Exhibit 2.1
FIRST AMENDMENT TO MERGER AGREEMENT
THIS FIRST AMENDMENT TO MERGER AGREEMENT (this "Amendment") is entered
into as of January 20, 2004, by and among CIBER, Inc., a Delaware corporation
("CIBER"), Xxxxxx Acquisition Corporation, a Tennessee corporation and a wholly
owned subsidiary of CIBER ("CIBER SUB"), and SCB Computer Technology, Inc., a
Tennessee corporation ("SCB").
RECITALS
A. CIBER, CIBER SUB and SCB are parties to that certain Agreement and
Plan of Merger dated as of October 24, 2003 (the "Merger Agreement" or
"Agreement"), concerning the proposed merger of CIBER SUB with and into SCB and
matters related thereto.
B. The parties have agreed to amend certain terms of the Merger
Agreement, including modifying the price CIBER will pay for each share of SCB
Common Stock in the Merger and adding as a condition to the Closing that SCB
shall settle certain litigation pending against SCB for a sum not to exceed
$633,000, including all costs, expenses and attorney's fees to be paid to or on
behalf of the plaintiffs in such litigation.
C. The parties desire to amend the Merger Agreement in accordance with
the specific terms and conditions contained in the Merger Agreement and in this
Amendment. Capitalized terms used in this Amendment without definition have the
meanings given them in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. The Merger Agreement is hereby specifically referred to and
incorporated as a part of this Amendment. In all respects other than as
specifically herein amended, the terms and conditions of the Merger Agreement
shall continue in full force and effect. SCB hereby represents and warrants to
CIBER and CIBER SUB that the representations contained in Article III of the
Merger Agreement are true and correct as of the date hereof.
2. The definition of Option Exchange Ratio is hereby amended by
deleting the amount $2.15 and inserting in its place $2.13.
3. Section 2.5(d) of the Merger Agreement is hereby amended by deleting
the amount $2.15 from the phrase therein stating "shall be exchanged for Stock
Consideration and Cash Consideration with an aggregate value of $2.15..." and
inserting in its place $2.13, such that the phrase states "shall be exchanged
for Stock Consideration and Cash Consideration with an aggregate value of
$2.13..." For all purposes in or relating to the Merger Agreement, the Merger
Consideration shall not exceed an aggregate value of $2.13 per share of SCB
Common Stock.
4. The Merger Agreement is hereby further amended by deleting Section
5.1(b)(xix) in its entirety and inserting in lieu thereof the following:
"(xix) incur or pay legal, financial or accounting fees or
expenses in connection with the negotiation, execution or performance of this
Agreement in excess of $1,875,000."
5. The Merger Agreement is hereby further amended by deleting Section
6.3(c) in its entirety and inserting in lieu thereof the following:
"(c) CIBER shall have received a certificate signed by an
executive officer of SCB, dated as of the Closing Date, certifying to
the matters set forth in Sections 6.3(a), (b), (d), (e) and (k), and a
certificate signed by the secretary of SCB, dated as of the Closing
Date, certifying the charter and by-laws of SCB and the resolutions of
the SCB directors and the shareholders of SCB approving this Agreement
and the transactions contemplated hereby."
6. The Merger Agreement is hereby further amended by adding the
following sentence at the end of Section 6.3(d):
"Notwithstanding this condition to CIBER and CIBER SUB's
obligation as stated in this Section 6.3 (d), any legal proceeding in
which claims are made that are solely related to the changes to the
Merger Agreement set forth in this Amendment shall not affect the
obligation of CIBER to effect the transactions contemplated by the
Merger Agreement."
7. The Merger Agreement is hereby further amended by deleting Section
6.3(e) in its entirety and inserting in lieu thereof the following:
"(e) The litigation entitled XXXXXXX XXXXX AND XXXXXXX XXXXXX,
on behalf of themselves and collectively for all similarly situated
employees, vs. SCB COMPUTER TECHNOLOGY, INC., Docket No. 03-2925 MI V
and any related proceedings ("Xxxxx Litigation"), shall have been
settled by the parties thereto for an amount not to exceed that which
is set forth in a letter agreement dated January 16, 2004 between
counsel for SCB and counsel for the plaintiff class in the Xxxxx
Litigation (the "January 16 Letter"), including attorney's fees for the
plaintiff class; and a settlement agreement or substantially similar
agreement pertaining thereto, in form and substance consistent with the
January 16 Letter and reasonably satisfactory to CIBER, shall have been
approved by order of The United States District Court for the Western
District of Tennessee, Western Division, an executed copy of which
order shall have been delivered to CIBER."
8. CIBER hereby approves, in accordance with Section 5.1(b)(xiv) of the
Merger Agreement, the expenditures by SCB of the amounts set forth in the
January 16 Letter.
9. CIBER, CIBER SUB and SCB hereby represent and warrant to each other
that this Amendment has been duly authorized, executed and delivered by each
such party and constitutes a valid and binding agreement of each such party
enforceable against such party in accordance with its terms.
10. This Amendment may be executed by the parties hereto in
counterparts, each of which shall be deemed to be an original, but all such
counterparts taken together shall constitute a single instrument.
*[Signature Page Follows]*
IN WITNESS WHEREOF, the parties have caused this First Amendment to
Merger Agreement to be executed as of the date set forth above.
CIBER, INC.
By: /s/ Xxxxx Xxxxxx
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Its: Vice President
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XXXXXX ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxxxx
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Its: Vice President
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SCB COMPUTER TECHNOLOGY, INC.
By: /s/ X. Xxxxx Cobb_______________
Its: President & CEO ______________