Exhibit 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
AMONG
BROADBAND MARITIME INC.,
PRIME RESOURCE, INC. AND
PRIME ACQUISITION, INC.
FIRST AMENDMENT, dated as of February 13, 2007 ("Amendment"), by and among
BROADBAND MARITIME INC., a Delaware corporation (the "Company"), PRIME RESOURCE,
INC., a Utah corporation ("Parent"), and PRIME ACQUISITION, INC., a Utah
corporation and a wholly owned subsidiary of Parent ("Merger Sub," the Company,
Parent, and Merger Sub together are referred to as the "Constituent
Corporations").
WHEREAS, the Constituent Corporations have previously entered into an
Agreement and Plan of Merger (the "Merger Agreement"), dated as of January 15,
2007 (the "Signing Date"), and capitalized terms used in this Amendment but not
defined shall have the meaning set forth in the Merger Agreement;
WHEREAS, the Merger Agreement provides that the parties may amend such
agreement at any time by written agreement of each party; and
WHEREAS, the Parties now mutually desire to amend the Merger Agreement to,
among other things, (1) change the Closing Date to March 16, 2007, (2) change
the deadline by which the Company must raise additional capital and (3) clarify
and correct certain other provisions.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, the parties agree as follows:
1. AMENDMENT TO SECTION 1.2 OF MERGER AGREEMENT. Section 1.2 to the
Merger Agreement is hereby deleted in its entirety and replaced with the
following:
"Closing. Unless otherwise mutually agreed in writing between the
Company and Parent, the closing of the Merger (the "Closing")
shall take place (i) at the offices of Broadband Maritime Inc.,
61 Broadway, Suite 1905, New York, NY 10006, at 10:00 a.m.
(Eastern Time) on March 16, 2007 (the "Closing Date") or at such
other location or on such other date as the parties shall
mutually agree."
2. AMENDMENT TO SECTION 7.1(C) OF THE MERGER AGREEMENT. Section 7.1(c)
of the Merger Agreement is hereby deleted in its entirety and replaced with the
following:
"Private Equity Financing. On or before March 13, 2007, the
Company shall have, in private offerings of its capital stock,
since October 31, 2006, sold or entered into binding
subscriptions for the sale by it contemporaneously with the
Closing, shares of its capital stock in an amount that will
result in gross proceeds to the Company of at least four million
five hundred thousand dollars ($4,500,000)."
3. AMENDMENT TO SCHEDULE 4.1(A) OF THE MERGER AGREEMENT. Schedule
4.1(a) of the Merger Agreement is hereby deleted in its entirety and replaced
with the Schedule 4.1(a) attached to this Amendment.
4. MISCELLANEOUS.
a. Except as specifically provided for in this Amendment, the terms of
the Merger Agreement shall be unmodified and shall remain in full force and
effect. For purposes of determining the accuracy of, or the occurrence of a
breach of, a Party's representations and warranties in the Merger Agreement as
of the Signing Date, only those representations and warranties set forth in the
Merger Agreement in its form as of the Signing Date shall apply and the
modifications or supplements set forth in the Amendment shall have no effect.
For purposes of determining the accuracy of a Party's representations and
warranties in the Merger Agreement as of the Closing Date, only those
representations and warranties set forth in the Merger Agreement in its form as
of the Closing Date shall apply. For purposes of determining the compliance
with, or the occurrence of a breach of, a Party's covenants in the Merger
Agreement prior to the date of this Amendment, only those covenants set forth in
the Merger Agreement in its form as of the Signing Date shall apply and the
modifications or supplements set forth in this Amendment shall have no effect.
For purposes of determining the compliance with, or the occurrence of a breach
of, a Party's covenants in the Merger Agreement after the date of this
Amendment, only those covenants set forth in the Merger Agreement in its form as
after being amended by this Amendment shall apply.
b. This Amendment shall be binding upon and shall inure to the benefit
of the Parties and their respective successors and permitted assigns, except
that neither this Amendment nor any rights or obligations hereunder shall be
assigned or delegated by either Party except in connection with an assignment of
the Merger Agreement in accordance with the terms thereof. Any purported
assignment in violation of this provision is void.
c. This Amendment is not intended to confer upon any person or entity
other than the Parties and their permitted assigns any rights or remedies.
d. This Amendment may be amended only by a written instrument signed
by each of the Parties.
e. This Amendment may be executed in counterparts, each of which when
so
executed shall be deemed to be an original, and such counterparts shall together
constitute one and the same instrument.
f. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW
OF THE STATE OF DELAWARE.
[Remainder of page intentionally left blank; signature page follows.]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first written
above.
BROADBAND MARITIME, INC.
By: /s/ Mary Ellen Kramer
------------------------------------
Mary Ellen Kramer, President
PRIME RESOURCE, INC.
By: /s/ Terry M. Deru
------------------------------------
Terry M. Deru, President
PRIME ACQUISITION, INC.
By: /s/ Terry M. Deru
------------------------------------
Terry M. Deru, President
[Signature page to the First Amendment to the Agreement and Plan of Merger.]
A copy of the following omitted Schedule will be submitted to the Commission
supplementally upon request:
SCHEDULE 4.1(A) CAPITALIZATION TABLE