AMENDMENT dated as of March 16, 2005 to AGREEMENT AND PLAN OF MERGER dated as of February 28, 2005 AMONG:
Exhibit (e)(13)
AMENDMENT dated as of March 16, 2005 to AGREEMENT
AND PLAN OF MERGER dated as of February 28, 2005
AMONG:
(1) SAP AMERICA, INC., a Delaware corporation
(Parent),
(2) SAPPHIRE EXPANSION CORPORATION, a Delaware corporation
and a wholly-owned subsidiary of Parent (Sub), and
(3) RETEK INC., a Delaware corporation (the Company).
WHEREAS:
(A) Parent, Sub and the Company entered into an Agreement
and Plan of Merger dated as of February 28, 2005 (the
Original Agreement); and
(B) the parties wish to amend certain terms of the Original
Agreement as hereinafter provided;
NOW, THEREFORE, the parties hereto agree as follows:
| 1. | REFERENCES AND DEFINED TERMS |
All references in the Original Agreement to “the Merger
Agreement,” “this Agreement,” “herein,”
“hereof,” “hereby,” or “hereunder”
shall be deemed to be references to the Original Agreement, as
amended by this Amendment. Notwithstanding anything to the
contrary in this Paragraph 1, all references in the
Original Agreement to “the date of this Agreement” or
“the date hereof” shall be deemed to be references to
February 28, 2005; provided that the reference in
Section 4.21 of the Original Agreement shall be deemed to
refer to the date of this Amendment. All terms used herein that
are defined in the Original Agreement have the meanings set
forth therein.
| 2. | THE OFFER PRICE |
The dollar amount set forth in Paragraph (B) of the
Preamble of the Original Agreement as the defined “Offer
Price” is hereby amended to be $11.00.
| 3. | THE TERMINATION FEE |
The dollar amount set forth in Section 7.6(b) of the
Original Agreement as the defined “Termination Fee” is
hereby amended to be $25,000,000.
| 4. | SECTION 4.12 OF THE COMPANY DISCLOSURE SCHEDULE |
Annex 1 to this Amendment replaces Section 4.12 of the
Company Disclosure Schedule in its entirety.
| 5. | ANNEX 1 |
The beginning of the third sentence in Annex 1 to the
Original Agreement is hereby amended by deleting the phrase
“acceptance of such shares for payment or the payment
therefor,” and replacing it with “expiration of the
Offer”.
| 6. | EFFECT |
Except as hereby amended pursuant to Section 9.3 thereof,
the Original Agreement continues to be, and shall remain, in
full force and effect in accordance with its terms with no other
modification or waiver. The General Provisions set forth in
Article 10 of the Original Agreement are incorporated by
reference as if set forth fully herein.
SIGNATORIES
IN WITNESS WHEREOF, Parent, Sub and the Company have duly
executed this Amendment, all as of the date first written above.
| SAP America, Inc., |
| By: | /s/ Xxxx X. Xxxxxxxx |
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| Xxxx X. Xxxxxxxx | |
| Authorized Signatory | |
| Sapphire Expansion Corporation, |
| By: | /s/ Xxxxx Xxxxxx |
|
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| Xxxxx Xxxxxx | |
| President | |
| Retek Inc., |
| By: | /s/ Xxxxxx X. Xxxxxxx |
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| Xxxxxx X. Xxxxxxx | |
| President and Chief Executive | |
| Officer |
