Exhibit 2.1
AMENDMENT NO. 1 TO THE AGREEMENT
AND PLAN OF MERGER
This Amendment No. 1 (this
“ Amendment No. 1 ”), dated as of
July 9, 2009, is made by and among HAC Holdings, Inc., a
Delaware corporation (“ Newco ”), HAC
Acquisition Corporation, a Maryland corporation and a wholly owned
subsidiary of Newco (“ Merger Sub ”), and
Entrust, Inc., a Maryland corporation (the “ Company
”), to amend the Agreement and Plan of Merger, dated as of
April 12, 2009, by and among Newco, Merger Sub and the Company
(the “ Merger Agreement ”). Capitalized terms
used but not defined herein shall have the meanings ascribed to
such terms in the Merger Agreement.
WHEREAS, Newco, Merger Sub and the
Company are parties to the Merger Agreement;
WHEREAS, the parties each desire to
amend and restate certain provisions of the Merger Agreement as set
forth herein;
WHEREAS, Section 8.4 of the
Merger Agreement provides that the Merger Agreement may be amended
by the parties hereto at any time by execution of an instrument in
writing signed on behalf of each of Newco, Merger Sub and the
Company,
NOW, THEREFORE, in consideration of
the foregoing premises and representations, warranties, covenants
and agreements set forth herein, as well as other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged and accepted, and intending to be legally bound
hereby, Newco, Merger Sub and the Company hereby agree as
follows:
1. Amendment of
Section 1.1(s) . Section 1.1(s) of the Merger
Agreement is hereby amended and restated in its entirety to read as
follows:
(s) “ Company Termination
Fee ” shall mean an amount in cash equal to
$4,948,725.
2. Amendment of
Section 1.1(bb) . Section 1.1(b) of the Merger
Agreement is hereby amended and restated in its entirety to read as
follows:
(bb) [Reserved].
3. Amendment of
Section 2.7(a)(ii) . Section 2.7(a)(ii) of the Merger
Agreement is hereby amended and restated in its entirety to read as
follows:
(ii) each share of Company Common
Stock that is outstanding immediately prior to the Effective Time
(other than Owned Company Shares) shall be canceled and
extinguished and automatically converted into the right to receive
cash in an amount equal to $2.00 (the “ Per Share
Price ”), without interest thereon, in accordance with
the provisions of Section 2.8 (or in the case of a
lost, stolen or destroyed certificate, upon delivery of an
affidavit (and bond, if required) in accordance with the provisions
of in Section 2.10 ); and
3. Amendment to
Section 3.3(b) . Section 3.3(b) of the Merger
Agreement is hereby amended and restated in its entirety to read as
follows:
(b) The Company has received the
opinion of Barclays Capital that, as of April 12, 2009 and
subject to the assumptions and qualifications set forth therein,
the Per Share Price contemplated by the Merger Agreement, dated as
of April 12, 2009, was fair from a financial point of view to
the Company Stockholders, a copy of which opinion has been
delivered to Newco solely for informational purposes.
4. Amendment of
Section 5.3 . Section 5.3 of the Merger Agreement is
hereby amended and restated in its entirety to read as
follows:
(a) [Reserved].
(b) Subject to the terms of
Section 5.3(c) , from and after July 9, 2009 the
Company shall cease and cause to be terminated any discussions or
negotiations with any Person that would otherwise be prohibited by
this Section 5.3(b) . Subject to the terms of
Section 5.3(c) , during the period commencing on
July 9, 2009 and continuing until the earlier to occur of the
termination of this Agreement pursuant to Article VIII and
the Effective Time, the Company and its Subsidiaries shall not, and
the Company and its Subsidiaries shall use their reasonable best
efforts to cause their respective Affiliates, directors, officers,
employees, consultants, agents, representatives and advisors
(collectively, “ Representatives ”) not to,
directly or indirectly, (i) solicit, initiate, propose or
induce the making, submission or announcement of, or take actions
that could reasonably be expected to encourage, facilitate or
assist, an Acquisition Proposal, (ii) furnish to any Person
(other than Newco, Merger Sub or any designees of Newco or Merger
Sub) any non-public information relating to the Company or any of
its Subsidiaries, or afford to any Person access to the business,
properties, assets, books, records or other non-public information,
or to any personnel, of the Company or any of its Subsidiaries
(other than Newco, Merger Sub or any designees of Newco or Merger
Sub), in any such case with the intent to induce the making,
submission or announcement of, or to encourage, facilitate or
assist, an Acquisition Proposal or any inquiries or the making of
any proposal that would reasonably be expected to lead to an
Acquisition Proposal, (iii) participate or engage in
discussions or negotiations with any Person with respect to an
Acquisition Proposal or which may reasonably be expected to lead to
an Acquisition Proposal, (iv)
