EXHIBIT 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION (this
"Amendment") is made and entered into this ____ day of August, 2000 by and among
(i) APPNET, INC., a Delaware Corporation ("AppNet"), (ii) APPNET/EDC, INC., a
Delaware corporation and a newly-formed, wholly-owned subsidiary of AppNet
("Newco"), (iii) XXXXX, XXXX & COMPANY, a Delaware corporation (the "Company" or
"EDC") and (iv) the persons whose names are listed under the heading
"Stockholders" on the signature pages of this Amendment (each a "Stockholder"
and collectively the "Stockholders"), and amends that certain Agreement and Plan
of Reorganization, dated as of May 16, 2000 (the "Agreement"), by and among
AppNet, Newco, EDC and the Stockholders.
BACKGROUND
A. The Agreement provides, among other things, for the merger of the
Company with and into Newco, with Newco surviving the merger as a wholly-owned
subsidiary of AppNet.
B. The parties to this Amendment desire to amend certain of the
provisions of the Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. AMENDMENT OF AGREEMENT
1.1. SECTION 1.2.(c). Section 1.2.(c) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(c) CONVERSION OF CAPITAL STOCK OF THE COMPANY. Subject to
Sections 1.2(d), 1.3 and 1.4, each issued and outstanding share of
common stock of the Company, $0.01 par value per share ("Company Common
Stock") (other than shares to be canceled pursuant to Section 1.2(b)),
that is issued and outstanding immediately prior to the Effective Time
shall automatically be canceled and extinguished and converted, without
any action on the part of the holder thereof, into the right to receive
that share of the Merger Consideration (as defined in Section 1.3(a))
computed by dividing each item of the Merger Consideration by the
number of shares of Company Common Stock outstanding immediately prior
to the Effective Time. All such shares of Company Common Stock, when so
converted, shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each holder of a
certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the ratable share of
the Merger Consideration upon the surrender of such certificate in
accordance with Section 1.5."
1.2. SECTION 1.3.(a). Section 1.3.(a) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) For purposes of this Agreement, the "Merger
Consideration" shall consist of the following categories (as adjusted
pursuant to this Section 1.3 and Section 1.4): (i) two hundred sixty
thousand (260,000) shares of AppNet Common Stock (the "Guaranteed
Shares") shall be delivered at the Closing to the Stockholders'
Representative (as defined in Section 1.6), subject to the terms and
conditions set forth in Sections 1.3(c), 1.3(d) and 5.12(c) hereof;
(ii) two hundred fifty-seven thousand five hundred (257,500) shares of
AppNet Common Stock (the "Additional Shares") shall be delivered at the
Closing to the Stockholders' Representative; and (iii) fifty-seven
thousand five hundred (57,500) shares of AppNet Common Stock shall be
pledged to and held by AppNet (the "Pledged Shares") pursuant to that
certain Pledge Agreement attached hereto as Exhibit A and made a part
hereof (the "Pledge Agreement")."
1.3. SECTION 1.3.(b). Section 1.3.(b) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(b) The Merger Consideration has been calculated based upon
several factors including the assumptions that (i) the net worth of the
Company, calculated in accordance with generally accepted accounting
principles ("GAAP") consistently applied, and reduced by the amount of
any fees and expenses payable by AppNet pursuant to Sections 11.6 and
the second sentence of Section 11.7 of this Agreement and any other
such fees exceeding the amounts required to be paid by AppNet is equal
to or greater than One Million Dollars ($1,000,000) (the "Net Worth
Target") as of the Closing Date; (ii) the sales of the Company, net of
bad debt expense, for the Company's fiscal year ended December 31, 1999
shall have been no less than Nine Million Five Hundred Thousand Dollars
($9,500,000) (the "Sales Target"); (iii) the Company's earnings before
interest and taxes, after adding back any profit sharing and other
compensation expenses, for its fiscal year ended December 31, 1999
shall have been no less than One Million Six Hundred Thousand Dollars
($1,600,000) (the "EBIT Target") and (iv) Certified Closing Debt (as
defined in Section 6.9(e)) of zero (subject to adjustment as provided
in Section 6.9(e)). The portion of the Merger Consideration payable to
each of the Stockholders is set forth next to such Stockholder's name
as listed in SCHEDULE 1.3(b) attached hereto."
1.3. SECTION 1.3.(d). Section 1.3.(d) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(d) Any costs, expenses and disbursements of the Company or
the Stockholders pursuant to Sections 11.6 and the second sentence of
Section 11.7 hereof that remain unpaid at the Closing shall be paid by
AppNet up to the amount of One Million Dollars ($1,000,000). Any such
amounts in excess of One Million Dollars ($1,000,000) shall be paid by
the Stockholders."
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1.4. SECTION 1.4.(b). The first sentence of Section 1.4.(b) of the
Merger Agreement is hereby amended and restated as follows:
"(b) Within one hundred twenty (120) days following the
Effective Time, AppNet shall cause its outside accountants ("AppNet's
Accountant") to review the Surviving Company's books to determine the
accuracy of the information set forth on the Closing Financial
Certificate (the "Post-Closing Review")."
1.5. SECTION 1.5.(a). Section 1.5(a) of the Agreement is hereby amended
to delete the words "Cash and" from the heading "AppNet to Provide Cash and
Common Stock".
1.6. SECTION 2.1. Section 2.1 of the Agreement is hereby amended and
restated in its entirety to read as follows:
"2.1. LOCATION AND DATE. The consummation of the Merger and
the other transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of Venable, Baetjer, Xxxxxx, and
Civiletti, LLP, 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000
on the later of Tuesday, August 22, 2000, or the first business day
after all conditions to Closing shall have been satisfied or waived, or
at such other time and date as AppNet, the Company and the
Stockholders' Representative may mutually agree (which date shall be
referred to as the "Closing Date")."
1.7. SECTION 3.9.(b). Section 3.9.(b) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(b) EDC's consolidated sales for (i) its fiscal year ending
December 31, 1999 were not less than $9,500,000, and (ii) the six-month
period ending June 30, 2000 will not be less than $5,700,000."
1.8. SECTION 3.9.(c). Section 3.9(c) of the Agreement is hereby amended
and restated in its entirety to read as follows:
"(c) EDC's consolidated earnings before interest and taxes for
(i) its fiscal year ending December 31, 1999 were not less than
$1,600,000 (after adding back any profit sharing and other compensation
expenses), and (ii) the six-month period ended June 30, 2000 will not
be less than $1,000,000 (after adding back any profit sharing and other
compensation expenses)."
1.9. SECTION 3.9.(d). Section 3.9.(d) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(d) Except as set forth in SCHEDULE 3.9, as of the Closing
Date, the Companies will have no outstanding long-term and short-term
indebtedness to banks, the Stockholders, and other financial
institutions and creditors as of the Closing (in each case including
the current portions of such indebtedness, but excluding trade
payables, other ordinary course accounts payable and amounts paid and
payable under Section 11.6 and Section 11.7 hereof)."
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1.10. SECTION 3.10. The first two sentences of Section 3.10 of the
Agreement are hereby amended and restated in their entirety to read as follows:
"SCHEDULE 3.10 includes (a) true, complete and correct copies
of EDC's consolidated reviewed balance sheet as of December 31, 1999
(the end of its most recent completed fiscal year), and income
statement for the year ended December 31, 1999 (collectively, the "Year
End Financials") and (b) true, complete and correct copies of EDC's
consolidated, unaudited balance sheet (the "Interim Balance Sheet") as
of June 30, 2000 (the "Balance Sheet Date") and income statement, for
the six-month period then ended (collectively, the "Interim
Financials," and together with the Year End Financials, the "Company
Financial Statements")."
1.11. SECTION 3.28.(a). Section 3.28.(a) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) Except as set forth in SCHEDULE 3.28(a)(i), no single
customer accounted for more than five percent (5%) of the Companies'
revenues for the fiscal years ended December 31, 1998, December 31,
1999 or the six-months ended June 30, 2000."
1.12. SECTION 5.7.(h). Section 5.7.(h) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(h) maintain present salaries, commissions and compensation
levels for all officers, directors, employees, agents, representatives
and independent contractors, except for ordinary and customary bonuses
and salary increases for employees (other than employees who are also
Stockholders, unless specifically listed in SCHEDULE 5.7.(h) hereto)."
1.13. SECTION 5.12.(a). Section 5.12.(a) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) ALLOCATION OF APPNET COMMON STOCK. The Merger
Consideration payable to the Stockholders pursuant to this Agreement
shall be divided into three (3) categories consisting of: (i) the
Guaranteed Shares and two hundred thousand (200,000) of the Additional
Shares (together, "Registration Shares"), (ii) the remaining
fifty-seven thousand five hundred (57,500) of the Additional Shares
(referred to as the "One Year Shares") and (iii) the Pledged Shares
(also referred to as the "Two Year Shares")."
1.14. SECTION 5.12.(b)(i). Section 5.12.(b)(i) and (ii) of the
Agreement are hereby amended and restated in their entirety to read as follows:
"(b)(i) OBLIGATION TO FILE REGISTRATION STATEMENT. No later
than ninety (90) calendar days following the Closing Date, AppNet shall
prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement under the 1933 Act (the "Registration
Statement") covering all of the Registration Shares. The Registration
Statement shall be on Form S-3 (except that if AppNet, or in the event
of a Change of Control (as defined in Section
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5.14) that is consummated prior to October 31, 2000, the acquiror in
the Change of Control transaction (the "Acquiror"), is not then
eligible to or elects not to register for resale the Registration
Shares on Form S-3, the Registration Statement shall be on Form S-1 or
another appropriate form in accordance herewith selected by AppNet).
AppNet shall use its commercially reasonable efforts to cause the
Registration Statement to be declared effective under the Securities
Act as promptly as possible after the filing thereof, PROVIDED,
HOWEVER, that AppNet will use its commercially reasonable efforts to
ensure that the date of effectiveness is not during a period in which
AppNet and its affiliates are prohibited from trading their AppNet
Common Stock under AppNet's xxxxxxx xxxxxxx policy. Subject to Section
5.12(b)(ii), AppNet shall use its commercially reasonable efforts to
keep such Registration Statement effective under the Securities Act
until the earliest of (i) the date on which the Registration Statement
has been effective for a total of sixty (60) days, (ii) the date when
all Registration Shares have been sold, or (iii) the date on which the
Registration Shares (or if applicable, the Substituted Shares) become
freely tradeable, or (iv) the consummation of a Change of Control (as
defined in Section 5.14) after October 31, 2000; PROVIDED, HOWEVER,
that in the event of a Change of Control prior to October 31, 2000,
AppNet will be deemed to have satisfied its obligations hereunder if
the Acquiror fulfills the obligations of AppNet hereunder with respect
to the Substituted Shares (as defined in Section 5.14 of the Agreement)
and the Registration Statement shall cover such Substituted Shares.
AppNet will promptly notify the Stockholders' Representative of the
effectiveness of the Registration Statement. AppNet or the Acquiror,
may, at its option, register additional shares of its Common Stock on
the Registration Statement on behalf of other of its shareholders.
(ii) EFFECTIVENESS OF REGISTRATION STATEMENT. If at any time
or from time to time after the SEC declares the Registration Statement
effective, the Board of Directors of AppNet, in its good faith
judgment, determines that any registration of the Registration Shares
should not be continued because it could adversely effect (including
requiring earlier disclosure of such event) any underwritten offering
by AppNet, any merger, acquisition or similar business combination, or
any other significant corporate event to which AppNet may be a party (a
"Valid Business Reason"), AppNet may cause the Registration Statement
to be withdrawn and its effectiveness terminated, or may postpone
amending or supplementing the Registration Statement, until such valid
Business Reason no longer exists. AppNet shall give written notice to
the Stockholders' Representative of its determination to postpone or
withdraw the Registration Statement pursuant to this Section
5.12(b)(ii) promptly after its determination. In the event of a Change
of Control that occurs prior to October 31, 2000, the Acquiror shall
have the same rights with respect to the Substituted Shares as AppNet
has with respect to the Registration Shares under this Section
5.12.(b)(ii), including, but not limited to the right to insert
substantially similar legends and other restrictions on the Substituted
Shares."
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1.15. SECTION 5.12.(c). Section 5.12.(c) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(c) GUARANTEED SHARES. In the event that the Closing Price
per share of the Guaranteed Shares on the date that the Registration
Statement is first declared effective by the SEC (the "Registration
Price Per Share") is less than Thirty-Four Dollars and Sixty-Five Cents
($34.65) (the "Guaranteed Share Price") (or, in the event that a Change
of Control occurs prior to October 31, 2000, the Guaranteed Share Price
shall be an amount equal to Thirty-Four Dollars and Sixty-Five Cents
($34.65) divided by the exchange ratio offered to other AppNet
shareholders for their AppNet Common Stock), AppNet shall deliver
certified funds to the Stockholders' Representative, within three (3)
business days after the date that the Registration Statement is
declared effective by the SEC, in an amount equal to the difference
between the Guaranteed Share Price and the Registration Price Per
Share, multiplied by the number of Guaranteed Shares actually delivered
at Closing; PROVIDED, HOWEVER, that in the event that the Registration
Price Per Share is equal to or greater than the Guaranteed Share Price,
AppNet shall not be required to deliver any such additional amounts.
For purposes of this Agreement, "Closing Price" shall mean the closing
sale price of a share of AppNet Common Stock or, in the event that a
Change of Control has been consummated prior to October 31, 2000, the
closing sale price of the stock received in exchange for the AppNet
Common Stock, each as reported on the Nasdaq National Market (as
reported in The Wall Street Journal or, if not reported thereby,
another authoritative source as chosen by AppNet or the Acquiror, as
the case may be). Notwithstanding the foregoing, in the event that any
consideration other than Substituted Shares is received by any
Stockholders in the Change of Control transaction, the amount of such
consideration received with respect to the Guaranteed Shares shall
reduce, on a dollar-for-dollar basis, any amounts required to be paid
pursuant to this Section 5.12(c)."
1.16. RESTRICTIVE LEGEND PROVIDED FOR IN SECTION 5.12.(h). The
restrictive legend provided for in Section 5.12.(h) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
CONTRACTUAL HOLDING PERIOD AND MAY NOT BE SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED OR DISPOSED OF DURING THE
PERIOD COMMENCING ON THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED IN THAT CERTAIN AGREEMENT AND PLAN OF
REORGANIZATION, DATED AS OF MAY 16, 2000, AS SUBSEQUENTLY
AMENDED, AMONG THE ISSUER AND THE STOCKHOLDERS OF XXXXX, XXXX
& COMPANY, A DELAWARE CORPORATION, AND ENDING ON THE DATE THAT
IS THREE HUNDRED SIXTY-FOUR (364) DAYS AFTER THE CLOSING OF
SUCH TRANSACTION. PRIOR TO THE EXPIRATION OF SUCH THREE
HUNDRED SIXTY-FOUR (364) DAY HOLDING PERIOD, THE ISSUER SHALL
NOT BE
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REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE, PLEDGE,
ASSIGNMENT OR OTHER TRANSFER OR DISPOSITION OF ANY OF THE
SHARES REPRESENTED HEREBY. UPON THE WRITTEN REQUEST OF THE
HOLDER OF THIS CERTIFICATE, THE ISSUER AGREES TO REMOVE THIS
RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED WITH THE
TRANSFER AGENT) WHEN THE HOLDING PERIOD HAS EXPIRED."
1.17. SECTION 5.12.(i). The restrictive legend provided for in Section
5.12.(i) of the Agreement is hereby amended and restated in its entirety to read
as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
CONTRACTUAL HOLDING PERIOD AND MAY NOT BE SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED OR DISPOSED OF DURING THE
PERIOD COMMENCING ON THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED IN THAT CERTAIN AGREEMENT AND PLAN OF
REORGANIZATION, DATED AS OF MAY 16, 2000, AS SUBSEQUENTLY
AMENDED, AMONG THE ISSUER AND THE STOCKHOLDERS OF XXXXX, XXXX
& COMPANY, A DELAWARE CORPORATION, AND ENDING ON THE DATE THAT
IS SEVEN HUNDRED TWENTY-NINE (729) DAYS AFTER THE CLOSING OF
SUCH TRANSACTION. PRIOR TO THE EXPIRATION OF SUCH SEVEN
HUNDRED TWENTY-NINE (729) DAY HOLDING PERIOD, THE ISSUER SHALL
NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE, PLEDGE,
ASSIGNMENT OR OTHER TRANSFER OR DISPOSITION OF ANY OF THE
SHARES REPRESENTED HEREBY. UPON THE WRITTEN REQUEST OF THE
HOLDER OF THIS CERTIFICATE, THE ISSUER AGREES TO REMOVE THIS
RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED WITH THE
TRANSFER AGENT) WHEN THE HOLDING PERIOD HAS EXPIRED.
1.18. SECTION 5.13. Section 5.13. of the Agreement is hereby amended
and restated in its entirety to read as follows:
"5.13. STOCK OPTIONS. Within thirty (30) days after the
Closing Date, AppNet shall issue two hundred sixty-nine thousand
(269,000) incentive stock options (the "Options") to EDC's employees
and shall work with EDC's Managing Director to determine a mutually
agreeable allocation of such Options to such employees in accordance
with AppNet's policies, authorized and issued under the terms of
AppNet's 1999 Stock Incentive Plan. The Options shall be granted at the
Closing Price on the date of grant of such Options. Notwithstanding
anything contained in this Section 5.13 to the contrary, to the extent
that any of the Options would be allocated to foreign employees of EDC,
AppNet may provide such employees with comparable equity or other
incentive compensation in lieu of the Options, and, in such event, the
total number of Options to be
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issued pursuant to this Section 5.13 shall be reduced by the amount of
Options that would otherwise have been allocated to such foreign
employees.
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1.19. SECTION 5.14. Section 5.14. of the Agreement is hereby amended
and restated in its entirety to read as follows:
"5.14. CHANGE OF CONTROL. In addition to the rights provided
under Sections 5.12(h) and 5.12(i), if there is a Change of Control
prior to the date that is seven hundred twenty-nine (729) days after
the Closing Date and PROVIDED, that such Change of Control occurs after
October 31, 2000, subject to compliance with applicable federal and
state securities laws and the Pledge Agreement, any Stockholder may
dispose of his One and Two Year Shares in such Change of Control on the
same terms and conditions as any other holder of AppNet Common Stock.
Without regard to the date on which a Change of Control occurs, so long
as it occurs prior to seven hundred twenty-nine (729) days after the
Closing Date, if the Change of Control is structured as (i) an AppNet
Merger (as defined below), each Stockholder shall waive any dissenters
rights, appraisal rights or similar rights in connection with such
AppNet Merger and shall vote in favor of such AppNet Merger and shall
take all actions necessary to consummate such AppNet Merger, or (ii) a
sale of assets, each Stockholder shall waive any dissenters rights,
appraisal rights or similar rights in connection with such sale of
assets and shall vote in favor or such sale and any subsequent
liquidation of AppNet or other distribution of the proceeds therefrom.
For purposes of this Agreement, a "Change of Control" shall mean: (i) a
merger, consolidation or reorganization of AppNet (each of which is
referred to as an "AppNet Merger"), whereby the stockholders of record
of AppNet, immediately prior to the AppNet Merger, will, immediately
after such AppNet Merger, hold, directly or indirectly, less than fifty
percent (50%) (calculated in terms of value) of the surviving or
acquiring entity; (ii) any other purchase or acquisition of more than
fifty percent (50%) of the outstanding shares of the common stock
(calculated in terms of value) of AppNet; (iii) a sale or exchange of
all, or substantially all, of the assets of AppNet; or (iv) a complete
liquidation or dissolution of AppNet. In the event that shares of
Common Stock are exchanged for shares of Acquiror in a Change of
Control transaction, the shares of Acquiror received by each
Stockholder in exchange for the Guaranteed Shares, the Additional
Shares and the Pledged Shares shall be referred to as the "Substituted
Shares" and all obligations of AppNet or the Acquiror with respect
thereto shall be adjusted accordingly and proportionately (in
accordance with the exchange ratio in the Change of Control
transaction)."
1.20. SECTION 6.9.(e). Section 6.9(e) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(e) a statement that the Company's total outstanding
long-term and short-term indebtedness to banks, the Stockholders, and
other financial institutions and creditors (in each case including the
current portions of such indebtedness, but excluding trade payables,
other ordinary course accounts payable and amounts paid and payable
under Section 11.6 and Section 11.7 hereof) as of the Closing Date is
zero (the "Certified Closing Debt"); PROVIDED, HOWEVER, that if the
Certified Closing Net Worth (after reduction for the amounts payable by
AppNet pursuant to Section 11.6 and the second sentence of Section 11.7
hereof) exceeds One Million Dollars ($1,000,000), the Company may have
outstanding debt of Three Hundred Fifty Thousand Dollars ($350,000)
without any reduction to the Merger Consideration; and"
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1.21. SECTION 9.2(a). The last sentence of Section 9.2(a) of the
Agreement is hereby amended and restated in its entirety to read as follows:
"(a) For all purposes of this Section 9, the term "AppNet"
includes all subsidiaries of AppNet (including, without limitation, the
Companies and any companies AppNet has resolved to acquire), as well as
any Acquiror that becomes a parent of AppNet prior to October 31, 2000
and any current and future subsidiaries or non-parent affiliates of
such Acquiror."
1.22. SECTION 9.3. The lead-in paragraph of Section 9.3 of the
Agreement is hereby amended and restated in its entirety to read as follows:
"No Stockholder will, for a period of four (4) years (or in
the case of a Stockholder who owns or controls, directly or indirectly,
less than three percent (3%) of the outstanding common stock of EDC as
of the Closing, for a period of two (2) years), with respect to
subsections (a) and (b) and for a period of four (4) years with respect
to subsections (c), (d), (e), (f), (g) and (h) for any reason
whatsoever, directly or indirectly, for himself or on behalf of or in
conjunction with any Person (as defined below):"
1.23. SECTION 11.1.(b). Section 11.1.(b) and (c) of the Agreement are
hereby amended and restated in their entirety to read as follows:
"(b) by the Stockholders and the Company as a group, on the
one hand, or by AppNet, on the other hand, if the Closing shall not
have occurred on or before August 31, 2000, PROVIDED that the right to
terminate this Agreement under this Section 11.1(b) shall not be
available to either party (with the Stockholders and the Company deemed
to be a single party for this purpose) whose material
misrepresentation, breach of warranty or failure to fulfill any
obligation under this Agreement has been the sole cause of the failure
of the Closing to occur on or before such date; or
(c) by the Stockholders and the Company as a group, on the one
hand, or by AppNet, on the other hand, if there is or has been a
material breach, failure to fulfill or default on the part of the other
party (with the Stockholders and the Company deemed to be a single
party for this purpose) of any of the representations and warranties
contained herein or in the due and timely performance and satisfaction
of any of the covenants, agreements or conditions contained herein, and
the curing of such default shall not have been made or shall not
reasonably be expected to occur before August 31, 2000; or"
1.24. SECTION 11.6. Section 11.6 of the Agreement is hereby amended and
restated in its entirety to read as follows:
"11.6. BROKERS AND AGENTS. Except as set forth in the next
succeeding sentence, AppNet and Newco (as a group) and the Company and
each Stockholder (as a group) each represents and warrants to the other
that it has not employed any broker or agent in connection with the
transactions contemplated by this Agreement and agrees to indemnify the
other against all losses, damages or expenses relating to or arising
out of claims for fees or commission of any broker or agent employed or
alleged to have been
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employed by such party. The Company has engaged the services of Vrolyk
& Company in connection with the transactions contemplated by this
Agreement. The Company and the Stockholders hereby acknowledge and
agree that certain fees and expenses of Vrolyk & Company have been
advanced to Vrolyk & Company by the Company and that AppNet is not
liable for any such fees and expenses, provided that any such fees and
expenses remaining unpaid at the Closing shall be paid pursuant to the
provisions of Section 1.3(d)."
1.25. SECTION 11.7. Section 11.7 of the Agreement is hereby amended and
restated in its entirety to read as follows:
"11.7. EXPENSES. AppNet has and will pay the fees, expenses
and disbursements of AppNet and Newco and their agents,
representatives, accountants and counsel incurred in connection with
the subject matter of this Agreement. The Company (and not the
Stockholders) has paid and will pay the fees, expenses and
disbursements of the Stockholders, the Company, and their agents,
representatives, financial advisers, accountants and counsel incurred
in connection with the subject matter of this Agreement, provided that
any such fees, expenses and disbursements remaining unpaid at the
Closing shall be paid pursuant to the provisions of Section 1.3(d)."
1.26. SCHEDULE 1.3.(b). Schedule 1.3.(b) to the Agreement is hereby
amended and restated in its entirety and replaced by Schedule 1.3.(b) hereto.
1.27. SCHEDULE 5.7.(h). Schedule 5.7.(h) attached hereto is hereby
deemed to be Schedule 5.7.(h) to the Agreement.
1.28. EXHIBIT A. Exhibit A to the Agreement is hereby amended and
restated in its entirety and replaced by Exhibit A hereto.
1.29. EXHIBIT D. Exhibit D to the Agreement is hereby amended and
restated in its entirety and replaced by Exhibit B hereto.
2. RATIFICATION
As amended hereby, the Agreement and all the Schedules and Exhibits
thereto are hereby ratified and confirmed in all respects and shall continue in
full force and effect. The Agreement and this Amendment shall be read and
construed as a single agreement. All references to the Agreement in the
Agreement and in any Schedule, Exhibit or other related document shall hereafter
be deemed to refer to the Agreement as amended hereby.
3. GENERAL
3.1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Agreement.
3.2. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and
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delivered shall be deemed to be an original, and all of which counterparts taken
together shall constitute but one and the same instrument.
3.3. GOVERNING LAW. This Amendment shall be governed by and construed,
interpreted and enforced in accordance with the laws of Delaware (without regard
to its laws relating to choice-of-law or conflicts-of-law).
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
APPNET, INC. APPNET/EDC, INC.
By: /s/ Xxx X. Xxxxx By: /s/ Xxx X. Xxxxx
---------------------------- -------------------------------
Xxx X. Xxxxx Xxx X. Xxxxx
President President
XXXXX, XXXX & COMPANY
By: /s/ Xxxxx X. Xxx
----------------------------
Name: Xxxxx X. Xxx
--------------------
Title: President
--------------------
STOCKHOLDERS STOCKHOLDERS
XXX REVOCABLE TRUST DATED XXXXXXXX XXXX XXXXXXX AND
NOVEMBER 27, 1991 XXXXXXX XXXXXXXXX XXXXXXX
LIVING TRUST AGREEMENT DATED
AUGUST 3, 2000
/s/ Xxxxx X. Xxx /s/ Xxxxxxxx X. Xxxxxxx
----------------------------- -----------------------------------
By: Xxxxx X. Xxx, Trustee By: Xxxxxxxx X. Xxxxxxx, Trustee (as
assignee of Xxxxxxxx X. Xxxxxxx for
all purposes under the Agreement)
XXXXX X. XXXX XXXXX X. XXXXX
/s/ Xxxxx X. Xxxx /s/ Xxxxx X. Xxxxx
------------------------------- ------------------------------
XXXXXX X. XXXXX XXXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
------------------------------- ------------------------------
XXXXXX XXX XXXX XXXXXXXX X. XXXXXX
/s/ Xxxxxx Xxx Xxxx /s/ Xxxxxxxx X. Xxxxxx
------------------------------- ------------------------------
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XXXX X. XXXXXXXXX XXXX XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxx Xxxxxxxxx
------------------------------- ------------------------------
XXXX XXXXXXXX XXXXXXXX XXXXXX
/s/ Xxxx Xxxxxxxx /s/ Xxxxxxxx Xxxxxx
------------------------------- ------------------------------
XXXXXXXX XXXXX XXXXXX XXXX
/s/ Xxxxxxxx Xxxxx /s/ Xxxxxx Xxxx
------------------------------- ------------------------------
MIA E. E. NAM XXXXX XXXXXX
/s/ Mia E. E. Nam /s/ Xxxxx Xxxxxx
------------------------------- ------------------------------
XXXXX XXXXXXXXX XXXXXXX XXXXX
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxx
------------------------------- ------------------------------
XXXXX XXXXXXXX XXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxxx
------------------------------- ------------------------------
PASCAL XXXX XXXXX XXXXX XXXXXXX
/s/ Xxxxxx Xxxx /s/ Xxxxx Xxxxx Xxxxxxx
------------------------------- ------------------------------
XXXX XXXXXXXXX
/s/ Xxxx Xxxxxxxxx
-------------------------------
-14-
