Exhibit 2.5
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
DATED AS OF
November 16, 2001
AMONG
COLONIAL HOLDINGS, INC.,
GAMECO, INC.
AND
GAMECO ACQUISITION, INC.
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
entered into as of November 16, 2001 by and among Gameco, Inc., a Delaware
corporation ("Parent"), Gameco Acquisition, Inc., a Virginia corporation and
wholly-owned subsidiary of Parent ("Merger Subsidiary"), Colonial Holdings,
Inc., a Virginia corporation (the "Company") and, solely with respect to Section
5.13, Jeffrey P. Jacobs, an individual resident of Florida. Parent, Merger
Subsidiary and the Company are referred to collectively herein as the "Parties."
WHEREAS, the Parties are parties to an Agreement and Plan of Merger
dated as of June 11, 2001 (the "Merger Agreement"), which permits any party
thereto to terminate the Merger Agreement under specified circumstances if the
transactions provided for therein are not consummated on or before December 31,
2001;
WHEREAS, Parent and Merger Subsidiary have requested an extension of
time until no later than April 1, 2002 within which to consummate the
transaction; and
WHEREAS, in light of the Parties' continuing belief that consummation
of the transactions contemplated by the Merger Agreement is in the best
interests of the Parties and the Company's shareholders, the Parties desire to
extend the date by which the transaction may be consummated, subject to the
terms and conditions of this Amendment;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
Section 1. Parent and Merger Subsidiary Representations and Warranties.
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Parent and Merger Subsidiary jointly and severally represent and warrant to the
Company that (a) each of Parent and Merger Subsidiary has full corporate power
and authority to enter into this Amendment, (b) this Amendment has been approved
and adopted by the Boards of Directors of Parent and Merger Subsidiary, and
Parent, as the sole stockholder of Merger Subsidiary, and no other corporate or
similar proceeding on the part of Parent or Merger Subsidiary is necessary to
authorize the execution and delivery of this Amendment, and (c) this Amendment
has been duly executed and delivered by each of Parent and Merger Subsidiary
and, assuming the due authorization, execution and delivery hereof by the
Company, constitutes a valid and legally binding agreement of each of Parent and
Merger Subsidiary enforceable against each of them in accordance with its terms,
except that such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally, and (ii) general equitable
principles.
Section 2. Company Representations and Warranties. The Company
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represents and warrants to Parent and Merger Subsidiary that (a) the Company has
the requisite corporate power and authority to enter into this Amendment, (b)
this Amendment has been approved and adopted by the Board of Directors of the
Company, and no other corporate proceedings on the part of the Company are
necessary to authorize the execution and delivery of this Amendment, and (c)
this Amendment has been duly executed and delivered by the Company, and,
assuming the due authorization, execution and delivery hereof by Parent and
Merger Subsidiary, constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
that such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally, and (ii) general equitable
principles.
Section 3. Amendment.
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(a) The parties hereby amend certain sections of the Merger
Agreement as follows:
(i) by deleting the phrase "equal to $1.10" in section
1.04(b) of the Merger Agreement and inserting in
lieu thereof the phrase "equal to $1.12;"
(ii) by deleting the phrase "December 31, 2001" in
section 1.08 of the Merger Agreement and inserting in
lieu thereof the phrase "April 1, 2002;"
(iii) by deleting the phrase "December 31, 2001" in
section 5.10(c) of the Merger Agreement and inserting
in lieu thereof the phrase "April 1, 2002;" and
(iv) by deleting the phrase "December 31, 2001" in
Article VII of the Merger Agreement and inserting in
lieu thereof the phrase "April 1, 2002."
(b) The parties hereby amend and restate section 5.14(a) of the
Merger Agreement in its entirety as follows:
Section 5.14. FUNDING OF CONTINUING OPERATIONS (a) Jacobs
shall provide to the Company up to $1,000,000 in working
capital from the date of this Agreement through December 31,
2001, which shall be made available to the Company upon the
Company's reasonable request and of which a maximum of
$600,000 shall be cash and the balance of which, not to exceed
$400,000, shall be in the form of forgiveness of fees and
expenses payable to Jacobs and/or his affiliates as Jacobs
shall determine in his sole discretion. Jacobs shall provide
to the Company up to $300,000 in working capital from January
1, 2002 through April 1, 2002, which shall be made available
to the Company upon the Company's reasonable request and of
which a maximum of $180,000 shall be cash and the balance of
which, not to exceed $120,000, shall be in the form of
forgiveness of fees and expenses payable to Jacobs and/or his
affiliates as Jacobs shall determine in his sole discretion.
Such working capital shall be provided to the Company in such
combination of equity or debt as determined by Jacobs in his
sole discretion and, if provided as debt, shall be on the
terms incurred by Jacobs, if applicable, or on terms
comparable to those of other loans by Jacobs or his affiliates
to the Company.
Section 4. Effect. The Merger Agreement, as amended hereby, remains in
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full force and effect, and all references therein to the "Agreement" refer to
the Merger Agreement as amended by this Amendment, except where the context
requires otherwise.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
COLONIAL HOLDINGS, INC.
By:________________________________________
Name:______________________________________
Title: _______________________________________
GAMECO, INC.
By:____/s/ Jeffrey P. Jacobs ______________
Name: Jeffrey P. Jacobs ____________________
Title: President____________________________
GAMECO ACQUISITION, INC.
By:____/s/ Jeffrey P. Jacobs _______________
Name: Jeffrey P. Jacobs ____________________
Title: President____________________________
______/s/ Jeffrey P. Jacobs ________________
Jeffrey P. Jacobs
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