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DEED OF AMENDMENT

Purchase and Distribution Agreement

DEED OF AMENDMENT | Document Parties: CIENA CORPORATION | Ernst  Young LLP | Herbert Smith LLP You are currently viewing:
This Purchase and Distribution Agreement involves

CIENA CORPORATION | Ernst Young LLP | Herbert Smith LLP

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Title: DEED OF AMENDMENT
Date: 12/22/2009
Industry: Communications Equipment     Sector: Technology

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Exhibit 2.4

Deed of Amendment

20 October 2009

THE EMEA SELLERS

ALAN BLOOM, STEPHEN HARRIS, ALAN HUDSON, DAVID HUGHES AND
CHRISTOPHER HILL AS JOINT ADMINISTRATORS

YARON HAR-ZVI AND AVI D. PELOSSOF AS JOINT ISRAELI ADMINISTRATORS

CIENA CORPORATION

 

DEED OF AMENDMENT

relating to the Asset Sale Agreement relating to the sale
and purchase of the EMEA Assets

 

Herbert Smith LLP

 


 

Deed of Amendment

THIS DEED is made on this 20 th  day of October 2009.

BETWEEN:

(1)

 

THE EMEA SELLERS (the details of which are set out in Schedule 2 of the Agreement (as defined below)) which, in the case of the EMEA Debtors (the details of which are set out in Schedule 3 of the Agreement (as defined below)), are acting by their joint administrators Alan Robert Bloom, Stephen John Harris, Alan Michael Hudson and Christopher John Wilkinson Hill of Ernst & Young LLP of 1 More London Place, London SE1 2AF (other than Nortel Networks (Ireland) Limited (in administration), for which David Hughes of Ernst & Young Chartered Accountants of Harcourt Centre, Harcourt Street, Dublin 2, Ireland and Alan Robert Bloom serve as joint administrators), who act as agents of the EMEA Debtors only and without any personal liability whatsoever (the “Joint Administrators" ) and, in the case of the Israeli Company (the details of which are set out in Schedule 2 of the Agreement (as defined below)) which is acting by its joint administrators Yaron Har-Zvi and Avi D. Pelossof, who act as agents of the Israeli Company only and without any personal liability whatsoever (the “Joint Israeli Administrators" );

 

(2)

 

THE JOINT ADMINISTRATORS ;

 

(3)

 

THE JOINT ISRAELI ADMINISTRATORS ; and

 

(4)

 

CIENA CORPORATION a Delaware corporation (the “Purchaser" ).

RECITAL:

A.

 

On 7 October 2009 the EMEA Sellers, the Joint Administrators, the Joint Israeli Administrators and the Purchaser entered into an Asset Sale Agreement (the “Agreement" ) whereby the EMEA Sellers agreed to sell and transfer to the Purchaser the EMEA Assets (as defined in the Agreement) for the consideration and upon the terms and subject to the conditions set out in the Agreement. On the same date the Sellers and the Purchaser entered into the North American Agreement whereby the Sellers agreed to sell and transfer to the Purchaser the Assets (as defined in the North American Agreement) for the consideration and upon the terms and subject to the conditions set out in the North American Agreement.

 

B.

 

On 15 October 2009 hearings were held in the US Bankruptcy Court and the Canadian Court to approve, amongst other things, the Sellers’ entry into the North American Agreement and the Bidding Procedures and Bid Protections.

 

C.

 

On 16 October 2009, each of the US Bankruptcy Court and the Canadian Court entered orders approving the North American Agreement and the Bidding Procedures and Bid Protections, subject to certain amendments, as set out in those orders (the “ Court Orders ”).

 

D.

 

Pursuant to the Court Orders, consistent amendments are to be made to the Agreement. Accordingly, the parties agree that the Agreement shall be amended on the terms set out in this Deed.

IT IS AGREED as follows:

1.

 

INTERPRETATION

 

1.1

 

Unless the context otherwise requires or unless otherwise defined in this Deed words and phrases defined in the Agreement (as amended by this Deed) shall have the same meanings where used in this Deed.

2


 

Deed of Amendment

1.2

 

References in the Agreement to “this Agreement” shall, with effect from and including the date of this Deed and unless the context dictates otherwise, be a reference to the Agreement as amended by this Deed and words such as “herein”, “hereof”, “hereby” and “hereto” where they appear in the Agreement shall be construed accordingly.

 

2.

 

AMENDMENTS TO THE AGREEMENT

 

2.1

 

The first sentence of clause 15.5 of the Agreement shall be deleted and replaced (without prejudice to the remainder of Clause 15.5 of the EMEA ASA) with the following:

 

 

 

In the event that (i) this Agreement is terminated by the Purchaser pursuant to Clause 15.4.4 or Clause 15.4.5; or (ii) the North American Agreement is terminated by either Primary Party pursuant to Section 10.1(b)(v) of the North American Agreement or by the Purchaser pursuant to Section 10.1(b)(ii), Section 10.1(c) or Section 10.1(d) of the North American Agreement or by the Main Sellers pursuant to Section 10.1(b)(iii), Section 10.1(b)(iv), Section 10.1(b)(viii) or Section 10.1(e) of the North American Agreement, then the EMEA Sellers shall pay to the Purchaser in immediately available funds, (A) within two (2) Business Days following such termination (other than with respect to any termination pursuant to Section 10.1(b)(v) of the North American Agreement), or (B) within two (2) Business Days following the consummation of an Alternative Transaction that is consummated at any time on or prior to the date that is twelve (12) months following any termination of the North American Agreement pursuant to Section 10.1(b)(v) of the North American Agreement, a cash fee equal to five million, three hundred and forty-eight thousand U.S. dollars (U.S.$5,348,000) (the “EMEA Break-Up Fee” ).

 

2.2

 

A new definition shall be inserted in Schedule 1 of the EMEA ASA as follows:

 

 

 

“North American Agreement Amendment” means Amendment No. 1 to the Asset Sale Agreement between the Main Sellers and the Purchaser.”

 

2.3

 

In Clause 10.9 of the EMEA ASA, every reference to “Section 5.5(a) of the North American Agreement” and “Section 5.5(a)(iii) of the North American Agreement” shall be followed by the words: “(as amended by the North American Agreement Amendment”)”

 

2.4

 

Subject to the terms of, and except as amended by this Deed, the Agreement shall remain in full force and effect between the parties.

 

3.

 

EXCLUSION OF LIABILITY AND ACKNOWLEDGEMENT

 

3.1

 

Subject to Clause 3.4.2, notwithstanding that this Deed shall have been signed by the Joint Administrators and the Joint Israeli Administrators both in their capacities as administrators of the EMEA Debtors for and on behalf of the EMEA Debtors and of the Israeli Company for and on behalf of the Israeli Company respectively and in their personal capacities, it is hereby expressly agreed and declared that no personal Liability under or in connection with this Deed shall fall on the Joint Administrators, the Joint Israeli Administrators or their respective firm, partners, employees, agents, advisers or representatives whether such personal Liability would arise under paragraph 99(4) of schedule B1 to the Insolvency Act, or otherwise howsoever. For the avoidance of doubt, this Clause 3.1 shall not operate to prevent any claim of the Purchaser against the EMEA Debtors under this Deed or the Agreement being an expense of the administration as described in Paragraph 99(4) of Schedule B1 and Rule 2.67 of the Insolvency Act or against the Israeli Company under this Agreement being “expenses of the stay of proceedings”.

3


 

Deed of Amendment

3.2

 

Subject to Clause 3.4.2, it is hereby expressly agreed and declared that no personal Liability, or any Liability whatsoever, under or in connection with this Deed shall fall on any of the Non-Debtor Seller Directors howsoever such Liability should arise.

 

3.3

 

For the avoidance of doubt, (but without prejudice to the other terms of this Deed) the parties hereby agree that the terms of Clauses 3.1 and 3.2 do not, in and of themselves, provide that the Purchaser is under any obligation to indemnify, nor become liable or responsible for, any actions, proceedings, claims, demands, costs, expenses, damages, compensation, fines, penalties or other Liabilities against the Joint Administrators, the Joint Israeli Administrators or the Non-Debtor Seller Directors by any Person.

 

3.4

 

The Joint Administrators and the Joint Israeli Administrators are party to this Deed in their personal capacities only for the purpose of receiving the benefit of this Clause 3 and the exclusions, limitations, undertakings, covenants and indemnities in their favour contained in this Deed. The Purchaser acknowledges and agrees that in the negotiation and the completion of this Deed the Joint Administrators and the Joint Israeli Administrators are acting only as agents for and on behalf of the EMEA Debtors and the Israeli Company, respectively, and without any personal Liability whatsoever.

 

3.5

 

Subject to Clause 3.4.2, the Purchaser further acknowledges the following:

 

3.5.1

 

it has entered into this Deed without reliance on any warranties or representations made by the EMEA Sellers or by any of their employees, agents or representatives, or by the Joint Administrators, the Joint Israeli Administrators or any of their respective firms, partners, employees, agents, advisors or representatives and (save in respect of fraud, fraudulent misrepresentation or fraudulent misstatement) it shall not have any remedy in respect of any misrepresentation or untrue statement by such persons made by or on behalf of any other party to this Deed; and

 

 

3.5.2

 

nothing in this Clause 3 or any other provision of this Deed shall prevent any party from bringing any action against any other party, whether in a pers


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