EXHIBIT 2.6
TECHNICAL AMENDMENTS TO MERGER AGREEMENT
THESE TECHNICAL AMENDMENTS TO MERGER AGREEMENT (the "Amendments") are
made and entered into this 5th day of October, 1998, by and among Precept
Transportation Services, LLC, a Nevada limited liability company ("Precept
Transportation"), Precept Business Services, Inc., a Texas corporation
("Precept"), Garden State Acquisition Corporation, a Texas corporation
("Merger Sub"), Garden State Leasing & Rent-A-Car Corporation, a New Jersey
corporation (the "Company") and John Rose (the "Stockholder"); to amend and
correct certain provisions of that certain Agreement and Plan of Merger dated
October 2, 1998, to be effective as October 1, 1998, by and among Precept
Transportation, Precept, Merger Sub, the Company and the Stockholder (the
"Merger Agreement");
RECITALS
WHEREAS, the Merger Agreement, as originally writtten, contained certain
errors and ambiguities that Precept Transportation, Precept, Merger Sub, the
Company and the Stockholder wish to correct and clarify;
AGREEMENT
NOW, THEREFORE, in consideration of premises, and the mutual promises
and covenants hereinafter set forth, the parties hereto, intending to be
legally bound, agree as follows:
1. SECTION 2.5.1.2. The example at the end of Section 2.5.1.2 of the
Merger Agreement is hereby amended to reflect that Precept's duty to issue
additional shares of its Class A Common Stock under such example is subject
to the condition set forth earlier in that Section that the closing trading
price of such shares as reported on NASDAQ (or other applicable exchange)
shall have been below $1.1385 per share for the immediately preceding ten
(10) consecutive Trading Days prior to the sale described in such example.
2. SECTION 2.6.1. Section 2.6.1 of the Merger Agreement is hereby
amended by the deletion of the words "except as otherwise provided in the
Employment Agreement" at the end of such Section and by the addition of the
following sentence: "Stockholder's profits participation related to any such
future acquisitions is provided for and shall accrue solely under the
Employment Agreement."
3. SECTION 2.6.2. Section 2.6.2 of the Merger Agreement is hereby
amended by the deletion of the words "selected by the Stockholder" in the
second to last line of that Section.
4. SECTION 2.6.4. The last sentence of Section 2.6.4 of the Merger
Agreement is hereby amended and restated to read in its entirety as follows:
"All costs of such audit shall be the responsibility of Stockholder, unless
the independent accounting firm determines that the amount of any
additional Earn-Out Payment over and
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above that calculated by Precept and due to Stockholder as described
above is more than seven and one-half percent (7-1/2%) of the Earn-Out
Payment as calculated by Precept, and if the additional payment due is
more than such seven and one-half percent (7-1/2%) of that offered by
Precept, the costs of audit shall be borne by Precept."
5. SECTION 2.6.5. Section 2.6.5 of the Merger Agreement is hereby
amended and supplemented by the addition of the following sentence:
"It is expressly provided, however, that all shares of Parent Class A Stock
received by Stockholder under any earn out in the Employment Agreement are
to be received and represent fair value and arms'-length consideration for
services actually to be rendered by Stockholder only after the Merger
solely in his capacity as an employee of the Surviving Corporation and as
agent for Precept Transportation. Such shares are not a part of the Merger
Consideration. References to such shares in this Section are therefore for
convenience only. Even though certain provisions set forth in this
Agreement are equally applicable to such shares, such shares are being
issued for separate consideration and a separate purpose."
6. SECTION 2.7.1. The fifth to last line of Section 2.7.1 of the
Merger Agreement is hereby amended to delete the word "Transportation" in
such line.
7. SECTION 2.9.1 The first line of Section 2.9.1 of the Merger
Agreement is hereby amended to delete the word "Transportation" in such line.
8. SECTION 2.9.2 The second line of Section 2.9.2 of the Merger
Agreement is hereby amended to delete the word "Transportation" in such line.
9. SECTION 3.6 The third line of Section 3.6 of the Merger Agreement
is hereby amended to delete the word "Transportation" in such line.
10. SECTION 7.3 The parenthetical clause in the last two lines of
Section 7.3 of the Employment Agreement is hereby amended and restated to
read in its entirety as follows: "(including earn-outs or profits
participations, but not to include wages or salary, provided for under the
Employment Agreement)."
11. SECTION 7.4, FIRST SENTENCE The first sentence, tenth line of
Section 7.4 of the Merger Agreement, is hereby amended to delete the word
"Transportation" in such line.
12. SECTION 7.4, THIRD SENTENCE The third sentence of Section 7.4 of
the Merger Agreement is hereby amended and restated to read in its entirety
as follows:
"The Indemnified Parties shall provide all reasonable cooperation in
connection with any such defense by the Indemnifying Parties."
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13. SECTION 7.4, FOURTH SENTENCE The fourth sentence of Section 7.4
of the Merger Agreement is hereby amended and restated to read in its
entirety as follows:
"Counsel and auditor fees, filing fees and court fees of all proceedings,
contests or lawsuits with respect to any such claim shall be borne by the
Indemnifying Parties, whether or not the Indemnifying Parties elect to
control the defense as set forth above, except that with respect to the
litigation disclosed in paragraph 1 of Section 3.13 of the Disclosure
Schedule, the Surviving Corporation shall be responsible for and promptly
pay all counsel, expert, filing and court fees relating thereto (whether
incurred prior to or after the Closing Date)."
14. SECTION 7.6.2. Section 7.6.2 of the Merger Agreement is hereby
amended and supplemented by the addition of the following Section 7.6.2.5:
"7.6.2.5 Each release of Escrow Funds required under this Section shall in
each case be reduced also by the amount of any Losses paid out from escrow
during the applicable periods prior to release."
15. GOVERNING LAW. These Amendments shall be governed by and
interpreted in accordance with the laws of the State of Texas applicable to
contracts made and to be performed therein, without resort to the conflict of
law principles thereof.
16. RATIFICATION; COMPLETE AGREEMENT. Except for the amendments
specifically set forth therein, all terms and conditions of the Merger
Agreement are hereby ratified and confirmed and shall remain in full force
and effect. No further alteration, addition or other change to the Merger
Agreement or these Amendments shall be binding unless in writing signed by
the party to be bound.
IN WITNESS WHEREOF, the parties have executed these Amendments as of the
date first above written.
PRECEPT TRANSPORTATION:
PRECEPT TRANSPORTATION SERVICES, LLC, GARDEN STATE LEASING & RENT-A-CAR
a Nevada limited liability company CORPORATION, a New Jersey corporation
By:
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By
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PRECEPT: JOHN ROSE
PRECEPT BUSINESS SERVICES, INC.,
a Texas corporation
By:
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COMPANY:
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STOCKHOLDER:
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JOHN ROSE
MERGER SUB:
GARDEN STATE ACQUISITION CORPORATION,
a Texas corporation
By:
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