EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (the "AMENDMENT")
dated as of this 29th day of October 2001, is entered by and among EARTHLINK,
INC., a Delaware corporation ("EARTHLINK"), EARTHLINK ACQUISITION SUB, INC., a
Delaware corporation ("SUB"), and CIDCO INCORPORATED, a Delaware corporation
("CIDCO").
WHEREAS, EarthLink, Sub, and Cidco are parties to that certain
Agreement and Plan of Merger dated October 17, 2001 (the "AGREEMENT"); and
WHEREAS, EarthLink, Sub, and Cidco desire to amend the Agreement
pursuant to the terms and conditions of this Amendment in order to correct
certain drafting errors contained in the Agreement.
NOW, THEREFORE, in consideration of the recitals and the mutual
promises, representations, warranties and covenants set forth in the Amendment,
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by all parties hereto, the parties hereto hereby agree as follows:
I. Definitions. Capitalized terms used herein without definition shall have the
meaning assigned to those terms in the Agreement.
II. Amendments.
A. The Agreement hereby is amended by deleting the second sentence of
Paragraph 1.1(c) in its entirety and replacing it with the following:
"If the number of Shares so purchased is greater than 50% but
less than 90% of the applicable issued and outstanding Shares
at the time that the Offer is terminated, EarthLink and Cidco
shall, subject to Article VI hereof, take all such actions as
may be necessary or advisable to cause Sub to be merged with
and into Cidco in accordance with the terms of this Agreement
and the DGCL, including without limitation convene a special
stockholders' meeting and solicit proxies therefor (all in
compliance with applicable federal securities laws) to secure
Cidco stockholder approval for such a Merger (the "LONG FORM
MERGER"), and Cidco covenants that the Cidco Board of
Directors will vote in favor of the Long Form Merger and
recommend it to Cidco's stockholders."
B. The Agreement hereby is amended by deleting the first sentence of
Annex I in its entirety and replacing it with the following:
"Notwithstanding any other provision of the Offer, Sub shall
not be required to accept for payment or, subject to any
applicable rules and regulations of the SEC, including Rule
14e-1(c) under the Exchange Act (relating to Sub's obligation
to pay for or return tendered Shares promptly after expiration
or termination of the Offer), to pay for any Shares tendered
unless the following conditions have been satisfied: (i) there
have been validly tendered and not withdrawn prior to the time
the Offer shall otherwise expire a number of Shares which is
greater than 50% of all Shares outstanding at the time the
Shares are accepted for payment pursuant to the Offer (the
"Minimum Condition"); and (ii) none of the following events
shall occur at any time on or after the date of the Agreement
and before acceptance for payment of, or payment for, such
Shares:"
III. Miscellaneous.
A. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
B. Headings. The headings of the sections and paragraphs of this
Amendment are inserted for convenience only and shall not be deemed to
constitute part of this Amendment or to affect the construction thereof.
C. Modification and Waiver. No waiver of any of the provisions of this
Amendment shall be deemed to or shall constitute a waiver of any other provision
hereof or in the Agreement (whether or not similar).
D. Effectiveness of the Agreement. Except for the amendments set forth
in Articles IIA. and IIB. above, the terms and conditions of the Agreement shall
continue in full force and effect.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date first above written.
EARTHLINK, INC.
By: /s/ Xxxxxx X. XxXxxxxx, Xx.
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Name: Xxxxxx X. XxXxxxxx, Xx.
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Title: EVP - Gen. Counsel - Secretary
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EARTHLINK ACQUISITION SUB, INC.
By: /s/ Xxxxxx X. XxXxxxxx, Xx.
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Name: Xxxxxx X. XxXxxxxx, Xx.
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Title: EVP - Gen. Counsel - Secretary
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CIDCO INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: President, CEO
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