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Exhibit 2.3
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED RECAPITALIZATION AGREEMENT
THIS AMENDMENT NO. 1 TO THE AMENDED AND RESTATED RECAPITALIZATION
AGREEMENT (this "Amendment No. 1") is dated as of February 26, 1998, and is
entered into by and among Micron Electronics, Inc., a Minnesota corporation
("MEI"), MEI California, Inc., a California corporation and a wholly owned
subsidiary of MEI ("Sub"), MCMS, Inc. (formerly known as Micron Custom
Manufacturing Services, Inc.), an Idaho corporation and a wholly-owned
subsidiary of Sub (the "Company") and Cornerstone Equity Investors IV L.P., a
Delaware limited partnership ("Investor").
WHEREAS, the parties hereto have entered into that certain Amended
and Restated Recapitalization Agreement, dated as of February 1, 1998 (the
"Original Agreement") (it being understood that capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms in the
Original Agreement);
WHEREAS, the parties hereto desire to amend certain provisions of
the Original Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. The fourth whereas clause of the Original Agreement is hereby
amended and restated to read in its entirety as follows:
"WHEREAS, Investor will contribute $61.2 million (the "Purchase
Price") to the Company in exchange for 2,761,176 shares of Class A Common
Stock of the Company, 863,824 shares of Class B Common Stock of the
Company, 875,000 shares of Class C Common Stock of the Company, 2,761,176
shares of Series A Convertible Preferred Stock of the Company, 863,824
shares of Series B Convertible Preferred Stock of the Company and 875,000
shares of Series C Convertible Preferred Stock of the Company (the Class A
Common Stock, Class B Common Stock, Class C Common Stock, Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock and
Series C Convertible Preferred Stock are referred to herein as the
"Recapitalized Securities") which Recapitalized Securities shall have the
terms set forth in the Amended Charter (as herein defined) (collectively,
the "Purchase Shares") (such purchase, the "Stock Purchase");"
2. The sixth whereas clause of the Original Agreement is hereby
amended and restated to read in its entirety:
"WHEREAS, the parties hereto desire that, immediately after the
Stock Purchase and the BTAB Financing, the Company shall redeem from Sub
1,000 shares (such number to be appropriately adjusted for any stock split
or stock dividend of the Company Common Stock after the date hereof and
prior to the
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EXECUTION COPY
Closing Date) (the "Redemption Shares") of Company Common Stock in
exchange for the Redemption Price (as herein defined) (such redemption,
the "Stock Redemption") and that immediately after Closing and payment of
the Redemption Price, Sub shall own 10% of the outstanding Recapitalized
Securities;"
3. Section 8.3 of the Original Agreement is hereby amended and
restated to read in its entirety as follows:
"Section 8.3 Stock Redemption. Pursuant to the authorization
contemplated by Section 8.1 hereof and subject to the terms and conditions
set forth in this Agreement, the parties hereto agree that Sub shall offer
for redemption, and the Company shall redeem the Redemption Shares. In
consideration for the Redemption Shares, at the Closing, Sub will receive
from the Company (a) $249,200,000, (b) 500,000 shares of the Company's
Class A Common Stock having the terms set forth in the Amended Charter and
(c) 500,000 shares of the Company' Series A Convertible Preferred Stock
having the terms set forth in the Amended Charter (the items referred to
in (b) and (c) above are referred to herein collectively as the
"Recapitalized Shares" and the items referred to in (a), (b) and (c) above
are referred to herein collectively as the "Redemption Price")."
4. Section 8.4(b)(4) is hereby amended and restated to read in its
entirety as follows:
"(4) Deliveries by Company to Sub. The Company shall pay to Sub the
cash Redemption Price by wire transfer of immediately available funds to
one or more accounts as designated by Sub and shall deliver to Sub
certificates evidencing the Recapitalized Shares."
5. Except as expressly set forth herein, the terms of the Original
Agreement shall remain in full force and effect.
6. This Amendment No. 1 may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party. Copies of executed counterparts transmitted by
telecopy, telefax or other electronic transmission service shall be considered
original executed counterparts for purposes of this Amendment No. 1, provided
receipt of copies of such counterparts is confirmed.
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IN WITNESS WHEREOF, this Amendment No. 1 to the Amended and Restated
Recapitalization Agreement has been signed by or on behalf of each of the
parties as of the day first above written.
MCMS, Inc.
(formerly known as Micron Custom Manufacturing
Services, Inc.)
By: /s/ Robert F. Subia
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Name: Robert F. Subia
Title: President & CEO
MICRON ELECTRONICS, INC.
By:
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Name:
Title:
MEI CALIFORNIA, INC.
By:
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Name:
Title:
CORNERSTONE EQUITY INVESTORS IV, L.P.
By: Cornerstone IV, L.L.C.,
as General Partner
By: /s/ Michael E. Najjar
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Name: Michael E. Najjar
Title: Managing Director
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IN WITNESS WHEREOF, this Amendment No. 1 to the Amended and Restated
Recapitalization Agreement has been signed by or on behalf of each of the
parties as of the day first above written.
MCMS, Inc.
(formerly known as Micron Custom Manufacturing
Services, Inc.)
By:
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Name:
Title:
MICRON ELECTRONICS, INC.
Reviewed
By: /s/ T. Erik Oaas MEI Legal
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Name: T. Erik Oaas ---------
Title: Executive Vice-President
MEI CALIFORNIA, INC.
Reviewed
By: /s/ T. Erik Oaas MEI Legal
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Name: T. Erik Oaas ---------
Title: Executive Vice-President
CORNERSTONE EQUITY INVESTORS IV, L.P.
By: Cornerstone IV, L.L.C.,
as General Partner
By:
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Name:
Title: