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EXHIBIT 2.3
AMENDMENT NO. 2 TO THE AGREEMENT AND PLAN OF MERGER
DATED OCTOBER 14, 1999
BY AND AMONG
A.I.N. CORPORATION,
XXXXXXX XXXXX, XXXXXX XXXXXX,
XXXXX X. XXXXXXXXX III, XXXX XXXXXXXX,
XXXXXXX XXXXXX, XXXXXX FAMILY PARTNERSHIP,
AUTOBYTEL ACQUISITION II CORP.
AND
XXXXXXXXX.XXX INC.
This Amendment dated February 14, 2000 is entered into by and among
A.I.N. Corporation, a California corporation, Xxxxxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxx Xxxxxxxxx III, Xxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Family Partnership,
Autobytel Acquisition II Corp., a California corporation, and xxxxxxxxx.xxx
inc., a Delaware corporation.
RECITALS
A. The parties entered into an Agreement and Plan of Merger dated
October 14, 1999 and an Amendment to the Agreement and Plan of Merger dated
January 25, 2000 (the "Agreement") under which Autobytel Acquisition II Corp.
was to be merged with and into A.I.N. Corporation.
B. Any capitalized term in this Amendment that is not defined in this
Amendment shall have the meaning ascribed to such term in the Agreement.
C. The parties intend for the Agreement to remain in full force and
effect, and unchanged except for the amendments to those sections as provided
herein:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree to amend
and restate the following provisions of the Agreement as follows:
1. The following sections of the agreement are amended to read as follows:
"Section 2.6 Effect on Capital Stock. By virtue of the Merger and
without any action on the part of the Merger Sub, the Company or the holders of
any of the following securities, the following shall occur with respect to the
Company's Common Stock:
(a) Conversion of Company Common Stock. At the Effective Time, each
share of Company Common Stock issued and outstanding immediately prior to the
Effective Time will be canceled, extinguished and converted automatically into
the right to receive (i) in cash, the dollar amount per share equal to the
quotient of (x) $3 million less the Aggregate Employee Bonus Amount, the
Consumer Car Club Amount, two thousand dollars ($2000) for escrow fees, and any
legal fees incurred by the Company and payable by the Selling Shareholders
pursuant to Section 5.14 divided by (y) the number of shares of Company Common
Stock outstanding immediately prior to the Effective Time (the "Cash Payments"),
and (ii) shares of Parent Common Stock equal to
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the quotient of 1,800,000 shares of Parent Common Stock divided by the number of
shares of Company Common Stock outstanding immediately prior to the Effective
Time (the "Stock Payments"). The shares of Parent Common Stock to be issued in
connection with the Merger will not be registered under the Securities Act and
will be subject to the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SECTION
3(a)(10) OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). THESE SECURITIES MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS (A) AS PERMITTED
UNDER RULES 144 AND 145(d) OF THE SECURITIES ACT, (B) THERE IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING
SUCH SECURITIES OR (C) THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT.
(b) Capital Stock of Merger Sub. At the Effective Time, each share of
common stock 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 of
the Surviving Corporation, and the Surviving Corporation shall be a wholly-owned
subsidiary of Parent.
(c) Adjustments to Exchange Ratio. The Exchange Ratio shall be adjusted
to reflect fully the effect of any stock split, reverse split, stock dividend
(including any dividend or distribution of securities convertible into Parent
Common Stock or Company Common Stock), reorganization, recapitalization or other
like change with respect to Parent Common Stock or Company Common Stock
occurring after the date hereof and prior to the Effective Time.
(d) Company Employee Bonus Amount. Upon the Closing, (i) the Company
shall pay to those Company employees listed on Schedule 2.6(d) the amounts set
forth opposite their respective names on such Schedule (less applicable federal
and California income tax, FICA and other applicable withholdings) and (ii) the
Parent shall deposit in the Company's payroll account an amount equal to the
aggregate employee bonus amounts set forth on Schedule 2.6(d), ("Aggregate
Employee Bonus Amount"). Schedule 2.6(d) may be amended by the Company prior to
the Closing Date provided that no employee shall receive a bonus greater than
$50,000 and the Aggregate Employee Bonus Amount shall not exceed $450,000.
(e) Fractional Shares. No fractional shares of Parent Common Stock will
be issued. The number of shares of Parent Common Stock awardable to each holder
of shares of Company Common Stock (after aggregating all fractional shares of
Parent Common Stock awardable to each such holder) shall be rounded down to the
nearest
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whole share of Parent Common Stock, unless such fraction is .5 or above, in
which case the number of shares of Parent Common Stock awardable shall be
rounded up to the nearest whole share of Parent Common Stock.
(f) Consumer Car Club Matter Settlement Amount. Upon the Closing, the
Parent shall deposit $650,000.00 (the "Consumer Car Club Amount") in the
Company's general bank account, the proceeds of which shall be used solely for
use in the settlement of the Consumer Car Club Matter. All or a portion of the
Consumer Car Club Amount shall be paid, at such times, as directed by Xxxxxxx
Xxxxx as the "Selling Shareholder Representative" to such Persons as reasonably
determined by Xxxxxxx Xxxxx to further settlement of the Consumer Car Club
Matter. Any amounts of the Consumer Car Club Amount not used to pay or settle
any claims, or liabilities arising from the Consumer Car Club Matter under this
Section 2.6(f) within thirty (30) days following the Closing shall be deposited
into, and become part of, the Escrow Fund, and shall be become subject to the
terms of the Escrow Agreement."
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IN WITNESS WHEREOF, each of the Company, the Selling Shareholders, the
Merger Sub and the Parent have caused their names to be signed hereto as of the
day and year first above written.
THE COMPANY:
A.I.N. CORPORATION,
a California corporation
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President and Secretary
THE SELLING SHAREHOLDERS:
/s/ Xxxxxxx Xxxxx
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XXXXXXX XXXXX
/s/ Xxx Xxxxxx
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XXX XXXXXX
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
/s/ Xxxxx X. Xxxxxxxxx III
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XXXXX X. XXXXXXXXX III
/s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX
XXXXXX FAMILY PARTNERSHIP
/s/ Xxxxxxx Xxxxxx
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[Signatures Continued on Next Page]
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MERGER SUB:
AUTOBYTEL ACQUISITION II CORP.
a California corporation
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice-President and
Secretary
THE PARENT:
XXXXXXXXX.XXX INC.
a Delaware corporation
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice-President and
General Counel
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