1
EXHIBIT 2.3
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 2 to Agreement and Plan of Merger ("Amendment") is made
as of this 16th day of January, 2001, by and among New Focus, Inc., a Delaware
corporation ("Parent"), JCA Acquisition Corporation, a California corporation
and wholly-owned subsidiary of Parent ("Merger Sub"), JCA Technology, Inc., a
California corporation (the "Company"), Xxxxx Xxxx (the "Principal Shareholder")
and each of the other shareholders of the Company set forth on Exhibit A of the
Merger Agreement (as defined below) (together with the Principal Shareholder,
the "Company Shareholders") and amends that certain Agreement and Plan of
Merger, dated as of October 25, 2000 (the "Merger Agreement"), by and among
Parent, Merger Sub, the Company and the Company Shareholders, as amended by the
Amendment No. 1 to Agreement and Plan of Merger, dated as of December 21, 2000,
by and among Parent, Merger Sub, the Company and the Company Shareholders.
Parent, Merger Sub, the Company and the Company Shareholders are sometimes
referred to herein, individually, as a "Party," and, collectively, as the
"Parties."
RECITALS
WHEREAS, the Merger Agreement currently provides that at the Effective
Time, Merger Sub shall be merged with and into the Company and the separate
corporate existence of Merger Sub shall cease with the Company continuing as the
surviving corporation of the Merger;
WHEREAS, the Parties mutually desire that the Merger Agreement be amended
pursuant to the terms hereof to provide that at the Effective Time the Company
shall be merged with and into Merger Sub and the separate corporate existence of
the Company shall cease with Merger Sub continuing as the surviving corporation
of the Merger; and
WHEREAS, the Parties still wish to enter into the transactions contemplated
in the Merger Agreement on such terms contained therein, as amended hereby;
NOW THEREFORE, in consideration of the foregoing, the promises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree to
modify the Merger Agreement as follows:
ARTICLE I
AMENDMENTS
A. Amendments.
1. The text "2000 Restricted Stock Plan" is replaced with the text "2001
Restricted Stock Plan" in each place it appears.
2. The text "Merger Sub with and into the Company" contained in the first
recital of the Merger Agreement shall be deleted in its entirety and the text
"the Company with and into Merger Sub" shall be inserted in lieu thereof.
2
3. Section 2.1 of the Merger Agreement is hereby amended in its entirety
to read:
"SECTION 2.1 THE MERGER. At the Effective Time and subject to and upon the
terms and conditions of this Agreement and in accordance with the CCC, the
Company shall be merged with and into Merger Sub and the separate corporate
existence of the Company shall cease. Merger Sub shall continue as the surviving
corporation (sometimes referred to herein as the "Surviving Corporation") in the
Merger and shall persist as of the Effective Time as a wholly-owned subsidiary
of Parent."
4. Section 2.5 of the Merger Agreement is hereby amended in its entirety
to read:
"SECTION 2.5 ARTICLES OF INCORPORATION; BYLAWS.
(a) At the Effective Time and without any further action on the part of
the Company or Merger Sub, the articles of incorporation of Merger Sub shall be
the articles of incorporation of the Surviving Corporation following the
Effective Time.
(b) At the Effective Time and without any further action on the part of
the Company or Merger Sub, the bylaws of Merger Sub shall be the bylaws of the
Surviving Corporation following the Effective Time."
5. Section 2.6 of the Merger Agreement is hereby amended in its entirety
to read:
"SECTION 2.6 DIRECTORS AND OFFICERS. The directors and officers of Merger
Sub immediately prior to the Effective Time shall be the initial directors and
officers, respectively, of the Surviving Corporation from and after the
Effective Time, each to hold office in accordance with the Articles of
Incorporation and the Bylaws of the Surviving Corporation until their successors
are elected or appointed and qualified or until their resignation or removal."
6. The text "2001" is inserted immediately before the text "Reserved" in
the fourth line of Section 3.16(k).
7. The text of Section 6.20 of the Merger Agreement is hereby deleted in
its entirety and the text "[Reserved]" shall be inserted in lieu thereof.
8. The text "(if such approval is required under the current rules
applicable to such exchange in order for such shares to be tradable thereon)"
shall be inserted immediately following the word "Market" in the third line of
Section 7.1(f).
9. The contact information for Parent, Merger Sub and the Company
(post-Closing) contained in Section 10.1 of the Merger Agreement is amended in
its entirety to read as follows:
"5215 Xxxxxxx Xxx., Xxxxx 000
Xxx Xxxx, XX 00000-0000
Attention: President
Fax No.: (000) 000-0000"
2
3
10. The text "No certificates for the Restricted Stock shall be tendered
at the Closing. At the Closing, each share of Restricted Stock shall be
cancelled on the books of the Company and each grantee thereof shall be entitled
to receive the consideration therefor described in Section 2.7(a), after giving
effect to any required Tax withholdings, without any action on the part of such
grantee." shall be inserted immediately following the first sentence of Section
2.9(a).
11. Section 3.5(a) of the Company Disclosure Schedule is hereby deleted in
its entirety and replaced with a new Section 3.5(a) attached hereto as Exhibit
1.
12. The text "400,000" set forth opposite Xxxxxx & Xxxxxxx' name on
Section 6.15 of the Company Disclosure Schedule is hereby deleted and the text
"450,000" is inserted in lieu thereof.
13. Section 6.16 of the Company Disclosure Schedule is hereby deleted in
its entirety and replaced with a new Section 6.16 attached hereto as Exhibit 2.
14. The Recital A of the form of Escrow Agreement attached to the Merger
Agreement as Exhibit C thereto is hereby amended in its entirety to read:
"Parent is acquiring all of the capital stock of the Company pursuant to an
Agreement and Plan of Merger, dated as of October 25, 2000, by and among Parent,
JCA Acquisition Corporation, a California corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), the Company and the holders of the common
stock, no par value per share of the Company (the "Company Shareholders"), as
amended by an Amendment No. 1 to Agreement and Plan of Merger, dated December
21, 2000, among Parent, Merger Sub, the Company and the Company Shareholders and
as further amended by an Amendment No. 2 to Agreement and Plan of Merger, dated
January 16, 2001, among Parent, Merger Sub, the Company and the Company
Shareholders (such agreement, as so amended, the "Merger Agreement")."
15. The first recital of the form of Employment Agreement attached to the
Merger Agreement as Exhibit E thereto is hereby amended in its entirety to read:
"WHEREAS, in connection with the transactions contemplated by that certain
Agreement and Plan of Merger, dated as of October 25, 2000, among Parent, JCA
Acquisition Corporation, a California corporation and a wholly-owned subsidiary
of Parent ("Merger Sub"), the Company and the shareholders of the Company party
thereto (the "Company Shareholders"), as amended by an Amendment No. 1 to
Agreement and Plan of Merger, dated December 21, 2000, among Parent, Merger Sub,
the Company and the Company Shareholders and as further amended by an Amendment
No. 2 to Agreement and Plan of Merger, dated January 16, 2001, among Parent,
Merger Sub, the Company and the Company Shareholders (such agreement, as so
amended, the "Merger Agreement"), the Company will be merged with and into
Merger Sub; and"
16. The first sentence of Recital C of the form of Non-Competition
Agreement attached to the Merger Agreement as Exhibit F thereto is hereby
amended in its entirety to read:
"Pursuant to the Agreement and Plan of Merger, dated as of October 25, 2000, by
and among Parent, JCA Acquisition Corporation, a California corporation and
wholly-owned
3
4
subsidiary of Parent (the "Merger Sub"), the Company and the shareholders of the
Company party thereto (the "Company Shareholders"), as amended by an Amendment
No. 1 to Agreement and Plan of Merger, dated December 21, 2000, among Parent,
Merger Sub, the Company and the Company Shareholders and as further amended by
an Amendment No. 2 to Agreement and Plan of Merger, dated January 16, 2001,
among Parent, Merger Sub, the Company and the Company Shareholders (such
agreement, as so amended, the "Merger Agreement"), Company will be merged with
and into the Merger Sub with the Merger Sub being the surviving corporation (the
"Merger"), and the issued and outstanding shares of common stock of Company will
be exchanged for the right to receive shares of common stock, par value $.001
per share, of Parent ("Parent Common Stock")."
17. The first sentence of Recital A of the form of Lock-Up Agreement
attached to the Merger Agreement as Exhibit G thereto is hereby amended in its
entirety to read:
"Pursuant to the Agreement and Plan of Merger, dated as of October 25,
2000, by and among Parent, JCA Acquisition Corporation, a California corporation
and wholly-owned subsidiary of Parent (the "Merger Sub"), JCA Technology, Inc.,
a California corporation (the "Company"), and the shareholders of the Company
party thereto (the "Company Shareholders"), as amended by an Amendment No. 1 to
Agreement and Plan of Merger, dated December 21, 2000, among Parent, Merger Sub,
the Company and the Company Shareholders and as further amended by an Amendment
No. 2 to Agreement and Plan of Merger, dated January 16, 2001, among Parent,
Merger Sub, the Company and the Company Shareholders (such agreement, as so
amended, the "Merger Agreement"), the Company will be merged with and into the
Merger Sub with the Merger Sub being the surviving corporation (the "Merger"),
and the issued and outstanding shares of common stock of the Company will be
exchanged for the right to receive shares of common stock, par value $.001 per
share of Parent ("Parent Common Stock")."
ARTICLE II
BACKGROUND
A. Definitions. All terms used herein and not otherwise defined shall
have the meanings set forth in the Merger Agreement.
B. Effect of Amendment; Effective Date. This Amendment amends certain
provisions of the Merger Agreement; to the extent that there are any
inconsistencies between this Amendment and the Merger Agreement, the terms and
conditions of this Amendment shall govern. This Amendment is limited as
specified and shall not constitute a modification, acceptance or waiver of any
other provision of the Merger Agreement. Except as otherwise expressly provided
in this Amendment, the provisions of the Merger Agreement shall remain in full
force and effect. This Amendment is effective as of the date first written above
(the "Effective Date").
4
5
ARTICLE III
BINDING COMMITMENTS OF THE PARTIES; EXECUTION
The provisions of this Amendment shall constitute binding commitments and
agreements on the part of the Parties immediately upon the execution of this
Amendment by the Parties and shall be effective as of the Effective Date. This
Amendment may be executed in counterparts, which as combined, shall be fully
binding and effective. Further, this Amendment may also be executed by facsimile
signatures (with originals to follow to the other Parties), which facsimile
signatures shall also be binding and effective.
[Signature page follows.]
5
6
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
as of the date first written above by their respective officers thereunto duly
authorized.
"Parent" "Merger Sub"
New Focus, Inc. JCA Acquisition Corporation
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxxxxx Xxx
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxx, Xx. Name: Xxxxxxx Xxx
Title: Chief Financial Officer Title: President
"Company" "Principal Shareholder"
JCA Technology, Inc.
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: President
"Company Shareholders"
XXXXX XXXX AND XXXXXX
XXXX AS TRUSTEES OF THE
CHAO FAMILY TRUST DATED
JUNE 8, 2000
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
By: /s/ Xxxxx Xxxx
------------------------------ By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx ------------------------------
Title: Trustee Name: Xxxxx Xxxx
By: /s/ Xxxxxx Xxxx
------------------------------ By: /s/ Xxxxx Xxxx
Name: Xxxxxx Xxxx ------------------------------
Title: Trustee Name: Xxxxx Xxxx
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
