EXHIBIT 10.1(b)
AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment"),
dated as of October 6, 2000, is entered into by and among XXX XXXXXXXXXXX, a
Maryland corporation ("Parent"), NCR MERGER SUB PARENT, INC., a Delaware
corporation ("Merger Sub Parent"), NCR MERGER SUB INC., a Delaware corporation
("Merger Sub"), and 4FRONT TECHNOLOGIES, INC., a Delaware corporation (the
"Company").
RECITALS
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WHEREAS, Parent, Merger Sub and the Company are parties to that
certain Agreement and Plan of Merger, dated as of August 2, 2000, by and among
Parent, Merger Sub and the Company (the "Agreement"); and
WHEREAS, Merger Sub is a wholly-owned subsidiary of Merger Sub Parent
and Merger Sub Parent is a wholly-owned subsidiary of Parent; and
WHEREAS, the Parent, Merger Sub and the Company wish to amend the
Agreement pursuant to Section 9.5 thereof in order to, among other things, make
Merger Sub Parent a party thereto;
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto,
intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
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1.1. Unless otherwise defined herein, all capitalized terms used herein
and defined in the Agreement shall have the meaning ascribed to such
terms in the Agreement.
2. AMENDMENT OF AGREEMENT
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2.1. The Agreement shall be amended as follows:
(a) The definition of "Parties" in Section 1.1 of the Agreement
shall be deleted and replaced with the following text:
"Parties" shall mean Parent, Merger Sub Parent, Merger Sub and
the Company.
(b) The following definition shall be added to Section 1.1 of the
Agreement:
"Merger Sub Parent" shall mean NCR Merger Sub Parent, Inc., a
Delaware corporation.
(c) Article II of the Agreement shall be renamed "MERGER SUB PARENT
AND MERGER SUB".
(d) Section 2.1 of the Agreement shall be deleted in its entirety
and replaced with the following text:
(a) Organization of Merger Sub. Parent has organized Merger
Sub for the sole purpose of effectuating the Merger
contemplated herein. The authorized capital stock of Merger
Sub consists of 1,000 shares of common stock, par value
$0.01 per share, all of which shares were issued to Parent
at a price of $1.00 per share and subsequently transferred
by Parent to Merger Sub Parent in exchange
for 1,000 shares of common stock, par value $0.01 per share
of Merger Sub Parent.
(b) Organization of Merger Sub Parent. Parent has
organized Merger Sub Parent for the sole purpose of
effectuating the Merger contemplated herein. The authorized
capital stock of Merger Sub Parent consists of 1,000 shares
of common stock, par value $0.01 per share, all of which
shares have been issued to Parent in exchange for 1,000
shares of common stock, par value $0.01 per share of Merger
Sub.
(e) Article V of the Agreement shall be renamed "REPRESENTATIONS AND
WARRANTIES OF PARENT, MERGER SUB PARENT AND MERGER SUB".
(f) The introductory sentence of Article V of the Agreement shall be
deleted in its entirety and replaced with the following text:
Parent, Merger Sub Parent and Merger Sub hereby represent and
warrant to the Company as follows:
(g) Section 5.1 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.1 Organization and Qualification. Each of Parent, Merger Sub
Parent and Merger Sub (I) is a corporation duly organized,
validly existing and, to the extent applicable, in good
standing under the laws of its jurisdiction of
incorporation; (ii) has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as now being conducted; and (iii) is
duly qualified or licensed to do business and, to the
extent applicable, is in good standing, in each
jurisdiction in which the properties owned, leased or
operated by it or the nature of its activities makes such
qualification necessary, except in such jurisdictions where
the failure to be so duly qualified or licensed and in good
standing has not had and is not reasonably likely to have,
either individually or in the aggregate, a Material Adverse
Effect on Parent, Merger Sub Parent or Merger Sub,
respectively.
(h) Section 5.3 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.3 Authorization and Validity of Agreement with respect to
Merger Sub Parent and Merger Sub. Each of Merger Sub Parent
and Merger Sub has all requisite corporate power and
authority to enter into this Agreement and has all
requisite corporate power and authority to perform its
respective obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery
and performance by each of Merger Sub Parent and Merger Sub
of this Agreement and the consummation by Merger Sub Parent
and Merger Sub of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate
action on the part of Merger Sub Parent and Merger Sub.
This Agreement has been duly executed and delivered by each
of Merger Sub Parent and Merger Sub and is a legal, valid
and binding obligation of each of Merger Sub Parent and
Merger Sub, enforceable against each of Merger Sub Parent
and Merger Sub in accordance with its terms (except insofar
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, or by principles
governing the availability of equitable remedies).
(i) Section 5.4 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.4 No Conflict with Instruments. The execution and delivery by
Parent, Merger Sub Parent and Merger Sub of this Agreement
do not, and the performance by Parent, Merger Sub Parent
and Merger Sub of their respective obligations hereunder,
and the consummation by Parent, Merger Sub Parent and
Merger Sub of the Merger and the other transactions
contemplated herein will not, conflict with or violate the
charter or bylaws of Parent, Merger Sub Parent or Merger
Sub or the charter or bylaws of any corporate Subsidiary of
Parent or the partnership agreement of any partnership
Subsidiary of Parent.
(j) Section 5.5 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.5 No Prior Activities of Merger Sub Parent or Merger Sub.
Merger Sub Parent and Merger Sub were formed by Parent
solely for the purpose of engaging in the transactions
contemplated hereby, and have engaged in no other business
activities and have conducted their operations only as
contemplated hereby.
(k) Section 5.6 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.6 Information Supplied. None of the information supplied or
to be supplied by Parent, Merger Sub Parent or Merger Sub
for inclusion or incorporation by reference in any
documents filed or to be filed with the Commission or any
other Governmental Entity in connection with the
transactions contemplated hereby, including the Proxy
Statement, will, at the respective times such documents are
filed (and also in the case of the Proxy Statement, at the
date the Proxy Statement is first mailed to the Company's
stockholders or at the time of the Company Stockholder
Meeting (as hereinafter defined)), contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they are made, not misleading (or necessary to
correct any statement in any earlier communication), except
that no representation is made by Parent, Merger Sub Parent
or Merger Sub with respect to information supplied by the
Company in writing specifically for inclusion or
incorporation by reference therein.
(l) Section 5.7 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.7 Brokers. No broker, investment banker, financial advisor or
other Person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of
Parent, Merger Sub Parent or Merger Sub, and Parent agrees
to indemnify and hold the Company harmless from and against
any and all claims, liabilities or obligations with respect
to any other such fees, commissions, expenses or claims for
indemnification or contribution asserted by any Person.
(m) Section 5.9 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.9 Ownership of Company Capital Stock. Neither Parent, Merger
Sub Parent nor Merger Sub is, nor at any time during the
last three years has it been, an "interested stockholder"
of the Company as defined in Section 203 of the DGCL (other
than as contemplated by this Agreement). Neither Parent,
Merger Sub Parent nor Merger Sub owns (directly or
indirectly, beneficially or of record) or is a party to any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, in each case,
any shares of capital stock of the Company (other than as
contemplated by this Agreement).
(n) Section 5.10 of the Agreement shall be deleted in its entirety
and replaced with the following text:
5.10 Legal Proceedings. There is no (i) suit, action or
proceeding pending of which Parent, Merger Sub Parent,
Merger Sub, or any of Parent's Subsidiaries have received
notice or, to the knowledge of Parent, Merger Sub Parent
or Merger Sub, any investigation pending or any suit,
action, proceeding or investigation threatened, against
Parent, Merger Sub Parent, Merger Sub, or any Subsidiary
of Parent which seeks to restrain, enjoin or delay the
consummation of the Merger or any of the other
transactions contemplated hereby or which seeks damages in
connection therewith; or (ii) Injunction of any type
referred to in Section 7.1(c) of which Parent, Merger Sub
Parent, Merger Sub, or any of Parent's Subsidiaries has
received notice which has been entered or issued and is in
effect.
(o) Article V of the Agreement shall be amended by adding the
following text as Section 5.12:
5.12 Effect of Amendment to Agreement and Plan of Merger. The
addition of NCR Merger Sub Parent as a Party to the
Agreement as contemplated by this Amendment shall not
reduce the Per Share Amount, cause any material delay in
the consummation of the Merger, or subject the Company's
stockholders, generally, or any class of such
stockholders, generally, to additional tax liabilities
that are primarily attributable to the Merger and the
addition of Merger Sub Parent as a party to the Agreement.
(p) The second sentence of Section 6.1(a) of the Agreement shall be
amended by adding the words "Merger Sub Parent" after the phrase
"in any manner adverse to Parent."
(q) The first sentence of Section 6.7 of the Agreement shall be
amended by replacing the phrase "Each of the Company, Parent and
Merger Sub" with "Each of the Company, Parent, Merger Sub Parent
and Merger Sub".
(r) Section 6.7(a)(iii) shall be deleted in its entirety and
replaced with the following text: (iii) using commercially
reasonable efforts to obtain all necessary consents, approvals,
waivers, licenses, permits, authorizations, registrations,
qualifications, or other permission or action by, and giving all
necessary notices to and making all necessary filings with and
applications and submissions to, any Governmental Entity or
other Person required to be obtained or made by Parent, Merger
Sub Parent, Merger Sub, the Company or any of their Subsidiaries
in connection with the Merger or the taking of any action
contemplated thereby or by this Agreement or the Option
Agreement;
(s) Section 6.7(b) of the Agreement shall be deleted in its entirety
and replaced with the following text:
(b) In its capacity as the sole stockholder of Merger Sub
Parent, Parent will cause Merger Sub Parent to approve and
adopt this Agreement and to take all corporate action
necessary on its part to consummate the transactions
contemplated hereby and Merger Sub Parent's obligations
under this Agreement. In its capacity as the sole
stockholder of Merger Sub, Merger Sub Parent will cause
Merger Sub to approve and adopt this Agreement and to take
all corporate action necessary on its part to consummate
the transactions contemplated hereby and Merger Sub's
obligations under this Agreement. Except as contemplated by
this Agreement, Merger Sub Parent and Merger Sub will not
conduct any other business, and will have no other assets
or liabilities.
(t) Section 6.7(d) of the Agreement shall be amended by inserting
the text ", Merger Sub Parent" after the phrase "(ii) any
failure of the Company, Parent".
(u) Section 6.8(b) of the Agreement shall be amended by inserting
the text ", Merger Sub Parent" after the following two phrases:
(i) "oppose the Merger and will cooperate with Parent" and (ii)
"that failing so to cooperate with such third party or
cooperating with Parent".
(v) The second sentence of Section 6.9(a) of the Agreement shall be
amended by replacing the phrase "Parent and Merger Sub agree
that all rights" with "Parent, Merger Sub Parent and Merger Sub
agree that all rights".
(w) Section 6.9(e) of the Agreement shall be deleted in its entirety
and shall be replaced with the following text:
(e) This Section 6.9 shall survive consummation of the
Merger and is intended to benefit the Indemnified
Employees, and shall be enforceable by each Indemnified
Employee, as well as his or her representatives, and shall
be binding on all successors and assigns of Parent, Merger
Sub Parent, Merger Sub, and the Surviving Entity.
(x) Section 7.2 of the Agreement shall be amended by inserting the
words ", Merger Sub Parent" after the phrase "The obligation of
Parent".
(y) The first sentence of Section 7.3(a) of the Agreement shall be
amended by inserting the text ", Merger Sub Parent" after the
phrase "The representations and warranties of Parent".
(z) Section 7.3(b) of the Agreement shall be deleted in its entirety
and shall be replaced with the following text:
(b) Covenants. Parent, Merger Sub Parent and Merger Sub
shall have performed in all material respects all
obligations, and shall have complied in all material
respects with all agreements and covenants, to be performed
or complied with by them, respectively, under this
Agreement, and the Company shall have received an omnibus
certificate of the appropriate officers of Parent, Merger
Sub Parent and Merger Sub to such effect.
(aa) Section 8.1(a) of the Agreement shall be deleted in its entirety
and shall be replaced with the following text:
(a) By mutual written consent duly authorized by the
boards of directors of Parent, Merger Sub Parent, Merger
Sub and the Company prior to the Effective Time; or
(bb) Section 8.1(i) of the Agreement shall be amended by inserting
the words ", Merger Sub Parent" after the phrase "By the
Company, if Parent".
(cc) Section 8.2(b) of the Agreement shall be amended by inserting
the words ", Merger Sub Parent" after the phrase "and other
Persons and assumed by Parent".
(dd) The first sentence of Section 9.1 of the Agreement shall be
amended by inserting the words ", Merger Sub Parent" after the
phrase "The respective representations and warranties of
Parent,".
(ee) Section 9.2(a) of the Agreement shall be amended by replacing
the phrase "If to Parent or Merger Sub" with "If to Parent,
Merger Sub Parent or Merger Sub".
(ff) Section 9.3 of the Agreement shall be deleted in it entirety and
replaced with the following text:
9.3 Entire Agreement. This Agreement, as amended by that
certain Amendment to Agreement and Plan of Merger, dated as
of October 6, 2000, by and among the Parties, (including
the Exhibits and other documents referred to herein)
constitutes the entire agreement among the Parties and
supersedes all prior agreements and understandings, oral
and written among the Parties with respect to the subject
matter hereof.
(gg) Exhibit A of the Agreement shall be deleted in its entirety and
replaced with the form of Certificate of Merger attached to this
Amendment as Exhibit A.
2.2. Except as amended hereby, the Parties ratify and confirm the terms of
the Agreement.
3. COUNTERPARTS
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3.1. This Amendment may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the
date first above written.
XXX XXXXXXXXXXX
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Vice President, Business Development,
Quality and Support
NCR MERGER SUB PARENT, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Vice President
NCR MERGER SUB INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Vice President
4FRONT TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Chairman and Chief Executive Officer
