EXHIBIT 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
EFFICIENT NETWORKS, INC.,
FIRE ACQUISITION CORPORATION
CABLETRON SYSTEMS, INC.
AND
FLOWPOINT CORP.
Dated as of December 14, 1999
AMENDMENT No. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is made and entered into as of December 14, 1999, among Efficient
Networks, Inc., a Delaware corporation ("Purchaser"), Fire Acquisition
Corporation, a California corporation and a wholly-owned subsidiary of Purchaser
("Merger Sub"), Cabletron Systems, Inc., a Delaware corporation ("Parent") and
Flowpoint Corp., a California corporation and a wholly-owned subsidiary of
Parent ("Company").
The Purchaser, Merger Sub, Parent and Company are parties to that certain
Agreement and Plan of Reorganization dated as of November 21, 1999 (the
"Reorganization Agreement"), and desire to amend the Reorganization Agreement as
provided herein.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Defined Terms. Capitalized terms which are used herein without
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definition, but which are defined in the Reorganization Agreement shall have the
same meanings herein as therein defined.
2. Amendment To The Reorganization Agreement
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2.1 Section 1.6(a) of the Reorganization Agreement is hereby amended
by deleting Section 1.6(a) in its entirety and substituting the following
therefor:
(a) Conversion of Company Common Stock. Each share of Common
Stock, par value $0.01 per share, of Company (the "Company Common Stock")
issued and outstanding immediately prior to the Effective Time, other than
any shares of Company Common Stock to be canceled pursuant to Section
1.6(b), will be canceled and extinguished and automatically converted
(subject to Sections 1.6(d) and (e)) into the right to receive 72,000
shares of Common Stock of Purchaser (the "Purchaser Common Stock") and 63
shares of Series A Non-Voting Convertible Preferred Stock having the terms
set forth in the Certificate of Designation attached hereto as Exhibit D
(the "Preferred Stock", together with the Purchaser Common Stock, the
"Merger Consideration") upon surrender of the certificate representing such
share of Company Common Stock in the manner provided in Section 1.7 (or in
the case of a lost, stolen or destroyed certificate, upon delivery of an
affidavit (and bond, if required) in the manner provided in Section 1.9).
2.2 The Certificate of Designation attached to the Reorganization Agreement
as Exhibit D is hereby deleted and replaced with the Certificate of Designation
attached to this Amendment as Exhibit A.
2.3 Section 2.20(f) of the Reorganization Agreement is hereby amended to
delete the word "Disclosure" appearing between the words "Company" and
"Schedule" in clause (i) of the second sentence thereof.
2.4 Section 3.5(a) of the Reorganization Agreement is hereby amended by
deleting Section 3.5(a) in its entirety and substituting the following therefor:
(a) Parent has not disclosed any portion of the Company's Intellectual
Property to any third party except pursuant to a valid and enforceable
confidentiality agreement and has not violated any confidentiality or
use restrictions regarding the Company's Intellectual Property.
2.5 Section 6.10(a) of the Reorganization Agreement is hereby amended
to delete the word "Disclosure" appearing between the words "Parent" and
"Schedule" in the penultimate line of text thereof.
2.6 Section 6.11 of the Reorganization Agreement is hereby amended by
deleting the third sentence thereof in its entirety and substituting the
following therefor:
At the Effective Time, (i) all indemnification and similar obligations of
Company in favor of Parent, (ii) the Master Purchaser Agreement and Master
Escrow Agreement between Parent and the Company, (iii) the OEM Program
License Agreement between Parent and the Company, and (iv) any and all other
commercial agreements between the Parent and the Company (other than the
agreements attached as exhibits to this Reorganization Agreement) shall
automatically and without any further action or notice be cancelled and
extinguished.
2.7 Section 8.2(h) of the Reorganization Agreement is hereby amended
indicate that Parent's U.S. employer identification number is: 00-0000000:
2.8 Section 10.1 is hereby amended to provide that the term "Disclosure
Schedule" set forth in the third line thereof is hereby deleted and replaced
with the term "respective Schedules".
2.9 Section 10.6 of the Reorganization Agreement is hereby amended to
delete the word "Disclosure" appearing in the phrases "Company Disclosure
Schedule" and "Purchaser Disclosure Schedule" appearing in the third line
thereof.
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3. No Other Amendments. Except as expressly provided in this Amendment,
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all of the terms and conditions of the Reorganization Agreement remain unchanged
and are ratified and confirmed in all respects, and the terms and conditions of
the Reorganization Agreement, as amended hereby, remain in full force and
effect.
4. Counterparts. This Amendment may be executed in one or more
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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 party, it being understood that all
parties need not sign the same counterpart.
5. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized respective officers as of the date first
written above.
EFFICIENT NETWORKS, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Chief Executive Officer
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FIRE ACQUISITION CORPORATION
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Chief Executive Officer
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CABLETRON SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: VP of Business Development
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FLOWPOINT CORP.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title:
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