EXHIBIT 2.1
AMENDMENT NO. 2 (INCLUDING CONSENT AND WAIVER) TO AGREEMENT
AND PLAN OF MERGER
AMENDMENT NO. 2 (including Consent and Waiver) dated as of July 17,
2003 (this "AMENDMENT") to the Agreement and Plan of Merger, dated as of March
27, 2003 (the "ORIGINAL MERGER AGREEMENT"), by and among Netro Corporation, a
Delaware corporation, SR Telecom Inc. ("PARENT"), a corporation organized under
the Canada Business Corporations Act, and Norway Acquisition Corporation, a
Delaware corporation and a wholly owned subsidiary of Parent, as previously
amended by Amendment No. 1 to the Original Merger Agreement, dated as of May 5,
2003 (the Original Merger Agreement as so amended by such Amendment No. 1, the
"AGREEMENT").
RECITALS
WHEREAS, pursuant to Section 11.03 of the Agreement, the parties to the
Agreement desire to amend the Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Amendment and in the Agreement, 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 hereby agree as follows:
AGREEMENT
SECTION 1. Defined Terms; References. Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Agreement shall, after this Amendment
becomes effective, refer to the Agreement as amended by this Amendment.
SECTION 2. Amendment to the Agreement. The Agreement shall be amended
as follows:
(a) Section 5.05(b) of the Agreement is hereby amended by deleting
the first sentence thereof in its entirety and replacing it with the following:
Except as set forth in this Section 5.05 and for
changes since the close of business on March 24, 2003
resulting from (x) the exercise of stock options or
the grant of stock based compensation to directors or
employees and (y) the issuance and sale of up to
5,280,000 units (each a "Unit" and, collectively, the
"Units") at a purchase price of C$0.85 per Unit, each
Unit comprised of one share of Parent Stock and
one-half of one warrant (each whole warrant to
purchase one share of Parent Stock at C$1.00 per
share), pursuant to the Agency Agreement to be dated
on or about July 18, 2003 between the Company and TD
Securities Inc. and CIBC World Markets Inc., and from
the exercise of such warrants, there are no
outstanding (i)
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shares of capital stock or voting securities of
Parent, (ii) securities of Parent convertible into or
exchangeable for shares of capital stock or other
voting securities or ownership interests in Parent or
(iii) options or other rights (including preemptive
rights) to acquire from Parent or other obligation of
Parent to issue, deliver, or sell or cause to be
issued, delivered or sold, any capital stock or other
voting securities or ownership interests in or any
securities convertible into or exchangeable for
capital stock or other voting securities or ownership
interests in Parent.
(b) The phrase "unless Parent shall have otherwise consented in
writing" in the first sentence of Section 7.01 of the Agreement is hereby
deleted and replaced with the phrase "unless the Company shall have otherwise
consented in writing".
SECTION 3. Consent and Waiver. The Company hereby consents to the
issuance and sale by Parent of the Parent Stock and warrants referred to in
clause (y) of the first sentence of Section 5.05(b) of the Agreement, as amended
by this Amendment, and the Company expressly waives the application of all
covenants of Parent set forth in Section 7.01 of the Agreement applicable
thereto.
SECTION 4. Representations of Each Party. Each party represents and
warrants that (i) the execution, delivery and performance of this Amendment by
such party have been duly authorized by all necessary corporate action and (ii)
this Amendment constitutes a valid and binding agreement of such party.
SECTION 5. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof
SECTION 6. Governing Law. This Amendment 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 conflict of law
principles.
SECTION 7. Counterparts; Effectiveness. This Amendment may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 8. Severability. If any term or other provision of this
Amendment is invalid, illegal or unenforceable, all other provisions of this
Amendment shall remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
NETRO CORPORATION
By: /s/ Sanjay K. Khare
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Name: Sanjay K. Khare
Title: Chief Financial Officer
SR TELECOM INC.
By: /s/ Pierre St. Arnaud
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Name: Pierre St. Arnaud
Title: President and Chief
Executive Officer
By: /s/ David Adams
-----------------------------------
Name: David Adams
Title: Senior Vice President,
Finance & Chief Financial
Officer
NORWAY ACQUISITION CORPORATION
By: /s/ Pierre St. Arnaud
-----------------------------------
Name: Pierre St. Arnaud
Title: President
By: /s/ David Adams
-----------------------------------
Name: David Adams
Title: Vice President
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