SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.01
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This SECOND AMENDMENT, dated as of June 4, 2006 (this “Second Amendment”), to the Agreement
and Plan of Merger, 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”), as amended by the First Amendment to Agreement and Plan of Merger, dated as of May 30, 2006
(the “Agreement”), 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; 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 Second Amendment,
Parent, Merger Sub and the Company hereby agree as follows:
1. Amendment of Section 1.6(a) of the Agreement. Section 1.6(a) of the Agreement is
amended and restated in its entirety by the following:
(a) Company Common Stock. Each share of the common stock, par value $0.0001 per share, of the
Company (“Company Common Stock”) issued and outstanding immediately prior to the Effective Time,
other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(c), will be
canceled and extinguished and automatically converted (subject to Section 1.6(f)) into the right to
receive 0.5925 of a validly issued, fully paid and nonassessable share (the “Exchange Ratio”) of
the common stock, par value $0.10 per share, of Parent (“Parent Common Stock”).
2. 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 (i) 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 (ii) has a per share exercise price in excess of the greater of
(X) $9.54 and (Y) the Per Share Merger Consideration (as defined below), (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 (A) the greater of (X) $9.54 and (Y) the product of the closing
price of the Parent Common Stock on the New York Stock Exchange on the trading day immediately
preceding the Effective Time and 0.5925 (such product, the “Per Share Merger Consideration”), over
(B) the per share exercise price of such Company Option immediately prior to the Effective Time.
Each Company Option that is unexpired, unexercised and outstanding immediately prior to the
Effective Time and not a Cashed-Out 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).
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 Second Amendment, (ii) this Second Amendment has been duly and validly authorized by all
necessary action of its Board of Directors and, with respect to the Company, the Company’s Board of
Directors has unanimously approved this Second Amendment, and (iii) this Second 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 Second
Amendment in any respect except as expressly set forth herein.
5. Governing Law. This Second 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 Second 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.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed by
their duly authorized respective officers as of the date first written above.
LEXAR MEDIA INC. |
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By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Chairman of the Board of Directors, Chief Executive Officer and President |
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MICRON TECHNOLOGY, INC. |
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By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Chairman of the Board of Directors, Chief Executive Officer and President |
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MARCH 2006 MERGER CORP. |
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By: | /s/ X.X. Xxxxxx, Xx. | |||
Name: | X.X. Xxxxxx, Xx. | |||
Title: | President | |||