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 31st day of December,
2004, by and among MAILKEY CORPORATION, a Nevada corporation ("Parent"), MAILKEY
ACQUISITION CORP., a Delaware corporation and wholly-owned subsidiary of Parent
("MERGER Sub"), IELEMENT, INC., a Nevada corporation (the "COMPANY"), and XXXX
XXXXX, the principal shareholder of iElement (the "PRINCIPAL SHAREHOLDER"), for
the purpose of amending the Agreement and Plan of Merger (the "MERGER
Agreement") dated November 9, 2004, by and among Parent, Merger Sub, iElement
and the Principal Shareholder. 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.
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 WHEREAS clause is hereby deleted in its entirety and
replaced with the following:
WHEREAS, pursuant to the terms of this Agreement, upon
consummation of the Merger, each issued and outstanding share
(individually, a "Target Share"; and collectively, the "Target Shares")
of common stock, $.001 par value per share ("Target Common Stock"), of
the Company shall represent the right to receive between 2.5913 and
3.9835 newly issued shares (individually, a "Parent Share," and
collectively, the "Parent Shares") of common stock, $.001 par value per
share ("Parent Common Stock"), of Parent; and
2. The first sentence of Section 1.2(a)(iii) is hereby deleted in
its entirety and replaced with the following sentences:
Each of the Target Shares shall be converted into the right to
receive between 2.5913 and 3.9835 newly issued Parent Shares (the
"Exchange Ratio"). The Exchange Ratio shall be adjusted based on the
number of Parent Shares issued to holders of those certain secured notes
of the Company in the aggregate principal amount of $1,238,739 (the
"Target Secured Notes") as follows: In the event that zero (0) Parent
Shares are issued to the holders of the Target Secured Notes, the
Exchange Ratio shall be 3.9835 and in the event that 24,774,785 Parent
Shares are issued to the holders of the Target Secured Notes, the
Exchange Ratio shall be 2.5913. In the event that the Number of Parent
Shares issued to the holders of the Target Secured Notes is between zero
(0) and 24,774,785, the Exchange Ratio shall equal 2.5913 plus the
product of 1.3922 and a fraction the numerator of which is the number of
Parent Shares issued to the holders of the Target Secured Notes and the
denominator of which is 24,774,785.
3. The second and third sentences of Section 1.2(h) are hereby
deleted in their entirety and replaced with the following sentences:
In addition, the parties agree that that any shares of Parent
Common Stock issued by Parent in connection with any capital-raising
transaction by Parent shall be excluded from the determination of the
Exchange Ratio and any adjustment of the Exchange Ratio.
4. The following provisions are hereby added as Sections 1.5 and
1.6:
1.5 OPTIONS AND WARRANTS.
(a) Immediately prior to the Closing, each
outstanding option ("Target Options") exercisable into shares of Target
Common Stock and each warrant ("Target Warrants") exercisable into
shares of Target Common Stock whether vested or not vested, shall
immediately become vested in full and either exercised by the holder
thereof prior to Closing or be deemed assumed by Parent. In the event
that any Target Options and Target Warrants are exercised by the holder
thereof prior to or simultaneous with the Closing, all shares of Target
Common Stock issued upon exercise thereof shall be converted into Parent
Shares in accordance with Section 1.2(a)(iii) of the Merger Agreement.
(b) At and after the Effective Time:
(i) each Target Option and Target Warrant
then outstanding shall entitle the holder thereof to acquire the number
(rounded down to the nearest whole number) of shares of Parent Common
Stock determined by multiplying (x) the number of shares of Target
Common Stock subject to such Target Option or Target Warrant immediately
prior to the Effective Time, by (y) the Exchange Ratio; and
(ii) the exercise price per share of Parent
Common Stock subject to any Target Option or Target Warrant at and after
the Effective Time shall be an amount (rounded down to the nearest
one-hundredth of a cent) equal to (x) the exercise price per share of
Target Common Stock subject to such Target Option or Target Warrant
prior to the Effective Time, divided by (y) the Exchange Ratio.
(c) Other than as provided in subsections (a) and
(b) above, as of and after the Effective Time, each Target Option and
Target Warrant then outstanding shall be subject to the same terms and
conditions as in effect immediately prior to the Effective Time
(including, but not limited to, the acceleration of exercisability or
conversion, as applicable, as of the date of approval of the Merger by
the shareholders of the Company), but giving effect to the Merger (it
being understood that any performance criteria to which such Target
Option, and or Target Warrant remains subject may be equitably adjusted
by Parent to reflect the consummation of the Merger).
2
(d) Parent shall take all corporate action necessary
to reserve for issuance a sufficient number of shares of Parent Common
Stock for delivery upon exercise of Target Options and Target Warrants
Notes after the Effective Time.
1.6 TARGET SECURED NOTES. Prior to the Effective Time, all
Target Secured Notes shall either be (i) surrendered and cancelled in
exchange for shares of Target Common Stock pursuant to the terms of a
Securities Purchase Agreement in substantially the form attached hereto
as EXHIBIT A; or (ii) exchanged for a newly issued Secured Notes in
substantially the form attached hereto as EXHIBIT B. Any shares of
Target Common Stock issued in exchange for Target Secured Notes shall be
converted into Parent Shares in accordance with Section 1.2(a)(iii) of
the Merger Agreement. Prior to the approval of the Merger by the
shareholders of the Company, the Company shall use its best efforts to
cause all such Target secured Notes to be exchanged for shares of Target
Common Stock.
5. Sections 2.2(a)(ii), 2.2(a)(viii) and 5.11 are hereby deleted in
their entirety.
6. The first, second, third, fourth and fifth sentences of Section
3.5(a) are hereby deleted in their entirety and replaced with the following
sentences:
Attached hereto as Schedule 3.5(a) is a complete and accurate
list of (i) the Target Shareholders and each holder of Target Options,
Target Warrants and Target Secured Notes, (ii) the number and class of
issued and outstanding Target Shares, Target Options, Target Warrants
and Target Secured Notes (collectively, the "Target Securities") owned
by such Target Shareholders and holders on the date of this Agreement,
(iii) the exercise price, date of grant, vesting schedules and number of
shares of Target Common Stock issuable upon the exercise of the Target
Options and Target Warrants, and (iv) the date of issuance and
outstanding principal amount of all outstanding Target Secured Notes.
The authorized capital stock of the Company consists of 30,000,000
shares of Target Common Stock. There are currently issued and
outstanding (i) 4,319,392 shares of Target Common Stock, (ii) Target
Options exercisable into 4,578,223 shares of Target Common Stock, (iii)
Target Warrants exercisable into zero shares of Target Common Stock, and
(iv) Target Secured Notes which may be exchanged for up to 9,560,755
shares of Target Common Stock. The Target Securities represent all of
the outstanding equity interests in the Company. All of the Target
Shares have been validly authorized and issued and are fully paid and
non-assessable, and the Company has reserved on its books and records,
for future issuance, the shares of Target Common Stock issuable upon the
exercise of the Target Options or Target Warrants or upon exchange of
the Target Notes.
7. Sections 2.2(b)(x) and 5.13(b) are hereby deleted in their
entirety. The last sentence of 5.13(a) is deleted in its entirety and is
replaced with the following sentence:
If the Merger is consummated, the Parent will exchange any and all
Promissory Notes outstanding from the Company at the time of closing for a newly
issued Secured Note in substantially the form attached hereto as Exhibit B.
8. Section 5.14 is hereby deleted in its entirety.
3
9. Section 6.2(d) is hereby deleted in its entirety and replaced
with the following provision:
The Company shall have delivered to Parent and Merger Sub any
certificates evidencing the Target Shares in accordance with Section
2.2(a)(i).
10. Section 5.16 is hereby amended to delete the words ""Business
Days thereafter" and replace them with the word " days prior to Closing".
11. MailKey and Merger Sub 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 iElement of the
Target Notes.
12. The waiver set forth in Section 9 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.
13. Schedule 3.5(a) is hereby deleted in its entirety and replaced
with the schedule attached hereto as EXHIBIT C.
14. Section 9.11 is hereby amended to provide for copies of notice
to the Company or Principal Target Shareholders to be sent to the following
person:
The Lebrecht Group, APLC
00000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxxx Xxxxxxxxx, XX 00000
Facsimile (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
15. Except as expressly provided herein, the Merger Agreement shall
remain in full force and effect.
16. This Amendment and Waiver may be executed in two or more
counterparts and delivered via facsimile, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same agreement.
17. This Amendment and Waiver shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof, except to the extent that the NGCL shall apply to the internal
corporate governance of Parent or the Company and to the extent that the DGCL
shall apply to the internal corporate governance of Merger Sub.
4
IN WITNESS WHEREOF, Parent, Merger Sub, the Company and the Principal
Shareholder have caused this Amendment and Waiver to be signed by their
respective officers hereunto duly authorized, all as of the date first written
above.
MAILKEY CORPORATION
By: /s/ Xxx Xxxx-Xxxxx
-------------------------------------
Xxx Xxxx-Xxxxx
President and Chief Executive Officer
MAILKEY ACQUISITION CORP.
By: /s/ Xxx Xxxx-Xxxxx
-------------------------------------
Xxx Xxxx-Xxxxx
President and Chief Executive Officer
IELEMENT, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
President and Chief Executive Officer
/s/ Xxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
5
EXHIBITS AND SCHEDULES
Pursuant to Item 601(b)(2) of Regulation S-K, the exhibits and schedules
to this Agreement and Plan of Merger have been omitted. The Company agrees to
furnish supplementally a copy of all omitted exhibits and schedules to the
Securities and Exchange Commission upon request.
