Exhibit 4.1
Execution Version
AMENDMENT NO. 1 TO TAX BENEFITS PRESERVATION PLAN
This Amendment No. 1 (this “Amendment”) to Tax Benefits Preservation Plan (the “Preservation Plan”), dated as of June 7, 2012, by and between Vonage Holdings Corp., a Delaware corporation (the “Company”), and American Stock Transfer & Trust Company, LLC (“Rights Agent”), is entered into as of November 22, 2021, by and between the Company and Rights Agent. Capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Preservation Plan.
WHEREAS, the Company proposes to enter into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of November 22, 2021, with Telefonaktiebolaget LM Ericsson (publ), an entity organized and existing under the laws of Sweden (“Parent”), and Ericsson Muon Holding Inc., a Delaware corporation (“Merger Sub”), pursuant to which Merger Sub will be merged with and into the Company, with the Company surviving as a wholly-owned subsidiary of Parent, on the terms and subject to the conditions set forth in the Merger Agreement (the “Merger”);
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in connection with the execution of the Merger Agreement and in accordance with the terms of the Merger Agreement, it is necessary and desirable to amend the Preservation Plan as set forth herein and to direct the Rights Agent to execute this Amendment; and
WHEREAS, pursuant to Section 26 of the Preservation Plan, under circumstances set forth therein, (i) the Company (at the direction of the Board) may, and the Rights Agent shall, if the Company so directs, supplement or amend any provision of the Preservation Plan without the approval of any holders of the Rights, and (ii) upon the delivery of a certificate from an appropriate officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of Section 26 of the Preservation Plan, the Rights Agent shall execute such supplement or amendment and, subject to the last sentence of Section 26 of the Preservation Plan, such amendment shall become effective immediately upon execution by the Company, whether or not also executed by the Rights Agent.
NOW, THEREFORE, in consideration of the foregoing and the promises and the mutual agreements set forth in the Preservation Plan and this Amendment, the parties, intending to be legally bound, hereby agree as follows:
Section 1. Amendment of Preservation Plan. The Preservation Plan is hereby amended as follows:
(a) Section 1 of the Preservation Plan is hereby amended by inserting the following subsections at the end of such Section 1:
“(qq) “Merger” shall have the meaning set forth in the Merger Agreement.
(rr) “Merger Agreement” shall mean the Agreement and Plan of Merger, dated as of November 22, 2021, by and among the Company, Telefonaktiebolaget LM Ericsson (publ), an entity organized and existing under the laws of Sweden (“Parent”), and Ericsson Muon Holding Inc., a Delaware corporation (“Merger Sub”), as it may be amended from time to time.”
(b) Section 1(a) of the Preservation Plan is hereby amended by inserting the following sentences at the end of such Section 1(a):
“Notwithstanding anything in this Section 1(a) or this Agreement to the contrary, neither Parent, Merger Sub, nor any of their respective Affiliates or Associates (collectively, the “Parent Group”), either individually or together, shall be, or shall be deemed to be, an Acquiring Person by virtue of, or as a result of, (i) the approval, adoption, execution, delivery and, if applicable, any amendment, of the Merger Agreement, (ii) the exercise by Parent of its rights under the Merger Agreement (including under Section 6.2 thereof), and (iii) the public announcement and consummation of the Merger and the other transactions contemplated thereby (the foregoing actions being referred to as the “Permitted Events”).”
(c) Section 1(d) of the Preservation Plan is hereby amended by inserting the following sentence at the end of such Section 1(d):
“Notwithstanding anything in this Section 1(d) or this Agreement to the contrary, the Parent Group, either individually or together, shall not be, and shall not be deemed to be, a ‘Beneficial Owner’ of, or to ‘beneficially own,’ any securities solely by virtue of, or as a result of, any Permitted Event.”
