AMENDMENT NO. 1
Exhibit 2.1
AMENDMENT
NO. 1
TO
THE
AMENDMENT
NO.1 (This “Amendment”) dated as of
December 13, 2009 to the Agreement and Plan of Merger (the
“Merger Agreement” or the
“Agreement”) dated as of September 27,
2009, among XEROX CORPORATION, a New York corporation (“Parent”), BOULDER
ACQUISITION CORP., a
Delaware corporation and a direct wholly owned subsidiary of Parent
(“Merger
Sub”), and AFFILIATED COMPUTER SERVICES, INC., a
Delaware corporation (the “Company”).
W I T N E
S S E T H:
WHEREAS,
Section 7.04 of the Merger Agreement provides for the amendment of the Merger
Agreement in accordance with the terms set forth therein;
WHEREAS,
the parties hereto desire to amend the Merger Agreement as set forth below;
and
WHEREAS,
the Board of Directors of each of the parties has approved this Amendment and
declared it advisable for the respective parties to enter into this
Amendment;
NOW,
THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained in this Amendment, and intending
to be legally bound hereby, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
|
SECTION
1.01.
|
Definitions;
References. Unless otherwise specifically defined herein, each term
used herein shall have the meaning assigned to such term in the
|
Merger
Agreement. Each reference to “hereof,” “herein” and “hereunder” and
words of similar import when used in the Merger Agreement shall, from and after
the date hereof, refer to the Merger Agreement, as amended by this
Amendment. Notwithstanding the foregoing, references to the date of
the Agreement, as amended hereby, shall in all instances continue to refer to
September 27, 2009, references to “the date hereof” and “the date of this
Agreement” shall continue to refer to September 27, 2009 and references to the
date of the Amendment and “as of the date of the Amendment” shall refer to
December 13, 2009.
ARTICLE
II
AMENDMENTS
TO MERGER AGREEMENT
|
SECTION
2.01.
|
Amendment to Section
3.01(m)(x). Section 3.01(m)(x) of the Merger Agreement is hereby
amended by replacing the reference to “Company
|
Stockholder
Approval” with “Requisite Stockholder Approvals.”
|
SECTION
2.02.
|
Amendment to Section
3.01(s). Section 3.01(s) of the Merger Agreement is hereby amended
and restated in its entirety to read as
follows:
|
|
“(s)
|
Voting
Requirements. Except for the vote necessary
to satisfy the condition set forth in Section 6.01(a)(i)(y), the
affirmative vote of holders of a majority in
|
voting
power of the outstanding shares of Company Common Stock, voting together as a
single class (the “Company Stockholder
Approval”), at the Company Stockholders’ Meeting or any adjournment or
postponement thereof is the only vote of the holders of any class or series of
capital stock of the Company necessary to adopt this Agreement and approve
the Merger and the other transactions contemplated by this
Agreement.”
|
SECTION
2.03.
|
Amendment to Section
4.02(a). Section 4.02(a) of the Merger Agreement is hereby amended
by replacing the reference to “Company Stockholder
|
Approval”
in the fourth sentence thereof with “Requisite Stockholder
Approvals.”
|
SECTION
2.04.
|
Amendment to Section
4.02(b). Section 4.02(b) of the Merger Agreement is hereby amended
by replacing the reference to “Company Stockholder
|
Approval”
in the second sentence thereof with “Requisite Stockholder
Approvals.”
|
SECTION
2.05.
|
Amendment to Section
5.01(b). Section 5.01(b) of the Merger Agreement is hereby amended
by replacing the reference to “Company Stockholder
|
Approval”
in the first sentence thereof with “Requisite Stockholder
Approvals.”
|
SECTION
2.06.
|
Amendment to Section
6.01. The introduction to Section 6.01 of the Merger Agreement is
hereby amended and restated in its entirety to read as
|
follows:
|
“SECTION
6.01.
|
Conditions to Each
Party’s Obligation to Effect the Merger. The respective
obligation of each party to effect the Merger is subject to the
satisfaction
|
or
(to the extent permitted by Law) waiver by Parent and the Company (other
than the conditions set forth in Section 6.01(a) which may not be waived by
either Parent or the Company) on or prior to the Closing Date of the following
conditions:”
|
SECTION
2.07.
|
Amendment to Section
6.01(a). Section 6.01(a) of the Merger Agreement is hereby amended
and restated in its entirety to read as
follows:
|
|
“(a)
|
Stockholder
Approvals.
|
|
(i)
|
(x)
The Company Stockholder Approval and (y) the adoption of this Agreement by
the affirmative vote of holders of a majority of the
|
|||
|
outstanding
shares of Company Class A Common Stock (other than those shares of Company
Class A Common Stock held, directly or indirectly, by holders of
Company Class B Common Stock), voting as a single, separate class
((x) and (y) together, the “Requisite Stockholder
Approvals”), shall have been obtained at the Company Stockholders’
Meeting or any adjournment or postponement
thereof.
|
||||
-2-
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(ii)
|
The
Parent Stockholder Approval shall have been obtained at the Parent
Stockholders’ Meeting or any adjournment or postponement
|
|||
|
thereof.”
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||||
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SECTION
2.08.
|
Amendment to Section
7.01. Section 7.01 of the Merger
Agreement is hereby amended by replacing the references to “Company
Stockholder
|
Approval”
in the first sentence of Section 7.01, Section 7.01(b)(iii) and Section 7.01(f)
with “Requisite Stockholder Approvals.”
|
SECTION
2.09.
|
Amendment to Section
7.04. Section 7.04 of the Merger
Agreement is hereby amended by replacing the reference to “Company
Stockholder
|
Approval”
in the first sentence thereof with “Requisite Stockholder
Approvals.”
|
SECTION
2.10.
|
Amendment to Section
8.03(f). Section 8.03(f) of the Merger Agreement is hereby amended
by replacing the reference to “Company Stockholder
|
Approval”
thereof with “Requisite Stockholder Approvals.”
ARTICLE
III
GENERAL
PROVISIONS
|
SECTION
3.01.
|
No Further
Amendment. Except as expressly amended
hereby, the Merger Agreement is in all respects ratified and confirmed and
all the terms,
|
conditions,
and provisions thereof shall remain in full force and effect. This
Amendment is limited precisely as written and shall not be deemed to be an
amendment to any other term or condition of the Merger Agreement.
|
SECTION
3.02.
|
Effect of
Amendment. This Amendment shall form
a part of the Merger Agreement for all purposes, and each party
thereto and hereto shall be
|
bound
hereby. From and after the execution of this Amendment by the parties
hereto, any reference to the Merger Agreement shall be deemed a reference to the
Merger Agreement as amended hereby. This Amendment shall be deemed to
be in full force and effect from and after the execution of this Amendment by
the parties hereto.
|
SECTION
3.03.
|
Headings. The headings contained in
this Amendment are for reference purposes only and shall not affect in any
way the meaning or interpretation
|
of
this Amendment.
|
SECTION
3.04.
|
Counterparts. This Amendment may be executed in one or
more 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 parties (including by facsimile or other
electronic image scan transaction).
-3-
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SECTION
3.05.
|
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 LAWS THEREOF.
|
SECTION
3.06.
|
Severability. If
any term or other provision of this Amendment is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all
|
other
conditions and provisions of this Amendment shall nevertheless remain in full
force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Amendment so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable Law in an acceptable manner to the end that the
transactions contemplated by this Amendment are fulfilled to the extent
possible.
[signature page
follows]
-4-
IN
WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment
to be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
| XEROX CORPORATION | |||
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxxxx | ||
| Name: Xxxxxxxx X. Xxxxxxxxx | |||
| Title: Vice Chairman and CFO | |||
| BOULDER ACQUISITION CORP | |||
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxxxx | ||
| Name: Xxxxxxxxx X. Xxxxxxxxx | |||
| Title: Vice President and Treasurer | |||
| AFFILIATED COMPUTER SERVICES, INC. | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx X. Xxxxxxxx | |||
| Title: President and CEO | |||
