Exhibit 99.5
FOURTH AMENDMENT TO THE AGREEMENT AND PLAN OF REORGANIZATION
This Fourth Amendment (the "Amendment"), dated as of December __, 2001,
is to the Agreement and Plan of Reorganization, as amended by the First
Amendment, the Second Amendment, and the Third Amendment, by and among
XXXXXXXXXX.XXX, INC. a Delaware corporation ("Newco Parent"), DYNCORP MANAGEMENT
RESOURCES INC., a Virginia corporation (the "Company"), NEWPORT ACQUISITION
CORP., a Delaware corporation ("Newco"), and DYNCORP, a Delaware corporation
("Company Parent") (the "Reorganization Agreement"). Following further
discussions between the parties after execution of the Reorganization Agreement,
the parties determined it to be in the best interests of all such parties to
make certain changes to the Reorganization Agreement agreed to by the parties
named below, and such parties hereby agree as follows:
Section 1
1.1 Termination of Merger Agreement. The Agreement and Plan of Merger,
dated as of April 25, 2001, by and between the Company, Newco Parent, Company
Parent and Newco (the "Merger Agreement"), is hereby terminated in its entirety.
1.2 Adoption of New Merger Agreement. The Company, Newco Parent,
Company Parent and TekInsight Services, Inc., a Delaware corporation ("Tek"),
hereby agree to enter into a new Agreement and Plan of Merger (the "New Merger
Agreement"), in substantially the form attached to this Amendment as Exhibit A
hereto, to replace the terminated Merger Agreement.
1.3 Substitution of Parties. By its execution of this Fourth Amendment,
Tek becomes a successor in interest to Newco and shall have all the rights and
obligations of Newco under the Agreement. Thereupon, Newco shall have no further
rights or obligations under the Agreement. all references to Newco in the
Agreement shall be deemed references to Tek.
Section 2
2.1 Working Capital Facility. Section 4.17 of the Reorganization
Agreement is hereby amended to read as follows:
Newco Parent shall use its best efforts to have secured, no
later than 90 days following the Closing, a firm irrevocable financing
commitment and/or credit facilities on prevailing market terms and
conditions under which, collectively, no less than $15 million of
financing will be available to Newco to support and finance its
operations for a period of at least 2 years subsequent to the Closing
(the "Financing").
2.2 Non-Competition Provisions. Section 4.21 of the Reorganization
Agreement is hereby amended to read as follows:
Company Parent agrees that neither it nor any of its
Subsidiaries shall, for a period of three (3) years after the Closing
Date, compete directly or indirectly with Newco or Newco Parent and its
Subsidiaries (including, without limitation, by seeking business
opportunities, responding to requests for bids or other proposals, and
by performing contracts) for revenue producing service contracts with
state and local government agencies in the state and local government
markets (which shall refer to vertical lines of business and not
geographic areas) in which the Company and Newco Parent's Subsidiaries
are actively engaged in business as of the Closing Date; provided,
however, that such restriction shall not apply, and Company Parent and
its Subsidiaries shall be free at all times to pursue and perform any
and all of the following contracts secured before, during and after the
aforementioned restriction period:
(a) Contracts and business in the health-related, transportation,
law enforcement and public safety, and education-related
markets pursued by Company Parent's Subsidiaries, AdvanceMed
Corporation, DynRide LLC, DynCorp Information and Enterprise
Technology, Inc. and DynCorp Information Systems, and their
successors in interest, respectively;
(b) Any and all business that is conducted by Company Parent or
any of its Subsidiaries under or in connection with, or as an
outgrowth of, any federal government contract regardless of
when awarded to Company Parent or a Subsidiary;
(c) Any and all business that is conducted by Company Parent or
any of its Subsidiaries under any non-federal government
contract that is in effect as of the Closing Date (other than
contracts that are currently being performed, or are presently
contemplated to be performed, by the Company);
(d) Any and all business that is conducted at any time by any
business or entity that may be acquired by Company Parent or
any of its Subsidiaries, so long as the aggregate revenue of
such business or entity from contracts with state and local
governments does not exceed, in the year of acquisition, more
than the lesser of 15% of total annual revenue of such
acquired business or entity or $7,500,000;
(e) Any and all business that is conducted by an Affiliate of
Company Parent that is not a Subsidiary consolidated with
Company Parent (or its parent) for financial reporting
purposes;
(f) Any and all business that is conducted by (i) any Subsidiary
of Company Parent subsequent to Company Parent's complete
divestiture of such Subsidiary or (ii) any non-affiliated
third party that purchases any portion of Company Parent's or
any of its Subsidiaries' business;
(g) Any and all business under contracts or proposals of any
Subsidiary of Company Parent (other than the Company)
outstanding as of the Closing Date with other than state and
local government agencies, but for services ultimately
beneficial, directly or indirectly, to a state or local
government;
(h) Contracts to provide information technology desk top or "seat"
management hardware and services to a state or local
government agency if, after reasonable notice of the
opportunity by Company Parent or a Subsidiary to Newco or
Newco Parent, Newco or Newco Parent has failed to actively
seek or pursue such opportunity;
(i) Investments in any business that may be involved in providing
services to state and local government agencies so long as the
securities of such businesses are publicly traded and the
aggregate investment by Company Parent does not exceed 1% of
the total outstanding securities in which the investment is
made;
(j) Contracts and business in the aviation support, operations,
maintenance and training; airport operations and management;
security services and training; facility and equipment
maintenance and management; logistics support; [non-software]
engineering support services; and construction and
construction management markets pursued by Company Parent's
Subsidiaries, DynCorp Technical Services LLC and DynCorp
International LLC; and
(k) Contracts and business with the Commonwealth of Puerto Rico and its
agencies and instrumentalities;
provided further, however, that such restriction shall not apply to any
entity which may acquire the stock or a substantial portion of the
assets of Company Parent or one or more of its Subsidiaries, where such
business or activities are carried on by such entity or its
subsidiaries or affiliates other than Company Parent or the current
Subsidiaries of Company Parent.
Section 3
3.1 Conditions Precedent to Obligations of the Company and Company
Parent. Subsection 5.2(c) of the Reorganization Agreement is hereby
deleted and replaced by the word "Reserved".
Section 4
4.1 Conditions Precedent to Obligations of Newco Parent and Newco.
(a) Subsection 5.3(d) of the Reorganization Agreement is hereby
amended to read as follows:
DynRide LLC ("DynRide"), a Delaware limited liability company
which is a wholly owned subsidiary of Company Parent, shall have
transferred, assigned, and conveyed to the Company and its successors
all of DynRide's interest in and title to its transportation brokerage
software program, including delivery of source Code but excluding any
right to the name "DynRide" (the "DynRide Technology"), for a
contingent payment of 50% of the first $3,600,000 of the Company's or
its successors' in interest, without duplication, net profits before
interest, taxes, depreciation, and amortization from the sale, use, or
licensing of the Technology to third-parties from and after the date of
such agreement ("net profits") plus 10% of the net profit after the
first $3,600,000 of net profit; provided, however, that such contingent
payments shall not apply to net profits earned after the fifth
anniversary of such agreement.
(b) Subsection 5.3(f) of the Reorganization Agreement is hereby
deleted and replaced by the word "Reserved".
Section 5
5.1 Registration Rights Agreement. The form of Registration Rights
Agreement attached to the Reorganization Agreement as Annex C thereto is hereby
deleted in its entirety and replaced with the form of Registration Rights
Agreement attached to this Amendment as Exhibit B hereto.
5.2 Transition Services Agreement. The form of Transition Services
Agreement attached to the Reorganization Agreement as Annex E thereto is hereby
deleted in its entirety and replaced with the form of Transition Services
Agreement in the form attached to this Amendment as Exhibit C hereto.
Section 6
6.1 Company Parent hereby consents to and waives compliance with
Section 4.7(b) of the Reorganization Agreement with respect to:
(a) The purchase by Newco Parent from Exodus Communications, Inc.
("Exodus") of certain assets related to the Exodus Gulf Services business unit
operating in Louisiana, Alabama and Mississippi, substantially in accordance
with the terms and conditions set forth in that certain Letter of Intent, dated
September 28, 2001 and filed as an exhibit to Newco Parent's Form 8-K filed with
the Securities and Exchange Commission on November 2, 2001, pursuant to
appropriate definitive agreements to be negotiated and entered into by Newco
Parent and Exodus in connection therewith; and
(b) The issuance and sale by Newco Parent, to holders of its 8% and 12%
Convertible Notes (the "Notes") certain warrants issued in connection therewith
(the "Warrants"), of an aggregate of up to 617,628 shares of its Class A common
stock, par value $0.0001 per share (the "Class A common stock"), as more fully
described on Exhibit D hereto, upon conversion or exercise, as applicable, of
the Notes and Warrants. Upon the exercise of such Warrants, Newco Parent shall
issue Additional Consideration, as stipulated in Article VI, Section 8 of the
New Merger Agreement.
6.2 Notwithstanding anything set forth in this Amendment, the
Reorganization Agreement, the New Merger Agreement or in any document or
agreement executed in connection therewith, Company Parent hereby acknowledges
and agrees that, in connection with this Amendment, the number of shares of
Class B common stock, par value $0.0001 per share (the "Class B common stock"),
to be issued to Company Parent upon consummation of the transactions
contemplated by the New Merger Agreement has been appropriately increased to
give effect to the issuance, pursuant to the transactions described in Section
4.1(b), of (a) 604,000 shares of Class A common stock on the basis of $1,057,000
principal amount of Notes being converted to shares of Class A common stock at
the rate of $1.75 per share, and (b) 411,765 shares of Class A common stock on
the basis of $700,000 principal amount of Notes being converted to shares of
Class A common stock at the rate of $1.70 per share; and that, upon such actual
issuance and sale of shares of Class A common stock following the effective date
of the Merger, Company Parent will not be entitled to be issued any additional
shares of Class B common stock or other securities of Newco Parent solely as a
result thereof.
6.3 Company Parent hereby consents to, and waives compliance with
Section 4.15 of the Reorganization Agreement with respect to, Tek changing its
corporate name to either "DynTek Management Resources, Inc." or "DynTek
Services, Inc."; provided, that if the Reorganization Agreement is terminated
for any reason prior to the consummation of the transactions contemplated
thereby, Tek shall promptly change its name so that its name does not contain
the word "Dyn" or any variation thereon.
Section 7
7.1 Newco Parent and Newco hereby waive compliance with Section 5.3(a)
and 5.3(c) of the Reorganization Agreement with respect to any adverse
circumstances or Material Adverse Effect relating to the Company's Non-Emergency
Transportation contracts with the Commonwealth of Virginia and the State of
Illinois and the termination of the Company's subcontract with CIBRE Enterprise
Solutions (a successor in interest to ARIS Corporation) to provide support for
Colorado data systems (collectively, the "Three Contracts"). Newco Parent and
Newco hereby confirm that they have been afforded and have exercised full
opportunity to examine all financial and other information pertaining to the
Three Contracts and to interview the project management teams responsible for
the Company's performance of the Three Contracts for all periods prior to the
date of this Fourth Amendment.
Section 8
8.1 Except as specifically modified by this Amendment, the
Reorganization Agreement in its current form shall be unaltered and shall remain
in full force and effect in accordance with its terms.
Section 9
9.1 Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterparts.
9.2 Entire Agreement. This Amendment and the documents and instruments
and other agreements among the parties hereto as contemplated by or referred to
herein, constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, it being understood that except as specifically modified by this
Amendment, the terms and conditions of the Merger Agreement remain in full force
and effect in accordance with their terms.
9.3 Severability. In the event that any provision of this Amendment or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Amendment will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Amendment with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
9.4 Governing Law. This Amendment shall be governed by and construed
in accordance with the laws the State of Delaware, without giving effect to
principles of conflicts of laws.
9.5 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Amendment
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
9.6 Definitions. All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized respective officers as of the date first
written above.
XXXXXXXXXX.XXX, INC.
By:____________________
Xxxxxx X. Xxxx, President
DYNCORP MANAGEMENT RESOURCES INC.
By:_____________________
X. Xxxxxxxxxx Xxxxxx, Secretary
NEWPORT ACQUISITION CORP.
By:_____________________
Xxxxxx X. Xxxx, President
DYNCORP
By: _____________________
X. Xxxxxxxxxx Xxxxxx, Vice President & Secretary
TEKINSIGHT SERVICES, INC.
By:_____________________
Xxxxxx X. Xxxx, President