1
EXHIBIT 2.2
FIRST AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment"), is made and entered into as of the 22 day of May, 2001, by and
among SONICBLUE INCORPORATED, a Delaware corporation ("Parent"), REWIND
ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and REPLAYTV, INC., a Delaware corporation (the
"Company"). Capitalized terms used herein and not otherwise defined herein have
the meanings set forth in the Merger Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Parent, Merger Sub and the Company executed an Agreement and
Plan of Merger, dated as of March 23, 2001 (the "Merger Agreement"), providing
for the merger of Merger Sub with and into the Company upon the terms and
subject to the conditions of the Merger Agreement.
WHEREAS, pursuant to Section 8.3 of the Merger Agreement, the parties
hereto wish to amend the Merger Agreement as provided herein:
NOW, THEREFORE, in consideration of the covenants, promises,
representations and warranties set forth herein, and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
the parties), intending to be legally bound hereby, the parties agree as
follows:
1. Section 1.11(a) of the Merger Agreement is hereby amended and
restated in its entirety as set forth below:
"(a) Parent Common Stock. On the Closing Date, Parent shall
deposit with the Exchange Agent for exchange in accordance with Section
1.6(a), the aggregate number of shares of Parent Common Stock issuable
as of the Effective Time in exchange for outstanding shares of Company
Capital Stock as of the Effective Time (excluding any shares of Parent
Common Stock which may be issued upon exercise of Company Options or
Company Warrants) (the "Parent Closing Date Shares"), the aggregate
amount of cash equal to the product of the Parent Closing Date Shares
multiplied by the Per Share Cash Consideration, if any, and cash in an
amount sufficient to permit the payment of cash in lieu of fractional
shares pursuant to Section 1.9; provided, however, that, on behalf of
the holders of Company Capital Stock as of the Effective Time, Parent
shall deposit into an escrow account a number of shares of Parent Common
Stock equal to the General Escrow Amount, provided further, however,
that the portion of the General Escrow Amount contributed on behalf of
each holder of Company Capital Stock shall be equal to the portion of
the aggregate number of shares of Parent Common Stock issuable to all
holders of Company Capital Stock in the Merger which such holder would
otherwise be entitled to receive by virtue of
-1-
2
ownership of outstanding shares of Company Capital Stock; and provided,
further, that, on behalf of (i) the holders of Company Preferred Stock
as of the Effective Time and (ii) the Management Holders of Company
Common Stock as of the Effective Time, Parent shall deposit into an
escrow account a number of shares of Parent Common Stock equal to the IP
Escrow Amount; and provided further, however that the portion of the IP
Escrow Amount contributed on behalf of each such stockholder of the
Company that is required to contribute to the IP Escrow Amount shall be
equal to the portion of the aggregate number of shares of Parent Common
Stock issuable to all such holders who contribute to the IP Escrow
Amount in the Merger which such holder would otherwise be entitled to
receive by virtue of ownership of outstanding shares of Company Capital
Stock."
2. The second sentence of Section 7.2(a) of the Merger Agreement is
hereby deleted and shall be replaced in its entirety as set forth below:
"The portion of the General Escrow Amount contributed on behalf
of each stockholder of the Company shall be equal to the portion of the
aggregate number of shares of Parent Common Stock issuable to all
holders of Company Capital Stock in the Merger which such holder would
otherwise be entitled under Section 1.6 hereof (excluding any shares of
Parent Common Stock which such holder would be entitled to receive upon
exercise of Company Options or Company Warrants after the Effective
Time) and the portion of the IP Escrow Amount contributed on behalf of
each stockholder of the Company that is required to contribute to the IP
Escrow Amount shall be equal to the portion of the aggregate number of
shares of Parent Common Stock issuable to all such holders who
contribute to the IP Escrow Amount in the Merger which such holder would
otherwise be entitled under Section 1.6 hereof (excluding any shares of
Parent Common Stock which such holder would be entitled to receive upon
exercise of Company Options or Company Warrants after the Effective
Time)."
3. The following definitions set forth in Section 10.1 of the Merger
Agreement are hereby amended and restated in their entirety and/or added to such
Section 10.1 as set forth below:
"IP Escrow Amount" means the sum of (a) the number of shares of
Parent Common Stock obtained by multiplying (i) the aggregate number of
shares of Parent Common Stock issuable by Parent at the Effective Time
to (A) holders of Company Preferred Stock in consideration for such
holders' shares of Company Preferred Stock and (B) the Management
Holders of Company Common Stock in consideration for such holders'
shares of Company Common Stock, in each case in accordance with Section
1.6, including shares of Parent Common Stock issuable pursuant to
Section 1.6(e) (which does not include any Parent Common Stock to be
issued by Parent upon exercise of Company Options or Company Warrants
after the Effective Time), by (ii) 0.10 plus (b) the aggregate amount of
cash obtained by multiplying (i) the aggregate amount of cash issuable
by Parent at the Effective Time to (A) holders of Company Preferred
Stock in consideration for such holders' shares of Company Preferred
Stock and (B) the Management
-2-
3
Holders of Company Common Stock in consideration for such holders'
shares of Company Common Stock, in each case in accordance with Section
1.6(e) (which does not include any cash to be issued by Parent upon
exercise of Company Options or Company Warrants after the Effective
Time) by (ii) 0.10.
"Management Holders" shall mean the holders of Company Common
Stock set forth on Schedule 10.1 attached to the First Amendment to the
Agreement and Plan of Merger.
4. Other than with respect to the Sections of the Merger Agreement
specifically enumerated above, this Amendment does not modify, change or delete
any other addendum, term, provision, representation, warranty or covenant (the
"Provisions") relating to or contained in the Merger Agreement, and all such
Provisions shall remain in full force and effect.
5. As soon as reasonably practicable after the execution of this
Amendment (but in any event prior to the Closing), the Company will use
commercially reasonable efforts to obtain executed IP Escrow Acknowledgments, in
substantially the form attached hereto as EXHIBIT O, from each Management
Holder.
6. This Amendment shall be construed in accordance with and shall be
governed by the laws of the State of California, without regard to its laws as
to conflict of laws.
7. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be signed by their duly authorized representatives, all as of the
date first written above.
REPLAYTV, INC. SONICBLUE INCORPORATED
By /s/ Xxxxxxx Xxxx By /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------- -----------------------------------------
Name Xxxxxxx Xxxx Name Xxxxxxx X. Xxxxxxxxx
------------------------ ---------------------------------------
Title CEO Title President and Chief Executive Officer
----------------------- --------------------------------------
-3-
4
REWIND ACQUISITION CORP.
By /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name Xxxxxxx X. Xxxxxxxxx
--------------------------------
Title President
-------------------------------
-4-
5
SCHEDULE 10.1
MANAGEMENT HOLDERS OF COMPANY COMMON STOCK
Xxxxxxx Xxxx 6,000,000
Xxxxxx Xxxxxxx 879,640
Xxxxx Xxxxxxx 490,000
Xxx Xxxxx 300,000
Xxxxxxxxx, The Xxxxx 200,000
Xxxxxx Xxxxxxxxx Trust,
UTD 9-10-98, Xxxxx
Xxxxxx Xxxxxxxxx,
Trustee
Xxxx Xxxxxxxx 122,500
Xxxxxxx Xxxx 112,500
Xxxxxx Xxxxxxx 67,708
Xxxxxx Xxxxx 52,500
Xxxxx Xxxxxx 38,720
---------
8,263,568
-1-
