EXHIBIT 2.4.1
AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This is an Amendment, dated May 20, 2003 ("AMENDMENT"), to the
Agreement and Plan of Merger, dated March 12, 2003 ("AGREEMENT"), by and among
Colorado MEDtech, Inc., a Colorado corporation (the "COMPANY"), CIVCO Holding,
Inc., a Delaware corporation ("BUYER"), and CMT Mergerco, Inc., a Colorado
corporation and a wholly owned subsidiary of Buyer ("BUYER SUBSIDIARY").
Capitalized terms used herein shall have the same meanings ascribed to them in
the Agreement.
Buyer, Buyer Subsidiary and the Company, pursuant to Section 8.02 of
the Agreement, desire to amend certain of the terms of the Agreement and certain
of the rights and obligations of the parties set forth in the Agreement.
Now, therefore, in consideration of the premises and of the mutual
covenants, representations, warranties, and agreements herein contained, the
parties hereby agree as follows:
1. Section 1.05 of the Agreement shall be amended in its entirety to
read as follows:
"1.05 CONVERSION OF SHARES. The manner and basis of converting or
canceling the shares of stock of each of the Constituent Corporations shall be
as follows:
(a) The aggregate purchase price ("PURCHASE PRICE") to be paid
by Buyer as consideration for consummation of the Merger shall equal
$4.75 multiplied by the number of shares of Common Stock of the Company
outstanding at the Effective Time.
(b) At the Effective Time, each share of Common Stock of the
Company, no par value per share ("COMPANY COMMON STOCK"), issued and
outstanding immediately before the Effective Time (other than (i)
Dissenting Shares (as defined below) and (ii) shares of Company Common
Stock held of record by Buyer or Buyer Subsidiary or any other direct
or indirect wholly owned subsidiary of Buyer or the Company immediately
before the Effective Time) shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into and
represent the right to receive a per share amount in cash determined by
dividing (i) the Purchase Price by (ii) the number of shares of Company
Common Stock outstanding at the Effective Time (the "MERGER
CONSIDERATION"), without interest.
(c) At the Effective Time, each share of Common Stock of Buyer
Subsidiary, par value $0.01 per share, issued and outstanding
immediately before the Effective Time shall, by virtue of the Merger
and without any action on the part of the holder thereof, be converted
into and exchanged for one fully paid and nonassessable share of Common
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Stock of the Surviving Corporation ("SURVIVING CORPORATION COMMON
STOCK"), which shall constitute the only issued and outstanding shares
of capital stock of the Surviving Corporation immediately after the
Effective Time. From and after the Effective Time, each outstanding
certificate theretofore representing shares of Common Stock of Buyer
Subsidiary shall be deemed for all purposes to evidence ownership and
to represent the same number of shares of Surviving Corporation Common
Stock.
(d) At the Effective Time, each share of Company Common Stock
held of record by Buyer or Buyer Subsidiary or any other direct or
indirect wholly owned subsidiary of Buyer or the Company immediately
before the Effective Time shall, by virtue of the Merger and without
any action on the part of the holder thereof, be canceled and cease to
exist, and no payment shall be made with respect thereto."
2. Section 4.01(d)(v) of the Agreement shall be amended in its entirety
to read as follows:
"(v) (i) incur, assume or guarantee any indebtedness
for money borrowed other than intercompany indebtedness or
indebtedness in the ordinary course of business and consistent
with past practice, or (ii) pay, concede, settle or compromise
any claim made by any third party against the Company or any
of its Subsidiaries other than claims made by trade creditors
in the ordinary course of business;"
3. Buyer and Buyer Subsidiary each hereby waives each of the conditions
set forth in Sections 5.01(a), (c) and (h) to the extent that a failure of any
such condition occurs as a direct result of facts or circumstances (or the
continuation of such facts or circumstances) of which Buyer and Buyer Subsidiary
have actual knowledge as of the date of this Amendment.
4. Section 7.01(b) of the Agreement is hereby amended by replacing the
date "June 30, 2003" with the date "August 15, 2003"; provided, that, subject to
the terms and conditions of the Agreement, the parties shall use their
reasonable best efforts to consummate the Closing by June 30, 2003.
5. Schedule 1 of the Agreement shall be replaced by Schedule 1 attached
hereto.
6. Section 5.02(c) of the Agreement shall be amended to read in its
entirety as follows:
"(c) The opinion of Tri-Artisan, LLC, delivered to the Board
of Directors of the Company on March 12, 2003 and on May 20, 2003, that
the Merger Consideration is fair, from a financial point of view, to
the shareholders of the Company, shall not have been thereafter
withdrawn or modified in a manner unsatisfactory to the Board of
Directors of the Company."
7. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
the same instrument.
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8. Except as expressly set forth herein, all terms and conditions of
the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
COLORADO MEDTECH, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: CEO and President
CIVCO HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
CMT MERGERCO, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
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SCHEDULE 1
INSURANCE
Type Coverage Limit Policy Period Deductible
---- -------------- ------------- ----------
Environmental for CIVCO properties $2,000,000 2-3 years $100,000
(prospective)*
Environmental run-off** $5,000,000 10 years $100,000
Technology Errors & Omissions run-off $11,000,000 occurrence/ perpetual $250,000
$13,000,000 aggregate
General Liability/Products (discontinued $1,000,000 occurrence/ 5 years $100,000 occurrence/
products) $2,000,000 aggregate $300,000 aggregate
General Liability/Products (discontinued Excess limit: $20,000,000 5 years $0
products)
Director & Officer run-off $10,000,000 6 years $200,000
Employment Practices Liability run-off $2,000,000 6 years $150,000
Representations and Warranties -- Buyer $11,000,000 2 years 3%
Form
* To include all currently and previously owned and leased real property of
CIVCO and any generator and arranger liability. It is understood that Buyer
shall be responsible for that portion of the cost of environmental liability
insurance covering the operation of CIVCO after the Effective Time.
** To include all currently and previously owned and leased real property of the
Company and CIVCO and any generator and arranger liability.
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