AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
This AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (the
"Agreement") is made and entered into as of December 28, 1999, by and among
Micromuse Inc., a Delaware corporation ("Acquiror"), CAN Acquisition Corp., a
Delaware corporation ("Merger Sub"), Xxxxxx Xxxxxxxxx Networking, Inc., a
Delaware corporation ("Target"), and each of the undersigned stockholders of
Target (each a "Target Stockholder" or "Founder") and, collectively, the "Target
Stockholders" or "Founders"). Capitalized terms not defined herein shall have
the meaning set forth in the Agreement and Plan of Reorganization (as defined
below).
RECITALS
WHEREAS, the parties have previously entered into an Agreement and
Plan of Reorganization dated as of November 2, 1999 (the "Agreement and Plan of
Reorganization");
WHEREAS, the parties intended that pursuant to the Agreement and
Plan of Reorganization Merger Sub be merged with and into Target, with Target
continuing as the Surviving Corporation;
WHEREAS, Section 1.6(e) of the Agreement and Plan of Reorganization
erroneously stated that "At the Effective Time, each share of Common Stock, no
par value, of Merger Sub ("Merger Sub Common Stock"), issued and outstanding
immediately prior to the Effective Time shall continue to evidence ownership of
one share of capital stock of the Surviving Corporation;" and
WHEREAS, the parties intend pursuant to this Amendment to correct
Section 1.6(e) of the Agreement and Plan of Reorganization.
NOW, THEREFORE, in consideration of the covenants and
representations set forth herein, and for other good and valuable consideration,
the parties agree as follows:
1.1 Amendment to Section 1.6(e). Section 1.6(e) of the Agreement and
Plan of Reorganization is hereby amended and restated to read in its entirety as
follows:
"At the Effective Time, each share of Common Stock, $.001 par value,
of Merger Sub ("Merger Sub Common Stock"), issued and outstanding
immediately prior to the Effective Time shall be converted into and
exchanged for one validly issued, fully paid and nonassessable share of
Common Stock, $.001 par value, of the Surviving Corporation. Each stock
certificate of Merger Sub evidencing ownership of any such shares shall
continue to evidence ownership of such shares of capital stock of the
Surviving Corporation.
1.2 Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one 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.
IN WITNESS WHEREOF, Target, Acquiror and Merger Sub have caused this
Amendment to be executed and delivered by their respective officers thereunto
duly authorized, and the Target Stockholders have executed this Amendment, all
as of the date first written above.
"TARGET":
By: /s/ Xxxxxxx Xxxx
--------------------------------------
"ACQUIROR":
By: /s/ Xxxxx Xx Xxxxx
--------------------------------------
"MERGER SUB":
By: /s/ Xxxxx Xx Xxxxx
--------------------------------------
"TARGET STOCKHOLDERS":
/s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxx
-----------------------------------------
Xxxxxxx Xxxx
SIGNATURE PAGE TO AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
