Amendment No. 1 to the Amended and Restated Asset Sale Agreement
Exhibit 2.2
Amendment No. 1 to the Amended and Restated Asset Sale Agreement
This Amendment No. 1 (“Amendment No. 1”), dated as of the 3rd day of December 2009, to
the Amended and Restated Asset Sale Agreement (the “Agreement”), dated as of November 24,
2009, by and among Nortel Networks Corporation, a corporation organized under the laws of Canada
(“NNC”), Nortel Networks Limited, a corporation organized under the laws of Canada
(“NNL”), Nortel Networks Inc., a corporation organized under the laws of Delaware
(“NNI” and, together with NNC and NNL, the “Main Sellers”), and the other entities
identified therein as Sellers, and Ciena Corporation, a corporation organized under the laws of
Delaware (the “Purchaser”). Capitalized terms used herein and not defined shall have the
meaning set forth in the Agreement.
WHEREAS, pursuant to the Agreement, among other things, the Sellers have agreed to transfer to
the Purchaser, and the Purchaser has agreed to purchase and assume, the Assets and the Assumed
Liabilities from the Sellers upon the terms and conditions set forth therein;
WHEREAS, pursuant to the Recitals to the Agreement, “Ancillary Agreements” is defined;
WHEREAS, pursuant to Section 2.2.1 of the Agreement, certain provisions related to the payment
of a portion of the Purchase Price with the Convertible Notes are set forth;
WHEREAS, pursuant to Section 2.3.2(b) of the Agreement, certain Closing deliverables are set
forth;
WHEREAS, Exhibits 2.2.1(b)(ii) and 2.2.1(b)(iii) of the Agreement set out certain economic
terms of the Convertible Notes; and
WHEREAS, pursuant to Section 11.4 of the Agreement, the Parties desire to amend the Recitals
to the Agreement, Section 2.2.1 and Section 2.3.2(b) of the Agreement, and Exhibits 2.2.1(b)(ii)
and 2.2.1(b)(iii) to the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for
other good, valuable and binding consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. In clause (xii) of the definition of “Ancillary Agreements” in the last paragraph of the
Recitals to the Agreement, replace “Cash Election Option” with “Cash Replacement Election”.
2. Section 2.2.1(a) of the Agreement is hereby amended and restated in its entirety as
follows:
“Pursuant to the terms and subject to the conditions set
forth in this Agreement, in consideration of the
purchase, sale, assignment and conveyance of the
Sellers’ and EMEA Sellers’ right, title and interest in,
to and under the Assets and the EMEA Assets,
respectively, pursuant to the terms hereof and pursuant
to the terms of the EMEA Asset Sale Agreement,
respectively, and of the rights granted by certain
Sellers and the EMEA Sellers under the Intellectual
Property License Agreement and the Trademark License
Agreement, the Purchaser, on its own behalf and as agent
for the relevant Designated Purchasers, shall (i) assume
and become obligated to pay, perform and discharge, when
due, the Assumed Liabilities and the EMEA Assumed
Liabilities, (ii) subject to adjustment following the
Closing in accordance with Section 2.2.4.2, pay to the
Distribution Agent an amount of cash (the “Cash Purchase
Price”) equal to Five Hundred Thirty Million dollars
($530,000,000) (the “Base Cash Purchase Price”) less the
Escrow Amount and as adjusted pursuant to Sections 2.2.2
and 2.2.4 and Section 5.28 of the Sellers Disclosure
Schedule or as otherwise expressly provided herein, in
the Real Estate Terms and Conditions or in the EMEA
Asset Sale Agreement, and (iii) subject to Section
2.2.7, issue to the Distribution Agent, as agent for the
Sellers and the EMEA Sellers, $239,000,000 aggregate
principal amount (the “Aggregate Principal Amount”) of
6.0% Senior Notes due June 15, 2017 (the “Convertible
Notes”, and together with the Cash Purchase Price, as
adjusted, the “Purchase Price”) convertible at the
holder’s option into Common Stock at a conversion price
equal to $16.4625 (the “Conversion Price”), subject to
adjustments contemplated in the Indenture;
provided, however, that the Purchaser
may, by written notice to the Sellers on or before the
Closing Date, elect to increase the Cash Purchase Price
and the Base Cash Purchase Price payable pursuant to
clause (ii) above by an amount equal to $1,020.00 in
cash in lieu of issuing each corresponding $1,000.00 in
principal amount of the Convertible Notes (such
election, if exercised, the “Cash Replacement
Election”); provided further, that if
the Market Value of the Common Stock on the date of the
notice of such election (or in the case the replacement
is made with the proceeds of a simultaneous convertible
security offering the most recent closing price per
share of the Common Stock on the NASDAQ Global Select
Market at the time such convertible security offering is
priced) is equal to or
greater than $17.00 per share of Common Stock, then in
lieu of increasing the Cash Purchase Price as provided
above such increase will equal the Optional Redemption
Price corresponding to such principal amount.”
3. Section 2.3.2(b)(iv) of the Agreement is hereby amended and restated in its entirety as
follows:
“subject to Section 2.2.7, and unless the Cash
Replacement Election has been exercised in full, on
behalf of the Distribution Agent one or more permanent
Global Notes (as defined in the Indenture) deposited
with the Notes Custodian (as defined in the Indenture)
for the Depositary (as defined in the Indenture) for the
account of the Distribution Agent in the Depositary,
duly executed by the Purchaser and authenticated by the
Trustee (as defined in the Indenture) in the aggregate
principal amount of the Aggregate Principal Amount minus
any amounts reduced by the Cash Replacement Election
pursuant to Section 2.2.1(a) (as amended);”
4. The Exhibit to the Agreement currently labeled “Exhibit 2.2.1(b)(ii) — Related Share
Adjustment Table” shall instead be labeled “Exhibit 2.2.1(b)(iii) — Redemption — Additional
Shares Table”.
5. The Exhibit to the Agreement currently labeled “Exhibit 2.2.1(b)(iii) — Conversion
Table” shall instead be labeled “Exhibit 2.2.1(b)(ii) — Fundamental Change Make-Whole
Table”.
6. The list of Exhibits in the Agreement shall be amended to correspond to the changes in
Paragraph 4 and Paragraph 5 above.
7. This Amendment No. 1 shall not constitute a modification of any provision, term or
condition of the Agreement or any other Transaction Document except solely to the extent and
solely for the purposes described herein. Except to the extent that provisions of the
Agreement are hereby expressly modified as set forth herein, the Agreement and the other
Transaction Documents shall remain unchanged and in full force and effect.
8. This Amendment No. 1 may be executed in multiple counterparts, each of which shall
constitute one and the same document.
9. This Amendment No. 1 shall be binding upon the parties hereto and their respective
successors and assigns.
10. Any term or provision of this Amendment No. 1 that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
11. This Amendment No. 1 shall be governed by and construed in all respects by the Laws of
the State of New York without regard to the rules of conflict of laws of the State of New
York or any other jurisdiction. Any Action arising out of or relating to this Amendment No.
1 shall be resolved in accordance with Section 11.6 of the Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have signed, or caused this Amendment No. 1 to be
signed by their respective officers thereunto duly authorized, as of the date first written above.
| NORTEL NETWORKS CORPORATION, on its own behalf and on behalf of the Other Sellers listed in Section 11.15(a)(i) of the Sellers Disclosure Schedule |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Xxxx Xxxxxxxxx | ||||
| SVP, Finance and Corporate Services | ||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Xxxx Xxxxxxxxx | ||||
| General Counsel – Corporate and Corporate Secretary | ||||
| NORTEL NETWORKS LIMITED,
on its own behalf and on behalf of the Other Sellers listed in Section 11.15(a)(ii) of the Sellers Disclosure Schedule |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Xxxx Xxxxxxxxx | ||||
| SVP, Finance and Corporate Services | ||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Xxxx Xxxxxxxxx | ||||
| General Counsel – Corporate and Corporate Secretary | ||||
| NORTEL NETWORKS INC.,
on its own behalf and on behalf of the Other Sellers listed in Section 11.15(a)(iii) of the Sellers Disclosure Schedule |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Xxxx Xxxxxxxxx | ||||
| Chief Legal Officer | ||||
Signature Page — Amendment No. 1 to the Amended and Restated Asset Sale Agreement
| CIENA CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | President and Chief Executive Officer | |||
Signature Page — Amendment No. 1 to the Amended and Restated Asset Sale Agreement
