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Exhibit 2.1
AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER (this “ Amendment
”) is made as of October 11, 2007 by and among NetScout
Systems, Inc., a Delaware corporation (“ NetScout
”), Bradley Merger Sub, LLC, a Delaware limited liability
company (“ Merger Sub ”), Network General
Central Corporation, a Delaware corporation (“ NetGen
”), Network General Corporation, a Delaware corporation
(“ NetGen Opco ”), and Silver Lake Partners,
L.P., a Delaware limited partnership, and TPG Starburst IV, LLC, a
Delaware limited liability company, in each case solely in its
capacity as a representative of the stockholders of NetGen (each,
in such capacity, a “ Stockholders Representative
”), and this Amendment amends that certain Agreement and Plan
of Merger dated as of September 19, 2007 by and among
NetScout, Merger Sub, NetGen, NetGen Opco and the Stockholders
Representatives, as amended on October 1, 2007 (the “
Merger Agreement ”). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such
terms in the Merger Agreement.
WHEREAS, in accordance with
Section 10.04 of the Merger Agreement, the parties hereto wish
to amend the Merger Agreement as specified herein.
NOW, THEREFORE, the parties
hereto agree as follows:
1. Amendments
.
(a) Section 1.01(a) of
the Merger Agreement is hereby amended by deleting the definition
of “ Bring-Down Date ” and inserting the
following definition in lieu thereof:
““ Bring-Down
Date ” shall mean October 18,
2007.”
(b) Section 1.01(a) of
the Merger Agreement is hereby amended by deleting the definition
of “ NetGen Excess Transaction Expenses ” and
inserting the following definition in lieu thereof:
““ NetGen
Excess Transaction Expenses ” shall mean any NetGen
Transaction Expenses that are in excess of the NetGen Transaction
Expenses Threshold.”
(c) Section 1.01(a) of
the Merger Agreement is hereby amended by adding the following
definition:
““ NetGen
Transaction Expenses Threshold ” shall mean an amount of
NetGen Transaction Expenses equal to (a) if the Closing Date
is October 18, 2007, $ 1,142,500 or (b) if the
Closing Date is any date after October 18, 2007, $
1,631,200 .”
(d) Section 2.06(b) of
the Merger Agreement is hereby amended by deleting the phrase
“At least three (3) Business Days prior to the
Closing” and inserting in lieu thereof “On the second
Business Day immediately prior to the Closing
Date”.
(e) Section 2.06(c) of
the Merger Agreement is hereby amended by deleting the definitions
of “ Total Cash Consideration ” and “
NetScout Common Stock Value ” and inserting the
following definitions in lieu thereof:
““ Total Cash
Consideration ” shall mean an amount in cash equal to
$150,000,000, plus (a) the aggregate exercise price or
base price, as applicable, for all of the vested portions of the
in-the-money NetGen Stock Options and in-the-money NetGen SARs, in
each case outstanding immediately prior to the Effective Time, and
(b) if the Closing Date is any date after October 18,
2007, $1,000,000, minus (x) the amount of the NetGen
Excess Transaction Expenses, if any, paid or incurred by NetGen or
any NetGen Subsidiary prior to Closing and (y) the NetGen
Indebtedness to Sponsors.”
““ NetScout
Common Stock Value ” shall mean the average of the
closing price of one share of NetScout Common Stock on the Nasdaq
Global Market over the 10 trading days ending three
(3) Business Days immediately prior to the Closing Date, as
reported by The Wall Street Journal .”
(f) Section 2.06(f) of
the Merger Agreement is hereby amended in its entirety and the
following text is hereby inserted in lieu thereof:
“(f) NetGen Deferred
Share Awards . Immediately prior to the Effective Time, NetGen
shall issue the aggregate number of shares of NetGen Common Stock
that, prior to the date of this Agreement, have been reserved for
issuance under the Deferred Compensation Agreements to
(a) either the NetGen Deferred Compensation Trust or
(b) the individuals that are parties to the Deferred
Compensation Agreements (but solely to the extent such individuals
agree to such issuance to them instead of the NetGen Deferred
Compensation Trust).”
(g) The last sentence of
Section 2.10(b) of the Merger Agreement is hereby amended in
its entirety and the following text is hereby inserted in lieu
thereof:
“Immediately prior to
the Effective Time, the vested portion of all of the then
outstanding out-of-the-money NetGen SARs and the unvested portion
of NetGen SARs shall be canceled without any payment made
therefor.”
(h) ARTICLE VII of the
Merger Agreement is hereby amended by adding the following
sections:
“7.15 Exemptive
Relief . On October 9, 2007, NetScout submitted a letter
to the SEC requesting that the consolidated financial statements of
NetGen and the NetGen Subsidiaries described in clause (i) of
the definition of “Financial Statements” herein be
permitted to satisfy the requirements of Rule 3-05 of Regulation
S-X under the Securities Act with respect to the financial
statements of NetGen required to be filed by NetScout after the
Closing pursuant to Item 9.01(a) of Form 8-K promulgated by
the SEC (the “ Exemptive Relief ”). NetScout
shall (a) use its reasonable best efforts to obtain the
Exemptive Relief from the SEC as soon as practicable, (b) keep
NetGen informed on a reasonably current basis with respect to any
correspondence and discussions with the SEC with respect to the
Exemptive Relief (including delivery of copies of any such
correspondence to NetGen) and (c) consider in good faith the
recommendations of NetGen and
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