FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST
AMENDMENT
TO
This
First Amendment to Agreement and Plan of Merger (this “Amendment”) is dated to
be effective as of the 29th day of December, 2009, by and among RURBANC DATA
SERVICES, INC., an Ohio corporation (“RDSI”); NC MERGER CORP., an Ohio
corporation (“Merger Corp.”); and NEW CORE HOLDINGS, INC., a Florida corporation
(“New Core”).
WITNESSETH
WHEREAS,
Rurban, Merger Corp. and New Core entered into that certain Agreement and Plan
of Merger dated as of April 25, 2009 (the “Agreement”); and
WHEREAS,
Rurban, Merger Corp. and New Core desire to amend the Agreement to modify
certain conditions and covenants contained therein; and
WHEREAS,
pursuant to Section 10.3 of the Agreement, the Agreement may be amended by the
parties by action taken or authorized by their respective Boards of Directors
and pursuant to an agreement in writing signed on behalf of each of the
parties;
NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows, intending to be legally bound
hereby:
1. Amendment to Section
7.1. Section 7.1 of the Agreement is hereby amended by
deleting the same in its entirety and substituting therefor the
following:
7.1 Preparation of Registration
Statement and Information Statement/Proxy Statement; Required New Core
Vote.
(a) Subject
to the prior approval of the Board of Directors of Rurban, RDSI shall prepare
and file with the SEC a registration statement to register the RDSI Common Stock
under the Exchange Act (including all amendments and supplements thereto, the
“Registration Statement”), and shall use its reasonable efforts to cause the
Registration Statement to become effective under the Exchange
Act. The Registration Statement shall include as an exhibit thereto
the joint information statement/proxy statement to be delivered to Rurban
shareholders in connection with the Spin-Off and to New Core shareholders in
connection with the Merger (including all amendments and supplements thereto,
the “Information Statement/Proxy Statement”). New Core shall furnish
to RDSI all information concerning New Core as is required by the SEC in
connection with the preparation of the Information Statement/Proxy Statement and
the Registration Statement. The parties shall promptly provide
copies, consult with each other and prepare written responses with respect to
any written comments received from the SEC with respect to the Information
Statement/Proxy Statement and the Registration Statement, and advise one another
of any oral comments received from the SEC with respect to the Information
Statement/Proxy Statement and the Registration Statement. The parties
shall cooperate in preparing and filing with the SEC any necessary amendment or
supplement to the Information Statement/Proxy Statement or the Registration
Statement. Each of RDSI and New Core will use its reasonable efforts
to cause the Information Statement/Proxy Statement to be mailed to its
shareholders promptly after the Registration Statement becomes effective under
the Exchange Act. The Information Statement/Proxy Statement and the
Registration Statement shall comply as to form in all material respects with the
applicable rules and regulations promulgated by the SEC.
(b) New
Core shall use its reasonable efforts to obtain the Required New Core Vote to
approve and adopt this Agreement and the Merger in compliance with the FBCA as
soon as practicable following the delivery of the Information Statement/Proxy
Statement to the New Core shareholders in accordance with Section 7.1(a) by
either (i) delivering requests for written consents from the New Core
shareholders in compliance with the FBCA (the “New Core Written Consents”) and
by delivering any and all notices to the New Core shareholders, and taking any
and all other actions, required under the FBCA in connection with the
solicitation of such New Core Written Consents, or (ii) by duly calling and
holding a meeting of the New Core shareholders (the “New Core Shareholders
Meeting”) and submitting for a vote by the New Core shareholders the approval
and adoption of this Agreement and the Merger.
(c) If,
at any time after the mailing of the definitive Information Statement/Proxy
Statement, any event should occur that results in the Information
Statement/Proxy Statement or the Registration Statement containing an untrue
statement of a material fact or omitting to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading, or that otherwise
should be described in an amendment or supplement to the Information
Statement/Proxy Statement or the Registration Statement, the parties shall
promptly notify the other parties of the occurrence of such event and then
promptly prepare, file and clear with the SEC such amendment or supplement and,
if required, each of Rurban and New Core shall mail to its shareholders each
such amendment or supplement.
(d) RDSI
and New Core expect that the shares of RDSI Common Stock to be issued to New
Core shareholders in the Merger will be issued in reliance upon exemptions from
registration under the federal securities laws and under the securities laws of
various states. RDSI shall, at RDSI’s sole cost and expense, use its
reasonable efforts to take or cause to be taken all such actions as may be
necessary or appropriate for the issuance of the shares of RDSI Common Stock to
qualify for such exemptions from registration, including, without limitation,
preparing and filing any required forms, notices or other documents with the SEC
and/or applicable state securities authorities. New Core shall
cooperate with RDSI in connection with any such filings and shall use its
reasonable efforts to take any actions reasonably requested by RDSI in
connection with RDSI’s reliance on the exemptions from registration as
contemplated by this Section 7.1(d).
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(e) Notwithstanding
anything herein to the contrary, if RDSI determines at any time following
approval by the Board of Directors of Rurban to proceed with the Spin-Off (or to
proceed with appropriate securities law filings related to the Spin-Off and/or
the Merger) that registration under the Securities Act of the issuance of the
shares of RDSI Common Stock in the Merger is necessary or appropriate, whether
because of the unavailability of exemptions from registration thereunder or
otherwise, RDSI shall prepare and file with the SEC a registration statement
under the Securities Act and use its reasonable efforts to have such
registration declared effective under the Securities Act promptly after such
filing and to keep such registration statement effective so long as is necessary
to consummate the transactions contemplated by this Agreement. New
Core shall furnish to RDSI all information concerning New Core as is required by
the SEC in connection with the preparation of such registration statement and
shall cooperate with RDSI in connection with the filing of any such registration
statement, including any amendment or supplement thereto and any responses to
comments received from the SEC with respect thereto.
2. Amendment to Section
7.8. Section 7.8 of the Agreement is hereby amended by
deleting the same in its entirety and substituting therefor the
following:
7.8 Listing of Shares of RDSI
Common Stock. RDSI shall, at its sole cost and expense, use
commercially reasonable efforts to cause the shares of RDSI Common Stock,
including the shares of RDSI Common Stock to be issued in the Merger, to be
approved for listing on The NASDAQ Stock Market as soon as practicable following
the Effective Time, subject to RDSI’s satisfaction of the applicable listing
requirements of The NASDAQ Stock Market.
3. Amendment to Section
8.1(e). Section 8.1(e) of the Agreement is hereby amended by
deleting the same in its entirety and substituting therefor the
following:
(e) [Intentionally
Omitted.]
4. Amendment to Section
8.1(f). Section 8.1(f) of the Agreement is hereby amended by
deleting the same in its entirety and substituting therefor the
following:
(f) Effectiveness of the
Registration Statement. (i) The Registration Statement shall
have become effective under the Exchange Act, and (ii) any registration
statement filed with the SEC pursuant to Section 7.1(e) shall have been declared
effective by the SEC under the Securities Act and no stop order suspending the
effectiveness of such registration statement shall then be in effect and no
proceedings for that purpose shall be pending before or threatened by the
SEC.
5. Amendment to Section
9.4. Section 9.4 of the Agreement is hereby amended by
deleting the same in its entirety and substituting therefor the
following:
9.4 Escrow
Agreement. Prior to the Effective Time, RDSI, New Core and
each of the shareholders and warrantholders of New Core shall enter into an
escrow agreement (the “Holdback Escrow Agreement”) with a third-party escrow
agent mutually agreed upon by RDSI and New Core (the “Holdback Agent”), which
Holdback Escrow Agreement shall provide for the Holdback Agent to serve as
Holdback Agent as set forth herein and shall contain terms and conditions
consistent with the provisions of Section 9.3.
6. Amendment
to Section 10.2(b). Section 10.2(b) of the Agreement is hereby
amended by deleting the same in its entirety and substituting therefor the
following:
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(b) If
this Agreement is terminated by New Core pursuant to Section 10.1(b) as a result
of the failure of Rurban or RDSI to complete the Spin-Off, or to prepare and
file the Registration Statement as prescribed in Article VII (unless such
failure is proximately caused by New Core’s failure to provide the required
information in connection therewith) on or before the Termination Date, or
pursuant to Section 10.1(h) as a result of an RDSI Sale, RDSI shall pay to New
Core in immediately available funds the sum of $500,000 within ten (10) days
following such termination. It is the intent of the parties that the
Threshold Amount referenced in Section 9.2 above shall have no application or
affect upon this Section 10.2(b).
7. Replacement of
Terms.
(a) The
Agreement is hereby amended by deleting the term “Information
Statement/Prospectus” each place it appears in the Agreement and replacing it
with the term “Information Statement/Proxy Statement”.
(b) The
Agreement is hereby amended by deleting the term “Securities Act” in Section
5.1(e)(i) and replacing it with the term “Exchange Act”.
(c) The
Agreement is hereby amended by deleting the term “Securities Act” in Section
5.2(e)(i) and replacing it with the term “Exchange Act”.
8. Capitalized
Terms. All capitalized terms used and not defined in this
Amendment shall have the meanings ascribed to such terms in the
Agreement.
9. No Other
Amendment. Except as explicitly set forth in this Amendment,
the terms and provisions of the Agreement shall remain in full force and effect
in accordance with the terms thereof and binding upon RDSI, Merger Corp. and New
Core.
10. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to choice
of law principles thereof.
11. Counterparts. This
Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when two or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that the parties need not sign the same
counterpart.
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
duly authorized officers, all as of the day and year first written
above.
RURBANC
DATA SERVICES, INC.
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By:
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/s/ Xxxxxxx
X. Xxxxx
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Xxxxxxx
X. Xxxxx
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Chief
Executive Officer
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NC
MERGER CORP.
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By:
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/s/ Xxxxxxx
X. Xxxxx
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Xxxxxxx
X. Xxxxx
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President
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NEW
CORE HOLDINGS, INC.
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By:
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/s/
Xxxx X. Xxxxxxxxx
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Xxxx
X. Xxxxxxxxx
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President
and CEO
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