EXHIBIT 2.2
WINSTON & XXXXXX
DRAFT DATED APRIL 18, 2001
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
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made and entered into as of April 24, 2001 by and among MOTOROLA, INC., a
Delaware corporation ("Parent"), EARTH ACQUISITION CORPORATION, a Delaware
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corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub"), and
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BLUE WAVE SYSTEMS INC., a Delaware corporation (the "Company").
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RECITALS
WHEREAS, Parent, Merger Sub and the Company are parties to an Agreement and
Plan of Merger, dated as of February 20, 2001 (as amended hereby, the "Merger
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Agreement"; terms defined in the Merger Agreement and not otherwise defined
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herein are being used herein as therein defined), pursuant to which Merger Sub
will merge with and into the Company; and
WHEREAS, Parent, Merger Sub and the Company have agreed to amend the Merger
Agreement on the terms provided herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
Section 1. Amendment. The Merger Agreement is hereby amended as follows:
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(a) The Glossary of Defined Terms is hereby amended by (i) deleting the
reference to "Section 4.1(a)" next to the term "NYSE" and inserting in lieu
thereof a reference to "Section 4.1(f)" and (ii) deleting the following terms
and related Section references: Applicable Trading Days, Determination Date,
Parent Market Price and Termination Notice.
(b) Section 4.1(a)(i) is hereby amended by deleting such Section in its
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entirety and inserting in lieu thereof the following:
(a) Effect on Capital Stock. (i) At the Effective Time, each
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share of common stock, $0.01 par value ("Company Shares"), of the
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Company issued and outstanding immediately prior to the Effective Time
(other than the Cancelled Shares, as defined in Section 4.1(b)), shall
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be converted into the right to receive .443 (the "Exchange Ratio")
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duly authorized, validly issued, fully paid and nonassessable shares
of common stock, $3.00 par value, of Parent (collectively, "Parent
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Shares") (together with the associated Parent Rights and with any cash
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in lieu of fractional shares to be paid pursuant to Section 4.3, the
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"Merger Consideration").
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(c) Section 4.1(f) is hereby amended by deleting the word "NYSE" and
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inserting in lieu thereof the words "New York Stock Exchange, Inc. (the
"NYSE")".
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(d) Section 4.1(g) is hereby amended by deleting such Section in its
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entirety and inserting in lieu thereof the following:
(g) Certain Adjustments. If, between the date of this Agreement
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and the Effective Time, the outstanding Company Shares or Parent
Shares shall have been changed into a different number of shares or
different class by reason of any reclassification, recapitalization,
stock split, split-up, combination or exchange of shares or a stock
dividend or dividend payable in any other securities shall be declared
with a record date within such period, or any similar event shall have
occurred, the Exchange Ratio shall be appropriately adjusted to
provide to the holders of Company Shares the same economic effect as
contemplated by this Agreement prior to such event.
(e) Section 5.1(x) is hereby amended by deleting such Section in its
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entirety and inserting in lieu thereof the following:
Opinion of Financial Advisor. The Company has received the
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opinion of the Company Financial Advisor, dated April ___, 2001 (the
"Company Financial Advisor Opinion"), to the effect that, as of such
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date, the Merger Consideration to be received in the Merger by the
holders of Company Shares is fair to such holders from a financial
point of view. A complete and correct signed copy of such opinion has
been delivered to Parent, and such opinion has not been withdrawn or
modified.
(f) Section 8.3 is hereby amended by (i) deleting the reference to ":(a)"
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and (ii) deleting Section 8.3(b) in its entirety.
(g) Section 8.5(b) is hereby amended by (i) deleting the words "the lesser
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of (A) $6,435,000 or (B)" immediately after the words "equal to" in the first
line after subsection (ii), and (ii) deleting "6,500,000" in the third line
after subsection (ii) and inserting "7,250,000" in lieu thereof.
Section 2. Representations of the Company. The Company hereby represents
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and warrants to Parent and Merger Sub as follows:
(a) The Company has all necessary corporate power and authority to execute
and deliver this Amendment, to perform its obligations under the Merger
Agreement (as amended by this Amendment) and to consummate the transactions
contemplated by the Merger Agreement (as amended by this Amendment).
(b) The execution and delivery of this Amendment by the Company have been
duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of the Company are necessary to authorize this
Amendment.
(c) This Amendment has been duly and validly executed and delivered by the
Company and, assuming the due authorization, execution and delivery by Parent
and Merger Sub, the Merger Agreement (as amended by this Amendment) constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms (except insofar as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, or principles governing the
availability of equitable remedies).
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Section 3. Representations of Parent and Merger Sub. Each of Parent and
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Merger Sub hereby represents and warrants to the Company as follows:
(a) Each of Parent and Merger Sub has all necessary corporate power and
authority to execute and deliver this Amendment, to perform its obligations
under the Merger Agreement (as amended by this Amendment) and to consummate the
transactions contemplated by the Merger Agreement (as amended by this
Amendment).
(b) The execution and delivery of this Amendment by Parent and Merger Sub
have been duly and validly authorized by all necessary corporate action and no
other corporate proceedings on the part of Parent or Merger Sub are necessary to
authorize this Amendment.
(c) This Amendment has been duly and validly executed and delivered by each
of Parent and Merger Sub and, assuming the due authorization, execution and
delivery by the Company, the Merger Agreement (as amended by this Amendment)
constitutes the legal, valid and binding obligation of Parent and Merger Sub,
enforceable against Parent and Merger Sub in accordance with its terms (except
insofar as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or principles governing the availability of equitable remedies).
Section 4. Effective Date; No Implied Amendments. Each of the parties
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agrees that the amendments to the Merger Agreement contained herein shall be
effective upon execution of this Amendment by each party hereto. Except as
specifically amended by this Amendment, the Merger Agreement shall remain in
full force and effect in accordance with its respective terms and is hereby
ratified and confirmed. This Amendment shall not be deemed to constitute a
waiver of, or consent to, or a modification or amendment of, any other provision
of the Merger Agreement except as expressly provided herein or to prejudice any
other right or rights which any party may now have or may have in the future
under or in connection with the Merger Agreement. This Amendment shall not
constitute an agreement or obligation of any party to consent to, waive, modify
or amend any other term, condition, subsection or section of the Merger
Agreement.
Section 5. Benefit of the Agreement. This Amendment shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors, permitted assigns, heirs and executors. This Amendment shall not be
construed so as to confer any right or benefit upon any Person, other than the
parties hereto and their respective successors, permitted assigns, heirs and
executors.
Section 6. Headings. The headings used in this Amendment are for
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convenience of reference only and shall not be deemed to limit, characterize or
in any way affect the interpretation of any provision of this Amendment.
Section 7. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
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Section 8. Counterparts. This Amendment may be executed in counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 9. References to Agreement. On and after the date hereof, each
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reference in the Merger Agreement to "this Agreement," "hereunder," "hereof" or
words of like import referring to the Merger Agreement shall mean the Merger
Agreement as amended by this Amendment.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to Agreement and Plan of Merger as of the date first written above.
MOTOROLA, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Vice President
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EARTH ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Vice President
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BLUE WAVE SYSTEMS INC.
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
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Title: Chief Executive Officer
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