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EXHIBIT(d)(5)
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of May 25, 2000 (this
"Amendment") by and between Xxxxx Systems Group, Inc., a Delaware corporation
("Xxxxx Systems"), ASG Sub, Inc., a Delaware corporation ("ASG Sub") and
Viasoft, Inc., a Delaware corporation ("Viasoft").
RECITALS
X. Xxxxx Systems, ASG Sub and Viasoft have entered into that certain Agreement
and Plan of Merger dated as of April 27, 2000 (the "Merger Agreement");
X. Xxxxx Systems, ASG Sub and Viasoft desire to amend the Merger Agreement to
revise Annex 1 and Annex 2 thereto;
THEREFORE, the parties agree as follows:
1. Subclause (c) of the first paragraph of Annex 1 to the Merger
Agreement is hereby deleted and replaced with the following:
(c) at any time after the date of the Agreement and before
12:00 Midnight on the Expiration Date (or in the case of any
action by a Governmental Entity described in (i) or (ii)
below, at any time before the acceptance of such Shares for
payment or the payment therefor (whether or not any Shares
have heretofore been accepted for payment or paid pursuant to
the Xxxxx Systems Offer)), any of the following conditions
exists and is continuing:
2. Subclause (c) of the first paragraph of Annex 2 to the Merger
Agreement is hereby deleted and replaced with the following:
(c) at any time after the date of the Agreement and before
12:00 Midnight on the Expiration Date (or in the case of any
action by a Governmental Entity described in (i) or (ii)
below, at any time before the acceptance of such Shares for
payment or the payment therefor (whether or not any Shares
have heretofore been accepted for payment or paid pursuant to
the Viasoft Offer)), any of the following conditions exists
and is continuing:
3. Except as specifically modified by this Amendment, all of the terms of
the Merger Agreement shall continue in full force and effect.
4. This Amendment will be governed by, and construed in accordance with,
the laws of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflict of laws thereof.
5. This Amendment may be executed in counterparts, all of which taken
together shall constitute one agreement.
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IN WITNESS WHEREOF, Xxxxx Systems, ASG Sub and Viasoft have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
XXXXX SYSTEMS GROUP, INC. VIASOFT, INC.
/s/ XXXXXXX X. XXXXXX /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President Title: Chairman of the Board
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and Chief Financial Officer and Chief Executive
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Officer
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ASG SUB, INC.
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Senior Vice President
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and Chief Financial Officer
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