EXHIBIT 2.1
AMENDMENT NO. 1 TO AGREEMENT
AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (the "Amendment"),
dated as of January 4, 2002 and effective as of December 27, 2001, amends that
certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of
December 27, 2001, by and among PARADYNE NETWORKS, INC., a Delaware corporation,
("Phoenix"), PHOENIX MERGER SUB, INC. ("Sub"), a Delaware corporation and a
wholly owned subsidiary of Phoenix, and ELASTIC NETWORKS INC., a Delaware
corporation ("Emerald").
PREAMBLE
Each of Phoenix, Sub and Emerald has entered into the Merger Agreement,
and each of Phoenix, Sub and Emerald desires to amend the Merger Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the above and the agreements set
forth herein, the Parties agree as follows:
1. The phrase "within five (5) calendar days" appearing in the
first sentence of Section 3.4 of the Merger Agreement is
hereby deleted and replaced in its entirety with the phrase
"within seven (7) calendar days."
2. The text of the second sentence of Section 6.2(a) of the
Merger Agreement is hereby deleted and replaced in its
entirety with the following:
"The execution, delivery and performance of
this Agreement and the consummation of the
transactions contemplated herein, including
the Merger, have been duly and validly
authorized by all necessary corporate
action in respect thereof on the part of
Phoenix, subject to the approval of (i) the
issuance of the shares of Phoenix Common
Stock pursuant to the Merger by a majority
of the total votes cast on such proposal at
the Phoenix Stockholders' Meeting and (ii)
the adoption of an amendment to the
Certificate of Incorporation of Phoenix to
increase the number of authorized shares of
Phoenix Common Stock from 60,000,000 to
80,000,000 by a vote of the holders of at
least sixty-six and two-thirds percent
(66 2/3%) of the voting power of all of the
then-outstanding shares of the voting stock
of Phoenix, voting together as a single
class, at the Phoenix Stockholders' Meeting
(collectively, the "Phoenix Stockholder
Proposals"), which are the only stockholder
votes required for approval of this
Agreement and consummation of the Merger by
Phoenix."
3. The Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Capitalized terms used, but not defined in this Amendment
shall have the meaning assigned to them in the Merger
Agreement.
4. Regardless of any conflict of law or choice of law principles
that might otherwise apply, the parties agree that this
Amendment shall be governed by and construed in all respects
in accordance with the laws of the State of Delaware.
5. Except as specifically amended hereby, the Merger Agreement
shall remain in full force and effect as is hereby ratified
and confirmed.
[Signatures on next page]
IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be
executed on its behalf by its duly authorized officers as of the day and year
first above written.
PARADYNE NETWORKS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
President and Chief Executive Officer
PHOENIX MERGER SUB, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
President
ELASTIC NETWORKS INC.
By: /s/ Xxx X. Xxxx
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Xxx X. Xxxx
President and Chief Executive Officer
