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EXHIBIT 2.02
FIRST AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT
AND FORM OF CONTRIBUTION AGREEMENT
This FIRST AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT AND FORM
OF CONTRIBUTION AGREEMENT (this "Amendment"), dated as of May 31, 2001, is by
and between Micron Electronics, Inc., a Minnesota corporation ("Seller"), and
GTG PC Holdings, LLC, a Delaware limited liability company ("Purchaser").
Definitions used and not otherwise defined herein shall have the meanings
assigned to them in the Purchase Agreement (as defined below).
RECITALS
WHEREAS, Seller and Purchaser have entered into that certain Membership
Interest Purchase Agreement dated as of April 30, 2001 (the "Purchase
Agreement");
WHEREAS, Seller and Purchaser desire to amend the Purchase Agreement so
that prior to the Closing, (i) Seller will convert Micron Government Computer
Systems, Inc. into a single member Delaware limited liability company and by
virtue thereof will hold the membership interest in such entity; (ii) Seller
will contribute the membership interests of such single member Delaware limited
liability company as a Contributed Asset pursuant to that certain Contribution
Agreement entered into between Seller and MicronPC, LLC (the "Company"); and
(iii) Seller will merge Micron PC, Inc., Micron Commercial Computer Systems,
Inc. and Micron Computer Services, Inc. (each, a "Merger Subsidiary" and
collectively, the "Merger Subsidiaries") with and into the Company, with the
Company continuing as the surviving entity.
AGREEMENT
NOW, THEREFORE, the parties agree to amend the Purchase Agreement and
Form of Contribution Agreement as follows:
1. Definition of "Converted Companies". The use of the plural in the
Purchase Agreement notwithstanding, the definition of the "Converted Companies"
shall mean Micron Government Computer Systems, LLC, a Delaware limited liability
company.
2. Definition of "Membership Interests". Notwithstanding anything in the
Purchase Agreement to the contrary, "Membership Interests" shall mean the Drop
Down Membership Interests only.
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3. Section 2.2. Section 2.2 is hereby deleted and the following is
inserted in its place:
"2.2 Conversion of the Subsidiary. On or prior to the date that is two
(2) days prior to the Closing Date, Micron Government Computer
Systems, Inc. shall be statutorily converted into a single member
Delaware limited liability company and Seller shall enter into a
limited liability company agreement with such Converted Company in
the form attached hereto as Exhibit D, which shall not be amended
prior to the Closing. Seller shall take, and shall cause the
Converted Company to take, any and all action that can be taken
prior to the Closing to ensure that the Converted Company will be
treated for all periods from inception as a disregarded entity for
federal and state Tax purposes and that it shall not be treated as
a corporation for federal or state Tax purposes."
4. New Section 2.5. The following is inserted as a new Section 2.5:
"2.5 Merger of Subsidiaries.
(a) The Merger. At the Effective Time (as defined below) and prior
to the Closing, and subject to and upon the terms and conditions
of the Purchase Agreement and the applicable provisions of the
Delaware General Corporation Law and the Delaware Limited
Liability Company Act (the "Delaware Law"), each Merger Subsidiary
shall be merged with and into the Company (collectively, the
"Merger"), the separate corporate existence of such Merger
Subsidiary shall cease and the Company shall continue as the
surviving entity. The surviving entity after the Merger is
sometimes referred to as the "Surviving Company."
(b) Effective Time. The closing of the Merger will take place on
or prior to the date that is one (1) day prior to the Closing
Date. On such date, the parties shall cause the Merger to be
consummated by filing a Certificate of Merger (or like
instrument), in substantially the form approved by Purchaser, with
the Secretary of State of the State of Delaware (the "Certificate
of Merger"), in accordance with the applicable provisions of
Delaware Law (the time of acceptance by the Secretary of the State
of Delaware of such filing shall be referred to as the "Effective
Time").
(c) Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, except as otherwise
agreed to pursuant to the terms of the Purchase Agreement, all the
property, rights, privileges, powers and franchises of the Merger
Subsidiaries shall vest in the Surviving Company, and all debts,
liabilities and duties of the Merger
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Subsidiaries shall become the debts, liabilities and duties of the
Surviving Company.
(d) Effect on Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of the Merger
Subsidiaries, Seller, the Company or the holders of any securities
of the capital stock of the Merger Subsidiaries, each issued and
outstanding share of capital stock of the Merger Subsidiaries
shall be converted into the right to receive twenty hundredths
(.20) of a fully paid and nonassessable unit of the Company's
membership interests. Each unit of the Company's membership
interests immediately prior to the Effective Time will continue to
be an identical outstanding unit of the Surviving Company.
(e) Taking of Necessary Action; Further Action. If at any time
after the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement and to vest
the Surviving Company with full right, title and possession to all
assets, property, rights, privileges, powers and franchises of the
Merger Subsidiaries, Seller, the Company, and the Merger
Subsidiaries and the officers and directors of Seller, the
Company, and the Merger Subsidiaries are fully authorized in the
name of their respective corporations or other entities to take,
and will take, all such lawful and necessary action.
5. Amendment to Form of Contribution Agreement. Schedule I to the Form of
Contribution Agreement (Exhibit A to the Purchase Agreement) is hereby amended
to add a new section (n), reading as follows:
"(n) the membership interests in Micron Government Computer
Systems, LLC."
6. Amendment. Except as affected by this Amendment, the Purchase
Agreement is unchanged and continues in full force and effect. All references to
the Purchase Agreement shall refer to the Purchase Agreement as amended by this
Amendment. This Amendment shall be binding upon and inure to the benefit of each
of the undersigned and their respective successors and permitted assigns.
7. Governing Law. The validity, construction and performance of this
Amendment and any Action arising out of or relating to this Amendment shall be
governed by the Laws of the State of Delaware, without regard to the Laws of the
State of Delaware as to choice or conflict of Laws.
8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single agreement.
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9. Facsimile Signatures. This Amendment and any other document or
agreement executed in connection herewith (other than any document for which an
originally executed signature page is required by law) may be executed by
delivery of a facsimile copy of an executed signature page with the same force
and effect as the delivery of an originally executed signature page. In the
event any party delivers a facsimile copy of a signature page to this Amendment
or any other document or agreement executed in connection herewith, such party
shall deliver an originally executed signature page within three (3) business
days of delivering such facsimile signature page or at any time thereafter upon
request; provided, however, that the failure to deliver any such originally
executed signature page shall not affect the validity of the signature page
delivered by facsimile, which has and shall continue to have the same force and
effect as the originally executed signature page.
10. Warranty of Authority. Each of the individuals signing this Amendment
on behalf of a party hereto warrants and represents that such individual is duly
authorized and empowered to enter into this Amendment and bind such party
hereto.
11. Severability. If any provision of this Amendment, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, the
remainder of this Amendment and application of such provision to other persons
or circumstances will be interpreted so as reasonably to effect the intent of
the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Amendment with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provisions.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO FIRST AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT]
IN WITNESS WHEREOF, each of the parties has executed this Amendment as of
the date first set forth above.
"PURCHASER":
GTG PC Holdings, LLC
By: /s/ XXXX XXXXX XXXXX
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Its: Manager
"SELLER":
Micron Electronics, Inc.
By: /s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
Its: Sr. Vice President and CFO
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