Exhibit 10.18
AMENDMENT TO AGREEMENT AND PLAN OF CLASS B REORGANIZATION
THIS AMENDMENT AGREEMENT made this 1st day of April, 1999 by
and among Applied Cellular Technology, Inc. ("ACT"), Universal Commodities
Corporation, ("Buyer"), ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇ ▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("▇▇▇▇▇▇ ▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇▇ ▇▇▇▇▇") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
[("▇▇▇▇▇▇ ▇▇▇▇▇") together with ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇,
collectively the Sellers] and Data Path Technologies, Inc., a New York
corporation ("Acquiree").
WHEREAS, the parties entered into an Agreement and Plan of
Class B Reorganization dated June 30, 1998 (the "Agreement and Plan of Class B
Reorganization") whereby Buyer acquired one hundred percent (100%) of the issued
and outstanding shares of Acquiree; and
WHEREAS, the Buyer is in the process of preparing for an
Initial Public Offering ("IPO"); (the tentative name of such corporation is
"Inteletek, Inc."); and
WHEREAS, such Agreement and Plan of Class B Reorganization
contained a provision whereby the Acquiree, could upon the achievement of
certain agreed upon EBIT amounts, earn additional payments, defined in Section
2.2(c) of such Agreement and Plan of Class B Reorganization as Additional
Consideration.
WHEREAS, the parties wish to fix the amount of such
"Additional Consideration" and method and manner of payment.
NOW, THEREFORE, in exchange for the mutual covenants contained
herein and other good and valuable consideration, the parties agree as follows:
1. Additional Consideration. The total amount to be paid as
Additional Consideration shall be Two Million Dollars ($2,000,000.00), and shall
be paid to Sellers by Buyer, at its sole discretion, in a combination of either
cash and/or shares of the restricted common stock of Inteletek, Inc. ("Inteletek
Stock"). The ratio of cash and/or Inteletek Stock that is paid by Buyer shall be
determined by Buyer at the time of payment, provided however that in no event
shall Sellers receive less than seventy percent (70%) of such payment in cash.
The balance shall be paid in stock pursuant to this Agreement. The valuation of
the Inteletek Stock conveyed to Seller shall be determined as the "Offering
Price" of the Inteletek Stock at the time of the IPO. The allocation of the
Additional Consolidation, unless otherwise agreed shall be apportioned equally
among ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇.
Such Inteletek Stock shall be restricted for a one (1) year
period from the date of issuance.
The parties agree that, if necessary, Seller shall enter into
a Registration Rights Agreement which shall more clearly define the parties'
rights and obligations with regard to the Inteletek Stock issued pursuant to
this Agreement.
2. Registration Rights. In the event that Inteletek Stock is
issued to Seller pursuant to this Amendment to Agreement and Plan of Class B
Reorganization, such Inteletek Stock shall be issued in accordance with the
Registration Rights Agreement and shall contain the following restricted legend:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933 and are
"restricted securities" as that term is defined in Rule under
the Act. The shares may not be sold or offered for sale except
pursuant to an effective registration statement under the
Securities Act of 1933 or an opinion of counsel for the
corporation that registration is not required under such Act."
Inteletek shall make very good faith effort to
prepare and file a Registration Statement with respect to such
Inteletek Stock conveyed hereunder within one (1) year of the
date of issuance.
3. Additional Consideration. The parties agree that this
Amendment Agreement and Plan of Class B Reorganization shall supercede and
replace all the obligations and duties under the Additional Consideration
provision as provided for in the Agreement and Plan of Class B Reorganization
and that the payment of the amount as hereinabove provided shall be construed as
the full and complete payment of the amounts due under the Amendment Agreement
and Plan of Class B Reorganization.
4. Rights of Recession. In the event that Inteletek is not
able to successfully complete the IPO within one (1) year of the date of this
Amendment Agreement and Plan of Class B Reorganization, this Amendment Agreement
and Plan of Class B Reorganization shall be terminated and the parties' rights
with regard to any payment of the Additional Consideration shall revert to those
as provided in the Amendment to Agreement and Plan of Class B Reorganization.
5. Miscellaneous.
5.1 Further Assurances. At any time, and from
time to time, after the date of this Amendment to Agreement and Plan of Class B
Reorganization, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Amendment to Agreement and Plan of Class B
Reorganization.
5.2 Waiver. Any failure on the part of any
party hereto to comply with any of its obligations, agreements or conditions
hereunder may be waived in writing by the party to whom such compliance is owed.
5.3 Arbitration. Any and all disputes and
differences between or among the parties with respect to the construction or
performance of the terms of this Amendment to Agreement and Plan of Class B
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Reorganization which cannot be resolved amicably shall be resolved by
arbitration before the American Arbitration Association in accordance with its
rule then sitting in the State of New Jersey.
5.4 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have given
if delivered in person or if sent by prepaid first class registered or certified
mail, return receipt requested, fax or recognized courier then upon receipt
thereof to the following addresses:
To Sellers: ▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
To Acquiree: Data Path Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copies to: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & Brandeis, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
To ACT Applied Cellular Technology, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with copies to: ▇▇▇▇ ▇. Creme, Esquire
Merra, Kanakis, Creme & ▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Buyer: Universal Commodities Corporation
▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATT: ▇▇▇▇ ▇▇▇▇▇▇▇
5.5 Headings. The section and subsection
headings in this Amendment to Agreement and Plan of Class B Reorganization are
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inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment to Agreement and Plan of Class B
Reorganization.
5.6 Counterparts. This Amendment to Agreement
and Plan of Class B Reorganization may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.7 Governing Law. The laws of the State of New
Jersey shall govern this Amendment to Agreement and Plan of Class B
Reorganization.
5.8 Binding Effect. This Amendment to Agreement
and Plan of Class B Reorganization shall be binding upon the parties hereto and
inure to the benefit of the parties, their respective heirs, administrators,
executors, successors and assigns.
5.9 Entire Agreement. This Amendment to
Agreement and Plan of Class B Reorganization is the entire agreement of the
parties covering everything agreed upon or understood in the transaction. In
instances of inconsistencies between this Amendment to Agreement and Plan of
Class B Reorganization and the Agreement of Sale the former shall govern. There
are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the
execution hereof, and except as modified herein the terms and conditions of the
Amendment of Agreement and Plan of Class B Reorganization, shall remain in full
force and effect.
5.10 Severability. If any part of this Amendment
to Agreement and Plan of Class B Reorganization is deemed to be unenforceable
the balance of this Amendment to Agreement and Plan of Class B Reorganization
shall remain in full force and effect.
THE BALANCE OF THIS PAGE HAS BEEN
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed this Amendment
to Agreement and Plan of Class B Reorganization the day and year first above
written.
DATA PATH TECHNOLOGIES, INC. ("Acquiree")
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Its duly authorized President
SELLERS:
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
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By:
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By:
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APPLIED CELLULAR TECHNOLOGY, INC.
("ACT")
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its duly authorized President
UNIVERSAL COMMODITIES CORPORATION
("Buyer")
By:
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▇▇▇▇ ▇▇▇▇▇▇▇
Its duly authorized President
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