EXHIBIT 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NO. 1 (the "Amendment" to the Agreement and Plan of
Reorganization dated as of July 24, 1998 (the "Reorganization Agreement") by
and among Infoseek Corporation, a Delaware corporation ("Parent"), Steelhead
Acquisition Corp., an Oregon corporation and a wholly-owned subsidiary of
Parent ("Sub"), Quando, Inc., an Oregon corporation (the "Company"), Xxxxx
Xxxxxxxxx and Xxxxxxx Xxxxxxxxx (individually, a "Principal Shareholder" and
collectively, the "Principal Shareholders"), and, with respect to Article VII
only, U.S. Bank Trust, N.A. as Escrow Agent (the "Escrow Agent"), and Xxxxxxx
X. Xxxx (the "Shareholder Representative") is effective as of December 7, 1998
by and among Parent, Sub, the Company, the Principal Shareholders, the Escrow
Agent and the Shareholder Representative.
RECITALS
A. Infoseek Corporation, a California corporation ("Infoseek California"),
Sub, the Company, the Principal Shareholders, the Escrow Agent and the
Shareholder Representative entered into the Reorganization Agreement providing
for the merger of Sub with and into the Company.
B. Infoseek California assigned all of its rights and delegated all of its
responsibilities to Parent prior to the date hereof pursuant to that certain
Assignment and Assumption Agreement dated December 4, 1998 (the "Assignment
Agreement").
C. Parent, Sub, the Company and the Principal Shareholders desire to make
certain amendments to the Reorganization Agreement as set forth in this
Amendment.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
A. The Reorganization Agreement shall be amended as follows:
1. The parties acknowledge that the Reorganization Agreement has been
assigned to and assumed by Parent pursuant to the Assignment Agreement. All
references to Parent in the Reorganization Agreement shall refer to Infoseek
California prior to the date of the Assignment Agreement and to Parent on and
after the date of the Assignment Agreement.
2. The fourth Recital of the Reorganization Agreement is hereby amended
and restated in full to read as follows:
"WHEREAS, the parties intend that the Merger shall constitute a
reorganization within the meaning of Section 368 of the Internal Revenue Code
of 1986, as amended (the "Code").
3. The definition of "Adjusted Dollar Amount" under Section 1.6 of the
Reorganization Agreement is hereby amended and restated in full to read as
follows:
"Adjusted Dollar Amount" shall mean an amount equal to $17,310,000
minus: (i) the amount by which the Estimated Net Liabilities (excluding
Estimated Third Party Expenses reflected
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on the Estimated Balance Sheet) exceeds $405,739 and (ii) the amount by which
the Estimated Third Party Expenses (excluding those Estimated Third Party
Expenses described in Section 5.4(d)) exceed $50,000."
4. The definition of "Meeting Price" under Section 1.6 of the
Reorganization Agreement is hereby amended and restated in full to read as
follows:
"Meeting Price" shall mean the average closing sale price of the Parent
Common Stock as reported on the Nasdaq National Market for the ten (10)
consecutive trading days ending on the third business day prior to the date of
the filing of the Registration Statement on Form S-4; provided, however, that
if the Registration Statement on Form S-4 receives full or partial review by
the SEC, the Meeting Price shall mean the average closing sale price of the
Parent Common Stock as reported on the Nasdaq National Market for the ten (10)
consecutive trading days ending on the third business day prior to the date of
effectiveness of the Registration Statement on Form S-4."
5. Section 1.6 of the Reorganization Agreement is hereby amended to
include the following new definition:
"Registration Statement on Form S-4" shall mean the Registration
Statement on Form S-4 to be filed by Parent with the SEC pursuant to Section
5.1(a) hereto.
6. The definition of "SEC" under Section 1.6 of the Reorganization
Agreement is hereby amended and restated in full to read as follows:
"SEC" shall mean the United States Securities and Exchange Commission."
7. Section 1.12 of the Reorganization Agreement is hereby amended and
restated in full to read as follows:
"Tax and Accounting Consequences. It is intended by the parties hereto
that the Merger shall constitute a reorganization within the meaning of
Section 368 of the Code and shall be accounted for under the purchase method
of accounting under GAAP. Each party has consulted with its own tax advisors
and accountants with respect to the tax and accounting consequences,
respectively, of the Merger."
8. Section 2.26 of the Reorganization Agreement is hereby deleted and
replaced with the words "Intentionally Omitted."
9. The first sentence of Section 2.27 of the Reorganization Agreement is
hereby amended and restated in full to read as follows:
The information supplied by the Company for inclusion in the
Registration Statement on Form S-4 and the Proxy Statement (as defined in
Section 5.1 below) or Shareholder Information Statement (as defined in Section
5.1), as the case may be, will not on the date it (or any amendment or
supplement thereto) is declared effective by the SEC, the date it is first
sent to Company's shareholders, at the time of the Company Shareholders
Meeting, if any, and at the Effective Time, contain any statement which, at
such time and in the light of the circumstances under which it is made, is
false or misleading with respect to any material fact, or will omit to state
any material fact necessary in order to make the statements therein not false
or misleading."
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10. The first sentence of Section 3.1 of the Reorganization Agreement is
hereby amended and restated in full to read as follows:
"Parent is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware."
11. The first sentence of Section 3.2 of the Reorganization Agreement is
hereby amended and restated in full to read as follows:
"Parent has heretofore furnished to the Company a complete and correct
copy of its Certificate of Incorporation and Bylaws, each as amended to date."
12. The first sentence of Section 3.7 of the Reorganization Agreement is
hereby amended and restated in full to read as follows:
"The information supplied by Parent for inclusion in the Registration
Statement on Form S-4 and the Proxy Statement or Shareholder Information
Statement, as the case may be, will not, on the date it (or any amendment or
supplement thereto) is declared effective by the SEC, the date it is first
mailed to Company's shareholders, at the time of the Company Shareholders
Meeting, if any, and at the Effective Time, contain any statement which, at
such time and in the light of the circumstances under which it is made, is
false or misleading with respect to any material fact, or will omit to state
any material fact necessary in order to make the statements therein not false
or misleading."
13. Section 4.1(g) of the Reorganization Agreement is hereby amended and
restated in full to read as follows:
"Except for the issuance of no more than 160,000 shares of the Company
Common Stock in full payment of certain fees owing to Xxxx Xxxxxx, issue,
grant, deliver or sell, contract to issue, grant, deliver or sell, or
authorize or propose the issuance, grant, delivery or sale of, or purchase or
propose the purchase of, any shares of its capital stock (other than upon the
exercise of currently outstanding stock options) or securities convertible
into or exchangeable for, or subscriptions, rights, warrants or options to
acquire, or other agreements or commitments of any character obligating it to
issue or purchase any such shares or other convertible securities;"
14. Section 4.1(q) of the Reorganization Agreement is hereby amended and
restated in full to read as follows:
"Except for the issuance of no more than 160,000 shares of the Company
Common Stock in full payment of certain fees owing to Xxxx Xxxxxx, pay,
discharge or satisfy, in an amount in excess of $10,000 (in any one case) or
$25,000 (in the aggregate), any claim, liability or obligation (absolute,
accrued, asserted or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction in the ordinary course of business of
liabilities reflected or reserved against in the Current Balance Sheet;"
15. Section 4.1(v) of the Reorganization Agreement is hereby deleted and
replaced with the words "Intentionally Omitted."
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16. Section 5.1 is hereby amended and restated in full to read as follows:
"Registration Statement; Preparation of Shareholder Solicitation
Materials; Shareholder Consent or Meeting.
(a) As soon as practicable after the date of this Agreement, Parent and
the Company shall jointly prepare and cause to be filed with the SEC
preliminary shareholder solicitation materials, which shall be in the form of
a shareholder information statement (the "Shareholder Information Statement")
or a proxy statement (the "Proxy Statement"), as determined jointly by Parent
and the Company, for the solicitation of approval of the shareholders of the
Company of this Agreement, the Merger and the transactions contemplated
hereby. Parent shall also prepare and cause to be filed with the SEC the
Registration Statement on Form S-4, in which the Shareholder Information
Statement or Proxy Statement, as the case may be, will be included as a
prospectus, with respect to those shares of
Parent Common Stock issuable in the Merger. Each of Parent and the Company
shall provide promptly to the other such information concerning its business
and financial statements and affairs as, in the reasonable judgment of the
providing party or its counsel, may be required or appropriate for inclusion
in the Shareholder Information Statement or Proxy Statement, as the case may
be, or in any amendments or supplements thereto, and to cause its counsel and
auditors to cooperate with the other's counsel and auditors in the preparation
of the Shareholder Information Statement or Proxy Statement, as the case may
be. The Shareholder Information Statement or Proxy Statement, as the case may
be, shall include information regarding the Company, the terms of the Merger
and this Agreement and the unanimous recommendation of the Board of Directors
of the Company in favor of the Merger. Each of Parent and the Company shall
use all reasonable efforts to cause the Registration Statement on Form S-4 and
the Shareholder Information Statement or Proxy Statement, as the case may be,
to comply with applicable law and the rules and regulations promulgated by the
SEC, to respond promptly to any comments of the SEC or its staff, to have the
Registration Statement on Form S-4 declared effective under the Securities Act
as promptly as practicable after it is filed with the SEC and to cause the
Shareholder Information Statement or Proxy Statement, as the case may be, to
be mailed to the Company's shareholders as promptly as practicable after the
Registration Statement on Form S-4 is declared effective under the Securities
Act. If any event relating to Parent or the Company occurs, or if Parent or
the Company becomes aware of any information, that should be disclosed in an
amendment or supplement to the Registration Statement on Form S-4 or the
Shareholder Information Statement or Proxy Statement, as the case may be, then
Parent or the Company, as applicable, shall inform the other thereof and shall
cooperate with each other in filing such amendment or supplement with the SEC,
and, if appropriate, in mailing such amendment or supplement to the Company's
shareholders.
(b) Prior to the Effective Time, Parent shall use reasonable efforts to
obtain all regulatory approvals needed to ensure that the Parent Common Stock
to be issued in the Merger: (i) will be registered or qualified under the
securities law of every jurisdiction of the United States in which any
registered holder of the Company Capital Stock who is receiving shares of
registered Parent Common Stock has an address of record or be exempt from such
registration; and (ii) will be approved for quotation at the Effective Time on
the Nasdaq National Market; provided, however, that the Parent shall not,
pursuant to the foregoing, be required (I) to qualify to do business as a
foreign corporation in any jurisdiction in which it is not currently qualified
or (II) to file a general consent to
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service of process in any jurisdiction with respect to matters unrelated to
the issuance of Parent Common Stock pursuant hereto.
(c) The Company shall, pursuant to Oregon Law, and its Articles of
Incorporation and Bylaws, properly notice, convene and hold a shareholders'
meeting to vote on this Agreement and the transactions contemplated hereby on
or about December 21, 1998 (the "Company Shareholders Meeting"), provided,
however, that such date may be delayed up to forty-eight (48) days by Parent
in the event Parent or the Company reasonably required additional time to
obtain the effectiveness of, amend or supplement the Registration Statement on
Form S-4, or to close the transactions contemplated by this Agreement;
provided, further, that the Company Shareholders Meeting may be held on such
other date as Parent and the Company may mutually agree; and, provided,
further, that in the event that the Company receives the written consent of
the holders of 100% of the outstanding shares of Company Capital Stock on or
before two business days prior to the proposed date of the
Company Shareholder Meeting (as such date may be delayed pursuant to this
Section 5.1(c)), the Company Shareholders Meeting need not be held."
17. Section 5.4(a) of the Reorganization Agreement is hereby amended and
restated in full to read as follows:
"Whether or not the Merger is consummated, except as set forth in
Sections 5.4(b), (c) and (d), all fees and expenses incurred in connection
with the Merger including, without limitation, all legal, accounting,
investment banking, broker, financial advisory, consulting and fees paid to
Xxxx Xxxxxx in excess of $310,000 and all other fees expenses of third parties
("Third Party Expenses") incurred by a party in connection with the
negotiation and effectuation of the terms and conditions of this Agreement and
the transactions contemplated hereby, shall be the obligation of the
respective party incurring such fees and expenses."
18. Section 5.4(b) of the Reorganization Agreement is hereby amended and
restated in full to read as follows:
"In the event that the Merger is consummated, Parent agrees to pay those
Third Party Expenses incurred by the Company and paid by or payable to Xxxx
Xxxxxx, the Company's legal counsel and the Company's accountants, and Parent
shall have full recourse to the Escrow Fund (as defined herein) for payment of
all Third Party Expenses (except for those Third Party Expenses described in
Section 5.4(d)) incurred by the Company exceeding the greater of (i) the
Estimated Third Party Expenses (other than those Third Party Expenses
described in Section 5.4(d)) and (ii) $50,000. The Company shall not, however,
be obligated to refund or otherwise pay any amounts into the Escrow Fund or to
the Company's shareholders in the event that the actual Third Party Expenses
(not including those Third Party Expenses described in Section 5.4(d)) are
less than the greater of (i) the Estimated Third Party Expenses (except for
those Third Party Expenses described in Section 5.4(d)) and (ii) $50,000."
19. Section 5.4 of the Reorganization Agreement is hereby amended to
include subsection (d), as follows:
"(d) In the event that the Merger is consummated, the Parent agrees to
pay up to $100,000 of the legal and accounting fees actually incurred (as
supported by proper documentation)
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by the Company in negotiating and executing the Amendment to the
Reorganization Agreement, and in the preparation and filing of the
Registration Statement on Form S-4.
20. The third sentence of Section 5.13 of the Reorganization Agreement is
hereby amended and restated in full to read as follows:
"In the event that Parent relocates the Company's operations to the
Seattle, Washington Area within two (2) years after the Closing Date, Parent
will pay the reasonable and properly documented relocation expenses of all
current employees of the Company that relocate to the Seattle, Washington Area
with the Company and/or Surviving Corporation; provided, however, that the
Parent's aggregate obligation to pay relocation expenses under this section
shall not exceed $100,000."
21. Section 5.16 of the Reorganization Agreement is hereby amended and
restated in full to read as follows:
"Purchase Accounting. The combination to be effected by the Merger shall
be accounted for under the purchase method of accounting."
22. Section 6.2 of the Reorganization Agreement shall be amended to remove
subsection (c), and to replace such subsection with the words "Intentionally
Omitted."
23. Section 6.3 of the Reorganization Agreement shall be amended to remove
subsections (e), (g) and (p), and to replace such subsections with the words
"Intentionally Omitted."
24. The first sentence of Section 7.1 of the Reorganization Agreement
shall be amended and restated in full to read as follows:
"All of the Company's and Principal Shareholders' representations and
warranties in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Merger and continue until June 30, 1999 (the
"Expiration Date")."
25. The first sentence of Section 7.2(a) of the Reorganization Agreement
shall be amended and restated in full to read as follows:
"Each Shareholder jointly and severally agrees to indemnify and hold
Parent, Sub and their officers, directors and affiliates (the "Indemnified
Parties") harmless against all claims, losses, liabilities, damages,
deficiencies, costs and expenses, including reasonable attorneys' fees and
expenses of investigation (hereinafter individually a "Loss" and collectively
"Losses") incurred by the Indemnified Parties directly or indirectly as a
result of: (i) any inaccuracy or breach of a representation or warranty of the
Company a certificate of any officer of the Company delivered pursuant to this
Agreement, or a Shareholder Certificate, (ii) any failure by the Company or a
Shareholder to perform or comply with any covenant contained in this
Agreement, (iii) any dispute between the Company and the individual named in
Section 2.9(n) of the Disclosure Schedule, (iv) the Net Liabilities exceeding
the greater of the Estimated Net Liabilities or $405,739, or (v) the Third
Party Expenses (excluding those Third Party Expenses described in Section
5.4(d)) incurred by the Company exceeding the greater of the Estimated Third
Party Expenses (excluding those Estimated Third Party Expenses described in
Section 5.4(d)) or $50,000; provided, however, that,
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except as set forth in Sections 7.2(b) and 7.5, the aggregate amount for which
the Shareholders are required to indemnify the Indemnified Parties shall not
exceed the amount deposited in the Escrow Fund (as defined below)."
26. Section 8.1(b) is hereby amended to delete "December 31, 1998" and
replace it with "February 28, 1999."
27. Footnote "*" on Exhibit A--Compensation Table is hereby amended and
restated as follows.
"Annual Rate schedule reflects Bay Area based employee annual rate; such
rates may be adjusted to reflect Parent's standard ratio between the Bay Area
and the Seattle Area, but not by more than 15%."
28. Exhibit C--Form of Shareholder Certificate shall be deleted in full.
In addition, all references to the Shareholder Certificates and to the
execution and delivery of the Shareholder Certificates are hereby deleted in
their entirety.
29. Exhibit D--Form of Registration Rights Agreement of the Reorganization
Agreement shall be deleted in full.
B. This Amendment shall be governed by California law and may be executed in
counterparts each of which shall be deemed an original and all of which shall
constitute one instrument.
C. Except as expressly amended by this Amendment, all provisions of the
Reorganization Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
referred to above.
INFOSEEK CORPORATION QUANDO, INC.
a Delaware corporation an Oregon corporation
By: _______________________________________ By: _________________________________________
Xxxxx Xxxxx, Chief Executive Officer Xxxxx Xxxxxxxxx, Chief Executive Officer
and President and President
STEELHEAD ACQUISITION CORP. PRINCIPAL SHAREHOLDERS
an Oregon corporation
By: _______________________________________ _____________________________________________
Xxxxxx X. Xxxxxx, Vice President Xxxxx Xxxxxxxxx
_____________________________________________
Xxxxxxx Xxxxxxxxx
SHAREHOLDER REPRESENTATIVE ESCROW AGENT
(as to the provisions of Article VII only) (as to the provisions of Article VII only)
___________________________________________ By: _________________________________________
Xxxxxxx X. Xxxx
Name: _______________________________________
Title: ______________________________________
[Signature Page to Amendment No. 1 to Agreement and Plan of Reorganization]
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