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FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this "Amendment")
is made and entered into as of February 15, 2000, by and among (i)
XxxxxxxXxxx.xxx Incorporated, a Delaware corporation (successor in interest of
Xxxxxxxx.xxx Incorporated) (the "Parent"), (ii) CollegeLink Corporation, a
Delaware corporation (formerly named XxxxxxxXxxx.xxx Incorporated) (the "Merger
Sub"), (iii) Student Success, Inc., a Wisconsin corporation (the "Company"), and
(iv) Xxxxxxxx X. Xxxxx ("Xxxx Xxxxx"), Xxxxxxx X. X'Xxxxx ("Xxx X'Xxxxx") and
the Xxxxxxx X. X'Xxxxx Stock Trust (the "O'Brien Trust"; together with Xxxx
Xxxxx and Xxx X'Xxxxx, the "Shareholders").
RECITALS
A. On October 20, 1999, the Company and the Shareholders entered into
an Agreement and Plan of Merger (the "Original Agreement") with Xxxxxxxx.xxx
Incorporated, a New York corporation ("Cytation") and the Merger Sub.
B. On November 2, 1999, the Merger Sub changed its name from
"XxxxxxxXxxx.xxx Incorporated" to "CollegeLink Corporation".
C. On November 16, 1999, Cytation merged into a special purpose,
wholly-owned subsidiary of Cytation named XxxxxxxXxxx.xxx Incorporated (the
"Migratory Merger"). The corporation that survived the Migratory Merger acquired
and assumed by operation of law all of Cytation's assets and liabilities,
including Cytation's rights and obligations under the Original Agreement.
D. Parent and the Shareholders desire to amend certain provisions of
the Original Agreement as set forth herein.
NOW, THEREFORE, in consideration of the covenants and promises set
forth herein, and for other good and valuable consideration, the parties agree
as follows:
1. Definitions. Capitalized terms used, but not defined, herein shall
have the meanings ascribed to them in the Original Agreement.
2. Names.
(a) Parent. The preamble of the Original Agreement is hereby
amended by deleting "Xxxxxxxx.xxx Incorporated, a New York corporation" and
inserting in its place "XxxxxxxXxxx.xxx Incorporated, a Delaware corporation".
(b) Merger Sub. Section (ii) of the preamble of the Original
Agreement is hereby amended by deleting "XxxxxxxXxxx.xxx Incorporated" and
inserting in its place
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"CollegeLink Corporation".
(c) Surviving Corporation. The final sentence of Section 1.1
of the Original Agreement is hereby amended by deleting "XxxxxxxXxxx.xxx
Incorporated" and inserting in its place "CollegeLink Corporation".
3. Officers and Directors. Section 1.5 of the Original Agreement is
hereby amended by deleting the final sentence thereof and inserting the
following sentence in its place:
Xxx X'Xxxxx shall be the initial Chief Executive Officer of the
Surviving Corporation and Xxxx Xxxxx shall be the initial Vice
President - Sales and Marketing of the Surviving Corporation, each to
hold such office until their respective successors are duly elected or
appointed and qualified.
4. Effect on Capital Stock. Article 1 of the Original Agreement is
hereby amended by deleting Section 1.6 in its entirety and inserting the
following in its place:
1.6 Effect on Capital Stock. At the Effective Time, by virtue
of the Merger and without any action on the part of Merger Sub, the
Company or the holders of any of the Company's securities:
(a) Merger Consideration. Each share of Company
Common Stock issued and outstanding immediately prior to the Effective
Time except as provided in Sections 1.6(c) and 1.6(d) and any
Dissenting Shares (as defined and to the extent provided in Section
1.7(a)) will be canceled and extinguished and be converted
automatically into the right to receive:
(i) a cash payment ("Cash Payment"); and
(ii) the number of shares of Parent
Common Stock equal to the Exchange
Ratio.
Such consideration is hereinafter sometimes collectively referred to as
the "Merger Consideration."
The Exchange Ratio shall equal (i) 1,625,000, divided by (ii)
the number of shares of Company Common Stock outstanding as of the
Effective Time.
The Cash Payment shall equal (i) $2,200,000, less all expenses
including, without limitation, all legal and accounting fees and
expenses, of the Company and of the Shareholders relating to the
transactions contemplated hereby (other than the payment of the
reasonable expenses incurred by the Company for audit of its financial
statements to be
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included in the Parent's pending registration statement (SEC File No.
333-85079) and up to $50,000 for the Company's reasonable legal
expenses), divided by (ii) the number of shares of Company Common Stock
outstanding as of the Effective Time.
(b) Adjustments to Exchange Ratio. The Exchange Ratio
shall be adjusted to reflect fully the effect of any stock split,
reverse split, stock dividend (including any dividend or distribution
of securities convertible into Parent Common Stock or Company Common
Stock), reorganization, recapitalization or other like change with
respect to Parent Common Stock or Company Common Stock occurring after
the date of this Amendment and prior to the Effective Time.
(c) Fractional Shares. No fraction of a share of
Parent Common Stock will be issued, but in lieu thereof each holder of
shares of Company Common Stock who would otherwise be entitled to a
fraction of a share of Parent Common Stock (after aggregating all
fractional shares of Parent Common Stock to be received by such holder)
shall receive from Parent an amount of cash (rounded to the nearest
whole cent) equal to the product of (i) such fraction, multiplied by
(ii) $4.00.
(d) Treasury Stock. Each outstanding share of Company
Common Stock held by the Company as treasury stock immediately prior to
the Effective time shall be canceled without payment.
5. Expenses. Section 5.4 of the Original Agreement is hereby amended by
deleting the figure $25,000 and inserting in its place the figure $50,000.
6. Payments Before Merger. Section 5.12 of the Original Agreement is
hereby amended by deleting all of the text after the heading and inserting the
following in its place:
Parent paid the Shareholders (i) $100,000 on or about October 1, 1999,
(ii) $100,000 on or about November 16, 1999, (iii) $100,000 on or about
December 16, 1999, and $100,000 on or about January 15, 2000. The
foregoing payments shall be retained by the Shareholders whether or not
the Merger is consummated and shall not be credited against the Cash
Payment.
7. Representations and Warranties. Section 6.2 of the Original
Agreement is hereby amended by deleting Subsection (a) and inserting the
following in its place:
(a) Representations, Warranties and Covenants. The
representations and warranties of Parent and Merger Sub in this
Agreement shall be true and correct in all material respects on and as
of the Effective Time as though such representations and warranties
were made on and as of such time; provided, however, (i) that Section
3.1 shall be qualified to acknowledge that Parent will be a Delaware
corporation (as opposed to a New York corporation) at the Effective
Time and (ii) that Section 3.5 shall be qualified to
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acknowledge the occurrence of the Migratory Merger on November 16,
1999.
Each of Parent and Merger Sub shall have performed and
complied in all material respects with all covenants, obligations and
conditions of this Agreement required to be performed and complied with
by it as of the Effective Time.
8. Drop Dead Date. Section 9.1(d) of the Original Agreement is hereby
amended by deleting the date "January 15, 2000" and inserting in its place the
date "February 15, 2000". Section 9.4 is hereby amended by deleting the second
paragraph thereof in its entirety.
9. Ratification, etc. The Original Agreement and all documents,
instruments and agreements related thereto, as amended hereby, are hereby
ratified and confirmed in all respects and shall continue in full force and
effect. The Original Agreement shall, together with this Amendment, be read and
construed as a single agreement.
10. Governing Law. This Amendment shall be governed by, and shall be
construed and enforced in accordance with, the substantive laws of the State of
Delaware without regard to its principles of conflicts of laws.
11. Execution in Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but which
together shall constitute one instrument.
[Remainder of the page intentionally left blank.]
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IN WITNESS WHEREOF, Parent, Merger Sub, and the Company and the
Shareholders have caused this Amendment to be signed by themselves or their duly
respective officers, all as of the date first written above.
XXXXXXXXXXX.XXX INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chairman
COLLEGELINK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chairman
STUDENT SUCCESS, INC.
By: /s/ Xxxxxxx X. X'Xxxxx
Xxxxxxx X. X'Xxxxx, President
SHAREHOLDERS:
/s/ Xxxxxxx X. X'Xxxxx
Xxxxxxx X. X'Xxxxx
/s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx X. X'Xxxxx Stock Trust,
Xxxxxxx Xxxxxxx, Trustee
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