Exhibit 2.2
FIRST AMENDMENT AND WAIVER TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT AND WAIVER TO AGREEMENT AND PLAN OF MERGER (this
"Amendment and Waiver"), is made and entered into this 14th day of January,
2004, to be effective January 9, 2004, by and among INTERNATIONAL TRAVEL CD'S,
INC. a Colorado corporation ("Parent"), INTERNATIONAL TRAVEL CD'S ACQUISITION
CORP., a Delaware corporation ("Merger Sub"), STELLAR VENTURE PARTNERS, LLC, a
Georgia limited liability company ("Company"), and MAS SERVICES, INC., a Florida
corporation (the "Principal Interest Holder") for the purpose of amending the
Agreement and Plan of Merger (the "Merger Agreement") dated December 16, 2003,
by and among Parent, Merger Sub, the Company, and the Principal Interest Holder.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Merger Agreement.
Recitals
WHEREAS, the parties hereto desire to amend certain provisions of the
Merger Agreement to reflect the intent of all of the parties thereto by
increasing the number of shares of Common Stock to be exchanged for each Member
Share, extending the Closing Date and revising one of the Company's and
Principal Interest Holder's representations and warranties, and to waive
compliance with certain of the provisions of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. The second recital is hereby deleted in its entirety and replaced with
the following provision:
WHEREAS, pursuant to the terms of this Agreement, upon consummation
of the Merger, each issued and outstanding limited liability company
membership interest in the Company (individually, a "Member Share," and
collectively, the "Member Shares"), shall represent the right to receive
approximately Thirteen Thousand Two Hundred Forty-Two (13,242) shares of
common stock, no par value per share, of Parent ("Common Stock"), subject
to adjustment as provided herein; and
2. Section 1.2(a)(iii) is hereby deleted in its entirety and replaced with
the following provision:
(iii) Conversion of Member Shares. Each of the Member Shares shall
be converted into the right to receive approximately Thirteen Thousand Two
Hundred Forty-Two (13,242) newly issued shares of common stock, no par
value per share, of Parent ("Parent Shares"), subject to adjustment as
necessary to ensure that the Seventy-Two Million (72,000,000) Parent
Shares to be issued hereunder are allocated equally among all Member
Shares issued and outstanding on the Closing Date. All such Member Shares,
when so converted, shall no longer be outstanding and shall automatically
be canceled and retired and shall cease to exist, and each holder of a
certificate or agreement representing any such Member Share shall cease to
have any rights with respect thereto, except the right to receive the
Parent Shares therefor upon the surrender of such certificate in
accordance with Section 1.2(b) hereof, without interest or dividends.
3. Section 2.1 is hereby deleted in its entirety and replaced with the
following provision:
2.1 Closing Date.
Subject to satisfaction or waiver of all conditions precedent set
forth in Article VI of this Agreement, the closing of the Merger (the
"Closing") shall take place at the offices of Xxxxxxx Xxxxx & Xxxxx, P.C.
at 10:00 a.m., local time on (a) the later of: (i) the first Business Day
following the day upon which all appropriate Parent and Merger Sub
corporate action and Company company action has been taken in accordance
with Article IV of this Agreement; (ii) the day on which the last of the
conditions precedent set forth in Article V of this Agreement is fulfilled
or waived; or (iii) ten (10) days after the distribution of the
Information Statement (as defined in Section 5.10 below) to the holders of
Parent Common Stock, if necessary; or (b) at such other time, date and
place as the parties may agree, but in no event shall such date be later
than January 26, 2004, unless such date is extended by the requirements of
law or the mutual agreement of the parties.
4. Section 3.19 is hereby deleted in its entirety and replaced with the
following provision:
3.19 Investment Intent.
(a) The Parent Shares being acquired by the Principal Interest
Holder in connection with the Merger are being acquired for the Principal
Interest Holder's own account for investment purposes only and not with a
view to, or with any present intention of, distributing or reselling any
of such Parent Shares. The Principal Interest Holder acknowledges and
agrees that the Parent Shares have not been registered under the
Securities Act or under any state securities laws, and that the Parent
Shares may not be, directly or indirectly, sold, transferred, offered for
sale, pledged, hypothecated or otherwise disposed of without registration
under the Securities Act and applicable state securities laws, except
pursuant to an available exemption from such registration. The Principal
Interest Holder also acknowledges and agrees that neither the SEC nor any
securities commission or other Governmental Authority has (a) approved the
transfer of the Parent Shares or passed upon or endorsed the merits of the
transfer of the Parent Shares, this Agreement or the Merger; or (b)
confirmed the accuracy of, determined the adequacy of, or reviewed this
Agreement. The Principal Interest Holder has such Knowledge,
sophistication and experience in financial, tax and business matters in
general, and investments in securities in particular, that it is capable
of evaluating the merits and risks of this investment in the Parent
Shares, and the Principal Interest Holder has made such investigations in
connection herewith as it deemed necessary or desirable so as to make an
informed investment decision without relying upon Parent for legal or tax
advice related to this investment; and
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(b) Each of the Members is an "accredited investor," as such term is
defined in Rule 501(a) of Regulation D under the Securities Act. The
Company has advised each of the Members that:
(i) the Parent Shares being acquired by each of the Members in
connection with the Merger must be acquired by each Member for such
Member's own account for investment purposes only and not with a
view to, or with any present intention of, distributing or reselling
any of such Parent Shares;
(ii) the Parent Shares have not been registered under the
Securities Act or under any state securities laws, and the Parent
Shares may not be, directly or indirectly, sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of
without registration under the Securities Act and applicable state
securities laws, except pursuant to an available exemption from such
registration;
(iii) neither the SEC nor any securities commission or other
Governmental Authority has (i) approved the transfer of the Parent
Shares or passed upon or endorsed the merits of the transfer of the
Parent Shares, this Agreement or the Merger; or (ii) confirmed the
accuracy of, determined the adequacy of, or reviewed this Agreement;
and
(iv) each of the Members must have such Knowledge,
sophistication and experience in financial, tax and business matters
in general, and investments in securities in particular, that it is
capable of evaluating the merits and risks of its investment in the
Parent Shares, and each of the Members must make such investigations
in connection therewith as it deems necessary or desirable so as to
make an informed investment decision without relying upon Parent for
legal or tax advice related to this investment.
5. The Company and the Principal Interest Holder do hereby waive any
breach of any representations and warranties or breach of any covenants or
agreements by any party to the Merger Agreement that may exist or arise under
the Merger Agreement or this Amendment and Waiver as a result of the issuance by
Parent of 1,000,000 shares of Common Stock to RAM Trading Ltd., a Cayman Islands
exempted company ("RAM Trading"), pursuant to that certain Securities Purchase
Agreement, dated the date hereof, by and between Parent and RAM Trading.
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6. The waiver set forth in Section 5 hereof is limited as specified and
shall not constitute a modification, acceptance or waiver of any other provision
of the Merger Agreement, nor shall it constitute an obligation to execute
similar waivers or amendments under the same or similar circumstances in the
future.
7. Except as expressly provided herein, the Merger Agreement shall remain
in full force and effect.
8. This Amendment and Waiver may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
9. This Amendment and Waiver shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
IN WITNESS WHEREOF, Parent, Merger Sub, the Company and the Principal
Interest Holder have caused this Amendment and Waiver to be signed by their
respective officers hereunto duly authorized, all as of the date first written
above.
INTERNATIONAL TRAVEL CD'S, INC.
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
President and Treasurer
INTERNATIONAL TRAVEL CD'S ACQUISITION
CORP.
By: /s/ Xxxx X. Xxxx
------------------------------------
Xxxx X. Xxxx
President and Treasurer
STELLAR VENTURE PARTNERS, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Managing Member
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MAS SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
President
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