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Exhibit 2.3
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
Amendment
No. 1, dated as of November 29, 2006 (this "
Amendment "), to the Agreement and Plan of Merger dated as
of August 21, 2006 (the " Merger Agreement "), by and
among Harmonic Inc., a Delaware corporation (" Harmonic "),
Entone Technologies, Inc., a Delaware corporation (" Entone
"), Edinburgh Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of Harmonic, Entone, Inc., a Delaware
corporation, Entone Technologies (HK) Limited, a Hong Kong company
and with respect to certain sections of the Merger Agreement, Jim
Jones, as stockholder representative (the " Stockholder
Representative "), and U.S. Bank, National Association, as
escrow agent (such parties to the Merger Agreement shall
collectively be referred to herein as the " Parties "). Each
capitalized term used and not otherwise defined herein shall have
the meaning assigned to such term in the Merger Agreement.
WHEREAS,
on August 21, 2006, parties executed the Merger Agreement,
which contemplates, among other things, the acquisition of
Entone’s video-on-demand (" VOD ") business by
Harmonic;
WHEREAS,
the Merger Agreement may be amended by the parties at any time by
execution of an instrument in writing signed on behalf of the party
against whom enforcement is sought and the stockholders of Entone
have agreed that any amendment of the Merger Agreement signed by
the Stockholder Representative shall be binding upon and effective
against such stockholders whether or not they have signed such
amendment; and
WHEREAS,
the parties desire to amend the Merger Agreement as provided in
this Amendment and in Exhibit A hereof.
NOW,
THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1.
Amendments to the Merger Agreement.
(a) A
definition for "Additional Escrow Amount" shall be added in
Section 1.6(a)(i) of the Merger Agreement to read as
follows:
" " Additional Escrow
Amount " shall mean an amount equal to $2,250,000."
(b) Section 1.8(b)
of the Merger Agreement shall be amended to delete the clause "the
Escrow Amount and the Expense Escrow Amount" and replace such
clause with "the Escrow Amount, the Additional Escrow Amount and
the Expense Escrow Amount."
(c) Section 1.8(c)
of the Merger Agreement shall be amended to delete the clause
"(less the portion of the Escrow Amount and the Expense Escrow
Amount to be deposited in the Escrow Fund and the portion of the
Escrow Amount to be deposited in the Tax Escrow Fund, in each case
on such holder’s behalf pursuant to
Section 1.8(b) hereof and Article VII
hereof)" and replace such clause with "(less the portion of the
Escrow Amount, the Additional Escrow Amount and the Expense Escrow
Amount to be deposited in the Escrow Fund and the portion of the
Escrow Amount to be deposited in the Tax Escrow Fund, in each case
on such holder’s behalf pursuant to
Section 1.8(b) hereof and Article VII
hereof)."
(d) Section 5.6(a)(i)
of the Merger Agreement shall be amended and replaced in its
entirety by the following:
"the escrow and indemnification
obligations of the Company Stockholders set forth in Article
VII hereof and the deposit of Merger Cash equal to the Escrow
Amount, the Additional Escrow Amount, the Tax Escrow Amount and the
Expense Escrow Amount into the Escrow Fund and"
(e) Section 7.2(a)
of the Merger Agreement shall be amended to delete the clause
"claims, losses, liabilities, damages, deficiencies, diminution in
value, costs, interest, awards, judgments, penalties and expenses,
including reasonable attorneys’ and consultants’ fees
and expenses and including any such reasonable expenses incurred in
connection with investigating, defending against or settling any of
the foregoing, but excluding any such items that the Newco Group
agrees to, and does, pay timely, but not later than the Survival
Date, (hereinafter individually a " Loss " and collectively
" Losses ")" and replace it with the following:
"claims, losses, liabilities, damages, deficiencies, diminution
in value, costs, royalties, interest, awards, judgments, penalties
and expenses, including reasonable attorneys’ and
consultants’ fees and expenses and including any such
reasonable expenses incurred in connection with investigating,
defending against or settling any of the foregoing, but excluding
any such items that the Newco Group agrees to, and does, pay
timely, but not later than the Survival Date, (hereinafter
individually a " Loss " and collectively " Losses
")".
(f) Section 7.2(a)
of the Merger Agreement shall be amended to delete the word "and"
immediately before the "(x)" in subclause "(x)" and to add a new
subclause (xi) immediately following the existing subclause
"(x)" to read as follows:
", and (xi) Losses paid, spent or incurred by Parent as
described in Schedule 7.2(a) hereof (the "
Additional Escrow Matter "), and the terms and conditions
set forth in such Schedule 7.2(a) with respect to the
Additional Escrow Matter shall be incorporated herein by
reference."
(g) New
subsection (f) shall be added to Section 7.3 of the
Merger Agreement, and shall read as follows:
"Notwithstanding anything to the contrary herein, (i) in no
event shall t
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