Exhibit 2.2
AMENDMENT NO. 1 TO
THE AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION
This Amendment No. 1 to the Agreement and Plan of Merger and Reorganization
(this "Amendment") is made and entered into as of June 30, 2000, by and among
Clarent Corporation, a Delaware corporation ("Parent"), Copper Acquisition Sub,
Inc., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger
Sub") and ACT Networks, Inc., a Delaware corporation (the "Company").
Capitalized terms used in this Amendment shall have the definition given to them
in Exhibit A of the Agreement and Plan of Merger and Reorganization, dated as of
May 1, 2000 (the "Agreement"), by and among Parent, Merger Sub and the Company.
Recitals
A. Parent, Merger Sub and the Company entered into the Agreement, pursuant
to which Merger Sub will merge with and into the Company ("Merger"). Upon
consummation of the Merger, Merger Sub will cease to exist, and the Company will
become a wholly-owned subsidiary of Parent.
B. As part of the Merger, each share of Company Common Stock outstanding
at the Effective Time shall be converted into the right to receive 0.2546 shares
("Initial Fraction") of Parent Common Stock; provided that if the Closing Price
of Parent Common Stock, when multiplied by the Initial Fraction, is greater than
$18.00 or less than $14.00, then the Initial Fraction will be adjusted as
provided in Section 1.6(a)(iii) of the Agreement.
C. The Closing Price currently is defined as the 4:00 p.m. (Eastern Time)
closing price of a share of Parent Common Stock as reported on Nasdaq for the
trading day immediately preceding the day on which the Effective Time occurs.
D. Parent, Merger Sub and the Company wish to amend the Agreement to
define the Closing Price as the average closing price of Parent Common Stock for
the five (5) trading days immediately preceding the day on which the Effective
Time occurs.
E. Pursuant to Section 9.1 of the Agreement, the Agreement may be amended
with the approval of the respective boards of directors of the Company and
Parent.
F. The boards of directors of the Company, Merger Sub and Parent have
approved this Amendment.
Agreement
The parties to this Agreement, intending to be legally bound, agree as
follows:
1. The definition of "Closing Price" in Exhibit A of the Agreement is amended
in its entirety to read:
Closing Price. "Closing Price" shall mean the average (arithmetic
mean) of the closing price at 4:00 p.m. (Eastern Time) of a share of Parent
Common Stock as reported on Nasdaq for the five (5) trading days ending on
and including the day immediately preceding the day on which the Effective
Time occurs.
2. This Amendment may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one instrument.
3. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE
GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. In any action
between any of the parties, arising out of or relating to this Amendment or any
of the transactions contemplated by this Amendment: (a) each of the parties
irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of the state and federal courts located in the State of
Delaware; (b) if any such action is commenced in any other state or federal
court, then, subject to applicable law, no party shall object to the removal of
such action to any federal court located in the State of Delaware; (c) each of
the parties irrevocably waives the right to trial by jury; and (d) each of the
parties irrevocably consents to service of process in the manner contemplated by
this Section 3.
4. This Amendment and the other agreements referred to herein (including the
Agreement) set forth the entire understanding of the parties hereto relating to
the subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.
5. Except as amended by this Amendment, the Agreement shall remain in full
force and effect in accordance with its terms.
[THIS SECTION INTENTIONALLY LEFT BLANK]
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In Witness Whereof, the parties hereto have executed this Amendment No. 1
to the Agreement and Plan of Merger and Reorganization as of the date set forth
in the first paragraph hereof.
Clarent Corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Printed Name: Xxxxxxx X. Xxxxx
Title: Chief Operating Officer and Chief
Financial Officer
Copper Acquisition Sub, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Printed Name: Xxxxxxx X. Xxxxx
Title: President, Chief Executive Officer
and Chief Financial Officer
ACT Networks, Inc.
By: /s/ Xxxxx xx Xxxxx
--------------------------------
Printed Name: Xxxxx xx Xxxxx
Title: President and Chief Executive
Officer
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