AMENDMENT TO
AGREEMENT AND PLAN OF REORGANIZATION
This Amendment to Agreement and Plan of Reorganization (this "Amendment")
is made and entered into as of April 7, 2000 by and among Evoke Incorporated, a
Delaware corporation ("Buyer"), Contigo Software, Inc., a California corporation
(the "Company"), and CSI Acquisition Corporation, a California corporation (each
of the parties hereto being referred to individually as a "Party" and
collectively as the "Parties").
Recitals
Whereas, the Parties entered into that Agreement and Plan of Reorganization
dated as of March 24, 2000 (the "Acquisition Agreement"); and
Whereas, the Parties now desire to amend the Acquisition Agreement as set
forth below.
Now, Therefore, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
1. Section 1.8.2(f) of the Acquisition Agreement is hereby amended and
restated in its entirety to read as follows:
(f) Following the Closing Date and within 150 days after the date on
which the Buyer's registration statement on Form S-1 is declared
effective by the SEC, the Buyer shall file with the SEC a
registration statement on Form S-8 (or other appropriate form)
with respect to the issuance of shares of Buyer
Common Stock subject to Company Options (the "S-8 Registration
Statement"). Buyer will use its commercially reasonable efforts
to cause the S-8 Registration Statement to remain effective
through the latest termination date applicable to any Company
Option. The Company shall cooperate with, and assist Buyer in the
preparation of the S-8 Registration Statement.
2. The Acquisition Agreement, as amended by this Amendment, and the rights and
obligations of the Parties thereunder shall remain in full force and effect. No
term or provision of the Acquisition Agreement or right or obligation of any
Party under the Acquisition Agreement shall be in any way waived, changed,
altered, amended or otherwise modified except to the extent expressly set forth
in this Amendment.
1.
3. The Acquisition Agreement, as amended by this Amendment, may be amended by
the Parties hereto at any time by execution of an instrument in writing signed
on behalf of each of the Parties hereto.
4. This Amendment shall be governed by and construed in accordance with the
laws of the State of California, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
5. The Parties hereto agree that they have been represented by counsel during
the negotiation and execution of this Amendment and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
6. 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.
[signature page to follow]
2.
In Witness Whereof, the parties hereto have caused this Amendment to be
signed, all as of the date first written above.
Evoke Incorporated
a Delaware corporation
By: /s/
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Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
Contigo Software, Inc.
a California corporation
By: /s/
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Name: Xxxx Xxxxxxxxxx
Title: Chairman and CEO
CSI Acquisition Corporation
a California corporation
By: /s/
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Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
3.
