AMENDMENT NO. 1 TO NOVEMBER 1, 1999 AGREEMENT
AGREEMENT made as of the 28th day of January, 2000, by and among CNF
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), SYNERGY GROUP
INTERNATIONAL, INC., a Nevada corporation ("Synergy"), VINCENT MAROLD, an
individual residing at 4725 East Sunrise Drive, #228, Tucson, Arizona 85718
("Marold"), and PAUL CHARLES, an individual residing at 10931 East Laurel Lane,
Scottsdale, Arizona 85260 ("Charles").
W I T N E S S E T H:
WHEREAS, on April 16, 1999, an Agreement and Plan of Merger was entered
into among JLL Ventures (Delaware) Corp., ("JLL"), JLL Ventures Acquisition
Corp. ("JLL Acquisition"), CNF, INC., a California corporation ("CNF") and Paul
Charles as the principal shareholder of CNF (the "Original Merger Agreement"),
the purpose of which was to effectuate the merger of CNF with and into JLL
Acquisition (the "Merger");
WHEREAS, on May 24, 1999, the parties to the Original Merger Agreement
entered into Amendment No. 1 to the Agreement and Plan of Merger dated April 16,
1999 ("Amendment No. 1 to the Merger Agreement");
WHEREAS, in connection with the Original Merger Agreement and Amendment No.
1 to the Merger Agreement (referred to in the aggregate as the "Merger
Agreement"), Charles entered into an escrow agreement pursuant to which certain
of his shares of JLL were to be placed in escrow for indemnification claims,
among others (the "Shareholder Escrow Agreement"), and certain historic
stockholders of JLL entered into an escrow agreement pursuant to which certain
of their shares of JLL were placed in escrow to assure certain post-closing
placement activities (the "Acquiror Escrow Agreement");
WHEREAS, effective as of June 19, 1999, the Merger was completed (the
"Closing") pursuant to which CNF merged into JLL Acquisition, JLL Acquisition
changed its corporate name to "CNF Mobile Solutions, Inc." and JLL changed its
corporate name to "CNF Technologies, Inc.";
WHEREAS, on July 14, 1999, the Company commenced a private placement of
shares of its common stock in a manner contemplated in the Merger Agreement (the
"Private Placement");
WHEREAS, in order to induce the interest of certain investors to invest in
the Private Placement, the Company and the parties hereto entered into an
agreement on November 1, 1999 (the "November 1, 1999 Agreement") to modify
certain components of the Private Placement, which, in turn, required an
amendment to certain of the agreements entered into in connection with the
Merger, and resulted in an amendment to the Private Placement, as evidenced by a
Private Placement Memorandum dated November 3, 1999;
WHEREAS, in order to induce a subsequent equity financing of $500,000 into
the Company by Deremie Enterprises ("Deremie"), the parties hereto have agreed
to enter into this Agreement (the "Agreement") which is intended, where
applicable, to constitute a formal amendment to the Original Merger Agreement,
Amendment No. 1 to the Merger Agreement, the Shareholder Escrow Agreement, the
Acquiror Escrow Agreement, and the November 1, 1999 Agreement.
NOW THEREFORE, in consideration of the premises and agreements contained
herein, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
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1. Matters of Corporate Governance.
Until May 19, 2001, Synergy, Charles, plus those other shareholders who
execute the signature page hereof, will agree to vote their shares of common
stock of the Company at any regular or special meeting of its stockholders, or
by written consent, solicitation or otherwise, called or required for the
purpose of electing the Company's Board of Directors, for the nomination of a
designee of Imperium Capital, Inc. to the Company's Board of Directors.
2. Surrender of Preferred Shares.
(a) Upon the execution hereof, Charles agrees to: (i) surrender to the
Company for cancellation 500,000 shares of Series A Convertible Preferred Stock
(the "Preferred Shares"), in addition to the 1,000,000 Preferred Shares
surrendered pursuant to the November 1, 1999 Agreement; and (ii) transfer
500,000 additional shares to Euroswiss Securities or designee thereof for
aggregate consideration of $1.00.
(b) The Company agrees to accord to Charles' remaining Preferred Shares the
same terms and conditions as may be provided to any other holders of the
Preferred Shares, should the Company elect to modify, extend, alter or waive any
of the terms and conditions of the Preferred Shares.
3. Removal of Certain Charles Shares Held in Escrow.
(a) Section 9 of Amendment No. 1 to the Merger Agreement shall be modified
such that the 500,000 Preferred Shares surrendered and 500,000 Preferred Shares
transferred according to Section 2 of this Agreement shall be removed from the
Preferred Shares previously held in escrow, and such escrow arrangements shall
hereafter be of no further force or effect. Accordingly, the Shareholder Escrow
Agreement is deemed terminated.
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4. Modification to Acquiror Escrow.
Sections 6(b) and 6(c) of the November 1, 1999 Agreement shall be deleted
in their entirety and shall be replaced by the following:
"(b) (i) The Company acknowledges that the Historic Acquiror Shareholders
have, by virtue of the Private Placement that closed on or about November 24,
1999, earned the release of 2,000,000 Historic Acquiror Shares from escrow;
(ii) If an aggregate of $4,000,000 of Gross Proceeds are "realized" by
the Company on or before February 7, 2000 (the "First Surrender Date"), the
Historic Acquiror Shareholders shall be entitled to have an additional 1,000,000
shares released from escrow; and
(iii) If $4,000,000 of Gross Proceeds are "realized" by the First
Surrender Date, and an additional $2,000,000 of Gross Proceeds are "realized" by
May 15, 2000 (the "Second Surrender Date"), the Historic Acquiror Shareholders
shall on the Second Surrender Date be entitled to the release of the remaining
1,000,000 shares from escrow.
(iv) For the purposes of subparagraph (ii) and (iii) above, Gross
Proceeds will be deemed "realized" by the Company through either the Private
Placement, debt or equity financing provided or directed to the Company by any
of the Historic Acquiror Shareholders (excluding for this purpose any of the
financing now being provided by Deremie) or through the conversion of Bridge
Notes or other unsecured indebtedness secured by the Company.
(c) The Acquiror Escrow Agreement shall be deemed amended so as to reflect
terms and conditions consistent with those set forth in Section 5.13(b) of the
Original Merger Agreement, as amended by the November 1, 1999 Agreement and the
foregoing Sections 4(a), 4(b) and 4(c) of this Agreement."
5. Private Sale of Securities.
Section 7 of the November 1, 1999 Agreement shall be deleted in its
entirety and replaced with the following:
"Synergy will use best efforts to arrange for the purchase of 200,000 of
the Preferred Shares owned by Charles, at a price of $1.25 per share, within no
more than 150 days of effectiveness of the Registration Statement on Form SB-2
currently on file with the Securities and Exchange Commission. The Preferred
Shares shall be paid for at least 25% upon the date of purchase, with the
balance paid in three ratable monthly installments thereafter."
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6. Capitalized Terms.
All capitalized terms utilized herein and not otherwise defined herein,
shall have the meaning ascribed thereto in the Merger Agreement, or in the
November 1, 1999 Agreement, as applicable.
7. Full Force and Effect.
All other provisions in the Merger Agreement, or in the November 1, 1999
Agreement, as applicable, shall remain in full force and effect except those
identified in this Agreement.
8. Counterpart and Facsimile.
This Agreement may be executed in two or more counterparts and delivered
via facsimile, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the date and year first written above.
CNF TECHNOLOGIES, INC.
By: /s/ Paul Charles
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Name: Paul Charles
Title: Chief Executive Officer
SYNERGY GROUP INTERNATIONAL, INC.
By: /s/ Vincent Marold
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Name: Vincent Marold
Title: President
/s/ Vincent Marold
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Vincent Marold, as designee of Acquiror's
Board of Directors pursuant to Section 5.19(a)
of the Original Merger Agreement
/s/ Paul Charles
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Paul Charles
For the sole purpose of acknowledging their agreement to vote their shares in
the manner provided at Section 1 of this Agreement:
BY: BY:
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Name: Genco Investment Corp. Name: Imperium Capital Corporation
Number of Shares: Number of Shares:
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BY: BY:
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Name: Fincord Holdings Corp. Name: KAB Investments, Inc.
Number of Shares: Number of Shares:
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BY: BY:
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Name: SPH Investments, Inc. Name: FAC Enterprises, Inc.
Number of Shares: Number of Shares:
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BY: BY: /s/ Howard Lindzon
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Name: Capital Growth Trust Name: Lindzon Capital Partners, LLC
Number of Shares: Number of Shares:
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BY: BY: /s/ Vincent Marold
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Name: Howard Lindzon Name: Vincent Marold
Number of Shares: Number of Shares:
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BY: BY:
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Name: Paul Charles Name: Synergy Group International, Inc.
Number of Shares: Number of Shares:
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