EXHIBIT 10.1 EXECUTION COPY
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "FIRST
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AMENDMENT"), dated as of August 26, 2005, is made and entered into by and among
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Concurrent Computer Corporation, a Delaware corporation (the "PURCHASER"),
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Stream Acquisition, Inc., a Delaware corporation ("NEWCO"), Everstream Holdings,
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Inc., a Delaware corporation (the "COMPANY"), and the parties listed on Exhibit
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A attached hereto (each, individually a "SELLER" and collectively the
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"SELLERS"), and is made with reference to that certain Agreement and Plan of
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Merger, dated as of August 19, 2005, by and among the Purchaser, Newco, the
Company, and the Sellers (the "MERGER AGREEMENT"). In this First Amendment, the
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Purchaser, Newco, the Company, and the Sellers are sometimes individually
referred to as a "PARTY" and collectively as the "PARTIES." Capitalized terms
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used herein without definition shall have the same meanings herein as set forth
in the Merger Agreement.
RECITALS
The Purchaser, Newco, the Company, and the Sellers desire to amend certain
provisions contained in the Merger Agreement.
AGREEMENT
Pursuant to Section 10.10 of the Merger Agreement and in consideration of
the premises and mutual covenants and agreements contained herein, and for other
good and valuable consideration, the receipt of which are hereby acknowledged,
and intending to be legally bound, the Parties hereto agree that the Merger
Agreement is hereby amended as follows:
ARTICLE I
AMENDMENTS
Section 1.1 Definitions.
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(a) The definition of "Common Stock Residual Number" as set forth
in Section 1.2 of the Merger Agreement is hereby deleted and replaced in
its entirety with the following:
"COMMON STOCK RESIDUAL NUMBER" means the number of shares of Purchaser
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Common Stock equal to the quotient of (i) the Total Merger Shares less the
Total First Tier Distribution, divided by (ii) the Total Company Stock
Number, less the Total Series C Preferred Number, less the Total Series A
Preferred Number, less the Total Series B Preferred Number, less the McHale
Common Stock Number.
(b) The definition of "McHale Stock Dispositions" as set forth in
Section 1.2 of the Merger Agreement is hereby deleted and replaced in its
entirety with the following:
"MCHALE STOCK DISPOSITIONS" means the transfers by Stephen J. McHale
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of Company Series A Preferred Stock to certain employees of the Company and
Burt
Manning as referenced in the Company Disclosure Schedule and the McHale
Disposition Side Letter.
(c) Section 1.2 of the Merger Agreement is hereby amended by
adding, in the applicable alphabetical order, the following definitions:
"FIRST AMENDMENT TO MERGER AGREEMENT" means that certain First
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Amendment to Agreement and Plan of Merger dated as of August 26, 2005 by
and among the Parties.
"MCHALE COMMON STOCK" means the Company Common Stock owned by
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Stephen J. McHale.
"MCHALE COMMON STOCK NUMBER" means the number of shares of McHale
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Common Stock.
"MCHALE DISPOSITION SIDE LETTER" means that certain letter agreement
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attached as Exhibit B to the First Amendment to Merger Agreement.
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Section 1.2 Amendment to Section 3.1(b). Section 3.1(b) of the Merger
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Agreement is hereby deleted and replaced in its entirety with the following:
(b) Cancellation of Treasury Stock; Purchaser-Owned Stock; McHale
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Common Stock. Any shares of Company Stock that are owned directly or
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indirectly by the Company as treasury stock and any shares that are owned
by Purchaser, Newco or any other wholly-owned Subsidiary of Purchaser shall
be cancelled and retired and shall cease to exist and no stock of Purchaser
or other consideration shall be delivered in exchange therefor. All shares
of Purchaser Common Stock owned by Company shall remain unaffected by the
Merger. All shares of McHale Common Stock shall be cancelled and retired
and shall cease to exist and no stock of Purchaser or other consideration
shall be delivered in exchange therefor.
Section 1.3 Amendment to Section 3.1(c). Section 3.1(c) of the Merger
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Agreement is hereby deleted and replaced in its entirety with the following:
(c) Exchange Ratios for Company Stock. Subject to Sections 3.3 and
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3.4, and other than shares, if any, to be cancelled in accordance with
Section 3.1(b), each issued and outstanding share of Company Stock shall be
converted into the right to receive the number of validly issued,
fully-paid and nonassessable shares of Purchaser Common Stock determined as
follows:
(i) Each issued and outstanding share of Company Series C
Preferred Stock shall be converted into the right to receive the
Series C First Tier Ratio;
(ii) Each issued and outstanding share of Company Series A
Preferred Stock shall be converted into the right to receive the
Series A First Tier Ratio;
(iii) Each issued and outstanding share of Company Series B
Preferred Stock shall be converted into the right to receive the
Series B First Tier Ratio; and
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(iv) Each issued and outstanding share of Company Common Stock
shall be converted into the right to receive the Common Stock Residual
Number.
The number of shares of Purchaser Common Stock into which each share of Company
Series C Preferred Stock, Company Series A Preferred Stock, Company Series B
Preferred Stock and Company Common Stock shall be converted, as specified above,
shall be referred to as the "SERIES C EXCHANGE RATIO," the "SERIES A EXCHANGE
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RATIO," the "SERIES B EXCHANGE RATIO," and the "COMMON STOCK EXCHANGE RATIO,"
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respectively, and collectively, the "EXCHANGE RATIOS." The Exchange Ratios
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shall be adjusted for any stock split, stock dividend or similar transaction
effected between the Agreement Date and the Effective Time.
Section 1.4 Amendment to Article VI. Article VI of the Merger
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Agreement is hereby amended by adding after Section 6.21 the following:
Section 6.22 Certificate of Amendment. Immediately prior to the
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Closing, the Company shall, in accordance with the DGCL, file an amendment
to the Company's certificate of incorporation in the form of a Certificate
of Amendment of Amended and Restated Certificate of Incorporation of the
Company, in substantially the form attached as Exhibit C to the First
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Amendment to Merger Agreement (the "CERTIFICATE AMENDMENT").
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Section 1.5 Amendment to Section 7.2. Section 7.2 of the Merger
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Agreement is hereby amended by adding after Section 7.2(p) the following:
(q) Certificate Amendment. The Certificate Amendment to be filed
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as described in Section 6.22 shall be filed with the Delaware Secretary of
State and shall be effective.
Section 1.6 Exhibit 6.10. Exhibit 6.10 of the Merger Agreement is
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hereby deleted and replaced in its entirety with the Exhibit 6.10 attached
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hereto as Exhibit D.
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Section 1.7 Exhibit 7.2(e). Exhibit 7.2(e) of the Merger Agreement
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is hereby deleted and replaced in its entirety with the Exhibit 7.2(e) attached
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hereto as Exhibit E.
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ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 Captions. The titles, captions, and table of contents
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contained in this First Amendment are inserted in this First Amendment only as a
matter of convenience and for reference and do not, in any way, define, limit,
extend, or describe the scope of this First Amendment or the intent of any
provision of this First Amendment.
Section 2.2 Controlling Law. This First Amendment will be governed by
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and construed and enforced in accordance with the internal laws of the State of
Delaware without reference to Delaware choice-of-law rules.
Section 2.3 Counterparts; Execution. This First Amendment may be
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executed in two or more counterparts, each of which will be deemed an original.
A facsimile, telecopy, electronic mail, or other reproduction of this First
Amendment may be executed by one or more
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Parties, and an executed copy of this First Amendment may be delivered by one or
more Parties by facsimile, telecopy, electronic mail, or similar electronic
transmission device pursuant to which the signature of or on behalf of such
Party can be seen, and such execution and delivery will be considered valid,
binding, and effective for all purposes. At the request of any Party, all
Parties agree to execute an original of this First Amendment as well as any
facsimile, telecopy, electronic mail, or other reproduction of this First
Amendment.
Section 2.4 Enforcement of Certain Rights. Nothing expressed or
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implied in this First Amendment is intended, or will be construed, to confer
upon or give any Person other than the Parties, and their successors or
permitted assigns, any rights, remedies, obligations, or liabilities under or by
reason of this First Amendment, or result in such Person being deemed a
third-party beneficiary of this First Amendment.
Section 2.5 Full Force and Effect. Except as set forth expressly this
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First Amendment, the Merger Agreement shall be and remain in full force and
effect, and shall constitute the legal, valid and binding obligations of the
Parties, enforceable against the Parties in accordance with its terms. The
amendments in this First Amendment shall be deemed to have prospective
application only, unless otherwise specifically stated herein.
[SIGNATURE PAGES TO FOLLOW]
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The Parties have caused this First Amendment to be duly executed as of the
Agreement Date.
CONCURRENT COMPUTER CORPORATION
By:
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Name:
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Title:
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STREAM ACQUISITION, INC.
By:
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Name:
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Title:
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EVERSTREAM HOLDINGS, INC.
By:
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Name:
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Title:
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REPRESENTATIVE:
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SELLERS:
CANOE EVERSTREAM, LLC:
By:
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Name:
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Title:
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[Signature Page to First Amendment to Merger Agreement]
EVERSTREAM, LLC:
By:
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By:
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Name:
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Title:
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JIM HICKEY
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SCOTT KEGLOVIC
LAUDER PARTNERS LLC:
By:
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By:
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Name:
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Title:
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JOHN F. MCHALE
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STEPHEN J. MCHALE
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KATHY WOLFE
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ROBERT WOLFE
[Signature Page to First Amendment to Merger Agreement]
Exhibit A
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Sellers
Canoe Everstream, LLC
Everstream, LLC
Jim Hickey
Scott Keglovic
Lauder Partners LLC
John F. McHale
Stephen J. McHale
Kathy Wolfe
Robert Wolfe
Exhibit B
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McHale Disposition Side Letter
(See Attached)
Exhibit C
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Certificate Amendment
(See Attached)
Exhibit D
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Exhibit 6.10
(See Attached)
Exhibit E
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Exhibit 7.2(e)
(See Attached)