1
EXHIBIT 2.3
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
(this "Amendment") is dated as of June 5, 2001, by and among Xxxxx.xxx, Inc., a
Delaware corporation ("Parent"), Confer Acquisition Corp., a California
corporation and wholly-owned subsidiary of Parent ("Sub"), and Confer Software,
Inc., a California corporation (the "Company"). Capitalized terms used herein
without being otherwise defined shall have the meanings given to them in the
Agreement and Plan of Merger and Reorganization, dated as of May 14, 2001 (the
"Merger Agreement"), by and among Parent, Sub and the Company.
RECITALS:
A. On May 14, 2001, Parent, Sub and the Company entered into the Merger
Agreement pursuant to which, among other things, upon the terms and subject to
the conditions set forth in the Merger Agreement, the Company shall be merged
with and into the Sub, the separate corporate existence of the Company shall
cease, and Sub shall continue as a wholly-owned subsidiary of Parent.
B. Parent, Sub and the Company desire to amend certain provisions of
the Merger Agreement as set forth in this Amendment in order to, among other
things, correct certain clerical errors in the Merger Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Sub and the Company hereby agree as follows:
1. The definition of "Covered Expenses" as contained in Section 1.6(a)
of the Merger Agreement shall be amended to read in its entirety as follows:
""Covered Expenses" shall mean the sum of (i) the dollar amount of
cash and cash equivalents standing on the Estimated Balance Sheet (excluding any
cash or securities held in the Lease Collateral Account) plus (ii) $300,000 plus
(iii) any payroll payments made by the Company on or after May 31, 2001 to its
employees plus (iv) in the event that Parent enters into a lease agreement for
real property located at 0000 Xxxxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000 (the
"Industrial Road Lease"), $204,780."
2. The definition of "Estimated Balance Sheet" as contained in Section
1.6(a) of the Merger Agreement shall be amended to read in its entirety as
follows:
2
""Estimated Balance Sheet" shall mean the estimated unaudited
balance sheet of the Company dated May 31, 2001 which shall be (i) prepared in
accordance with GAAP (except that such unaudited balance sheet does not contain
the footnotes required by GAAP) and prepared by the Company in good faith and
based upon reasonable assumptions and (ii) approved by Parent, which approval
shall not be unreasonably withheld."
3. The definition of "Estimated Net Liabilities" as contained in
Section 1.6(a) of the Merger Agreement shall be amended to read in its entirety
as follows:
""Estimated Net Liabilities" shall mean the amount by which total
liabilities of the Company as of May 31, 2001, other than Company Debt, as
determined in accordance with GAAP, but excluding Estimated Third Party
Expenses, deferred revenue and any accrued payroll ("Total Liabilities"), exceed
total current assets of the Company as determined in accordance with GAAP, each
as reflected in the Estimated Balance Sheet, plus (i) any cash used to make
payroll payments by the Company on or after May 31, 2001 to its employees and
(ii) in the event Parent enters into the Industrial Road Lease, $790,200
(together with the current assets reflected in the Estimated Balance Sheet, the
"Total Current Assets"),."
4. The definition of "Merger Shares" as contained in Section 1.6(a) of
the Merger Agreement shall be amended to read in its entirety as follows:
""Merger Shares" shall mean 592,453 shares of Parent Common Stock,
subject to downward adjustment as provided below under the definition of "Total
Consideration.""
5. The definition of "Net Liabilities" as contained in Section 1.6(a)
of the Merger Agreement shall be amended to read in its entirety as follows:
""Net Liabilities" shall mean the amount by which Total Liabilities
exceed Total Current Assets."
6. The definition of "Total Consideration" as contained in Section
1.6(a) of the Merger Agreement shall be amended to read in its entirety as
follows:
""Total Consideration" shall mean that number of shares of Parent
Common Stock equal to the quotient obtained by dividing (A) $4,038,750 minus the
sum of (1) the amount by which the Company's Estimated Third Party Expenses
exceed the Covered Expenses, (2) the amount of any Company Debt and accrued
interest thereon outstanding immediately prior to May 31, 2001 and that has not
been converted into Company Capital Stock prior to May 31, 2001 and (3) the Net
Liabilities Adjustment; by (B) 6.817."
7. Section 5.18 of the Merger Agreement shall be amended to read in its
entirety as follows:
"5.18 Preparation Delivery of Estimated Balance Sheet and Statement
of Expenses. The Company shall prepare in good faith the Estimated Balance
Sheet, together with
3
a written statement of the Estimated Third Party Expenses (the "Statement of
Expenses"), which together shall be delivered to Parent at least two (2)
business days prior to the Closing Date. Subject to Section 7.2, the Company and
the Shareholders agree that Parent shall have recourse to the Escrow Fund for
payment of any Net Liabilities in excess of the Estimated Net Liabilities used
in calculating the Net Liabilities Adjustment and were not deducted from the
Total Consideration; provided, however, that in no event shall Parent be
entitled to recovery from the Escrow Fund unless the Net Liabilities exceed
$650,000."
8. Section 7.2(c) of the Merger Agreement shall be amended to read in
its entirety as follows:
"(c) Limitations. The maximum amount the indemnified parties may
recover from the Shareholders pursuant to the indemnity set forth in Section
7.2(a) shall be limited to an amount equal to the lesser of (i) the number of
shares of Parent Common Stock equal to ten percent (10%) of the Total
Consideration, in the manner and pursuant to the procedures set forth in the
Escrow Agreement or (ii) 89.75% of Losses for which Parent makes claims against
the Escrow Fund. In the event of the tort of fraud committed by the Company,
Parent shall have all remedies available at law or in equity with respect
thereto; provided, however, that notwithstanding anything to the contrary
contained in this Agreement, in no event shall any Shareholder have any
liability for Losses or torts of fraud committed by the Company in excess of the
total consideration received by such Shareholder hereunder."
9. Effect of Amendment. Except as and to the extent expressly modified
by this Amendment, the Purchase Agreement shall remain in full force and effect.
10. Counterparts; Facsimile. This Amendment may be executed by
facsimile and 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 party, it
being understood that all parties need not sign the same counterpart.
11. Entire Agreement; Assignment. This Amendment, the Merger Agreement,
the Related Agreements, the Exhibits and Schedules hereto, the Non-Disclosure
Agreement, dated September 29, 2000, between the Company and Parent and the
documents and instruments and other agreements among the parties hereto
referenced herein: (a) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings both written and oral, among the parties with respect to the
subject matter hereof; (b) are not intended to confer upon any other person any
rights or remedies hereunder; and (c) shall not be assigned (other than by
operation of law), except that Parent and Sub may assign their respective rights
and delegate their respective obligations hereunder to their respective
affiliates.
(Signature Page Follows)
4
IN WITNESS WHEREOF, each party hereto has executed this Amendment or
caused this Amendment to be duly executed on its behalf by its officer thereunto
duly authorized, as of the day and year first above written.
XXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President, Finance and
Chief Financial Officer
CONFER ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President and Secretary
CONFER SOFTWARE, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chairman
