Exhibit 2.1
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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:
1. 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.
2. Transfer of Cash and Investment Securities for the Riverstone Shares.
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Subject to the terms and conditions herein set forth:
2.1. The Transfer. CSI hereby agrees to transfer to Riverstone the Cash
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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
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defined in Section 4), except
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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.
3. 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.
4. 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.
5. Miscellaneous.
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5.1. 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
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supersede all prior or contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties with
respect to such subject matter.
5.2. Amendment. The parties hereto may not amend this Amendment except by a
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written instrument executed by the parties hereto.
5.3. 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.
5.4. Successors and Assigns. All of the terms and provisions of this Amendment
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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 transfer or assignment by
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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.
5.5. 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
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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.
5.6. Interpretation. Section and subsection headings are not to be considered
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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.
5.7. Third Party Beneficiaries. Nothing in this Amendment is intended or shall
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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.
5.8. 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.
5.9. 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.
5.10. Further Assurances. Each party agrees to take such further action and
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execute, deliver and/or file such documents or instruments as are
necessary to carry out the terms and purposes of this Amendment.
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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/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: CEO
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