Exhibit 99.1
FOURTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FOURTH AMENDMENT, dated as of May 12, 2004 (this "Amendment"), to the
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Agreement and Plan of Merger, dated as of September 4, 2003 and amended as of
October 3, 2003, January 7, 2004 and April 29, 2004 (the "Merger Agreement"), by
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and among CHINADOTCOM CORPORATION, a company organized under the laws of the
Cayman Islands ("Parent"), CDC SOFTWARE HOLDINGS, INC., a Delaware corporation
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and a wholly owned subsidiary of Parent ("Merger Sub"), and XXXX SYSTEMS, INC.,
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a Delaware corporation (the "Company"). Capitalized terms used but not defined
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herein have the meanings assigned to such terms in the Merger Agreement.
Pursuant to the terms of the Merger Agreement and in accordance with
Section 9.04 thereof, the parties hereto agree to amend the Merger Agreement as
follows:
Section 1 Amendment to Section 6.02. Section 6.02(b) of the Merger
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Agreement is amended by deleting the subsection in its entirety and replacing
such subsection with the following:
"(b) enter into any negotiation or Contract with respect to any
transaction (other than the Merger and an acquisition by Parent of Pivotal
Corporation, a company based in Vancouver, B.C.) that would, to the
knowledge of Parent acting reasonably, (i) materially delay or adversely
affect the ability of the parties to obtain any approvals or clearances
from Governmental Authorities required to permit consummation of the
Merger, or (ii) delay the date of mailing of the Proxy Statement (or
require an amendment to the Proxy Statement following such mailing) such
that the Closing would be delayed past September 1, 2004."
Section 2 Amendment to Section 9.01. Section 9.01(b) of the Merger
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Agreement is amended by deleting the subsection in its entirety and replacing
such subsection with the following:
"(b) by any of Parent, Merger Sub or the Company if (i) the Effective
Time shall not have occurred on or before September 1, 2004; provided,
however, that the right to terminate this Agreement under this Section
9.01(b)(i) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur on or before the applicable date;
(ii) any Governmental Authority shall have enacted, issued, promulgated,
enforced or entered any injunction, order, decree or ruling (whether
temporary, preliminary or permanent) which has become final and
nonappealable and has the effect of making consummation of the Merger
illegal or otherwise preventing or prohibiting consummation of the Merger;
or (iii) this Agreement shall not have been approved and adopted in
accordance with Delaware Law by the Company's stockholders at the Company
Stockholders' Meeting;"
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Section 3 Full Force and Effect. Except as expressly amended hereby, the
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Merger Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof.
Section 4 Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the Laws of the State of Delaware applicable to
Contracts executed in and to be performed in that State.
Section 5 Counterparts. This Amendment may be executed and delivered
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(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
CHINADOTCOM CORPORATION
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: General Counsel and
Company Secretary
CDC SOFTWARE HOLDINGS, INC.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Authorized Signatory
XXXX SYSTEMS, INC.
By: /s/ J. Xxxxxxx Xxxxxx
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Name: J. Xxxxxxx Xxxxxx
Title: Chief Executive Officer
