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Exhibit 10.31
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
August 17, 1998 (the "Amendment"), is made and entered into among GOLF CLUB
PARTNERS L.L.C., an Oklahoma limited liability company ("Acquiror"), STPD
ACQUISITION COMPANY, an Oklahoma corporation and a wholly-owned subsidiary of
Acquiror ("Acquiror Sub"), and SENIOR TOUR PLAYERS DEVELOPMENT, INC., a Nevada
corporation (the "Company"). Unless otherwise defined herein or the context
hereof otherwise requires, all terms defined in the Agreement and Plan of
Merger, dated as of May 6, 1998 (the "Merger Agreement") among the parties
hereto shall have the same meanings herein.
RECITALS
The Merger Agreement currently provides that Acquiror Sub will be
merged with and into the Company with the Company to be the Surviving
Corporation after the Merger and to become a wholly-owned subsidiary of
Acquiror. The respective Boards of Directors of Acquiror Sub and the Company,
and the manager of Acquiror, have determined that it is advisable and in the
best interests of the respective corporations and limited liability company and
their respective shareholders and members that the Merger Agreement be amended
so that the Company will be merged with and into Acquiror Sub, with Acquiror
Sub, and not the Company, to be the Surviving Corporation and a wholly-owned
subsidiary of Acquiror after the Merger. Section 9.3 of the Merger Agreement
provides that the Merger Agreement may be amended by the parties at any time
prior to the Effective Time, by an instrument in writing signed by each of the
parties hereto; provided, however, that after approval of the Merger Agreement
by the shareholders of the Company, no amendment that would reduce the amount or
change the type of consideration into which each share of Company Common Stock
shall be converted pursuant to the Merger Agreement upon consummation of the
Merger may be made without further approval of the shareholders of the Company.
The parties agree that the amendments to the Merger Agreement to be made herein
would not reduce the amount or change the type of consideration into which each
share of Company Common Stock will be converted pursuant to the Merger
Agreement.
AGREEMENTS
In consideration of the representations, warranties, covenants and
agreements set forth in this Amendment, the parties agree as follows:
1. Section 1.1 of the Merger Agreement is amended to read,
in full, as follows:
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THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement, and in
accordance with the Oklahoma Law and the Nevada Law,
at the Effective Time (as defined in Section 1.2
below), the Company shall be merged with and into
Acquiror Sub. As a result of the Merger, the separate
corporate existence of the Company shall cease and
Acquiror Sub shall continue as the surviving
corporation of the Merger (the "Surviving
Corporation"). Acquiror Sub and the Company are
sometimes collectively referred to in this Agreement
as the "Constituent Corporations."
2. Section 1.4 of the Merger Agreement is amended to read,
in full, as follows:
CERTIFICATE OF INCORPORATION; BYLAWS. At the
Effective Time, the Certificate of Incorporation, as
modified by amendments approved by all parties
hereto, which amendments shall become effective only
at the Effective Time, and the Bylaws of Acquiror Sub
shall be the Certificate of Incorporation and the
Bylaws of the Surviving Corporation, except the name
of the Surviving Corporation shall, immediately
following the Merger, be changed to "Senior Tour
Players Development, Inc."
3. Section 1.5 of the Merger Agreement is amended to read,
in full, as follows:
DIRECTORS AND OFFICERS. The directors of Acquiror
Sub immediately prior to the Effective Time shall be
the initial directors of the Surviving Corporation,
each to hold office in accordance with the
Certificate of Incorporation and Bylaws of the
Surviving Corporation, and the officers of Acquiror
Sub immediately prior to the Effective Time shall be
the initial officers of the Surviving Corporation, in
each case until their respective successors are duly
elected or appointed and qualified.
4. Section 2.1(c) of the Merger Agreement is amended to
read, in full, as follows:
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(c) each share of common stock, $.01 par value,
of Acquiror Sub issued and outstanding immediately
prior to the Effective Time shall thereafter
represent one fully paid and nonassessable share of
common stock of the Surviving Corporation ("Surviving
Corporation Common Stock").
5. Upon execution and delivery of this Amendment by all
parties hereto, the Merger Agreement shall be amended as set forth
herein. Except as otherwise expressly provided herein, all of the
terms and provisions of the Merger Agreement shall remain in full
force and effect; provided, however, that to the extent not already
provided herein, the Merger Agreement shall be deemed to be further
amended to the minimum extent necessary to reflect that the Company
will be merged into Acquiror Sub and Acquiror Sub will continue as the
Surviving Corporation of the Merger, so long as such further amendment
does not reduce the amount or change the type of consideration into
which each share of Company Common Stock will be converted pursuant to
the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Agreement and Plan of Merger effective as of the date first above
written.
"ACQUIROR" GOLF CLUB PARTNERS L.L.C., an
Oklahoma limited liability
company
By: GOLF CLUB OPERATING PARTNERS
L.L.C., an Oklahoma limited
liability company, its Manager
By:
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Elby J. Beal, Manager
By:
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David K. Hardin, Manager
By:
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James D. Gressett, Manager
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"COMPANY" SENIOR TOUR PLAYERS DEVELOPMENT,
INC., a Nevada corporation
By:
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Name: Stanton V. Abrams
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Title: President
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"ACQUIROR SUB" STPD ACQUISITION COMPANY, an
Oklahoma corporation
By:
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Elby J. Beal, President
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