Exhibit 2.2
AGREEMENT REGARDING
THE AMENDED AND RESTATED TRANSFORMATION AGREEMENT
This Agreement Regarding the Amended and Restated Transformation Agreement
(this "Agreement") is made as of November 19, 2001 by and between Aprisma
Management Technologies, Inc., a Delaware corporation ("Aprisma") and Enterasys
Networks, Inc., a Delaware corporation (formerly known as Cabletron Systems,
Inc.) ("New Enterasys").
Reference is made to that certain Amended and Restated Transformation
Agreement entered into as of June 3, 2000 (the "Transformation Agreement") among
New Enterasys (then known as Cabletron Systems, Inc. ("CSI")), Aprisma,
GlobalNetwork Technology Services, Inc., a Delaware corporation , Riverstone
Networks, Inc., a Delaware corporation and Enterasys Networks, Inc., a Delaware
corporation which was a subsidiary of CSI prior to its merger into CSI ("Old
Enterasys").
1. Merger.
1.1. Aprisma acknowledges that effective as of 12:01 A.M. on August 6,
2001 Old Enterasys merged into CSI (the "Merger") and CSI was renamed "Enterasys
Networks, Inc." Aprisma hereby consents to any deemed assignment of the
Transformation Agreement by Old Enterasys in connection with the Merger and
acknowledges that upon effectiveness of the Merger New Enterasys assumed all of
the rights of Old Enterasys under the Transformation Agreement. New Enterasys
hereby confirms that upon the effectiveness of the Merger it assumed all of the
all obligations of Old Enterasys owed to Aprisma under the Transformation
Agreement.
1.2. Effective as of the time of the Merger, New Enterasys shall for the
purposes of the Transformation Agreement as between Aprisma and New Enterasys,
be deemed to be "CSI" (as that term is used in the Transformation Agreement)
and, unless the context otherwise requires, also a "Newco" (as that term is used
in the Transformation Agreement). For the avoidance of doubt, for the purposes
of Sections 4.11 of the Transformation Agreement New Enterasys shall not be
deemed to be a Newco. For the purposes of Sections 4.11 of the Transformation
Agreement New Enterasys shall not be deemed to be a Newco and the dispute
resolution procedures of Section 4.10.2 of the Transformation Agreement shall
apply to any Dispute (as defined in the Transformation Agreement) between
Aprisma and New Enterasys beginning when Aprisma has either consummated an IPO
(as defined in the Transformation Agreement) or ceases to be a majority owned
subsidiary of New Enterasys.
1.3. CSI Guidelines and Public Announcements. Sections 4.6 and 4.14 of the
Transformation Agreement shall have no further effect between Aprisma and New
Enterasys beginning when Aprisma has either consummated an IPO (as defined in
the Transformation Agreement) or ceases to be a majority-owned subsidiary of New
Enterasys.
1.4. Allocation of Assets and Liabilities. The parties acknowledge and
agree that New Enterasys shall make no further allocation of assets or
liabilities to Aprisma or terminate any agreement with Aprisma pursuant to
Section 5 of the Transformation Agreement beginning when Aprisma has either
consummated an IPO (as defined in the Transformation Agreement) or ceases to be
a majority-owned subsidiary of New Enterasys.
1.5. Fiscal Year. Notwithstanding anything to the contrary in the
Transformation Agreement, Aprisma shall not be required to change its fiscal
year to match the new fiscal year of New Enterasys, and Section 4.3.2 of the
Transformation Agreement shall not apply between New Enterasys and Aprisma
beginning when Aprisma has either consummated an IPO (as defined in the
Transformation Agreement) or ceases to be a majority-owned subsidiary of New
Enterasys.
2. Miscellaneous.
2.1. Entire Agreement. This Agreement, together with the Transformation
Agreement constitutes 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.
2.2. Amendment or Waiver. The parties hereto may not amend this Agreement
except by a written instrument executed by the parties hereto.
2.3. Severability. In the event that any provision hereof would, under
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.
2.4. Successors and Assigns. All of the terms and provisions of this
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 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.
2.5. Notices. Any notices or other communications required or permitted
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 set forth in Section 9.5 of the Transformation Agreement.
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
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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.
2.6. Interpretation. Section and subsection headings are not to be
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.
2.7. Third Party Beneficiaries. Nothing in this Agreement is intended or
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.
2.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
2.9. Governing Law. This Agreement shall be governed by and construed in
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.
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IN WITNESS WHEREOF, the undersigned have executed this instrument under
seal as of the date first written above.
APRISMA MANAGEMENT
TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
ENTERASYS NETWORKS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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