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EXHIBIT 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT (this "Amendment"), dated as of December 28, 2000, to
the Agreement and Plan of Merger, dated as of November 10, 2000, among Xxxxxxxx,
Inc., a Minnesota corporation ("Parent"), IFT West Acquisition Company, a
Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"),
International Flex Holdings, Inc., a Delaware corporation (the "Company") and
all of the stockholders of the Company (the "Stockholders").
PRELIMINARY STATEMENT
Parent, Merger Sub, the Company and the Stockholders entered into an
agreement and plan of merger, dated as of November 10, 2000 (the "Merger
Agreement"). Subsequent to the execution and delivery of the Merger Agreement,
certain developments occurred as a result of which the parties thereto
determined that certain adjustments would be appropriate in the Merger
Agreement. In addition, certain parties thereto desire to update the Parent
Disclosure Letter and the Company Disclosure Letter attached thereto.
Accordingly, the parties hereto agree as follows:
1. The table at the end of section 1.7(a) shall be deleted in its entirety and
replaced with the following:
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EACH SHARE OF THE FOLLOWING CLASS: WILL BE CONVERTED INTO THE FOLLOWING
NUMBER OF SHARES OF PARENT STOCK:
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Common Stock 1.16996136
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Class A Stock 1.19696195
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Class B Stock 1.31442475
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Preferred Stock 1.21149700
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2. The table at the end of section 1.7(d) shall be deleted in its entirety and
replaced with the following:
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CLASS OF SHARES: NUMBER OF SHARES NUMBER OF SHARES OF
OUTSTANDING PRIOR TO PARENT STOCK ISSUABLE IN
EFFECTIVE TIME: RESPECT OF THE INDICATED
CLASS OF SHARES:
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Common Stock none none
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Class A Stock none none
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Class B Stock 2,038,462 2,679,405
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Preferred Stock 5,000,000 6,057,485
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3. Section 1.10(c) shall be amended by adding the following clause after the
"(ii)" and before the word "cause" in the last sentence of such section:
"provided that the Parent stock continues to be listed on the Nasdaq
National Market,".
4. The table at the end of section 1.10(f) shall be deleted in its entirety and
replaced with the following:
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CLASS OF OPTION NUMBER OF SHARES NUMBER OF SHARES OF
OR WARRANT: UNDERLYING THE PARENT STOCK UNDERLING THE
OPTION OR WARRANT: CONVERTED OPTION OR
WARRANT:
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Company Stock Options 302,140 shares of 353,492
Common Stock
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Nardin Option 100,000 shares of 116,996
Common Stock
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IFT Warrant 404,858 shares of 484,600
Class A Stock
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5. Section 5.11 shall be amended by adding the following clause after the word
"Time" in the preliminary sentence of such section:
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"and provided that the Parent stock continues to be listed on the
Nasdaq National Market".
6. Section 6.2(e)(i) shall be amended by adding the following clause after the
word "therein":
", as such agreement is amended, restated or modified from time to
time".
7. Section 6.2(e)(ii) shall be amended by adding the following clause after the
word "herewith":
", as such agreement is amended, restated or modified from time to
time".
8. Section 6.2(g) shall be deleted in its entirety and replaced with the
following:
"On or prior to the Effective Time, Parent shall execute and deliver to
the Stockholders a governance agreement among Parent and certain
stockholders (the "Governance Agreement") in the form of Exhibit 6.2(g)
hereto.
9. The Parent Disclosure Letter attached hereto as exhibit A shall supercede
the Parent Disclosure Letter referred to in the preamble to Article IV of the
Merger Agreement for all purposes; provided, however, that the Parent Disclosure
Letter delivered upon execution of the Merger Agreement on November 10, 2000
shall continue to apply with respect to the representations and warranties of
Parent and Merger Sub made in the Merger Agreement as of that date.
10. The Company Disclosure Letter attached hereto as exhibit B shall supercede
the Company Disclosure Letter referred to in the preamble to Article II of the
Merger Agreement for all purposes; provided, however, that the Company
Disclosure Letter delivered upon execution of the Merger Agreement on November
10, 2000 shall continue to apply with respect to the representations and
warranties of the Company made in the Merger Agreement as of that date.
11. The Governance Agreement attached hereto as exhibit 6.2(g) shall supercede
the Governance Agreement attached to the Merger Agreement as exhibit 6.2(g) for
all purposes.
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12. The legal opinion of Xxxxxxxxx & Xxxxxx, P.L.L.P. attached hereto as exhibit
6.2(m) shall supercede the legal opinion of Xxxxxxxxx & Xxxxxx, P.L.L.P.
attached to the Merger Agreement as exhibit 6.2(m) for all purposes.
13. From and after the date hereof, all references to the Merger Agreement in
the Merger Agreement and any ancillary documents in connection therewith shall
mean the Merger Agreement as amended hereby.
14. Except as otherwise expressly set forth in this Amendment, nothing herein
shall be deemed to constitute an amendment, modification or waiver of any of the
terms and conditions of the Merger Agreement or the exhibits thereto, all of
which terms and conditions shall remain in full force and effect as originally
constituted and the undersigned shall remain obligated pursuant to the terms
thereunder.
15. This Amendment shall be governed by and construed and enforced in
accordance with the internal laws of the State of Minnesota without regard to
the principles of conflicts of law thereof.
16. This Amendment may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement. In the event
that any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
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IN WITNESS WHEREOF, each of the parties has caused this First Amendment
to be executed on its behalf by its respective officer thereunto duly
authorized, all as of the day and year first above written.
XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
IFT WEST ACQUISITION COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
INTERNATIONAL FLEX HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President
IFH STOCKHOLDERS:
XXXXXXXXXXXX VENTURE PARTNERS V, L.P.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: General Partner
SOUND BEACH TECHNOLOGY PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
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