AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (this “Amendment”) dated as of March 31, 2008
to the Agreement and Plan of Merger referred to below by and among Sequoia Media
Group, LC, a Utah limited liability company (“Sequoia”),
Secure Alliance Holdings Corporation, a Delaware corporation (“SAH”),
and SMG Utah, LC, a Utah limited liability company and wholly owned subsidiary
of SAH (“Merger
Sub”).
WITNESSETH:
WHEREAS, Sequoia, SAH and Merger Sub
are party to that certain Agreement and Plan of Merger dated as of December 6,
2007 (as such agreement may be amended, and supplemented or otherwise modified
from time to time the “Merger
Agreement”); and
WHEREAS, the parties hereto desire to
amend certain provisions of the Merger Agreement pursuant to Section 10.3 of the
Merger Agreement.
NOW THEREFORE, in consideration of the
premises and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties have agreed to amend
the Merger Agreement as follows:
SECTION 1. Capitalized
Terms. Capitalized terms that are not defined in this
Amendment have the respective meanings set forth in the Merger
Agreement.
SECTION
2. Amendments to Merger
Agreement. The Merger Agreement is hereby amended as
follows:
(a) All
references to the number “.5806419” in Paragraph B of the Recitals and Article I
is hereby amended and restated to read “0.87096285”.
(b) The
definition of Reverse Stock Split in Section 2.1 is hereby amended and restated
as follows:
““Reverse Stock
Split” means a 1 for 2 reverse split of SAH Common Stock on such terms
and conditions as agreed to by the SAH Board of Directors and the Sequoia Board
of Managers and approved by the shareholders of SAH.”
(c) The
definition of SAH Distribution in Section 2.1 is hereby amended and restated as
follows:
““SAH
Distribution” means a cash dividend to the shareholders of SAH
immediately prior to the Effective Time distributing, pro rata, $2.0
million.”
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(d)
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Section
4.3 is hereby amended and restated as
follows:
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“Capitalization. As
of the date of this Agreement, SAH’s authorized capital stock consists of
100,000,000 shares of SAH Common Stock, of which 19,441,524 shares of SAH Common
Stock are issued and outstanding. SAH shall, prior to the Closing Date, effect
the Reverse Stock Split. Following the Reverse Stock Split, but
before the Effective Time, there will be approximately 9,720,762 shares of SAH
Common Stock issued and outstanding. All shares of capital stock of
SAH are, and shall be at Closing, validly issued, fully paid and
nonassessable. Except as described in Section 4.3 of the SAH
Disclosure Schedule, there are no existing options, convertible or exchangeable
securities, calls, claims, warrants, preemptive rights, registration rights or
commitments of any character relating to the issued or unissued capital stock or
other securities of SAH. There are no voting trusts, proxies or other
agreements, commitments or understandings of any character to which SAH is a
party or by which SAH is bound with respect to the voting of any capital stock
of SAH. There are no outstanding stock appreciation rights, phantom
stock or similar rights with respect to any capital stock of
SAH. There are no outstanding obligations to repurchase, redeem or
otherwise acquire any shares of capital stock of SAH.”
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(e)
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Section
7.1(j) is hereby amended and restated as
follows:
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“On the
Closing Date, all officers of SAH shall have tendered their resignations in
writing.”
(f) Section
7.1(l) is hereby deleted in its entirety and shall be replaced with
“[Intentionally deleted]”.
(g) Schedule
A is hereby deleted in its entirety and shall be replaced with “[Intentionally
deleted]”.
SECTION 3. Effect on Merger
Agreement. Except as otherwise expressly amended herein, the
Merger Agreement and each other Transaction Documents shall remain in full force
and effect. All references in any document or agreement to the Merger
Agreement shall refer to the Merger Agreement, as amended hereby.
SECTION 4. Execution in
Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
[Signature Page
Follows]
IN WITNESS WHEREOF, the undersigned
have duly executed this Amendment No. 1 as of the 31st day of
March 2008.
SEQUOIA
MEDIA GROUP, LC,
a
Utah limited liability company
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By:
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/s/ Xxxxx X. Xxxxxxx | ||
Name:
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Xxxxx X. Xxxxxxx | ||
Title:
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CEO |
SECURE
ALLIANCE HOLDINGS CORPORATION,
a
Delaware corporation
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By:
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/s/ Xxxxxxx X. Xxxxxx | ||
Name:
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Xxxxxxx X. Xxxxxx | ||
Title:
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President |
SMG
UTAH, LC,
a
Utah limited liability company
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By:
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/s/ Xxxxxxx X. Xxxxxx | ||
Name:
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Xxxxxxx X. Xxxxxx | ||
Title:
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President |