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EXHIBIT 20.07
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER DATED JULY 8,2000
(the "Agreement"), among EZCONNECT, INC., a Nevada corporation, EZCONNECT
MERGER CO., a Nevada corporation; and ENCORE WIRELESS, INC., a California
corporation
This Amendment No. 1 to the Agreement (this "Amendment No. 1") is dated
as of August 9, 2000. All undefined capitalized terms used herein shall have
the same meaning as such terms are defined in the Agreement.
PREMISES
WHEREAS, EZConnect has agreed to provide an additional $150,000 in
immediately available funds to Encore pursuant to a promissory note in the
form attached hereto as Exhibit A (the "Promissory Note"). The outstanding
amount of the Promissory Note shall be treated as a deposit towards the
purchase price for the Encore Shares upon the Audit Completion Date in the
event all the other conditions for the purchase of the Encore Shares are
either satisfied or waived by the appropriate parties;
WHEREAS, the parties have agreed to accelerate the Closing Date to
September 15, 2000; and
WHEREAS, Encore has agreed to remove certain closing conditions set forth
in Article VI of the Agreement relating to the trading volume and stock prices
of the EZConnect Common Stock.
AMENDMENT The following chances shall be made as the date hereof:
Section 1.01(d)
- The words "and (ii) $200,000" shall be deleted after subsection Section
1.01(d)(i) and replaced with the following: "(ii) $150,000 on August 9, 2000
(the "Advance"); and (iii) $50,000"
- The second sentence of the first paragraph of Section 1.01 (d) shall be
deleted in its entirety.
- The following paragraph shall be added as the last paragraph of Section
1.01 (d): "The Advance shall be deemed to be a loan from EZConnect to Encore
up to and including the Audit Completion Date and Encore shall provide
EZConnect with a promissory note in the principal amount of $150,000, without
interest, which shall become due and payable if EZConnect terminates this
Agreement on or before the Audit Completion Date, with the repayment of the
note to be made five days following such termination. Following the Audit
Completion Date, if the Audited Financial Statements are delivered without the
termination of this Agreement by EZConnect, the Advance shall constitute a
payment from EZConnect against the purchase price for the Encore Shares which
is non-refundable; provided, that such amount shall be refunded to EZConnect
if: (i) this Agreement is terminated by EZConnect due to a material reduction
in the Encore Net Worth as provided above; (ii) Sprint Spectrum LP should
exercise its right of first refusal to acquire Encore, which right is
described in the Encore Disclosure Schedules; or (iii) this Agreement should
be terminated by EZConnect due to a material misrepresentation by Encore
herein or a material breach by Encore of its obligations hereunder."
Section 1.03 (a)
- The date "October, 15, 2000" shall be replaced by "September 15, 2000".
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Sections 6.06 and 6.07
- These sections shall be deleted in their entirety.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be
executed by their respective officers, thereunto duly authorized, as of the
date first above written.
EZConnect: EZConnect, Inc.
A Nevada Corporation
By: /S/ J. Greg Spencer
Its: President
Encore: Encore Wireless, Inc.
A California Corporation
By: /S/ Kevin S. Hamilton
Its: Chief Executive Officer
Merger Sub: EZConnect Merger Co.
A Nevada corporation
By: /S/ J. Greg Spencer
Its: President
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$150,000 Salt Lake City, Utah
August 9, 2000
PROMISSORY NOTE
For value received, Encore Wireless, Inc., a California corporation
("Encore"), with offices at 2900 Townsgate Road, Suite 200, Westlake Village,
California 91361, hereby promises to pay to the order of EZConnect, Inc., a
Nevada corporation ("EZConnect), at 6009 South Redwood Road, Salt Lake City,
Utah 84123, the principal amount of One Hundred Fifty Thousand Dollars
($150,000), without interest, on or before August 19, 2000. If this Note is
not paid when due, interest shall begin to accrue on all amounts outstanding
hereunder at the rate of eighteen percent (18%) per annum from the due date
until the date of payment. This Note may be prepaid at any time without
penalty.
If this Note is collected by an attorney after default in the payment of
principal or interest, either with or without suit, the undersigned agrees to
pay all costs and expenses of collection including a reasonable attorney's
fee.
The makers, sureties, guarantors and endorsers hereof severally waive
presentment for payment, demand and notice of dishonor and nonpayment of this
Note, and consent to any and all extensions of time, renewals, waivers or
modifications that may be granted by the holder hereof with respect to the
payment or other provisions of this Note, and to the release of any security,
or any part thereof, with or without substitution.
Encore hereby represents and warrants to EZConnect that: (i) Encore is a
validly existing California corporation, with full power and authority to own
its assets, to conduct its business in the manner and in the places in which
it presently is conducted, and to perform its obligations under this
Promissory Note; (ii) Encore has taken all action required by its articles of
incorporation and by-laws to authorize the execution, delivery and performance
of this Promissory Note; (iii) this Promissory Note constitutes the valid and
binding obligation of Encore enforceable against it in accordance with its
terms; and (iv) the execution, delivery and performance by Encore of this
Promissory Note will not violate any provision of its articles of
incorporation or by-laws or any applicable law, statute, rule, regulation,
ordinance, decree, judgment or order, and will not conflict with or result in
any breach of any provision of, or constitute a default under, any agreement,
instrument or other document to which Encore is a party or by which its
properties are bound.
IN WITNESS WHEREOF, the undersigned has executed this Promissory Note on
this 9th day of August, 2000.
Encore Wireless, Inc.
A California corporation
By: /S/ Kevin S. Hamilton
Chief Executive Officer