EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF REORGANIZATION
This First Amendment to Agreement and Plan of Reorganization (this "First
Amendment") is made by and between Active Software, Inc., a Delaware corporation
("Active"), Zodiac Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Active ("Sub") and TransLink Software, Inc., a Washington
corporation ("TransLink") as of this 15th day of March 2000. All capitalized
terms used herein shall have the meaning set forth in the Merger Agreement (as
defined below) unless otherwise stated.
WHEREAS, Active, Sub and TransLink entered into an Agreement and Plan of
Reorganization dated as of February 27, 2000 (the "Merger Agreement") whereby
Active agreed to acquire TransLink (the "Merger") subject to certain terms and
conditions contained therein; and
WHEREAS, the parties have agreed to amend the Merger Agreement as herein
provided.
NOW THEREFORE, the parties hereto have agreed as follows:
1. Section 1.2 of the Merger Agreement shall be amended and restated in its
entirety as follows:
"1.2 Closing Date; Effective Time of the Merger. Unless this Agreement shall
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have been terminated pursuant to Section 10 hereof, the closing of the Merger
(the "Closing") shall be held at the offices of Venture Law Group, 0000 Xxxx
Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on or before April 7, 2000 at 6:00
p.m., or at such other time and place as agreed in writing by the parties
hereto. The date of Closing is referred to herein as the "Closing Date." Upon
delivery of all closing deliverables, the parties shall cause the Merger to be
consummated by causing the Certificate to be filed with the Secretary of State
of the State of Delaware in accordance with Delaware law and the Articles of
Merger to be filed with the Secretary of State of the State of Washington in
accordance with Washington law. The Merger shall become effective as of the
date that such filings are completed in accordance with applicable statutory
requirements (the "Effective Time of the Merger")."
2. Section 9.1(c) of the Merger Agreement shall be amended and restated in its
entirety as follows:
"(c) by either Active or TransLink if (i) the Merger shall not have been
consummated before April 15, 2000 (provided that the right to terminate this
Agreement under this Section 9.1(c) shall not be available to any party whose
willful failure to fulfill any obligation hereunder has been the cause of, or
resulted in, the failure of the Effective Time of the Merger to occur on or
before such date); (ii) there shall be a final nonappealable order of a Federal
or state court of competent jurisdiction in effect preventing or prohibiting the
consummation of the Merger; or (iii) there shall be any statute, rule,
regulation or order enacted, promulgated or issued applicable to the Merger by
any Governmental Entity that would make consummation of the Merger illegal; or"
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3. This First 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 party.
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IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date and year first written above.
ACTIVE SOFTWARE, INC
By: /s/ R. Xxxxx Xxxxx
Name: R. Xxxxx Xxxxx
Title: Chief Executive Officer
ZODIAC ACQUISITION CORP.
By: /s/ Xxx X. Xxxx
Name: Xxx X. Xxxx
Title: President and Chief Executive Officer
TRANSLINK SOFTWARE, INC.
By: /s/ Translink Software, Inc.
Name:
Title:
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