Exhibit 2.1
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER, dated as of May 18, 2009 (this
“ Amendment ”) is made and entered into by and
among ST Software Holdings, LLC, a Delaware limited liability
company (“ Newco ”), ST Mergersub, Inc., a
Delaware corporation and wholly owned subsidiary of Newco (“
Merger Sub ”) and SumTotal Systems, Inc., a Delaware
corporation (the “ Company ”).
RECITALS
A. WHEREAS,
the parties hereto have entered into the Agreement and Plan of
Merger, dated as of April 23, 2009 (the “ Merger
Agreement ”).
B. WHEREAS,
the parties desire to amend the Merger Agreement as provided herein
and in accordance with Section 8.4 of the Merger
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged and accepted, and intending to be legally bound
hereby, the parties agree as follows:
1.
Definitions . Capitalized terms used
in this Amendment but not otherwise defined herein shall have the
meanings set forth in the Merger Agreement.
2.
Amendment of the Merger Agreement
. The following provisions of the Merger
Agreement are hereby amended as follows:
2.1
Recital C . Recital C to the Merger
Agreement is hereby amended and restated in its entirety as
follows:
“C. Concurrently
with the execution of this Agreement, and as a condition and
inducement to the Company’s willingness to enter into this
Agreement, Accel-KKR Capital Partners III, L.P. (the “
Guarantor ”) has entered into a guarantee, dated as of
the date hereof and in the form attached hereto as
Exhibit A (as amended from time to time, the “
Guarantee ”), in favor of the Company with respect to
the obligations and liabilities of Newco and Merger Sub arising
under, or in connection with, this Agreement.”
2.2
Section 1.1(t) .
Section 1.1(t) of the Merger Agreement (definition of
Company Termination Fee) is hereby amended and restated in its
entirety as follows:
“(t) “ Company
Termination Fee ” shall mean an amount in cash equal to
$6,670,000.”
2.3
Section 2.7(a)(ii) .
Section 2.7(a)(ii) of the Merger Agreement is hereby
amended by replacing the Per Share Price of “$3.80”
with the Per Share Price of “$4.80”.
2.4
Section 3.3(b) .
Section 3.3(b) of the Merger Agreement is hereby
amended and restated in its entirety as follows:
“(b) The Company Board has
received the opinion of its financial advisor RBC Capital Markets
dated May 18, 2009 that, as of the date of such opinion and
subject to the assumptions, qualifications and limitations set
forth therein, the Per Share Price was fair, from a financial point
of view, to the holders of Company Common Stock.”
2.5
Section 3.7(a) .
Section 3.7(a) of the Merger Agreement is hereby
amended by replacing the Capitalization Date of “April 17,
2009” with the Capitalization Date of “May 1,
2009”.
2.6
Section 3.7(b) .
Section 3.7(b) of the Merger Agreement is hereby
amended and restated in its entirety as follows:
“(b) As
of the Capitalization Date, the Company has reserved 10,799,571
shares of Company Common Stock for issuance under the Company Stock
Plans, of which as of the Capitalization Date 7,229,038 shares of
Company Common Stock have been reserved for future issuance
pursuant to outstanding grants under the Company Stock Plans, and,
since such date, no additional shares have been reserved. As of the
close of business on the Capitalization Date, there were
(i) outstanding Company Options to acquire up to 3,090,396
shares of Company Common Stock (x) wi
