**Exhibit 10.47.1**

 

**AMENDMENT**

**TO**

**AGREEMENT AND PLAN OF REORGANIZATION**

 

This Amendment to Agreement and Plan ofReorganization (this “***Amendment***”)is made as of January 6, 2005, by and among Sawtek, Inc., a Floridacorporation (***“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 ofParent (***“MergerSub”***), and the Companyare parties to the Agreement and Plan of Reorganization dated as of December 14,2004 (the “***Agreement***”), pursuant towhich, on January 5, 2005, MergerSub was merged with and into the Company,with the Company continuing as the surviving corporation, and all of the issuedand outstanding shares of common stock of the Company being converted into theright to receive an aggregate amount of cash equal to the amount set forth inthe Agreement, in accordance with the calculations and payable at the times setforth therein.

 

B.            Parent,the Company and the undersigned former shareholders of the Company desire toamend the Agreement as set forth herein, pursuant to Section 8.6(b) of theAgreement.

 

C.            Unlessotherwise defined herein, capitalized terms used herein shall have the meaningsassigned thereto in the Agreement.

 

**AGREEMENT**

** **

NOW, THEREFORE, in consideration of thecovenants and agreements set forth herein and in the Agreement, the partieshereby agree as follows:

 

# **1.**             Amendmentof Agreement and Plan of Reorganization

 

The parties hereby modify and amend theAgreement as follows:

 

**1.1**          Byamending Section 9.2(b) of the Agreement by adding the following clause tothe end of the proviso in the first sentence of such Section:

 

; and, providedfurther, that,notwithstanding the foregoing, the Threshold Amount shall not apply for anyclaims made against the Warranty Reserve for any Losses relating to claims madeagainst the Company, the Surviving Corporation and/or their respectiveaffiliates by Gerald Kline (**“Kline Claims”**)

 

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**1.2**          Byamending Section 9.2(d) of the Agreement by deleting clause (i)(B) thereofin its entirety and by inserting in lieu thereof the following clause (i)(B):

 

(B) specifying in reasonable detail theindividual items of Losses included in the amount so stated, the date each suchitem was paid or properly accrued or the basis for such anticipated liability,and the nature of the misrepresentation or breach of warranty, agreement, orcovenant to which such item is related (including the specific provisionbreached), Parent shall, subject to the provisions of Section 9.2(e)and the Threshold Amount, if applicable, reduce the amount of the WarrantyReserve in an amount equal to such Losses.

 

**1.3**          Byamending Section 9.4 of the Agreement by deleting such Section in itsentirety and by inserting in lieu thereof the following Section 9.4:

 

9.4           Third-PartyClaims.  In the event Parent or the Surviving Corporationreceives written notice of a third-party claim (a “**Third PartyClaim**”) that Parent reasonably expects may result in a demandagainst the Warranty Reserve, Parent shall provide the Shareholder Agent withprompt written notice thereof.  TheShareholder Agent, as representative for the shareholders of the Company, shallhave the right to participate in or, by giving written notice to Parent, toassume the defense of any Third Party Claim at the expense of the WarrantyReserve and by counsel selected by the Shareholder Agent (which counsel must bereasonably 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 respectto any Kline Claim, the Shareholder Agent shall not be entitled to assumecontrol of the defense of any Third Party Claim that (i) could reasonablybe expected to have any impact on the ongoing operations or goodwill of theSurviving Corporation or Parent or (ii) could reasonably be expected toresult in Losses in excess of the Warranty Reserve.  Parent shall have the right to settle anyThird Party Claim contemplated by clause (i) or (ii) above with consent of theShareholder Agent, which consent shall not be unreasonably withheld.  In the event that the Shareholder Agent hasconsented to any such settlement, the Shareholder Agent shall have no power orauthority to object under any provision of this Article 9 to theamount of any claim by Parent against the Warranty Reserve with respect to theamount of Losses incurred by Parent in such settlement as consented to by theShareholder Agent.  Parent shall not beentitled to settle any Kline Claim without the consent of the ShareholderAgent, which may be granted or denied in the Shareholder Agent’s solediscretion.  The Shareholder Agent willnot settle any Kline Claim without the consent of Parent, which consent shallnot be unreasonably withheld.

 

**1.4**          Byadding the following as Section 9.6 of the Agreement:

 

9.6           AgentIndemnification.  The ShareholderAgent and the Paying Agent shall not be liable to the Company’s shareholders forany error of judgment, or any

 

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action taken or omitted to be taken hereunderexcept in the case of its bad faith, gross negligence or willful misconduct.

 

The ShareholderAgent and the Paying Agent shall not be paid any fee for services to berendered hereunder.  All reasonable feesand expenses incurred by the Shareholder Agent and the Paying Agent inperforming their duties hereunder shall be borne severally and on a pro rataportion basis by the Company’s shareholders (based on the number of OutstandingShares held thereby immediately prior to the Effective Time); provided, however,that, to the extent practical, the Shareholder Agent and the Paying Agent shalldeduct such fees and expenses from the amounts otherwise distributable to theCompany’s shareholders under this Agreement. In particular and without limitation, the Paying Agent shall holdbackthe sum of $50,000 from amounts otherwise distributable to the Company’sshareholders as part of the Tranche Two Payment payable under this Agreement(the “**Holdback**”), to be used and/or held toreimburse the Shareholder Agent and the Paying Agent for anticipatedadministrative expenses incurred by them after the Closing.  At such time that the Shareholder Agent orthe Paying Agent believes, in its sole discretion, that no such additionaladministrative expenses will be incurred, the Shareholder Agent or the PayingAgent shall distribute any remaining funds from the Holdback to the Company’sshareholders on a pro rata portion basis.

 

The Company’sshareholders agree severally and on a pro rata portion basis (based on thenumber of Outstanding Shares held thereby immediately prior to the EffectiveTime) to indemnify and hold the Shareholder Agent and Paying Agent harmlessagainst any and all losses, claims, damages, liabilities, and expenses(including, without limitation, reasonable costs of investigation, attorneys’fees and disbursements) that may be imposed on or incurred by the ShareholderAgent or Paying Agent or incurred by the Shareholder Agent or Paying Agent inconnection with the performance of its duties under this Agreement, includingany litigation arising from this Agreement or involving its subject matter, unlesssuch loss, liability, claim or expense shall have been determined by a court ofcompetent jurisdiction to be a result of the Shareholder Agent’s or PayingAgent’s bad faith, gross negligence or willful misconduct.  Anything in this Agreement to the contrarynotwithstanding, in no event shall the Shareholder Agent or Paying Agent beliable to the Company’s shareholders for special, indirect or consequentialloss or damage of any kind whatsoever, even if the Shareholder Agent or PayingAgent has been advised of the likelihood of such damages and regardless of theform of action.

 

# **2.**             Effecton Agreement and Plan of Reorganization

 

Except as specifically amended and modifiedby this Amendment, the terms and provisions of the Agreement remain unchangedand in full force and effect.  Allreferences in the Agreement or otherwise to the Agreement shall hereinafterrefer to the Agreement as amended by this Amendment.

 

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# **3.**             EffectiveDate; Further Documentation

 

Notwithstanding the date of this Amendment,the parties agree that its effective date shall be December 14, 2004, thedate of the Agreement.

 

# **4.**             Miscellaneous

 

(a)           ThisAmendment shall be governed by, and construed in accordance with, the laws ofthe State of Oregon applicable to contracts executed in and to be performed inthat state.

 

(b)           Thedescriptive headings contained in this Amendment are included for convenienceof reference only and shall not affect in any way the meaning or interpretationof this Amendment.

 

(c)           ThisAmendment may be executed and delivered (including by facsimile transmission)in one or more counterparts, and by the parties hereto in separatecounterparts, each of which when executed and delivered shall be deemed to bean original but all of which taken together shall constitute one and the sameagreement.

 

 

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IN WITNESS WHEREOF, the parties have causedthis Amendment to Agreement and Plan of Reorganization to be duly executed bytheir respective representatives hereunto authorized as of the day and yearfirst above written.

 

 
|   | SAWTEK INC.               |
|--------|---------------------------|
|   |                      |
|   | By:                       | /s/ RALPH G. QUINSEY |   |
|   | Title:  President and CEO |
|   |                      |
|   |                      |
|   | TFR  TECHNOLOGIES, INC.   |
|   |                      |
|   | By:                       | /s/ KENNETH LAKIN |   |
|   | Title:  President and CEO |
|        |                           |  |  |  |  |

 

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IN WITNESS WHEREOF, the parties have causedthis Amendment to Agreement and Plan of Reorganization to be duly executed bytheir respective representatives hereunto authorized as of the day and yearfirst above written.

 
|   | FORMER  SHAREHOLDER OF  TFR TECHNOLOGIES, INC. |
|--------|------------------------------------------------|
|   |                                           |
|   |                                           |
|   | /s/ KENNETH LAKIN                              |   |
|   | Name:                                          |

 

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