EX-2.1.1 - AMENDMENT TO AGMT & PLAN OF MERGER

EX-2.1.1 3 g78278exv2w1w1.txt EX-2.1.1 - AMENDMENT TO AGMT & PLAN OF MERGER EXHIBIT 2.1.1 AMENDMENT TO AGREEMENT AND PLAN OF MERGER THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Amendment") is dated as of August 28, 2002 by and among O2WIRELESS SOLUTIONS, INC., a Georgia corporation (the "Company"), BARAN GROUP, LTD., a corporation organized under the laws of Israel ("Parent") and BARAN ACQUISITION SUB, INC., a Georgia corporation and a direct wholly owned subsidiary of Parent ("Merger Sub"). WHEREAS, the Company, Parent and Merger Sub are parties to an Agreement and Plan of Merger dated as of June 5, 2002 (the "Agreement"); WHEREAS, the parties have determined that it is in the respective best interests of each of them and, as to the Company and Parent, their respective stockholders to amend the Agreement. NOW, THEREFORE, in consideration of the representatives and warranties contained herein, the parties hereto intending to be legally bound hereby, agree as follows: 1. CAPITALIZED TERMS. Capitalized terms within this Amendment shall have the meanings assigned thereto in the Agreement. 2. AMENDMENT TO EXCHANGE RATIO. The Exchange Ratio is hereby amended to equal 0.014919 shares of Parent Stock for every one share of Company Common Stock. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to Parent and Merger Sub as follows: (a) The Company has all necessary corporate power and authority to execute this Amendment. (b) No other corporate proceedings are necessary on behalf of the Company to authorize this Amendment. (c) This Amendment has been duly and validly executed by the Company and constitutes a valid, legal and binding agreement enforceable against the Company in accordance with its terms (other than to the extent enforceability is limited by any provisions of the Agreement). (d) The Board of Directors of the Company has authorized the execution and delivery of this Amendment and has resolved, notwithstanding the amendment to the Exchange Ratio, (i) that the Agreement and the transactions contemplated thereby, including the Merger, remain advisable and fair and in the best interests of the Company and its stockholders and (ii) to recommend that the stockholders of the Company approve and adopt the Agreement as amended by this Amendment. 4. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. Parent and Merger Sub hereby represent and warrant to the Company as follows: (a) Parent and Merger Sub have all necessary corporate power and authority to execute this Amendment. (b) No other corporate proceedings are necessary on behalf of Parent or Merger Sub to authorize this Amendment. (c) This Amendment has been duly and validly executed by Parent and Merger Sub and constitutes a valid, legal and binding agreement enforceable against each of them in accordance with its terms (other than to the extent enforceability is limited by any provisions of the Agreement). 5. NO WAIVERS OR RELEASES. No waiver or release of any right or claim in favor of any party under the Agreement or the Loan Agreement shall arise or be deemed to arise as a result of such party's execution of this Amendment. 6. EFFECT ON AGREEMENT. Except as otherwise provided by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms. BARAN GROUP, LTD. By: /s/ Meir Dor ----------------------------------------- Meir Dor Chairman of the Board BARAN ACQUISITION SUB, INC. By: /s/ Meir Dor ----------------------------------------- Meir Dor, President O2WIRELESS SOLUTIONS, INC. By: /s/ Andrew D. Roscoe ----------------------------------------- Andrew D. Roscoe, President, Chairman and CEO 2