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EXHIBIT 2.2
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF CONTRIBUTION AND MERGER
This AMENDMENT NO. 2 dated as of December 21, 2000 (this "Amendment") to
AGREEMENT AND PLAN OF CONTRIBUTION AND MERGER, dated as of April 30, 2000, and
amended as of August 14, 2000 (the "Agreement"), is by and among INTEL
CORPORATION, a Delaware corporation ("Intel"), EXCALIBUR TECHNOLOGIES
CORPORATION, a Delaware corporation (the "Company"), CONVERA CORPORATION, a
Delaware corporation and wholly owned subsidiary of the Company ("Convera"), and
EXCALIBUR TRANSITORY, INC., a Delaware corporation and wholly owned subsidiary
of Convera ("Transitory"). Initially capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, Intel, the Company, Convera and Transitory wish to amend certain
sections of, and exhibits to, the Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Intel, the Company, Convera and Transitory agree as follows:
1. Amendment to the Agreement. Section 5.25 is amended to read in its
entirety as follows:
"Section 5.25 Subcontract. Intel agrees that it will use Convera
as the subcontract provider of services to be provided by Intel
pursuant to that certain Memorandum of Agreement, dated as of
November 15, 1999, by and between Intel and Quokka Sports, Inc.,
as the same may be amended from time to time, that were
previously provided by the enhanced video service group of
Intel's interactive media services division, and which Convera is
capable of providing in full after the Effective Time. Intel and
Convera will agree in good faith to the terms of such
subcontract, which terms shall be customary for subcontracts with
respect to similarly situated subcontractors and projects and
shall be comparable to similar subcontracts entered into by Intel
with similarly situated providers of subcontracting services in
connection with similar projects and services, including a right
of termination for nonperformance or breach."
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2. Amendments to Exhibit A.
(a) Section III "Contributed Assets: EVS Hardware List" of Exhibit A is
amended to read in its entirety as follows:
"CONTRIBUTED ASSETS: EVS HARDWARE LIST
DESCRIPTION QUANTITY
Desktops 239
Laptops 14
Monitors 168
Printers 4
Miscellaneous 76
(b) Section III of Exhibit A is amended to add a new section entitled
"Contributed Assets: ECS Hardware List," which shall read in its entirety as
follows:
"CONTRIBUTED ASSETS: ECS HARDWARE LIST
DESCRIPTION QUANTITY
Desktops 29
Laptops 24
Monitors 34
Printers 8
Miscellaneous 6
(c) Section III of Exhibit A is amended to add a new section entitled
"Contributed Assets: ISS Hardware List," which shall read in its entirety as
follows:
"CONTRIBUTED ASSETS: ISS HARDWARE LIST
DESCRIPTION QUANTITY
Desktops 178
Laptops 24
Monitors 102
Printers 5
Miscellaneous 13
(d) Section III "Contributed Assets: Licensed EVS Software List" of
Exhibit A is amended to read in its entirety as follows:
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"CONTRIBUTED ASSETS: LICENSED EVS SOFTWARE LIST
To be separately licensed to Convera on prevailing reasonable non-discriminatory
terms.
ATVEF SDK and tools (license to be completed post-Closing)
e-commerce retail software"
(e) Section III "Contributed Assets: ECS Software List" of Exhibit A is
amended to read in its entirety as follows:
"CONTRIBUTION ASSETS: ECS SOFTWARE LIST
AVID SPORTS
ASP Programs
Java Programs
PRISMA DEMO
WebActivate plug-in
Packaging/Installation
SUPERTRACKS
Data model and document
WOW.COM
PRD"
(f) Section III "Contribution Patent Assets" of Exhibit A is amended to read in
its entirety as follows:
"CONTRIBUTED PATENT ASSETS
NO. IDENTIFICATION
1 US Pat. 5,991,399
2 US Pat. 5,974,550
3 US Pat. 6,041,122
4 App. filed 5/20/99 (P6534)
5 App. filed 11/16/99 (P7393)
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NO. IDENTIFICATION
6 App. filed 12/30/99 (P7618)
7 App. filed 3/1/00 (P8352)
8 App. filed 3/1/00 (P8379)
9 App. filed 2/15/00 (P8353)
10 App. filed 4/23/99 (P6309)
11 App. (P8775)
12 App. (P8778)
13 App. (P8779)
14 App. (P8781)
15 App. (P9920)
16 IDF 16646
17 App. pending (P8064)
18 App. pending (P8355)
19 App. pending (P8780)
20 App. in Draft (P7724)
21 App. in Draft (P7725)
22 App. in Draft (P8354)
23 App. in Draft (P8670)
24 App. in Draft (P8685)
25 App. in Draft (P9910)"
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3. Avid Sports. The parties acknowledge that Exhibit A to the Merger
Agreement contemplates the assignment by Intel to Convera of the Intel Internet
Services Avid Sports Development Agreement, dated as of January 2000, between
Intel and Avid Sports, Inc. (the "Sports Agreement") and the assignment by Intel
to Convera of that portion of warrants to purchase shares of Avid Sports, Inc.
that is unvested as of the Effective Time. The parties further acknowledge that
Xstream Sports, Inc. ("Xstream") is the successor in interest to Avid Sports,
Inc., and that Intel's warrant for Avid Sports, Inc., has been converted into a
warrant to purchase shares of the capital stock of Xstream (the "Xstream
Warrant"). The parties further acknowledge that Intel is currently negotiating
with Xstream to determine the amount of revenues due from Xstream to Intel under
the Sports Agreement and that, as a result of such determination, it is
contemplated that Intel will cancel such indebtedness as consideration for a
partial exercise of the warrant and the issuance of shares of capital stock of
Xstream (the "Xstream Shares," and, collectively with the Xstream Warrant, the
"Xstream Equity").
The parties agree that, at the Effective Time, Intel will assign neither
the Sports Agreement nor the Sports Equity to Convera. Instead, Intel will
continue to negotiate with Xstream, and Convera hereby expressly authorizes
Intel to so negotiate, to determine the amount of revenues due from Xstream to
Intel and to determine the treatment of the Sports Equity, such treatment to,
as soon as reasonably practicable, afford Convera with the economic benefits of
the Sports Agreement and the Sports Equity as contemplated by the Agreement. The
parties further agree that, notwithstanding the authorization by Convera of
Intel to negotiate with Xstream, the provisions of Section 5.2 of the Agreement
will continue to apply to Intel's negotiations and conduct with Xstream
including Convera's right to consent to the final terms of the revised
agreements with Xstream prior to the execution of any such agreements.
Except as specifically set forth herein, nothing in this Section 3 shall be
deemed to be a waiver of any of Convera's right to the Sports Agreement or the
Sports Equity as contemplated by the Agreement.
4. Amendment to Certificate of Incorporation. The Form of Convera
Certificate of Incorporation attached to the Agreement as Exhibit I is amended
to read in its entirety as provided in Exhibit A attached hereto.
5. General.
(a) This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
(b) THIS AMENDMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OR CHOICE OF
LAW PRINCIPLES THEREOF OR OF ANY OTHER JURISDICTION.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first set forth above.
INTEL CORPORATION,
a Delaware corporation
By: /s/ Leslie L. Vadasz
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Name: Leslie L. Vadasz
Title: Executive Vice President
Date: December 21, 2000
EXCALIBUR TECHNOLOGIES
CORPORATION,
a Delaware corporation
By: /s/ Patrick C. Condo
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Name: Patrick C. Condo
Title: President and Chief Executive Officer
Date: December 21, 2000
CONVERA CORPORATION
a Delaware corporation
By: /s/ Patrick C. Condo
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Name: Patrick C. Condo
Title: President and Chief Executive Officer
Date: December 21, 2000
EXCALIBUR TRANSITORY, INC.,
a Delaware corporation
By: /s/ Patrick C. Condo
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Name: Patrick C. Condo
Title: President and Chief Executive Officer
Date: December 21, 2000