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EXHIBIT 2.2
AMENDING AGREEMENT
THIS AMENDING AGREEMENT is made and entered into as of July
25, 1997 by and between CISCO SYSTEMS, INC., a California corporation
("Acquiror") and SKYSTONE SYSTEMS INCORPORATED ("Skystone"), a corporation
continued and existing under the laws of Nova Scotia.
WHEREAS Acquiror and Skystone are parties to an Amended and
Restated Acquisition Agreement dated as of June 9, 1997 (the "Acquisition
Agreement") pursuant to which a Reorganization (as defined and described in the
Acquisition Agreement) was to take place resulting in Acquiror holding all of
the issued and outstanding common shares in the capital of Target, all upon the
terms and subject to the conditions set forth in the Acquisition Agreement;
AND WHEREAS Acquiror has determined that it would be to its
commercial benefit to establish a Nova Scotia unlimited liability company as a
vehicle for the holding of its investment in Target as contemplated in Schedule
"C" to the Acquisition Agreement (the "Alternative Structure");
AND WHEREAS Target has consented to the amendment of the
Acquisition Agreement and the implementation of the Alternative Structure (with
minor modifications) at the request of Acquiror, subject to the inclusion of the
terms and conditions set out below.
NOW THEREFORE (i) in consideration of Target consenting to the
use of the Nova Scotia unlimited liability company (as contemplated above) in
exchange for Acquiror providing the covenants set forth in Article XIV of the
Voting and Exchange Trust Agreement to be entered into between Acquiror,
Skystone Systems Company and Montreal Trust Company of Canada and (ii) in
consideration of the mutual covenants and agreements herein contained and
intending to be legally bound thereby, the parties hereto hereby agree as
follows:
1. DEFINED TERMS
Terms with initial capitals used herein shall have the same
meanings when used herein as in the Acquisition Agreement.
2. AMENDMENTS
2.1 The fourth recital to the Acquisition Agreement is hereby
deleted in its entirety and replaced with the following:
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"WHEREAS, all options to purchase Target Common Stock (the
"Target Common Stock"), whether vested or unvested, will be
assumed by Acquiror and will relate to Acquiror Common Stock
(the "Acquiror Common Stock")".
2.2 Section 1.2 of the Acquisition Agreement is hereby deleted in
its entirety and replaced by the following:
"1.2 Acquisition Structure. As promptly as practicable after
the satisfaction or waiver of the other conditions set out in
Article VI, the parties hereto shall cause the reorganization
to be effected utilizing the following steps and in the
following order (all of such steps are herein collectively
referred to as the "Reorganization"):
(a) each of Target and Acquisition Corporation
will be continued from the CBCA into the
Province of Nova Scotia as limited liability
companies under the provisions of the
Companies Act (Nova Scotia) (the "NS Act").
Such continuances (the "Continuances") will
each require a "special resolution" to be
effected by signed consent resolution of all
of their respective shareholders and the
issuance of Memorandum and Articles of
Association under the NS Act.
(b) Acquiror will incorporate an unlimited
liability company ("Unlimco") under the NS
Act as a wholly-owned subsidiary by way of
Memorandum and Articles of Association.
(c) Acquiror will incorporate another unlimited
liability company ("Special Unlimco") under
the NS Act as a wholly-owned subsidiary by
way of Memorandum and Articles of
Association.
(d) Acquisition Corporation and Special Unlimco
will be amalgamated (the "Special
Amalgamation") by way of amalgamation
agreement under the NS Act and the resulting
company ("Special Amalco") will be an
unlimited liability company under the NS
Act. Each of the amalgamating companies will
approve the amalgamation by "special
resolution" to be effected by signed consent resolution
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signed by all of its shareholders. The authorized capital of
Special Amalco will be 25,000,000 shares of common stock.
(e) Target and Unlimco will amalgamate (the "Amalgamation") by way
of Amalgamation Agreement under the NS Act and the resulting
company ("Amalco/Unlimco") will be an unlimited liability
company under the NS Act. Each of the amalgamating companies
will approve the amalgamation by "special resolution" to be
effected by signed consent resolution signed by all of its
shareholders. The authorized capital of Amalco/Unlimco will
consist of 100,000,000 common shares, 10,000,000 Class A
common shares and 10,000,000 Exchangeable Shares having the
respective rights, privileges, restrictions and conditions as
set forth on Schedule "A" annexed hereto.
Upon the Amalgamation the shares of each of the amalgamating
companies will be converted into common shares of
Amalco/Unlimco as follows:
(i) the issued and outstanding shares of Unlimco will be
converted into common shares of Amalco/Unlimco; and
(ii) All of the issued and outstanding shares of Target will
be converted into Class A common shares of
Amalco/Unlimco, except for Target Common Stock held by
holders who give prior notice to Target to convert all
or a designated number of such shares into common shares
of Amalco/Unlimco.
(f) Immediately following the Amalgamation, the memorandum and
articles of association of Amalco will be amended to provide
for the exchange of the Class A common shares of
Amalco/Unlimco into Exchangeable Shares (the "Exchange") based
on the Exchange Ratio (as defined herein) and to split the
issued and outstanding common shares into 50,000,000 such
shares. Such amendment will be effected by signed consent
resolution signed by all shareholders. A certified copy of
this Special Resolution
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will be filed with the Companies Branch in Nova Scotia. For
purposes of this Acquisition Agreement, the "Effective Time"
and "Effective Date" will be the date and time of filing of
the certified copy of the Special Resolution."
2.3 Schedule A to the Acquisition Agreement is hereby deleted in
its entirety and replaced by Schedule A annexed hereto.
2.4 Section 2.3 of the Acquisition Agreement is hereby amended by
deleting the words "(iii) the filing and recordation of articles of amendment
and other appropriate reorganization or other documents as required by the CBCA"
with the following:
"(iii) the filing and recordation of (A) a certificate of
continuance under the NS Act, along with Memorandum and Articles
of Association, in form satisfactory to both parties, for Target,
(B) the obtaining of requisite Court approval for each of the
Amalgamation and the Special Amalgamation, as required by the NS
Act, and the subsequent filing and recordation under the NS Act of
the applicable amalgamation agreements, along with a Memorandum
and Articles of Association, in form satisfactory to both parties,
(C) the filing and recordation under the NS Act of a certified
copy of a special resolution effecting the Exchange, and such
other documents as may be necessary or desirable to effect the
Reorganization."
2.5 Section 3.3(iii) is hereby deleted and replaced with "(iii) the
filing and recordation of an appropriate Memorandum and Articles of Association
under the NS Act,".
2.6 Section 5.11 is hereby deleted and replaced with the following:
"Employee Benefit Plan. At the Effective Time, the Target Stock
Options, whether vested or unvested, will be amended to relate to
Acquiror Common Stock (instead of Target Common Stock). Target
represents and warrants to Acquiror that Schedule 5.11 hereto sets
forth a true and complete list as of the date hereof of all
holders of outstanding options of Target, including the number of
shares of Target Common Stock subject to each such option, the
exercise of vesting schedule, the exercise price per share and the
term of each such option. On the date immediately preceding the
Effective Date, Target shall deliver to Acquiror an updated
Schedule 5.11 hereto current as of such date. Each such option so
assumed by Acquiror under this Agreement shall continue to have,
and be subject to, the same terms and
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conditions, immediately prior to the Effective Date, except that
(i) such option will be exercisable for that number of whole
shares of Acquiror Common Stock equal to the product of the number
of shares of Target Common Stock that were issuable upon exercise
of such option, immediately prior to the Effective Date multiplied
by the Exchange Ratio and rounded down to the nearest whole number
of Acquiror Common Stock, and (ii) the per share exercise price
for the Acquiror Common Stock issuable upon exercise of such
assumed option will be equal to the quotient determined by
dividing the exercise price per share of Target Common Stock at
which such option was exercisable immediately prior to the
Effective Date by the Exchange Ratio, rounded up to the nearest
whole cent. Consistent with the terms of the documents governing
the outstanding options, the Reorganization will not terminate any
of the outstanding options or accelerate the exercisability or
vesting of such options or the Acquiror Common Stock which will be
subject to those options upon the Acquiror's assumption of the
options in the Reorganization. Within 20 business days after the
Effective Date, Target will issue to each person who, immediately
prior to the Effective Date, was a holder of a Target Option a
document in form and substance satisfactory to Acquiror."
2.7 All references in Section 8.1 to the number "106,031" are hereby
deleted and replaced by the number "81,949".
2.8 The reference in Section 9.2(a) to the facsimile number of
Stikeman, Xxxxxxx is hereby deleted and replaced with the number "(416)
947-0866".
2.9 The references in Schedule B to the Acquisition Agreement to the
numbers "1,060,313" and "1,160,313" are hereby deleted and replaced by the
numbers "1,062,297" and "1,162,297", respectively.
3. CONFIRMATION. Save and accept as expressly amended hereby, the
Acquisition Agreement shall remain in full force and effect in accordance with
its terms and the Acquisition Agreement and this Amending Agreement shall be
read as one and the same instrument.
4. GOVERNING LAW. This Amending Agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario and the laws of
Canada applicable therein.
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5. ENUREMENT. This Amending Agreement shall enure to the benefit of
and shall be binding upon the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Acquiror and Skystone have caused this
Amending Agreement to be executed and delivered by their respective officers
thereunto duly authorized, all as of the date first above written.
CISCO SYSTEMS, INC.
as per: /s/ Xxxx X. Xxxxxxxx
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SKYSTONE SYSTEMS INCORPORATED
as per: /s/ Xxxxxxx Xxxxxxx
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