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EXHIBIT 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT")
is made and entered into as of February 7, 2001, by and among Emulex
Corporation, a Delaware corporation ("PARENT"), GEMX Network Sub, Inc., a
Massachusetts corporation and a wholly owned subsidiary of Parent ("MERGER
Sub"), Giganet, Inc., a Massachusetts corporation (the "COMPANY"), and Xxxxx
Xxxxxxx as Stockholder Representative.
RECITALS
WHEREAS, Parent, Merger Sub, the Company and the Stockholder
Representative (each a "PARTY" and collectively, the "PARTIES") have previously
entered into that certain Agreement and Plan of Merger, dated as of December 7,
2000 (the "AGREEMENT").
WHEREAS, the parties hereto wish to amend certain provisions of the
Agreement as described in this Amendment
AGREEMENTS
In consideration of the mutual covenants herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendment of Section 2.3. The Parties agree that subsections 2.3(a)
and (b) of the Agreement are hereby amended to read as follows:
"(a) No Employee Holder (as hereinafter defined) may, directly or
indirectly, sell, offer to sell, contract to sell, grant an option to
purchase, pledge, assign or make any other disposition or transfer of
(other than bona fide gifts to donees who agree in writing to be
similarly bound) (collectively, a "TRANSFER") any shares of Parent
Common Stock received by such Employee Holder as part of the Merger
Consideration or upon exercise of Substitute Options (as defined in
Section 6.7 of this Agreement) (collectively, the "EMPLOYEE RESTRICTED
SHARES") except as follows: (i) one-third (1/3) of each Employee
Holder's Employee Restricted Shares may be Transferred at any time after
the Effective Time, (ii) one-third (1/3) of each Employee Holder's
Employee Restricted Shares may be Transferred at any time after nine
months following the Effective Time, and (iii) the remainder of each
Employee Holder's Employee Restricted Shares of Parent Common Stock may
be Transferred at any time after fifteen (15) months following the
Effective Time; provided, however, that Parent, in its sole and absolute
discretion, may waive in writing the restrictions on Transfer with
respect to any Employee Holder. For purposes of this Agreement, an
"EMPLOYEE HOLDER" shall mean any person who is an employee of the
Company immediately prior to the Effective Time; provided, however, that
(1) Xxxxxxxxx Xxxxxx and Xxxxx Xxxxxx shall be deemed to be Non-Employee
Holders pursuant to this Agreement and (2) Xxxxx Xxxxxxxx shall be
deemed to be a Non-Employee Holder pursuant to this Agreement with
respect to the shares of Parent Stock received by him upon the exchange
of Company Preferred Stock held by Xx. Xxxxxxxx as of the Effective
Time.
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(b) No Non-Employee Holder (as hereinafter defined) may effect a
Transfer of any shares of Parent Common Stock received by such
Non-Employee Holder as part of the Merger Consideration (the
"NON-EMPLOYEE RESTRICTED SHARES") except as follows: (i) one-half (1/2)
of each Non-Employee Holder's Non-Employee Restricted Shares may be
Transferred at any time after ninety (90) days following the Effective
Time, and (ii) the remainder of each Non-Employee Holder's Non-Employee
Restricted Shares may be Transferred at any time after one hundred
eighty (180) days following the Effective Time. Notwithstanding the
foregoing restrictions, Parent shall release from the restrictions on
Transfer (i) any Non-Employee Restricted Shares that are sold in an
offering to be underwritten by one or more investment banks of Parent's
choice (the "UNDERWRITTEN PUBLIC OFFERING") or which are privately
placed with institutional or other investors in one or more transactions
approved in writing by Parent (a "PRIVATE PLACEMENT"); provided that, in
either case, such Underwritten Public Offering or Private Placement
shall be on such terms and conditions as are customary and usual in
transactions of a similar nature; and (ii) effective upon the closing of
any Private Placement, that number of Non-Employee Restricted Shares
held by Non-Employee Holders other than Non-Employee Preferred Holders
(as defined in subsection 2.4(b)(ii)) as equals the total number of
Non-Employee Restricted Shares held by each such Holder multiplied by a
fraction, the numerator of which is the number of Non-Employee
Restricted Shares included in the Private Placement and the denominator
of which is the aggregate number of Non-Employee Restricted Shares held
by all Non-Employee Holders participating in the Private Placement. For
purposes of this Agreement, a "NON-EMPLOYEE Holder" shall mean a Company
Stockholder other than an Employee Holder."
2. Amendment of Section 2.4.
(a) The Parties agree that Section 2.4 of the Agreement is hereby
amended to include a new subsection (i) which reads as follows:
"(i) Notwithstanding anything to the contrary contained in this
Agreement, nothing in this Agreement shall be deemed to require Parent
to initiate or complete an Underwritten Public Offering or to facilitate
a Private Placement of any Non-Employee Restricted Shares; provided,
however, that in the event the Parent does not complete an Underwritten
Public Offering or facilitate a Private Placement of Non-Employee
Restricted Shares within ninety (90) days of the Effective Time, then
Parent agrees that the period of days set forth in the last sentence of
Section 2.4(d) shall be extended from ninety (90) days to one hundred
twenty (120) days after the Effective Time."
(b) The Parties agree that subsection 2.4(b) of the Agreement is hereby
amended to read as follows:
"(b) The resale of at least one-half of the Non-Employee Restricted
Shares pursuant to the registration statement described in (a) above may
be made pursuant to an Underwritten Public Offering or Private
Placement, which underwriting or private placement shall be completed on
or before ninety (90) days following the Closing Date.
(i) In the event Parent elects to proceed with an Underwritten
Public Offering, Parent shall notify each Non-Employee Holder and
each Non-Employee Holder shall notify Parent in writing within
twenty (20) days prior to the proposed closing of the Underwritten
Public Offering, or such earlier period as the managing underwriter
of an Underwritten Public Offering shall require, as to the number
of Non-Employee Restricted Shares that the Non-Employee Holder
wishes to have registered in the Underwritten Public Offering (the
"REQUESTED SHARES"). All of the Requested Shares shall be included
in such Underwritten
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Public Offering, unless the underwriters shall advise the Parent in
writing that marketing factors require a limitation on the number of
securities to be underwritten (including Requested Shares), in which
case the Parent shall advise the Stockholder Representative, and the
number of shares to be included in the Underwritten Public Offering
shall be allocated, first to the Non-Employee Holders holding
Requested Shares on a pro rata basis based on the total number of
Requested Shares held by each such Non-Employee Holder; and second,
to any other holders of Parent Shares; provided, however, that in no
event shall the number of Requested Shares permitted to be included
in the Underwritten Public Offering be reduced below one-quarter of
the aggregate number of Non-Employee Restricted Shares.
(ii) In the event Parent elects to proceed with a Private Placement,
Parent shall notify each Non-Employee Holder who held Company
Preferred Stock immediately prior to the Effective Time (a
"Non-Employee Preferred Holder") and each Non-Employee Preferred
Holder shall notify Parent in writing within ten (10) days prior to
the proposed closing of the Private Placement, or such earlier
period as the investment banker(s) conducting the Private Placement
shall require, as to the number of Non-Employee Restricted Shares
that the Non-Employee Preferred Holder wishes to have included in
the Private Placement (the "Private Placement Shares"). The Parent
and investment banker(s) shall have full and complete discretion as
to (I) the aggregate number of Private Placement Shares to include
in the Private Placement and (II) a minimum number of Private
Placement Shares per Non-Employee Preferred Holder for inclusion in
the Private Placement.
(iii) If a Non-Employee Preferred Holder is not provided the
opportunity to participate in the Private Placement, concurrently
with the closing of the Private Placement, Parent shall release from
the restrictions on Transfer contained in Section 2.3(b) that number
of Non-Employee Restricted Shares held by each such Non-Employee
Preferred Holder as equals the total number of Non-Employee
Restricted Shares held by such Holder multiplied by a fraction, the
numerator of which is the number of Non-Employee Restricted Shares
included in the Private Placement and the denominator of which is
the aggregate number of Non-Employee Restricted Shares held by all
Non-Employee Holders participating in the Private Placement. If a
Non-Employee Preferred Holder is provided the opportunity to
participate in the Private Placement but fails to do so, such
Holder's Non-Employee Restricted Shares shall not be released early
from the transfer restrictions contained in Section 2.3(b)."
(c) The Parties agree that subsection 2.4(c) of the Agreement is hereby
amended by replacing the first sentence of subsection 2.4(c) with the following:
"(c) In addition to the registration contemplated by (a) above, as soon
as reasonably possible following the Effective Time (but in any event
within fifteen (15) days following the Effective Time), Parent shall
file with the Securities Exchange Commission (the "SEC") a registration
statement on Form S-8 under the Securities Act (or any successor form)
or other appropriate form with respect to the Parent Common Stock
issuable upon exercise of Substitute Options."
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(d) The Parties agree that subsection 2.4(e) of the Agreement is hereby
amended to read as follows:
"(e) Parent will pay any and all expenses incident to Parent's
performance of or compliance with its obligations under this Section
2.4, including, without limitation, all registration and filing fees
(including NASD or Nasdaq Stock Market fees), all printing expenses,
fees and disbursements of Parent's counsel and accountants and the fees
and expenses of one counsel representing all of the Company Stockholders
whose Parent Common Stock is being registered in connection with an
Underwritten Public Offering or being privately placed in connection
with a Private Placement; provided, however, that Parent shall not be
required to pay any underwriters' discounts or commissions associated
with the sale of such Parent Common Stock. Parent agrees to provide each
holder of Parent Common Stock whose shares are so registered with as
many copies of the prospectus contained in any registration statement
filed pursuant to this Section 2.4 as may be reasonably requested."
(e) The Parties agree that subsection 2.4(h) of the Agreement is hereby
amended by replacing the first phrase of subsection 2.4(h)(i) with the
following:
"(i) Indemnification by Parent. Parent shall indemnify and hold
harmless each Company Stockholder whose Shares of Parent Common Stock
are included in any registration or private placement pursuant to
Section 2.4(a) or (b) hereof (any such included shares, "Registrable
Securities"), its officers, managers, directors and partners, and each
controlling person of any of the foregoing, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of
or based on:"
3. Amendment of Section 9.1. The Parties agree that subsection 9.1(g) of
the Agreement is hereby amended to read as follows:
"(g) By written notice from the Company or Parent, provided the
terminating party is not in material breach of its representations and
warranties or covenants hereunder, if the stockholders of the Company
fail to approve this Agreement and the Merger either (i) at any meeting
of stockholders held for the purposes thereof, or (ii) if no such
stockholders meeting is called or held on or prior to March 9, 2001;
provided, however, that the Company may not terminate this Agreement
pursuant to this Section 9.1(e) if (A) any of the Company Stockholders
that execute Voting Agreements breach such stockholder's obligations
regarding the vote with respect to the Merger and this Agreement, (B) at
the time of the stockholder vote, Parent had the right to terminate
pursuant to Section 9.1(c) or (h), or (C) the stockholders meeting is
not held on or prior to March 9, 2001, due to the delay or inaction of
the Company; or"
4. Amendment of Section 10.8. The Parties agree that Section 10.8 of the
Agreement is hereby amended to include a new subsection (d) which reads as
follows:
"(d) In no event will any indemnifying party be liable for damages in
excess of the value of the aggregate Merger Consideration paid to all
Company Stockholders and holders of Company Stock Options pursuant to
the terms of this Agreement. In no event will any Company Stockholder be
liable for damages in excess of the value of the pro rata share of the
Merger Consideration received by such Company Stockholder pursuant to
the terms of this Agreement."
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5. Addition of Section 10.9. The Parties agree that Article 10 of the
Agreement is hereby amended to include a new Section 10.9 which reads as
follows:
"SECTION 10.9 Expenses of Stockholder Representative. The Company shall
indemnify and hold harmless the Stockholder Representative from any
out-of-pocket fees and expenses (including reasonable attorney fees and
accounting fees) incurred by the Stockholder Representative in
performing its duties under this Agreement and the Escrow Agreement.
Upon the request of the Stockholder Representative, the Company shall
pay directly to such third-party service providers or vendors any such
fees and expenses so incurred."
6. Amendment of Section 11.1. The address for the Company and the
Stockholder Representative for purposes of notices and other communications
under the Agreement shall be as follows:
Company:
Giganet, Inc.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Stockholder Representative:
Xxxxx Xxxxxxx
c/o Giganet, Inc.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
7. Consent of Parent to Extension. Pursuant to Section 5.5 of the Merger
Agreement, Parent hereby consents to an extension of the outside date for a
meeting of the Company's stockholders from January 31, 2001 to March 9, 2001.
8. Appointment of Stockholder Representative. Pursuant to Section 1.9 of
the Agreement, each of Xxxxxx X. Lodge and Xxxxx Xxxxxx, by virtue of their
execution of this Amendment, accept their appointment to the three-person
committee that shall constitute the Stockholder Representative. All decisions by
the Stockholder Representative shall be determined by a majority vote of the
three-person committee that comprises the Stockholder Representative. In
accordance with Section 1.9 of the Agreement, any one of Xxxxx Xxxxxxx, Xxxxxx
X. Lodge and Xxxxx Xxxxxx shall have authority to sign any documents on behalf
of the Stockholder Representative.
9. Effect of Amendment. Except as amended herein, all of the terms,
conditions, covenants and agreements of the Agreement shall remain in full force
and effect. In the event of any inconsistency or conflict between the terms of
this Amendment and the terms of the Agreement, the terms of this Amendment shall
control.
10. Miscellaneous.
(a) This Amendment may not be amended except by an instrument in writing
signed by the parties hereto.
(b) The headings contained in this Amendment are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Amendment.
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(c) This Amendment shall be governed by, and construed in accordance
with, the internal laws of State of California, without regard to the conflict
of law provisions thereof. Each of the parties hereto agrees that any action or
proceeding brought to enforce the rights or obligations of any party hereto
under this Amendment will be commenced and maintained in any court of competent
jurisdiction located in the County of Orange, State of California. Each of the
parties hereto further agrees that process may be served upon it by certified
mail, return receipt requested, addressed as more generally provided in Section
11.1 of the Merger Agreement, and consents to the exercise of jurisdiction of a
court of the State of California over it and its properties with respect to any
action, suit or proceeding arising out of or in connection with this Amendment
or the transactions contemplated hereby or the enforcement of any rights under
this Amendment.
(d) This Amendment may be executed in two or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Merger Sub, the Company and the Stockholder
Representative have caused this Amendment to be executed under seal as of the
date first written above by their respective officers thereunto duly authorized.
EMULEX CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: VP Finance, CFO
GEMX NETWORK SUB, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Treasurer
GIGANET, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: CEO
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Treasurer
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX, as Stockholder
Representative
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX, as Stockholder
Representative
/s/ Xxxxxx X. Lodge
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XXXXXX X. LODGE, as Stockholder
Representative
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