Exhibit 2.2
EXECUTION COPY
[Avaya Inc. Letterhead]
October 26, 2003
CommScope, Inc.
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Ladies and Gentlemen:
CommScope, Inc. ("CommScope"), SS Holdings, LLC and Avaya Inc.
("Avaya") have entered into that certain Asset Purchase Agreement dated as
of the date hereof (the "Asset Purchase Agreement"). This letter agreement
sets forth the parties understanding regarding certain amendments that
shall be made to the Asset Purchase Agreement if the conditions stated
herein are met. Capitalized terms not defined herein have the meanings
ascribed to them in the Asset Purchase Agreement.
If prior to Closing, CommScope obtains financing in an amount
which, if CommScope were to make a cash payment of $250 million to Avaya at
Closing, CommScope would have excess availability under the financing
arrangements then in place plus unrestricted domestic cash of at least $100
million, then:
1. Section 2.3 of the Asset Purchase Agreement shall be amended
and replaced in its entirety with the following:
"In consideration of the sale, transfer, assignment, conveyance
and delivery by Seller and the Seller Subsidiaries of the Purchased Assets
to Buyer, and in addition to assuming the Assumed Liabilities, Parent shall
cause Buyer at the Closing to (i) pay to Seller an aggregate amount equal
to Two Hundred Fifty Million Dollars ($250,000,000) in cash (the "Cash
Payment") by wire transfer of immediately available funds to an account or
accounts designated by Seller's written instructions given to Buyer at
least two Business Days prior to the Closing, which amount shall be subject
to adjustment pursuant to Section 2.4 below and (ii) deliver to Seller a
stock certificate or certificates of Parent (bearing any applicable legend
required under federal or state securities laws) in the names and amounts
designated by Seller at least two Business Days prior to Closing
representing a number of shares (the "Parent Shares") of common stock, par
value $0.01 per share, of Parent ("Parent Common Stock") determined as
follows: if the average per share closing price of the Parent Common Stock,
as reported on the New York Stock Exchange Composite Transactions Tape (as
reported by The Wall Street Journal (Northeast Edition)), or if not
reported thereby, by any other authoritative source) for the ten (10)
trading days immediately prior to the trading day prior the Closing Date
("Average Price") is (a) not less than $10.00 and not more than $13.00,
then the number of Parent Shares shall be equal to Twenty Two Million Nine
Hundred Thousand Dollars ($22,900,000) divided by the Average Price; (b)
less than $10.00, then the number of Parent Shares shall be equal to
2,290,000 shares of Parent Common Stock; and (c) more than $13.00, then the
number of Parent Shares shall be equal to 1,761,538 shares of Parent Common
Stock (the Cash Payment and the Parent Shares, collectively, the "Purchase
Price")."
Page 2
2. All references to the Convertible Note and Conversion Shares
in the Purchase Agreement and the Registration Rights Agreement shall be
deleted and, for the avoidance of doubt, CommScope shall not be obligated
to issue the Convertible Note or the Conversion Shares to Avaya.
3. Section 5.4(j) of the Asset Purchase Agreement will be amended
and replaced in its entirety with the following:
"If the sum of the Pension Liabilities and the Retiree Welfare
Liabilities exceeds the sum of the Pension Transfer Amount and VEBA
Transfer Amount (such excess herein referred to as the "Underfunding") by
more than $56,700,000, then on the Second Transfer Date, Seller shall pay
to Buyer by wire transfer of immediately available funds to such account or
accounts as Buyer may designate to Seller in writing, the amount of the
Underfunding exceeding $56,700,000. Any amounts paid under this Section
5.4(j) shall be paid together with interest thereon at the rate of interest
per annum equal to the prime rate as announced by ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank,
N.A. on the date payment is to be made, calculated from the Closing Date
through the date on which payment is made."
4. The Asset Purchase Agreement, as amended, shall continue in
full force and effect in accordance with its terms and the parties shall
not be obligated to make any other amendment to the Asset Purchase
Agreement or the Registration Rights Agreement, other than as contemplated
hereby.
By executing this letter agreement in the space provided below,
each party accepts the terms hereof and agrees to be bound by the
obligations set forth herein.
AVAYA INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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AGREED AND ACCEPTED:
COMMSCOPE, INC.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SS HOLDINGS, LLC
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President