EXHIBIT 2.2
AMENDMENT NO. 1 OF THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT NO. 1 OF THE AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION ("Amendment") is entered into as of September 30, 2001, by and
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among NETOPIA, INC., a Delaware corporation ("Parent"), AMAZON MERGER
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CORPORATION, a Delaware corporation and wholly-owned subsidiary of Parent
("Merger Sub"), CAYMAN SYSTEMS, INC., a Massachusetts corporation (the
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"Company"), the holders of a Note Majority (as defined below) and Xxxxxxx
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Xxxxxx, an individual residing in Massachusetts, as Securityholders'
Representative. Capitalized terms not otherwise defined in this Amendment have
the meaning given them in the Agreement and Plan of Merger and Reorganization,
dated as of September 19, 2001, by and among Parent, Merger Sub, the Company,
certain Company Note Holders and the Securityholders' Representative (the
"Merger Agreement").
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RECITALS
A. Pursuant to Section 8.03 of the Merger Agreement, the Merger
Agreement may be amended at any time prior to the Effective Time by an
instrument in writing signed by each of the parties thereto.
B. Pursuant to Section 2.07 of the Merger Agreement, the Merger
Agreement may be amended by the Company on behalf of the Company Note Holders
party thereto without any further action by such Company Note Holders; provided,
however, that any amendment which adversely affects such Company Note Holders
shall require the written consent of the holders of a majority in principal
amount of the outstanding Company Promissory Notes (a "Note Majority").
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C. Parent, Merger Sub, the Company, a Note Majority and the
Securityholders' Representative desire to amend certain provisions of the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, Parent, Merger Sub, the Company, a Note Majority and the
Securityholders' Representative hereby agree as follows:
1. Section 1.04(a) of the Merger Agreement is hereby amended such
that, at the Effective Time, the Amended and Restated Articles of Organization
of the Company as the Surviving Corporation shall be amended as set forth in the
Articles of Merger, a copy of which is attached hereto as Exhibit A.
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2. Section 1.04(b) of the Merger Agreement is hereby amended such
that, at the Effective Time, the Bylaws of the Company as the Surviving
Corporation shall be in the form attached hereto as Exhibit B.
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3. Section 2.02(a) of the Merger Agreement is hereby amended in its
entirety to read as follows:
No later than two (2) business days and no earlier than ten (10) business
days prior to the Closing Date, the Company shall prepare a balance sheet
dated as of October 1, 2001 (the "Closing Balance Sheet") and a calculation
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of the estimated Excess Company Liabilities (as defined in Section 2.02(n))
and Company Expenses (as defined in Section 2.02(n)). The Aggregate Merger
Consideration deliverable at the Closing shall be decreased by (i) the
estimated Excess Company Liabilities, if any, and (ii) the estimated
Company Expenses. The Closing Balance Sheet and the calculation of Excess
Company Liabilities and Company Expenses (x) shall be prepared in
accordance with U.S. GAAP (as defined in Section 3.08) applied on a
consistent basis with those used in preparing the Audited, Unaudited and
Interim Financial Statements (as defined in Section 3.08) and (y) shall
include the same line items as the Reference Balance Sheet (as defined in
Section 3.08).
4. Section 2.02(b) of the Merger Agreement is hereby amended in its
entirety to read as follows:
As soon as practicable, but in no event later than sixty (60) days
following the Closing, Parent shall prepare a calculation of Excess Company
Liabilities and Company Expenses as of October 1, 2001 (the "Final
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Adjustment Calculations").
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5. Section 2.02(n)(i) of the Merger Agreement is hereby amended in
its entirety to read as follows:
"Excess Company Liabilities" means the amount by which the sum of the
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following exceeds five million five hundred thousand dollars ($5,500,000):
(A) The Company's current liabilities as of October 1, 2001 as shown
on the Closing Balance Sheet (excluding (1) any such liabilities related to
(a) that certain Loan and Security Agreement dated as of February 22, 2001
by and between the Company and Silicon Valley Bank, as amended (the "SVB
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Facility"), (b) the Company Promissory Notes and (c) the severance
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obligations of the Company referred to in Section 2.02(n)(i)(C) below, (2)
anything included in the definition of Company Expenses in Section
2.02(n)(ii) below, (3) any adjustments to the Company's reported
liabilities made based upon consultation with, and with the concurrence of,
Parent's auditors and financial personnel and (4) any such liabilities that
could have otherwise been satisfied using amounts available under the SVB
Facility (without any change to or waiver of the eligible receivables
percentage or any other debt eligibility formula in effect as of September
19, 2001) prior to the Closing);
(B) Any other liabilities of the Company as of October 1, 2001 not
reflected on the Closing Balance Sheet, such as purchase and other
contractual commitments (excluding any such liabilities related to (1) that
certain Lease Agreement dated as of March 28, 2000 by and between Concord
Opco, L.L.C. and the Company and that certain Sublease dated as of March
30, 2000 by and
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between Xxxxxxx Kodak Company and the Company, (2) the Company's
existing commitments with Celestica, Inc., including any unpaid obligations
or any unused or unusable inventory or material acquired or to be acquired
from Celestica, Inc. (the "Celestica Liabilities"), (3) the Company's
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existing commitments with Alcatel Alsthom S.A. ("Alcatel"), including any
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unused or unusable Alcatel chip sets in Parent's inventory or any other
related liabilities to Alcatel (the "Alcatel Liabilities"), (4) executory
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obligations under customer contracts and strategic partner contracts and
(5) assets that are expected to benefit or be used by the Surviving
Corporation in the ordinary course of business or to contracts that have
been disclosed in the Company Disclosure Schedule); and
(C) Any severance payments or other arrangements payable by the
Company to any of its employees terminated in connection with, or in
contemplation of, the Merger to be made pursuant to Section 6.04(g) hereof.
6. Section 2.07(a)(ii) of the Merger Agreement is hereby amended in
its entirety to read as follows:
amend the Notes Purchase Agreement such that as of the Effective Time the
Company Note Holders will be entitled to receive, in complete and full
satisfaction of all obligations under the Company Promissory Notes, both
(A) an aggregate of four million three thousand ($4,003,000) in outstanding
principal plus any accrued interest thereon as set forth in the Company
Promissory Notes and (B) an additional payment in the aggregate amount of
six hundred seventy-five thousand dollars ($675,000) or such lesser amount
as mutually agreed upon between Parent and the Company (subject to
reduction for any applicable withholding taxes) to be paid in the manner
requested in writing by a Note Majority.
7. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
8. This Amendment when executed by Parent, Merger Sub, the Company,
a Note Majority and the Securityholders' Representative as of the date hereof
shall have been effected in accordance with Sections 2.07 and 8.03 of the Merger
Agreement and accordingly shall be binding upon each such party.
9. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to applicable principles
of conflicts of law.
10. The Merger Agreement and this Amendment and the documents
referred to therein and herein constitute the entire agreement between the
parties hereto pertaining to the subject matter thereof and hereof.
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IN WITNESS WHEREOF, each of Parent, Merger Sub, the Company, a Note
Majority and the Securityholders' Representative has caused this Agreement to be
executed and delivered by its respective officer or officers or other duly
authorized signatory as of the date first written above.
NETOPIA, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
President and Chief Executive Officer
AMAZON MERGER CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
President
CAYMAN SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx,
President and Chief Executive Officer
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx,
Treasurer
SIGNATURE PAGE TO AMENDMENT NO. 1 OF THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
HOLDERS OF A NOTE MAJORITY:
XXXXXXX RIVER PARTNERSHIP IX, A LIMITED
PARTNERSHIP
By: Xxxxxxx River IX GP Limited Partnership,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: General Partner
XXXXXXX RIVER PARTNERSHIP IX-A, A LIMITED
PARTNERSHIP
By: Xxxxxxx River IX GP Limited Partnership,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: General Partner
XXXXXXX RIVER PARTNERSHIP IX-B LLC
By: Xxxxxxx River Friends VII, Inc., Manager
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: President
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XXXXXXX RIVER PARTNERSHIP IX-C LLC
By: Xxxxxxx River Friends VII, Inc., Manager
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
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Title: President
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SIGNATURE PAGE TO AMENDMENT NO. 1 OF THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
HOLDERS OF A NOTE MAJORITY:
ANACONDA OPPORTUNITY FUND, L.P.
By: ANACONDA CAPITAL, L.P.
Title: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Managing Partner
SIGNATURE PAGE TO AMENDMENT NO. 1 OF THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
SECURITYHOLDERS' REPRESENTATIVE
/s/ Xxxxxxx X. Xxxxxx, Xx.
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Xxxxxxx Xxxxxx, solely as Securityholders'
Representative
SIGNATURE PAGE TO AMENDMENT NO. 1 OF THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
Exhibit A
Articles of Merger
Exhibit B
Bylaws of Surviving Corporation
