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EXHIBIT 2.11
FOURTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT
AND PLAN OF MERGER
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
(this "Amendment") is made and entered into as of November 30, 1997, among THE
XXXXXX XXXXXXX GROUP, LLC (the "Selling Shareholder"), THE XXXXXX XXXXXXX
GROUP, INC. ("Xxxxxxx"), and 800 TRAVEL SYSTEMS, INC. ("Travel Systems").
(A) The parties hereto are parties to that certain Amended and Restated
Agreement and Plan of Merger dated as of November 11, 1996, as amended by that
certain First Amendment thereto dated as of September 8, 1997, and as further
amended by that certain Second Amendment thereto dated October 17, 1997 and as
further amended by that certain Third Amendment thereto dated October 29, 1997
(collectively "the Merger Agreement"), pursuant to which Xxxxxxx will merge
with and into Travel Systems, all in accordance with, and subject to, the terms
and conditions therein set forth.
(B) The parties now wish to amend further the Merger Agreement as set
forth in this Agreement.
(C) All capitalized terms used in this Amendment shall have the same
meanings ascribed to them in the Merger Agreement, unless otherwise indicated
herein.
Agreement
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth and for Ten Dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, each intending to be legally bound hereby,
agree as follows:
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1. Amendment to Article IV.
The parties hereby amend the Merger Agreement by deleting in Article IV,
Section 7 thereof, the amount "$650,000" and substituting in lieu thereof the
number "1,578,335."
2. Amendment to Article IX.
The parties hereby amend the Merger Agreement by deleting in Article IX,
Section 1(b) thereof the date "November 30" (which twice appears therein) and
by substituting in lieu thereof the date "December 31" (such date as originally
set forth in the Merger Agreement was August 31, subsequently extended to
October 31 in the First Amendment, to November 30 in the Second Amendment and
now to December 31 pursuant to this Amendment).
3. Amendment to Article XI.
The parties hereby amend the Merger Agreement by adding new paragraph 4 to
Article XI, which reads as follows:
Notwithstanding anything in this Agreement to the contrary, on the
closing date of the IPO (as defined herein), the Note and the JSG Debt
shall be paid in full by Travel Systems. Notwithstanding anything in the
Security Agreement to the contrary, the Security Agreement, together with
the documents related thereto, shall also serve as security for the JSG
Debt.
4. Additional Consideration. In addition to all other consideration
specified in the Merger Agreement, in consideration for entering into and
delivering this Amendment, Travel Systems agrees as follows: (A) that if the
effective date of the IPO is on or before December 24, 1997, then Travel Systems
shall pay to Selling Shareholder the sum of Thirty Thousand Dollars ($30,000)
upon the closing of the IPO, and (B) if the effective date of the IPO is after
December 24, 1997 and on or before December 31, 1997, then Travel Systems shall
pay to Selling Shareholder the sum of an additional Twenty-five Thousand
Dollars ($25,000), which additional sum shall be paid at the earlier of the
closing of the IPO or January 20, 1998.
5. Ratification. Except as specifically amended hereby, the parties
hereby ratify and confirm the Merger Agreement in all
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respects and further agree that the same shall remain in full force and effect
in accordance with its terms.
6. Miscellaneous. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, both substantive and
remedial, without giving effect to the principles of conflicts of law and
choice of law thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, all
as of the day and year first above written.
THE XXXXXX XXXXXXX GROUP, LLC
By: /s/ XXXXX XXXXXXXX
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Its: Partner
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THE XXXXXX XXXXXXX GROUP, INC.
By: /s/ XXXXX XXXXXXXX
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Its: President
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800 TRAVEL SYSTEMS, INC.
By: /s/ XXXX X. XXXXXXXX
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Its: President
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