EXHIBIT 2.3
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION ("SECOND
AMENDMENT") is entered into effective as of March [9], 2000, by and among
XxxxXxxxx.xxx, Inc., a Delaware corporation ("PARENT"), IC Acquisition I
Corporation, a Delaware corporation and wholly-owned subsidiary of Parent
("SUB"), and xxxxxxx.xxx inc, a Delaware corporation (the "COMPANY"). Parent,
Sub and the Company are sometimes referred to herein individually as a "PARTY"
and collectively as the "PARTIES." All capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to such terms in the
Reorganization Agreement (as defined below).
RECITALS
A. The Parties entered into an Agreement and Plan of Reorganization
dated as of December 6, 1999 (the "REORGANIZATION AGREEMENT"), pursuant to which
(among other things) the Parties have agreed to effect a merger of Sub with and
into the Company in accordance with the Reorganization Agreement and Delaware
Law.
B. The Parties entered into an Amendment to Agreement and Plan of
Reorganization dated as of January 4, 2000 (the "FIRST AMENDMENT"), pursuant to
which the parties amended the Reorganization Agreement for the limited purpose
of extending until February 5, 2000 the period in which the Company may elect,
in accordance with Section 8.7(e) of the Reorganization Agreement, to notify
Parent that the Company is electing to require that the Parent Share
Consideration be issued in reliance on the Private Placement Exemption. The
Company did not deliver such notice on or prior to such date.
C. The parties now wish to further amend the Reorganization Agreement
for the limited purpose of clarifying the intention of the Parties regarding the
exercise price of options to purchase Parent Common Stock granted to holders of
Company Options pursuant to Section 3.2 of the Reorganization Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and of the mutual
agreements, representations, warranties and covenants herein contained, the
Parties do hereby agree as follows:
SECTION 1. AMENDMENT OF REORGANIZATION AGREEMENT
1.1 AMENDMENT OF SECTION 3.2. Section 3.2 of the Reorganization
Agreement is hereby amended and restated in its entirety to read as follows:
3.2 Company Options and Warrants. At the Effective Time, each
Company Option will by virtue of the Merger, and without any
further action on the part of any holder thereof, be assumed
by the Surviving Corporation and Parent and converted into
options to purchase the following: (a) the number of shares of
Surviving Corporation Common Stock determined by multiplying
(i) the number of shares of Company Capital Stock issuable
upon the exercise of such Company Option immediately prior to
the Effective Time, by (ii) the Surviving Corporation
Conversion Ratio (such options referred to herein as Surviving
Corporation Options); and (b) the number of shares of Parent
Common Stock determined by multiplying (i) the number of
shares of Company Capital Stock issuable upon the exercise of
such Company Option immediately prior to the Effective Time,
by (ii) the Parent Conversion Ratio (such options referred to
herein as Parent Options). The term, exercisability, vesting
schedule, acceleration provisions, vesting commencement date,
status as an "incentive stock option" under Section 422 of the
Code, if applicable, all restrictions on the exercise of each
such assumed Company Option and all other terms and conditions
of the Company Options will otherwise be unchanged. The
exercise price per share of the Surviving Corporation Options
will remain unchanged. The exercise price per share of the
Parent Options will be equal to the quotient obtained by
dividing 80% of the exercise price per share of such Company
Option immediately prior to the Effective Time by the Exchange
Ratio, rounded up to the nearest cent. If the foregoing
calculation results in an assumed Parent Option being
exercisable for a fraction of a share of Parent Common Stock,
then the number of shares of Parent Common Stock subject to
such option will be rounded down to the nearest whole number
of shares. Continuous employment with the Company will be
credited to an optionee of the Company for purposes of
determining the number of shares of Surviving Corporation
Common Stock and Parent Common Stock subject to exercise under
an assumed Company Option after the Effective Time. The
Parties acknowledge that the Merger will constitute a "Change
of Control" under the Company Plans. Prior to the Effective
Time, the Company shall take all action necessary so that all
outstanding warrants and any other rights to acquire Company
Capital Stock (other than the Company Options) ("Warrants")
are either exercised in full or terminated prior to the
Effective Time.
1.2 NO OTHER AMENDMENTS. Except as it has been specifically amended
pursuant to Section 1.1 or the First Amendment, the Reorganization Agreement
shall from and after the date hereof continue in full force and effect.
SECTION 2. ADDITIONAL PROVISIONS
2.1 ENTIRE AGREEMENT AND MODIFICATION. The Reorganization Agreement
(including the exhibits thereto), as amended by the First Amendment and this
Second Amendment, constitutes the entire agreement among the Parties with
respect to the subject matter thereof and hereof and supersedes any prior
understandings, agreements, or representations by or among the Parties, written
or oral, to the extent they related in any way to the subject matter hereof and
thereof; provided, however, that the letter agreement between Parent and the
Company dated November 9, 1999 relating to the Parties' mutual nondisclosure
obligations and certain other matters shall remain in full force and effect
notwithstanding the execution and delivery of the Reorganization Agreement (as
amended) and the consummation of the Merger. The Reorganization Agreement, as
amended by the First Amendment and this Second Amendment, may not be further
amended except by a written agreement executed by all Parties.
2.2 COUNTERPARTS. This Second Amendment may be executed in counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument. 2.3 Headings. The Section headings
contained in this Second Amendment are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this Second Amendment.
2.4 SEVERABILITY. Any term or provision of this Second Amendment that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
IN WITNESS WHEREOF, the Parties hereto have executed this Second
Amendment effective as of the date first above written.
PARENT: XXXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Sr. Vice President, Legal & Business Affairs
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SUB: IC ACQUISITION I CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Sr. Vice President, Legal & Business Affairs
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THE COMPANY: SARAIDE. COM INC
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Chief Executive Officer
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