Exhibit 2.3
WAIVER OF TERMS
Reference is hereby made to the Agreement and Plan of Merger, dated
December 21, 1999 (as amended or modified to date, the "Merger Agreement"), by
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and among America Online, Inc., a Delaware corporation ("America Online"), MQ
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Acquisition, Inc., a Delaware corporation and a wholly-owned subsidiary of
America Online ("MQ Acquisition"), and XxxXxxxx.xxx, Inc. ("MapQuest"). All
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capitalized terms used but not defined herein shall have the meanings given such
terms in the Merger Agreement. Unless otherwise specified, references herein to
Sections are references to Sections of the Merger Agreement.
America Online and MQ Acquisition each hereby waive:
(a) the condition set forth in Section 6.2(a) with respect to any
breach of the representations and warranties contained in Sections 2.7(b)
and 2.10 based solely on the amendment, alteration or termination at
America Online's request or direction of the contracts listed in Schedule A
hereto (the "Amended Contracts");
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(b) the conditions set forth in Sections 6.2(g)(i) and 6.2(g)(ii);
(c) America Online's right to terminate the Merger Agreement pursuant
to Section 7.1(g) solely due to any breach of the representations and
warranties contained in Sections 2.7(b) and 2.10 based solely on the
amendment, alteration or termination at America Online's request or
direction of the Amended Contracts; and
(d) America Online's right to receive the Termination Fee pursuant to
Section 7.3(b) and America Online's right to receive the Parent Stipulated
Expenses pursuant to Section 7.3(c) in each case solely due to any
termination of the Merger Agreement by America Online pursuant to Section
7.1(g) solely due to any breach of the representations and warranties
contained in Sections 2.7(b) and 2.10 based solely on the amendment,
alteration or termination at America Online's request or direction of the
Amended Contracts.
America Online, MQ Acquisition and MapQuest each hereby waive any right to
receive or any obligation to cause to be delivered "comfort" letters from the
Company's Accountants or from Parent's Accountants pursuant to Section 5.12.
America Online, MQ Acquisition and MapQuest each hereby agree that the
Closing shall take place, subject to the terms and conditions of the Merger
Agreement, on June 29, 2000.
This Waiver of Terms is limited in scope, intent, effect and construction
only to the matters expressly set forth above. All other provisions of the
Merger Agreement and all other agreements or other documents delivered in
connection with the Merger Agreement shall remain
unmodified and in full force and effect.
Date: May 23, 2000
AMERICA ONLINE, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President-Business Affairs
MQ ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
AGREED AND ACKNOWLEDGED:
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, CEO
