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EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER is dated as of
July 28, 1999 (the "Amendment") by and among RealNetworks, Inc., a Washington
corporation ("RealNetworks"), XTC Acquisition Corp., a Delaware corporation and
the wholly-owned subsidiary of RealNetworks ("Purchaser"), Xing Technology
Corporation, a California corporation (the "Company"), and, Xxxxxx Xxxx and Xxxx
Xxxxxx (collectively, the "Executive Shareholders").
SECTION 1. RECITALS OF FACT.
1.1 RealNetworks, Purchase, the Company and the Executive Shareholders
have entered into an Agreement and Plan of Merger (the "Merger Agreement") dated
as of April 12, 1999. The parties hereto desire to extend the term of the Merger
Agreement as set forth herein. Capitalized terms used herein which are not
otherwise defined shall have the meanings given to such terms in the Merger
Agreement.
SECTION 2. AMENDMENT.
Section 7.1(c) of the Merger Agreement is amended and restated in its
entirety as follows:
"c. By either RealNetworks or the Company if the Closing has not
occurred (other than through the failure of the party seeking to
terminate this Agreement to comply with its obligations under this
Agreement) on or before August 31, 1999 (the "Permitted Termination
Date"), provided however, that the Permitted Termination Date shall
be September 20, 1999 if (i) holders of more than five percent (5%)
of the outstanding shares of Company Common Stock (assuming
conversion of all outstanding shares of Preferred Stock) may, on
August 31, 1999, still perfect dissenters' rights under applicable
law, and (ii) the conditions to Closing set forth in Sections
6.1(a), (b), (c) and (e), 6.2(a), (b) and (d) and 6.3(a), (b), (f),
(g) and (l) would have been met on August 31, 1999 had the Closing
occurred on such date."
SECTION 3. MISCELLANEOUS.
(a) Except as set forth herein, the Merger Agreement shall continue in
full force and effect.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of California without regard to its rules of conflict
of laws.
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(c) This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment and caused
the same to be duly delivered on their behalf on the day and year first written
above.
REALNETWORKS, INC.
By:/s/ Xxxx Xxxxxx
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Title: Sr. Vice President, Finance &
Operations and Chief Financial Officer
XTC ACQUISITION CORP.
By:/s/ Xxxx Xxxxxx
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Title: Vice President
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XING TECHNOLOGY CORPORATION
By:/s/ Xxxxxx Xxxx
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Title: Chief Executive Officer
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/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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