EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT") is
made and entered into as of October 2, 2006, among Art Technology Group, Inc., a
Delaware corporation ("PARENT"), Arlington Acquisition Corp., a Maryland
corporation and a wholly owned subsidiary of Parent ("MERGER SUB 1"), Storrow
Acquisition Corp., a Maryland corporation and a wholly owned subsidiary of
Parent ("MERGER SUB 2"and, with Merger Sub 1, each a "MERGER SUB"), eStara,
Inc., a Maryland corporation (the "COMPANY"), and Xxxxxx X. XxXxxxxxxxx, as the
representative of the Company Stockholders.
RECITALS
WHEREAS, the parties entered into an Agreement and Plan of Merger dated
September 18, 2006 (the "ORIGINAL MERGER AGREEMENT") and desire to amend the
Original Merger Agreement as hereinafter set forth (capitalized terms used and
not otherwise defined herein shall have the meanings set forth in the Original
Merger Agreement); and
WHEREAS, the Original Merger Agreement provides that it may be amended by
the parties thereto at any time by execution of an instrument in writing signed
on behalf of each of Parent, the Company and the Stockholder Representative;
In consideration of the foregoing and the representations, warranties,
covenants and agreements set forth in this Agreement, the parties agree as
follows:
ARTICLE 1
AMENDMENTS
1.1 SCHEDULE II. The Original Merger Agreement is hereby amended by
deletion of Schedule II attached thereto and by substitution therefor of the
revised and updated Schedule II in the form attached to this Amendment. All
references in the Original Merger Agreement to Schedule II shall be deemed to
refer to Schedule II in the form attached to this Amendment.
1.2 COMPANY DISCLOSURE SCHEDULE. The Original Merger Agreement is hereby
amended by deletion of the Company Disclosure Schedule attached thereto and by
substitution therefor of the revised and updated Company Disclosure Schedule in
the form attached to this Amendment. All references in the Original Merger
Agreement to the Company Disclosure Schedule shall be deemed to refer to the
Company Disclosure Schedule in the form attached to this Amendment.
1.3 SECTION 6.13. Section 6.13 of the Original Merger Agreement is hereby
amended so as to read in its entirety as follows:
6.13 CERTAIN EMPLOYEE BENEFITS. As soon as practicable after the execution
of this Agreement, the Company and Parent shall confer and work together
in good faith to agree upon mutually acceptable employee benefit and
compensation arrangements (and terminate the Company Employee Plans
immediately prior to the Effective Time if appropriate). The Company
agrees that, at the request of Parent, it will terminate any
Employee Plans, severance, separation, retention and salary continuation
plans, programs or arrangements, in each case prior to the Effective Time.
Each individual who is employed by the Company immediately prior to the
Effective Time shall remain an employee of the Company following the
Effective Time, provided, however that nothing in this Section 6.13 shall
be construed to limit the ability of the applicable employer to terminate
the employment of any such employee following the Effective Time in
accordance with applicable Legal Requirements. To the extent the
applicable plan permits, or can be amended to permit, Parent shall
recognize each such employee's service with, or recognized by, the Company
prior to the Closing Date as service with Parent or its subsidiary, as
applicable, in connection with any pension plan, 401(k) savings plan and
welfare benefit plan (including vacations and holidays) maintained by
Parent or such subsidiary that is made available by Parent, in its sole
discretion, to such employee following the Closing Date and in which such
employee elects to participate for purposes of any waiting period,
vesting, eligibility and benefit entitlements (but excluding benefit
accruals other than vacation) and shall cause all applicable welfare
benefit plans to waive any preexisting condition limitation, exclusion or
waiting period for such employees and their dependents, to the same extent
such limitations, exclusions or waiting periods were satisfied, covered or
waived under similar Company Benefit Plans. Parent shall credit such
employees with any amounts paid prior to the Closing Date under any
Company Benefit Plan with respect to satisfaction of any applicable
deductible amounts and co-payment minimums under any Parent plans
established as of the Closing Date which provide similar benefits.
ARTICLE 2
GENERAL PROVISIONS
2.1 COUNTERPARTS; FACSIMILE. This Amendment may be executed in
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. For purposes of this Amendment, a
document (or signature page thereto) signed and transmitted by facsimile
machine, telecopier or electronic mail is to be treated as an original document.
The signature of any party thereon, for purposes hereof, is to be considered as
an original signature, and the document transmitted is to be considered to have
the same binding effect as an original signature on an original document. At the
request of any party, any facsimile, telecopy or scanned document is to be
re-executed in original form by the parties who executed the facsimile, telecopy
or scanned document. No party may raise the use of a facsimile machine,
telecopier or electronic mail or the fact that any signature was transmitted
through the use of a facsimile, telecopier or electronic mail as a defense to
the enforcement of this Amendment or any amendment or other document executed in
compliance with this Amendment.
2.2 ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. The Original Merger
Agreement, together with its Exhibits and Schedules and the documents and
instruments and other agreements among the parties hereto as contemplated by or
referred to therein, including the Company Disclosure Schedule and the Parent
Disclosure Schedule, in each case as expressly amended by this Amendment, (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, it being
understood that the Confidentiality Agreement shall continue in full force and
effect until the Closing and shall survive any termination of the Original
Merger Agreement; and (b) are not intended to confer upon any other person any
rights or remedies hereunder.
2.3 GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Agreement and Plan of Merger to be executed by their duly authorized respective
officers as of the date first written above.
ART TECHNOLOGY GROUP, INC.
/s/ XXXXXX X. XXXXX
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By: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
ARLINGTON ACQUISITION CORP.
/s/ XXXXXX X. XXXXX
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By: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
STORROW ACQUISITION CORP.
/s/ XXXXXX X. XXXXX
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By: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
ESTARA, INC.
/s/ XXXX XXXXXXXX
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By: Xxxx Xxxxxxxx
Title: Chief Executive Officer
STOCKHOLDER REPRESENTATIVE
/s/ XXXXXX XXXXXXXXXXX
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Xxxxxx XxXxxxxxxxx
