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EXHIBIT 2.4
THIRD AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
dated as of June 13, 2000 and entered into by and among DIGITAL INSIGHT
CORPORATION, a Delaware corporation ("Parent"), ATA ACQUISITION CORP., a
California corporation and a wholly-owned subsidiary of Parent ("Merger Sub"),
and ANYTIME ACCESS, INC., a California corporation ("Company"), and is made with
reference to that certain Agreement and Plan of Merger, dated as of March 30,
2000, as amended by that certain First Amendment to Agreement and Plan of
Merger, dated as of May 2, 2000 and that certain Second Amendment to Agreement
and Plan of Merger, dated as of May 25, 2000 (as so amended, the "Merger
Agreement"), by and among Parent, Merger Sub and Company. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Merger Agreement.
RECITALS
WHEREAS, Parent, Merger Sub and Company have entered into the Merger
Agreement; and
WHEREAS, Parent, Merger Sub and Company desire to amend the Merger
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE MERGER AGREEMENT
1.1 Amendment to Section 7.1: Termination. Subsection 7.1(b) of the Merger
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Agreement is hereby amended by deleting such subsection in its entirety and
substituting therefor the following:
"(b) by either Company or Parent if the Merger shall not have been
consummated by July 30, 2000 (or, if a Commissioner Refusal has occurred,
then 60 days after the date of such Commissioner Refusal) for any reason;
provided, however, that the right to terminate this Agreement under this
Section 7.1(b) shall not be available to any party whose action or failure
to act has been a principal cause of or resulted in the failure of the
Merger to occur on or before such date and such action or failure to act
constitutes a breach of this Agreement;"
1.2 Amendment to Section 7.3: Fees and Expenses.
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(a) Subsection 7.3(b)(i) of the Merger Agreement is hereby amended
by deleting such subsection in its entirety and substituting therefor the
following:
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"(i) In the event that (A) the condition set forth in Section
6.1(a) is not satisfied and (B) Company enters into an agreement or
understanding for an Acquisition Transaction within 9 months after the
failure to satisfy the condition set forth in Section 6.1(a), then
Company shall pay to Parent an amount in cash equal to $5 million.
For purposes of the preceding sentence only, the reference to "5%" in
clause (A) of the definition of Acquisition Transaction shall be
changed to "25%." In addition, if the Closing does not occur as a
result of the breach of this Agreement by either Company or Parent or
Merger Sub, then the breaching party shall pay the other party an
amount in cash equal to $5 million within 10 days following
termination of this Agreement."
Section 2. REPRESENTATIONS AND WARRANTIES
Parent, Merger Sub and Company each represent and warrant to the other
parties hereto that the following statements are true, correct and complete as
of the date of this Amendment:
2.1 Corporate Power and Authority. Such party has all necessary corporate
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power and authority to execute and deliver this Amendment and, subject to
Company obtaining the approval of the Merger by the shareholders of Company, to
perform its obligations under the Merger Agreement as amended by this Amendment
(the "Amended Agreement").
2.2 Authorization of Agreement. The execution and delivery of this
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Amendment by such party and the consummation by such party of the transactions
contemplated by the Amended Agreement have been duly and validly authorized by
all necessary corporate action on the part of such party.
2.3 Binding Obligation. This Amendment and the Amended Agreement have been
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duly and validly executed and delivered by such party, and, assuming the due
authorization, execution and delivery by the other parties hereto, constitute
legal and binding obligations of such party, enforceable against such party in
accordance with the terms hereof and thereof, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights generally, or by general equitable principles
(regardless of whether enforcement is sought in a proceeding at law or in
equity), and to the extent any indemnification or contribution provisions
hereof or thereof may be limited by applicable federal or state securities
laws.
Section 3. MISCELLANEOUS
3.1 Reference to and Effect on the Merger Agreement and the Other Merger
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Documents.
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(a) On and after the date of this Amendment, each reference in the
Merger Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import referring to the Merger Agreement, and each reference
in the other documents and agreements executed in connection with the
Merger Agreement (the "Merger Documents") to the "Merger Agreement",
"thereunder", "thereof" or words of like
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import referring to the Merger Agreement shall mean and be a reference to
the Amended Agreement.
(b) Except as specifically amended by this Amendment, the Merger
Agreement and the other Merger Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Parent, Merger Sub, or Company under, the Merger Agreement or any of the
other Merger Documents.
3.2 Headings. Section and subsection headings in this Amendment are
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included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
3.3 Applicable Law. This Amendment shall be governed and construed in
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accordance with the laws of the State of California, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
3.4 Counterparts. This Amendment may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized respective officers as of the date first
written above.
DIGITAL INSIGHT CORPORATION
By: /s/ John Dorman
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John Dorman
President
By: /s/ Kevin McDonnell
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Kevin McDonnell
Chief Financial Officer
ATA ACQUISITION CORP.
By: /s/ John Dorman
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John Dorman
President
By: /s/ Kevin McDonnell
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Kevin McDonnell
Chief Financial Officer
ANYTIME ACCESS, INC.
By: /s/ Thomas R. Bollum
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Thomas R. Bollum
President
By: /s/ Steven R. Mills
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Steven R. Mills
Chief Financial Officer
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