AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the
"Amendment") is made as of November 6, 2000, by and among SonicWall, Inc., a
California corporation ("SonicWall"), Pluto Acquisition Corporation, a Utah
corporation and a wholly-owned subsidiary of SonicWall ("Merger Sub"), Phobos
Corporation, a Utah corporation ("Phobos"), and GMS Capital Partners, L.P., a
Delaware Limited Partnership, as "Stockholders' Representative."
RECITALS
WHEREAS, SonicWall, Merger Sub, Phobos and Stockholders'
Representative entered into that certain Agreement and Plan of Merger and
Reorganization dated October 16, 2000 (the "Merger Agreement"); and
WHEREAS, SonicWall, Merger Sub, Phobos and Stockholders'
Representative desire to amend the Merger Agreement as provided below.
NOW, THEREFORE, in consideration of the promises and conditions
contained herein, the parties hereby agree as follows:
1. Section 1.01 of the Merger Agreement be, and it hereby is, amended
and restated in full as follows:
"The Merger. Upon the terms and subject to the conditions
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set forth in Article VII, and in accordance with the URBCA, at the
Effective Time (as defined in Section 1.02), the Company shall be
merged with and into Merger Sub, the separate corporate existence of
the Company shall cease, the Merger Sub shall continue as the
Surviving Corporation (the "Surviving Corporation") and the terms of
this Agreement shall be adjusted accordingly."
2. Section 2.02(a) of the Merger Agreement be, and it hereby is,
amended and restated in full as follows:
"Aggregate Contingent Deferred Merger Consideration of up to
$20,000,000 in cash will be distributed to holders of Company Common
Stock and warrants to purchase Company Common Stock as of the date of
the Closing upon achievement of quarterly revenue targets in
accordance with Schedule 2.02(a) hereto; provided, however, that
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Parent, Merger Sub and the Company agree that any contingencies with
respect to such Contingent Deferred Merger Consideration shall be
waived and the maximum amount of Contingent Deferred
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Merger Consideration shall be immediately payable to such holders of
Company Common Stock upon a Change of Control Event (as defined in
Section 2.02(c) below) following the Closing.
3. Section 2.02(c)(iii) of the Merger Agreement be, and it hereby is,
amended and restated in full as follows:
"`Pro Rata Contingent Distribution' Equals (x) the amount of
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Contingent Deferred Merger Consideration divided by (y) the number of
shares of Company Common Stock issued and outstanding immediately
prior to the Effective Time plus the number of shares of Company Stock
issuable upon exercise of warrants to purchase Company Stock issued
and outstanding immediately prior to the Effective Time."
4. Section 7.02(s) of the Merger Agreement be, and it hereby is,
amended and restated in full as follows:
"Intentionally Omitted."
5. Schedule 6.04(b) of the Merger Agreement be, and it hereby is,
amended and restated in full as follows:
"Ron Heinz
Gary Challburg
Paul Williams
David Pascoe
Greg Hudson
Wes Swenson
Clay Epstein
Bruce Allred
Dave Barnes
Chris Hull
Rizwan Mallal
Trung Vu
Dan Reading
Don Schaeffer."
6. Miscellaneous.
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(a) No Other Modification. Except as expressly provided herein,
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this Agreement does not in any way change, modify or delete any of the
provisions of the Merger Agreement, and all such provisions shall remain in full
force and effect.
(b) Governing Law. This Amendment shall be governed by and
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construed under the laws of the State of California.
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(c) Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
SONICWALL, INC
By: /s/ Sreekanth Ravi
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Sreekanth Ravi,
President and Chief Executive Officer
PLUTO ACQUISITION CORPORATION
By: /s/ Michael Sheridan
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Michael Sheridan
President and Chief Executive Officer
PHOBOS CORPORATION
By: /s/ Ron Heinz
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Ron Heinz,
President and Chief Executive Officer
GMS CAPITAL PARTNERS, L.P., as Stockholders'
Representative
By: /s/ Joachim Gfoeller, Jr.
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Print Name: Joachim Gfoeller, Jr.
Title:_______________________________________
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Agreement and Plan of Merger - SonicWALL Inc. and Phobos Corp.
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