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Consonus Technologies, Inc. · IPO:  S-1 · On 5/4/07 · EX-10.4

Filed On 5/4/07, 4:25pm ET   ·   Accession Number 1047469-7-3697   ·   SEC File 333-142635

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  As Of                Filer                Filing    For/On/As Docs:Size              Issuer               Agent

 5/04/07  Consonus Technologies, Inc.       S-1                   28:5.2M                                   Merrill Corp/New/FA

Initial Public Offering (IPO):  Registration Statement (General Form)   —   Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)               HTML   1.42M 
 2: EX-3.1      Articles of Incorporation/Organization or By-Laws   HTML     42K 
 3: EX-3.2      Articles of Incorporation/Organization or By-Laws   HTML     70K 
 4: EX-4.1      Instrument Defining the Rights of Security Holders  HTML     89K 
 5: EX-4.2      Instrument Defining the Rights of Security Holders  HTML    119K 
 6: EX-4.3      Instrument Defining the Rights of Security Holders  HTML     50K 
 7: EX-10.1     Material Contract                                   HTML    302K 
15: EX-10.10    Material Contract                                   HTML     71K 
16: EX-10.11    Material Contract                                   HTML     62K 
17: EX-10.12    Material Contract                                   HTML     46K 
18: EX-10.13    Material Contract                                   HTML    138K 
19: EX-10.14    Material Contract                                   HTML     56K 
20: EX-10.15    Material Contract                                   HTML     56K 
21: EX-10.16    Material Contract                                   HTML     37K 
22: EX-10.17    Material Contract                                   HTML     77K 
23: EX-10.18    Material Contract                                   HTML     35K 
24: EX-10.19    Material Contract                                   HTML    103K 
 8: EX-10.2     Material Contract                                   HTML    268K 
25: EX-10.20    Material Contract                                   HTML     57K 
 9: EX-10.3     Material Contract                                   HTML    798K 
10: EX-10.4     Material Contract                                   HTML     39K 
11: EX-10.5     Material Contract                                   HTML     96K 
12: EX-10.7     Material Contract                                   HTML    102K 
13: EX-10.8     Material Contract                                   HTML     74K 
14: EX-10.9     Material Contract                                   HTML     54K 
26: EX-21.1     Subsidiaries of the Registrant                      HTML     11K 
27: EX-23.1     Consent of Experts or Counsel                       HTML     11K 
28: EX-23.2     Consent of Experts or Counsel                       HTML     10K 


EX-10.4   —   Material Contract


This exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]




Exhibit 10.4

 

FIRST AMENDMENT TO

AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

 

This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Amendment”) is made and entered into as of January 22, 2007, by and among Consonus Acquisition Corp., a Delaware corporation (“Consonus”), Strategic Technologies, Inc., a North Carolina corporation (“STI”), Consonus Technologies, Inc., a Delaware corporation (the “Company”), CAC Merger Sub, Inc., a Delaware corporation and a wholly and directly owned subsidiary of the Company (“CAC Merger Sub”), and STI Merger Sub, Inc., a North Carolina corporation and a wholly and directly owned subsidiary of the Company (“STI Merger Sub” and, together with CAC Merger Sub, the “Merger Subs”). Knox Lawrence International, LLC, a Delaware limited liability company (the “Consonus Principal Stockholder”), is executing this Amendment for the sole purpose of acknowledging and agreeing to the amendments to Exhibit K as discussed below and attached hereto.

 

RECITALS

 

A.                                   The parties hereto are parties to that certain Agreement and Plan of Merger and Reorganization dated as of October 18, 2006 (the “Merger Agreement”).

 

B.                                     The parties desire to amend the Merger Agreement as and to the extent set forth herein.

 

AGREEMENTS

 

NOW, THEREFORE, in consideration of the recitals, the mutual covenants and agreements set forth herein and in the Merger Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.                                       Section 1.8(b)(i) of the Merger Agreement is hereby amended by deleting “0.07716852370881630” and replacing it with “0.077171303934418” as the STI Exchange Ratio.

 

2.                                       Each of Sections 2.8 and 3.8 are hereby amended by adding at the end of each such Section “or (iv) Transaction Expenses.”

 

3.                                       Section 4.16 of the Merger Agreement is hereby amended by deleting the final sentence of such Section and replacing it with the following:

 

“The Parties agree that Michael G. Shook and William M. Shook, in their roles as executive officers of the Company and STI, will be entitled to the incentive payments as and to the extent set forth on Exhibit K attached hereto and made a part hereof.”

 

4.                                       Exhibit K to the Merger Agreement is hereby deleted in its entirety and replaced with the Exhibit K attached hereto and made a part hereof.

 



 

5.                                       Except as specifically amended or modified by this Amendment, the terms and conditions of the Merger Agreement shall remain unimpaired, unaffected and unchanged in every particular as set forth therein. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Merger Agreement.

 

6.                                       This Amendment may be executed in several counterparts and delivered by facsimile transmission, each of which shall be deemed an original, but which counterparts shall together constitute one and the same Amendment.

 

[THE NEXT PAGE IS THE SIGNATURE PAGE.]

 

2



 

IN WITNESS WHEREOF, the undersigned have caused this First Amendment to Agreement and Plan of Merger and Reorganization to be executed and delivered by their respective officers thereunto duly authorized, all as of the date first written above.

 

 

CONSONUS ACQUISITION CORP.

 

 

 

 

 

By:

/s/Nana Baffour

 

 

 

  Nana Baffour, Chairman

 

 

 

 

 

 

 

STRATEGIC TECHNOLOGIES, INC.

 

 

 

 

 

 

 

By:

/s/Michael G. Shook

 

 

 

Michael G. Shook, Chief Executive Officer

 

 

 

 

 

 

 

CONSONUS TECHNOLOGIES, INC.

 

 

 

 

 

 

 

By:

/s/Michael G. Shook

 

 

 

Michael G. Shook, Chief Executive Officer

 

 

 

 

 

 

 

CAC MERGER SUB, INC.

 

 

 

 

 

 

 

By:

/s/Nana Baffour

 

 

 

Nana Baffour, President

 

 

 

 

 

 

 

STI MERGER SUB, INC.

 

 

 

 

 

 

 

By:

/s/Nana Baffour

 

 

 

Nana Baffour, President

 

 

 

 

 

 

 

KNOX LAWRENCE INTERNATIONAL, LLC

 

 

 

 

 

 

 

By:

/s/Nana Baffour

 

 

 

Nana Baffour, Managing Principal

 

[Signature Page to First Amendment to Agreement and Plan of Merger and Reorganization]

 



 

EXHIBIT K

Executive Incentive Payments

 

President/CEO Bonus:

 

At or immediately prior to the Closing of the Mergers, STI will provide as a bonus to Michael G. Shook, the forgiveness and cancellation of any and all amounts owed to STI pursuant to the Loan Agreement by and between STI and Michael G. Shook, effective April 17, 1998, as amended April 1, 2003 and March 31, 2005.

 

At the Closing of the Mergers, the Consonus Principal Stockholder will provide a loan to Michael G. Shook in the principal amount of $100,000, with interest at twelve percent (12%), which loan will be secured by 21,142 shares of Company Common Stock issued to Michael G. Shook in connection with the Mergers (the “M. Shook Closing Loan”).

 

Upon the successful completion of an initial public offering by the Company, if Michael G. Shook is at such time still employed by STI and/or the Company as the Chief Executive Officer of such entity, the Consonus Principal Stockholder will fund a cash bonus in the minimum amount of $589,593 and maximum amount of $624,688 to Michael G. Shook or to such recipients as Michael G. Shook may direct. A portion of such cash bonus will be paid in the form of forgiveness of the M. Shook Closing Loan.

 

 Executive Vice President of Sales & Marketing/Vice President of Sales and Marketing Bonus:

 

At or immediately prior to the Closing of the Mergers, STI will provide as a bonus to William M. Shook, the forgiveness and cancellation of any and all amounts owed to STI pursuant to the Loan Agreement by and between STI and William M. Shook, effective April 17, 1998, as amended April 1, 2003 and March 31, 2005.

 

Upon the successful completion of an initial public offering by the Company, if William M. Shook is at such time still employed by STI and/or the Company as the Executive Vice President of Sales & Marketing and/or Vice President of Sales & Marketing of such entity, the Consonus Principal Stockholder will fund a cash bonus in the minimum amount of $159,935 and maximum amount of $169,455 to William M. Shook or to such recipients as William M. Shook may direct.

 




Dates Referenced Herein   and   Documents Incorporated By Reference

This S-1 Filing   Date   Other Filings
4/17/98
4/1/03
3/31/05
10/18/06
1/22/07
Filed On / Filed As Of5/4/07
 
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Filing Submission 0001047469-07-003697   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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