Exhibit 2.1
This FIRST AMENDMENT TO THE SHARE EXCHANGE AGREEMENT
(this "Amendment") is made as of July 10, 2001, by and among OPUS360
CORPORATION, a Delaware corporation (the "Company"), and PROHA PLC, a
Finnish corporation ("Proha").
WHEREAS, the Company and Proha are parties to that
certain Share Exchange Agreement dated as of April 11, 2001 (as amended
hereby, the "Agreement"). Capitalized terms used and not defined herein
shall have such meanings as set forth in the Agreement; and
WHEREAS, pursuant to Section 9.6 of the Agreement, the
parties hereto desire to amend certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the
mutual promises herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Amendment to the Recitals.
(a) The first Whereas clause of the Agreement is hereby
amended by deleting it in its entirety and substituting
the following in lieu thereof:
"WHEREAS, the Company is a publicly traded company whose
shares of Common Stock are currently traded on the OTC
Bulletin Board;"
(b) The fifth Whereas clause of the Agreement is hereby
amended by deleting it in its entirety and substituting
the following in lieu thereof:
"WHEREAS, Proha has concluded that it is in its best
interests to enter into the transactions contemplated
hereby including inter alia to transfer to the Company
(i) all of the Artemis Shares, (ii) a number of IOY
Shares representing 19.9% of the issued and outstanding
IOY Shares on a Fully Diluted Basis on the Second Closing
Date, and (iii) a number of AOY Shares representing 19.9%
of the issued and outstanding AOY Shares on a Fully
Diluted Basis on the Second Closing Date (the Artemis
Shares, the IOY Shares and the AOY Shares to be
transferred to the Company are referred to collectively
as the "Exchanged Shares");"
2. Amendment to Article I.
(a) The following definitions in Article I of the Agreement
are hereby amended by deleting them in their entirety and
substituting the following in lieu thereof:
"Closing" shall have the meaning set forth in Section
2.1(e).
"Documents" shall mean (i) this Agreement, (ii) the
Registration Rights Agreement, (iii) the Voting
Agreements, and (iv) the Voting Agreement between Proha
and Xxx Xxxxxxxx (the "July Proha Voting Agreement") in
the form of Exhibit E hereto.
"Opus Shares" shall mean the shares of Common Stock
issued in the First Tranche and the Second Tranche.
"Registration Rights Agreement" shall mean the
Registration Rights Agreement to be entered into by and
among the Company and Proha on the First Closing Date, in
the form attached as Exhibit A hereto.
"Shareholder Complaint" shall mean the class action suit
filed by Xxxxxxx Xxxxx in the United States District
Court for the Southern District of New York (Case No. 01
CIV. 2938) on April 6, 2001 (as the same is supplemented
or amended from time to time, the "Original Complaint")
and any other suit based on, or derived from, the same or
substantially similar facts or circumstances alleged in
the Original Complaint.
(b) Article I of the Agreement is hereby further amended by
inserting the following new definitions where appropriate
in alphabetical order:
"First Closing" shall have the meaning set forth in
Section 2.1(e).
"First Closing Date" shall have the meaning set forth in
Section 2.2(a).
"First Tranche" shall have the meaning set forth in
Section 2.1(a).
"July Proha Voting Agreement" shall have the meaning set
forth in the definition of Documents.
"Opus Directors Committee" shall have the meaning set
forth in Section 8.3(i).
"Original Complaint" shall have the meaning set forth in
the definition of Shareholder Complaint.
"Second Closing" shall have the meaning set forth in
Section 2.1(e).
"Second Closing Date" shall have the meaning set forth in
Section 2.2(a).
"Second Tranche" shall have the meaning set forth in
Section 2.1(c).
3. Amending the Phrases "Closing" and "Closing Date" with "First".
The defined term "Pre-Closing Period" in Article I and Sections
3.6, 3.10, 3.17, 3.19, 4.6, 4.10, 4.12, 4.17, 4.19, 5.1, 5.10,
6.1, 6.9, 6.10, and 8.4 are hereby amended by inserting the word
"First" immediately prior to the word "Closing" in each instance
where it appears.
4. Amending the Phrases "Closing" and "Closing Date" with "Second".
Sections 5.7, 5.9, 6.8, 8.1 and 8.5 are hereby amended by
inserting the word "Second" immediately prior to the word
"Closing" in each instance where it appears.
5. Amendment to Section 2.1. Section 2.1 of the Agreement is hereby
amended by deleting it in its entirety and substituting the
following in lieu thereof:
"SECTION 2.1. Issuance of Opus Shares.
(a) Upon the terms and subject to the conditions set forth in
Sections 7.1 and 7.2 of this Agreement, the Company shall
issue and Proha shall accept from the Company on the
First Closing Date a number of shares of Common Stock
(the "First Tranche"), free and clear of all Liens (other
than the Liens contemplated by Section 4.26(g) of the
Agreement), which shall equal (x) the total number of
shares of Common Stock authorized by the Company's
Charter, less (y) the sum of (i) the number of shares of
Common Stock issued and outstanding and (ii) the number
of shares of Common Stock reserved for issuance as of the
First Closing Date. At least three (3) Business Days
prior to the First Closing Date, the Company shall
deliver to Proha a certificate, certified by the
Treasurer of the Company, reflecting the calculation of
the number of Opus Shares to be delivered to Proha on the
First Closing Date pursuant to this Section 2.1(a). For
illustrative purposes, if the First Closing were held on
June 30, 2001, the First Tranche would be approximately
77,000,000 shares of Common Stock.
(b) In consideration of the issuance of the Opus Shares on
the First Closing Date, Proha shall assign, transfer and
deliver to the Company (or cause to be assigned,
transferred and delivered to the Company), and the
Company shall (to the extent certificated) take delivery
of the Artemis Shares, free and clear of all Liens (other
than Liens set forth on Schedule 2.1). The certificates
representing the Artemis Shares shall be duly endorsed,
or accompanied by stock powers duly endorsed, by Proha
(or the appropriate Subsidiary of Proha) for transfer to
the Company, with all necessary transfer tax and other
revenue stamps affixed (such taxes and the cost of such
stamps, if any, to be borne equally by the parties), or
in cases in which any of the Artemis Shares have not been
certificated, the stock record books of the issuer of the
Artemis Shares shall be updated to record the transfer of
the Artemis Shares pursuant to this Agreement.
(c) Upon the terms and subject to the conditions set forth in
Sections 7.3 and 7.4 of this Agreement, the Company shall
issue and Proha shall accept from the Company on the
Second Closing Date a number of shares of Common Stock
(the "Second Tranche"), free and clear of all Liens
(other than the Liens contemplated by Section 4.26(g) of
the Agreement), which shall equal (x) eighty percent
(80%) of the Common Stock on a Fully-Diluted Basis as of
the First Closing Date (assuming the First Tranche is
issued), less (y) the sum of the First Tranche and any
other shares of Common Stock issued to Proha prior to the
Second Closing (each as appropriately adjusted to reflect
the occurrence of any stock split, stock dividend, stock
combination, stock subdivision or similar event). At
least three (3) Business Days prior to the Second Closing
Date, the Company shall deliver to Proha a certificate,
certified by the Treasurer of the Company, reflecting the
calculation of the number of Opus Shares to be delivered
to Proha on the Second Closing Date pursuant to this
Section 2.1(c). For illustrative purposes, if the Second
Closing were held on June 30, 2001, the Second Tranche
would be approximately 123,000,000 shares of Common
Stock.
(d) In consideration of the issuance of the Opus Shares on
the Second Closing Date, Proha shall assign, transfer and
deliver to the Company (or cause to be assigned,
transferred and delivered to the Company), and the
Company shall (to the extent certificated) take delivery
of the IOY Shares and the AOY Shares to be transferred to
the Company, free and clear of all Liens (other than
Liens set forth on Schedule 2.1). The certificates
representing the IOY Shares and the AOY Shares to be
transferred to the Company shall be duly endorsed, or
accompanied by stock powers duly endorsed, by Proha (or
the appropriate Subsidiary of Proha) for transfer to the
Company, with all necessary transfer tax and other
revenue stamps affixed (such taxes and the cost of such
stamps, if any, to be borne equally by the parties), or
in cases in which any of the IOY Shares and the AOY
Shares to be transferred to the Company have not been
certificated, the stock record books of the respective
issuer of the IOY Shares and the AOY Shares to be
transferred to the Company shall be updated to record the
transfer of the IOY Shares and the AOY Shares to be
transferred to the Company pursuant to this Agreement.
(e) The consummation of the transactions contemplated by
Sections 2.1(a) and (b) are collectively referred to
herein as the "First Closing". The consummation of the
transactions contemplated by Sections 2.1(c) and (d) are
collectively referred to herein as the "Second Closing".
The First Closing and the Second Closing are each, a
"Closing.""
6. Amendment to Section 2.2. Section 2.2 of the Agreement is hereby
amended by deleting it in its entirety and substituting the
following in lieu thereof:
"SECTION 2.2. Closings.
(a) Each Closing shall take place at 9:00 a.m., New York
time, on the date as soon as practicable after all of the
conditions set forth, with respect to the First Closing,
in Sections 7.1 and 7.2 (the "First Closing Date"), and
with respect to the Second Closing, in Sections 7.3 and
7.4 (the "Second Closing Date"), as the case may be,
shall have been satisfied or duly waived or at such other
time and date as the parties hereto shall agree in
writing (the First Closing Date and the Second Closing
Date are each, a "Closing Date"), at the offices of White
& Case LLP, 1155 Avenue of the Americas, New York, New
York or at such other place as the parties hereto shall
agree in writing.
(b) On the First Closing Date, the Company shall deliver to
Proha, against delivery of the stock certificates (to the
extent certificated) representing the Artemis Shares,
certificates representing the First Tranche. On the
Second Closing Date, the Company shall deliver to Proha,
against delivery of the stock certificates (to the extent
certificated) representing the IOY Shares and the AOY
Shares to be transferred to the Company, certificates
representing the Second Tranche. In each case, the Opus
Shares shall be in definitive form and registered in the
name of Proha or its nominee or designee reasonably
acceptable to the Company and in such denominations as
Proha shall request in writing not later than two (2)
Business Days prior to each Closing Date with appropriate
securities laws legends."
7. Amendment to Section 3.6.
(a) The second sentence of Section 3.6 of the Agreement is
hereby amended by deleting it in its entirety and
substituting the following in lieu thereof:
"As of June 30, 2001, of the 150,000,000 shares of Common
Stock authorized, (i) 49,812,540 shares of Common Stock
are issued and outstanding, and (ii) 23,248,248 shares
are reserved for issuance pursuant to outstanding options
and warrants and existing employee stock purchase plans."
(b) The fourth sentence of Section 3.6 of the Agreement is
hereby amended by deleting it in its entirety and
substituting the following in lieu thereof:
"As of June 30, 2001, there are securities convertible,
exchangeable or exercisable into 15,543,276 shares of
Common Stock as described in further detail on Schedule
3.6."
8. Amendment to Schedule 3.6. Schedule 3.6 is hereby amended by
deleting it in its entirety and substituting the revised Schedule
3.6, attached to this Amendment, in lieu thereof.
9. Amendment to Section 5.5(a). The first sentence of Section 5.5(a)
of the Agreement is hereby amended by deleting it in its entirety
and substituting the following in lieu thereof:
"The Company shall (x) as soon as practicable, but not
later than 15 days after receipt of all financial
information required to be delivered pursuant to Section
6.5 and any other Proha information reasonably requested
pursuant to advice from the Company's accountants,
financial and legal advisors, as required for the proxy
statement, prepare and file a proxy statement with the
Commission with respect to the holding of a stockholders'
meeting (the "Stockholder Meeting") for the purpose of
obtaining stockholder approval ("Stockholder Approval")
of, amongst other things, the amendment and restatement
of the Company's Charter in a manner reasonably
satisfactory to Proha and to reflect an increase in the
Company's authorized Common Stock in order to permit the
issuance of the Second Tranche, (y) promptly call and
give notice of such meeting following the Commission's
clearance of such proxy statement and (z) on or before
the fortieth (40th) day following the Commission's
clearance of such proxy statement, convene and hold such
meeting."
10. Amendment to Section 5.11. Section 5.11 of the Agreement is hereby
amended by deleting it in its entirety and substituting the
following in lieu thereof:
"Section 5.11. Intentionally Omitted."
11. Amendment to Section 6.3. Section 6.3 of the Agreement is hereby
amended by adding, as a new last sentence, the following:
"From and after the First Closing and until the earlier
to occur of (x) the Second Closing or (y) the termination
of this Agreement pursuant to Section 9.4(a), except with
the majority consent of the Opus Directors Committee,
Proha will not, directly or indirectly, cause the Company
or any of its Subsidiaries to breach any of the Company's
or any of its Subsidiaries' covenants contained in the
Documents, to waive any of Proha's obligations hereunder,
to enter into transactions with Proha or Affiliates of
Proha, to issue or to authorize options, warrants,
agreements, conversion rights, preemptive rights, other
rights, subscriptions, claims of any character,
obligations, convertible or exchangeable securities, or
other commitments, contingent or otherwise, relating to
shares of capital stock of the Company, or to amend this
Agreement."
12. Amendment to Section 6.11. Section 6.11 of the Agreement is hereby
amended by deleting it in its entirety and substituting the
following in lieu thereof:
"SECTION 6.11. Intentionally Omitted."
13. Amendment to Section 7.1. Section 7.1 of the Agreement is hereby
amended by deleting it in its entirety and substituting the
following in lieu thereof:
"SECTION 7.1. Conditions to the Company's Obligations at
the First Closing. The obligations of the Company
hereunder required to be performed at the First Closing
shall be subject, at its election, to the satisfaction or
waiver (which waiver, if so requested by Proha, shall be
made in writing), at or prior to the First Closing, of
the following conditions:
(a) The representations and warranties of Proha contained in
this Agreement shall be true and correct in all material
respects on and as of the First Closing Date, as if such
representation or warranty was made as of the First
Closing, except to the extent that any such
representation or warranty is made as of a specified
date, in which case such representation or warranty shall
have been true and correct as of such specified date.
(b) Proha shall have performed in all material respects all
obligations and agreements, and complied in all material
respects with all covenants, contained in this Agreement
and the other Documents, to be performed and complied
with by Proha at or prior to the First Closing Date.
(c) All material governmental and regulatory approvals and
clearances and all third-party consents necessary for the
consummation of the transactions contemplated by the
Documents to occur on the First Closing Date shall have
been obtained and shall be in full force and effect, the
Company shall reasonably be satisfied that the
consummation of such transactions does not and will not
contravene any Applicable Law, except to the extent any
contravention or contraventions, individually or in the
aggregate, could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(d) Proha shall have delivered to the Company a certificate,
executed by Proha or on its behalf by a duly authorized
representative, dated as of the First Closing Date,
certifying that each of the conditions specified in this
Section 7.1 has been satisfied with respect to Proha.
(e) All Documents, instruments, agreements and arrangements
relating to the transactions contemplated by the
Documents shall be reasonably satisfactory to the
Company, shall have been executed and delivered by the
parties thereto and shall be in full force and effect and
no party to any of the foregoing (other than the Company)
shall have breached any of its material obligations
thereunder.
(f) There shall be no litigation, proceeding or other action
seeking an injunction or other restraining order, damages
or other relief from a Governmental Authority pending or
threatened which, in the reasonable judgment of the
Company, would materially adversely affect the
consummation of the transactions contemplated by the
Documents on the terms contemplated hereby and thereby
and there shall be no litigation, proceeding or other
action (including, without limitation, relating to
environmental matters or the Artemis Employee Benefit
Plans) pending or threatened against the Artemis Entities
which could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(g) The Company shall have received stock certificates (to
the extent certificated) representing the Artemis Shares.
(h) Proha shall have delivered to the Company certificates of
the appropriate public officials, if available, to the
effect that each of Proha and each Artemis Entity is a
validly existing corporation in good standing (to the
extent that the concept of good standing is recognized
under the laws of the relevant jurisdiction of
organization) in its jurisdiction of organization dated
not more than five (5) days prior to the First Closing
Date.
(i) Proha shall have delivered to the Company a certificate
of the Secretary of its Board of Directors (i) certifying
that a true and correct copy of the Charter and Bylaws of
the Artemis Entities and all resolutions of the Board of
Directors of Proha authorizing the execution and delivery
of this Agreement and each Document to which Proha is a
party and authorizing the performance by Proha of the
transactions contemplated hereby and thereby is attached
thereto and (ii) containing the incumbency and specimen
signature of each of the officers of Proha.
(j) Proha's stockholders shall have elected Proha Nominees
and the Other Nominees to the Board of Directors of
Proha, subject to the completion of the transactions
contemplated herein.
(k) The reorganization of the Artemis Entities described in
Section 6.9 shall have occurred.
(l) Proha shall have delivered the Artemis Entities U.S. GAAP
Financial Statements and the representation contained in
Section 6.5(c) shall be true and correct.
(m) Proha's stockholders shall have authorized the
transactions contemplated by this Agreement in accordance
with the Companies Act.
(n) Proha shall have executed and delivered the July Proha
Voting Agreement."
14. Amendment to Section 7.2. Section 7.2 of the Agreement is hereby
amended by deleting it in its entirety and substituting the
following in lieu thereof:
"SECTION 7.2. Conditions to Proha's Obligations to the
First Closing. The obligations of Proha hereunder
required to be performed at the First Closing shall be
subject, at its election, to the satisfaction or waiver
(which waiver, if so requested by the Company, shall be
made in writing), at or prior to the First Closing, of
the following conditions:
(a) The representations and warranties of the Company
contained in this Agreement shall be true and correct in
all material respects when made and on and as of the
First Closing Date, as if such representation or warranty
was made as of the First Closing, except to the extent
that any such representation or warranty is made as of a
specified date, in which case such representation or
warranty shall have been true and correct as of such
specified date.
(b) The Company shall have performed in all material respects
all obligations and agreements, and complied in all
material respects with all covenants (except, in the case
of Section 5.1(a)(vi), which the Company shall have
complied with in all respects), contained in this
Agreement and the other Documents, to be performed and
complied with by it at or prior to the First Closing
Date.
(c) The Company's Board of Directors shall consist of not
more than eight (8) directors. The Company shall have
taken all necessary action so that the Board of Directors
of the Company shall have approved the election of Proha
Nominees and the Other Directors.
(d) All Documents, instruments, agreements and arrangements
relating to the transactions contemplated by the
Documents shall be reasonably satisfactory to Proha,
shall have been executed and delivered by the parties
thereto (including, but not limited to, the Registration
Rights Agreement and the Second Amendment to Employment
Agreement in the form of Exhibit D hereto), and shall be
in full force and effect and no party to any of the
foregoing (other than Proha) shall have breached any of
its material obligations thereunder.
(e) There shall be no litigation, proceeding or other action
seeking an injunction or other restraining order, damages
or other relief from a Governmental Authority pending or
threatened which, in the reasonable judgment of Proha,
would materially adversely affect the consummation of the
transactions contemplated by the Documents on the terms
contemplated hereby and thereby and there shall be no
litigation, proceeding or other action (including,
without limitation, relating to environmental matters or
the Company Employee Benefit Plans) or its Subsidiaries
which could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; provided,
however, that a Shareholder Complaint shall expressly not
be such a litigation, proceeding or other action.
(f) During the seven-calendar-day period ending on the First
Closing Date, a general banking moratorium shall not have
been declared by Federal, New York or Finnish
authorities.
(g) All material governmental and regulatory approvals and
clearances and all third-party consents necessary for the
consummation of all of the transactions contemplated by
the Documents to occur on the First Closing Date shall
have been obtained and shall be in full force and effect,
and Proha shall be reasonably satisfied that the
consummation of such transactions does not and will not
contravene any Applicable Law, except to the extent any
contravention or contraventions, individually or in the
aggregate, could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(h) The Company shall have delivered to Proha a certificate,
executed by it or on its behalf by a duly authorized
representative, dated as of the First Closing Date,
certifying that each of the conditions specified in this
Section 7.2 has been satisfied.
(i) Proha shall have received delivery of the First Tranche.
(j) The Company shall have delivered to Proha certificates of
the appropriate public officials to the effect that each
of the Company and its Subsidiaries is a validly existing
corporation in good standing in its jurisdiction of
organization dated not more than five (5) days prior to
the First Closing Date.
(k) The Company shall have delivered to Proha a certificate
of the Secretary of the Company (i) certifying that a
true and correct copy of the Charter and Bylaws of the
Company and all resolutions of the Board of Directors
authorizing the execution and delivery of this Agreement
and each Document to which the Company is a party and
authorizing the performance by the Company of the
transactions contemplated hereby and thereby is attached
thereto and (ii) containing the incumbency and specimen
signature of each of the officers of the Company.
(l) Proha shall have received such other certificates,
instruments and documents in furtherance of the
transactions contemplated by this Agreement or the other
Documents as it may reasonably request.
(m) Proha's stockholders shall have authorized the
transactions contemplated by this Agreement in accordance
with the Companies Act."
15. Insertion of New Section 7.3. A new Section 7.3 of the Agreement
is hereby added:
"SECTION 7.3. Conditions to the Company's Obligations at
the Second Closing. The obligations of the Company
hereunder required to be performed at the Second Closing
shall be subject, at its election, to the satisfaction or
waiver (which waiver, if so requested by Proha, shall be
made in writing), at or prior to the Second Closing, of
the following conditions:
(a) There shall be no decision or order of a Governmental
Authority which, by its terms, enjoins the consummation
of the transactions contemplated by the Documents on the
terms contemplated hereby and thereby.
(b) The Company shall have received stock certificates (to
the extent certificated) representing (i) a number of IOY
Shares representing 19.9% of the issued and outstanding
IOY Shares on a Fully Diluted Basis on the Second Closing
Date, and (ii) a number of AOY Shares representing 19.9%
of the issued and outstanding AOY Shares on a Fully
Diluted Basis on the Second Closing Date.
(c) Proha shall have delivered to the Company certificates of
the appropriate public officials, if available, to the
effect that each of Proha and each of IOY and AOY is a
validly existing corporation in good standing (to the
extent that the concept of good standing is recognized
under the laws of the relevant jurisdiction of
organization) in its jurisdiction of organization dated
not more than five (5) days prior to the Second Closing
Date.
(d) The Company shall have received Stockholder Approval."
16. Insertion of New Section 7.4. A new Section 7.4 of the Agreement
is hereby added:
"SECTION 7.4. Conditions to Proha's Obligations at the
Second Closing. The obligations of Proha hereunder
required to be performed at the Second Closing shall be
subject, at its election, to the satisfaction or waiver
(which waiver, if so requested by the Company, shall be
made in writing), at or prior to the Second Closing, of
the following conditions:
(a) There shall be no decision or order of a Governmental
Authority which, by its terms, enjoins the consummation
of the transactions contemplated by the Documents on the
terms contemplated hereby and thereby.
(b) Proha shall have received delivery of the Second Tranche.
(c) The Company shall have delivered to Proha certificates of
the appropriate public officials to the effect that each
of the Company and its Subsidiaries is a validly existing
corporation in good standing in its jurisdiction of
organization dated not more than five (5) days prior to
the Second Closing Date.
17. Amendment to Section 8.3. Section 8.3 of the Agreement is hereby
amended by adding, as a new subsection (i), the following:
(i) Notwithstanding anything contained in Section 8.3(d) to
the contrary, prior to the earlier to occur of (x) the
Second Closing or (y) the termination of this Agreement
pursuant to Section 9.4(a), a committee of the Company's
Board of Directors (other than the Proha Nominees) shall
be composed of the directors of Opus other than the Proha
Nominees (the "Opus Directors Committee"). The Opus
Directors Committee shall have the powers set forth in
Section 6.3. Proha shall not terminate the Opus Directors
Committee prior to the earlier to occur of (x) the Second
Closing or (y) the termination of this Agreement pursuant
to Section 9.4(a). Proha acknowledges and agrees that the
Opus Directors Committee needs and will receive adequate
resources, including, without limitation, access to the
Company's books and records, management, legal counsel
and financial advisors.
18. Amendment to Section 9.1.
(a) Subsection (a) of Section 9.1 of the Agreement is hereby
amended by deleting it in its entirety and substituting
the following in lieu thereof:
"All representations and warranties contained in this
Agreement shall be deemed made at the applicable Closing
as if made at such time (except to the extent that any
such representation or warranty is made as of a specified
date, in which case such representation or warranty shall
have been true and correct as of such specified date) and
shall survive the applicable Closing for nine (9) months,
and all covenants and agreements shall survive the
applicable Closing in accordance with their terms, except
that (i) with respect to claims asserted pursuant to this
Section 9.1 before the expiration of the applicable
representation or warranty, such claims shall survive
until the date they are finally liquidated or otherwise
resolved, (ii) Sections 3.12, 3.17, 3.18, 4.12, 4.17 and
4.18 shall survive until thirty (30) days after the end
of the applicable statute of limitations (as waived,
tolled or amended), (iii) Sections 3.6 and 4.6 and this
Section 9.1 shall survive indefinitely and (iv) Section
8.2 shall survive in accordance with its terms. All
statements as to factual matters contained in any
certificate, document or other instrument executed and
delivered by the parties pursuant hereto shall be deemed
to be representations, warranties and covenants by such
party hereunder. No claim may be commenced under this
Section 9.1 (or otherwise) following expiration of the
applicable period of survival, and upon such expiration
the Indemnifying Party shall be released from all
liability with respect to claims under each such section
not theretofore made by the Indemnified Party. A claim
shall be made or commenced hereunder by the Indemnified
Party delivering to the Indemnifying Party a written
notice specifying in reasonable detail the nature of the
claim, the amount claimed (if known or reasonably
estimable), and the factual basis for the claim."
(b) Subsection (b) of Section 9.1 of the Agreement is hereby
amended by inserting the word "applicable" prior to the
word "Closing" in each instance where it appears.
19. Amendment to Section 9.4. Section 9.4 of the Agreement is hereby
amended by deleting it in its entirety and substituting the
following in lieu thereof:
"SECTION 9.4. Termination; Fees; Adjustment.
(a) This Agreement may be terminated:
(i) by mutual agreement of the parties at any time;
provided, that after the First Closing such
agreement include the consent of the Opus
Directors Committee,
(ii) by either party, if the Stockholder Approval
shall have not been obtained by December 15,
2001 (except if the failure to obtain the
Stockholder Approval is due to Proha's breach of
the July Proha Voting Agreement, in which case
Proha may not terminate this agreement);
(iii) by either party if any court of competent
jurisdiction or any Governmental Authority shall
have issued an order, decree or ruling or taken
any other action permanently restricting,
enjoining, restraining or otherwise prohibiting
the transactions contemplated hereby and such
order, decree or ruling or other action shall
have become final and nonappealable;
(iv) by the Company if (x) the Board of Directors of
Proha fails to recommend the approval of this
Agreement and the transactions contemplated
hereby to its stockholders at a duly convened
meeting, (y) the representation contained in
Section 6.5(c) shall not be true and correct or
(z) if Proha breaches the July Proha Voting
Agreement;
(v) by Proha if (x) prior to the First Closing Date,
the Board of Directors of the Company approves
an Alternative Transaction, or (y) prior to the
First Closing Date, the Company otherwise
materially breached the provisions of Sections
5.5 or 5.7 or (z) prior to the First Closing,
the Company otherwise materially breached the
provisions of Section 5.1(a)(vi) of this
Agreement.
(b) In addition to the foregoing, this Agreement shall
automatically terminate and be of no further force and
effect if the First Closing is not consummated on or
prior to September 30, 2001.
(c) If this Agreement is terminated prior to the First
Closing (x) by Proha in accordance with Section 9.4(a)(v)
(other than a termination pursuant to Section
9.4(a)(v)(z) prior to the delivery by Proha of the
Artemis Entities U.S. GAAP Financial Statements) or (y)
by the Company in accordance with Section 9.4(a)(iv), the
Company or Proha, as the case may be, shall (x) reimburse
Proha or the Company, as the case may be, in immediately
available funds for the out-of-pocket expenses of Proha
or the Company, as the case may be, (including, without
limitation, printing fees, filing fees and fees and
expenses of its legal advisors and outside accountants
(which shall include, in the case of Proha, all fees and
expenses of its outside accountants incurred in
connection with preparing the Artemis Entities U.S. GAAP
Financial Statements)) related to this Agreement or the
other Documents, the transactions contemplated hereby and
thereby and any related financing, and (y) pay to Proha
or the Company, as the case may be, in immediately
available funds an amount equal to $250,000 (the
"Termination Fee").
(d) If this Agreement is terminated prior to the Second
Closing by Proha or the Company pursuant to Section
9.4(a)(ii) hereof and (x) Proha has not breached the July
Proha Voting Agreement, (y) an Alternative Transaction
has been made and publicly announced or communicated to
the Company's shareholders after the date of this
Agreement and prior to the Stockholders Meeting, and (z)
concurrently with or within twelve (12) months after the
date of such termination the Company enters into a
binding agreement with respect to such Alternative
Transaction, then the Company shall (i) within one (1)
Business Day of the date of termination pursuant to
Section 9.4(a)(ii) (A) pay to Proha 50% of the
Termination Fee and (B) reimburse Proha in immediately
available funds for the out-of-pocket expenses of Proha
(including, without limitation, printing fees, filing
fees and fees and expenses of its legal advisors and
outside accountants (which shall include, in the case of
Proha, all fees and expenses of its outside accountants
incurred in connection with preparing the Artemis
Entities U.S. GAAP Financial Statements)) related to this
Agreement or the other Documents, the transactions
contemplated hereby and thereby and any related
financing, and (ii) within one (1) Business Day of the
consummation of such Alternative Transaction (including
any revisions or amendments thereto) pay to Proha 50% of
the Termination Fee.
(e) In the event that following the First Closing, (x) this
Agreement is terminated pursuant to Section 9.4(a)(ii)
and (y) Proha has not breached the July Proha Voting
Agreement, then:
(i) the Company shall deliver, within fifteen
Business Days, to Proha such number of the
Artemis Shares as equals:
(1) the number of Artemis Shares received
by Opus at the First Closing,
(2) multiplied by a fraction where the
numerator is the Second Tranche, and
the denominator is the number of Opus
Shares,
(ii) Proha shall deliver, within fifteen Business
Days, to the Company such number of IOY Shares
and AOY Shares as equals:
(1) 19.9% of the issued and outstanding IOY
Shares and AOY Shares on a
Fully-Diluted Basis (calculated as if
the Second Closing had occurred on the
date of such termination),
(2) multiplied by a fraction where the
numerator is the sum of the First
Tranche and any other shares of Common
Stock issued to Proha prior to such
termination, and the denominator is the
number of Opus Shares, and
(iii) the certificates representing the shares to be
transferred to the Company or to Proha, as the
case may be, shall be duly endorsed, or
accompanied by stock powers duly endorsed, by
Proha or the Company, as the case may be (or the
appropriate Subsidiary of such Person), for
transfer to the Company, or to Proha, as the
case may be, with all necessary transfer tax and
other revenue stamps affixed (such taxes and the
cost of such stamps, if any, to be borne equally
by the parties), or in cases in which any of
such shares to be transferred to the Company or
to Proha, as the case may be, have not been
certificated, the stock record books of the
respective issuer of such shares to be
transferred to the Company or to Proha, as the
case may be, shall be updated to record the
transfer of such shares.
(iv) For purposes of this Section 9.4(e), each number
of shares shall be appropriately adjusted to
reflect the occurrence of any stock split, stock
dividend, stock combination, stock subdivision
or similar event.
(f) No termination of this Agreement shall affect any party's
liability for willful breach of this Agreement and,
except for liability from a willful breach, or pursuant
to Section 9.4(c), or (d) or (e), no party shall have any
liability to the other in the event of a termination of
this Agreement.
20. Amendment to Section 9.10. Section 9.10 of the Agreement is hereby
amended by deleting the phrase "the Closing" and substituting the
phrase "either Closing" in lieu thereof.
21. Amendment to Section 9.15. Section 9.15 of the Agreement is hereby
amended by adding, as a new last sentence, the following:
"The covenants of Proha contained in Section 6.3, 6.4 and
this Section 9.15 shall apply to both the First Closing
and the Second Closing and shall have the same force and
effect with respect to each Closing Date."
22. Governing Law. This Amendment and the rights and obligations of
the parties hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York, and each party
hereto submits to the non-exclusive jurisdiction of the state and
federal courts within the County of New York in the State of New
York. Any legal action or proceeding with respect to this
Amendment may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New
York and, by execution and delivery of this Amendment, the Company
and Proha hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Company and Proha further irrevocably
consents to the service of process out of any of the
aforementioned courts in any action or proceeding by the mailing
of copies thereof by registered or certified mail, postage
prepaid, to the Company at its address set forth in Section 9.2 of
the Agreement, such service to become effective seven days after
such mailing. Nothing herein shall affect the right of Proha or
the Company to serve process in any of the matters permitted by
law or to commence legal proceedings or otherwise proceed against
the Company in any other jurisdiction. The Company and Proha
hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this
Amendment brought in the courts referred to above and hereby
further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
23. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, and all
of which taken together shall constitute one and the same
instrument.
24. Ratification. As modified hereby, the Agreement and its terms and
provisions are hereby ratified for all purposes and in all
respects.
[Execution Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first written above.
OPUS360 CORPORATION
By: /s/ Xxx X. Xxxxxxxx
--------------------------
Name: Xxx X. Xxxxxxxx
Title: Chairman and CEO
PROHA PLC
By: /s/ Pekka Pere
--------------------------
Name: Pekka Pere
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: President and CEO, Artemis International
