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 November 7, 2008, by
and among: Brocade
Communications Systems, Inc. , a Delaware corporation
(“ Parent ”); Falcon Acquisition Sub, Inc.
, a Delaware corporation and a wholly-owned subsidiary of Parent
(“ Merger Sub ”); and Foundry Networks, Inc. , a
Delaware corporation (the “ Company
”).
A.
Parent, Merger Sub and the Company are parties to that certain
Agreement and Plan of Merger dated as of July 21, 2008 (the
“ Merger Agreement ”).
B.
Section 9.1 of the Merger Agreement permits the parties to
amend the Merger Agreement, with the approval of the respective
boards of directors of the Company and Parent, by an instrument in
writing signed on behalf of each of Parent, Merger Sub and the
Company.
C.
The parties desire to amend the Merger Agreement as provided in
this Amendment.
D.
The respective boards of directors of Parent, Merger Sub and the
Company have approved this Amendment.
E.
In order to induce Parent to enter into this Amendment and cause
the Merger to be consummated, certain stockholders of the Company
are amending the Voting Agreements entered into by such
stockholders in favor of Parent.
The parties to
this Amendment, intending to be legally bound, agree as
follows:
1.1 Definitions; References. Each capitalized term used but
not defined in this Amendment shall have the meaning assigned to
such term in the Merger Agreement. Each reference in the Merger
Agreement (including references added to the Merger Agreement by
means of this Amendment) to “hereof,”
“hereunder,” “hereby,” “this
Agreement” or any similar term shall, from and after the date
of this Amendment, refer to the Merger Agreement (as amended by
this Amendment). Each reference in this Amendment or in the Merger
Agreement (including references added to the Merger Agreement by
means of this Amendment) to the “date of this
Amendment,” the “date of the Amendment” or any
similar term shall refer to November 7, 2008. Each reference
in the Merger Agreement (including references added to the Merger
Agreement by means of this Amendment) to the “date of this
Agreement”, the “date hereof” or any similar term
shall refer to July 21, 2008. Except as otherwise indicated,
all references in the Merger Agreement (including references added
to the Merger Agreement by means of this Amendment) to
“Sections” are intended to refer to Sections of the
Merger Agreement (as amended by this Amendment), and not sections
of this Amendment.
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Section 2. Amendment
to Agreement
2.1 Amendment to Recital C of the Merger Agreement. Recital
C of the Merger Agreement shall be deleted and replaced in its
entirety with the following:
“ C.
In order to induce Parent to enter into this Agreement and cause
the Merger to be consummated, certain stockholders of the Company
are executing voting agreements in favor of Parent (such voting
agreements, as they may be amended from time to time, the “
Voting Agreements ”).”
2.2 Amendment to Section 1.3 of the Merger Agreement.
The first sentence of Section 1.3 of the Merger Agreement
shall be deleted and replaced in its entirety with the
following:
“The
consummation of the transactions contemplated by this Agreement
(the “ Closing ”) shall take place at the
offices of Cooley Godward Kronish LLP, 3175 Hanover Street, Palo
Alto, California, at 10:00 a.m. (California time) on a date to
be designated by Parent after the satisfaction or waiver of the
last to be satisfied or waived of the conditions set forth in
Sections 6 and 7 (other than the conditions set forth in
Sections 6.6(b) and 7.5, which by their nature are to be
satisfied at the Closing, but subject to the satisfaction or waiver
of each of such conditions) (the date so designated by Parent, the
“ Designated Date ”), or on such other date or
at such other time or location as Parent and the Company may
mutually designate in writing. The date designated by Parent as the
Designated Date shall not be later than the earlier of
(a) December 30, 2008, and (b) the later of
December 22, 2008 and the date that is 10 business days after
the satisfaction or waiver of the last to be satisfied or waived of
such conditions. (In deciding whether to designate a date earlier
than December 22, 2008 as the Designated Date, Parent may take
into account, among other things, the respective cash balances of
Parent and the Company and the length of time needed to prepare for
the closing of the financing required to consummate the Merger.)
Notwithstanding anything to the contrary contained in this
Agreement, if there exists an uncured Financing Failure on the
Designated Date and such Financing Failure impedes the ability of
Parent or Merger Sub to obtain the Debt Financing and consummate
the Merger on the Designated Date, then (without limiting any right
the Company may have to terminate this Agreement pursuant to
Section 8.1(h) or, if applicable under the circumstances,
Section 8.1(b)): (i) the Closing shall be postponed until the
second business day after the date on which such Financing Failure
is cured; (ii) the obligations of Parent and Merger Sub to
consummate the Merger and the other transactions contemplated by
this Agreement shall remain subject to the continued satisfaction
or waiver, as of the time of the Closing, of each of the conditions
set forth in Section 6; and (iii) the obligation of the
Company to consummate the Merger and the other transactions
contemplated by this Agreement shall remain subject to the
continued satisfaction or waiver, as of the time of the Closing, of
each of the conditions set forth in
Section 7.”
2.3 Amendment to Section 1.5(a) of the Merger Agreement
. Clause “(iii)” of Section 1.5(a) of the Merger
Agreement shall be deleted and replaced in its entirety with the
following:
“
(iii) except as provided in clauses “(i)” and
“(ii)” of this Section 1.5(a) and subject to
Sections 1.5(b), 1.5(c) and 1.8, each share of Company Common
Stock outstanding immediately prior to the Effective Time shall be
converted into the right to receive $16.50 in cash (the “
Per Share Cash Amount ”); and”
2.4 Amendment to Section 1.5(b) of the Merger
Agreement. Section 1.5(b) of the Merger Agreement shall be
amended by: (a) deleting the words “and the Exchange
Ratio” from the first sentence thereof, and (b) deleting
the second sentence thereof.
2
2.5 Amendment to Section 1.5(c) of the Merger
Agreement. Section 1.5(c) of the Merger Agreement shall be
amended by deleting clause “(ii)” thereof in its
entirety and renumbering clause “(iii)”
accordingly.
2.6 Amendment to Section 1.5(d) of the Merger
Agreement. Section 1.5(d) of the Merger Agreement shall be
deleted in its entirety.
2.7 Amendment to Section 1.6 of the Merger Agreement.
Section 1.6 of the Merger Agreement shall be amended by
replacing the words “Exchange Agent” with the words
“Payment Agent”.
2.8 Amendment to Section 1.7 of the Merger Agreement.
Section 1.7 of the Merger Agreement shall be deleted and
replaced in its entirety with the following:
“
1.7 Exchange of Certificates .
(a) On or prior to the Closing Date, Parent shall appoint
Wells Fargo Shareowner Services or another institution reasonably
satisfactory to the Company to act as Payment Agent in the Merger
(the “ Payment Agent ”). Promptly after the
Effective Time, Parent shall cause to be deposited with the Payment
Agent for the benefit of the holders of Company Common Stock,
subject to Sections 1.5(c) and 1.8, the cash consideration
payable pursuant to Section 1.5. The cash amount so deposited
with the Payment Agent is referred to the “ Payment
Fund .”
(b) As soon as reasonably practicable after the Effective
Time, Parent shall cause the Payment Agent to mail to the Persons
who were record holders of Company Stock Certificates immediately
prior to the Effective Time: (i) a letter of transmittal in
customary form and containing such provisions as Parent may
reasonably specify (including a provision confirming that delivery
of Company Stock Certificates shall be effected, and risk of loss
and title to Company Stock Certificates shall pass, only upon
delivery of such Company Stock Certificates to the Payment Agent);
and (ii) instructions for use in effecting the surrender of
Company Stock Certificates in exchange for Merger Consideration.
Upon surrender of a Company Stock Certificate to the Payment Agent
for exchange, together with a duly executed letter of transmittal
and such other documents as may be reasonably required by the
Payment Agent or Parent: (A) subject to Section 1.5(c),
the holder of such Company Stock Certificate shall be entitled to
receive in exchange therefor the Merger Consideration that such
holder has the right to receive pursuant to the provisions of
Section 1.5; and (B) the Company Stock Certificate so
surrendered shall be canceled. Until surrendered as contemplated by
this Section 1.7(b), each Company Stock Certificate shall be
deemed, from and after the Effective Time, to represent only the
right to receive Merger Consideration as contemplated by
Section 1.5. If any Company Stock Certificate shall have been
lost, stolen or destroyed, Parent may, in its discretion and as a
condition precedent to the delivery of any Merger Consideration
with respect to the shares of Company Common Stock previously
represented by such Company Stock Certificate, require the owner of
such lost, stolen or destroyed Company Stock Certificate to provide
an appropriate affidavit and to deliver a bond (in customary
amount) as indemnity against any claim that may be made against the
Payment Agent, Parent or the Surviving Corporation with respect to
such Company Stock Certificate.
(c) Any portion of the Payment Fund that remains
undistributed to holders of Company Stock Certificates as of the
first anniversary of the Effective Time shall be delivered to
Parent upon demand, and any holders of Company Stock Certificates
who have not theretofore
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surrendered
their Company Stock Certificates in accordance with this
Section 1.7 shall thereafter look only to Parent for
satisfaction of their claims for Merger Consideration.
(d) Each of the Payment Agent, Parent and the Surviving
Corporation shall be entitled to deduct and withhold from any
consideration payable pursuant to this Agreement to any holder or
former holder of Company Common Stock or Company Equity Award such
amounts as may be required to be deducted or withheld from such
consideration under the Code or any provision of state, local or
foreign tax law or under any other applicable Legal Requirement. To
the extent such amounts are so deducted or withheld, such amounts
shall be treated for all purposes under this Agreement as having
been paid to the Person to whom such amounts would otherwise have
been paid.
(e) Neither Parent nor the Surviving Corporation shall be
liable to any holder or former holder of Company Common Stock or to
any other Person with respect to any Merger Consideration delivered
to any public official pursuant to any applicable abandoned
property law, escheat law or similar Legal
Requirement.”
2.9 Amendment to Sections 2.23 and 3.4 of the Merger
Agreement. Section 3.4 of the Merger Agreement and the
final paragraph of Section 2.23 of the Merger Agreement shall
each be amended by replacing the words “(as they relate to
the Form S-4 Registration Statement and the Prospectus/Proxy
Statement)” with the words “(as they relate to the
Proxy Statement)”.
2.10 Amendment to Section 2.24 of the Merger Agreement.
Section 2.24 of the Merger Agreement shall be amended by
adding the following two sentences at the end thereof:
“The
Company’s board of directors has received the written
opinions of Merrill Lynch and Houlihan Lokey Howard & Zukin
Financial Advisors Inc. (“ HLHZ ”), financial
advisors to the Company, dated November 7, 2008, to the effect
that, as of the date of such opinions and subject to the matters
set forth in such opinions, the Merger Consideration is fair, from
a financial point of view, to the stockholders of the Company,
other than Parent and its affiliates. The Company has furnished
(solely for informational purposes) copies of said written opinions
to Parent.”
2.11 Amendment to Section 2.25 of the Merger Agreement.
Section 2.25 of the Merger Agreement shall be deleted and
replaced in its entirety with the following:
“ 2.25
Financial Advisors . Except for Merrill Lynch and HLHZ, no
broker, finder or investment banker is entitled to any brokerage,
finder’s or other fee or commission in connection with the
Merger or any of the other transactions contemplated by this
Agreement based upon arrangements made by or on behalf of any of
the Acquired Corporations. The Company has delivered to Parent
accurate and complete copies of all agreements under which any such
fees, commissions or other amounts have been paid or may become
payable and all indemnification and other agreements related to the
engagement of Merrill Lynch and HLHZ.”
2.12 Amendment to Section 2.26 of the Merger Agreement.
Section 2.26 of the Merger Agreement shall be deleted and
replaced in its entirety with the following:
“ 2.26
Full Disclosure . None of the information supplied or to be
supplied by or on behalf of the Company for inclusion or
incorporation by reference in the Proxy Statement (or any amendment
or supplement thereto or restatement thereof) will, at the time the
Proxy Statement (or any amendment or supplement thereto or
restatement thereof) is filed with the SEC, at the time the Proxy
Statement (or any amendment or supplement thereto or restatement
thereof) is
4
mailed to the
stockholders of the Company or at the time of the Company
Stockholders’ Meeting (or any adjournment or postponement
thereof), contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading. The
Proxy Statement (and any amendment or supplement thereto or
restatement thereof) will comply as to form in all material
respects with the provisions of the Exchange Act and the rules and
regulations promulgated by the SEC thereunder. Notwithstanding the
foregoing, no representation or warranty is made by the Company
with respect to statements or information made, included or
incorporated by reference in the Proxy Statement (or any amendment
or supplement thereto or restatement thereof) by or about Parent or
Merger Sub supplied by Parent for inclusion or incorporation by
reference in the Proxy Statement (or any amendment or supplement
thereto or restatement thereof).”
2.13 Amendment to Section 2 of the Merger Agreement.
Section 2 of the Merger Agreement shall be amended by
inserting the following immediately after
Section 2.26:
“ 2.27
Amendment. As of the date of the Amendment, the Company has the
absolute and unrestricted right, power and authority to enter into
the Amendment and to perform its obligations under this Agreement.
As of the date of the Amendment, the board of directors of the
Company (at a meeting duly called and held) has:
(a) unanimously determined that the Merger and this Agreement
are advisable and fair to and in the best interests of the Company
and its stockholders; (b) unanimously authorized and approved
the execution and delivery by the Company of the Amendment and the
performance of this Agreement by the Company and unanimously
approved the Merger; (c) unanimously recommended the adoption
of this Agreement by the holders of Company Common Stock and
directed that this Agreement and the Merger be submitted for
consideration by the Company’s stockholders at the Company
Stockholders’ Meeting; and (d) to the extent necessary,
adopted a resolution having the effect of causing the Company not
to be subject to any state takeover law or similar Legal
Requirement that might otherwise apply to the Merger or any of the
other transactions contemplated by this Agreement. As of the date
of the Amendment, the Amendment constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to: (i) laws of general
application relating to bankruptcy, insolvency and the relief of
debtors; and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
2.28 No
Material Breach. As of the date of the Amendment, to the
Knowledge of the Company, the Company is not in material breach of
its covenants set forth in Section 5.12.”
2.14 Amendment to Section 3.5 of the Merger Agreement.
Section 3.5 of the Merger Agreement shall be deleted and
replaced in its entirety with the following:
“
3.5 [Intentionally Omitted]”
2.15 Amendment to Section 3.6 of the Merger Agreement.
Section 3.6 of the Merger Agreement shall be amended by
replacing the words “Debt Financing Letter” with the
words “Debt Commitment Letter”.
2.16 Amendment to Section 3.8 of the Merger Agreement.
Section 3.8 of the Merger Agreement shall be deleted and
replaced in its entirety with the following:
5
“ 3.8
Disclosure. None of the information supplied or to be supplied
by or on behalf of Parent for inclusion in the Proxy Statement (or
any amendment or supplement thereto or restatement thereof) will,
at the time the Proxy Statement (or any amendment or supplement
thereto or restatement thereof) is filed with the SEC, at the time
the Proxy Statement (or any amendment or supplement thereto or
restatement thereof) is mailed to the stockholders of the Company
or at the time of the Company Stockholders’ Meeting (or any
adjournment or postponement thereof), contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are
made, not misleading. Notwithstanding the foregoing, no
representation or warranty is made by Parent with respect to
statements or information made, included or incorporated by
reference in the Proxy Statement (or any amendment or supplement
thereto or restatement thereof) supplied by or on behalf of the
Company for inclusion or incorporation by reference in the Proxy
Statement (or any amendment or supplement thereto or restatement
thereof).”
2.17 Amendment to Section 3 of the Merger Agreement.
Section 3 of the Merger Agreement shall be amended by
inserting the following immediately after
Section 3.8:
“ 3.9
Term Loan Financing . As of the date of the Amendment, Parent
has delivered to the Company an accurate and complete copy of the
non-confidential portions (and a summary of the portions for which
confidential treatment has been sought by Parent with the SEC) of
the executed Credit Agreement dated as of October 7, 2008,
among Parent, Bank of America N.A., Morgan Stanley Senior Funding,
Inc. and the other lenders identified therein (the “
Credit Agreement ”). As of the date of the Amendment,
the Credit Agreement, in the form so delivered, is a legal, valid
and binding obligation of Parent and, to Parent’s Knowledge,
the other parties thereto. As of the date of the Amendment, the
Credit Agreement is in full force and effect and has not been
withdrawn or terminated or otherwise amended or modified in any
material respect. As of the date of the Amendment, Parent does not
believe that there is any valid basis for a claim that an Event of
Default (as defined in the Credit Agreement) is outstanding and
uncured under the Credit Agreement. Parent has paid any and all
fees payable by it under the Credit Agreement that are due as of
the date of the Amendment. Except for side letters, agreements,
arrangements or understandings that would not reasonably be
expected to (a) materially impair the validity of the Credit
Agreement or the ability of Parent to consummate the Merger or
(b) materially decrease the amount of the Term Loan (as
defined in the Credit Agreement), there are no side letters or
other agreements, arrangements or understandings with any lender
relating to the Term Loan to which Parent, Merger Sub or any of
their affiliates is a party as of the date of the Amendment. As of
the date of the Amendment, the conditions set forth in the Credit
Agreement are the only conditions to the obligations of the lenders
under the Credit Agreement to release the proceeds of the Term Loan
to Parent pursuant to the terms of the Credit Agreement. As of the
date of the Amendment, assuming the accuracy of the Company’s
representations and warranties set forth in this Agreement and the
Company’s compliance with its covenants and obligations set
forth in this Agreement, Parent (i) is not aware of any fact
or occurrence that makes the representations and warranties
identified in clause “(b)” of Section 4.01(II)(d)
of the Credit Agreement inaccurate in any material respect,
(ii) does not believe that it will be unable to comply on a
timely basis with any material covenant, or satisfy on a timely
basis any condition, contained in the Credit Agreement required to
be complied with or satisfied by Parent or its affiliates in order
for the proceeds of the Term Loan to be released to Parent, and
(iii) does not believe that there is any valid basis for any
portion of the proceeds of the Term Loan not to be made available
to Parent on the Closing Date.
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3.10.
Amendment. As of the date of the Amendment: (a) Parent and
Merger Sub have the absolute and unrestricted right, power and
authority to perform their obligations under this Agreement; and
(b) the execution and delivery by Parent and Merger Sub of the
Amendment and the performance by Parent and Merger Sub of this
Agreement have been duly authorized by any necessary action on the
part of Parent and Merger Sub and their respective boards of
directors. As of the date of the Amendment, the Amendment
constitutes the legal, valid and binding obligation of Parent and
Merger Sub, enforceable against them in accordance with its terms,
subject to: (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors; and
(ii) rules of law governing specific performance, injunctive
relief and other equitable remedies.
3.11 No
Material Breach. As of the date of the Amendment, to the
Knowledge of Parent, Parent is not in material breach of the Parent
Financing Covenants.”
2.18 Amendment to Section 4.2(b) of the Merger
Agreement. Section 4.2(b) of the Merger Agreement shall be
amended by inserting the following sentence after the end
thereof:
“Without
limiting the generality of the foregoing restrictions, the Company
shall (x) not permit any sales on or after the date of the
Amendment by any of the individuals identified on
Schedule 1 of the Amendment of shares of Company Common
Stock issued upon the exercise of Company Options after the date of
the Amendment, except for trades pursuant to the two Rule 10b5-1
trading plans in existence on the date of the Amendment and
identified on Schedule 2 to the Amendment, and
(y) ensure that none of the individuals identified on
Schedule 3 to the Amendment exercises any Company
Options on or after the date of the Amendment. Notwithstanding
anything to the contrary contained in clauses “(i),”
“(ii),” “(vii)” and “(xii)” of
Section 4.2(b) (but subject to the other restrictions set
forth in Section 4.2(b) and elsewhere in this Agreement),
prior to the Closing Date, the Company may (A) sell for cash,
on commercially reasonable terms in a transaction that does not
involve the incurrence of any indebtedness, the auction rate
securities held by the Company as of the date of the Amendment, and
(B) declare a dividend to its stockholders, which must be paid
to such stockholders (or deposited with the dividend paying agent)
prior to the Closing Date (and may be conditioned upon the Closing
actually occurring), up to a per share amount (the “
Specified Dividend Per Share Amount ”) determined by
dividing (1) the lesser of (x) the net cash
proceeds of the sale of such securities actually received by the
Company prior to the Closing Date (determined after deduction of
all expenses relating to such sale), and (y) $50,000,000, by
(2) the total number of outstanding shares of Company Common
Stock as of the record date for such dividend calculated on a fully
diluted basis based on the treasury stock method and assuming a
market value equal to the sum of the Per Share Cash Amount
plus the actual per share amount of the dividend, but
excluding from such calculation all Company Options and Company
RSUs held by Terminated Company Associates (as defined in Section
5.3(c)) that are unvested as of the Closing Date (after giving
effect to any acceleration of such Company Options or Company RSUs
provided for under applicable Company Contracts).”
2.19 Amendment to Section 4.3(a) of the Merger
Agreement. Section 4.3(a) of the Merger Agreement shall be
amended by inserting the following proviso at the end
thereof:
“;
provided, however , that (A) this Section 4.3(a)
shall not prohibit the Company from taking any of the actions
specified in clauses “(i),” “(ii)” and
“(iii)” of this Section 4.3(a) during the period
commencing on the date of the Amendment and ending at
11:59 p.m., California time, on November 21, 2008 (the
“ Go-Shop Period ”), and (B) if the Company
receives, during the Go-Shop Period, an Acquisition Proposal that
constitutes or is reasonably likely to lead to a Superior Offer,
then (subject to the other restrictions and limitations set forth
in Section 4.3) the Company
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may, following
the expiration of the Go-Shop Period, continue to discuss such
Acquisition Proposal with the Person that made such Acquisition
Proposal.”
2.20 Amendment to Section 5.1 of the Merger Agreement.
Section 5.1 of the Merger Agreement shall be deleted and
replaced in its entirety with the following:
“ 5.1
Proxy Statement . As promptly as practicable after the date of
this Agreement, the Company shall prepare the Proxy Statement and
cause it to be filed with the SEC. Prior to the filing of the Proxy
Statement, the Company shall give Parent a reasonable opportunity
to review and comment on the Proxy Statement in advance of filing
and shall consider in good faith the comments reasonably proposed
by Parent. The Company shall use its reasonable best efforts to
cause the Proxy Statement and any amendment or supplement thereto
or restatement thereof to comply with the applicable rules and
regulations promulgated by the SEC, to respond promptly to any
comments of the SEC or its staff and to have the Proxy Statement
cleared under the Exchange Act as promptly as practicable after it
is filed with the SEC. The Company shall use its reasonable best
efforts to cause the Proxy Statement to be mailed to the
Company’s stockholders as promptly as practicable after the
date of this Agreement, and shall cause each applicable amendment
or supplement thereto or restatement thereof to be mailed to the
Company’s stockholders as promptly as practicable after the
date of the Amendment. Parent shall promptly furnish to the Company
all information concerning Parent that may be required or
reasonably requested in connection with the preparation of the
Proxy Statement or any amendment or supplement thereto or
restatement thereof. If any event relating to Parent or its
Subsidiaries occurs, or if Parent becomes aware of any information,
that should be disclosed in an amendment or supplement to, or
restatement of, the Proxy Statement, then Parent shall promptly
inform the Company thereof and shall cooperate with the Company in
filing such amendment, supplement or restatement with the SEC. The
Company will notify Parent promptly upon the receipt of any written
or oral comments from the SEC or its staff in connection with the
filing of, amendments or supplements to, or restatements of, the
Proxy Statement. The Company shall promptly prepare and cause to be
filed with the SEC any required amendment or supplement to, or
restatement of, the Proxy Statement and use its reasonable best
efforts to have any such amendment, supplement or restatement
cleared under the Exchange Act as promptly as practicable after it
is filed with the SEC. The Company shall (a) cooperate with
Parent and provide Parent (and Parent’s counsel) with a
reasonable opportunity to review and comment on, and have
Parent’s Representatives meet with the Company’s
Representatives to discuss, any amendment or supplement to, or
restatement of, the Proxy Statement prior to filing such amendment,
supplement or restatement with the SEC, (ii) take into account
all reasonable comments provided by Parent on such amendment,
supplement or restatement, and (iii) provide Parent with a
copy of all such filings made with the SEC.”
2.21 Amendment to Section 5.2(a) of the Merger
Agreement. The second sentence of Section 5.2(a) of the Merger
Agreement shall be deleted and replaced in its entirety with the
following sentence:
“The
Company Stockholders’ Meeting shall be held as promptly as
practicable after the date of the Amendment, but, unless otherwise
agreed to in writing between Parent and the Company, in no event
later than the date that is 22 business days after the date on
which the contemplated restatement of the Proxy Statement is
cleared by the SEC.”
2.22 Amendment to Section 5.2(b) of the Merger
Agreement. Section 5.2(b) of the Merger Agreement shall be
amended by (a) replacing the words “Prospectus/Proxy
Statement”, each time
8
they appear,
with the words “Proxy Statement”, and
(b) replacing the words “the opinion of the financial
advisor” in the final sentence thereof with the words
“the opinions of the financial advisors”.
2.23 Amendment to Section 5.3 of the Merger Agreement.
Section 5.3 of the Merger Agreement shall be deleted and
replaced in its entirety with the following:
“
5.3 Stock Options, RSUs and ESPP .
(a) At the
Effective Time, each Company Option that is outstanding and
unexercised immediately prior to the Effective Time, whether or not
vested, other than the Identified RSU Conversion Company Options
(as defined in Section 5.3(b)) and the Company Options what
are Identified Termination Company Awards (as defined in
Section 5.3(c)), shall be converted into and become an option
to purchase Parent Common Stock, with such conversion effected
through Parent, at Parent’s option, either: (i) assuming
such Company Option; or (ii) replacing such Company Option by
issuing a reasonably equivalent replacement stock option to
purchase Parent Common Stock in substitution therefor, in either
case in accordance with the terms (as in effect as of the date of
this Agreement) of the applicable Company Equity Plan and the terms
of the stock option agreement by which such Company Option is
evidenced. All rights with respect to Company Common Stock under
Company Options assumed or replaced by Parent shall thereupon be
converted into options with respect to Parent Common Stock.
Accordingly, from and after the Effective Time: (A) each
Company Option assumed or replaced by Parent may be exercised
solely for shares of Parent Common Stock; (B) the number of
shares of Parent Common Stock subject to each Company Option
as
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