Exhibit 2.2
Amended and Restated
Transfer Agreement
This Amended and Restated Transfer Agreement (this "Amendment") is entered
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into as of August 3, 2001 by and among Cabletron Systems, Inc., a Delaware
corporation ("CSI") and Riverstone Networks, Inc., a Delaware corporation
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("Riverstone").
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RECITALS
WHEREAS the parties entered into the Transfer Agreement (the "Agreement")
dated July 10, 2001, and the parties now wish to amend and restate the
Agreement;
WHEREAS CSI currently holds securities valued at $13 million (the
"Investment Securities") in certain entities (the "Investment Companies") as
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listed on Exhibit A hereto;
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WHEREAS CSI wishes to transfer to Riverstone $122,237,378.00 in cash (the
"Cash") and all of its rights and obligations relating to the Investment
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Securities, in exchange for 7,117,757 shares of common stock, par value $.01 per
share, of Riverstone (the "Riverstone Shares"); and
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WHEREAS, in exchange for the Cash and the Investment Securities, Riverstone
wishes (i) to issue the Riverstone Shares to CSI and (ii) to assume all
obligations of CSI as a security holder with respect to the Investment
Securities being assigned to it;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, CSI and Riverstone agree as follows:
5. Amendment and Restatement. The parties hereby agree that this Amendment
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amends the Agreement to the extent expressly provided herein and otherwise
restates the Agreement in its entirety effective as of the date of that
Agreement.
6. Transfer of Cash and Investment Securities for the Riverstone Shares.
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Subject to the terms and conditions herein set forth:
6.1. The Transfer. CSI hereby agrees to transfer to Riverstone the Cash
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and all of its rights, title and interest in and to the Investment
Securities, free and clear of any liens, and in exchange therefor,
Riverstone shall issue to CSI the Riverstone Shares free and clear of
any liens, and shall assume
any liabilities and obligations associated with the Investment
Securities, including but not limited to the obligations of CSI set
forth on Exhibit B hereto, all effective as of the Closing (as defined
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in Section 4), except for transfer of title to the Investment
Securities, which shall occur as set forth in Section 1.2 below.
1.2. Transfer of Title. CSI and Riverstone hereby covenant and agree to
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execute and deliver such further instruments and take such further
actions as may be required to (a) provide notice to the Investment
Companies regarding, or obtain the consent of the Investment Companies
to, the substitution of Riverstone in place of CSI as the record owner
of the Investment Securities, (b) convey title to the Investment
Securities to Riverstone as soon as practicable after the Closing, and
(c) cause Riverstone to be admitted as a party to all applicable
investment documents, including without limitation, any shareholder
agreements or registration rights agreement relating to the Investment
Securities ("Investment Documents").
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1.3. Continuing Obligations. CSI agrees and acknowledges that from the
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Closing and until such time as title to the Investment Securities has
been conveyed in accordance herewith and with the terms of any
applicable Investment Documents, CSI will (i) remain the record holder
of the Investment Securities; (ii) transfer any distributions and
forward any notices in respect of the Investment Securities to
Riverstone immediately upon receipt thereof; and (iii) vote its
Investment Securities as directed by Riverstone.
7. Riverstone Share Price. The per share price for the common stock of
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Riverstone agreed upon by the parties for purposes of determining the
number of Riverstone Shares deliverable by Riverstone to CSI hereunder in
exchange for the Cash and the Investment Securities was the average closing
price for Riverstone common stock for the thirty (30) consecutive trading
days ending on July 9, 2001, namely $19.00 per share.
8. The Closing. The consummation of the transactions contemplated by Sections
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1 and 2 of this Amendment (the "Closing") shall take place on such date
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and at such time as CSI and Riverstone mutually agree, at the offices of
Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000, or at such other
location as CSI and Riverstone mutually agree. At the Closing (i) CSI shall
deliver the Cash by wire transfer of immediately available funds; and (ii)
Riverstone shall deliver to CSI certificates representing the Riverstone
Shares.
9. Miscellaneous.
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9.1. Entire Agreement. This Amendment and the other documents and
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instruments delivered pursuant hereto constitute the entire agreement
among the parties hereto pertaining to the subject matter hereof and
supersede all prior or contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties
with respect to such subject matter.
9.2. Amendment. The parties hereto may not amend this Amendment except by
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a written instrument executed by the parties hereto.
9.3. Severability. In the event that any provision hereof would, under
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applicable law, be invalid or unenforceable in any respect, such
provision shall (to the extent permitted under applicable law) be
construed by modifying or limiting it so as to be valid and
enforceable to the maximum extent compatible with, and possible under,
applicable law. The provisions hereof are severable, and in the event
any provision hereof should be held invalid or unenforceable in any
respect, it shall not invalidate, render unenforceable or otherwise
affect any other provision hereof.
9.4. Successors and Assigns. All of the terms and provisions of this
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Amendment shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted transferees and assigns
(each of which transferees and assigns shall be deemed to be a party
hereto for all purposes hereof); provided, however, that (i) no
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transfer or assignment by any party hereto shall be permitted without
the prior written consent of the other party hereto and any such
attempted transfer or assignment without consent shall be null and
void and (ii) no transfer or assignment by any party shall relieve
such party of any of its obligations hereunder.
9.5. Notices. Any notices or other communications required or permitted
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hereunder shall be sufficiently given if in writing and delivered
personally or sent by telecopier, Federal Express, or registered or
certified mail, postage prepaid, addressed as follows:
If to CSI,
to it at: Cabletron Systems, Inc.
00 Xxxxxxxxxx Xxx
Xxxxxxxx 00
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
If to Riverstone,
to it at: Riverstone Networks, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
Unless otherwise specified herein, such notices or other
communications shall be deemed received (a) on the date delivered, if
delivered personally, (b) two business days after being sent by
Federal Express, if sent by Federal Express, (c) one business day
after being delivered, if delivered by telecopier and (d) three
business days after being sent, if sent by registered or certified
mail. Each of the parties hereto shall be entitled to specify a
different address by giving notice as aforesaid to each of the other
parties hereto.
9.6. Interpretation. Section and subsection headings are not to be
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considered part of this Amendment, are included solely for
convenience, are not intended to be full or accurate descriptions of
the content thereof and shall not affect the construction hereof. No
rule of strict construction shall apply to or be used against any
party hereto.
9.7. Third Party Beneficiaries. Nothing in this Amendment is intended or
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shall be construed to entitle any person or entity other than the
parties and their respective transferees and assigns permitted hereby
to any claim, cause of action, remedy or right of any kind.
9.8. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
9.9. Governing Law. This Amendment shall be governed by and construed in
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accordance with the domestic substantive laws of the State of
Delaware, without giving effect to any choice or conflict of law
provision or rule that would cause the application of the laws of any
other jurisdiction.
9.10. Further Assurances. Each party agrees to take such further action
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and execute, deliver and/or file such documents or instruments as are
necessary to carry out the terms and purposes of this Amendment.
IN WITNESS WHEREOF, the undersigned have executed this instrument under
seal effective as of the date first written above.
CABLETRON SYSTEMS, INC.
Dated: August 3, 2001 By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: CEO & President
RIVERSTONE NETWORKS, INC.
Dated: August 3, 2001 By: /s/ Romulus X. Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: CEO
