FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED STOCK EXCHANGE AGREEMENT
Exhibit
2.8
FIRST
AMENDMENT TO THE
FIRST
AMENDED AND RESTATED STOCK EXCHANGE AGREEMENT
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1.1
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AND
PLAN OF REORGANIZATION
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This
FIRST
AMENDMENT TO THE FIRST AMENDED AND RESTATED STOCK
EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment”)
dated
as of November ____ 2006, is by and among the former shareholders (the
“Shareholders”)
of
Netintact AB, a Swedish corporation (“Netintact”),
certain third party beneficiaries of the Agreement (the “Beneficiaries”),
(the
Shareholders and Beneficiaries collectively referred to as “Sellers”);
and
Procera Networks, Inc., a Nevada corporation, whose principal office is located
at 000X Xxxxxx Xxxxx; Xxx Xxxxx, XX 00000,
(“Procera”).
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2
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R
E C I T A L S
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A. WHEREAS,
the Shareholders and Procera entered into a First
Amended and Restated Stock Exchange Agreement and Plan of Reorganization
on 18
August 2006 (the “Agreement”)
and
related exhibits (the “Exhibits”)
and
the Beneficiaries and Procera entered into Closing Date Warrant Agreements
and
Incentive Warrant Agreements (the “Warrant
Agreements”
and
the
Agreement, the Exhibits and the Warrant Agreements are collectively referred
to
as, the “Documents”).
B. WHEREAS,
the parties wish to amend the Documents as set forth below.
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2.1
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AGREEMENT
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NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties hereto agree as follows:
1. Section
1.3(d) Incentive Warrants. Section
1.3(d) of the Agreement is hereby amended and restated in entirety to read
as
follows:
“Incentive
Warrants: In
addition to the Closing Date Warrants, the persons set out in Exhibit
A-4
hereto
shall receive warrants to purchase one hundred twenty-three thousand two
hundred
forty-three (123,243) shares of Procera’s Common Stock (the
“Incentive
Warrants”).
Such
warrants shall be exercisable if, and only if,
all of
the milestones and conditions set forth in Exhibit
C
are met.
Such
warrants shall be granted to the persons and in the numbers set out in
Exhibit
A-6
and
pursuant to a warrant agreement substantially in the form set out in
Exhibit
A-5
hereto
(the “Incentive
Warrant Agreement”).”
2. Exhibit
A-2 - Closing Date Warrant Agreement.
Section
3(a) and 3(b) of Exhibit
A-2“Closing
Date Warrant Agreement” and each separate Closing Date Warrant Agreement between
Beneficiaries and Procera are hereby amended and restated in entirety to
read as
follows:
“Conditions.
Warrants may be exercised if and only if:
(a) The
market price of the Company’s common stock is or exceeds $2.00 US for a period
of 90 consecutive days; provided however, that should any anti-dilution
adjustment be made pursuant to Section 6 (a) of this Agreement, a similar
adjustment shall be made to the $2.00 US market price; and
(b) With
the
exception of Xxxxx Xxxxxxxxx, Holder is an employee of the Company or any
subsidiary of the Company at the time of the exercise.”
3. Exhibit
A-2 - Closing Date Warrant Agreement.
Section
4(g) of Exhibit
A-2“Closing
Date Warrant Agreement” and each separate Closing Date Warrant Agreement between
Beneficiaries and Procera is hereby amended to add the
following:
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“(g) Notwithstanding
anything else set forth in this Section 4, in the event Holder is an employee
of
the Company or any subsidiary of the Company, Holder may exercise such Warrants
by delivering a Warrant Exercise Notice and executing a promissory note (the
“Note”)
in
favor of the Company; provided however, that such exercise shall be in
compliance with the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, and other foreign, federal, state and local laws.
Such
Note
shall become immediately due the sooner of (i) one year from execution of
the
Note; or (ii) the date on which Holder ceases to be an employee of Netintact
or
the Company. The Note shall be secured by the shares underlying the Warrants
and
shall have simple
interest on the outstanding principal amount at the annual rate of COMERICA
Bank’s published prime rate plus three percent.”
4. Exhibit
A-2 - Closing Date Warrant Agreement.
Section
10(h) of Exhibit
A-2“Closing
Date Warrant Agreement” and each separate Closing Date Warrant Agreement between
Beneficiaries and Procera is hereby amended to add the following:
“Notwithstanding
anything else set forth in this Agreement, the Company agrees to pay all
social
fees which Netintact is obligated to pay pursuant to Swedish Law for Holders
exercising their Warrants hereunder.”
5. Exhibit
A-5 - Incentive Warrant Agreement.
Section
13 of Exhibit
A-5 “Incentive
Warrant Agreement” and Section 3 of each separate Incentive Warrant Agreement
between Beneficiaries and Procera is hereby amended and restated in entirety
to
read as follows:
“Conditions.
Warrants may be exercised if and only if:
(a) The
market price of the Company’s common stock is or exceeds $2.00 US for a period
of 90 consecutive days; provided however that should any anti-dilution
adjustment be made pursuant to Section 17 (a) of this Agreement, a similar
adjustment shall be made to the $2.00 US market price; and
(b) With
the
exception of Xxxxx Xxxxxxxxx, Holder is an employee of the Company or any
subsidiary of the Company at the time of the exercise.
(c) All
milestones and conditions set forth in Exhibit
C
are
met.”
6. Exhibit
A-5 - Incentive Warrant Agreement.
Section
15(g) of Exhibit
A-5 “Incentive
Warrant Agreement” and Section 5(g) of each separate Incentive Warrant Agreement
between Beneficiaries and Procera is hereby amended to add the
following:
“(g) Notwithstanding
anything else set forth in this Section 15, in the event Holder is an employee
of the Company or any subsidiary of the Company, Holder may exercise such
Warrants by delivering a Warrant Exercise Notice and executing a promissory
note
(the “Note”)
in
favor of the Company; provided however, that such exercise shall be in
compliance with the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, and other foreign, federal, state and local laws.
Such
Note
shall become immediately due the sooner of (i) one year from execution of
the
Note; or (ii) the date on which Holder ceases to be an employee of Netintact
or
the Company. The Note shall be secured by the shares underlying the Warrants
and
shall have simple
interest on the outstanding principal amount at the annual rate of COMERICA
Bank’s published prime rate plus three percent.”
7. Exhibit
A-5 - Incentive Warrant Agreement.
Section
21(h) of Exhibit
A-5 “Incentive
Warrant Agreement” and Section 11(h) of each separate Incentive Warrant
Agreement between Beneficiaries and Procera is hereby added as
follows:
“Notwithstanding
anything else set forth in this Agreement, the Company agrees to pay all
social
fees which Netintact is obligated to pay pursuant to Swedish Law for Holders
exercising their Warrants hereunder.”
8. Exhibit
C - Incentive Shares Plan.
The
6th
paragraph of Exhibit C “Incentive Shares Plan” is hereby amended and restated in
its entirety to read as follows:
“In
order
to be qualified for the distribution of Incentive Shares, as stated in
Exhibit
C,
each
Seller must be an employee of the Company
or any subsidiary of the Company on
30
June 2007, which applies both to distributions relating to Period 1 and Period
2. Any Incentive Shares that otherwise would be subject to distribution to
one
or more Seller(s) had such Seller(s) remained an employee of the Company
or any subsidiary of the Company on
the
relevant date shall be distributed prorata to those Sellers that remain
employees of the Company
or any subsidiary of the Company.”
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement the day and year first above
written.
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Procera
Networks, Inc.
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By:
/s/ Xxxxxxx Xxxxxx
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Its:
President
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Sellers:
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/s/
Xxxxx Xxx
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Xxxxx
Xxx
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/s/
Joakim Ek
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Joakim
Ek
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/s/Alexander
Haväng
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Alexander
Haväng
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/s/
Olle Hallnäs
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Olle
Hallnäs
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/s/
Sven-Xxxx Xxxxxxx
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Sven-Xxxx
Xxxxxxx
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/s/
Xxx Xxxxxx
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Xxx
Xxxxxx
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/s/
Xxxxxx Xxxxxxxxxx
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Xxxxxx
Xxxxxxxxxx
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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/s/
Xxxxx Xxxxxxxx
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Xxxxx
Xxxxxxxx
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/s/
Xxxxxxx Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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/s/
Pernilla Tompowsky
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Pernilla
Tompowsky
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/s/
Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx
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/s/
Anders Alneng
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Anders
Alneng
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/s/
Xxxxx Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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38
