Exhibit 2.1
AMENDMENT TO
AGREEMENT AND PLAN OF
MERGER
This Amendment, entered into as of
May 29, 2009 (this “Amendment”) to the Agreement
and Plan of Merger, dated as of April 29, 2009, among Sapphire
Stripe Holdings, Inc., a Delaware corporation, Sapphire Stripe
Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Sapphire Stripe Holdings, Inc., and I-many, Inc., a
Delaware corporation (the “Merger Agreement”), is
entered into by the parties to the Merger Agreement. Capitalized
terms used but not defined herein shall have the respective
meanings specified in the Merger Agreement.
WHEREAS, Buyer, Transitory
Subsidiary and the Company have entered into the Merger
Agreement;
WHEREAS, Buyer, Transitory
Subsidiary and the Company desire to amend the Merger Agreement as
provided in this Amendment; and
WHEREAS, the respective Boards of
Directors of Buyer, Transitory Subsidiary and the Company have
deemed this Amendment advisable and in the best interests of their
respective companies.
NOW, THEREFORE, in consideration of
the foregoing and the mutual agreements herein made and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as
follows:
1. Definitions
. The Table of Defined
Terms of the Merger Agreement shall be amended by deleting the
defined term “Closing Cash”.
2. Merger Consideration and
Conversion of Securities .
(a) Section 2.1(c) of the
Merger Agreement shall be amended and restated to read in its
entirety as follows:
“(c) Merger Consideration
for Company Common Stock . Subject to Sections 2.2 and 2.3,
each share of Company Common Stock (other than shares to be
cancelled in accordance with Section 2.1(b) and Dissenting
Shares (as defined in Section 2.5(a) below)) issued and
outstanding immediately prior to the Effective Time shall be
automatically converted into the right to receive an amount in cash
per share determined by dividing (i) the sum of
(A) $47,300,000, plus (B) the aggregate exercise price
payable upon exercise of all in-the-money Company Stock
Options outstanding immediately prior to the Effective Time,
minus (C) the principal of the Notes on the date of this
Agreement and accrued interest due on the Notes as of the
Effective Time, minus (D) whether or not paid prior to the
Effective Time, the amounts, if any, payable on account of the
warrants issued by the Company dated November 6, 2006, minus
(E) whether or not paid prior to the Effective Time, the
amounts, not to exceed $1,198,887 in the aggregate, paid or payable
after April 29, 2009 to employees of the Company constituting
retention, change in control and other payments approved by the
board of directors for purposes of ensuring continuity through the
Effective Time, minus (F) whether or not paid prior to the
Effective Time, Transaction Expenses, by (ii) the sum of
the number of shares of Company
Common Stock outstanding immediately prior to
the Effective Time plus the number of shares of Company Common
Stock issuable upon exercise of all in-the-money Company Stock
Options outstanding immediately prior to the Effective Time (the
“Merger Consideration”). “Transaction
Expenses” shall mean all costs and expenses incurred by the
Company and its Subsidiaries in connection with the negotiation,
preparation, execution or performance of this Agreement (including
in connection with any Acquisition Proposal) and the consummation
of the transactions contemplated hereby, including fees and
disbursements of investment bankers and other financial advisors,
brokers and finders, counsel and accountants. As of the Effective
Time, all such shares of Company Common Stock shall no longer be
outstanding and shall automatically be cancelled and shall cease to
exist, and each holder of a certificate representing any such
shares of Company Common Stock shall cease to have any rights with
respect thereto, except the right to receive the Merger
Consideration pursuant to this Section 2.1(c) upon the
surrender of such certificate in accordance with Section 2.2,
without interest. For purposes of determining the amount of the
Merger Consideration, not less than three (3) Business Days
prior to the Effective Time, the Chief Financial Officer of the
Company shall deliver to the Buyer a certificate pursuant to which
such officer certifies to the Buyer an itemized listing of the
components of the Merger Consideration (including an itemized list
of Transaction Expenses and payments described in clause
(E) above) as of such date and such officer’s estimate
of the Merger Consideration (as of immediately prior to the
Effective Time). Thereafter, following the delivery of such
certificate, the Buyer and the Company shall cooperate in good
faith to confirm the amount of Merger Consideration set forth in
such certificate and to update such Merger Consideration amount as
of immediately prior to the Effective Time.
(b) Section 2.4(d) of the
Merger Agreement shall be amended and restated to read in its
entirety as follows:
“(d) The Company shall
terminate its 2000 Employee Stock Purchase Plan (the “Company
ESPP”) in accordance with its terms as of a date at least two
Business Days prior to the Effective Time. The Company ESPP shall
not be deemed to be a Company Stock Plan for purposes of
Section 2.4(a)-(c).”
3. Representations and
Warranties . Article
III of the Merger Agreement shall be amended by adding, immediately
after Section 3.26, the following
Section 3.27:
“3.27 Due Diligence
Materials . The Company has provided Buyer with copies of all
written information and documents with respect to the Company, its
business and its operations that it has provided to any third party
bidder in connection with any Acquisition
Proposal.”
4. Covenants of the
Company .
(a) Section 5.1 of the Merger
Agreement shall be amended by adding the words “, including
paying of accounts payable in a timely manner consistent with past
practices” to the end of clause (iii) of its first
sentence.
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(b) Section 5.1(a) of the
Merger Agreement shall be amended by adding the words “or
make any payments of principal or prepayments of interest with
respect to the Notes” to the end of clause (i).
(c) Section 5.1(g) of the
Merger Agreement shall be amended and restated to read in its
entirety as follows:
“(g) (i)
