Exhibit 10.123
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Merger Agreement dated as of May 24, 2006 (this
"Amendment"), among Halo Technology Holdings, Inc., a Nevada corporation
("Parent"), UCA Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent ("Merger Sub") and Unify Corporation, a Delaware
corporation (the "Company").
WITNESSETH:
WHEREAS, Parent, Merger Sub and the Company are parties to that certain
Agreement and Plan of Merger, dated as of March 14, 2006 (the "Merger
Agreement"), and desire to amend the Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto do hereby agree as follows (capitalized terms used
but not defined herein have the meanings ascribed to such terms in the Merger
Agreement):
1. Amendment to Section 7.1. The following provision is added immediately
following Section 7.1 (d):
(e) Opinion of Counsel to Company. The Parent shall have received from
DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, counsel to the Company, an opinion
dated as of the date the Registration Statement is declared effective,
in the form mutually agreed to by the parties to the effect that the
Merger will constitute a reorganization under the provisions of Section
368(a) of the Code.
2. Amendment to Section 7.1. The following provision is added immediately
following Section 7.1 (e):
(f) Opinion of Tax Counsel to Parent. The Company shall have received
from Day, Xxxxx & Xxxxxx LLP, tax counsel to the Parent, an opinion
dated as of the date the Registration Statement is declared effective,
in the form mutually agreed to by the parties to the effect that the
Merger will constitute a reorganization under the provisions of Section
368(a) of the Code.
3. Miscellaneous.
(a) The validity, construction and performance of this Amendment, and
any action arising out of or relating to this Amendment shall be governed by the
laws of the State of Delaware, without regard to the laws of the State of
Delaware as to choice or conflict of laws.
(b) Except as modified herein, all other terms and provisions of the
Merger Agreement are unchanged and remain in full force and effect.
(c) The captions contained in this Amendment are for convenience of
reference only, shall not be given meaning and do not form part of this
Amendment.
(d) This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and
the same instrument. This Amendment shall become effective when each party to
this Amendment shall have received a counterpart hereof signed by the other
parties to this Amendment.
(e) This Amendment shall be binding upon any permitted assignee,
transferee, successor or assign to any of the parties hereto.
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IN WITNESS WHEREOF, each of the parties has executed this Amendment as
of the date first set forth above.
PARENT:
HALO TECHNOLOGY HOLDINGS, INC.
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
MERGER SUB:
UCA MERGER SUB, INC.
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Sole Director
COMPANY:
UNIFY CORPORATION
By: Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: President and CEO
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