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Exhibit 2.8
FIRST AMENDMENT TO THE
FIRST AMENDED AND RESTATED STOCK EXCHANGE
AGREEMENT
AND PLAN OF REORGANIZATION
This FIRST AMENDMENT TO THE FIRST
AMENDED AND RESTATED
STOCK EXCHANGE AGREEMENT AND PLAN OF
REORGANIZATION (the "
Amendment ") dated as of November
____ 2006, is by and among the former shareholders (the "
Shareholders ") of Netintact AB, a
Swedish corporation (" Netintact "), certain third party beneficiaries of the Agreement (the
" Beneficiaries "), (the
Shareholders and Beneficiaries collectively referred to as "
Sellers "); and Procera Networks,
Inc., a Nevada corporation, whose principal office is located at
100C Cooper Court; Los Gatos, CA 95032, ("
Procera ").
R E C I T A L S
A. WHEREAS, the Shareholders and Procera entered into a First
Amended and Restated Stock Exchange Agreement and Plan of
Reorganization on 18 August 2006 (the "
Agreement ") and related exhibits
(the " Exhibits ") and the
Beneficiaries and Procera entered into Closing Date Warrant
Agreements and Incentive Warrant Agreements (the "
Warrant Agreements " and the
Agreement, the Exhibits and the Warrant Agreements are collectively
referred to as, the " Documents ").
B . WHEREAS, the parties wish to amend the
Documents as set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section 1.3(d)
Incentive Warrants. Section 1.3(d) of the Agreement is hereby
amended and restated in entirety to read as follows:
" Incentive Warrants:
In addition to the Closing Date Warrants, the
persons set out in Exhibit A-4
hereto shall receive warrants to purchase one
hundred twenty-three thousand two hundred forty-three (123,243)
shares of Procera’s Common Stock (the "
Incentive Warrants "). Such warrants
shall be exercisable if, and only if ,
all of the milestones and conditions set forth
in Exhibit C are met.
Such warrants shall be granted to the persons and in the numbers
set out in Exhibit A-6 and pursuant to a warrant agreement substantially in the form
set out in Exhibit A-5 hereto (the " Incentive Warrant
Agreement ")."
2.
Exhibit A-2 - Closing Date Warrant
Agreement . Section 3(a) and 3(b) of
Exhibit A-2 "Closing Date Warrant Agreement" and each
separate Closing Date Warrant Agreement between Beneficiaries and
Procera are hereby amended and restated in entirety to read as
follows:
" Conditions . Warrants may be exercised
if and only if:
(a) The market price of
the Company’s common stock is or exceeds $2.00 US for a
period of 90 consecutive days; provided however, that should any
anti-dilution adjustment be made pursuant to Section 6 (a) of this
Agreement, a similar adjustment shall be made to the $2.00 US
market price; and
(b) With the exception of
Johan Magnusson, Holder is an employee of the Company or any
subsidiary of the Company at the time of the exercise."
3.
Exhibit A-2 - Closing Date Warrant
Agreement . Section 4(g) of Exhibit
A-2 "Closing Date Warrant Agreement" and each separate Closing
Date Warrant Agreement between Beneficiaries and Procera is hereby
amended to add the following:
"(g)
Notwithstanding anything else set forth in this Section 4, in the
event Holder is an employee of the Company or any subsidiary of the
Company, Holder
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