{"id":43157,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-xoom-com-inc-and-paralogic2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-xoom-com-inc-and-paralogic2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-xoom-com-inc-and-paralogic2.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Xoom.com Inc. and Paralogic Software Corp."},"content":{"rendered":"<pre>                                AMENDMENT NO. 1\n\n                                      TO\n\n                         AGREEMENT AND PLAN OF MERGER\n                                        \n\n     This Amendment No. 1 (this 'Amendment') to the Agreement and Plan of Merger\n(the 'Agreement'), dated as of June 10, 1999, by and among Xoom.com, Inc., a\nDelaware corporation (the 'Purchaser'), Paralogic Software Corporation, a\nCalifornia corporation (the 'Company'), XMCM Sub, Inc., a California corporation\nand a wholly-owned subsidiary of Xoom.com, Inc. ('Merger Sub'), and the Selling\nShareholders named therein is executed and effective this 14th day of June,\n1999.  Capitalized terms not otherwise defined herein shall have the meanings\nset forth in the Agreement.\n\n     WHEREAS, the parties entered into the Agreement pursuant to which the\nPurchaser has agreed to acquire the Company by the merger of Merger Sub with and\ninto the Company; and\n\n     WHEREAS, the parties wish to enter into this Amendment and thereby amend\nthe Agreement, in accordance with the terms and provisions set forth herein;\n\n     NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as\nfollows:\n\n     1.   Section 14 of the Agreement is hereby amended to read in its entirety\nas set forth below:\n\n\n          'Purchaser's Tax Indemnity.\n\n          (a)   Within 10 business days following a Final Determination that the\n          Merger does not qualify as a 'reorganization,' within the meaning of\n          Section 368(a) of the Code, Purchaser shall pay to each Selling\n          Shareholder, in cash, the Additional Amount applicable to such Selling\n          Shareholder, provided that this amount will be paid only if (i) the\n          Merger does not so qualify solely by reason of changes or\n          modifications to the NBC Agreements after the date hereof (other than\n          any changes or modifications to the NBC Transactions reflected in,\n          otherwise taken account in, or contemplated by the Restated\n          Documents); (ii) the Merger would have qualified as a 'reorganization'\n          within the meaning of Section 368(a) if the NBC Transactions were\n          consummated pursuant to the NBC Agreements and would have so qualified\n          if the NBC Transactions were consummated pursuant to such agreements\n          as changed or modified by changes or modifications to the NBC\n          Transactions reflected in, otherwise taken account in, or contemplated\n          by the Restated Documents; and (iii) such Selling Shareholder has not\n          taken a position on any Tax Return that \n\n\n\n\n          the Merger does not so qualify or otherwise breached a representation,\n          covenant or warranty provided under Section 10.7 of this Agreement.\n\n          (b) Notwithstanding anything herein to the contrary, Purchaser shall\n          have the right at its own expense, to control, defend, settle,\n          compromise or prosecute in any manner any audit, examination,\n          investigation, hearing or other proceeding involving a Selling\n          Shareholder which could give rise to liability to Purchaser pursuant\n          to Section 14(a) of this Agreement. A Selling Shareholder shall notify\n          Purchaser in writing within ten days of the commencement of such an\n          audit, examination, investigation, hearing or other proceeding,\n          provided that no such notification shall be required prior to the time\n          when a taxing authority has asserted that the Merger does not qualify\n          as a 'reorganization,' within the meaning of Section 368(a) of the\n          Code.\n\n          (c) Notwithstanding the foregoing, the indemnity provided in this \n          Section 14 shall not exceed $7,000,000. If this limit shall apply,\n          then the indemnity paid to each Selling Shareholder shall be limited\n          to such Selling Shareholder's pro rata share of $7,000,000. Such pro\n          rata share shall be determined based on the amount of each Selling\n          Shareholder's Additional Amount.'\n\n\n     2.   Exhibit A of the Agreement is hereby amended to revise the following\ndefinitions to read as follows:\n\n          'Additional Amount' for any Selling Shareholder shall mean the excess,\n          if any, of (a) the product of (i) the 'Gain Amount' and (ii) seventy\n          percent (70%) of the tax rate applicable to the Selling Shareholder\n          with respect to the Purchaser Stock acquired in the Merger, over (b)\n          the product of (i) any cash received (or other proceeds from\n          disposition) and any taxable loss recognized by a Selling Shareholder,\n          in respect of its Purchaser Stock acquired in the Merger, on or before\n          a Final Determination that the Merger does not qualify as a\n          'reorganization,' within the meaning of Section 368(a) of the Code,\n          and (ii) the tax rate applicable to the Selling Shareholder. For\n          purposes of the preceding sentence, the 'Gain Amount' for any Selling\n          Shareholder shall be the excess of (a) the product of the (i) Merger\n          Consideration received by such Selling Shareholder and (ii) the price\n          of Purchaser Stock as shown in the Wall Street Journal for the day in\n          which the Effective Time falls, over (b) the tax basis of the Selling\n          Shareholder in the stock of the Seller immediately prior to the\n          Merger. The Additional Amount shall include any penalty imposed on a\n          Selling Shareholder by a taxing authority which is imposed only\n          because the Merger does not qualify as a 'reorganization,' within the\n          meaning of Section 368(a) of the Code by reason of material changes or\n          modifications to the NBC Agreements (other than any changes or\n          modifications to the NBC \n\n\n\n\n          Transactions reflected in, otherwise taken account in, or contemplated\n          by the Restated Documents).\n\n          'Final Determination' shall mean an unappealable judgment of a\n          competent federal judicial authority, a final settlement which has\n          been agreed to by Purchaser, or a determination by Purchaser that the\n          Purchaser does not wish to contest the imposition of the tax, provided\n          that Selling Shareholder does not contest the tax. In the event a\n          Selling Shareholder tenders written notice to Purchaser that there is\n          an audit, examination, investigation, hearing or other proceeding\n          involving a Selling Shareholder which could give rise to liability to\n          Purchaser pursuant to Section 14 of the Agreement and Purchaser does\n          not respond within thirty days of receipt by Purchaser of such written\n          notice that Purchaser elects to assume the defense of such action\n          under Section 14(b), then Purchaser shall be deemed to have elected\n          not to contest the imposition of the tax, provided that the Selling\n          Shareholder does not contest the tax. Notwithstanding the foregoing,\n          no Selling Shareholder may tender notice pursuant to the preceding\n          sentence prior to the time when a taxing authority has asserted that\n          the Merger does not qualify as a 'reorganization,' within the meaning\n          of Section 368(a) of the Code.\n\n          'NBC Agreements' shall mean the Agreement and Plan of Contribution and\n          Merger, dated as of May 9, 1999, with the Purchaser and others and an\n          Agreement and Plan of Contribution, Investment and Merger dated as of\n          May 9, 1999, with National Broadcasting Corporation ('NBC') and others\n          pursuant to which the existing businesses of Purchaser and certain\n          assets of NBC and others will be combined. \n\n          'NBC Transactions' shall mean those transactions contemplated by the\n          NBC Agreements.\n\n          'Restated Documents' shall mean those drafts of documents related to\n          the NBC Transactions attached hereto as Exhibit 1.\n\n     3.   All other terms and conditions of the Agreement shall remain in full \nforce and effect.\n\n     4.   This Amendment may be executed in two or more counterparts, each of \nwhich shall be considered an original, but each of which together shall\nconstitute the same instrument.\n\n \n     IN WITNESS WHEREOF, this Amendment has been duly executed by the parties as\nof the date first above written.\n\n\n\n\n                                                             \nThe Purchaser:                                                      XOOM.com, Inc.\n                                                               a Delaware corporation\n\n                                                               By:  \/s\/ RAJESH AJI\n                                                                    ---------------------------------------------------\n                                                                    Name:\n                                                                    Title:\n\n\n\nThe Company:                                                        Paralogic Software Corporation\n                                                               a California corporation\n \n                                                               By:  \/s\/ VIJAY VAIDYANATHAN\n                                                                    ---------------------------------------------------\n                                                                    Name:  Vijay Vaidyanathan\n                                                                    Title: President and Chairman\n\n\n\nMerger Sub:                                                         XMCM Sub, Inc.\n                                                               a California corporation\n \n                                                               By:  \/s\/ RAJESH AJI\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\n\n\n\n\n\n                                                            \nSelling Shareholder:\n                                                               By:  \/s\/ RAJESH AJI\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\n\nSelling Shareholder:\n                                                               By:  \/s\/ HELMUT HISSEN\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\nSelling Shareholder:\n                                                               By:  \/s\/ SHEENA VAIDYANATHAN\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\nSelling Shareholder:\n                                                               By:  \/s\/ SHANTI NARAYANAN\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\nSelling Shareholder:\n                                                               By:  \/s\/ RUSSELL HYZEN\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\nSelling Shareholder:\n                                                               By:  \/s\/ RAJIV VAIDYANATHAN\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\nSelling Shareholder:\n                                                               By:  \/s\/ VIJAY VAIDYANATHAN\n                                                                    --------------------------------------------------\n                                                                    Name:\n                                                                    Title:\nSelling Shareholder:\n                                                               By:  \/s\/ ROBERT A. ELLIS, TRUSTEE\n                                                                    --------------------------------------------------\n                                                                    Name:  Robert A. Ellis Revocable Trust\n                                                                    Title:  Robert A. Ellis, Trustee\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9374],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9626],"class_list":["post-43157","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-xoom-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43157","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43157"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43157"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43157"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43157"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}