EXHIBIT 2.2
AMENDMENT
TO
ACQUISITION AGREEMENT
AMENDMENT (this "Amendment"), dated as of October 31, 1999, by and
among GTI ACQUISITION CORP., a Delaware corporation ("Glenayre"); GLENAYRE
TECHNOLOGIES, INC., a Delaware corporation ("GTI"); WESTERN MULTIPLEX
CORPORATION, a California corporation ("WMC California"); WESTERN MULTIPLEX
CORPORATION, a Delaware corporation ("WMC Delaware") and WMC HOLDING CORP., a
Delaware corporation ("Purchaser"), to the Acquisition Agreement, dated as of
September 30, 1999, by and among Glenayre, GTI, WMC California and Purchaser
(the "Acquisition Agreement").
STATEMENT OF PURPOSE
Glenayre, GTI, WMC California and Purchaser are parties to the
Acquisition Agreement;
The Acquisition Agreement provided that the parties would
reasonably cooperate prior to the Closing to ensure that the Redemption
complies with the applicable corporate law requirements and requirements for
"recap accounting" treatment, including making appropriate modifications to
the Acquisition Agreement, if necessary;
In connection therewith, Glenayre has contributed 100% of the
capital stock of WMC California to WMC Delaware, a wholly owned subsidiary of
Glenayre, in exchange for 80,000,000 shares of Class B Common Stock, par
value $.01 per share, of WMC Delaware, and the parties desire that the
Transactions (other than the Charter Amendment) shall apply with respect to
the Class B Common Stock of WMC Delaware rather than the common stock of WMC
California, as provided in the Acquisition Agreement;
Glenayre, GTI, WMC California and Purchaser therefore desire to
amend the Acquisition Agreement to reflect the foregoing changes and to add
WMC Delaware as a party thereto.
NOW, THEREFORE, in consideration of the Statement of Purpose and of
the mutual agreements contained herein, the parties hereto do hereby agree as
follows:
1. Amendment of the Preamble.
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a. The Preamble of the Acquisition Agreement is hereby amended in its
entirety to read as follows:
"THIS ACQUISITION AGREEMENT (this "Agreement") is executed as of
September 30, 1999 by and among GTI ACQUISITION CORP., a Delaware
corporation ("Glenayre"); GLENAYRE TECHNOLOGIES, INC., a Delaware
corporation ("GTI"); WESTERN MULTIPLEX CORPORATION, a California
corporation ("WMC" or "WMC California"); WESTERN MULTIPLEX CORPORATION,
a Delaware corporation ("WMC Delaware"); and WMC HOLDING CORP., a
Delaware corporation ("Purchaser")."
b. Except as amended by this Amendment, all references to "WMC" in the
Acquisition Agreement shall be deemed references to "WMC California".
2. Amendment of the Statement of Purpose.
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a. The Statement of Purpose of the Acquisition Agreement is hereby
amended in its entirety to read as follows:
"Glenayre, a wholly-owned subsidiary of GTI, owns all of the issued and
outstanding capital stock of WMC Delaware, which consists of 80,000,000
shares of Class B Common Stock, par value $.01 per share (the "WMC
Delaware Class B Common Stock").
The parties desire that WMC enter into (i) two term loan facilities
(collectively, the "Term Facilities") under which WMC will borrow the
aggregate principal amount of $22,000,000 (the "Term Borrowing") and
(ii) a $10 million revolving credit facility (the "Revolving Facility")
under which WMC will draw down $2 million at the Closing (the
"Drawdown"), in each case with certain providers of financing arranged
by Purchaser and on substantially the terms set forth in the commitment
letter attached as Exhibit 1 to this Agreement (the "Commitment
Letter").
The proceeds from the Term Borrowing shall be used by WMC to redeem from
Glenayre 42,000,000 shares of WMC Delaware Class B Common Stock (the
"Redeemed Shares") for $21,000,000, as a result of which Glenayre shall
continue to hold 38,000,000 shares of WMC Delaware Class B Common Stock
immediately after such redemption (the "Redemption").
Immediately after the Redemption, Glenayre desires to sell to Purchaser,
and Purchaser desires to purchase from Glenayre, 35,955,000 shares of
WMC Delaware Class B Common Stock (the "Purchased Common Shares") on the
terms and subject to the conditions set forth herein, as a result of
which Glenayre shall continue to hold 2,045,000 shares of WMC Delaware
Class B Common Stock (the "Retained Shares")."
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3. Amendment of Article 1
----------------------
a. Section 1.1. of the Acquisition Agreement is hereby amended by
deleting the references to "Charter Amendment". Sections 1.1
(Transactions), 3.3(d), 3.4(b)(4), 5.2(c)(1) and 5.8 of the Acquisition
Agreement are hereby amended by deleting the reference to "Charter Amendment"
contained therein.
b. Section 1.1. of the Acquisition Agreement is hereby amended by
deleting the definition of "Old WMC Shares" and inserting in lieu thereof the
following:
"'Old WMC California Shares"is defined in Section 3.2(b)."
c. Section 1.1. of the Acquisition Agreement is hereby amended by
deleting the definition of "Stockholders' Agreement" and inserting in lieu
thereof the following:
"Stockholders' Agreement" means the Stockholders' Agreement among
Glenayre, GTI, WMC Delaware and Purchaser substantially in the
form of Exhibit 4 to this Agreement."
d. Section 1.1 of the Acquisition Agreement is hereby amended by
adding the following definitions, in alphabetical order:
"'WMC" or "WMC California" shall mean Western Multiplex
Corporation, a California corporation, and its successors."
"'WMC Delaware' shall mean Western Multiplex Corporation, a
Delaware corporation, and its successors."
"'WMC Class B Common Stock" means the Class B Common Stock of WMC
Delaware, par value $.01 per share."
4. Amendment of Article 2
----------------------
a. Section 2.1(a) of the Acquisition Agreement is hereby amended in
its entirety to read as follows:
"WMC Delaware shall enter into the Term Facilities and the
Revolving Facility and make the Term Borrowing and the Drawdown."
b. Section 2.1(b) of the Acquisition Agreement is hereby amended in
its entirety to read as follows:
"WMC Delaware shall effect the Redemption for $21,000,000 (the
"Redemption Price"), payable by wire transfer of immediately
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available funds to an account designated by Glenayre (such
designation to be not less than two Business Days before the
Closing Date). The Redeemed Shares shall be assigned, transferred
and delivered by Glenayre to WMC Delaware upon redemption free and
clear of all Liens."
c. Section 2.1(d) of the Acquisition Agreement is hereby amended by
deleting the reference to "$18,031,000" in the fourth line and inserting in
lieu thereof the number "$17,977,500."
d. Paragraphs (1) and (2) of Section 2.2(b) of the Acquisition
Agreement are hereby amended in their entirety to read as follows:
"(1) WMC Delaware shall execute the agreements and notes
relating to the Term Facilities and the Revolving
Facility and make the Term Borrowing and the Drawdown.
(2) WMC Delaware shall pay to Glenayre the Redemption Price as set
forth in Section 2.1(b), and Glenayre shall deliver to WMC
Delaware certificates for all of the Redeemed Shares, together
with accompanying stock powers duly endorsed in blank."
e. Paragraph (3) of Section 2.2(b) of the Acquisition Agreement is
hereby amended by substituting clause (viii) in its entirety to read as
follows:
"the Stockholders' Agreement, duly executed by GTI, Glenayre and
WMC Delaware,"
5. Amendment of Article 3
----------------------
a. Section 3.1 of the Acquisition Agreement is hereby amended by
adding the following sentence at the end thereof:
"WMC Delaware is a corporation duly organized, validly existing and
in good standing under the Laws of the State of Delaware and has
the requisite corporate power and authority to own, lease and
operate its properties, to enter into this Agreement and the
Stockholders' Agreement and to consummate the Transactions. WMC
Delaware is not qualified or licensed as a foreign corporation."
b. Section 3.2 of the Acquisition Agreement is hereby amended by
adding a new paragraph (a) as follows and renumbering the existing paragraph
as paragraph (b):
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"The authorized capital stock of WMC Delaware consists of
200,000,000 shares of common stock of WMC, consisting of
100,000,000 shares of Class A Common Stock, par value $.01 per
share and 100,000,000 shares of WMC Delaware Class B Common Stock,
of which only 80,000,000 Shares of WMC Delaware Class B Common
Stock are issued and outstanding. No shares of Class A Common
Stock have been issued. All of the issued and outstanding shares
of WMC Delaware Class B Common Stock have been, and all of the
Redeemed Shares, Purchased Common Shares and Retained Shares will
be, duly authorized and validly issued, are or will be fully paid
and nonassessable, are not or will not be subject to or issued in
violation of any purchase option, call option, right of first
refusal, preemptive right, subscription right or any similar right
under any provision of the General Corporation Law of Delaware, the
Articles of Incorporation or Bylaws of WMC Delaware or any Contract
to which WMC Delaware is a party or otherwise bound and are or will
be owned by Glenayre, free and clear of any Liens except for this
Agreement and the Stockholders' Agreement and the restrictions on
transferability imposed by federal and state securities Laws.
Immediately prior to the Closing, Glenayre will be the owner
beneficially and of record of, and have good and valid title to,
all the Redeemed Shares, the Purchased Common Shares and the
Retained Shares, and immediately after the Closing, Glenayre will
be the owner beneficially and of record of all the Retained Shares,
in each case free and clear of any Liens, except for the
restrictions on transferability imposed by federal and state
securities Laws and the Stockholders' Agreement. Assuming Purchaser
has the requisite power and authority to be the lawful owner of the
Purchased Common Shares, upon delivery to Purchaser at the Closing
of certificates representing the Purchased Common Shares, duly
endorsed by Glenayre for transfer to Purchaser, and upon Glenayre's
receipt of the Purchase Price, good and valid title to the
Purchased Common Shares will pass to Purchaser, free and clear of
any Liens other than those arising from acts of Purchaser or its
Affiliates, the restrictions on transferability imposed by federal
and state securities Laws and the Stockholders' Agreement. Other
than this Agreement and upon its execution the Stockholders'
Agreement, the issued and outstanding shares of WMC Delaware Class
B Common Stock , Retained Shares, Redeemed Shares and Purchased
Common Shares are not and will not be subject to any voting trust
agreement or other Contract, including any Contract restricting or
otherwise relating to the voting, dividend rights or disposition of
the shares of WMC Delaware Class B Common Stock, Retained Shares,
Redeemed Shares and Purchased Common Shares. Immediately after the
Closing, except for the Purchased Common Shares and the Retained
Shares or any other shares of capital stock of WMC Delaware which
Purchaser causes WMC Delaware to reserve for issuance (including
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any such shares issued or reserved for issuance to employees of WMC
Delaware or WMC in connection with or immediately after the
Closing), there will be no shares of capital stock or other equity
securities of WMC Delaware issued, outstanding or reserved for
issuance. There are no bonds, debentures, notes or other
indebtedness of WMC Delaware having the right to vote (or
convertible into, or exchangeable for, securities having the right
to vote) on any matters on which holders of WMC Delaware common
stock may vote ("Voting Company Debt"). Except as set forth above,
there are no options, warrants, rights, convertible or exchangeable
securities, "phantom" stock rights, stock appreciation rights,
stock-based performance units, or Contract of any kind to which WMC
Delaware is a party or by which either of them is bound (i)
obligating WMC Delaware to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or
other equity interests in, or any security convertible or
exercisable for or exchangeable into any capital stock of or other
equity interest in, WMC Delaware or any Voting Company Debt, (ii)
obligating WMC Delaware to issue, grant, extend or enter into any
such option, warrant, call, right, security or Contract or (iii)
that give any Person the right to receive any economic benefit or
right similar to or derived from the economic benefits and rights
accruing to holders of WMC Delaware common stock. Other than this
Agreement, there are no outstanding contractual obligations of WMC
Delaware to repurchase, redeem or otherwise acquire any shares of
capital stock of WMC Delaware. WMC Delaware does not own directly
or indirectly any interest or investment in any other Person except
for WMC, and WMC Delaware does not have any obligation to make any
additional investments in any Person. Except as contemplated by
this Agreement, since the date of its incorporation, WMC Delaware
has not conducted any business, owned any assets (other than Old
WMC California Shares) or incurred or assumed any liabilities."
c. Section 3.2 of the Acquisition Agreement is hereby amended by
amending new paragraph (b) to read in its entirety as follows:
"The authorized capital stock of WMC consists of 25,000,000 shares
of common stock of WMC, of which only 1,000 shares are issued and
outstanding (the "Old WMC California Shares"). All of the Old WMC
California Shares have been duly authorized and validly issued, are
fully paid and nonassessable, are not subject to or issued in
violation of any purchase option, call option, right of first
refusal, preemptive right, subscription right or any similar right
under any provision of the CGCL, the Articles of Incorporation or
Bylaws of WMC or any Contract to which WMC is a party or otherwise
bound and are owned by WMC Delaware, free and clear of any Liens.
The Old WMC California Shares are not and will not be subject to
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any voting trust agreement or other Contract, including any
Contract restricting or otherwise relating to the voting, dividend
rights or disposition of the Old WMC California Shares.
Immediately after the Closing, there will be no shares of capital
stock or other equity securities of WMC California issued,
outstanding or reserved for issuance. There are no bonds,
debentures, notes or other indebtedness of WMC having the right to
vote (or convertible into, or exchangeable for, securities having
the right to vote) on any matters on which holders of WMC common
stock may vote ("WMC Voting Debt"). Except as set forth above,
there are no options, warrants, rights, convertible or exchangeable
securities, "phantom" stock rights, stock appreciation rights,
stock-based performance units, or Contract of any kind to which WMC
is a party or by which either of them is bound (i) obligating WMC
to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other equity interests
in, or any security convertible or exercisable for or exchangeable
into any capital stock of or other equity interest in, WMC or any
WMC Voting Debt, (ii) obligating WMC to issue, grant, extend or
enter into any such option, warrant, call, right, security or
Contract or (iii) that give any Person the right to receive any
economic benefit or right similar to or derived from the economic
benefits and rights accruing to holders of WMC common stock. There
are no outstanding contractual obligations of WMC to repurchase,
redeem or otherwise acquire any shares of capital stock of WMC.
WMC does not own directly or indirectly any interest or investment
in any other Person except for WMC's ownership of shares in a
mutual insurance company through its payment of premiums in the
ordinary course of business, and WMC does not have any obligation
to make any additional investments in any Person."
d. Section 3.3 of the Acquisition Agreement is hereby amended by
amending the first and second sentences of paragraph (d) to read in their
entirety as follows:
"WMC has all necessary corporate power and authority to execute and
deliver this Agreement, the License Agreement and the Assignment
(the "WMC Additional Agreements") and to perform its obligations
hereunder and thereunder. The execution, delivery and performance
of this Agreement and the WMC Additional Agreements by WMC have
been duly and validly authorized by all necessary corporate action
on the part of WMC."
e. Section 3.3 of the Acquisition Agreement is hereby amended by adding
a new paragraph (e) at the end thereof as follows:
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"(e) WMC Delaware has all necessary corporate power and authority
to execute and deliver this Agreement and the Stockholders'
Agreement (the "WMC Delaware Additional Agreements") and to perform
its obligations hereunder and thereunder and to consummate the
Transactions. The execution, delivery and performance of this
Agreement and the WMC Delaware Additional Agreements by WMC
Delaware and the consummation by it of the Transactions have been
duly and validly authorized by all necessary corporate action on
the part of WMC Delaware. This Agreement has been duly and validly
executed and delivered by WMC Delaware and as of the Closing it
will have duly executed and delivered each of the WMC Delaware
Additional Agreements, and, assuming the due authorization,
execution and delivery of this Agreement and the WMC Delaware
Additional Agreements (as applicable) by Purchaser, this Agreement
constitutes, and each of the WMC Delaware Additional Agreements
when executed will constitute, a legal, valid and binding
obligation of WMC Delaware enforceable against it in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or
similar Laws affecting creditors' rights generally and by such
principles of equity as may affect the availability of equitable
remedies."
6. Amendment of Article 5
----------------------
a. Section 5.5 of the Acquisition Agreement is hereby amended by
adding the words "and/or WMC Delaware" following each reference to "WMC" in
such Section.
7. Amendment of Article 6
----------------------
a. Section 6.1 of the Acquisition Agreement is hereby amended by
adding the words "and/or WMC Delaware" following each reference to "WMC" in
paragraph (a).
b. Paragraph (c) of Section 6.3 of the Acquisition Agreement is hereby
amended by adding the following sentence at the end thereof:
"Purchaser shall have received from GTI and Glenayre certified
copies of all resolutions adopted by the Board of Directors of WMC
Delaware authorizing the execution, delivery and performance of
this Agreement, the WMC Delware Additional Agreements, the
Financing and the Transactions."
c. Paragraphs (g) and (h) of Section 6.3 of the Acquisition Agreement
are hereby amended in their entirety to read as follows:
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"(g) WMC Delaware shall have received the Term Borrowing and the
Drawdown in accordance with the terms, and subject to the
conditions of the Commitment Letter.
(h) Purchaser shall have received the Stockholders' Agreement,
duly executed by Glenayre, WMC Delaware and GTI."
8. Amendment of Article 7
----------------------
a. Section 7.1 of the Acquisition Agreement is hereby amended by
adding clause (5) at the end thereof as follows:
"or (5) the conduct, operation or ownership of WMC Delaware on and
prior to October 25, 1999."
b. Section 7.5 of the Acquisition Agreement is hereby amending clause
(3) thereof to read in its entirety as follows:
"(3) any liability of GTI or Glenayre Electronics with respect to
the Sunnyvale Lease arising following the Closing with respect to
the period following the Closing."
9. Amended and Restated Acquisition Agreement.
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For ease of reference, the parties shall execute and deliver an amended
and restated Acquisition Agreement in the form attached hereto.
10. Definitions.
-----------
Capitalized terms not otherwise defined herein shall have the meaning
ascribed to such terms in the Acquisition Agreement.
11. Counterparts.
------------
This Amendment may be executed in two or more counterparts, and by
different parties on separate counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
GTI ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxx
----------------------------
Name: Xxx X. Xxxxxx
Title: President
GLENAYRE TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chairman
WESTERN MULTIPLEX CORPORATION, a California
corporation
By: /s/ Xxxxxxx Cipcienski
----------------------------
Name: Xxxxxxx Cipcienski
Title: Chief Financial Officer
WESTERN MULTIPLEX CORPORATION, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
WMC HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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