EXHIBIT 2.2
TAQUA, INC.
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this "Amendment")
dated February 26, 2004 amends that certain Agreement and Plan of Merger, dated
as of February 25, 2004 (the "Merger Agreement"), by and among Tekelec, a
California corporation ("Tekelec"), Buckaroo, Inc., a Delaware corporation and
wholly-owned subsidiary of Tekelec, Taqua, Inc., a Delaware corporation (the
"Company"), and Bessemer Venture Partners V L.P. and Columbia Capital, L.L.C.,
each as a Representative. All capitalized terms used herein but not otherwise
defined shall have the meanings assigned to such terms in the Merger Agreement.
RECITALS
WHEREAS, in accordance with Section 11.4 of the Merger Agreement, the
Company and Tekelec desire to amend the Merger Agreement as provided in Section
11.4 in certain respects, as more fully set forth below;
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth in the Merger Agreement, as well as the mutual covenants set forth
herein, and in accordance with Section 11.4 thereof, the parties agree as
follows:
I. AMENDMENTS TO SCHEDULES TO MERGER AGREEMENT.
The Company and Tekelec hereby agree that the Schedules to the Merger
Agreement shall be amended as follows:
1. Schedule 1.8(g) shall be deleted and replaced in its
entirety with Exhibit A attached hereto.
2. Schedule 1.8(i) shall be incorporated into the
Schedules to the Merger Agreement as provided on
Exhibit B attached hereto.
3. Schedule 2.4(a) shall be deleted and replaced in its
entirety with Exhibit C attached hereto.
4. Schedule 2.4(c) shall be deleted and replaced in its
entirety with Exhibit D attached hereto.
5. Schedule 8.3(g)(i) shall be incorporated into the
Schedules to the Merger Agreement as provided on
Exhibit E attached hereto.
II. AMENDMENTS TO THE MERGER AGREEMENT.
The Company and Tekelec hereby agree that:
1. Section 1.2(b) of the Merger Agreement shall be
amended such that the parenthetical "(not later than
April 6, 2004)" shall be deleted in its entirety and
replaced with "(not later than April 9, 2004)."
2. Section 5.12 of the Merger Agreement shall be amended
to add the following at the end of such section:
"Prior to the Closing Date, the Company shall be permitted to
amend those certain options to purchase up to an aggregate of 1,252,025
shares of Company Common Stock at an exercise price of $.10 per share
(the "Special Company Options") in order to allow the holders thereof
to exercise, immediately prior to the Effective Time, the Special
Company Options on a "net exercise basis" such that an aggregate number
of shares of Company Common Stock of no more than 568,569 may be
issuable upon exercise of such Special Company Options in full (without
payment of any cash). For the avoidance of doubt, the term Aggregate
Shares Deemed Outstanding shall include all shares subject to any net
exercised Special Company Option, rather than the shares issuable upon
net exercise. The Company shall provide Tekelec with all documentation
related to any amendments or exercise of the Special Company Options in
the manner described herein."
3. Section 10.1(a)(ii) of the Merger Agreement shall be
deleted in its entirety and replaced with the
following:
"(ii) by either the Company, on the one hand, or Tekelec, on
the other hand, if the Closing shall not have occurred on or before
April 9, 2004, or such other date, if any, as the Company and Tekelec
shall agree upon; provided that no Party may terminate this Agreement
pursuant to this clause (ii) if such Party's failure to fulfill any of
its obligations under this Agreement shall have directly or indirectly
resulted in the failure of the Closing to occur on or before said date;
provided further, that if any waiting periods (that prevent
consummation of the Merger) imposed by a Government authority have not
expired as of the Closing Date, such date shall automatically be
extended to such date as such waiting periods expire (which shall be in
no event later than July 5, 2004);"
III. MISCELLANEOUS.
1. Effect of Amendment. Except as expressly amended by
this Amendment, the Merger Agreement remains in full force and effect.
2. Counterparts. This Amendment may be executed in
several counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Parties hereto has executed and
delivered this First Amendment to Agreement and Plan of Merger to be legally
binding and effective as of the date first above written.
TEKELEC
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxxxx X. Xxx
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Name: Xxxxxxxxx X. Xxx
Title: Chief Executive Officer
TAQUA, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Chief Financial Officer and Treasurer