Exhibit 10.3
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "First
Amendment"), dated as of November 1, 2002, by and among Quantum Corporation, a
Delaware corporation ("Parent"), Benchmark Storage Innovations, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxx, as Stockholders' Agent (the
"Stockholders' Agent").
RECITALS
WHEREAS, Parent, the Company and the Stockholders' Agent are
parties to that certain Agreement and Plan of Merger, dated as of September 5,
2002 (the "Merger Agreement"), pursuant to which the Company is to be merged
with and into Parent;
WHEREAS, Exhibit E attached to the Merger Agreement ("Exhibit E")
contains conditions and restrictions relating to the payment of the Earnout (as
such term is defined in the Merger Agreement); and
WHEREAS, Parent, the Company and the Stockholders' Agent wish to
amend the terms of Exhibit E in the manner provided in this First Amendment.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Representations and Warranties. Each of the parties hereto represents
and warrants to each other that such party has full power and authority
(including full corporate power and authority) to execute and deliver
this First Amendment and to perform its obligations hereunder, and that
this First Amendment constitutes the valid and legally binding
obligation of such party, enforceable in accordance with its terms and
conditions.
2. Amendment of Exhibit E. The section entitled "Warranty Earnout"
contained in Exhibit E is hereby amended by appending, at the end of
such section, the following sentence: "Repair costs (including
materials, labor and overhead), freight and amortization of swap pool
costs accrued with respect to any warranty claims arising pursuant to
that certain Agreement dated September 1, 2000 between Hewlett-Packard
Company and the Company will not be included in the actual warranty
cost for purposes of determining the amount payable under the Warranty
Earnout."
3. Effect of Amendment. All references to the Merger Agreement or Exhibit
E shall mean the Merger Agreement or Exhibit E as amended by this First
Amendment. Except as specifically amended above, the Merger Agreement
and Exhibit E shall remain in full force and effect in the original
form agreed by the parties thereto, and are hereby ratified and
confirmed.
4. Conflict or Inconsistency. In the event there is any conflict or
inconsistency between the terms and conditions of this First Amendment
and the terms and conditions of the Merger Agreement or Exhibit E, the
terms and conditions of this First Amendment shall govern and control
the rights and obligations of the parties.
5. Counterparts. This First Amendment may be executed in two 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 parties,
it being understood that all parties need not sign the same
counterpart.
6. Severability. In the event that any provision of this First Amendment,
or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the
remainder of this First Amendment will continue in full force and
effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent
of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this First Amendment with a valid and
enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable
provision.
7. Governing Law. THIS FIRST AMENDMENT IS MADE UNDER, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF CALIFORNIA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW, EXCEPT TO THE
EXTENT THAT THE DELAWARE GENERAL CORPORATION LAW IS MANDATORILY
APPLICABLE HERETO.
8. Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation, preparation and
execution of this First Amendment and, therefore, waive the application
of any law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document will be construed against
the party drafting such agreement or document.
9. Headings. The section headings contained in this First Amendment are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this First Amendment.
10. Amendment. The parties hereto may cause this First Amendment to be
amended at any time in accordance with the provisions of Section 7.4 of
the Merger Agreement.
[Signature page follows]
2
IN WITNESS WHEREOF, the Company, Parent, and the Stockholders'
Agent have caused this Agreement to be executed and delivered by their
respective officers thereunto duly authorized, all as of the date first written
above.
QUANTUM CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President, DCTG
BENCHMARK STORAGE INNOVATIONS, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: President & CEO
/s/ Xxxxx X. Xxxxxx
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As Stockholders' Agent
Name: Xxxxx X. Xxxxxx