Exhibit 2.3
Agreement Regarding Rescission Offer
This agreement (this "Agreement") is entered into as of July 31, 2001 by
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and among Cabletron Systems, Inc., a Delaware corporation ("CSI") and
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Riverstone Networks, Inc., a Delaware corporation ("Riverstone").
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RECITALS
WHEREAS CSI wishes to transfer to Riverstone $1.5 million in cash (the
"Rescission Cash") in exchange for release from any obligations of CSI in
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respect of the rescission offer of Riverstone relating to Riverstone option
issuances, and Riverstone is willing to accept the Rescission Cash in exchange
for release of CSI from such obligations;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, CSI and Riverstone agree as follows:
1. Rescission Offer. At the Closing, CSI shall pay the Rescission Cash to
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Riverstone, and in consideration thereof, CSI shall be relieved of all
obligations in respect of an offer of rescission of Riverstone relating to
Riverstone option issuances, including without limitation those obligations
under Section 6.2.2 of the Amended and Restated Transformation Agreement
made as of June 3, 2000 among CSI, Riverstone and the other parties thereto
(the "Transformation Agreement"). Effective as of the Closing, all
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agreements between CSI and Riverstone, including without limitation the
Transformation Agreement, shall be deemed amended to reflect the intent of
this Section 1.
2. The Closing. The consummation of the transactions contemplated by Section
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1 of this Agreement (the "Closing") shall take place on such date and at
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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 CSI shall deliver to
Riverstone the Rescission Cash by wire transfer of immediately available
funds.
3. Miscellaneous.
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3.1. Entire Agreement. This Agreement 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.
3.2. Amendment. The parties hereto may not amend this Agreement except by
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a written instrument executed by the parties hereto.
3.3. 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.
3.4. Successors and Assigns. All of the terms and provisions of this
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Agreement 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.
3.5. 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.
3.6. Interpretation. Section and subsection headings are not to be
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considered part of this Agreement, 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.
3.7. Third Party Beneficiaries. Nothing in this Agreement 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.
3.8. Counterparts. This Agreement 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.
3.9. Governing Law. This Agreement 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.
3.10. 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 Agreement.
IN WITNESS WHEREOF, the undersigned have executed this instrument under
seal effective as of the date first written above.
CABLETRON SYSTEMS, INC.
Dated: July 16, 2001 By: /s/ Xxxxx Xxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxx
Title: CFO
RIVERSTONE NETWORKS, INC.
Dated: July 12, 2001 By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
