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EXHIBIT 2.9
SECOND AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND
PLAN OF MERGER ("this Amendment") is made and entered into October 17, 1997,
among THE XXXXXX XXXXXXX GROUP, LLC (the "Selling Shareholder"), THE XXXXXX
XXXXXXX GROUP, INC. ("Xxxxxxx"), and 800 TRAVEL SYSTEMS, INC. ("Travel
Systems").
Background Statement
(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 (the "First Amendment"), 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 (collectively, the "Merger Agreement");
(B) The parties now wish to amend further the Merger
Agreement as set forth in this Amendment; and
(C) All capitalized terms used in this Amendment shall
have the same meanings ascribed to them in the Merger Agreement, unless
otherwise indicated herein.
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Agreement
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto, each
intending to be legally bound hereby, agree as follows:
1. Amendment to Article VIII.
(a) The parties hereby amend the Merger Agreement
by adding the following provision at the end of Article VIII, Section 3(i)
thereof: "provided, however, that the strike price per warrant shall be 125% of
the Initial IPO Price (as defined in Article IX, Section 1(b) hereof)."
(b) The parties further amend Article VIII by
eliminating in their entirety the provisions of Section 3 (ii) and by
substituting in lieu thereof the following provisions:
(ii) Travel Systems agrees that, at its sole cost and
expense, Travel Systems shall have caused the SEC to have
registered all of the warrants issued to the Selling
Shareholder under Article VIII, Section 3 (i) above,
concurrently with or prior to the closing of the IPO.
2. Amendment to Article XIV.
The parties hereby further amend the Merger Agreement by
eliminating in Article XIV, Section 1 thereof the number "$50,000.00" (which
appears on the 22nd line of such Article XIV, Section 1) and by substituting in
lieu thereof the number "$150,000.00".
3. Amendment to Article IV. The parties hereby further
amend the Merger Agreement by deleting in Article IX, Section 1(b) thereof the
date "October 31st" and by substituting in lieu thereof the date "November
30th" (such date as
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originally set forth in the Merger Agreement was August 31st, subsequently
extended pursuant to the First Amendment to October 31st and now to November
30th by virtue of this Amendment).
4. Ratification. Except as specifically amended hereby,
the parties hereby ratify and confirm the Merger Agreement in all respects and
further agree that the same shall remain in full force and effect in accordance
with its terms.
5. 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: /s/ Partner
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THE XXXXXX XXXXXXX GROUP, INC.
By: /s/ Xxxxx Xxxxxxxx
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Its: /s/ President
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800 TRAVEL SYSTEMS, INC.
By:
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Its:
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