AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.2
AMENDMENT
TO
This
Amendment, dated as of September 28, 2009 (this “Amendment”), to the Agreement
and Plan of Merger, dated as of July 7, 2009 (the “Merger Agreement”), by and
among Maximus Holdings Inc., a Delaware corporation (“Parent”), Maximus Inc., a
Delaware Corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and
XXX.Xxxxxxxx Corporation, a Delaware corporation (the “Company”), is entered
into by the Company, Parent and Merger Sub.
WHEREAS,
Section 11.03 of the Merger Agreement permits the parties to amend the
Merger Agreement by execution of an instrument in writing signed by each of
Parent, Merger Sub and the Company; and
WHEREAS,
each of Parent, Merger Sub and the Company desires to amend the Merger Agreement
as provided herein.
NOW,
THEREFORE, in consideration of the mutual agreements specified in this
Amendment, Parent, Merger Sub and the Company hereby agree as
follows:
1. Amendment of
Section 2.02(a) of the Merger
Agreement. Section 2.02(a) of the Merger Agreement is
hereby amended to replace the reference to “$7.63” with “$8.40.”
2. Amendment of
Section 4.05(a) of the Merger
Agreement. Section 4.05(a) of the Merger Agreement is
hereby amended to replace the reference to “$900,000” with
“$1,350,000.”
3. Amendment of Section 5.07 of
the Merger Agreement. Section 5.07 of the Merger Agreement is
hereby amended and restated in its entirety to read as follows:
“Financing. Parent
has provided to the Company true and complete copies of (i) the fully executed
commitment letter, dated as of September 28, 2009, between Parent and each of
Xxxxx Fargo Foothill LLC and Capital Source Bank (the “Debt Financing Commitments”),
pursuant to which each of Xxxxx Fargo Foothill LLC and Capital Source Bank has
agreed to lend the amounts set forth therein on the terms and subject to the
conditions set forth therein (the “Debt Financing”) for the
purpose of funding the transactions contemplated by this Agreement, and (ii) (A)
the fully executed equity and debt commitment letter, dated as of September 28,
2009, between Parent and STG III, L.P. and STG III-A, L.P. (the “STG Equity Commitment”) and
(B) the fully executed equity and debt commitment letter, dated as of July 7,
2009, between Parent and Xxxxxxx Associates, L.P. and Xxxxxxx International,
L.P. (the “Xxxxxxx Equity
Commitment” and, together with the STG Equity Commitment, the “Equity Financing Commitments”
and together with the Debt Financing Commitments, the “Financing Commitments”),
pursuant to which each of XXX XXX, X.X., XXX XXX-X, L.P., Xxxxxxx Associates,
L.P. and Xxxxxxx International, L.P. has committed to invest the amount set
forth therein on the terms and subject to the conditions set forth therein (the
“Equity Financing” and
together with the Debt Financing, the “Financing”). As of
September 24, 2009, none of the Financing Commitments has been amended or
modified, and the respective commitments contained in the Financing Commitments
have not been withdrawn or rescinded in any respect. The Financing
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Commitments
are in full force and effect and constitute the legal, valid and binding
obligations of each of Parent, Merger Subsidiary and the other parties thereto
(except as such enforceability may be limited by applicable bankruptcy,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general application
(regardless of whether such enforceability is considered in a proceeding in
equity or at law)). There are no conditions precedent or other
contingencies related to the funding of the full amount of the Financing, other
than as expressly set forth in the Financing Commitments, and Parent has no
reason to believe that it will not be able to satisfy any term or condition of
closing of the Financing that is required to be satisfied as a condition to the
Financing, or that the Financing will not be made available to Parent on the
Closing Date (assuming in each case compliance by the Company with its covenants
hereunder and the continuing accuracy of the Company’s representations and
warranties hereunder). Subject to the terms and conditions of the
Financing Commitments, the aggregate proceeds of the Financings together with
the Company Cash Deposit is an amount sufficient to consummate the Merger upon
the terms contemplated by this Agreement and pay all related fees and expenses
of Parent, Merger Subsidiary and their respective Representatives pursuant to
this Agreement.”
4. Amendment of Section 8.01(b)
of the Merger Agreement. Section 8.01(b) of the Merger
Agreement is amended to delete the last sentence thereof, such that the section
reads as follows:
“Each of Parent and the Company shall
(i) make an appropriate filing of a Notification and Report Form pursuant to the
HSR Act with respect to the transactions contemplated hereby as promptly as
practicable, (ii) make any appropriate filings pursuant to the Foreign Antitrust
Laws which Parent reasonably determines are necessary or advisable, (iii) supply
as promptly as practicable any additional information and documentary material
that may be requested pursuant to the HSR Act or by any relevant Governmental
Authority, and (iv) use their reasonable best efforts to take all other actions
necessary to cause the expiration or termination of the applicable waiting
periods, or obtain any necessary approvals from any Governmental Authority,
under the HSR Act and Foreign Antitrust Laws as soon as
practicable.”
5. Amendment of Section 9.01(b)
of the Merger Agreement. Section 9.01(b) of the Merger
Agreement is amended and restated to read as follows:
“no restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing the consummation
of the Merger shall have taken effect after the date hereof and shall still be
in effect;”
6. Amendment of Section
11.04(b) of the Merger Agreement. Section 11.04(b) of the
Merger Agreement is amended to replace the reference to “$11,800,000” with
“$13,000,000.”
7. Amendment of Section
11.04(c) of the Merger Agreement. Section 11.04(c) of the
Merger Agreement is amended to replace the reference to “$16,800,000” with
“$40,000,000.”
8. Representations and
Warranties. Each of the Company, Parent and Merger Sub
represents and warrants that (i) it has the corporate power and authority
to execute and deliver
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this
Amendment, (ii) this Amendment has been duly and validly authorized by all
necessary action of its Board of Directors and, with respect to the Company, the
Company’s Board of Directors has unanimously approved this Amendment (subject to
recusal of any members of the Company’s Board of Directors), and (iii) this
Amendment has been duly and validly executed and delivered and, assuming due
authorization and execution by the other parties hereto, constitutes its legal,
valid and binding obligation enforceable against it in accordance with its
terms.
9. Defined
Terms. Capitalized terms used but not defined herein shall
have the meaning assigned to them in the Merger Agreement.
10. No Other
Modification. The Merger Agreement shall not be modified by
this Amendment in any respect except as expressly set forth herein.
11. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of law rules of such state.
12. Counterparts. This
Amendment may be executed in counterparts, all of which shall be considered one
and the same agreement and shall become effective when counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their duly authorized respective officers as of the date first written
above.
XXX.XXXXXXXX CORPORATION | |||
By: | /s/ Xxxx X. Xxxxxxxxxxx | ||
Name: | Xxxx X. Xxxxxxxxxxx | ||
Title: | Executive Vice President, Business Administration, Legal Affairs and Secretary |
MAXIMUS HOLDINGS INC. | |||
By: | /s/ Xxxxxxx X. Xxxxxxxx | ||
Name: | Xxxxxxx X. Xxxxxxxx | ||
Title: | President |
MAXIMUS INC. | |||
By: | /s/ Xxxxxxx X. Xxxxxxxx | ||
Name: | Xxxxxxx X. Xxxxxxxx | ||
Title: | President |
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