AMENDMENTNO. 1

EX-2.1 2 ex2-1.htm AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER ex2-1.htm
Exhibit 2.1

 
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
 
                      AMENDMENT NO.1 (This “Amendment”) dated as of December 13, 2009 to the Agreement and Plan of Merger (the “Merger Agreement” or the “Agreement”) dated as of September 27, 2009, among XEROX CORPORATION, a New York corporation (“Parent”), BOULDER ACQUISITION CORP., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), and AFFILIATED COMPUTER SERVICES, INC., a Delaware corporation (the “Company”).
 
W I T N E S S E T H:
 
                      WHEREAS, Section 7.04 of the Merger Agreement provides for the amendment of the Merger Agreement in accordance with the terms set forth therein;
 
                      WHEREAS, the parties hereto desire to amend the Merger Agreement as set forth below; and
 
                      WHEREAS, the Board of Directors of each of the parties has approved this Amendment and declared it advisable for the respective parties to enter into this Amendment;
 
                      NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained in this Amendment, and intending to be legally bound hereby, the parties hereto agree as follows:
 
 
ARTICLE I
 
DEFINITIONS
                      
 
SECTION 1.01.
Definitions; References. Unless otherwise specifically defined herein, each term used herein shall have the meaning assigned to such term in the
Merger Agreement.  Each reference to “hereof,” “herein” and “hereunder” and words of similar import when used in the Merger Agreement shall, from and after the date hereof, refer to the Merger Agreement, as amended by this Amendment.  Notwithstanding the foregoing, references to the date of the Agreement, as amended hereby, shall in all instances continue to refer to September 27, 2009, references to “the date hereof” and “the date of this Agreement” shall continue to refer to September 27, 2009 and references to the date of the Amendment and “as of the date of the Amendment” shall refer to December 13, 2009.
 
 
ARTICLE II
 
AMENDMENTS TO MERGER AGREEMENT
                      
 
SECTION 2.01.
Amendment to Section 3.01(m)(x). Section 3.01(m)(x) of the Merger Agreement is hereby amended by replacing the reference to “Company
 Stockholder Approval” with “Requisite Stockholder Approvals.”
 
 
SECTION 2.02.
Amendment to Section 3.01(s). Section 3.01(s) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
 
 
“(s)
Voting Requirements.    Except for the vote necessary to satisfy the condition set forth in Section 6.01(a)(i)(y), the affirmative vote of holders of a majority in
voting power of the outstanding shares of Company Common Stock, voting together as a single class (the “Company Stockholder Approval”), at the Company Stockholders’ Meeting or any adjournment or postponement thereof is the only vote of the holders of any class or series of capital stock of the Company necessary  to adopt this Agreement and approve the Merger and the other transactions contemplated by this Agreement.”
 
 
SECTION 2.03.
Amendment to Section 4.02(a). Section 4.02(a) of the Merger Agreement is hereby amended by replacing the reference to “Company Stockholder
 Approval” in the fourth sentence thereof with “Requisite Stockholder Approvals.”
 
 
SECTION 2.04.
Amendment to Section 4.02(b). Section 4.02(b) of the Merger Agreement is hereby amended by replacing the reference to “Company Stockholder
Approval” in the second sentence thereof with “Requisite Stockholder Approvals.”
 
 
SECTION 2.05.
Amendment to Section 5.01(b). Section 5.01(b) of the Merger Agreement is hereby amended by replacing the reference to “Company Stockholder
Approval” in the first sentence thereof with “Requisite Stockholder Approvals.”
 
 
SECTION 2.06.
Amendment to Section 6.01. The introduction to Section 6.01 of the Merger Agreement is hereby amended and restated in its entirety to read as
follows:
 
 
“SECTION 6.01.
Conditions to Each Party’s Obligation to Effect the Merger.  The respective obligation of each party to effect the Merger is subject to the satisfaction
 or (to the extent permitted by Law) waiver by Parent and the Company (other than the conditions set forth in Section 6.01(a) which may not be waived by either Parent or the Company) on or prior to the Closing Date of the following conditions:”
 
 
SECTION 2.07.
Amendment to Section 6.01(a). Section 6.01(a) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
 
 
“(a)
Stockholder Approvals.

   
(i)
(x) The Company Stockholder Approval and (y) the adoption of this Agreement by the affirmative vote of holders of a majority of the
 
outstanding shares of Company Class A Common Stock (other than those shares of Company Class A Common Stock held, directly or indirectly, by holders of Company Class B Common Stock), voting as a single, separate class ((x) and (y) together, the “Requisite Stockholder Approvals”), shall have been obtained at the Company Stockholders’ Meeting or any adjournment or postponement thereof.
 
 
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(ii)
The Parent Stockholder Approval shall have been obtained at the Parent Stockholders’ Meeting or any adjournment or postponement
 
thereof.”

 
SECTION 2.08.
Amendment to Section 7.01.  Section  7.01  of  the  Merger Agreement is hereby amended by replacing the references to “Company Stockholder
Approval” in the first sentence of Section 7.01, Section 7.01(b)(iii) and Section 7.01(f) with “Requisite Stockholder Approvals.”
 
 
SECTION 2.09.
Amendment to Section 7.04.  Section  7.04  of  the  Merger Agreement is hereby amended by replacing the reference to “Company Stockholder
Approval” in the first sentence thereof with “Requisite Stockholder Approvals.”
 
 
SECTION 2.10.
Amendment to Section 8.03(f). Section 8.03(f) of the Merger Agreement is hereby amended by replacing the reference to “Company Stockholder
Approval” thereof with “Requisite Stockholder Approvals.”
 
ARTICLE III
 
GENERAL PROVISIONS
                      
 
SECTION 3.01.
No Further Amendment. Except  as expressly  amended hereby, the Merger Agreement is in all respects ratified and confirmed and all the terms,
 conditions, and provisions thereof shall remain in full force and effect.  This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Merger Agreement.
 
 
SECTION 3.02.
Effect of Amendment.  This  Amendment  shall  form a part of the Merger Agreement for all purposes, and each party thereto and  hereto shall be
bound hereby.  From and after the execution of this Amendment by the parties hereto, any reference to the Merger Agreement shall be deemed a reference to the Merger Agreement as amended hereby.  This Amendment shall be deemed to be in full force and effect from and after the execution of this Amendment by the parties hereto.
 
 
SECTION 3.03.
Headings.  The  headings  contained  in this Amendment are for reference purposes only and shall not affect in any way the meaning or interpretation
 of this Amendment.
 
 
SECTION 3.04.
Counterparts.  This  Amendment  may  be  executed  in  one  or more 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 parties (including by facsimile or other electronic image scan transaction).
 
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SECTION 3.05.
GOVERNING LAW.  THIS  AMENDMENT  SHALL  BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
 
 
SECTION 3.06.
Severability.  If any term or other provision of this Amendment is invalid, illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Amendment shall nevertheless remain in full force and effect.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Amendment so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated by this Amendment are fulfilled to the extent possible.
 
[signature page follows]
 
 
 
 
 
 

 
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                      IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment to be signed by their respective officers thereunto duly authorized, all as of the date first written above.
 
 
  XEROX CORPORATION  
       
By:
 /s/ Lawrence A. Zimmerman  
    Name: Lawrence A. Zimmerman  
    Title:   Vice Chairman and CFO  
       
 
 
  BOULDER ACQUISITION CORP  
       
By:
 /s/ Lawrence A. Zimmerman  
    Name: Lawrenece A. Zimmerman  
    Title:  Vice President and Treasurer  
       
 
 
  AFFILIATED COMPUTER SERVICES, INC.  
       
 
By:
 /s/ Lynn R. Blodgett  
    Name: Lynn R. Blodgett  
    Title:  President and CEO