AMENDMENT TO AGREEMENT AND PLAN OF MERGER By and Among PLX Technology, Inc., as the Purchaser, Osprey Acquisition Sub, Inc., as the Merger Sub, Oxford Semiconductor, Inc., as the Company, and VantagePoint Venture Partners IV (Q), L.P., as the...
Exhibit 2.1
AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
By
and Among
PLX
Technology, Inc.,
as
the Purchaser,
Osprey
Acquisition Sub, Inc.,
as
the Merger Sub,
Oxford
Semiconductor, Inc.,
as
the Company,
and
VantagePoint
Venture Partners IV (Q), L.P.,
as
the Stockholder Representative
Dated
January 2, 2009
AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
THIS
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
(this “Amendment”)
is made and entered into this 2nd day of January, 2009, by and among PLX
Technology, Inc., a Delaware corporation (the “Purchaser”),
Osprey Acquisition Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of the Purchaser (the “Merger
Sub”), Oxford Semiconductor, Inc., a Delaware corporation (the “Company”),
and VantagePoint Venture Partners IV (Q), L.P., a Delaware limited partnership,
solely in its capacity as the representative of the Stockholders (the “Stockholder
Representative”).
WHEREAS,
the Purchaser, Merger Sub, the Company and the Stockholder Representative
entered into the Agreement and Plan of Merger on December 15, 2008 (the “Merger
Agreement”) and except as otherwise set forth in this Amendment,
capitalized terms used herein shall have the meanings set forth in the Merger
Agreement;
WHEREAS,
Section 10.3 of the Merger Agreement provides that the Merger Agreement may be
amended in a written document signed by each party to the Merger Agreement to be
bound by such amendment and that an amendment signed by the Stockholder
Representative is binding upon and effective against each Stockholder regardless
of whether such Stockholder signs such amendment;
WHEREAS,
the parties to the Merger Agreement desire to amend the Merger Agreement as set
forth herein; and
WHEREAS,
the respective boards of directors of the Purchaser, Merger Sub and the Company
have authorized and approved this Amendment:
NOW,
THEREFORE, intending to be legally bound and in consideration of the mutual
provisions set forth in this Amendment and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
ARTICLE
1
AMENDMENTS
The
parties to the Agreement agree that the Merger Agreement shall be amended and
modified as follows:
1.1 Section
2.1(a)(ii) of the Merger Agreement is deleted in its entirety and the following
inserted in its place:
“'Escrow
Amount' means the product obtained by multiplying (x) the Escrow Shares
by (y) the Weighted Average Escrow Share Price."
1.2 Section
2.1(a)(iii) of the Merger Agreement is deleted in its entirety and the following
inserted in its place:
“'Escrow
Shares" means 900,000 of shares of Purchaser Common Stock
having a deemed value per share equal to the Weighted Average Escrow Share
Price, which shares will be deposited with the Escrow Agent at the Closing
pursuant to Section 1.2(c)(ivv), and released from, the
Escrow Fund in accordance with this Agreement and the Escrow Agreement and as
provided in the Final Merger Consideration Allocation Schedule pursuant to
Section 2.3(a) hereof.”
1.3 Section
2.1(b)(i)(A) of the Merger Agreement is deleted in its entirety and the
following inserted in its place:
“(A) a
number of shares of Purchaser Common Stock equal to the product of (x) the
Series B Pro-Rata multiplied by (y) the product of (1) the Series B Allocation
multiplied by (2) the Closing Disbursement;”
1.4 Section
2.1(b)(ii)(A) of the Merger Agreement is deleted in its entirety and the
following inserted in its place:
“(A) a
number of shares of Purchaser Common Stock equal to the product of (x) the
Series A Pro-Rata multiplied by (y) the product of (1) the Series A Allocation
multiplied by (2) the Closing Disbursement;”
1.5 Section
2.1(b)(iii)(A) of the Merger Agreement is deleted in its entirety and the
following inserted in its place:
“(A) a
number of shares of Purchaser Common Stock equal to the product of (x)
Participating Common Pro-Rata multiplied by (y) the product of (1) the Common
Share Allocation multiplied by (2) the Closing Disbursement;”
1.6 Section
2.3(e) of the Merger Agreement is deleted in its entirety and the following
inserted in its place:
“(e) Termination
of Exchange Fund. Any portion of the Exchange Fund which
remains undistributed on the date that is 180 days after the Effective Time will
be delivered to the Purchaser, provided that the Purchaser provides prior
written notification to the Stockholder Representative of the delivery to
Purchaser, and any holder of a Certificate who has not previously complied with
this Section 2.3 will be entitled to receive, upon demand, only from the
Purchaser, disbursement of its claim for the Merger Consideration.”
1.7 Section
9.3(g) of the Merger Agreement is deleted in its entirety and the following
inserted in its place:
“(g) Any
indemnification of the Purchaser Indemnified Parties pursuant to this Article 9
will be effected, at the binding election of the Stockholder Representative to
be made no later than two Business Days following a final determination of the
indemnifiable Losses hereunder, by either (i) wire transfer of immediately
available funds to an account designated by the Purchaser (in which case the
number of Escrow Shares equal to such cash amount, with a deemed value equal to
the Weighted Average Escrow Share Price, will be released to the Stockholder
Representative for distribution to the Stockholders), or (ii) the return of all
or a portion of the Shares received by the Stockholders, whether held in the
Escrow Fund or otherwise, with each Share having a deemed value equal to the
Weighted Average Escrow Share Price, in each event in proportion to the Merger
Consideration payable to them pursuant to this Agreement.
1.8 Section
9.6(c) of the Merger Agreement is deleted in its entirety and the following
inserted in its place:
2
"(c) The
Stockholders will not be liable for any Loss under this Article 9 or otherwise,
and the Purchaser Indemnified Parties may not seek indemnification from the
Stockholders pursuant to Section 9.1 for any Loss, (i) if the aggregate amount
of such Losses exceeds the amount then available in the Escrow Fund for such
purpose, it being understood and agreed that the initial sources for the
Purchaser Indemnified Parties to recover Losses for which they may be entitled
under this Article 9 or otherwise will be to set off, recover and retain such
Losses from the Escrow Fund; provided,
however,
that at such time and only to the extent that the Losses for which the Purchaser
Indemnified Parties may seek indemnification under Section 9.1(a) relate to a
breach of a Company Excluded Representation exceed the amount of the Escrow
Fund, the Purchaser Indemnified Parties will have the right to recover such
remaining Losses in excess of the Escrow Fund from each Stockholder on an
individual and several basis (and not jointly as to or with any other
Stockholder) in an amount not to exceed such Stockholder’s Escrow Payment
Percentage multiplied by the amount of such remaining Losses; (ii) with respect
to each Stockholder, in excess of the aggregate amount of the Merger
Consideration actually paid to or on behalf of such Stockholder (including any
Escrow Shares, whether held in the Escrow Fund or otherwise, except to the
extent such Escrow Shares have been delivered to the Purchaser to satisfy an
indemnification obligation hereunder); or (iii) arising out of any breach of
this Agreement by the Company of which such Purchaser Indemnified Party had
actual knowledge prior to the date of this Agreement. Such
indemnification by the individual Stockholder will be payable at such
Stockholder’s election in accordance with Section 9.3 hereof (i) in cash or (ii)
return of all or a portion of the number of Shares of the Purchaser’s
Common Stock received as Merger Consideration, with each share of stock having a
deemed value equal to the Weighted Average Escrow Share Price; provided,
however,
in no event in either (i) or (ii) in an amount greater than the amount of actual
Losses, net of any amounts paid from the Escrow Fund; provided,
further,
that, to the extent that any portion of such Merger Consideration is deposited
into an escrow account or similar arrangement pursuant to the Stockholder
Matters Agreement, such escrow account or similar arrangement will provide for
the automatic release of the applicable portion of such Merger Consideration for
the benefit of the applicable Purchaser Indemnified Party upon demand and
otherwise in accordance herewith. Notwithstanding any other provision
of this Agreement, the Losses of the Purchaser Indemnified Parties will not
include, and no Purchaser Indemnified Party may seek to recover indemnification
or other relief for, consequential damages, lost profits or exemplary or
punitive damages (unless exemplary or punitive damages are incurred by a
Purchaser Indemnified Party as a result of a third-party claim and pursuant to a
final and nonappealable Order).
1.9 Exhibit
A to the Merger Agreement is amended to add the following, in
alphabetical order:
“'Weighted
Average Escrow Share Price' means the per share price of a share of
Purchaser Common Stock equal to the quotient of (i) 560,000 shares of Purchaser
Common Stock times the Purchaser Closing Stock Price, plus 340,000 shares of
Purchaser Common Stock times $4.18 per share; (ii) divided by 900,000 shares of
Purchaser Common Stock.”
ARTICLE
2
GENERAL
PROVISIONS
2.1
Amendment. This
Amendment may not be amended, supplemented or otherwise modified except in a
written document signed by each party to be bound by the amendment and that
identifies itself as an amendment to this Amendment. Any amendment of
this Amendment signed by the Stockholder Representative is binding upon and
effective against each Stockholder regardless of whether or not such Stockholder
has in fact signed such amendment.
2.2
Entire
Agreement. This Amendment constitutes the entire agreement
among the parties with regard to the subject matter hereof and supersedes any
prior understandings, agreements or representations by or among the parties, or
any of them, written or oral, with respect to the subject matter of this
Amendment. Except as specifically amended or modified by this
Amendment, the Merger Agreement shall remain in full force and
effect.
3
2.3
Assignment
and Successors. This Amendment binds and benefits the parties
and their respective heirs, executors, administrators, successors and assigns,
except that the Company may not assign any rights under this Amendment without
the prior written consent of the Purchaser. Nothing expressed or
referred to in this Amendment will be construed to give any third party or other
Person, other than the parties to this Agreement (including the Stockholders),
any legal or equitable right, remedy or claim under or with respect to this
Agreement or any provision of this Amendment except such rights as may inure to
a successor or permitted assignee under this Section 2.3.
2.4
Severability. If
any provision of this Amendment is held invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this
Amendment are not affected or impaired in any way and the parties agree to
negotiate in good faith to replace such invalid, illegal and unenforceable
provision with a valid, legal and enforceable provision that achieves, to the
greatest lawful extent under this Amendment, the economic, business and other
purposes of such invalid, illegal or unenforceable
provision.
2.5
Interpretation. The
language used in this Amendment is the language chosen by the parties to express
their mutual intent, and no provision of this Amendment will be interpreted for
or against any party because that party or its attorney drafted the
provision.
2.6
Governing
Law. The internal laws of the State of Delaware (without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
laws of any other jurisdiction) govern all matters
arising out of or relating to this Amendment and all of the transactions it
contemplates, including its validity, interpretation, construction, performance
and enforcement and any disputes or controversies arising
therefrom.
2.7
Counterparts. The
parties may execute this Amendment in multiple counterparts, each of which
constitutes an original as against the party that signed it, and all of which
together constitute one agreement. This Amendment is effective upon
delivery of one executed counterpart from each party to the other
parties. The signatures of all parties need not appear on the same
counterpart. The delivery of signed counterparts by facsimile or
email transmission that includes a copy of the sending party’s signature is as
effective as signing and delivering the counterpart in
person.
[Signature
pages follow]
4
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first set forth above.
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“Company”
OXFORD
SEMICONDUCTOR, INC., a Delaware corporation
By: /s/
Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first set forth above.
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“Purchaser”
PLX
TECHNOLOGY, INC., a Delaware corporation
By: /s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
President and CEO
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first set forth above.
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“Merger
Sub”
OSPREY
ACQUISITION SUB, INC., a Delaware corporation
By: /s/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title: President and CEO
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first set forth above.
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“Stockholder
Representative”
VANTAGEPOINT
VENTURE PARTNERS IV (Q) , L.P., solely for the purposes related to the
Stockholder Representative as set forth herein
By: /s/
Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Managing Member
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