EXHIBIT "B"
FIRST AMENDMENT to the
MERGER AGREEMENT
This First Amendment to the Merger Agreement (the "Agreement") is entered
into as of the 14th day of May, 2001, by and between WESTERN POWER & EQUIPMENT
CORP., a Delaware corporation (the "Company") and SUPPLYPOINT, INC., a Delaware
corporation ("SupplyPoint").
RECITALS
WHEREAS, the Parties entered into a Merger Agreement dated as of 1st day
of May, 2001, and
WHEREAS, the Parties desire to amend the Agreement,
NOW, THEREFORE, in consideration of the mutual covenants of the
Parties hereinafter set forth, and for good and valuable consideration, receipt
of which is hereby acknowledged,
IT IS AGREED:
1. Recitals Adopted. The parties hereto adopt as part of this First
Amendment each of the recitals which are contained above in the WHEREAS clauses,
and agree that such recitals shall be binding upon the parties hereto by way of
contract and not merely by way of recital or inducement; and such clauses are
hereby confirmed and ratified as being true and accurate by each party as to
itself.
2. Paragraph "C" of Article "7". Paragraph "C' of Article "7" of the
Agreement, is hereby deleted and the following is substituted in its place and
stead:
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C. Stockholder Approval. The holders of 84% of the issued and
outstanding shares of SPI have consented to SPI entering into this Agreement and
the transactions set forth in this Agreement. A certified consent of such
Stockholders is annexed hereto and made a part hereof as Exhibit "N" (Article
"7(C)".
3. Paragraph "K" of Article "7". Paragraph "K" of Article "7 of the
Agreement, is hereby deleted and the following is substituted in its place and
stead:
Financial Statements. Annexed hereto and made a part hereof as
Exhibit "P" (Article "7(K)") are true copies of a draft of SPI's audited
statement of profit and loss and balance sheet for the fiscal years ended
December 31, 1999 and 2000, (collectively, the Financial Statements; the
Financial Statements dated December 31, 2000 are hereinafter referred to as the
2000 Financial Statements), which have been prepared using generally accepted
accounting principles ("GAAP") applied on a consistent basis. SPI shall provide
at the Closing a certificate executed by the Board of Directors, to the effect
that the Financial Statements fairly present the financial condition and results
of operations for SPI. Except as indicated in the 2000 Financial Statements, or
in any Exhibit to this Agreement, SPI does not have any outstanding indebtedness
or other liabilities or obligations of any nature (whether absolute, accrued,
contingent or otherwise, and whether due or to become due). Since December 31,
2000 (the "Financial Statement Date"), there has not been any material adverse
change in SPI 's financial condition, assets, liabilities or business, or any
damage, destruction or loss, whether or not covered by insurance, materially
affecting SPI's properties, assets or business, and except as listed on Exhibit
"Q" (Article "7(K)"), which is annexed hereto and made a part
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hereof to this Agreement, SPI has not incurred any indebtedness, liability or
other obligation of any nature whatsoever and SPI has not made any change in its
accounting methods or practices.
4. Paragraph "A" of Article "19" - Subparagraphs "(v)" and "(x)" of
Paragraph "A" of the Agreement, are hereby deleted.
5. Paragraph "B" of Article "19" - Subparagraph "(ix)" of Paragraph "B" of
Article "19" of the Agreement, is hereby deleted.
6. Paragraph "A" of Article "20" - The following shall be added as
Subparagraph "(xiii)" of Paragraph "A" of Article "20" of the Agreement:
On the Effective Date, SPI shall deliver the following items to the Escrow
Agent to be held in escrow pursuant to the Stockholders Escrow Agreement:
(i) all original insurance policies of SPI;
(ii) all books and records of SPI including, but not limited to
contracts, deeds, bonds, notes, mortgages, leases, books, records, documents,
instruments, invoices, bills, vouchers, cancelled checks, checkbooks, bank books
of SPI and credit cards which are billed to SPI.
7. Paragraph "A" of Article "20" -The following shall be added as
Subparagraph "(xiv)" of Paragraph"A" of Article "20" of the Agreement:
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(xiv) Irrevocable Proxy. Western shall deliver to the Escrow Agent
(hereinafter defined in Article "21" of this Agreement) an irrevocable proxy
executed by American United Global, Inc. in favor of Irwin L. Gross with respect
to all of the voting stock of Western held by such entity equal to approximately
36.7% of the total shares of Western voting stock outstanding as of the date of
this Agreement, in the form annexed hereto and made a part hereof as Exhibit
"YY" (Article "20(A)(xiv)");
8. Paragraph "A" of Article "20" - The following shall be added as
Subparagraph "(xv)" of Paragraph "A" of Article "20" of the Agreement:
Consistent Audited Financial Statements - On or prior to June 13, 2001,
SPI shall provide to Western, an audited statement of profit and loss and
balance sheet for each of the fiscal years ended December 31, 1999 and 2000,
which shall be consistent with the 2000 Financial Statements in all respects,
and shall be suitable or readily adaptable for incorporation in the registration
statements, prospectuses and annual reports to be filed by Western with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities Act of
1933, as amended (the "'33 Act"), and the Securities Exchange Act of 1934, as
amended (the "'34 Act") (the "Consistent Audited Financial Statements").
If Western does not receive Consistent Audited Financial Statements on or
prior to June 13, 2001, it will have the right upon written notice to
SupplyPoint to terminate the Agreement.
9. Paragraph "B" of Article "21" - Subparagraphs "(vi)" and `(vii)" of
Article "21" of the Agreement, are hereby deleted.
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10. Paragraph "C" of Article "21" - Subparagraph "(iii)" of Paragraph "C"
of Article "21", is hereby deleted.
11. Paragraphs "C" and "D" of Article "21" - The following shall be added
as Paragraphs "C" and "D" of Article "21" of the Agreement:
C. On or prior to the Effective Date Western shall deliver to the
Escrow Agent (hereinafter defined in Article "21" of this Agreement) an
irrevocable proxy executed by American United Global, Inc. in favor of Irwin L.
Gross with respect to all of the voting stock of Western held by such entity
equal to approximately 36.7% of the total shares of Western voting stock
outstanding as of the date of this Agreement, in the form annexed hereto and
made a part hereof as Exhibit "YY" (Article "19(B)(ix)");
D. The release by the Escrow Agent of the Western Escrow Items to
SPI and the SupplyPoint Items to Western shall be a condition precedent to the
Effective Date and the delivery of the items set forth in Article "20" of this
Agreement.
12. Article "23" and "24" of the Agreement - Article "23" and "24" of the
Agreement, are hereby deleted.
13. Full Force and Effect. Except as modified by this First Amendment, the
Agreement shall remain in full force and effect in accordance with its terms,
and shall be legally binding upon the Parties.
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IN WITNESS WHEREOF, the parties, intending to be legally bound, have
executed this First Amendment to the Merger Agreement as of the day and year
first above written.
WESTERN POWER & EQUIPMENT CORP.
By:_____________________________________
Name:___________________________________
Title:__________________________________
SUPPLYPOINT, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
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