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EXHIBIT 2.8
FIRST AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF
MERGER ("this Amendment") is made and entered into as of September 8, 1997,
among THE XXXXXX XXXXXXX GROUP, LLC (the "Selling Shareholder"), THE XXXXXX
XXXXXXX GROUP, INC. ("Xxxxxxx"), and 800 TRAVEL SYSTEMS, INC. ("Travel
Systems").
Background Statement
(A) The parties hereto are parties to that certain Amended and
Restated Agreement and Plan of Merger dated as of November 11, 1996, pursuant
to which Xxxxxxx will merge with and into Travel Systems, all in accordance
with, and subject to, the terms and conditions therein set forth (the "Merger
Agreement");
(B) The parties now wish to amend the Merger Agreement as set forth
in this Amendment; and
(C) All capitalized terms used in this Amendment shall have the
same meanings ascribed to them in the Merger Agreement, unless otherwise
indicated herein.
Agreement
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, each
intending to be legally bound hereby, agree as follows:
1. Amendments to Article III. The parties hereby amend the
provisions of Paragraph 2 of Article III of the Merger Agreement as follows:
First, by changing the number "300,000" to "383,333" and by changing the number
"$1,500,000" to "$1,916,665," so that, after
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such changes, the provisions of said Paragraph 2 shall read as follows;
2. Number of Shares to be Issued. At the Effective Time, the parties
agree that Travel System shall issue and deliver to the Selling
Shareholder the greater of (i) 383,333 shares of Travel Stock or (ii) that
number of shares of Travel Stock having an aggregate value of $1,916,665,
using the IPO Opening Price (defined in Article IX below) in calculating
the per share value of the Travel Stock at the Effective Time (as
applicable, the "Initial Travel Shares").
2. Amendment to Article VIII. The parties hereby amend the provisions
of Paragraph 4 of Article VIII of the Merger Agreement by deleting therefrom
the dates and amounts appearing under the columns entitled "Payment Date" and
"Amount" and inserting therein (in lieu of such deleted dates and amounts) the
following:
Payment Date Amount
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May 30, 1997 $50,000
June 13, 1997 $10,000
September ___,1997 $36,000
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Total $96,000
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Delivery of the September 1997 payment will be made via Federal
Express for actual delivery to the Selling Shareholder on the next business day
after the specified due date. Of such $96,000 amount, $75,000 shall reduce the
amount of the note described in Article XV of the Merger Agreement as therein
set forth.
3. Amendments to Article IX. The parties hereby amend the provisions
of Paragraph l(b) of Article IX of the Merger Agreement by changing the date
"August 31" (which appears on the sixth and the tenth lines thereof) to
"October 31," and by adding the
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following new Paragraph 1(c) at the end of said Paragraph 1(b) and immediately
before Paragraph 2 of the Merger Agreement:
(c) Extension Fee. In consideration for extending the IPO
Deadline to October 31, 1997, Travel Systems hereby agrees to pay to
the Selling Shareholder a one-time fee in the amount of $25,000, such
amount to be paid by Travel Systems to the Selling Shareholder on or
before September 24, 1997, if such fee is not paid by Travel Systems on
or before September 24, 1997, then the amount of such fee shall
increase automatically to $50,000 and such fee shall be due and
payable to the Selling Shareholder on September 25, 1997. Delivery of
the September 24, 1997 payment will be made via FedEx for actual
delivery on September 25, 1997. Such payment shall not reduce the
amount of the note described in Article XV of the Merger Agreement.
4. Amendment to Article XII.
The parties hereby further amend the Merger Agreement by deleting
therefrom the provisions of Paragraph 3 of Article XII thereof and substituting
in lieu thereof the following provisions:
3. Transfer Restrictions.
(a) The Selling Shareholder hereby agrees that a block
of 300,000 shares of the Initial Travel Shares (together with any shares
over 383,333 shares issued under the provisions of Article III, Section
2(ii) hereof, the "First Block") shall be subject to the following
transfer restrictions (which restrictions shall be expressly set forth
in a legend on each certificate representing all or any part of the
First Block of the Initial Travel Shares):
(i) During the first 30-day period immediately
following the closing date of the Merger (the
"First Month"), all shares comprising the First
Block shall be non-transferable;
(ii) During the consecutive 11-month period
immediately following the expiration of the
First Month (the "First Year"), the Selling
Shareholder may sell, transfer or convey up to
4,546 shares of the First Block per month in
bonafide arm's length transactions for cash only
(and if,
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during any such month, the actual number of such shares sold,
transferred or conveyed by the Selling Shareholder is less than
4,546, the difference thereof may be carried forward and added
to the minimum number of shares of the First Block that may be
sold by the Selling Shareholder in any subsequent month,
without regard to the restrictions set forth herein);
(iii) During the consecutive 12-month period immediately following
the expiration of the First Year (the "Second Year"), the
Selling Shareholder may sell, transfer or convey up to 20,833
shares of the First Block per month in bonafide arm's length
transactions for cash only (and if, during any such month, the
actual number of such shares sold, transferred or conveyed by
the Selling Shareholder is less than 20,833, the difference
thereof may be carried-forward and added to the minimum number
of shares of the First Block that may be sold by the Selling
Shareholder in any subsequent month, without regard to the
restrictions set forth herein); and
(iv) There shall be no transfer restrictions imposed upon the
shares comprising the First Block under the terms hereof after
the expiration the Second Year.
Provided, however, that if any shares over 383,333 shares are issued under
the provisions of Article III, Section 2(ii) hereof, then 17% of such
additional shares may be sold in equal monthly installments over the
11-month period described above in Article XII, Section 3(a)(ii) as therein
provided, and 83% of such additional shares may be sold in equal monthly
installments over the 12-month period described above in Article XII,
Section 3(a)(iii) as therein provided. Provided, further, however, that
trades of shares comprising the First Block not effectuated on an exchange
shall not be subject to the limitations of this Article XII, Section 3(a),
so long as such shares are subject to the same limitations set forth herein
while in the hands of any transferee(s) of such shares, and each such
transferee agrees with Travel Systems to be bound thereby, pursuant to a
written acknowledgment (on a form prescribed by Travel Systems) executed
and delivered by such transferee to Travel System concurrently with or
prior to such transfer.
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Provided, further, however, that the Selling Shareholder may exceed the
volume transfer restrictions imposed under this Section with, and only
with, the prior written consent of Travel Systems, which consent may not
be unreasonably withheld. The parties hereto, in determining the
reasonableness of a consent, shall examine average daily trading
volumes and price fluctuations created by certain volume trades. Travel
Systems shall use its best efforts to remove a legend from stock
certificates to facilitate the expeditious sale of stock under this
Article XIII, Section 3(a).
(b) The Selling Shareholder hereby further agrees that a block
of 83,333 shares of the Initial Travel Shares (the "Second Block") shall
be subject to the following transfer restrictions (which restrictions
shall be expressly set forth in a legend on each certificate
representing all or any part of the Second Block of the Initial Travel
Shares):
(i) During the first 90-day period immediately following the
closing date of the Merger (the "90-Day Period"), all
shares comprising the Second Block shall be
non-transferable;
(ii) Subject to subpart (iv) below of this Section, during the
consecutive seven-month period immediately following the
expiration of the 90-Day Period, the Selling Shareholder
may sell, transfer or convey up to 11,905 shares of the
Second Block per month (and if, during xxx such month, the
actual number of such shares sold, transferred or conveyed
by the Selling Shareholder is less than 11,905, the
difference thereof may be carried forward and added to the
minimum number of shares of the Second Block that may be
sold by the Selling Shareholder in any subsequent month,
without regard to the restrictions set forth herein);
(iii) Subject to subpart (iv) below of this Section, there shall
be no transfer restrictions imposed upon the shares
comprising the Second Block under the terms hereof after
the expiration of the seven-month period described above
in Article XII, Section 3(b) (ii); and
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(iv) The Selling Shareholder hereby agrees that the sale
on any exchange of any or all of the shares comprising
the Second Block shall be brokered exclusively by and
through Xxxxxx Xxxxxx & Co., New York, New York, at
its customary rates and charges for similar
transactions.
Provided, however, that trades of shares comprising the Second Block
not effectuated on an exchange shall not be subject to the limitations
of this Article XII, Section 3(b), so long as such shares are subject
to the same limitations set forth herein while in the hands of any
transferee(s) of such shares, and each such transferee agrees with
Travel Systems to be bound thereby, pursuant to a written
acknowledgment (on a form prescribed by Travel Systems) executed and
delivered by such transferee to Travel Systems concurrently with or
prior to such transfer. Provided, further, however, that the Selling
Shareholder may exceed the volume transfer limitations imposed under
this Section with, and only with, the prior written consent of Travel
Systems, which consent may be granted or denied in the sole and
absolute discretion of Travel Systems.
5. Amendment to Article XVI.
The parties hereby amend the provisions of Paragraph 4 of Article XVI
of the Merger Agreement by changing the name of the law firm of "Xxxxx &
Xxxxxxxx, PLC" to "Xxxxx, Xxxxxxxx & Xxxxxxxxx, PLC."
6. Miscellaneous. This Amendment shall be governed by and construed
in accordance with the laws of the State of Delaware, both substantive and
remedial, without giving effect to the principles of conflicts of law and
choice of law thereof. The parties hereby ratify and confirm the Merger
Agreement in all respects, except as otherwise specifically amended hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment,
all as of the day and year first above written.
THE XXXXXX XXXXXXX GROUP, LLC
By:
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Its:
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THE XXXXXX XXXXXXX GROUP, INC.
By:
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Its:
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800 TRAVEL SYSTEMS, INC.
By: XXXX XXXXXXXX
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Its: President
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