FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this "AMENDMENT")
is entered into as of November 30, 1999 by and among XxxxxX.xxx. Inc., a
Washington corporation, Orcas Acquisition Corp., an Oregon corporation and
wholly owned subsidiary of XxxxxX.xxx, and Xxxxxxxx.xxx, Inc., an Oregon
corporation.
RECITALS
A. The parties have previously entered into an Agreement and Plan of
Merger dated November 17, 1999 (the "MERGER AGREEMENT").
B. The parties now desire to amend the Merger Agreement as provided
herein.
AGREEMENT
In consideration of the terms hereof, the parties hereto agree as
follows:
1. DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Merger Agreement.
2. AMENDMENTS TO MERGER AGREEMENT
2.1 AMENDMENT OF SECTION 1.7.1(d)
Clause (i) of Section 1.7.1(d) of the Merger Agreement is hereby
amended and restated to read in its entirety as set forth below in this
Section 2.1:
"(i) 934,183 shares (taking into consideration all
adjustments for stock splits, stock dividends or the like between the date
hereof and the Closing Date), less"
2.2 AMENDMENT OF SECTIONS 1.7.1(h) AND (i)
Sections 1.7.1(h) and (i) of the Merger Agreement are each hereby
amended by deleting therefrom any reference to payment of cash in lieu of
fractional shares, and the parties agree that no cash shall be paid in lieu
or fractional shares and that the number of options or warrants, as the case
may be, shall be rounded to the nearest whole share (unless a different
rounding method is necessary to preserve incentive stock option tax
treatment, in which case such other rounding method shall be used).
2.3 AMENDMENT OF SECTION 1.7.3
Section 1.7.3 of the Merger Agreement is hereby amended by deleting the
last sentence thereof. In lieu thereof, the parties agree that fractional
shares shall be rounded to the nearest whole share.
2.4 AMENDMENT OF SECTION 7.1
Section 7.1 of the Merger Agreement is hereby amended by deleting
Sections 7.1(f) and (g) in their entirety, and Section 7.1(h) (and all
references thereto throughout the Merger Agreement) shall be thereafter
referred to as Section 7.1(f).
3. GOVERNING LAW
This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Washington applicable to contracts executed in and
to be performed in that State, without regard to principles of conflicts of
laws.
4. HEADINGS
The descriptive headings contained in this Amendment are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Amendment.
5. COUNTERPARTS
This Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties
hereto in separate counterparts, each of which when executed and delivered
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Amendment as of the date and year first above written.
XXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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ORCAS ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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XXXXXXXX.XXX, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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