Exhibit 99.(d)(3)(C)
SECOND AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), dated as of July 12, 2001, by and among
DATA RESEARCH ASSOCIATES, INC., a Missouri
corporation (the "COMPANY"), SIRSI HOLDINGS
CORP., a Delaware corporation ("PARENT") and
XXXXXXX ACQUISITION INC., a Delaware
corporation ("PURCHASER").
WHEREAS, the Company, Parent and Purchaser (collectively, the
"PARTIES") are parties to the Agreement and Plan of Merger, dated as of May 16,
2001, as amended by the Amendment to the Agreement and Plan of Merger, dated as
of June 27, 2001 (collectively, the "AGREEMENT"). Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Agreement; and
WHEREAS, the Parties have determined that it is in each of their
respective best interests to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. RECEIPT OF FINANCING LETTERS.
(a) Section 8.1(c)(i) of the Agreement is hereby amended by deleting
the reference to "fortieth (40th)" in the first line thereof and replacing it
with "fiftieth (50th)".
(b) Section 8.1(d)(iv) of the Agreement is hereby amended by deleting
the reference to "fortieth (40th)" in the first line thereof and replacing it
with "fiftieth (50th)".
Section 2. COMMENCEMENT OF OFFER.
(a) Section 8.1(b)(ii) of the Agreement is hereby amended by deleting
the reference to "fiftieth (50th)" in the first line thereof and replacing it
with "sixtieth (60th)".
(b) Section 8.1(d)(i) of the Agreement is hereby amended by deleting
the reference to "fiftieth (50th)" in the third line thereof and replacing it
with "sixtieth (60th)".
Section 3. NO OTHER AMENDMENTS. Except as expressly provided in this
Amendment, each of the terms and provisions of the Agreement shall remain in
full force and effect in accordance with their terms. The amendments set forth
herein are limited precisely as written and shall not be deemed to be an
amendment or waiver to any other term or condition of the Agreement or any of
the documents referred to therein. Whenever the Agreement is referred to herein
in any other agreements, documents and instruments, such reference shall be to
the Agreement as amended hereby.
Ssection 4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each Party
hereby represents and warrants: (i) the execution, delivery and performance of
this Amendment is within its corporate power, has been duly authorized by all
necessary action and is not in contravention of any of its organizational
documents; (ii) this Amendment has been duly executed and delivered by such
Party; and (iii) this Amendment constitutes the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with its
terms.
Section 5. FURTHER ASSURANCES. Each Party shall duly execute and
deliver, or cause to be duly executed and delivered, such further instruments
and documents and to take all such actions, in each case as may be necessary or
proper to carry out the provisions and purposes of this Amendment.
Section 6. NOTICES. All notices or other communications pursuant to
this Amendment shall be in writing and shall be deemed to be sufficient if
delivered to those individuals and in the manner specified in Section 9.4 of the
Agreement.
Section 7. COUNTERPARTS AND FACSIMILE EXECUTION; EFFECTIVENESS. This
Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same and shall become effective when one or more
counterparts have been signed by each of the parties and delivered (by facsimile
or otherwise) to the other party, it being understood that all parties need not
sign the same counterpart. Any counterpart or other signature hereupon delivered
by facsimile shall be deemed for all purposes as constituting good and valid
execution and delivery of this Amendment by such party.
Section 8. GOVERNING LAW; WAIVER OF JURY TRIAL. All questions
concerning the construction, interpretation and validity of this Amendment shall
be governed by and construed and enforced in accordance with the domestic laws
of the State of Delaware without giving effect to any choice or conflict of law
provision or rule (whether in the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware. In furtherance of the foregoing, the internal law of the
State of Delaware will control the interpretation and construction of this
Amendment, even if under such jurisdiction's choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.
* * * * *
2
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first written above.
DATA RESEARCH ASSOCIATES, INC.
By /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President,
Chief Financial Officer
XXXXXXX ACQUISITION INC.
By /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: President,
Chief Executive Officer
SIRSI HOLDINGS CORP.
By /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: President,
Chief Executive Officer
3
