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EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this "Amendment"),
dated as of February 7, 1996, is made by and among Xxxxx Systems, Inc., a
Delaware corporation (the "Company"), The Continuum Company, Inc., a Delaware
corporation ("Parent"), and Continuum Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("Merger Sub").
WITNESSETH:
WHEREAS, the parties hereto are parties to that certain Agreement and Plan
of Merger (the "Original Agreement") dated as of December 10, 1995, relating to
the merger of Merger Sub into the Company; and
WHEREAS, the parties hereto desire to amend the Original Agreement pursuant
to Section 6.3 thereof (the Original Agreement, as so amended, being referred to
herein as the "Agreement");
NOW, THEREFORE, in consideration of the premises, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL AGREEMENT
SECTION 1.1 Effective Time of the Merger. Section 1.2 of the Original
Agreement is hereby amended to substitute "Within two business days" for "As
soon as practicable."
SECTION 1.2 Conversion Number. Section 1.3(a) of the Original Agreement is
hereby amended to replace the number 0.355555 appearing in the fourth line
thereof with the number 0.315.
SECTION 1.3 Absence of Certain Changes. Section 2.9 of the Original
Agreement is hereby amended to add the following sentence thereto:
Notwithstanding anything in this Agreement to the contrary, the
representations and warranties set forth in this Section 2.9 shall be
deemed to have first been made on February 7, 1996 and the SEC Reports of
the Company shall be deemed to include all such forms, reports and
documents filed by the Company with the SEC up to and including such date.
SECTION 1.4 Meetings of Stockholders. The first sentence of Section 4.9 of
the Original Agreement is hereby amended to be and read as follows:
Each of Parent and the Company shall take all action necessary, in
accordance with the DGCL and its respective certificate of incorporation
and bylaws, to duly call, give notice of, convene and hold a meeting of its
stockholders as promptly as practicable, but in no event later than March
15, 1996 (unless such date shall be delayed due to circumstances reasonably
beyond the control of the parties), in the case of the Company, to consider
and vote upon the adoption and approval of this Agreement and the
transactions contemplated hereby, and in the case of Parent, to vote upon
the issuance of Parent Common Stock pursuant to the Merger (collectively,
the "Transactions").
SECTION 1.5 Closing and Closing Date. Section 5.1 of the Original
Agreement is hereby amended to be and read as follows:
As soon as practicable after the satisfaction or waiver of the conditions
set forth herein, but no more than two business days thereafter, and prior
to the filing of the Certificate of Merger, a closing of the transactions
contemplated hereby (the "Closing") shall take place at the offices of
Xxxxxx & Xxxxxx L.L.P., First City Tower, Houston, Texas or at such other
location as the parties may agree in writing. The date on which the Closing
occurs is referred to as the "Closing Date."
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SECTION 1.6 Termination. Section 6.1 of the Original Agreement is hereby
amended to add a new subparagraph (h) reading as follows:
(h) by the Company, if the Average Daily Price of the Parent Common
Stock is less than $31.75.
Section 6.1 is hereby further amended to delete "or" at the end of subparagraph
(f) and to insert "; or" at the end of subparagraph (g).
SECTION 1.7 Definition. Section 7.8(b) of the Original Agreement is hereby
amended to be and read as follows:
(b) "Average Daily Price of the Parent Common Stock" means the average
of the closing prices, regular way, per share of Parent Common Stock as
reported on the NYSE Composite Tape during the three consecutive trading
days ending on (but excluding) the trading day on which the Effective Time
occurs; provided, however, if during such three-day period Parent shall
issue any securities referred to in clause (B) of the proviso to Section
4.2(d)(vi) or make any public announcement thereof, then such period shall
begin on the trading date on which such issuance or public announcement
thereof shall occur;
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 By Parent and Merger Sub. As an inducement to the Company to
enter into this Amendment, Parent and Merger Sub each represents and warrants to
the Company that, as of the date hereof, there is no action, omission, event or
condition whatsoever known to it that would cause the Board of Directors of
Parent to in any way modify its recommendation to its shareholders with respect
to the shares of the Parent issuable in connection with the Merger, nor is there
any basis known to it to assert a right to terminate the Agreement pursuant to
Section 6.1(b) thereof or to assert a nonfulfillment of the condition precedent
contained in Section 5.3(a) thereof. Moreover, Parent and Merger Sub acknowledge
that no representation or warranty is made by the Company with respect to any
materials furnished by the Company to Parent or Merger Sub projecting or
describing future financial results of the Company, that no representation or
warranty is made by the Company with respect to any such future financial
results and failure to achieve any particular earnings for the quarter ending
March 31, 1996 would not have a Company Material Adverse Effect.
SECTION 2.2 By the Company. As an inducement to Parent and Merger Sub to
enter into this Amendment, the Company represents and warrants to Parent and
Merger Sub that, as of the date hereof, there is no action, omission, event or
condition whatsoever known to the Company that would cause the Board of
Directors of the Company to in any way modify its recommendation to its
shareholders in favor of the Merger and adoption of the Agreement, nor is there
any basis known to the Company to assert a right to terminate the Agreement
pursuant to Section 6.1(c) thereof or to assert a non-fulfillment of the
condition precedent contained in Section 5.4(a) thereof. Moreover, the Company
acknowledges that no representation or warranty is made by either Parent or
Merger Sub with respect to any materials furnished by either of them to the
Company projecting or describing future financial results of Parent and that no
representation or warranty is made by either Parent or Merger Sub with respect
to any such future financial results.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 Relation to Original Agreement. The provisions of this
Amendment shall become effective immediately upon the execution and delivery
hereof. This Amendment and all the terms and provisions herein contained shall
form a part of the Agreement as fully and with the same effect as if all such
terms and provisions had been set forth in the Original Agreement. The Original
Agreement is hereby ratified and confirmed and shall remain and continue in full
force and effect in accordance with the terms and
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provisions thereof, as amended by this Amendment, and the Original Agreement and
this Amendment shall be read, taken and construed together as one instrument.
SECTION 3.2 Meaning of Terms. Any capitalized term used in this Amendment
and not defined herein that is defined in the Original Agreement shall have the
meaning specified in the Original Agreement.
SECTION 3.3 Xxxxxx Xxxxxxx Opinion. The opinion of Xxxxxx Xxxxxxx referred
to in Section 2.25 of the Original Agreement shall be deemed to be the opinion
of Xxxxxx Xxxxxxx that takes into consideration the Conversion Number as revised
by this Amendment. The Company will promptly deliver to Parent a copy of such
opinion.
SECTION 3.4 Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed on its behalf by one of its officers thereunto duly authorized,
effective as of the day and year first above written.
XXXXX SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President and Chief Executive
Officer
THE CONTINUUM COMPANY, INC.
By: /s/ W. Xxxxxxx Xxxx
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W. Xxxxxxx Xxxx
President and Chief Executive
Officer
CONTINUUM ACQUISITION CORPORATION
By: /s/ W. Xxxxxxx Xxxx
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W. Xxxxxxx Xxxx
President
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