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EXHIBIT 2.7
AMENDMENT AGREEMENT NO. 4
This AMENDMENT AGREEMENT NO. 4 ("Agreement"), dated as of February 2,
2001, by and between ILION TECHNOLOGY CORPORATION, a Delaware corporation
("Ilion") (formerly named Pacific Lithium Limited, and formerly a New Zealand
corporation), and LITHIUM TECHNOLOGY CORPORATION, a Delaware corporation
("LTC").
RECITALS
WHEREAS, Ilion and LTC have entered into an Agreement and Plan of
Merger dated as of January 19, 2000 ("Merger Agreement") and the Bridge Loan
Financing Agreements (as defined in the Merger Agreement) as amended by
Amendment Agreement No. 1 dated as of March 31, 2000, Amendment Agreement No. 2
dated as of May 4, 2000, and Amendment Agreement No. 3 dated as of June 6, 2000.
WHEREAS, on October 2, 2000 Ilion became a Delaware corporation
pursuant to Section 388 of the Delaware General Corporation Law.
WHEREAS, Ilion and LTC desire to amend certain provisions of the Merger
Agreement and Bridge Loan Financing Agreement subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual
agreements contained in this Agreement, Ilion and LTC agree as follows:
I. Each use in the Merger Agreement of the words "Pacific Lithium Limited"
and "PLL" whether used alone or in any combination with other words, is amended
and restated as "Ilion Technology Corporation" and "Ilion", respectively. Except
as otherwise expressly set forth in this Agreement, terms defined in the Merger
Agreement are used herein as so defined.
II. The following specifically indicated section paragraphs of the Merger
Agreement are amended and restated as follows:
3.3 Conversion of LTC Common; Assumption of Warrants.
At the Effective Time, all of the then issued and outstanding shares of
LTC Common, other than shares of LTC Common (a) held in the treasury of LTC,
which shall not be considered as outstanding for purposes of this Agreement or
the Plan of Merger, (b) held by Ilion, (c) held by any wholly owned subsidiary
of Ilion or LTC (other than shares held in a fiduciary capacity) or (d) as to
which the holder has commenced as of the Effective Time all procedures necessary
through the Effective Time to assert dissenters' rights in accordance with the
DGCL if applicable ("Dissenting Shares") shall, by virtue of the Merger, be
converted into an aggregate of that number of shares of Ilion Common determined
by dividing $25 million by the Ilion Common Price, but in no event more than
5,000,000 shares or less than 2,500,000 shares of Ilion Common (the "Merger
Securities").
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The term "Ilion Common Price" shall mean the average of the daily
closing prices of Ilion Common as reported by the NASDAQ market during the
period of the thirty consecutive trading days on which Ilion's share price is
quoted on the NASDAQ market ending on the date of the second to last trading day
prior to the Closing Date of the Merger, provided that if at any time during
such 30-day valuation period Ilion shall effect a change described in Section
3.9 of the Merger Agreement, the Ilion Common Price shall be adjusted
accordingly.
The Merger Securities shall be issued to the LTC shareholders on a
pro-rata basis. Each share of LTC Common held (i) in the treasury of LTC, (ii)
by Ilion or (iii) by any wholly owned subsidiary of Ilion or LTC (other than
shares held in a fiduciary capacity) immediately prior to the Effective Time
shall, by virtue of the Merger, forthwith and without any action on the part of
the holder thereof be canceled and retired and all rights in respect thereof
shall cease to exist. Holders of Dissenting Shares if applicable shall, upon the
effectiveness of the Merger with respect to such Dissenting Shares, have only
such rights, if any, as they may have pursuant to the DGCL, and any amounts
required by the DGCL to be paid to any holder of Dissenting Shares with respect
to such Dissenting Shares shall be paid by the Surviving Corporation. The
assumption of warrants, if any, and the non-assumption of options of LTC shall
be governed by Sections 7.5 and 7.13.
7.13 Repricing of Options and Warrants; No Purchase of Additional
Merger Securities.
(b) In the event that any holder of warrants or options issued by LTC
exercises such warrants or options prior to the Closing Date, LTC agrees to use
all proceeds thereof as follows: (a) first, to pay a portion of the advances
made by Ilion to LTC pursuant to the Bridge Loan Financing Agreement in an
aggregate amount up to three hundred fifty thousand dollars ($350,000); (b)
second, to pay certain liabilities of LTC with respect to the accrued salary due
and owing to ▇▇. ▇▇▇▇▇▇▇ in the aggregate amount of two hundred thousand dollars
($200,000); and (c) third, to pay LTC's Continuing Costs. Nothing in this
Section 7.13 shall give rise to the issuance of any additional Merger
Securities.
III. LTC agrees that from and after the Closing under the Merger Agreement,
the Merger Securities shall be held in an escrow established jointly by LTC and
Ilion under the terms of which the holders of the Merger Securities pursuant to
the Merger Agreement shall not be permitted to sell or offer to sell or
otherwise dispose of any shares of common stock of Ilion without the prior
written consent of a designated IPO underwriter until the earlier of (1) the
date of termination of the offer, sale and disposition lock-up period which is
applied by the IPO underwriters to a majority of the Ilion shareholders or (2)
the date which is 180 days after the closing of the IPO.
IV. Sections II and III of this Agreement shall become effective only if
and when Ilion shall have initially filed a Registration Statement with the
Securities and Exchange Commission (the "SEC") relating to an IPO (the
"Registration Statement"), and upon such filing Sections II and III of this
Agreement shall be binding on both parties.
V. Sections II and III of this Agreement may be terminated by LTC or Ilion
by giving written notice to the other in accordance with the Merger Agreement,
and upon any such termination the Merger Agreement shall be restored to the same
terms and conditions as if Sections II and III of this
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Agreement had never become effective, if the IPO Registration Statement has not
been declared effective by the SEC on or before July 31, 2001.
VI. Section 1 of each Note delivered and to be delivered under the Bridge
Loan Financing Agreement is amended and restated as follows:
The Loan shall be converted in accordance with the terms herein into
Conversion Consideration (as defined below) on the date after the day on which
the Merger Agreement contemplated by the parties hereto (the "Merger Agreement")
is terminated in accordance with its terms (the "Termination Date") set forth in
the Merger Agreement.
VII. In all other respects, the Merger Agreement and the Bridge Loan
Financing Agreements are hereby ratified and affirmed in their entirety.
ILION TECHNOLOGY CORPORATION
(formerly Pacific Lithium Limited)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman and Chief Executive Officer
LITHIUM TECHNOLOGY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Chairman and Chief Executive Officer