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”)


 


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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 reasonably be expected to
result in Losses in excess of the Warranty Reserve.  Parent shall have the right to settle any
Third Party Claim contemplated by clause (i) or (ii) above with consent of the
Shareholder Agent, which consent shall not be unreasonably withheld.  In the event that the Shareholder Agent has
consented to any such settlement, the Shareholder Agent shall have no power or
authority to object under any provision of this Article 9 to the
amount of any claim by Parent against the Warranty Reserve with respect to the
amount of Losses incurred by Parent in such settlement as consented to by the
Shareholder Agent.  Parent shall not be
entitled to settle any Kline Claim without the consent of the Shareholder
Agent, which may be granted or denied in the Shareholder Agent’s sole
discretion.  The Shareholder Agent will
not settle any Kline Claim without the consent of Parent, which consent shall
not be unreasonably withheld.


 


1.4          By
adding the following as Section 9.6 of the Agreement:


 


9.6           Agent
Indemnification.  The Shareholder
Agent and the Paying Agent shall not be liable to the Company’s shareholders for
any error of judgment, or any


 


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


 


The Shareholder
Agent and the Paying Agent shall not be paid any fee for services to be
rendered hereunder.  All reasonable fees
and expenses incurred by the Shareholder Agent and the Paying Agent in
performing their duties hereunder shall be borne severally and on a pro rata
portion basis by the Company’s shareholders (based on the number of Outstanding
Shares held thereby immediately prior to the Effective Time); provided, however,
that, to the extent practical, the Shareholder Agent and the Paying Agent shall
deduct such fees and expenses from the amounts otherwise distributable to the
Company’s shareholders under this Agreement. 
In particular and without limitation, the Paying Agent shall holdback
the sum of $50,000 from amounts otherwise distributable to the Company’s
shareholders as part of the Tranche Two Payment payable under this Agreement
(the “Holdback”), to be used and/or held to
reimburse the Shareholder Agent and the Paying Agent for anticipated
administrative expenses incurred by them after the Closing.  At such time that the Shareholder Agent or
the Paying Agent believes, in its sole discretion, that no such additional
administrative expenses will be incurred, the Shareholder Agent or the Paying
Agent shall distribute any remaining funds from the Holdback to the Company’s
shareholders on a pro rata portion basis.


 


The Company’s
shareholders agree severally and on a pro rata portion basis (based on the
number of Outstanding Shares held thereby immediately prior to the Effective
Time) to indemnify and hold the Shareholder Agent and Paying Agent harmless
against 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 Shareholder
Agent or Paying Agent or incurred by the Shareholder Agent or Paying Agent in
connection with the performance of its duties under this Agreement, including
any litigation arising from this Agreement or involving its subject matter, unless
such loss, liability, claim or expense shall have been determined by a court of
competent jurisdiction to be a result of the Shareholder Agent’s or Paying
Agent’s bad faith, gross negligence or willful misconduct.  Anything in this Agreement to the contrary
notwithstanding, in no event shall the Shareholder Agent or Paying Agent be
liable to the Company’s shareholders for special, indirect or consequential
loss or damage of any kind whatsoever, even if the Shareholder Agent or Paying
Agent has been advised of the likelihood of such damages and regardless of the
form of action.


 


2.             Effect
on Agreement and Plan of Reorganization


 


Except as specifically amended and modified
by this Amendment, the terms and provisions of the Agreement remain unchanged
and in full force and effect.  All
references in the Agreement or otherwise to the Agreement shall hereinafter
refer to the Agreement as amended by this Amendment.


 


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3.             Effective
Date; Further Documentation


 


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


 


4.             Miscellaneous


 


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


 


(b)           The
descriptive headings contained in this Amendment are included for convenience
of reference only and shall not affect in any way the meaning or interpretation
of this Amendment.


 


(c)           This
Amendment may be executed and delivered (including by facsimile transmission)
in one or more counterparts, and by the parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be
an original but all of which taken together shall constitute one and the same
agreement.


 


 


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IN WITNESS WHEREOF, the parties have caused
this Amendment to Agreement and Plan of Reorganization to be duly executed by
their respective representatives hereunto authorized as of the day and year
first 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 caused
this Amendment to Agreement and Plan of Reorganization to be duly executed by
their respective representatives hereunto authorized as of the day and year
first above written.


 


	
   

  	
  FORMER
  SHAREHOLDER OF

  TFR TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ KENNETH LAKIN

  	
   

  
	
   

  	
  Name:

  



 


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