EXHIBIT (C)(3)
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT, dated as of December 17, 1996 (this
"Amendment"), to the Agreement and Plan of Merger dated as of November
12, 1996 (the "Merger Agreement"), among International Business
Machines Corporation, a New York corporation ("Parent"), Indigo
Acquisition Corp., a Washington corporation and a wholly owned
subsidiary of Parent ("Sub"), and Edmark Corporation, a Washington
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Parent, Sub and the Company have agreed to amend
the Merger Agreement, subject to the terms and conditions of this
Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition are used as defined in the Merger Agreement.
2. Amendments to the Merger Agreement.
(a) Section 2.01 of the Merger Agreement is hereby amended
and restated to read in its entirety as follows:
"SECTION 2.01. The Merger. Subject to the last two sentences
of this Section 2.01, upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with
the Washington Business Corporation Act (the "WBCA"), the Company
shall be merged with and into Sub at the Effective Time (as
defined in Section 2.03). Following the Effective Time, the
separate corporate existence of the Company shall cease and Sub
shall continue as the surviving corporation (the "Surviving
Corporation") and shall succeed to and assume all the rights and
obligations of the Company in accordance with the WBCA. At the
election of Parent, (i) any direct or indirect wholly owned
subsidiary (as defined in Section 10.03) of Parent may be
substituted for and assume all of the rights and obligations of
Sub as a constituent
corporation in the Merger or (ii) Sub may be merged with and into
the Company with the Company continuing as the Surviving
Corporation with the effects set forth above and in Section 2.04.
In either such event, the parties agree to execute an appropriate
amendment to this Agreement in order to reflect the foregoing."
(b) Section 2.05 of the Merger Agreement is hereby amended
and restated to read in its entirety as follows:
"SECTION 2.05. Articles of Incorporation and Bylaws. (a) The
Articles of Incorporation of Sub as in effect immediately prior
to the Effective Time shall be the articles of incorporation of
the Surviving Corporation, until thereafter changed or amended as
provided therein or by applicable law.
(b) The Bylaws of Sub as in effect immediately prior to
the Effective Time, shall be the bylaws of the Surviving
Corporation, until thereafter changed or amended as provided
therein or by applicable law."
(c) Section 3.01(a) of the Merger Agreement is hereby
amended and restated to read in its entirety as follows:
"(a) Capital Stock of Sub. Each issued and outstanding share
of capital stock of Sub shall be converted into and become one
fully paid and nonassessable share of Common Stock, par value
$.01, of the Surviving Corporation."
3. Miscellaneous. Except as expressly amended and modified
hereby, the Merger Agreement is hereby reaffirmed and remains in full
force and effect. The headings contained in this Amendment are for
reference purposes only and shall not affect in any way the meaning of
interpretation of this Amendment. This Amendment may be executed in
several counterparts, each of which shall be deemed an original and
all of which together shall constitute one and the same instrument.
This Amendment shall be governed and construed in accordance with the
laws of the State of New York without regard to any applicable
conflicts of law, except to the extent the WBCA shall be held to
govern the terms of the Merger.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective duly authorized
representatives as of the date first above written.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
by: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President,
Corporate Development
and Real Estate
INDIGO ACQUISITION CORP.,
by: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President,
Treasurer, Assistant
Secretary
EDMARK CORPORATION,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Product
Development and Acting
Chief Executive Officer