FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.01
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT, dated as of May 30, 2006 (this “First Amendment”), to the Agreement and
Plan of Merger (the “Agreement”), dated as of March 8, 2006, by and among Lexar Media, Inc., a
Delaware corporation (the “Company”), Micron Technology, Inc., a Delaware corporation (“Parent”),
and March 2006 Merger Corp., a Delaware corporation and a direct wholly-owned subsidiary of Parent
(“Merger Sub”) is entered into by the Company, Parent and Merger Sub.
WHEREAS, Section 7.4 of the Agreement permits the parties, by action taken or authorized by
their respective Boards of Directors, to amend the Agreement by an instrument in writing signed on
behalf of each of Parent, Merger Sub and the Company;
WHEREAS, each person set forth on Exhibit A hereto has agreed to execute a waiver in
connection with this First Amendment; and
WHEREAS, each of Parent, Merger Sub and the Company desires to amend the Agreement as provided
herein.
NOW, THEREFORE, in consideration of the mutual agreements specified in this First Amendment,
Parent, Merger Sub and the Company hereby agree as follows:
1. Amendment of Section 1.6(e) of the Agreement. Section 1.6(e) of the Agreement is
amended and restated in its entirety by the following:
"(e) Stock Options; Employee Stock Purchase Plan. At the Effective Time, all Assumed Options
outstanding under the Option Plans shall be assumed by Parent in accordance with Section 5.9(a).
At the Effective Time, each Company Option that is either (A) held by any Person other than a
current employee of the Company or any of its Subsidiaries or an employee of the Company who has
terminated his or her employment within 90 days prior to the Effective Time (each such Company
Option, a “Non-Employee Option”) or (B) has a per share exercise price greater than $9.54, (each,
an “Out-of-the-Money Option,” and together with the Non-Employee Options, the “Cashed-Out
Options”), and, in each case, that is unexpired, unexercised and outstanding immediately prior to
the Effective Time shall, on the terms and subject to the conditions set forth in this Agreement,
terminate in its entirety at the Effective Time, and the holder of each Cashed-Out Option shall be
entitled to receive therefor an amount of cash (rounded down to the nearest whole cent) equal to
the product of (i) the number of shares of Company Common Stock that are subject to such Company
Option and that are unexpired, unexercised and outstanding immediately prior to the Effective Time,
and (ii) the excess, if any, of $9.00 over the per share exercise price of such Company Option
immediately prior to the Effective Time. Each Company Option that is held by a person set forth on
Exhibit A hereto, has a per share exercise price greater than $9.00 but less than or equal to $9.54
and is unexpired, unexercised and outstanding immediately prior to the Effective Time shall be a
"Waived Option.” At the Effective Time, each Waived Option shall be terminated without
consideration therefor. Each Company Option that is unexpired, unexercised and outstanding
immediately prior to the Effective Time and is neither a Cashed-Out Option nor a Waived Option
shall be an “Assumed Option.” Rights outstanding under the ESPP and any other employee stock
purchase
plan of the Company shall be treated as set forth in Section 5.9(c).
2. Amendment of Index of Defined Terms. The Index of Defined Terms of the Merger
Agreement is amended by deleting the reference to “Per Share Merger Consideration.”
3. Representations and Warranties. Each of the Company, Parent and Merger Sub
represents and warrants that (i) it has the corporate power and authority to execute and deliver
this First Amendment, (ii) this First Amendment has been duly and validly authorized by all
necessary action of its Board of Directors, and (iii) this First Amendment has been duly and
validly executed and delivered and, assuming due authorization and execution by the other parties
hereto, constitutes its legal, valid and binding obligation enforceable against it in accordance
with its terms.
4. No Other Modification. The Agreement shall not be modified by this First Amendment
in any respect except as expressly set forth herein.
5. Governing Law. This First 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 law thereof.
6. Counterparts. This First Amendment may be executed in counterparts, all of which
shall be considered one and the same agreement and shall become effective when counterparts have
been signed by each of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
7. Defined Terms. Capitalized terms used but not defined herein shall have the
meaning assigned to them in the Agreement.
LEXAR MEDIA INC. |
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By: | /s/ Xxxxxxx Xxxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxxx | |||
Title: | CFO & EVP | |||
MICRON TECHNOLOGY, INC. |
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By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Chief Executive Officer | |||
MARCH 2006 MERGER CORP. |
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By: | /s/ X. X. Xxxxxx, Xx. | |||
Name: | X. X. Xxxxxx, Xx. | |||
Title: | President | |||
Exhibit A
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Xxxxx Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxx X. Xxxxxxxx