Form DEFA14A VONAGE HOLDINGS CORP
AMENDMENT NO. 1 TO THE CONSERVATION PLAN OF TAX BENEFITS
This amendment n ° 1 (this ??Amendment??) to the Tax Advantage Preservation Plan (the ??Preservation plan??), dated June 7, 2012, by and between Vonage Holdings Corp., a Delaware corporation (the ??Society??), and American Stock Transfer & Trust Company, LLC (??Rights Officer??), is entered into on November 22, 2021 by and between the Company and the Rights Agent. Capitalized terms used and not defined herein will have the meanings assigned to them in the Preservation Plan.
WHEREAS the Company proposes to enter into an agreement and a merger plan (the ??Merger agreement??), dated November 22, 2021, with Telefonaktiebolaget LM Ericsson (publ), an entity organized and existing under the laws of Sweden (??Parent??), and Ericsson Muon Holding Inc., a Delaware corporation (??Merge under??), pursuant to which Merger Sub will be amalgamated with and into the Company, the surviving Company as a wholly owned subsidiary of the Parent Company, under the terms and subject to the conditions set out in the Merger Agreement (the ??Merger??);
WHEREAS the Board of Directors of the Company (??Plank??) has determined that, in connection with the signing of the Merger Agreement and in accordance with the terms of the Merger Agreement, it is necessary and desirable to modify the Preservation Plan as set forth herein and to request to the agent in charge of signing this Amendment; and
WHEREAS, in accordance with Section 26 of the Preservation Plan, in the circumstances set out therein, (i) the Company (on the direction of the Board) may, and the Rights Officer shall, if the Company so directs, supplement or modify any provision of the preservation plan without the approval of the rights holders, and (ii) upon delivery of a certificate from an appropriate officer of the company indicating that the proposed supplement or modification is in accordance with conditions of Article 26 of the Preservation Plan, the Rights Agent will execute such supplement or modification and, subject to the last sentence of Article 26 of the Preservation Plan, this modification will come into effect immediately after the execution by the Company, whether or not it is also signed by the Rights Agent.
THEREFORE, in light of the foregoing and the mutual promises and agreements set forth in the Preservation Plan and this Amendment, the parties, intending to be legally bound, hereby agree as follows:
Section 1. Modification of the preservation plan. The preservation plan is hereby amended as follows:
(a) Section 1 of the Preservation Plan is hereby amended by inserting the following subsections at the end of this Section 1:
?? (qq) ??Merger?? will have the meaning set out in the Merger Agreement.
(rr) ??Merger agreement?? means the Merger Agreement and Plan, dated November 22, 2021, by and between the Company, Telefonaktiebolaget LM Ericsson (publ), an entity organized and existing under the laws of Sweden (??Parent??), and Ericsson Muon Holding Inc., a Delaware corporation (??Merge under??), as it may be changed from time to time.
(b) Section 1 (a) of the Preservation Plan is hereby amended by inserting the following sentences at the end of this Section 1 (a):
?? Notwithstanding anything to the contrary in this Section 1 (a) or in this Agreement, neither the Parent, nor the Merger Subgroup, nor any of their respective Affiliates or Associates (collectively, the ??Parents group??), whether individually or together, will be, or be deemed to be, an acquirer by virtue of or as a result of (i) the approval, adoption, performance, delivery and, where applicable, any amendment to the Merger Agreement, (ii) the exercise by the Parent Company of its rights under the Merger Agreement (including under section 6.2 thereof), and (iii ) the public announcement and completion of the Merger and the other transactions contemplated by it (the foregoing actions being called the ??Authorized events??). ???
(c) Section 1 (d) of the Preservation Plan is hereby amended by inserting the following sentence at the end of this Section 1 (d):
?? Notwithstanding anything to the contrary in this Section 1 (d) or this Agreement, the Parent Group, individually or together, will not and will not be deemed to be a ?? Beneficial owner ?? of, or of ?? beneficially possessing, ?? securities only by virtue of or as a result of an authorized event. ??