AMENDMENT TO AGREEMENT AND PLAN OF MERGER
The Agreement and Plan of Merger (the "Merger Agreement"), dated as of
the 20th day of September, 1999, by and among Infinite Technology Information
Services, Inc. (the "Company"), Mercury Internet Services, Inc. (the
"Purchaser") and Infinite Technology Group Ltd. (the "Parent"), shall be amended
as follows:
1. The Merger Agreement is hereby amended to:
A. Delete all references to the Parent's IPO as a contingency
for consummation of the Merger;
B. Revise the Merger Consideration to be delivered by the
Parent upon consummation of the Merger, from 100,000 shares of Common Stock and
$3,500,000, to (i) 350,000 shares of Common Stock, (ii) a cash payment of
$500,000, and (iii) a promissory note in the amount of $500,000; and
C. Delete all references the Loan, which was to be paid to
▇▇▇▇ ▇▇▇▇▇▇▇▇ upon consummation of the Merger.
2. To accomplish the foregoing:
A. Section 1.01 of the Merger Agreement shall be amended, so
that as amended, it shall read as follows:
"SECTION 1.01 THE MERGER. Upon the terms and subject
to the conditions hereof, and in accordance with the NYBCL, the Company
shall be merged with and into the Purchaser. The Merger shall be
effected as soon as practicable after the date hereof. Following the
Merger, the Purchaser shall continue as the surviving corporation and
the separate corporate existence of the Company shall cease."
B. Section 1.07 of the Merger Agreement shall be amended, so
that as amended, it shall read as follows:
"SECTION 1.07 EXCHANGE OF CONSIDERATION. In exchange
for all of the Issued Company Shares, the Parent shall deliver (i)
Three Hundred and Fifty Thousand (350,000) shares of Common Stock of
the Parent, (ii) a cash payment of Five Hundred Thousand ($500,000)
Dollars, and (iii) a Promissory Note in the amount of Five Hundred
Thousand Dollars, due December 31, 2001 (subject to mandatory
prepayment upon the closing of an initial public offering of the
Parent's Common Stock) (collectively referred to as the "Merger
Consideration"). The Merger Consideration shall be delivered by the
Parent as
instructed by the Company; provided, however, that the $500,000 shall
be paid $200,000 upon consummation of the Merger and $100,000 on each
of June 30, 2000, September 30, 2000 and December 31, 2000.
The 100,000 shares delivered by the Parent, as set forth
herein, shall be "restricted stock", shall not be registered under the
Securities Act of 1933, as amended (the "Act") and the Parent shall
have no obligation to effect any registration thereof
C. Section 6.01 of the Merger Agreement shall be amended, so
that as amended, it shall read as follows:
"SECTION 6.01 CONDITIONS TO CONSUMMATION OF THE
MERGER. The obligations of the Purchaser and the Parent are, at
Purchaser's and the Parent's option, subject to the fulfillment of the
conditions hereinafter set forth:
(a) The Company shall have performed and complied
with all of the conditions and agreements required by this Agreement to
be performed or complied with by it prior to the Effective Time in all
material respects.
(b) The Purchaser's shareholder shall have approved
the Merger in accordance with New York law. The approval of the Merger
by the Company's shareholders in accordance with New York law shall be
in full force and effect.
(c) There shall have been no material change in the
business, properties or financial condition of the Company from such
condition on the date hereof.
(d) On the Closing Date (i) there shall be no
injunction, restraining order, or order of any nature issued by a court
of competent jurisdiction which directs that any transaction
contemplated by this Agreement shall not be consummated and (ii) there
shall be no suit, action, investigation or other proceeding pending or
threatened by any governmental agency or private party seeking to
restrain or prohibit the consummation of any material transaction
contemplated hereby or the obtaining of any material amount of damages
from any party hereto or any officer or director of any such party, in
connection with the consummation of the transactions contemplated
hereby."
B. Section 6.02 of the Merger Agreement shall be amended, so
that as amended, it shall read as follows:
"SECTION 6.02 CONDITIONS TO THE OBLIGATIONS OF THE
COMPANY. The obligations of the Company are, at the Company's option,
subject to the fulfillment of the conditions hereinafter set forth.
(a) Purchaser and Parent shall have performed and
complied with all of the conditions and agreements required by this
Agreement to be performed or complied with by it prior to the Effective
Time in all material respects.
(b) The Purchaser's shareholder shall have approved
the Merger in accordance with Delaware law.
(c) There shall have been no material adverse change
in the business, properties or financial condition of the Parent from
such condition on the date hereof.
(d) On the Closing Date (i) there shall be no
injunction, restraining order, or order of any nature issued by a court
of competent jurisdiction which directs that any transaction
contemplated by this Agreement shall not be consummated and (ii) there
shall be no suit, action, investigation or other proceeding pending or
threatened by any governmental agency or private party seeking to
restrain or prohibit the consummation of any material transaction
contemplated hereby or the obtaining of any material amount of damages
from any party hereto or any officer or director of any such party, in
connection with the consummation of the transaction contemplated
hereby."
3. All of the other terms and conditions of the Merger
Agreement shall remain in full force and effect.
4. Unless otherwise indicated, capitalized terms in this
amendment shall have the meanings ascribed to them in the Merger Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this amendment to
the Agreement, as of this 28th day of February, 2000.
INFINITE TECHNOLOGY GROUP LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
MERCURY INTERNET SERVICES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
INFINITE TECHNOLOGY INFORMATION
SERVICES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
AS TO SECTION 1.07 AND SCHEDULE A:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
WOLOTSKY ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
