EXHIBIT 2.2
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTION SECTION 200.80(b)(4),
200.83 AND 240.24b-2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment") supplements,
modifies and amends the ASSET PURCHASE AGREEMENT (the "Agreement") entered into
as of April 4, 2002, by and between VIXEL CORPORATION, a Delaware corporation
("VIXEL" or "SELLER") and FUJITSU SOFTWARE TECHNOLOGY CORPORATION, d/b/a Fujitsu
Softek, a Delaware corporation ("FUJITSU SOFTEK" or "PURCHASER"). Capitalized
terms not defined herein shall have the meanings given them in the Agreement. If
there is any conflict between the Agreement and this Amendment, the provisions
of this Amendment will control.
1. Schedule 1.4 of the Agreement is modified and amended as follows:
(a) [...***...] are both deleted from the schedule; and
(b) [...***...] is added to the schedule.
2. Schedule 1.1(c) is modified by adding the following parties to the list
of Transferred Customers to be accepted by Fujitsu Softek as Transferred
Customers, at the option of Fujitsu Softek, to be exercised within
thirty (30) days after the Closing, and if not so accepted within such
time, then such parties shall then be deemed re-added to Schedule 1.4 of
the Agreement:
[...***...]
3. Section 1.4(a) of the Agreement is modified and amended to read, in its
entirety, as follows:
"(a) LICENSE BACK TO THE SAN INSITE SOFTWARE. Fujitsu Softek hereby
agrees to deliver and hereby grants to Vixel, as of the Closing, a
nonexclusive, transferable, perpetual, irrevocable (except for material
breach), royalty-free and fully paid-up license: (i) to reproduce, copy,
use, and display the SAN InSite Software in object code format only for
its internal business purposes or to provide support or maintenance to
the customers set forth on Schedule 1.4 or to existing customers using
the SAN InSite Software to manage their Vixel switches; (ii) to
sublicense and distribute version 3.1 of the SAN InSite Software to
customers that purchase from Vixel one or more of its Vixel 8100
switches that were manufactured prior to January 2002; (iii) to
reproduce, copy, sublicense and distribute the SAN InSite Software to or
for customers set forth on Schedule 1.4; provided, that for each such
customer, Vixel shall only sublicense or distribute (A) the version
specified on Schedule 1.4, (B) any versions prior to such version, or
(C) any support or maintenance releases thereto. For purposes of the
license grants in this Section 1.4(a) only, SAN InSite Software shall be
deemed to include standard and necessary third party software components
in object code format otherwise distributed by
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* Confidential Treatment Requested
Fujitsu Softek in the executable version of the commercial product, including
but not limited to Xxx Xxxxxx Software code."
Purchaser and Seller have caused this FIRST AMENDMENT TO ASSET PURCHASE
AGREEMENT to be executed as of April 15, 2002.
AGREED TO AND ACCEPTED:
FUJITSU SOFTWARE TECHNOLOGY CORPORATION
By: /s/ XXXXXX F. X. XXXXXX
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Name: Xxxxxx F. X. Xxxxxx
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Its: Chief Executive Officer
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Date: April 15, 2002
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VIXEL CORPORATION
By: /s/ XXXXX X. XxXXXXXX
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Name: Xxxxx X. XxXxxxxx
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Its: Chief Executive Officer
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Date: April 15, 2002
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