exv10w8



 








EXHIBIT 10.8




AMENDMENT TO




AGREEMENT AND PLAN OF MERGER




     THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the “Amendment”) is made as of this
3rd day of August 2005, by and among Tekelec, a California corporation (“Tekelec”),
Santera Systems Inc., a Delaware corporation (“Santera”), certain stockholders of Santera,
and Austin Ventures VI, L.P., a Delaware limited partnership (“Austin Ventures”), as the
Representative. Capitalized terms used herein that are not otherwise defined have the meanings set
forth in the Agreement and Plan of Merger dated as of April 30, 2003 by and between Tekelec, Luke
Acquisition Corp., Santera, the stockholders of Santera (the “Stockholders”), and the
Representative (the “Merger Agreement”).



     WHEREAS, Tekelec, Santera, the Stockholders, and the Representative desire to amend the Merger
Agreement;



     NOW THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Tekelec, Santera, the
Stockholders, and the Representative agree as follows:



     Section 1. Amendment. The following Section 12.20 is added to Article XII of the
Merger Agreement:



     “Section 12.20 Acknowledgement and Agreement.



          (a) Effective upon the August Call Closing Date (as defined in Section 3.4 of the
Stockholders’ Agreement dated as of April 30, 2003, as amended August 2, 2005, Tekelec, Santera,
the stockholders of Santera (the “Stockholders”), and the Representative (the
“Stockholders’ Agreement”)), Tekelec and Santera hereby acknowledge and agree that neither
the Representative nor any Legacy Santera Stockholder which has delivered to the Escrow Agent (for
further delivery to Tekelec) a completed and executed copy of the Letter of Transmittal in
accordance with the terms of Section 3.4 of the Stockholders’ Agreement shall have any further
obligations under this Agreement, including without limitation, any obligations under Article XI
hereof, except that the obligations of such Parties under Section 7.2(e) hereof shall continue in
full force and effect.




          (b) Effective upon the August Call Closing Date (as defined in the Stockholders’ Agreement),
the Legacy Santera Stockholders and the Representative hereby acknowledge and agree that neither
Tekelec nor Santera has any further obligations under this Agreement, including without limitation,
any obligations under Article XI hereof, except that the obligations of such parties under Section
7.2(e) hereof shall continue in full force and effect.”




     Section 2. Representations. Each of Tekelec and Santera hereby represent and warrant
that it has the full right, power and authority to enter into this Amendment and the
documents related hereto and upon the execution of this Amendment by Tekelec, Santera, the
Representative and the other Legacy Santera Stockholders who are parties to this Amendment, the
Merger Agreement, as amended by this Amendment, shall be binding on, and enforceable



 









 




against, it.
Each of the Representative and each of the Legacy Santera Stockholders who are parties to this
Amendment (“Signing Legacy Stockholders”) hereby represents and warrants that it has the
full right, power and authority to enter into this Amendment and the documents related hereto and
upon the execution by Tekelec, Santera, the Representative and the other Legacy Santera
Stockholders who are parties to this Amendment, the Merger Agreement, as amended by this Amendment,
shall be binding on, and enforceable against, it.




     Section 3. Governing Law. This Amendment shall be governed by and construed under the
laws of the State of Delaware.



     Section 4. Entire Agreement. This Amendment constitutes the entire agreement between
Santera, Tekelec, the Stockholders, and the Representative relating to the subject matter hereof,
and any previous understanding and/or agreement between Tekelec, Santera, the Legacy Santera
Stockholders, and the Representative regarding the subject matter hereof is superseded by this
Amendment.



     Section 5. Counterparts. This Amendment may be executed in counterparts, each which
shall be deemed an original, and all of which shall constitute one and the same instrument.



* * * * *




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     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day first above
written.



	 	 	 	 	 	 	 
	 	 	SANTERA SYSTEMS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frederick M. Lax	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Frederick M. Lax	 	 
	 

	 	Title:
	 	Chairman of the Board of Directors	 	 
	 
	 	 	 	 	 	 
	 	 	TEKELEC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frederick M. Lax	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Frederick M. Lax	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ronald W. Buckly	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ronald W. Buckly	 	 
	 

	 	Title:
	 	Senior Vice President, Corporate	 	 
	 

	 	 	 	Affairs and General Counsel	 	 






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	 	 	AUSTIN VENTURES VI, L.P., as Representative	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AV Partners VI, L.P., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Edward E. Olkkola	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Edward E. Olkkola, General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	AUSTIN VENTURES VI, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AV Partners VI, L.P., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Edward E. Olkkola	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Edward E. Olkkola, General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	AUSTIN VENTURES VI AFFILIATES FUND, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AV Partners VI, L.P., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Edward E. Olkkola	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Edward E. Olkkola, General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	AUSTIN VENTURES VIII, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	AV Partners VIII, L.P., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Edward E. Olkkola	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Edward E. Olkkola, General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	REDPOINT VENTURES II, L.P., by its General Partner,
Redpoint Ventures II, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Thomas Dyal	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	R. Thomas Dyal, Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	REDPOINT ASSOCIATES II, LLC, as nominee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Thomas Dyal	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	R. Thomas Dyal, Managing Director	 	 







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	 	 	REDPOINT TECHNOLOGY PARTNERS Q-I, L.P., by its
General Partner, Redpoint Ventures I, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Thomas Dyal
 
	 	 
	 

	 	Name:
	 	R. Thomas Dyal	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	REDPOINT TECHNOLOGY PARTNERS A-I, L.P., by its
General Partner, Redpoint Ventures I, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Thomas Dyal
 
	 	 
	 

	 	Name:
	 	R. Thomas Dyal	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	MERITECH CAPITAL PARTNERS L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	Meritech Capital Associates L.L.C.
its General Partner
	 
	 	 	 	 	 	 
	 	 	By:	 	Meritech Management Associates L.L.C.
a managing member
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael B. Gordon
 
	 	 
	 

	 	Name:
	 	Michael B. Gordon	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	MERITECH CAPITAL AFFILIATES L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	Meritech Capital Associates L.L.C.
its General Partner
	 
	 	 	 	 	 	 
	 	 	By:	 	Meritech Management Associates L.L.C.
a managing member
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael B. Gordon
 
	 	 
	 

	 	Name:
	 	Michael B. Gordon	 	 
	 

	 	Title:
	 	Managing Director	 	 






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	 	 	SEQUOIA CAPITAL FRANCHISE FUND, L.P.
	 
	 	 	 	 
	 	 	By: SCFF Management, LLC
	 
	 	 	 	 
	 	 	A Delaware Limited Liability Company

General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark Stevens

 

	 

	 	Name:
	 	Mark Stevens
	 

	 	Title:	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 	 	SEQUOIA CAPITAL FRANCHISE PARTNERS, L.P.
	 
	 	 	 	 
	 	 	By: SCFF Management, LLC
	 
	 	 	 	 
	 	 	A Delaware Limited Liability Company

General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark Stevens

 

	 

	 	Name:
	 	Mark Stevens
	 

	 	Title:	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 	 	SEQUOIA CAPITAL VIII, L.P.
	 
	 	 	 	 
	 	 	By: SC VIII Management, LLC
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	A California Limited Liability Company

General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark Stevens

 

	 

	 	Name:
	 	Mark Stevens
	 

	 	Title:	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 	 	SEQUOIA INTERNATIONAL TECHNOLOGY PARTNERS VIII, L.P.
	 
	 	 	 	 
	 	 	By: SC VIII Management, LLC
	 
	 	 	A California Limited Liability Company

General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark Stevens

 

	 

	 	Name:
	 	Mark Stevens
	 

	 	Title:	 	 
	 

	 	 	 	 







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	 	 	SEQUOIA INTERNATIONAL TECHNOLOGY PARTNERS VIII (Q),
L.P.
	 
	 	 	 	 
	 	 	By: SC VIII Management, LLC


A California Limited Liability Company

General Partner
	 
	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark Stevens

 

Mark Stevens
	 

	 	Title:	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 	 	SEQUOIA 1997
	 
	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark Stevens

 

Mark Stevens
	 

	 	Title:	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 	 	CMS PARTNERS LLC
	 
	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark Stevens

 

Mark Stevens
	 

	 	Title:	 	 
	 

	 	 	 	 

	 
	 	 	 	 
	 	 	INSTITUTIONAL VENTURE PARTNERS VIII, L.P., by its
General Partner, Institutional Venture Management
VIII, LLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ R. Thomas Dyal
 

	 

	 	 	 	R. Thomas Dyal, Managing Director
	 
	 	 	 	 
	 	 	IVM INVESTMENT FUND VIII, LLC, by its
	 
	 	 	 	 
	 	 	Manager,Institutional Venture Management VIII,
	 
	 	 	 	 
	 	 	LLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ R. Thomas Dyal
 

	 

	 	 	 	R. Thomas Dyal, Managing Director
	 
	 	 	 	 
	 	 	BROADBAND FUND, L.P., by its General Partner,
BBF Management, LLC, by its Manager,
Institutional Venture Management VIII, LLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ R. Thomas Dyal
 

	 

	 	 	 	R. Thomas Dyal, Managing Director







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