Exhibit 2.1
Execution
Copy
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT to AGREEMENT
AND PLAN OF MERGER (this “Amendment”) is entered into
as of April 12, 2007, among Caritor, Inc., a California corporation
(the “Buyer”), Renaissance Acquisition Corp., a
Massachusetts corporation and a wholly-owned subsidiary of the
Buyer (the “Merger Subsidiary”), and Keane, Inc., a
Massachusetts corporation (the “Company”).
WHEREAS, the parties entered into an
Agreement and Plan of Merger dated as of February 6, 2007 (the
“Merger Agreement”); and
WHEREAS, the parties desire to amend
the Merger Agreement pursuant to the terms of this
Amendment.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, the parties agree as
follows:
1.
Except as
otherwise specifically defined in this Amendment, capitalized terms
used in this Amendment without definition shall have the meaning
ascribed thereto in the Merger Agreement.
2.
The Buyer and
Merger Sub hereby grant the following waivers:
(a)
The Buyer and Merger Sub hereby
grant a waiver under the Merger Agreement to permit the Company to
amend that certain Credit Agreement dated as of September 15, 2005
(as amended and in effect from time to time, the “Credit
Agreement”) by and among the Company, each lender from time
to time party thereto (collectively, the “Credit Agreement
Lenders”), Bank of America, N.A. as Administrative Agent (in
such capacity, the “Agent”), Swing Line Lender and L/C
Issuer, KeyBank National Association, as Syndication Agent and
Wachovia Bank, National Association, as Documentation Agent
pursuant to and in accordance with the terms of the Second
Amendment to Credit Agreement dated as of the date hereof and
attached hereto as Annex A (the “Credit Agreement
Amendment”).
(b)
The Buyer and Merger Sub hereby
grant a waiver under the Merger Agreement to permit the Company to
pay amendment and structuring fees to the Credit Agreement Lenders
and the Agent or any of the Agent’s affiliates in exchange
for the amendments and waivers set forth in the Credit Agreement
Amendment in the amounts (but not more than the amounts) set forth
in the Credit Agreement Amendment and the fee letter referenced
therein.
1
(c)
The Buyer and Merger Sub hereby
grant a waiver under the Merger Agreement (i) to permit the Company
to increase the commitments under the Credit Agreement as provided
pursuant to the Credit Agreement (the “Accordion”), and
(ii) in connection therewith, to pay fees in cash in the aggregate
amount of up to $100,000 to the Credit Agreement Lenders
participating in such increased commitment and the Agent or any
affiliate of the Agent.
(d)
The Buyer and Merger Sub hereby
grant a waiver under the Merger Agreement to permit the Company to
make one or more drawdowns under the Credit Agreement (including
drawdowns utilizing the Accordion) to make payments, and to make
such payments, for the following purposes: (i) to pay principal of
the Debentures (defined below), accrued ordinary, non-penalty
interest and default interest thereon (which defau
