EXHIBIT 2.2
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF REORGANIZATION
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is made and is effective as of September 29, 1997, by and among
Polycom, Inc., a Delaware corporation ("Polycom"), Venice Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Polycom
("Merger Sub") and ViaVideo Communications, Inc., a Delaware corporation
("ViaVideo").
WHEREAS, Polycom, Merger Sub and ViaVideo are parties to that certain
Agreement and Plan of Reorganization dated as of June 11, 1997 (the
"Reorganization Agreement"), pursuant to which Merger Sub will merge with and
into ViaVideo, with ViaVideo becoming a wholly-owned subsidiary of Polycom.
WHEREAS, the parties desire to enter into this Agreement to provide for the
amendment and addition of various sections of the Reorganization Agreement
pursuant to Section 7.4 of the Reorganization Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties, intending to be legally
bound, hereto hereby agree as follows:
1. AMENDMENT OF SUBSECTION 1.4(A). Subsection 1.4(a) to the Reorganization
Agreement is hereby amended to read in its entirety as follows:
(a) At the Effective Time, the Certificate of Incorporation of Merger
Sub, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by Delaware Law and such Certificate of Incorporation;
provided, however, that Article I of the Certificate of Incorporation of the
Surviving Corporation shall be amended to read as follows: "The name of the
corporation is ViaVideo Communications, Inc."
2. ADDITION OF SECTION 1.12. Section 1.12 shall be added to the
Reorganization Agreement to read in its entirety as follows:
1.12 EXEMPTION FROM REGISTRATION. The shares of Polycom Common Stock
to be issued in connection with the Merger will be issued in a transaction
exempt from registration under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of Section 4(2) thereof.
3. AMENDMENT OF SECTION 2.24. Section 2.24 of the Reorganization Agreement
is hereby amended to read in its entirety as follows:
2.24 PROXY STATEMENT; INFORMATION STATEMENT. The information supplied
by ViaVideo for inclusion in the proxy statement to be sent to the
stockholders of Polycom (the "Proxy Statement") and for inclusion in the
information statement to be sent to the stockholders of ViaVideo (the
"Information Statement") in connection with the meeting of Polycom's
stockholders to consider the Merger (the "Polycom Stockholders Meeting") and
in connection with the meeting of ViaVideo's stockholders to consider the
Merger (the "ViaVideo Stockholders Meeting"), respectively, shall not, on
the date the Proxy Statement is first mailed to Polycom's stockholders, on
the date the Information Statement is first mailed to ViaVideo's
stockholders, at the time of the Polycom Stockholders Meeting, the time of
the ViaVideo Stockholders Meeting and at the Effective Time, contain any
statement which, at such time, is false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
the statements made therein, in light of the circumstances under which they
are made, not false or misleading; or omit to state any material fact
necessary to correct any statement in any earlier communication with respect
to the solicitation of proxies for the Polycom Stockholders Meeting or the
ViaVideo Stockholders Meeting which has become false or misleading. If at
any time prior to the Effective Time any event or information should be
discovered by ViaVideo which should be set forth in a supplement to the
Proxy Statement or Information Statement, ViaVideo will promptly inform
Polycom or Merger Sub. Notwithstanding the foregoing, ViaVideo makes no
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representation, warranty or covenant with respect to any information
supplied by Polycom or Merger Sub which is contained in any of the foregoing
documents.
4. AMENDMENT OF SECTION 3.15. Section 3.15 to the Reorganization Agreement
is hereby amended to read in its entirety as follows:
3.15 PROXY STATEMENT; INFORMATION STATEMENT. The information supplied
by Polycom or Merger Sub for inclusion in Proxy Statement and for inclusion
in the Information Statement in connection with the Polycom Stockholders
Meeting and in connection with the ViaVideo Stockholders Meeting shall not,
on the date the Proxy Statement is first mailed to Polycom's stockholders,
on the date the Information Statement is first mailed to ViaVideo's
stockholders, at the time of the Polycom Stockholders Meeting, the time of
the ViaVideo Stockholders Meeting and at the Effective Time, contain any
statement which, at such time, is false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
the statements made therein, in light of the circumstances under which they
are made, not false or misleading; or omit to state any material fact
necessary to correct any statement in any earlier communication with respect
to the solicitation of proxies for the Polycom Stockholders Meeting or the
ViaVideo Stockholders Meeting which has become false or misleading. If at
any time prior to the Effective Time any event or information should be
discovered by Polycom or Merger Sub which should be set forth in a
supplement to the Proxy Statement or Information Statement, Polycom or
Merger Sub will promptly inform ViaVideo. Notwithstanding the foregoing,
Polycom and Merger Sub makes no representation, warranty or covenant with
respect to any information supplied by ViaVideo which is contained in any of
the foregoing documents.
5. AMENDMENT OF SUBSECTION 4.3(B). Subsection 4.3(b) to the Reorganization
Agreement is hereby amended to read in its entirety as follows:
(b) ISSUANCE OF SECURITIES. Issue, deliver, sell, authorize or propose
the issuance, delivery or sale of, or purchase or propose the purchase of,
any shares of its capital stock or securities convertible into, or
subscriptions, rights, warrants or options to acquire, or other agreements
or commitments of any character obligating it to issue any such shares or
other convertible securities, other than (i) the issuance of shares of its
Common Stock pursuant to the exercise of stock options, warrants or other
rights therefor outstanding as of the date of this Agreement, or (ii) the
grant of stock options to service providers in the ordinary course of
business, provided that the aggregate of (i) and (ii) above shall not exceed
127,000 shares after the date hereof;
6. AMENDMENT OF SECTION 5.1. Section 5.1 to the Reorganization Agreement
is hereby amended to read in its entirety as follows:
5.1 PROXY STATEMENT; INFORMATION STATEMENT. As promptly as practicable
after the execution of this Agreement, Polycom and ViaVideo shall prepare,
and Polycom shall file with the SEC, preliminary proxy materials relating to
the approval of the Merger and the transactions contemplated hereby by the
stockholders of Polycom and, as promptly as practicable following receipt of
SEC comments thereon, Polycom shall file with the SEC revised proxy
materials which comply in form with applicable SEC requirements and shall
use all reasonable efforts to cause the Proxy Materials to be approved by
the SEC as soon thereafter as practicable; provided, however, that neither
Polycom nor ViaVideo shall be obligated to agree to account for the Merger
as a "purchase" in order to cause the Proxy Materials to be approved by the
SEC. The Proxy Statement shall include the recommendation of the Polycom's
Board of Directors in favor of the Merger; provided that such recommendation
may not be included, or may be withdrawn if previously included, if
Polycom's Board of Directors believes in good faith and, upon written advice
of its outside legal counsel, shall determine that to include such
recommendation, or not withdraw such recommendation if previously included,
would constitute a breach of Polycom's Board of Directors' fiduciary duty
under applicable law. Polycom will update and amend the Proxy Materials to
the extent necessary prior to the closing.
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7. AMENDMENT OF SECTION 5.2. Section 5.2 to the Reorganization Agreement
is hereby amended to read in its entirety as follows:
5.2. MEETING OF STOCKHOLDERS.
(a) ViaVideo shall promptly after the date hereof take all action
necessary in accordance with Delaware Law and its Certificate of
Incorporation and Bylaws to convene the ViaVideo Stockholders Meeting
within 45 days of the Proxy Statement being approved by the SEC. ViaVideo
shall consult with Polycom and use all reasonable efforts to hold the
ViaVideo Stockholders Meeting on the same day as the Polycom Stockholders
Meeting and shall not postpone or adjourn (other than for the absence of
a quorum) the ViaVideo Stockholders Meeting without the consent of
Polycom. Subject to Section 5.1, ViaVideo shall use its best efforts to
solicit from stockholders of ViaVideo proxies in favor of the Merger and
shall take all other action necessary or advisable to secure the vote or
consent of stockholders required to effect the Merger.
(b) Polycom shall promptly after the date hereof take all action
necessary in accordance with Delaware Law and its Certificate of
Incorporation and Bylaws to convene the Polycom Stockholders Meeting
within 45 days of the Proxy Statement being approved by the SEC. Polycom
shall consult with ViaVideo and use all reasonable efforts to hold the
Polycom Stockholders Meeting on the same day as the ViaVideo Stockholders
Meeting and shall not postpone or adjourn (other than for the absence of
a quorum) the Polycom Stockholders Meeting without the consent of
ViaVideo. Subject to Section 5.1, Polycom shall use its best efforts to
solicit from stockholders of Polycom proxies in favor of the Merger and
shall take all other action necessary or advisable to secure the vote or
consent of stockholders required to effect the Merger.
8. AMENDMENT OF SECTION 5.22. Section 5.22 to the Reorganization Agreement
is hereby amended to read in its entirety as follows:
5.22 EXPENSES. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement, the certificate of
Merger and the transactions contemplated hereby and thereby shall be paid by
the party incurring such expense; provided, however, that any out-of-pocket
expenses incurred by Target (including, without limitation, fees and
expenses of one legal counsel to the Target, financial advisors and
accountants) in excess of $175,000 (which amount shall be subject to
reasonable increases in the event of unexpected and material changes in the
scope of work required by such counsel, advisors or accountants, approval of
which shall not be unreasonably withheld) in addition to fees and expenses
of more than one legal counsel shall remain an obligation of Target's
stockholders.
9. ADDITION OF SECTION 5.27. Section 5.27 shall be added to the
Reorganization Agreement to read in its entirety as follows:
5.27 REGISTRATION RIGHTS. Polycom hereby agrees to grant to the
holders of Polycom Common Stock issued pursuant to this Agreement,
registration rights as set forth in the Declaration of Registration Rights
in the form attached hereto as EXHIBIT I.
10. AMENDMENT OF SUBSECTION 6.1(b). Subsection (b) to Section 6.1 to the
Reorganization Agreement is hereby amended to read in its entirety as follows:
(b) PROXY STATEMENT APPROVED. The SEC shall have approved the Proxy
Statement. No stop order suspending the Proxy Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the SEC and all request for
additional information on the part of the SEC shall have been complied
with to the reasonable satisfaction of the parties thereto.
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11. AMENDMENT OF SECTION 9.1. Section 9.1 to the Reorganization Agreement
is hereby amended to read in its entirety as follows:
9.1 SURVIVAL AT EFFECTIVE TIME. The representations, warranties and
agreements set forth in this Agreement shall survive after the Effective
Time and shall terminate at the earlier of (i) twelve (12) months after the
Effective Time or (ii) the issuance of Polycom's audited financial
statements for the year ending December 31, 1997 or December 31, 1998,
depending on the Closing Date, which include the results of ViaVideo (the
"Termination Date"), except that the agreements set forth in Article I,
Section 5.4 (Confidentiality), 5.7 (Pooling Accounting), 5,8 (Affiliate
Agreements), 5.13 (Employee Benefit Plans), 5.16 (Form S-8), 5.17
(Stockholder's Representation Agreement), 5.22 (Reorganization), 5.25
(Reasonable Commercial Efforts and Further Assurances), 7.3 (Expenses and
Termination Fees), 7.4 (Amendment), Article VIII and this Article IX shall
survive the Termination Date.
12. AMENDMENT OF SECTION 9.2. Section 9.2 to the Reorganization Agreement
is hereby amended to read in its entirety as follows:
9.2. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by registered or certified mail
(return receipt requested) or sent via facsimile (with confirmation of
receipt) to the parties at the following address (or at such other address
for a party as shall be specified by like notice):
(a) if to Polycom or Merger Sub, to:
Polycom, Inc.
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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(b) if to ViaVideo, to:
ViaVideo Communications, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxx 000
Xxxxxx, XX 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx
00(xx) Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
13. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
14. GOVERNING LAW. This Amendment shall be governed and construed by and
construed in accordance with the laws of the State of California.
15. HEADINGS. Section headings in this Amendment are included herein for
the convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
16. REORGANIZATION AGREEMENT. Except as expressly amended herein, the
Reorganization Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
POLYCOM, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx
CHIEF EXECUTIVE OFFICER
VENICE ACQUISITION CORPORATION
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx
PRESIDENT
VIAVIDEO COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx
PRESIDENT
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