Exhibit 2.2
Amendment No. 1
TO THE ACQUISITION AGREEMENT
THIS AMENDMENT NO. 1 TO THE ACQUISITION AGREEMENT is made and
entered into effective as of August 4, 2001 by and among ADC Telecommunications,
Inc., a Minnesota corporation, ADC Broadband Communications, Inc., a Delaware
corporation, ADC International Holding Company, a Minnesota corporation, ADC
Phasor Electronics GmbH, an Austrian company, ADC Argentina, S.R.L., an
Argentine limited liability company, and X-XXX.xxx Corp., a Pennsylvania
corporation, Broadband Capital Corp., a Delaware corporation, Broadband Royalty
Corp., a Delaware corporation, and C-COR Europe Holding, B.V., a Netherlands
corporation.
Initially capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in that certain Acquisition Agreement
between the above parties, dated as of July 9, 2001 and amended as of August 4,
2001 (the "Acquisition Agreement").
WHEREAS, Section 9.10 of the Acquisition Agreement permits the parties
to amend the terms and conditions of the Acquisition Agreement provided such
amendment is made in writing signed by the parties.
NOW THEREFORE, the parties hereby agree to amend the Acquisition
Agreement as follows:
1. Paragraph (a) of Section 5.8 of the Acquisition Agreement is hereby
amended and restated in its entirety as follows:
(a) For a period of three (3) years from and after the Closing Date,
Sellers will not and will cause their majority-owned and controlled
Affiliates (other than natural persons) not to, other than in the
performance of Sellers' obligations under this Agreement or the
Ancillary Agreements, directly or indirectly (i) manufacture,
distribute, design, sell, offer or promote products directly
competing with products within the BRC Exclusive Field of Use (as
defined in the License Agreement) (the "BCD Protected Business"),
or (ii) own, manage, operate, join, control or participate in the
ownership, management, operation or control of any person or entity
who or which at any relevant time during such period is engaged in
any business directly competing with the BCD Protected Business;
provided however, that nothing in this Section 5.8 shall prohibit
Sellers from manufacturing, distributing, designing, selling,
offering or promoting any products that may be used in more than
one application (even if one of such applications is within the BCD
Protected Business) so long as such activities are not targeted by
Sellers, whether by design of the product or marketing efforts, at
BRC's Exclusive Field of Use (as defined in the License Agreement).
Provided further, nothing contained herein shall prevent Sellers or
any of their Affiliates from owning securities in any entity that
may be engaged in the Protected Business, but only to the extent
Sellers and their Affiliates, collectively, do not own, of record
or beneficially, more than five percent (5%) of the outstanding
beneficial ownership of such entity.
2. Paragraph (a) of Section 5.11 of the Acquisition Agreement is hereby
amended and restated in its entirety as follows:
(a) Any information provided to Buyers or their representatives or
Affiliates pursuant to this Agreement shall be held by Buyers and
their Affiliates in accordance with, and shall be subject to the
terms of, the letter agreement between X-XXX.xxx and ADC (the
"Confidentiality Agreement"), which is hereby incorporated in this
Agreement as though fully set forth herein and in accordance with
such other terms and conditions as may otherwise be agreed by the
parties; provided, that the provisions of the Confidentiality
Agreement shall expire following the Closing (except with respect
to the provisions contained in the first paragraph on page 2 of the
Confidentiality Agreement).
3. Except as specifically provided herein, all other terms and
conditions of the Acquisition Agreement remain in full force and effect, and
this Amendment No. 1 to the Acquisition Agreement shall not be construed to
amend or waive any provisions of the Acquisition Agreement except as
specifically set forth above.
4. This Amendment No. 1 to the Acquisition Agreement, and the rights
and obligations of the parties hereunder, shall be construed in accordance with,
and governed by the laws of the State of Delaware (without regard to conflict of
laws principles).
5. This Amendment No. 1 to the Acquisition Agreement may be executed in
any number of separate counterparts, all of which when executed and delivered,
shall be deemed to be one and the same instrument.
6. This Amendment No. 1 shall inure to the benefit of and be binding
upon the Buyers and the Sellers and their respective successors, heirs and
assigns.
[Signature Page Follows]
The parties have executed this Amendment No. 1 to the Acquisition Agreement on
the day and year first above written.
BUYERS:
X-XXX.XXX CORP. C-COR EUROPE HOLDING, B.V.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Its: Vice President, Finance Its: Managing Director
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BROADBAND CAPITAL CORP. BROADBAND ROYALTY CORP.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Its: President Its: President
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SELLERS:
ADC TELECOMMUNICATIONS, INC. ADC BROADBAND
COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Its: Its:
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ADC INTERNATIONAL HOLDING ADC PHASOR ELECTRONICS GMBH
COMPANY
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
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Its: Its: Director
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ADC ARGENTINA, S.R.L.
By: /s/ Segismundo Xxxxxxxx Xxxxxxxxx
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Its: Director, Marketing
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