EXHIBIT 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the
"Amendment") is made and entered into as of January 25, 2001 by and among
Polycom, Inc., a Delaware corporation ("Parent"), Merger Sub Ltd., an Israeli
corporation and wholly-owned subsidiary of Polycom ("Merger Sub"), and Accord
Networks Ltd., an Israeli corporation (the "Company"). Capitalized terms used
herein, unless otherwise defined herein, shall have the meanings assigned to
them in the Merger Agreement.
RECITALS
A. Parent, Merger Sub and the Company entered into an Agreement and Plan of
Merger and Reorganization dated as of December 5, 2000 (the "Merger Agreement").
B. Pursuant to Section 7.4 of the Merger Agreement, the Merger Agreement
may be amended at any time by execution of an instrument in writing signed on
behalf of each of Parent and the Company.
C. The parties hereto desire to amend the Merger Agreement, to waive
certain conditions contained therein and to enter into additional agreements all
as set forth herein.
AGREEMENT
In consideration of the foregoing premises, the mutual covenants and
promises set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
1. AMENDMENTS. The Merger Agreement shall be amended as follows:
1.1. Section 1.2 of the Merger Agreement shall be amended and restated
in its entirety as follows:
1.2 CLOSING DATE. The closing of the Merger and the other
transactions contemplated by this Agreement (the "Closing") shall take
place at the office of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, 650 Page Mill Road, Palo Alto, California, USA, at a time
and on a date to be designated by the parties (the time and date upon
which the Closing actually occurs being referred to herein as the
"Closing Date"), which shall be no later than the later to occur of
(i) the date on which the conditions set forth in Article VI have been
satisfied or waived, or as promptly thereafter as practicable, or
(ii) the 71st day after the delivery of the Merger Proposal (as defined
in section 5.2 hereof) to the office of the Registrar of Companies of the
State of Israel (the "Companies Registrar"), or at such other time, date
and location as the parties hereto shall mutually agree.
1.2. Section 5.5(d) of the Merger Agreement shall be amended and
restated in its entirety as follows:
(d) ISRAELI SECURITIES LAW EXEMPTION. As soon as reasonably
practicable after the execution of this Agreement, Parent shall
(i) prepare and file with the Israeli securities authority ("ISA") an
application for an exemption from the requirements of the Israeli
Securities Law, 1968 concerning the publication of a prospectus in
respect of the exchange of the Company Stock Options for the assumed
Options, pursuant to Section 15D of the Securities Law of Israel and
(ii) if required by the Israeli Securities Law, 1968, prepare and file
with the ISA an application for an exemption from the requirements of the
Israeli Securities Law, 1968 concerning the publication of a prospectus,
or an application for a pre-ruling regarding no action by the ISA, in
respect of the exchange of the Company Shares for the Parent Common
Stock, and the exchange
of the Company Warrants for the assumed Warrants (the "Israeli Securities
Exemption"). In lieu of obtaining the Israeli Securities Exemption,
Parent will use all commercially reasonable best efforts to satisfy all
of the conditions and requirements set forth in the letter from the ISA
to Parent dated January 25, 2001 (the "ISA Letter"), including taking all
appropriate action to satisfy the applicable commitments, agreements,
conditions and representations of Parent contained in the correspondence
and application referred to therein and to complete all procedures that
may be necessary, proper or advisable to register shares of Parent Common
Stock for trading on the Tel Aviv Stock Exchange prior to the Company
General Meeting and to become a company whose securities are registered
for trading on the Tel Aviv Stock Exchange as set forth in the ISA
Letter. Each of Parent and the Company shall cause their respective
Israeli counsel to coordinate all activities, and to cooperate with each
other, with respect to the determination of such facts as are required to
assess Parent's obligations under the Israeli Securities Law, 1968, and
with respect to the preparation and filing of such application, in the
preparation of any written or oral submissions and the taking of such
other actions that may be necessary, proper or advisable to obtain the
Israeli Securities Exemption or to satisfy the conditions and
requirements set forth in the ISA Letter (including the registration of
shares of Parent Common Stock for trading on the Tel Aviv Stock
Exchange). Subject to the terms and conditions hereof, Parent shall use
its reasonable best efforts to promptly take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or
advisable under applicable Law to obtain the Israeli Securities Exemption
or to satisfy the conditions and requirements set forth in the ISA Letter
(including the registration of shares of Parent Common Stock for trading
on the Tel Aviv Stock Exchange), in either case as promptly as
practicable.
1.3. Section 6.1(e) of the Merger Agreement shall be amended and
restated in its entirety as follows:
(e) ISRAELI GOVERNMENTAL ENTITY APPROVALS. All Israeli Governmental
Entity approvals required pursuant to Israeli legal requirements for the
consummation of the Merger shall have been obtained including, without
limitation, approval of the OCS, the Investment Center and the Israeli
Commissioner of Restrictive Trade Practices if required by applicable
law; and receipt by the Parent of the Israel Securities Exemption or,
alternatively, the satisfaction of the conditions and requirements set
forth in the ISA Letter (including the registration of shares of Parent
Common Stock for trading on the Tel Aviv Stock Exchange).
2. ACKNOWLEDGMENT. The parties hereto acknowledge that the approval of the
Israeli Commissioner of Restrictive Trade Practices is not required by
applicable law.
3. CLOSING DATE. The parties hereto agree that, assuming the satisfaction
of all other conditions to the Closing of the Merger, the Closing Date shall be
the date on which the shareholders of Accord approve and adopt the Merger
Agreement and approve the Merger, or as soon as practicable thereafter.
4. APPLICABLE LAW. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
5. AMENDMENT LIMITED. Except as provided herein, each of the provisions of
the Merger Agreement shall remain in full force and effect following the
execution of this Amendment.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized respective officers as of the date first
written above.
POLYCOM, INC.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Senior Vice President of Finance and
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Administration and Chief Financial Officer
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MERGER SUB LTD.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Senior Vice President of Finance and
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Administration and Chief Financial Officer
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ACCORD NETWORKS LTD.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. XxXxxxx
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Title: Chairman and Chief Executive Officer
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