EXHIBIT 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Agreement") is
made as of this 28th day of May, 1998 by and among H.T.E., INC., a Florida
corporation ("Parent"), H.T.E.-UCS, INC., a Florida corporation ("Subsidiary"),
UCS, INC., a Florida corporation ("Company"), and O. F. XXXXX, XXXXXXX X. NORTH,
XXXXXX X. XXXXXX, XXXXX XXXXX, XXXXXX X. XXXXXX and XXXXX X. NORTH (the
"Shareholders").
WITNESSETH:
WHEREAS, the parties have entered into that certain Agreement and Plan of
Merger dated as of May 12, 1998 (the "Merger Agreement") pursuant to which the
Parent has agreed to acquire the Company by a merger of the Subsidiary with and
into the Company, with the Company being the Surviving Entity (other capitalized
terms used herein having the meanings ascribed to such terms in the Merger
Agreement, unless otherwise defined herein); and
WHEREAS, the parties agreed in SECTIONS 9.1 of the Merger Agreement that
the representations and warranties of the Shareholders shall survive the Closing
Date and continue in full force and effect either for a period of three (3)
years or perpetually (or until the relevant statute of limitations), as the case
may be.
WHEREAS, on the advice of the parties' respective outside auditors and in
order to meet certain guidelines for causing the Merger contemplated by the
Merger Agreement to be accountable as a pooling of interests business
combination, the parties now desire that such representations and warranties of
the Shareholders shall survive the Closing Date and continue in full force and
effect until (i) the date of the first audit of financial statements containing
combined operations of the Parent and the Company for those representations and
warranties that would be expected to be encountered in the audit process, and
(ii) one (1) year from the Closing Date for all other representations and
warranties, as appropriate, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree to amend the Merger Agreement as follows:
1. AMENDMENT TO SECTION 9.1. Section 9.1 is hereby amended by deleting such
Section in its entirety and substituting therefore the following words:
9.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Shareholders contained in
EXHIBIT 2 hereof shall survive the Closing Date and continue in full force
and effect until (i) the date of the first audit of financial statements
containing combined operations of the Parent and the Company for those
representations and warranties that would be expected to be encountered in
the audit process, and (ii) one (1) year from the Closing Date for all
other representations and warranties, as appropriate. Notwithstanding any
knowledge of facts determined or determinable by any party by
investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other parties
contained in this Agreement, including without limitation the rights to
indemnification set forth in this Article IX, or in any other documents or
papers delivered in connection herewith. Each representation, warranty,
covenant and agreement of the parties contained in this Agreement is
independent of each other representation, warranty, covenant and agreement.
Each of the representations and warranties of Parent shall expire at the
Effective Time.
An amended page 20 of the Merger Agreement reflecting such changes is attached
hereto and such amended page 20 shall be substituted in the Merger Agreement for
the original page 20.
2. SURVIVAL. This Agreement modifies and/or amends, as the case may be,
only that portion of the Merger Agreement stated herein; in all other respects
the Merger Agreement as so modified is ratified and affirmed by the parties and
all other provisions and obligations of the Merger Agreement remain unaltered
and in full force and effect and shall apply to this Agreement with full force
and effect as if this Agreement were a part thereof. To the extent that any term
or provision of this Agreement is or may be deemed expressly inconsistent with
any term or provision in the Merger Agreement or any other document executed in
connection with the transactions contemplated thereby, the terms and provisions
hereof shall control.
This Agreement may be executed in one or more counterparts, each of which
shall constitute an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered
this Agreement in the presence of:
H.T.E., INC.,
a Florida corporation
By: /s/
------------------------------------
Name: X.X. XXXXXX, JR.
Title: EXECUTIVE VICE PRESIDENT
HTE - UCS, INC.,
a Florida corporation
By: /s/
Name: X.X. XXXXXX, JR.
Title: EXECUTIVE VICE PRESIDENT
/s/
------------
O. F. XXXXX
/s/
----------------
XXXXXXX X. NORTH
/s/
----------------
XXXXXX X. XXXXXX
/s/
-----------
XXXXX XXXXX
[SIGNATURES CONTINUE ON NEXT PAGE]
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/s/
----------------
XXXXXX X. XXXXXX
/s/
--------------
XXXXX X. NORTH
UCS, INC.,
a Florida corporation
By: /s/
---------------------------------
Name: O.F. XXXXX
Title: PRESIDENT
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8.3 MANDATORY REGISTRATION. Within 30 business days after the Closing,
Parent agrees to file a registration statement with the SEC covering the shares
of Parent Common Stock comprising Merger Consideration, under the terms and
conditions set forth in the Registration Rights Agreement.
ARTICLE II
INDEMNIFICATION
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Shareholders contained in EXHIBIT 2
hereof shall survive the Closing Date and continue in full force and effect
until (i) the date of the first audit of financial statements containing
combined operations of the Parent and the Company for those representations and
warranties that would be expected to be encountered in the audit process, and
(ii) one (1) year from the Closing Date for all other representations and
warranties, as appropriate. Notwithstanding any knowledge of facts determined or
determinable by any party by investigation, each party shall have the right to
fully rely on the representations, warranties, covenants and agreements of the
other parties contained in this Agreement, including without limitation the
rights to indemnification set forth in this Article IX, or in any other
documents or papers delivered in connection herewith. Each representation,
warranty, covenant and agreement of the parties contained in this Agreement is
independent of each other representation, warranty, covenant and agreement. Each
of the representations and warranties of Parent shall expire at the Effective
Time.
9.2 INDEMNIFICATION OF PARENT BY CONTROLLING SHAREHOLDERS. Notwithstanding
anything herein to the contrary, but subject to the express limitations
otherwise described herein, each of the Controlling Shareholders agrees to
defend, hold harmless and indemnify Parent and its affiliates, and their
respective employees, directors, agents and representatives and its successors
and assigns (the "PARENT INDEMNIFIED PARTIES"), computed net of the present
value of all tax benefits which may be taken advantage of on the tax returns
filed with the IRS or any state, from and for all claims, demands, actions,
damages (excluding consequential, incidental or special damages or damages
resulting from lost profits or savings), liabilities and losses (including court
costs, reasonable attorney's fees and other expenses, whether or not suit is
filed, and including such costs, fees and expenses in any trial court and on any
appeal) ("ADVERSE CONSEQUENCES") that may accrue, arise, be made against or
sustained by any of Parent Indemnified Parties following the Closing Date on
account of or resulting from any breach (or alleged breach) of any of Company's
or Shareholders' representations, covenants or warranties set forth herein or
any other provision of this Agreement; PROVIDED, HOWEVER, that: (a) the
Controlling Shareholders shall not have any obligation to indemnify Parent
Indemnified Parties hereunder until Parent Indemnified Parties have suffered by
reason of all such breaches in excess of a $125,000 aggregate threshold (at
which point the Controlling Shareholders will be obligated to indemnify Parent
Indemnified Party or Parent Indemnified Parties from and against all such
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