AMENDMENT TO THE AGREEMENT
AND PLAN OF MERGER
(this "Amendment"), dated
as of June 27, 2001, by and among
DATA RESEARCH
ASSOCIATES, INC., a Missouri corporation (the
"Company"), SIRSI HOLDINGS CORP., a Delaware
corporation
("Parent") and XXXXXXX ACQUISITION
INC., a Delaware
corporation ("Purchaser").
WHEREAS,
the Company, Parent and Purchaser (collectively, the “Parties”)
are parties to the Agreement and Plan of Merger, dated as of May 16, 2001 (the
“Agreement”). Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Agreement; and
WHEREAS, the Parties have determined that it is in each of their respective best interests to
amend the Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Receipt of Financing Letters.
(a) Section 8.1(c)(i) of
the Agreement is hereby amended by deleting the reference to “thirtieth
(30th)” in the first line thereof and replacing it with “fortieth
(40th)".
(b) Section 8.1(d)(iv) of
the Agreement is hereby amended by deleting the reference to “thirtieth
(30th)” in the first line thereof and replacing it with “fortieth
(40th)".
Section 2. Commencement of Offer.
(a) Section 8.1(b)(ii) of
the Agreement is hereby amended by deleting the reference to “fortieth
(40th)” in the first line thereof and replacing it with “fiftieth
(50th)".
(b) Section 8.1(d)(i) of
the Agreement is hereby amended by deleting the reference to “fortieth
(40th)” in the third line thereof and replacing it with “fiftieth
(50th)".
Section 3. No Other
Amendments. Except as expressly provided in this Amendment, each of the
terms and provisions of the Agreement shall remain in full force and effect in
accordance with their terms. The amendments set forth herein are limited
precisely as written and shall not be deemed to be an amendment or waiver to any
other term or condition of the Agreement or any of the documents referred to
therein. Whenever the Agreement is referred to herein in any other agreements,
documents and instruments, such reference shall be to the Agreement as amended
hereby.
Section 4.
Representations and Warranties of the Parties. Each Party hereby represents
and warrants: (i) the execution, delivery and performance of this Amendment is
within its corporate power, has been duly authorized by all necessary action and
is not in contravention of any of its organizational documents; (ii) this
Amendment has been duly executed and delivered by such Party; and (iii) this
Amendment constitutes the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms.
Section 5. Further
Assurances. Each Party shall duly execute and deliver, or cause to be duly
executed and delivered, such further instruments and documents and to take all
such actions, in each case as may be necessary or proper to carry out the
provisions and purposes of this Amendment.
Section 6. Notices. All notices or other communications pursuant to this
Amendment shall be in writing and shall be deemed to be sufficient if delivered
to those individuals and in the manner specified in Section 9.4
of the Agreement.
Section 7. Counterparts
and Facsimile Execution; Effectiveness. This Amendment may be executed in
two or more counterparts, all of which shall be considered one and the same and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered (by facsimile or otherwise) to the other party, it
being understood that all parties need not sign the same counterpart. Any
counterpart or other signature hereupon delivered by facsimile shall be deemed
for all purposes as constituting good and valid execution and delivery of this
Amendment by such party.
Section 8. Governing Law; Waiver of Jury Trial.
All questions concerning the construction,
interpretation and validity of this Amendment shall be governed by and construed
and enforced in accordance with the domestic laws of the State of Delaware
without giving effect to any choice or conflict of law provision or rule
(whether in the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware. In furtherance of the foregoing, the internal law of the State of
Delaware will control the interpretation and construction of this Amendment,
even if under such jurisdiction’s choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.
* * * * *
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first
written above.
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