Exhibit (d)(5)
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
Among
REUTERS GROUP PLC,
PROTON ACQUISITION CORPORATION
and
XXXXXX.XXX, INC.
Dated as of March 17, 2003
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED AGREEMENT AND PLAN OF
MERGER, dated as of March 17, 2003 (this "Amendment No. 1"), among Reuters Group
PLC, a public limited company organized under the laws of England and Wales
("Parent"), Proton Acquisition Corporation, a Delaware corporation and an
indirect wholly owned subsidiary of Parent ("Purchaser"), and Xxxxxx.xxx, Inc.,
a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into an Amended and Restated
Agreement and Plan of Merger dated as of February 24, 2003 (the "Amended and
Restated Merger Agreement");
WHEREAS, the parties hereto desire to make certain amendments to the
Amended and Restated Merger Agreement in accordance with Sections 9.2 and 9.12
of the Amended and Restated Merger Agreement;
WHEREAS, the parties hereto desire that, except as set forth herein,
the Amended and Restated Merger Agreement shall remain in full force and effect;
and
WHEREAS, capitalized terms used herein and not defined herein shall
have the respective meanings given in the Amended and Restated Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth herein, the parties hereto agree on and as of
the date of this Amendment No. 1 as follows:
Section 1. The second paragraph of Section 6.5(b) of the Amended and
Restated Merger Agreement is amended and restated to read as follows:
Under the restricted share program, Parent shall make all necessary
arrangements so that each holder of a cancelled Program 1 Option (an "Optionee")
can be awarded an entitlement from the Reuters Employee Share Ownership Trust
(the "Trust") to a number of Reuters Group PLC ordinary shares, nominal value
L0.25 per share (the "Ordinary Shares"), equal to the number of shares of
Company Common Stock for which such holder's Program 1 Option would have become
exercisable had it not been cancelled (the "Option Shares"), multiplied by the
Restricted Share Exchange Ratio (as hereinafter defined), rounding any
fractional Ordinary Shares to the nearest whole share. The "Restricted Share
Exchange Ratio" shall mean (i) the difference between the Per Share Amount and
the per share exercise price of the Program 1 Option (the "Option Spread
Amount") divided by (ii) the dollar equivalent (as determined by Parent at or
about the Effective Time) of the average of the closing middle market quotation
for an Ordinary Share derived from the Daily Official List of the London Stock
Exchange for the ten consecutive trading days in the period ending five days
prior to the Effective Time. The Ordinary Shares allocated to each Optionee
shall vest on each Vesting Date
in the same proportion that the Program 1 Options would have vested. "Vesting
Date" means each date after the Effective Time on which the Optionee's Program 1
Options would have become exercisable had they not been cancelled as of the
Effective Time. An Optionee shall have no rights with respect to any Ordinary
Shares until the applicable Vesting Date.
Section 2. Except as set forth herein, the Amended and Restated Merger
Agreement shall remain in full force and effect. All references to "this
Agreement" in the Amended and Restated Merger Agreement shall be references to
the Amended and Restated Merger Agreement as amended pursuant to this Amendment
No. 1.
Section 3. Counterparts. This Amendment No. 1 may be executed in two or
more counterparts, all of which will be considered one and the same agreement
and will become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 4. GOVERNING LAW. THIS AMENDMENT NO. 1 WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE, EXECUTED, DELIVERED AND PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO ANY APPLICABLE PRINCIPLES OF CONFLICTS OF LAW, EXCEPT AS
OTHERWISE REQUIRED BY THE DGCL.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
Amendment No. 1 to be signed by their respective officers thereunto duly
authorized as of the date first written above.
REUTERS GROUP PLC
By /s/ Xxxxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Attorney in Fact
PROTON ACQUISITION CORPORATION
By /s/ Xxxxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: President
XXXXXX.XXX, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Chief Financial Officer
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