Exhibit 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
by and among
XXXXX INC.,
ODI ACQUISITION COPRORATON,
and
ONTRACK DATA INTERNATIONAL, INC.
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Dated as of April 25, 2002
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AMENDMENT NO. 1
to
AGREEMENT AND PLAN OF REORGANIZATION
AMENDMENT NO. 1, dated as of April 25, 2002 (the "Amendment"), to
Agreement and Plan of Reorganization dated April 1, 2002 by and among Xxxxx
Inc., ODI Acquisition Corporation and ONTRACK Data International, Inc. (the
"Merger Agreement").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto are parties to the Merger Agreement;
WHEREAS, the parties hereto desire to amend certain provisions of the
Merger Agreement on the terms and conditions set forth herein; and
WHEREAS, capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Merger Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the parties hereto agree
as follows:
1. Section 7.1(f)(v) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
"(v) subject to Target's right to adjourn the Target Stockholder
Meeting in accordance with Section 5.3(a) hereof, for any reason
Target fails to call and hold the Target Stockholder Meeting
within 45 days after the Registration Statement is declared
effective under the Securities Act if such date is on or before
the Outside Date;"
2. The definition of "Average Stock Price" set forth in Schedule A to
the Merger Agreement is hereby amended and restated to read in it entirety as
follows:
"Average Stock Price" shall mean the volume weighted average
price of Acquiror Common Stock on the Nasdaq National Market for
the twenty (20) consecutive trading days ending three (3) trading
days prior to the date of the vote taken in respect of the Merger
at Target Stockholder Meeting as calculated on the VAP screen on
the Bloomberg Professional(TM) Service and shown as VWAP for such
period, as adjusted for any stock split,
recapitalization, reorganization or other similar corporate
transaction.
3. Each of the parties hereto represents and warrants to the other
parties hereto that the execution, delivery and performance of this Amendment
have been duly authorized by all necessary corporate action and that this
Amendment constitutes the valid and binding obligations of each such party,
enforceable against such party in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency, moratorium and the
relief of debtors and the availability of specific remedies.
4. Except as expressly amended hereby, the Merger Agreement, each Voting
Agreement and each Proxy (as defined in the applicable Voting Agreement) are
hereby ratified and confirmed by the applicable party(s) thereto and shall
remain in full force and effect.
5. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to applicable principles of
conflicts of law. This Amendment may be executed by facsimile signature and in
one or more counterparts, all of which, when executed and delivered, shall be
considered one and the same agreement.
* * *
[signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed and delivered by their respective officers duly authorized, all
as of the date first above written.
ONTRACK DATA INTERNATIONAL, INC.
By /s/
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Name:
Title:
XXXXX INC.
By /s/
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Name:
Title:
ODI ACQUISTION CORPORATION
By /s/
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Name:
Title:
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