Exhibit 2.2
AMENDMENT TO MERGER AGREEMENT
This Amendment (this "Amendment") is entered into as of this
9th day of February, 2004, by and among Network Appliance, Inc., a Delaware
corporation ("Parent"), Nagano Sub, Inc., a Delaware corporation ("Sub"), and
Spinnaker Networks, Inc., a Delaware corporation (the "Company").
WHEREAS, reference is made to that certain Agreement and Plan
of Merger, dated as of November 3, 2003, by and among Parent, Sub and the
Company (the "Merger Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to such terms in the Merger
Agreement; and
WHEREAS, Parent, Sub and the Company have agreed to enter into
an amendment to the Merger Agreement upon the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I. AMENDMENT
1. Section 10.2(c). Section 10.2(c) is hereby amended and
restated in its entirety to read as follows:
"With respect to each claim for indemnity under this Section
10.2, the liability of each Indemnifying Party shall be limited to his
pro rata portion of the claim amount, in proportion to the
proportionate ownership of the Common Stock and Preferred Stock
immediately prior the Effective Date. In no event shall any
Indemnifying Party's obligation to provide indemnification exceed the
amount of such Indemnifying Party's interest in the Indemnity Escrow
Shares (the "Damage Cap"); provided, however, that the Damage Cap shall
not apply in the case of a claim related to a breach of the
representations and warranties contained in Sections 3.14 or 3.23 or a
claim pursuant to Section 10.2(a)(ii), and provided, further, that the
Parent Indemnified Parties shall not be entitled to indemnification in
excess of the Damage Cap from any Indemnifying Party other than Menlo
Ventures VIII, L.P., Menlo Entrepreneurs Fund VIII, L.P., MMEF VIII,
L.P., Norwest Ventures Partners VIII, L.P., NVP Entrepreneurs Fund
VIII, L.P., Mellon Ventures, L.P., Dominant Investment Pte Ltd., and
the Affiliates of the foregoing, and the Core Employees. For purposes
of determining the number of shares of Parent Stock to be delivered to
a Parent Indemnified Party out of the escrow account, the Indemnity
Escrow Shares shall be valued at the Closing Price."
ARTICLE II. MISCELLANEOUS
1. Except as specifically set forth herein, nothing in this
Amendment shall affect any other rights or obligations of the parties to the
Merger Agreement, the Merger Agreement remains in full force and effect and
Parent, Sub and the Company ratify and reaffirm the same in its entirety.
2. This Amendment may be executed in one or more counterparts and
may be delivered by facsimile transmission, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, each party hereto has executed this Agreement or
caused this Agreement to be duly executed on its behalf by its officer thereunto
duly authorized, as of the day and year first above written.
NETWORK APPLIANCE, INC.
a Delaware corporation
By: ____________________________
Name:
Title:
NAGANO SUB, INC.
a Delaware corporation
By: ____________________________
Name:
Title:
SPINNAKER NETWORKS, INC.
a Delaware corporation
By: ____________________________
Name:
Title:
