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EXHIBIT 2.1
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This First Amendment (this "First Amendment"), dated as of this 29th
day of June, 2000, amends that certain Agreement and Plan of Merger dated as of
June 9, 2000, by and among ADC Telecommunications, Inc. ("ADC"), Poundstone
Acquisition Corp. ("Poundstone") and Centigram Communications Corporation
("Centigram") (the "Merger Agreement"), which Merger Agreement provides for the
acquisition of Centigram by ADC in accordance with the terms and conditions set
forth therein.
WHEREAS, for the avoidance of doubt, the parties desire to amend the
Agreement to clarify an agreed provision thereof and to confirm the parties'
understandings with respect to the matter set forth in this First Amendment; and
WHEREAS, this First Amendment is being made by the parties in
furtherance of their mutual desire to consummate the transactions contemplated
by the Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The second sentence of Section 2.1(e)(i) of the Merger Agreement is
hereby amended in its entirety to read as follows:
"If all shares of Receivership Stock are returned to the
Company prior to the Effective Time, the amount paid by the Company to
cause such return, including the Company's out-of-pocket costs
(including the reasonable fees and expenses of legal counsel and other
advisors incurred to obtain such return (including the resolution of
any appeal of the Final Order), hereinafter referred to as
"Out-of-Pocket Costs") in excess of $500,000, minus the LESSER of (x)
$10,000,000 or (y) the amount paid to the Bancorp Receiver including
the Company's Out-of-Pocket Costs in excess of $500,000 (the amount
referred to in either (x) or (y) hereinafter referred to as the
"RECEIVER PAYMENT CREDIT") shall be deducted from the Base Purchase
Price prior to calculation of the Per Share Amount, SUBJECT, HOWEVER,
to the third sentence of Section 2.6(b) hereof."
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2. The first paragraph of Section 2.6(b) of the Merger Agreement is
hereby amended in its entirety to read as follows:
"(b) At such time as all shares of Receivership Stock are
returned to the Surviving Corporation, the Appeal Period has terminated
and all pending appeals, if any, have been resolved, the amount paid
after the Effective Time by Parent, the Surviving Corporation and/or an
affiliate thereof including Parent and/or the Surviving Corporation's
Out-of-Pocket Costs shall be deducted from the Escrow Deposit and,
together with the interest earned on such amount while held by the
Escrow Agent, paid to Parent. In determining the amount paid after the
Effective Time by Parent, the Surviving Corporation and/or an affiliate
thereof to cause the return of the Receivership Stock, if the
Receivership Stock is returned pursuant to the Settlement Agreement
substantially in the form entered into on June 7, 2000, only the amount
in excess of $10,000,000 paid (whether by Parent, the Surviving
Corporation and/or an affiliate after the Effective Time and/or by the
Company prior to the Effective Time) to obtain the return of the
Receivership Stock pursuant to the Settlement Agreement, including
Parent and/or the Surviving Corporation's (and/or the Company's, prior
to the Effective Time, in excess of $500,000) Out-of-Pocket Costs as
indicated above, will be treated has having been paid by Parent, the
Surviving Corporation and/or an affiliate thereof to cause such return.
The parties further agree that if, upon final resolution of all
available methods of appeal by any party, the Settlement Agreement is
found to be void or unenforceable and each of the Bancorp Receiver and
Credit Bancorp Ltd. is unable or unwilling to repay or give full credit
to Parent and/or the Surviving Corporation for the amount previously
paid to the Bancorp Receiver to obtain the return of the Receivership
Stock, then the lesser of the Receiver Payment Credit and the amount
not repaid or credited to Parent or the Surviving Corporation shall be
deducted from the Escrow Deposit and paid to Parent. Any portion of the
Escrow Deposit remaining after such payments to Parent (the "ESCROW
REMAINDER") shall be distributed as follows:"
3. Any capitalized term used herein and not otherwise defined herein
shall have the meaning given to such term in the Merger Agreement.
4. This First Amendment constitutes an amendment of the Merger
Agreement in conformity with and pursuant to the terms of Section 8.6 of the
Agreement. Except as expressly amended herein, all terms set forth in the Merger
Agreement shall continue in full force and effect.
5. The operative terms of this First Amendment may be inserted into a
First Amended and Restated Agreement by the parties and shall have a date as of
the day and year first set forth herein.
6. The internal law, and not the law of conflicts, of the State of
Delaware will govern all questions concerning the construction, validity and
interpretation of this First Amendment and the performance of the obligations
imposed by this First Amendment.
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7. This First Amendment may be executed via facsimile 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.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the day and year first above written.
ADC TELECOMMUNICATIONS, INC.
/s/ Robert E. Switz
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By: Robert E. Switz
Its: Senior Vice President and Chief
Financial Officer
POUNDSTONE ACQUISITION CORP.
/s/ Robert E. Switz
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By: Robert E. Switz
Its: Senior Vice President
CENTIGRAM COMMUNICATIONS
CORPORATION
/s/ Thomas E. Brunton
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By: Thomas E. Brunton
Its: Chief Financial Officer
