Exhibit 2.4
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "First
Amendment") is made as of this 27th day of August, 1998 among Tellabs,
Inc., a Delaware corporation ("Parent"), White Oak Merger Corp., a
Delaware corporation and a direct wholly owned subsidiary of Parent
("Sub"), and CIENA Corporation, a Delaware corporation (the "Company").
Parent, Sub and the Company are parties to that certain Agreement and
Plan of Merger dated as of June 2, 1998 (the "Merger Agreement").
Except as otherwise defined or modified herein, all capitalized terms
used in this First Amendment shall have the meanings set forth in the
Merger Agreement.
Concurrently herewith Parent and the Company are entering into an
amendment to the Stock Option Agreement in the form of the attached
Exhibit A.
In consideration of the mutual agreements contained in the Merger
Agreement and in this First Amendment and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO MERGER AGREEMENT.
A. Amendment to Section 1.5(c) of the Merger Agreement. Section 1.5(c)
of the Merger Agreement is hereby amended to read in its entirety as
follows:
"Subject to the provisions of Sections 1.8 and 1.10 hereof, each share
of Company Common Stock issued and outstanding immediately prior to the
Effective Time (other than shares to be cancelled in accordance with
Section 1.5(b)), together with the associated Rights, shall be converted
into 0.80 (such number being the "Exchange Ratio") validly issued, fully
paid and nonassessable shares of Parent Common Stock. All such shares
of Company Common Stock and the associated Rights, when so converted,
shall no longer be outstanding and shall automatically be cancelled and
retired and each holder of a certificate representing any such shares
shall cease to have any rights with respect thereto, except the right to
receive any dividends and other distributions in accordance with Section
1.7, certificates representing the shares of Parent Common Stock into
which such shares are converted and any cash, without interest, in lieu
of fractional shares to be issued or paid in consideration therefor upon
the surrender of such certificate in accordance with Section 1.6."
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B. Amendments to Section 5.7 of the Merger Agreement.
(I) Section 5.7(b) of the Merger Agreement is hereby amended to read in
its entirety as follows:
(i) Notwithstanding any provision in this Agreement to the contrary, if
this Agreement is terminated (A) by the Company or Parent pursuant to
Section 7.1(e) and a Takeover Proposal existed between the date hereof
and the date of the Company Stockholder Meeting, (B) by the Company or
Parent pursuant to Section 7.1(g) or (C) by Parent pursuant to Section
7.1(h) (except, in the case of Section 7.1(h)(i), as provided in
Sections 5.7(d) and 5.7(e)), then, in each case, the Company shall
(without prejudice to any other rights Parent may have against the
Company for breach of this Agreement) reimburse Parent upon demand for
all reasonable out-of-pocket fees and expenses incurred or paid by or on
behalf of Parent or any Affiliate (as hereinafter defined) of Parent in
connection with this Agreement, the Stock Option Agreement and the
transactions contemplated herein or therein, including all fees and
expenses of counsel, investment banking firms, accountants and
consultants; provided, however, that the Company shall not be obligated
to make payments pursuant to this Section 5.7(b)(i) in excess of
$10,000,000 in the aggregate. As used herein, "Affiliate" shall have
the meaning set forth in Rule 405 under the Securities Act.
(ii) Notwithstanding any provision in this Agreement to the contrary, if
this Agreement is terminated by the Company or Parent pursuant to
Section 7.1(f) and a Parent Takeover Proposal (as defined below) existed
between the date hereof and the date of the Parent Stockholder Meeting,
then Parent shall (without prejudice to any other rights the Company may
have against Parent for breach of this Agreement) reimburse the Company
upon demand for all reasonable out- out-pocket fees and expenses
incurred or paid by or on behalf of the Company or any Affiliate of the
Company in connection with this Agreement, the Stock Option Agreement
and the transactions contemplated herein or therein, including all fees
and expenses of counsel, investment banking firms, accountants and
consultants; provided, however, that Parent shall not be obligated to
make payments pursuant to this Section 5.7(b)(ii) in excess of
$10,000,000 in the aggregate. As used herein, "Parent Takeover
Proposal" means any proposal or offer, or any expression of interest, by
any third party relating to Parent's willingness or ability to receive
or discuss a proposal or offer for a merger, consolidation or other
business combination, in each case pursuant to which Parent is acquired
by a third party.
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(II) The first paragraph of Section 5.7(c) of the Merger Agreement is
hereby amended to read in its entirety as follows:
"Notwithstanding any provision in this Agreement to the contrary, if (i)
this Agreement is terminated by the Company or Parent pursuant to
Section 7.1(e) and a Takeover Proposal existed between the date hereof
and the date of the Company Stockholder Meeting and, concurrently with
or within twelve months after any such termination a Third Party
Acquisition Event (as defined below) occurs or the Company shall enter
into any letter of intent, agreement in principle, acquisition agreement
or other similar agreement with respect to a Third Party Acquisition
Event, (ii) this Agreement is terminated by Parent or the Company
pursuant to Section 7.1(g) or (iii) this Agreement is terminated by
Parent pursuant to Section 7.1(h) (except, in the case of Section
7.1(h)(i), as provided in Sections 5.7(d) and 5.7(e)), then, in each
case, the Company shall (in addition to any obligation under Section
5.7(b) and without prejudice to any other rights that Parent may have
against the Company for a breach of this Agreement) pay to Parent a fee
(the "Termination Fee") of $200,000,000 in cash, such payment to be made
promptly, but in no event later than, in the case of clause (i), the
later to occur of such termination and such Third Party Acquisition
Event or, in the case of clauses (ii) or (iii), such termination."
(III) Section 5.7(d) of the Merger Agreement is hereby amended to read
in its entirety as follows:
"No payment shall be required to be made by the Company pursuant to
Section 5.7(b)(i)(C) or 5.7(c)(iii) (in each case, with respect to a
termination of this Agreement pursuant to Section 7.1(h)(i)) if the
following conditions are satisfied: (i) no Takeover Proposal existed
between the date hereof and the date of the Company Stockholder Meeting;
(ii) the event described in Section 7.1(h)(i) causing the termination of
this Agreement occurred solely as a result of Parent entering into a
definitive written agreement pursuant to which (x) Parent acquires, or
one of Parent's Subsidiaries merges with, another entity and (y) in
consideration therefor Parent agrees to issue Parent Common Stock or
other voting securities representing, in the aggregate, 20% or more of
the then outstanding shares of Parent Common Stock and other Parent
voting securities (a "Parent Acquisition Event"); and (iii) prior to the
occurrence of the event described in Section 7.1(h)(i) causing such
termination, (A) the Board of Directors of the Company, after due
deliberation and in the good faith exercise of its fiduciary duties
under applicable law (as advised by outside corporate counsel of the
Company), determined (1) to withdraw or modify such recommendation
solely because Parent notified the Company that it intended to enter
into or had entered into a definitive written agreement to effect a
Parent Acquisition Event and (2) that, solely as a result of such Parent
Acquisition Event, the Merger was no longer in the best interests of the
Company and its stockholders and (B) the Board of Directors of the
Company notified Parent that it had resolved to withdraw or modify its
recommendation in favor of the approval of this Agreement within five
business days of the receipt of Parent's notice.
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(IV) A new Section 5.7(e) of the Merger Agreement is hereby added to the
Merger Agreement to read as follows:
"Notwithstanding any provision in this Agreement to the contrary, and in
lieu of any payments otherwise required to be made by the Company
pursuant to Section 5.7(b)(i)(C) or 5.7(c)(iii), if (i) this Agreement
is terminated by Parent pursuant to Section 7.1(h)(i) and (A) no
Takeover Proposal existed between the date hereof and the date of the
Company Stockholder Meeting, (B) the event described in Section
7.1(h)(i) causing the termination of this Agreement occurred solely as a
result of the occurrence of a Material Adverse Effect on Parent
(provided that, for purposes of this Section 5.7(e)(i), a Material
Adverse Effect on the results of operations of Parent and its
Subsidiaries shall only be deemed to be such to the extent it relates to
the long-term prospects of the results of operations of Parent and its
Subsidiaries taken as a whole) and (C) prior to the occurrence of the
event described in Section 7.1(h)(i) causing the termination of this
Agreement, the Board of Directors of the Company determined in its
reasonable good faith judgment, on the basis of the advice of outside
corporate counsel of the Company, that the making of its recommendation
to the stockholders of the Company in favor of approval of this
Agreement, or the failure to withdraw or modify such recommendation,
would violate its fiduciary duties under applicable law solely in light
of the Material Adverse Effect on Parent or (ii) (A) no Takeover
Proposal existed between the date hereof and the proposed Closing Date,
(B) all of the conditions set forth in Sections 6.1 and 6.2 (other than
Section 6.2(c)) of the Merger Agreement have been fulfilled and (C) the
Company has elected not to consummate the transactions contemplated
hereby on the basis of Section 6.2(c) not being fulfilled, then, in each
case, the Company shall (without prejudice to any other rights that
Parent may have against the Company for a breach of this Agreement) pay
to Parent a termination fee of $50,000,000 in cash, such payment to be
made promptly, but in no event later than such termination."
(V) A new Section 5.7(f) is hereby added to the Merger Agreement to read
as follows:
"Notwithstanding any provision in this Agreement to the contrary, if (i)
this Agreement is terminated by the Company pursuant to Section 7.1(i)
or (ii) (A) all of the conditions set forth in Sections 6.1 and 6.3
(other than Section 6.3(c)) of the Merger Agreement have been fulfilled
and (B) Parent has elected not to consummate the transactions
contemplated hereby on the basis of Section 6.3(c) not being fulfilled,
then, in each case, Parent shall (without prejudice to any other rights
the Company may have against Parent for breach of this Agreement) pay to
the Company a fee of $100,000,000 in cash, such payment to be made
promptly, but in no event later than such termination."
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C. Amendment to Section 7.1 of the Merger Agreement. New Sections
7.1(j) and 7.1(k) are hereby added to the Merger Agreement to read as
follows:
"(j) by the Company if the Company shall have made the $50,000,000
payment pursuant to Section 5.7(e)(ii); or
(k) by Parent if Parent shall have made the $100,000,000 payment
pursuant to Section 5.7(f)(ii)."
SECTION 2. REPRESENTATIONS AND WARRANTIES.
A. Representations and Warranties of Parent and Sub. Parent and Sub
represent and warrant to the Company as follows:
(1) Authority. On or prior to the date of this First Amendment, the
Boards of Directors of Parent and Sub have declared the Merger (on terms
and conditions set forth in the Merger Agreement as amended by this
First Amendment) advisable and fair to and in the best interest to
Parent and Sub, respectively, and their respective stockholders,
approved and adopted the Merger Agreement (as amended hereby) in
accordance with the DGCL, and the Board of Directors of Parent has
confirmed its resolution to recommend the approval by Parent's
stockholders of the issuance of Parent Common Stock in connection with
the Merger. Each of Parent and Sub has all requisite corporate power
and authority to enter into this First Amendment and, subject to the
approval by the stockholders of Parent of the Share Issuance, to
consummate the transactions contemplated by the Merger Agreement, as
amended hereby. The execution and delivery of this First Amendment by
Parent and Sub and the consummation by Parent and Sub of the
transactions contemplated by the Merger Agreement, as amended hereby,
have been duly authorized by all necessary corporate action on the part
of Parent and Sub subject to (x) the approval by the stockholders of
Parent of the Share Issuance and (y) the filing of appropriate Merger
documents as required by the DGCL. This First Amendment has been duly
executed and delivered by Parent and Sub and (assuming the valid
authorization, execution and delivery of this First Amendment by the
Company and the valid and binding effect hereof on the Company)
constitutes the valid and binding obligation of Parent and Sub,
enforceable against each of them in accordance with its terms.
(2) Consents and Approvals; No Violation. Assuming that all consents,
approvals, authorizations and other actions described in this Section
2.A.(2) have been obtained and all filings and obligations described in
this Section 2.A.(2) have been made, except as set forth in Section 2.4
of the Parent Letter, the execution and delivery of this First Amendment
does not, and the consummation of the transactions contemplated by the
Merger Agreement, as amended hereby, will not, result in any violation
of, or default (with or without notice or lapse of time, or both) under,
or give to others a right of termination, cancellation or acceleration
of any obligation or the loss of a material benefit under, or result in
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the creation of any lien, security interest, charge or encumbrance upon
any of the properties or assets of Parent or any of its Subsidiaries
under, any provision of (i) the Parent Charter or the Parent Bylaws or
the Certificate of Incorporation or Bylaws of Sub, (ii) any provision of
the comparable charter or organization documents of any of Parent's
Subsidiaries, (iii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Parent or any of its Subsidiaries or
(iv) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Parent or any of its Subsidiaries or any of
their respective properties or assets, other than, in the case of
clauses (ii), (iii) or (iv), any such violations, defaults, rights,
liens, security interests, charges or encumbrances that, individually or
in the aggregate, would not have a Material Adverse Effect on Parent,
materially impair the ability of Parent or Sub to perform their
respective obligations hereunder or prevent the consummation of any of
the transactions contemplated by the Merger Agreement, as amended
hereby. No filing or registration with, or authorization, consent or
approval of, any Governmental Entity is required by or with respect to
Parent or any of its Subsidiaries in connection with the execution and
delivery of this First Amendment by Parent or Sub or is necessary for
the consummation of the Merger and the other transactions contemplated
by the Merger Agreement, as amended hereby, except for (i) in
connection, or in compliance, with the provisions of the HSR Act, the
Securities Act and the Exchange Act, (ii) the filing of the Certificate
of Merger with the Secretary of State of the State of Delaware and
appropriate documents with the relevant authorities of other states in
which Parent or any of its Subsidiaries is qualified to do business,
(iii) such filings, authorizations, orders and approvals as may be
required to obtain the State Takeover Approvals, (iv) such filings as
may be required in connection with the taxes described in Section 5.11
of the Merger Agreement, (v) applicable requirements, if any, of state
securities or Blue Sky Laws and NASDAQ, (vi) as may be required under
foreign laws and (vii) such other consents, orders, authorizations,
registrations, declarations and filings the failure of which to be
obtained or made would not, individually or in the aggregate, have a
Material Adverse Effect on Parent, materially impair the ability of
Parent or Sub to perform its obligations hereunder or prevent the
consummation of any of the transaction contemplated by the Merger
Agreement, as amended hereby.
(3) Opinion of Financial Advisor. Parent has received the written
opinion of Xxxxxxx, Xxxxx & Co., dated the date hereof, to the effect
that, as of the date hereof, the Exchange Ratio (as amended by this
First Amendment) is fair to Parent from a financial point of view.
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B. Representations and Warranties of the Company. The Company
represents and warranties to Parent and Sub as follows:
(1) Authority. On or prior to the date of this First Amendment, the
Board of Directors of the Company has declared the Merger (on terms and
conditions set forth in the Merger Agreement as amended by this First
Amendment) advisable and fair to and in the best interest of the Company
and its stockholders, approved and adopted this First Amendment in
accordance with the DGCL, confirmed its approval of the Stockholder
Agreements and the Stock Option Agreement (as amended), confirmed its
resolution to recommend the approval and adoption of the Merger
Agreement (as amended hereby) by the Company's stockholders and directed
that the Merger Agreement (as amended hereby) be submitted to the
Company's stockholders for approval and adoption. The Company has all
requisite corporate power and authority to enter into this First
Amendment and, subject to approval by the stockholders of the Company,
to consummate the transactions contemplated by the Merger Agreement, as
amended hereby. The execution and delivery of this First Amendment by
the Company and the consummation by the Company of the transactions
contemplated by the Merger Agreement, as amended hereby, have been duly
authorized by all necessary corporate action on the part of the Company,
subject, in the case of the Merger Agreement, as amended hereby, only to
(x) the approval of the Merger Agreement, as amended hereby, by the
stockholders of the Company and (y) the filing of appropriate Merger
documents as required by the DGCL. This First Amendment has been duly
executed and delivered by the Company and (assuming the valid
authorization, execution and delivery of this First Amendment by Parent
and Sub and the validity and binding effect of this First Amendment on
Parent and Sub) constitutes the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
(2) Consents and Approvals; No Violation. Assuming that all consents,
approvals, authorizations and other actions described in this Section
2.B.(2) have been obtained and all filings and obligations described in
this Section 2.B.(2) have been made, except as set forth in Section 3.4
of the Company Letter, the execution and delivery of this First
Amendment by the Company does not, and the consummation of the
transactions contemplated by the Merger Agreement, as amended hereby,
and compliance with the provisions of the Merger Agreement, as amended
hereby, will not, result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give to others a
right of termination, cancellation or acceleration of any obligation or
the loss of a material benefit under, or result in the creation of any
lien, security interest, charge or encumbrance upon any of the
properties or assets of the Company or any of its Subsidiaries under,
any provision of (i) the Company Charter or the Company Bylaws, (ii) any
provision of the comparable charter or organization documents of any of
the Company's Subsidiaries, (iii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to the Company or any of its
Subsidiaries or (iv) any judgment, order, decree, statute, law,
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ordinance, rule or regulation applicable to the Company or any of its
Subsidiaries or any of their respective properties or assets, other
than, in the case of clauses (ii), (iii) or (iv), any such violations,
defaults, rights, liens, security interests, charges or encumbrances
that, individually or in the aggregate, would not have a Material
Adverse Effect on the Company or materially impair the ability of the
Company to perform its obligations hereunder or prevent the consummation
of any of the transactions contemplated by the Merger Agreement, as
amended hereby. No filing or registration with, or authorization,
consent or approval of, any Governmental Entity is required by or with
respect to the Company or any of its Subsidiaries in connection with the
execution and delivery of this First Amendment by the Company or is
necessary for the consummation of the Merger and the other transactions
contemplated by the Merger Agreement, as amended hereby, except for (i)
in connection, or in compliance, with the provisions of the HSR Act, the
Securities Act and the Exchange Act, (ii) the filing of the Certificate
of Merger with the Secretary of State of the State of Delaware and
appropriate documents with the relevant authorities of other states in
which the Company or any of its Subsidiaries is qualified to do
business, (iii) such filings, authorizations, orders and approvals as
may be required to obtain the State Takeover Approvals, (iv) such
filings as may be required in connection with the taxes described in
Section 5.11 of the Merger Agreement, (v) applicable requirements, if
may, of Blue Sky Laws and NASDAQ, (vi) as may be required under foreign
laws and (vii) such other consents, orders, authorizations,
registrations, declarations and filings the failure of which to be
obtained or made would not, individually or in the aggregate, have a
Material Adverse Effect on the Company, materially impair the ability of
the Company to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated by the Merger
Agreement, as amended hereby.
(3) Opinion of Financial Advisor. The Company has received the written
opinion of Xxxxxx Xxxxxxx & Co. Incorporated, dated the date hereof, to
the effect that, as of the date hereof, the Exchange Ratio (as amended
by this First Amendment) is fair to the Company's stockholders from a
financial point of view, a copy of which opinion has been delivered to
Parent.
(4) State Takeover Statutes; Certain Charter Provisions. The Board of
Directors of the Company has, to the extent such statutes are
applicable, taken all action (including appropriate approvals of the
Board of Directors of the Company) necessary to exempt Parent, its
Subsidiaries and affiliates, the Merger, this First Amendment, the Stock
Option Agreement, as amended, and the transactions contemplated by the
Merger Agreement, as amended hereby, from Section 203 of the DGCL. To
the Knowledge of the Company, no other state takeover statutes or
charter or bylaw provisions are applicable to the Merger, this First
Amendment, the Stock Option Agreement, as amended, and the transactions
contemplated by the Merger Agreement, as amended hereby.
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SECTION 3. MISCELLANEOUS.
A. The terms and provisions of the Merger Agreement, as amended hereby,
shall remain in full force and effect. All references to the Merger
Agreement contained therein shall mean the Merger Agreement, as amended
hereby.
B. This First Amendment may be executed in counterparts, all of which
shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties.
C. This First 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 laws thereof.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this First
Amendment to be signed by their respective officers thereunto duly
authorized all as of the date first written above.
TELLABS, INC.
By: s\ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and
Chief Executive Officer
WHITE OAK MERGER CORP.
By: s\ Xxxxxxx X. Xxxxx
-------------------
Name: Xxxxxxx X. Xxxxx
Title: President
CIENA CORPORATION
By: s\ Xxxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
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