{"id":43169,"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-reorganization-amendment-microsoft.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-reorganization-amendment-microsoft","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-reorganization-amendment-microsoft.html","title":{"rendered":"Agreement and Plan of Reorganization (Amendment) &#8211; Microsoft Corp. and Visio Corp."},"content":{"rendered":"<pre>\n               AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION\n                                        \n          THIS AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION, dated as of\nOctober 29, 1999, amends the Agreement and Plan of Reorganization (the 'Merger\nAgreement'), dated as of September 14, 1999, among Microsoft Corporation\n('Microsoft'), MovieSub, Inc. ('Sub') and Visio Corporation ('Company').\nCapitalized terms used herein but not otherwise defined herein shall have the\nmeanings ascribed thereto in the Merger Agreement.\n\n          WHEREAS, the parties hereto desire, among other things, to provide for\nthe closing of the transactions contemplated by the Merger Agreement on a date\nthat is optimal for financial, accounting, business and other purposes, and, in\nconnection therewith, desire to make certain amendments to the Merger Agreement.\n\n          NOW THEREFORE, INTENDING TO BE LEGALLY BOUND, and in consideration of\nthe mutual covenants and agreements contained herein, Microsoft, Sub and Company\nhereby agree as follows:\n\n          1.   Agreements with respect to Comfort Letters.  Section 6.2 and\nSection 6.3 of the Merger Agreement are hereby deleted in their entirety. The\nlast sentence of Section 7.2.4 of the Merger Agreement is hereby deleted in its\nentirety.\n\n          2.   Agreements with respect to the Closing and the Effective Time.\nSection 1.2 of the Merger Agreement is hereby amended and restated in its\nentirety as follows:\n\n          '1.2  Closing.  Unless another date or place is agreed to in writing\n     by the parties hereto, the closing of the Merger (the 'Closing') will take\n     place at the offices of Preston Gates &amp; Ellis LLP, Seattle, Washington, on\n     a date (the 'Closing Date') that is as soon as practicable after, but no\n     later than the third business day after, satisfaction or waiver of the last\n     to be fulfilled of the conditions set forth in Article VII that by their\n     terms are not to occur at the Closing (the date on which such conditions\n     are satisfied or waived being the 'Condition Satisfaction Date'); provided,\n     however, that if the Condition Satisfaction Date is prior to December 30,\n     1999, Microsoft may elect to postpone the Closing Date to a date not later\n     than December 30, 1999 by providing written notice of such election to the\n     Company not later than three business days after the Condition Satisfaction\n     Date; provided, further, that if Microsoft so elects to postpone the\n     Closing Date, then, notwithstanding anything to the contrary contained in\n     Article VII of this Agreement, after the Condition Satisfaction Date, the\n     obligations of each party to effect the Merger shall not be subject to any\n     of the conditions specified in Article VII of this Agreement.'\n\n \n                                       2\n\n\n          3.   Publication of Operating Results.  The following text is hereby\nadded as a new Section 6.14 of the Merger Agreement:\n\n          '6.14  Publication of Operating Results.  As soon as practicable after\n     the end of a calendar month that is at least 30 days after the Effective\n     Time, Microsoft shall publish, in the form of an earnings report, an\n     effective registration statement filed with the SEC, a report to the SEC on\n     Form 10-K, 10-Q or 8-K, or any other public filing or announcement that\n     includes sales and net income, results of operations covering at least 30\n     days of combined operation of Microsoft and the Company after the Effective\n     Time, as contemplated in SEC Accounting Series Release No. 135.'\n\n          4.   Amendment.  Exhibit 4.9 of the Merger Agreement is hereby\nreplaced in its entirety with Exhibit 4.9 attached hereto. In addition, Schedule\n4.12.3 of the Merger Agreement is hereby replaced in its entirety with Schedules\n4.12.3(a) and (b) attached hereto. All other exhibits and Schedules attached to\nthe Agreement shall remain unchanged.\n\n          5.   Effect of this Amendment to Agreement and Plan of Reorganization.\nFrom and after the execution of a counterpart hereof by the parties hereto, any\nreference to the Merger Agreement shall be deemed to be a reference to the\nMerger Agreement as amended hereby. Except as amended hereby, the terms and\nconditions of the Merger Agreement shall remain unchanged and in full force and\neffect.\n\n          6.   Counterparts.  This Amendment to Agreement and Plan of\nReorganization may be executed in one or more counterparts, all of which shall\nbe considered one and the same instrument and shall become effective when one or\nmore counterparts have been signed by each of the parties and delivered to each\nof the other parties, it being understood that all parties need not sign the\nsame counterpart.\n\n          7.   Governing Law.  This Amendment to Agreement and Plan of\nReorganization shall be governed in all respects, including validity,\ninterpretation and effect, by the laws of the State of Washington.\n\n \n                                       3\n\n          IN WITNESS WHEREOF, Microsoft, Sub and Company have caused this\nAmendment to Agreement and Plan of Reorganization to be signed by their\nrespective officers thereunder duly authorized, all as of the date first written\nabove.\n\n                                         MICROSOFT CORPORATION\n\n                                         By  \/s\/ Gregory B. Maffei\n                                           --------------------------------\n                                           Name:   Gregory B. Maffei\n                                           Title:  Vice President Finance and\n                                                   Chief Financial Officer\n\n                                         MOVIESUB, INC.\n \n                                         By  \/s\/ Robert A. Eshelman\n                                           --------------------------------\n                                           Name:   Robert A. Eshelman\n                                           Title:  President\n\n                                         VISIO CORPORATION\n \n                                         By  \/s\/ Jeremy Jaech\n                                           ---------------------------------\n                                           Name:   Jeremy Jaech\n                                           Title:  President and CEO\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8221,9263],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43169","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-microsoft-corp","corporate_contracts_companies-visio-corp","corporate_contracts_industries-technology__software","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\/43169","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=43169"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43169"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43169"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43169"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}