Stock Acquisition Agreement [Amendment] - SkyMall Inc. and Disc Publishing Inc.
AMENDMENT TO STOCK ACQUISITION AGREEMENT
THIS AGREEMENT (the "Amendment"), is made as of September 20, 1999, (the
"Effective Date") by and between SKYMALL, INC., a Nevada corporation ("SkyMall"
or "Buyer") and DISC PUBLISHING, INC., a Utah corporation (the "Company"), Lorne
Grierson, Warren Osborn, Flamingo Partnership, Kyle Love, Bart Howell and David
E. Hardy (collectively as "Stockholders").
A. SkyMall, the Company and the Stockholders have previously entered into a
Stock Purchase Agreement, dated August 26, 1999 (the "Stock Acquisition
Agreement").
B. SkyMall, the Company and the Stockholders now desire to amend the Stock
Acquisition Agreement to change several of the terms and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals, the execution of the
Stock Acquisition Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree:
I. The Stock Acquisition Agreement is amended as follows:
A. SECTION 1.3(c) is deleted and replaced with:
1.3(c). If the closing price of the shares of common stock of SkyMall
as reported on NASDAQ on the Closing Date is less than $9.00, SkyMall
shall issue an additional 25,000 shares of SkyMall common stock to the
Stockholders.
B. SECTION 2(e) is added:
(e) Each Stockholder represents that he or she is: (i) a sophisticated
investor; and (ii) an "accredited investor," as that term is defined
in Rule 501 of Regulation D, or is a wealthy and sophisticated
investor that is able to bear the economic risk of the investment for
an indefinite period of time and that, by virtue of each Stockholder's
knowledge and experience in financial and business matters is capable
of evaluating the merits and risks of the investment.
C. SECTION 6.10 is added as follows:
6.10 The Stockholders warrant that they will not transfer, sell,
assign or in any way dispose of any shares of SkyMall common stock
acquired as a result of this Agreement until thirty (30) days after
the release of SkyMall next quarterly earnings report. The parties
acknowledge and agree that this date is currently contemplated as on
or about December 15, 1999. The Stockholders further warrant that they
shall not take any action that shall violate the rules allowing this
transaction to be accounted for as pooling of interests.
D. SECTION 8.8 is deleted and replaced with:
8.8 On or prior to the Closing Date, the Buyer and Lorne Grierson
shall have executed an employment contract and non-competition
agreement.
II. Capitalized terms used herein and not defined herein shall have their
respective meanings assigned to them in the Stock Purchase Agreement.
III. The Stock Purchase Agreement, as amended by this Amendment, shall remain in
full force and effect following the execution and delivery of this
Amendment. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same agreement. This Amendment shall be governed by
and construed under and pursuant to the laws of the State of Arizona,
without regard to its principles of conflicts of laws.
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IV. In the event of a conflict between the terms and conditions of this
Amendment and the terms and conditions of the Stock Purchase Agreement, the
terms and conditions of this Amendment shall control.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties hereto
as of and on the date first above written.
BUYER:
SkyMall, Inc.
ATTEST:
/s/ Steven T. Lawrence By: /s/ Christine A. Aguilera
----------------------------------- ----------------------------------
Assistant Secretary Christine A. Aguilera
Title: Executive Vice President of
Business Development
Address: 1520 East Pima Street
Phoenix, AZ 85034
COMPANY:
Disc Publishing, Inc.,
a Utah corporation
ATTEST:
/s/ By: /s/ Lorne Grierson
----------------------------------- ----------------------------------
Assistant Secretary Lorne Grierson
Title: President and Chief Executive
Officer
Address: 1875 South State Street,
Suite 3000
Orem, Utah 84097
STOCKHOLDERS:
By: /s/ Warren Osborn
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Warren Osborn
By: /s/ Lorne Grierson
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Lorne Grierson
By: /s/ Kyle Love, Trustee
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Kyle Love
On behalf of KCL NACT Unitrust
By: /s/ Bart Howell
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Bart Howell
By: /s/ David E. Hardy
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David E. Hardy
FLAMINGO PARTNERSHIP
By: /s/ R. Roney
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