EXHIBIT 2.6
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT")
is dated as of September 30, 2005, by and among FreeSeas Inc. (formerly known as
Adventure Holdings, S.A.), a corporation organized under the laws of the
Republic of the Marshall Islands ("FREESEAS"), Alastor Investments S.A., a
corporation organized under the laws of the Republic of the Marshall Islands
("ALASTOR"), The Mida's Touch S.A., a corporation organized under the laws of
the Republic of the Marshall Islands ("MIDA'S TOUCH"), N.Y. Holdings S.A., a
corporation organized under the laws of the Republic of the Marshall Islands
("N.Y. HOLDINGS"), George D. Gourdomichalis ("G. GOURDOMICHALIS"), Stathis D.
Gourdomichalis ("S. GOURDOMICHALIS") and Ion G. Varouxakis ("VAROUXAKIS"), and
Trinity Partners Acquisition Company Inc., a corporation organized under the
laws of the State of Delaware ("TRINITY").
W I T N E S S E T H:
WHEREAS, Trinity, FreeSeas, V Capital S.A., a corporation organized
under the laws of the Republic of the Marshall Islands, ("V CAPITAL"), G. Bros
S.A., a corporation organized under the laws of the Republic of the Marshall
Islands, ("G. BROS"), G. Gourdomichalis, S. Gourdomichalis and Varouxakis
entered into that certain Agreement and Plan of Merger, dated as of March 24,
2005, as amended by Amendment No. 1 dated as of July 19, 2005 (collectively, the
"MERGER AGREEMENT");
WHEREAS, in accordance with Section 6.13 of the Merger Agreement, V
Capital and G. Bros transferred and assigned all of their respective shares in
FreeSeas to Alastor, Mida's Touch and N.Y. Holdings on April 25, 2005, thus
making each of Alastor, Mida's Touch and N.Y. Holdings a FreeSeas Shareholder
(as such term is defined in the Merger Agreement);
WHEREAS the parties hereto desire to amend the Merger Agreement as set
forth herein:
NOW, THEREFORE, in consideration of the premises and such other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties hereto, it is hereby agreed as follows:
1. RULES OF CONSTRUCTION; DEFINITIONS. The rules of construction set
forth in the Merger Agreement shall be applied to this Amendment. Capitalized
terms not otherwise defined herein shall have the meanings assigned to such
terms in the Merger Agreement.
2. AMENDMENTS TO THE MERGER AGREEMENT. Subject to the terms and
conditions of this Amendment:
(a) Section 7.2(h) of the Merger Agreement is hereby amended by
deleting the provision in its entirety and replacing it with
the following:
"At the Effective Time, (a) Trinity shall have approximately
$7,350,000 but not less than $7,000,000 in cash or cash
equivalents after giving effect to (i) the payment or accrual
on or prior to the Effective Time of all expenses incurred by
Trinity, including, but not limited to, the fees and expenses
of Trinity's attorneys, accountants and investment bankers
(including HCFP/Brenner Securities) LLC, and (ii) any payments
to be made to dissenting Trinity Class B stockholders who
exercised their redemption rights solely with respect to the
Trinity trust fund do not cause Trinity to have less than
$7,000,000 in cash and cash equivalents, and (b) no more than
two percent (2%) of all of the outstanding shares of Trinity
Common Stock and Trinity Class B Common Stock shall have
validly exercised their statutory appraisal rights in
connection with the transactions contemplated by this
Agreement";
(b) Section 8.1(f) of the Merger Agreement is hereby amended by
changing the date contained therein from "September 30, 2005"
to "November 30, 2005."
3. NO OTHER AMENDMENT. All other terms and conditions of the Merger
Agreement shall remain in full force and effect and the Merger Agreement shall
be read and construed as if the terms of this Amendment were included therein by
way of addition or substitution, as the case may be.
4. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF SAID STATE.
5. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
6. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which when
taken together, shall constitute one and the same instrument.
7. MODIFICATIONS IN WRITING. No provision of this Amendment may be
amended, changed, waived, discharged or terminated except by an instrument in
writing signed by all of the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Amendment
as of the day first above written.
TRINITY PARTNERS ACQUISITION COMPANY, INC.
By: /s/ Lawrence Burstein
-------------------------------------
Name: Lawrence Burstein
Title: President
FREESEAS INC.
By: /s/ George D. Gourdomichalis
-------------------------------------
Name: George D. Gourdomichalis
Title: President
ALASTOR INVESTMENTS S.A.,
By: /s/ George D. Gourdomichalis
-------------------------------------
Name: George D. Gourdomichalis
Title: President
THE MIDA'S TOUCH S.A.
By: /s/ Ion G. Varouxakis
-------------------------------------
Name: Ion G. Varouxakis
Title: President
N.Y HOLDINGS S.A.
By: /s/ Efstathios D. Gourdomichalis
-------------------------------------
Name: Efstathios D. Gourdomichalis
Title: President
/s/ George D. Gourdomichalis
---------------------------------------
George D. Gourdomichalis
/s/ Efstathios D. Gourdomichalis
----------------------------------------
Efstathios D. Gourdomichalis
/s/ Ion G. Varouxakis
----------------------------------------
Ion G. Varouxakis
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