Exhibit 2.2
PURCHASER OPTION AGREEMENT
PURCHASER OPTION AGREEMENT, dated as of October 8, 2003, by and
among Emulex Corporation, a Delaware corporation ("Parent"), Aviary Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), and Vixel Corporation, a Delaware corporation (the "Company").
WHEREAS, the Company, Parent and the Purchaser are entering into an
Agreement and Plan of Merger (the "Merger Agreement") of even date herewith
providing for (a) a cash tender offer to purchase any and all outstanding shares
of (i) common stock, par value $0.0015 per share of the Company (the "Common
Stock"), and (ii) Series B convertible preferred stock, par value $0.001 per
share, of the Company (the "Series B Preferred Stock" and, together with the
Common Stock, the "Shares") at a price of $ 10.00 per Share, net to the seller
in cash without interest thereon, upon the terms and subject to the conditions
set forth in the Merger Agreement (the "Offer"); and (b) the merger (the
"Merger") of the Purchaser with and into the Company; and
WHEREAS, as a condition to the willingness of Parent and the
Purchaser to enter into the Merger Agreement and commence the Offer, Parent and
Purchaser have requested, and the Company has agreed to grant the Purchaser, the
option to purchase, as described herein, authorized but unissued shares of
Common Stock and/or Series B Preferred Stock.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration the sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Grant of Option. On the terms and subject to the conditions of this
Agreement, the Company hereby grants to the Purchaser an irrevocable
option (the "Option") to purchase for the Offer Price, as defined in the
Merger Agreement (the "Purchase Price"), shares of Common Stock and/or
Series B Preferred Stock, in such relative amounts as shall be determined
by Purchaser in its discretion, up to 19.9% in the aggregate of the then
outstanding shares of Common Stock and Series B Preferred Stock on
as-converted basis (collectively, the "Optioned Shares"); provided, that
the number of shares of Series B Preferred Stock issuable under the Option
may not exceed the number of authorized shares of Series B Preferred Stock
available for issuance.
2. Exercise of Option. Subject to the immediately succeeding sentence, the
Option may be exercised by the Purchaser, in whole or in part, at any time
or from time to time after Purchaser has purchased Shares pursuant to the
Offer and until the earlier of (a) immediately following the Effective
Time (as defined in the Merger Agreement) and (b) the termination of the
Merger Agreement in accordance with its terms. The exercise of the Option
for Common Stock is conditioned upon the Purchaser and the Parent owning
in the aggregate, immediately following such
exercise, at least 90% of the outstanding shares of Common Stock, and the
exercise of the Option for Series B Preferred Stock is conditioned upon
the Purchaser and Parent owning in the aggregate, immediately following
such exercise, at least 90% of the outstanding shares of Series B
Preferred Stock. In the event the Purchaser wishes to exercise the Option,
the Purchaser shall give a written notice (the "Notice") to the Company of
its intention to exercise the Option, specifying the number of Optioned
Shares to be purchased. Such notice shall be delivered to the Company in
accordance with the requirements of Section 7(d), and shall specify a date
(which may be the date of such notice) not more than ten (10) business
days from the date such Notice is given for the purchase of the Optioned
Shares. The closing (the "Closing") of the purchase of the Optioned Shares
shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom
LLP, 525 University Avenue, 11th Floor, Palo Alto, California 94301, or at
such other location as the Purchaser shall elect. If any decree,
injunction, order, law or regulation shall not permit the purchase of the
Optioned Shares to be consummated on the date specified in such Notice,
the date for the Closing shall be as soon as practicable following the
cessation of such restriction on consummation, but in any event within two
(2) business days thereof.
3. Payment and Delivery of Certificate(s). At any Closing hereunder, (a) the
Purchaser shall make payment to the Company of the aggregate price for the
par value of the Optioned Shares so purchased in official bank check or by
wire transfer to a bank designated in writing by the Company; (b) the
Purchaser shall deliver to the Company a Promissory Note substantially in
the form attached hereto as Exhibit A (the "Note") for the aggregate price
for the Optioned Shares so purchased less the amount paid in accordance
with clause 3(a); and (c) the Company shall deliver to the Purchaser a
certificate or certificates representing the number of Optioned Shares so
purchased registered in the name of the Purchaser. Certificates for
Optioned Shares delivered at the Closing may be endorsed with a
restrictive legend that shall read substantially as follows:
"THE SECURITIES OFFERED HEREBY ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM."
It is understood and agreed that the reference to the resale restrictions
of the Securities Act of 1933, as amended (the "Act"), in the above legend
shall be removed by delivery of substitute certificate(s) without such
reference if Parent shall have delivered to the Company a copy of a letter
from the staff of the Securities and Exchange Commission, or an opinion of
counsel or other evidence reasonably satisfactory to the Company, to the
effect that registration of the future resale of the Optioned Shares is
not required and that such legend is not required for purposes of the Act.
2
4. Representations and Warranties of the Company. The Company hereby
represents and warrants (such representations and warranties being deemed
repeated at and as of any Closing hereunder) to Parent and the Purchaser
as follows:
(a) Due Incorporation. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to
enter into and perform this Agreement.
(b) Due Authorization, etc. This Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by a duly authorized
officer of the Company and constitutes the valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
(c) Company's Capital Stock. The Company has taken all necessary
corporate action to authorize and reserve for issuance upon exercise
of the Option the Optioned Shares, and at all times from the date
hereof through the date of termination of this Agreement will keep
reserved for issuance upon exercise of the Option that number of
shares of Common Stock that the Purchaser is then entitled to
purchase pursuant to the Option. The shares of Common Stock and/or
Series B Preferred Stock to be issued upon due exercise, in whole or
in part, of the Option shall, when issued, be validly issued,
fully-paid and non-assessable, and shall be delivered free and clear
of all claims, liens, encumbrances and security interests, including
any preemptive right of any of the stockholders of the Company.
5. Representations and Warranties of the Purchaser and Parent. Parent and the
Purchaser hereby jointly and severally represent and warrant (such
representations and warranties being deemed repeated at and as of any
Closing hereunder) to the Company as follows:
(a) Due Incorporation. Each of Parent and the Purchaser is a corporation
duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the requisite corporate power and
authority to enter into and perform this Agreement.
(b) Due Authorization, etc. This Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Purchaser and Parent.
This Agreement has been duly executed and delivered by a duly
authorized officer of the Purchaser and of Parent, and constitutes
the valid and binding obligation of the Purchaser and of Parent,
enforceable against each in accordance with its terms.
3
(c) Distribution. The Purchaser acknowledges and agrees that the
Optioned Shares have not been registered, and that the Company is
under no obligation to register, the Optioned Shares under the Act
or any state securities laws. The Purchaser is acquiring the Option
and will acquire the Optioned Shares to be purchased upon exercise
of the Option for its own account and not with a view to the
distribution thereof within the meaning of the Act. The foregoing
representation and warranty shall be made by any assignee under
Section 7(a) and shall be binding upon such assignee.
6. Adjustment Upon Changes in Capitalization. In the event of any change in
the shares of the Company's capital stock by reason of any stock dividend,
stock split, merger, recapitalization, combination, conversion, exchange
of shares, issuance of shares (or agreements or commitments to issue
shares) or the like, the number of Optioned Shares subject to the Option
and the purchase price per Optioned Share shall be appropriately and
equitably adjusted.
7. Miscellaneous.
(a) Assignment; Guarantee of the Purchaser's Obligations. This Agreement
shall not be assigned by the Purchaser, except to Parent or a
wholly-owned subsidiary of Parent, without the prior written consent
of the Company. Parent hereby unconditionally guarantees the full
and punctual performance by Purchaser of all of the obligations of
Purchaser or any of its assignees hereunder and under the Note. In
connection with the obligations of Parent under the immediately
preceding sentence, Parent hereby waives any and all rights, notices
and defenses to which it otherwise would be entitled solely in its
capacity as a guarantor under this Agreement or the Note.
(b) Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
(c) Non-survival of representations, etc. All representations,
warranties and agreements in this Agreement shall terminate at the
Closing.
(d) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by delivery,
by cable, telegram or telex, or by mail (registered or certified
mail, postage prepaid, return receipt requested) to the respective
parties as follows:
4
If to the Company:
Vixel Corporation
11911 North Creek Parkway South
Bothell, Washington 98011
Attention: Kurtis L. Adams
Chief Financial Officer
Facsimile: (425) 806-4001
With a copy to:
Heller Ehrman White & McAuliffe LLP
701 Fifth Avenue, suite 6100
Seattle, Washington 98104
Attention: David R. Wilson
Facsimile: (206) 447-0849
If to Parent or the Purchaser:
Emulex Corporation
3535 Harbor Boulevard
Costa Mesa, California 92626
Attention: Randall G. Wick
Vice President, General Counsel
Facsimile: (714) 641-0172
With copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite 1100
Palo Alto, California 94301
Attention: Gregory C. Smith
Facsimile: (650) 470-4570
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Delaware without
giving effect to the principles of conflict of laws thereof.
(f) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
5
(g) Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
(h) Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the matters referred to herein and
supersedes all prior agreements or understandings, both written or
oral, among the parties, or any of them, with respect to the subject
matter hereof.
(i) Specific Performance. Purchaser, Parent and the Company each
acknowledge and agree that the other would be irreparably damaged in
the event any of the provisions of this Agreement were not performed
by it in accordance with the specific terms or were otherwise
breached. The Company agrees that if for any reason the Company
shall have failed to issue Optioned Shares or to perform any of its
other obligations under the Agreement, then the Purchaser and Parent
shall be entitled to specific performance and injunctive and other
equitable relief and the Company agrees to waive any requirement for
the securing or posting of a bond in connection with the obtaining
of any such injunctive or other equitable relief. This provision is
without prejudice to any other rights the Purchaser and Parent may
have against the Company for any failure to perform its obligations
under this Agreement.
[Signature Page Follows]
6
IN WITNESS WHEREOF, Parent, the Purchaser and the Company have
caused this Purchaser Option Agreement to be duly executed on the day and year
first above written.
VIXEL CORPORATION
By: /s/ James McCluney
---------------------------------------------
Name: James McCluney
Title: President and Chief Executive Officer
AVIARY ACQUISITION CORPORATION
By: /s/ Paul Folino
---------------------------------------------
Name: Paul Folino
Title: President and Chief Executive Officer
EMULEX CORPORATION
By: /s/ Paul Folino
---------------------------------------------
Name: Paul Folino
Title: Chairman of the Board and
Chief Executive Officer
Signature Page to Purchaser Option Agreement
EXHIBIT A
NON-TRANSFERABLE PROMISSORY NOTE
FOR VALUE RECEIVED, Aviary Acquisition Corporation, a Delaware corporation
("the Maker"), hereby promises to pay to Vixel Corporation, a Delaware
Corporation, the principal amount of [_________________] ($______)], with no
interest, on [insert date that is six months after the date of exercise] by wire
transfer of immediately available funds to an account designated by the payee.
The amount due hereunder shall be payable in money of the United States of
America lawful at such time for the payment of public and private debts.
The Maker hereby waives presentment, diligence, protest and demand, notice
of protest, demand, dishonor and nonpayment of this Note, and all other notices
of any kind in connection with the delivery, acceptance, performance, default or
enforcement of this Note.
This Note shall be governed by and construed in accordance with the laws
of the State of Delaware without giving effect to the principles of conflicts of
laws thereof.
IN WITNESS WHEREOF, the Maker has caused this Note to be executed as of
the _____ day of ______, 200__.
AVIARY ACQUISITION CORPORATION
By:
---------------------------------
Name:
Title: