xxxxxxxx
Signature
Name: Xxxx X. Xxxxxxxx
Address:_____________________________
_____________________________________
DEANSLEY LIMITED,
an Isle of Man corporation
/s/ E. N. Xxxxxx
Signature
Name: E. N. Xxxxxx
Title: Director
FIR CONSTRUCTION PTY LIMITED,
an Australian Corporation
/s/ Xxxxxxxxx Xxxxx
Signature
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
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SCHEDULE 5.20
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PAYMENT OF EXISTING SKYNET INDEBTEDNESS
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$100,000 will be paid in satisfaction of pre-existing indebtedness of
SkyNet due either to Xxxx Xxxxxxxx or Xxxx & Sons. In the event that the
Closing occurs prior to October 10, the funds will be paid to Xx. Xxxxxxxx. In
the event that the Closing occurs after October 10, the funds will be paid to
Pace & Sons.
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