EXHIBIT 2.3
AMENDMENT NO. 1, dated as of September 27, 2001 (this "AMENDMENT") to
the Agreement of Merger (the "AGREEMENT"), dated July 18, 2001, by and among
Cirrus Logic, Inc., a Delaware corporation ("CIRRUS"), Target I Acquisition
Corporation, a Delaware corporation and wholly-owned subsidiary of Cirrus
("ACQUISITION SUB"), ShareWave, Inc., a Delaware corporation (the "COMPANY"),
and Peter Bodine (the "SHAREHOLDERS REPRESENTATIVE"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
such terms in the Agreement.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into the Agreement and the
parties hereto wish to amend the Agreement as herein provided;
NOW THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. Section 2.2(d) of the Agreement is hereby amended by inserting
the following new paragraph after the second sentence thereof:
In the event that any shares of Cirrus Common Stock held in
Escrow are initially withheld from Shareholders which, subsequent to the
Effective Time, demand appraisal rights pursuant to Section 262 of the
DGCL or Section 1300 of the CGCL within the time periods specified in
such statutes and such appraisal rights have not been forfeited or
withdrawn prior to forty-five (45) days from the date of the notice to
Shareholders of appraisal rights ("Appraisal Notice"), then, subject to
compliance with Section 2.3(b), all such shares of Cirrus Common Stock
(the "Dissenters' Escrow Shares") shall be promptly delivered back to
Cirrus by the Escrow Agent upon written demand of Cirrus with copy to
the Shareholders' Representative. The Dissenters' Escrow Shares
described in the preceding sentence shall be treated for purposes of the
Escrow Agreement as an excess payment for Dissenting Shares under
Section 5.1(b) of the Escrow Agreement, and any written demand of Cirrus
to the Escrow Agent shall be in the form of and treated in the same
manner as a Setoff Notice to the Escrow Agreement. If a Shareholder
forfeits or withdraws such Shareholder's right to appraisal of
Dissenting Shares, then promptly following the occurrence of such event,
Cirrus shall cause to be delivered to the Escrow Agent a certificate
representing such Shareholder's portion of the Dissenters' Escrow Shares
previously withdrawn from the Indemnity Fund. Cirrus and the
Shareholders' Representative shall deliver joint written instructions to
the Escrow Agent directing the Escrow Agent to deliver the Dissenters'
Escrow Shares to Cirrus in accordance with and subject to the foregoing
provisions of this Section 2.2(d).
2. The references to "September 28, 2001" appearing in
Sections 2.11, 6.4(a), 6.6, 7.4, 8.2(f) and 12.1(d) of the Agreement are hereby
amended by deleting the words "September 28, 2001" appearing therein and
substituting the words "October 1, 2001" therefor.
3. From and after the date hereof, all references to the Agreement
shall be deemed to be references to the Agreement as amended hereby.
4. This Amendment is intended to amend the Agreement as provided
herein and shall be deemed to do so in accordance with Section 13.9 of the
Agreement. Except as modified herein, all other provisions of the Agreement
(including the representations made by the parties under Articles III and IV of
the Agreement) shall remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been signed on behalf of each of
the parties to the Agreement as of the date first written above.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-2-
CIRRUS LOGIC, INC.
By /s/ STEVEN D. OVERLY
----------------------------------
Name:
Title:
TARGET I ACQUISITION CORPORATION
By /s/ STEVEN D. OVERLY
----------------------------------
Name:
Title:
SHAREWAVE, INC.
By /s/ ERIC J. OCHILTREE
----------------------------------
Name:
Title:
SHAREHOLDERS' REPRESENTATIVE
By /s/ PETER BODINE
----------------------------------
PETER BODINE