EXHIBIT 4.3
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 dated as of October 8, 2003, to the Rights Agreement,
dated as of November 15, 2000 (the "Agreement"), by and between VIXEL
CORPORATION (the "Company") and COMPUTERSHARE TRUST COMPANY, as Rights Agent
(the "Rights Agent").
WHEREAS, the Company intends to enter into an Agreement and Plan of
Merger (the "Merger Agreement") with Emulex Corporation, a Delaware corporation
("Emulex"), and Aviary Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Emulex ("Sub");
WHEREAS, the Board of Directors of the Company has determined that, in
connection with the Merger Agreement, an amendment to the Agreement as set forth
herein is necessary and desirable;
WHEREAS, concurrently with the Company entering into the Merger
Agreement, the Company intends to enter into a Purchaser Option Agreement with
Emulex and Sub (the "Purchaser Option"), pursuant to which, among other things,
the Company will grant to Sub an option to purchase certain newly-issued shares
of common stock, par value $.00015, of the Company (the "Common Stock") and/or
Series B Preferred Stock, par value $.001 of the Company (the "Series B
Preferred Stock");
WHEREAS, the Company has been advised that, concurrently with the
Company entering into the Merger Agreement, Emulex and Sub intend to enter into
a Stockholders Agreement with certain stockholders of the company (the
"Stockholder Agreement"), pursuant to which each stockholder has agreed, among
other things, to tender his, her or its shares into the tender offer described
in the Merger Agreement, to grant to Emulex the right to purchase shares of
Common Stock and/or Series B Preferred Stock owned by such stockholders upon
payment by Emulex of the offer price described in the Merger Agreement and to
grant to Emulex a proxy to vote such stockholder's shares in favor of the merger
of Sub into the Company; and
WHEREAS, pursuant to Section 27 of the Agreement, the Company may from
time to time in its sole and absolute discretion supplement or amend the
Agreement, and direct the Rights Agent to effect such supplement or amendment,
in accordance with the provisions of Section 27 thereof;
NOW, THEREFORE, pursuant to the terms of the Agreement and in
accordance with Section 27 thereof, the following actions are hereby taken prior
to executing the Merger Agreement and the Option Agreement referred to below:
Section 1. Amendments to Agreement. The Agreement is hereby
amended as follows:
(a) The definition of "Acquiring Person" in Section 1(a)
of the Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary, neither Emulex Corporation, Aviary
Acquisition Corp. nor any of their respective,
existing or future Affiliates or Associates shall be
deemed to be an Acquiring Person, either individually
or collectively, solely by virtue of (i) the public
announcement of the Offer or the Merger, (ii) the
acquisition of shares of Common Stock and Series B
Preferred Stock (including any options, warrants or
other securities or rights to acquire shares of
Common Stock or Series B Preferred Stock and upon the
conversion of shares of common stock of Sub into
Common Stock of the Company in the Merger) of the
Company pursuant to the Offer, Merger, Purchaser
Option or the Stockholder Agreement, (iii) the
execution of the Merger Agreement, the Purchaser
Option or the Stockholder Agreement or (iv) the
commencement or consummation of the Offer or the
Merger or of the other transactions contemplated in
the Merger Agreement, the Purchaser Option, the
Stockholder Agreement or any other agreement,
instrument or document contemplated by any of the
Merger Agreement, the Purchaser Option, the
Stockholder Agreement (each of the events described
in clauses (i), (ii), (iii) or (iv), an "Exempt
Event")."
(b) The definition of "Final Expiration Date" in Section
1(h) of the Agreement is amended to read in its entirety as follows:
"Final Expiration Date" means the earlier to occur of
(1) the Effective Time, as that term is defined in
the Merger Agreement, or (2) December 14, 2010."
(c) The definition of "Transaction" in Section 1(p) of
the Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary, no Transaction shall be deemed to have
occurred solely as the result of an Exempt Event."
(d) Section 1 of the Agreement is amended to add the
following defined terms at the end thereof:
"(r) Additional defined terms relating to certain
transactions between the Company, Emulex and
Sub:
(i) "Common Stock" shall mean the
shares of common stock, par value
$.00015, of the Company.
(ii) "Emulex" shall mean Emulex
Corporation, a Delaware
corporation.
(iii) "Exempt Event" shall have the
meaning set forth in Section 1(a).
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(iv) "Merger" shall mean the merger of
Sub with and into the Company as
provided in the Merger Agreement.
(v) "Merger Agreement" shall mean the
Agreement and Plan of Merger
entered into by and between the
Company, Emulex and Sub as the same
may be amended from time to time.
(vi) "Offer" shall mean the cash tender
offer by Sub (as it may be amended
from time to time as permitted by
the Merger Agreement) to acquire
(i) all shares of the issued and
outstanding Common Stock (together
with any associated Rights) and
(ii) all shares of the issued and
outstanding Series B Preferred
Stock for the Offer Price defined
in the Merger Agreement, net to the
seller thereof in cash, subject to
the terms and conditions of the
Merger Agreement.
(vii) "Purchaser Option" shall mean that
certain Purchaser Option Agreement,
as the same may be amended from
time to time, entered into between
the Company, Emulex and Sub,
pursuant to which, among other
things, the Company will grant to
Sub an option to purchase certain
newly-issued shares of Common Stock
and/or Series B Preferred Stock.
(viii) "Series B Preferred Stock" shall
mean the Series B convertible
preferred stock, par value $.001,
of the Company.
(ix) "Stockholder Agreement" shall mean
that certain Stockholder Agreement,
as the same may be amended from
time to time, entered into by
Emulex and Sub, on the one hand,
and certain stockholders of the
Company listed on Schedule 1
thereto, on the other hand,
pursuant to which each such
stockholder has agreed, among other
things, to tender his, her or its
shares of Common Stock and Series B
Preferred Stock into the Offer, to
grant to Emulex the right to
purchase shares of Common Stock
and/or Series B Preferred Stock
owned by such stockholder at the
Offer Price defined in the Merger
Agreement and to grant to Emulex a
proxy to vote such stockholder's
shares of Common Stock and/or
Series B Preferred Stock in favor
of the Merger.
(x) "Sub" shall mean Aviary Acquisition
Corp., a Delaware corporation and a
wholly-owned subsidiary of Emulex,
formed by Emulex in connection with
its proposed acquisition of the
Company.
(e) Section 3(a) of the Agreement is amended to add the
following sentence at the end thereof:
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"Notwithstanding anything in this Agreement to the
contrary, neither a Shares Acquisition Date nor a
Distribution Date shall be deemed to have occurred
solely as the result of an Exempt Event."
(f) Clause (i) of the first sentence of Section 7(a) of
the Agreement is amended to read in its entirety as follows:
"(i) the Close of Business on the Final
Expiration Date".
Section 7(a) of the Agreement is amended by adding the
following sentence at the end thereof:
"The Company agrees to promptly notify the Rights
Agent after the occurrence of the Effective Time,
stating that the Final Expiration Date has occurred.
Notwithstanding anything to the contrary in this
Agreement, no Exempt Event shall be deemed to be an
event that causes the Rights to become exercisable
under the provisions of this Section 7 or otherwise."
Section 11(a)(ii) of the Agreement is amended by adding the
following sentence at the end thereof:
"In addition, notwithstanding anything to the
contrary in this Agreement, no Exempt Event shall be
deemed to constitute an event of the type described
in this Section 11(a)(ii) or cause the Rights to be
adjusted or become exercisable in accordance with
this Section 11."'
Section 13(a) of the Agreement is amended by adding the
following sentence at the end thereof:
"Notwithstanding anything to the contrary in this
Agreement no Exempt Event shall be deemed to be an
event of the type described in this Section 13(a) or
cause the Rights to be adjusted or to become
exercisable in accordance with this Section 13(a) or
otherwise be subject to any restrictions contained in
this Section 13."
Section 30 of the Agreement is amended by adding the following
sentence at the end thereof:
"Notwithstanding the foregoing, nothing in this
Agreement shall be construed to give any of the
Company, the Rights Agent, registered holder of the
Right Certificates (and prior to any Distribution
Date, the Common Shares) or any other person or
entity any legal or equitable rights, remedy or claim
under this Agreement in connection with any Exempt
Event."
Section 2. Full Force and Effect. Except as expressly amended
hereby, the Agreement shall continue in full force and effect in accordance with
the provisions thereof on the date hereof.
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Section 3. Governing Law. This Amendment shall be governed by
and construed in accordance with the law of the State of Delaware applicable to
contracts to be made and performed entirely within such State.
Section 4. Agreement as Amended. The term "Agreement" as used
in the Agreement shall be deemed to refer to the Agreement as amended hereby,
and all references to the Agreement shall be deemed to include this Amendment
No. 1.
Section 5. Effectiveness. This Amendment No. 1 shall be
effective as of the date first written above, and except as set forth herein,
the Agreement shall remain in full force and effect and otherwise shall be
unaffected hereby.
Section 6. Counterparts. This Amendment may be signed in one
or more counterparts, all of which shall be considered one and the same
instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Rights Agents have
caused this Amendment to be duly executed as of the day and year first above
written.
VIXEL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
COMPUTERSHARE TRUST COMPANY, INC.
as Rights Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trust Officer-Ops Manager