EXHIBIT 2.8
AGREEMENT TO AMEND AGREEMENT AND PLAN OF MERGER
AGREEMENT TO AMEND AGREEMENT AND PLAN OF MERGER dated as of October 5, 2000,
by and among Xxxxx.xxx, Inc., a Delaware corporation ("Phone"), Silver Merger
Sub Inc., a Delaware corporation and a wholly owned subsidiary of Phone
("Sub"), and Xxxxxxxx.xxx, Inc., a Delaware corporation ("Software").
WHEREAS, Phone, Sub and Software have entered into an Agreement and Plan of
Merger, dated as of August 8, 2000, by and among Phone, Sub and Software (the
"Merger Agreement"); and
WHEREAS, each of the respective Boards of Directors of Phone, Sub and
Software has deemed it advisable and in the best interests of each of Phone,
Sub and Software, respectively, and has resolved that the name of Phone from
and after the Effective Time (as defined in the Merger Agreement) shall remain
"Xxxxx.xxx, Inc." until such time as the Board of Directors of Phone shall
otherwise determine; and
WHEREAS, the respective Board of Directors of each of Phone, Sub and
Software has deemed it advisable and in the best interests of each of Phone,
Sub and Software, respectively, and has resolved that Phone will not amend the
Phone ESPP (as defined in the Merger Agreement) to provide a special offering
period that would permit Xxxxxxxx.xxx employees to immediately participate in
the Phone ESPP after the Effective Time; and
WHEREAS, each of the respective Boards of Directors of Phone, Sub and
Software has deemed it advisable and in the best interests of each of Phone,
Sub and Software, respectively, and has resolved that the Merger Agreement be
amended to reflect the foregoing and certain other ministerial matters; and
WHEREAS, Section 7.3 of the Merger Agreement sets forth the manner in which
the Merger Agreement may be amended.
NOW, THEREFORE, intending to be legally bound, the parties agree pursuant to
Section 7.3 of the Merger Agreement, to amend and modify the Merger Agreement
as set forth below to reflect the true intention and agreement of the parties:
Fifth recital ("Whereas" Amend the fifth recital ("Whereas" clause) to read
clause) of the Merger in its entirety as follows "WHEREAS, the Board of
Agreement Directors of Phone has resolved to recommend to
Phone's stockholders the approval of the issuance
of shares of Phone Common Stock (as hereinafter
defined) pursuant to the Merger".
Section 1.5 of the Merger Amend Section 1.5 to read in its entirety as
Agreement follows: "At the Effective Time, subject to the
requirements of Section 5.5, the certificate of
incorporation and the by-laws of Merger Sub, as in
effect immediately prior to the Effective Time,
shall become the certificate of incorporation and
by-laws of the Surviving Corporation, in each case
until thereafter amended in accordance with
applicable law, except that from and after the
Effective Time, Article First of the certificate
of incorporation shall read in its entirety as
follows: "The name of the corporation is
"Xxxxxxxx.xxx, Inc.' (hereinafter, the
"Corporation")."
Section 2.1(d) of the Amend the heading in Section 2.1(d) to read in its
Merger Agreement entirety as follows:
(d) Assumption and Conversion of Xxxxxxxx.xxx
Options and Assumption of Xxxxxxxx.xxx Stock
Plans.
Section 2.1(d)(ii) of the Amend the first sentence of Section 2.1(d)(ii) to
Merger Agreement read in its entirety as follows: "As of the
Effective Time, Phone shall assume in full each
Xxxxxxxx.xxx Option, all of the other rights and
obligations of Xxxxxxxx.xxx under the Xxxxxxxx.xxx
Stock Plans (as defined in Section 3.2(c)) as
provided herein, and each Xxxxxxxx.xxx Stock
Plan."
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Section 2.1(e) of the Amend Section 2.1(e) by deleting the words: ";
Merger Agreement provided, however, that Phone shall amend the
Phone ESPP to provide for a special offering
period that permits Xxxxxxxx.xxx employees the
ability to immediately participate in the Phone
ESPP after the Effective Time, and that service
with Xxxxxxxx.xxx shall be treated as service with
Phone for determining eligibility of
Xxxxxxxx.xxx's employees under the Phone ESPP" at
the end of Section 2.1(e).
Section 2.2(e)(ii) of the Amend Section 2.2(e)(ii) to read in its entirety
Merger Agreement as follows: "Notwithstanding any other provision
of this Agreement, each holder of shares of
Xxxxxxxx.xxx Common Stock converted pursuant to
the Merger who would otherwise have been entitled
to receive a fraction of a share of Phone Common
Stock (after taking into account all Certificates
delivered by such holder) shall receive, in lieu
thereof, cash (without interest) in an amount
equal to (i) such fraction multiplied by (ii) the
average of the closing price of a share of Phone
Common Stock for the ten (10) most recent trading
days that Phone Common Stock has traded ending on
the trading day immediately prior to the Effective
Time, as reported on the Nasdaq National Market."
Section 3.1(l) of the Amend Section 3.1(l) to read in its entirety as
Merger Agreement follows: "The affirmative vote at the Phone
Stockholders' Meeting (the "Phone Stockholder
Approval") of the holders of a majority of all
outstanding shares of Phone Common Stock present
in person or by proxy and entitled to vote at a
duly convened and held meeting of Phone
stockholders to approve the issuance of shares of
Phone Common Stock pursuant to the Merger is the
only vote of the holders of any class or series of
Phone's capital stock necessary to adopt this
Agreement and approve the transactions
contemplated hereby."
Section 4.2(b) of the Amend Section 4.2(b) by deleting the words: "or
Merger Agreement the Charter Amendment" at the end of clause (i).
Section 5.1(b) of the Amend Section 5.1(b) by deleting the words: "and
Merger Agreement the Phone Charter Amendment" at the end of Section
5.1(b).
Add new Section 5.18 to Add a new Section 5.18 to read in its entirety as
the Merger Agreement follows:
"SECTION 5.18 Name of Phone.
The parties agree that after the Effective Time,
the name of Phone shall continue to be 'Xxxxx.xxx,
Inc.' until the Board of Directors of Phone shall
otherwise determine."
Section 7.1(e) of the Amend Section 7.1(e) by deleting the words: "and
Merger Agreement the Charter Amendment" at the end of the clause
(i)(A).
Capitalized terms used herein and not defined herein shall have the meanings
ascribed thereto in the Merger Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflict of laws thereof, and
constitutes the entire agreement of Phone, Sub and Software with respect to
the matters set forth herein. In the event of any conflict or inconsistency
between the provisions of this Agreement and the provisions of the Merger
Agreement, the provisions of this Agreement shall govern. Each and every other
term, condition, covenant, representation, warranty and provision set forth in
the Merger Agreement shall remain in full force and effect. All references to
the Merger Agreement in any other agreement or document shall hereinafter be
deemed to refer to the Merger Agreement as amended hereby.
Any amendment to or modification of this Agreement shall be effected in
accordance with the provisions of Section 7.3 of the Merger Agreement.
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This Agreement shall be effective as of the date first above written.
Xxxxx.xxx, Inc.
/s/ Xxxx Xxxxx
By:
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Name: Xxxx Xxxxx
Title: Senior Vice President,
Corporate Affairs and
Chief Financial Officer
Silver Merger Sub Inc.
/s/ Xxxxx Xxxxx
By:
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Name: Xxxxx X. Xxxxx
Title: Vice President
Xxxxxxxx.xxx, Inc.
/s/ Xxxxx Xxxxxxxxx
By:
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Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
General Counsel
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