EXHIBIT 2.2
AMENDMENT NO. 3
DATED AS OF AUGUST 6, 2003
TO
AGREEMENT AND PLAN OF MERGER
DATED AS OF MARCH 27, 2003
BY AND AMONG
NETRO CORPORATION,
SR TELECOM INC.
AND
NORWAY ACQUISITION CORPORATION
AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 3 dated as of August 6, 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 and Amendment No. 2 to the
Original Merger Agreement, dated as of July 17, 2003 (the Original Merger
Agreement as so amended by such Amendment No. 1 and Amendment No. 2, 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 4.13 of the Agreement is hereby amended and restated
as follows:
"Except as set forth in the Company SEC Documents
filed prior to the date hereof, there is no action,
suit, investigation or proceeding, other than the
actions styled Fuller & Thaler Asset Management, Inc.
v. Netro Corp. et al., Case No. CV816170 (Cal. Super.
Ct.) and Maritime Association - I.L.A. Pension Fund
v. Netro Corp. et al., Case No. CV817375 (Cal. Super.
Ct.) pending against, or, to the Knowledge of the
Company, threatened against or affecting, the
Company, any of its Subsidiaries, any of their
respective officers or directors in their capacity as
officers or directors of the Company or any of its
Subsidiaries or any of their respective properties
before any court or arbitrator or before or by any
Governmental Entity, that, if determined or resolved
adversely in accordance with the plaintiff's demands,
would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect on the
Company, or that in any
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manner challenges or seeks to prevent, enjoin, alter
or materially delay the Merger or any of the other
transactions contemplated hereby."
(b) Section 10.01(b)(i) of the Agreement is hereby amended and
restated as follows:
"(i) the Merger has not been consummated on or
before September 30, 2003; provided that, the right
to terminate this Agreement pursuant to this Section
10.01(b)(i) shall not be available to any party whose
breach of any provision of this Agreement results in
the failure of the Merger to be consummated by such
time and provided, further, that the Company hereby
expressly waives its rights to terminate this
Agreement pursuant to this Section 10.01(b)(i) as a
result of either or both of the actions styled Fuller
& Thaler Asset Management, Inc. v. Netro Corp. et
al., Case No. CV816170 (Cal. Super. Ct.) or Maritime
Association - I.L.A. Pension Fund v. Netro Corp. et
al., Case No. CV817375 (Cal. Super. Ct.)."
SECTION 3. Consent and Waiver. For the avoidance of doubt, Parent and
Merger Sub hereby expressly waive their condition to close pursuant to Section
9.02(a)(i) and their rights to terminate this Agreement pursuant to Section
10.01(e)(ii) as a result of either or both of the actions styled Fuller & Thaler
Asset Management, Inc. v. Netro Corp. et al., Case No. CV816170 (Cal. Super.
Ct.) or Maritime Association - I.L.A. Pension Fund v. Netro Corp. et al., Case
No. CV817375 (Cal. Super. Ct.).
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
-----------------------------------
Name: Sanjay K. Khare
Title: Chief Financial Officer
SR TELECOM INC.
By: /s/ Pierre St. Arnaud
-----------------------------------
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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