1
AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (this "AMENDMENT NO. 1") is made as of November 9,
1999 (the "EFFECTIVE DATE") to that certain Agreement and Plan of Merger (the
"AGREEMENT") dated as of September 30, 1999, by and between NETRIX CORPORATION,
a Delaware corporation ("Acquiror"), and OPENROUTE NETWORKS, INC., a
Massachusetts corporation (the "Company"). The Company and Acquiror are each
referred to individually as a "PARTY" and are collectively referred to as the
"PARTIES".
RECITALS
A. The Agreement provides that Acquiror must pay to the Company
$1,000,000 if the Agreement is terminated in the event that the
Agreement fails to receive the Requisite Stockholder Approval by the
Acquiror Stockholders.
B. The Agreement provides that the Company must pay to Acquiror
$1,000,000 if the Agreement is terminated in the event that the
Agreement fails to receive the Requisite Stockholder Approval by the
Company Stockholders.
C. The Parties wish to amend the Agreement to remove the obligation of
each Party to pay to the other Party $1,000,000 in the event that the
Agreement fails to receive the Requisite Stockholder Approval by the
Company Stockholders or the Acquiror Stockholders, respectively.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Members hereby
agree as follows:
SECTION 1. As used in this Amendment No. 1, unless otherwise defined
herein, terms defined in the Agreement shall have the meaning set forth therein
when used herein.
SECTION 2. Section 7(b)(ii) is hereby amended and restated in its entirety
to read as follows:
(ii) If this Agreement is terminated (A) by Acquiror pursuant to
ss.7(a)(v) or (B) any Person makes an Acquisition Proposal that
remains in effect on the date 60 days prior to the Outside Date and
the Requisite Stockholder Approval of the Company Stockholders is not
obtained prior to termination of this Agreement pursuant to
ss.7(a)(ii), then, within 60 days after such termination, the Company
shall pay Acquiror the sum of $1,000,000 in immediately available
funds.
2
SECTION 3. Section 7(b)(iii) is hereby amended and restated in its entirety
to read as follows:
(iii) If this Agreement is terminated (A) by the Company pursuant
to ss.7(a)(vi) or (B) any Person makes a Prohibited Acquiror
Acquisition Proposal that remains in effect on the date 60 days prior
to the Outside Date and the Requisite Stockholder Approval of the
Acquiror Stockholders is not obtained prior to termination of this
Agreement pursuant to ss.7(a)(ii), then, within 60 days after such
termination, Acquiror shall pay the Company the sum of $1,000,000 in
immediately available funds.
SECTION 4. All references in the Agreement to "this Agreement" shall be
deemed to include this Amendment No. 1.
SECTION 5. Except to the extent provided in this Amendment No. 1, the
Agreement remains unmodified and in full force and effect.
SECTION 6. This Amendment No. 1 shall be governed by and construed in
accordance with the domestic laws of the state of New York without giving effect
to any choice or conflict of law provision or rule (whether of the state of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the state of New York.
SECTION 7. This Amendment No. 1 may be executed in any number of
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
instrument.
SECTION 8. Each Party represents to the other Party that it has the full
power and authority (including full corporate power and corporate authority),
and has taken all required action, necessary to properly execute and deliver
this Amendment No. 1 and to perform its obligations hereunder, and this
Amendment No. 1 constitutes the valid and legally binding obligation of such
Party, enforceable in accordance with its terms and conditions, except as
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally and (ii) general principles of equity, regardless of whether asserted
in a proceeding in equity or at law.
3
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 1
as of the date first above written.
OPENROUTE NETWORKS, INC.
By: /s/ Bryan R. Holley
---------------------------------------
Bryan R. Holley
President and Chief Executive Officer
(principal executive officer)
By: /s/ Henry Barber
---------------------------------------
Henry Barber
Chief Financial Officer, Vice President
Treasurer and Clerk
(principal financial officer)
NETRIX CORPORATION
By: /s/ Steven T. Francesco
---------------------------------------
Steven T. Francesco
Chief Executive Officer