{"id":43116,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-sonicwall-inc-and-phobos-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-sonicwall-inc-and-phobos-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-sonicwall-inc-and-phobos-corp.html","title":{"rendered":"Agreement and Plan of Merger &#8211; SonicWALL Inc. and Phobos Corp."},"content":{"rendered":"<pre>\n                   AMENDMENT TO AGREEMENT AND PLAN OF MERGER\n\n          THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the\n\"Amendment\") is made as of November 6, 2000, by and among SonicWall, Inc., a\nCalifornia corporation (\"SonicWall\"), Pluto Acquisition Corporation, a Utah\ncorporation and a wholly-owned subsidiary of SonicWall (\"Merger Sub\"), Phobos\nCorporation, a Utah corporation (\"Phobos\"), and GMS Capital Partners, L.P., a\nDelaware Limited Partnership, as \"Stockholders' Representative.\"\n\n                                   RECITALS\n\n          WHEREAS, SonicWall, Merger Sub, Phobos and Stockholders'\nRepresentative entered into that certain Agreement and Plan of Merger and\nReorganization dated October 16, 2000 (the \"Merger Agreement\"); and\n\n          WHEREAS, SonicWall, Merger Sub, Phobos and Stockholders'\nRepresentative desire to amend the Merger Agreement as provided below.\n\n          NOW, THEREFORE, in consideration of the promises and conditions\ncontained herein, the parties hereby agree as follows:\n\n          1.  Section 1.01 of the Merger Agreement be, and it hereby is, amended\nand restated in full as follows:\n\n                    \"The Merger.  Upon the terms and subject to the conditions\n                     ----------                                               \n          set forth in Article VII, and in accordance with the URBCA, at the\n          Effective Time (as defined in Section 1.02), the Company shall be\n          merged with and into Merger Sub, the separate corporate existence of\n          the Company shall cease, the Merger Sub shall continue as the\n          Surviving Corporation (the \"Surviving Corporation\") and the terms of\n          this Agreement shall be adjusted accordingly.\"\n\n          2.  Section 2.02(a) of the Merger Agreement be, and it hereby is,\namended and restated in full as follows:\n\n                    \"Aggregate Contingent Deferred Merger Consideration of up to\n          $20,000,000 in cash will be distributed to holders of Company Common\n          Stock and warrants to purchase Company Common Stock as of the date of\n          the Closing upon achievement of quarterly revenue targets in\n          accordance with Schedule 2.02(a) hereto; provided, however, that\n                                                   -----------------      \n          Parent, Merger Sub and the Company agree that any contingencies with\n          respect to such Contingent Deferred Merger Consideration shall be\n          waived and the maximum amount of Contingent Deferred \n\n                                       1\n\n \n          Merger Consideration shall be immediately payable to such holders of\n          Company Common Stock upon a Change of Control Event (as defined in\n          Section 2.02(c) below) following the Closing.\n\n          3.  Section 2.02(c)(iii) of the Merger Agreement be, and it hereby is,\namended and restated in full as follows:\n\n                    \"`Pro Rata Contingent Distribution' Equals (x) the amount of\n                      ---------------------------------                         \n          Contingent Deferred Merger Consideration divided by (y) the number of\n          shares of Company Common Stock issued and outstanding immediately\n          prior to the Effective Time plus the number of shares of Company Stock\n          issuable upon exercise of warrants to purchase Company Stock issued\n          and outstanding immediately prior to the Effective Time.\"\n\n          4.  Section 7.02(s) of the Merger Agreement be, and it hereby is,\namended and restated in full as follows:\n\n                    \"Intentionally Omitted.\"\n\n          5.  Schedule 6.04(b) of the Merger Agreement be, and it hereby is,\namended and restated in full as follows:\n\n                    \"Ron Heinz\n                    Gary Challburg\n                    Paul Williams\n                    David Pascoe\n                    Greg Hudson\n                    Wes Swenson\n                    Clay Epstein\n                    Bruce Allred\n                    Dave Barnes\n                    Chris Hull\n                    Rizwan Mallal\n                    Trung Vu\n                    Dan Reading\n                    Don Schaeffer.\"\n\n          6.  Miscellaneous.\n              ------------- \n\n               (a)  No Other Modification.  Except as expressly provided herein,\n                    ---------------------         \nthis Agreement does not in any way change, modify or delete any of the\nprovisions of the Merger Agreement, and all such provisions shall remain in full\nforce and effect.\n\n               (b)  Governing Law.  This Amendment shall be governed by and     \n                    -------------    \nconstrued under the laws of the State of California.\n\n                                       2\n\n \n               (c)  Counterparts.  This Amendment may be executed in two or more\n                    ------------      \ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument.\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of\nthe date first above written.\n\n                                SONICWALL, INC\n\n\n                                By: \/s\/ Sreekanth Ravi\n                                   ------------------------------------------\n                                    Sreekanth Ravi,\n                                    President and Chief Executive Officer\n\n                                PLUTO ACQUISITION CORPORATION\n\n\n\n                                By: \/s\/ Michael Sheridan\n                                   ------------------------------------------\n                                    Michael Sheridan\n                                    President and Chief Executive Officer\n\n                                PHOBOS CORPORATION\n\n\n\n                                By: \/s\/ Ron Heinz\n                                   ------------------------------------------\n                                    Ron Heinz,\n                                    President and Chief Executive Officer\n\n                                GMS CAPITAL PARTNERS, L.P., as Stockholders'\n                                Representative\n \n                                By: \/s\/ Joachim Gfoeller, Jr.\n                                   ------------------------------------------\n                                Print Name:  Joachim Gfoeller, Jr.\n\n                                Title:_______________________________________\n\n                                       3\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8863],"corporate_contracts_industries":[],"corporate_contracts_types":[9622,9626],"class_list":["post-43116","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-sonicwall-inc","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43116","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43116"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43116"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43116"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43116"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}