Exhibit 10.47.1
AMENDMENT
TO
AGREEMENT AND PLAN OF
REORGANIZATION
This Amendment to Agreement and Plan
of Reorganization (this “ Amendment ”) is
made as of January 6, 2005, by and among Sawtek, Inc., a
Florida corporation ( “Parent” ), TFR
Technologies, Inc., an Oregon corporation (the
“Company” ), and the undersigned former
shareholders of the Company.
RECITALS
A.
Parent, TFR Acquisition, Inc., an
Oregon corporation and wholly owned subsidiary of Parent (
“MergerSub” ), and the Company are
parties to the Agreement and Plan of Reorganization dated as of
December 14, 2004 (the “ Agreement
”), pursuant to which, on January 5, 2005, MergerSub was
merged with and into the Company, with the Company continuing as
the surviving corporation, and all of the issued and outstanding
shares of common stock of the Company being converted into the
right to receive an aggregate amount of cash equal to the amount
set forth in the Agreement, in accordance with the calculations and
payable at the times set forth therein.
B.
Parent, the Company and the
undersigned former shareholders of the Company desire to amend the
Agreement as set forth herein, pursuant to Section 8.6(b) of
the Agreement.
C.
Unless otherwise defined herein,
capitalized terms used herein shall have the meanings assigned
thereto in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the covenants and agreements set forth herein and in the Agreement,
the parties hereby agree as follows:
1.
Amendment of Agreement and Plan of
Reorganization
The parties hereby modify and amend
the Agreement as follows:
1.1
By amending Section 9.2(b) of
the Agreement by adding the following clause to the end of the
proviso in the first sentence of such Section:
; and, provided
further , that, notwithstanding the foregoing, the Threshold
Amount shall not apply for any claims made against the Warranty
Reserve for any Losses relating to claims made against the Company,
the Surviving Corporation and/or their respective affiliates by
Gerald Kline ( “Kline Claims” )
1
1.2
By amending Section 9.2(d) of
the Agreement by deleting clause (i)(B) thereof in its entirety and
by inserting in lieu thereof the following clause
(i)(B):
(B) specifying in reasonable
detail the individual items of Losses included in the amount so
stated, the date each such item was paid or properly accrued or the
basis for such anticipated liability, and the nature of the
misrepresentation or breach of warranty, agreement, or covenant to
which such item is related (including the specific provision
breached), Parent shall, subject to the provisions of
Section 9.2(e) and the Threshold Amount, if applicable,
reduce the amount of the Warranty Reserve in an amount equal to
such Losses.
1.3
By amending Section 9.4 of the
Agreement by deleting such Section in its entirety and by
inserting in lieu thereof the following
Section 9.4:
9.4
Third-Party Claims
. In the event Parent or
the Surviving Corporation receives written notice of a third-party
claim (a “ Third Party Claim ”) that Parent
reasonably expects may result in a demand against the Warranty
Reserve, Parent shall provide the Shareholder Agent with prompt
written notice thereof. The Shareholder Agent, as
representative for the shareholders of the Company, shall have the
right to participate in or, by giving written notice to Parent, to
assume the defense of any Third Party Claim at the expense of the
Warranty Reserve and by counsel selected by the Shareholder Agent
(which counsel must be reasonably satisfactory to Parent), and
Parent will cooperate in good faith (and shall be permitted to
participate at Parent’s expense) in such defense;
provided , however , that, other than with
respect to any Kline Claim, the Shareholder Agent shall not be
entitled to assume control of the defense of any Third Party Claim
that (i) could reasonably be expected to have any impact on
the ongoing operations or goodwill of the Surviving Corporation or
Parent or (ii) could reasona
