EXHIBIT 2.3
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AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
EFFICIENT NETWORKS, INC.,
FIRE ACQUISITION CORPORATION
CABLETRON SYSTEMS, INC.
AND
FLOWPOINT CORP.
Dated as of December 17, 1999
AMENDMENT No. 2 TO
AGREEMENT AND PLAN OF REORGANIZATION
This AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is made and entered into as of December 17, 1999, among Efficient
Networks, Inc., a Delaware corporation ("Purchaser"), Fire Acquisition
Corporation, a California corporation and a wholly-owned subsidiary of Purchaser
("Merger Sub"), Cabletron Systems, Inc., a Delaware corporation ("Parent") and
Flowpoint Corp., a California corporation and a wholly-owned subsidiary of
Parent ("Company").
The Purchaser, Merger Sub, Parent and Company are parties to that certain
Agreement and Plan of Reorganization dated as of November 21, 1999 as amended by
Amendment No. 1 thereto (collectively, the "Reorganization Agreement"), and
desire to amend the Reorganization Agreement as provided herein.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Defined Terms. Capitalized terms which are used herein without
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definition, but which are defined in the Reorganization Agreement shall have the
same meanings herein as therein defined.
2. Amendment To The Reorganization Agreement
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2.1 Section 6.19 of the Reorganization Agreement is hereby amended by
deleting existing Section 6.19 in its entirety and substituting the following
therefor:
"6.19 Retention.
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(a) Cabletron Options. At the Effective Time, Parent shall
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accelerate the vesting of all options that were granted under the Company's
Option Plan prior to Parent's acquisition of the Company in September 1998
then held by employees of the Company such that all such options then held
by such Company employees are 100% vested and free from blackout, trading
window or similar restrictions.
(b) Retention Pool. Immediately prior to the Effective Time,
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the parties will create a cash payout pool in the aggregate amount of
$8,445,938 (the "Retention Pool") for the benefit of the Company employees
listed on Schedule 6.19 hereto. The Retention Pool will be allocated to the
Company employees as set forth in Schedule 6.19, subject to the time-based
vesting requirements reflected in Schedule 6.19. The parties shall fund the
Retention Pool as follows: (1) immediately prior to the Effective Time,
Parent will deposit in a bank account of Company for the benefit of the
Retention Pool the sum of $4,873,875; (2) immediately prior to the
Effective Time,
Parent will pay to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ the sum of $1,126,125 (less applicable
withholdings); and (3) Purchaser shall be obligated to provide the
remaining $2,445,938 to the Retention Pool as payout therefrom requires.
The amounts set forth in this Section 6.19 shall be in addition to any
amounts in the accounts of Company at the Effective Time and any amounts
required to be deposited therein by any other provision of this
Reorganization Agreement. Purchaser covenants that it will use the
Retention Pool for the benefit of the Company employees listed on Schedule
6.19; provided, however, that in the event that the employment of any such
employee is terminated voluntarily by the employee or involuntarily
terminated by Company or Purchaser with cause, then any unvested amounts
shall not be payable to such employee(s) and shall remain the property of
Company. The concepts of voluntary and involuntary termination, as well as
cause, shall be as set forth in Schedule 6.19."
3. No Other Amendments. Except as expressly provided in this Amendment,
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all of the terms and conditions of the Reorganization Agreement remain unchanged
and are ratified and confirmed in all respects, and the terms and conditions of
the Reorganization Agreement, as amended hereby, remain in full force and
effect.
4. Counterparts. This Amendment may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
5. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized respective officers as of the date first
written above.
EFFICIENT NETWORKS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President and Chief
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Financial Officer
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FIRE ACQUISITION CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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CABLETRON SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Chief Executive Officer
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FLOWPOINT CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President
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