Exhibit 7.02
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
AMONG
THE SOFTWARE DEVELOPER'S COMPANY, INC.,
ISC ACQUISITION CORP.,
INTERNET SECURITY CORPORATION
AND
XXXXXXX XXXXXXXX
NOVEMBER 16, 1995
WHEREAS, The Software Developer's Company, Inc. ("SDC"), ISC
Acquisition Corp. ("ISC Acquisition"), Internet Security Corporation ("ISC") and
Xxxxxxx Xxxxxxxx (the "Exchanging Stockholder") have entered into an Agreement
and Plan of Merger dated as of October 17, 1995 (the "Merger Agreement"); and
WHEREAS, the parties to the Merger Agreement desire to amend and
supplement the agreement in certain respects as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and intending to be legally bound, the parties hereto agree as
follows:
Section 1. DEFINITIONS. Capitalized terms used herein and not defined
shall have the respective meanings set forth in the Merger Agreement.
Section 2. AMENDMENTS. The Merger Agreement shall be amended as
follows:
(a) The amount of authorized capital stock of ISC Acquisition is
changed from 1,000 shares to 200,000 shares and the number of
issued and outstanding shares of capital stock is 500 shares.
(b) Section 2.8 is hereby amended and restated in its entirety
to read as follows:
2.8 DIRECTORS AND OFFICERS. Xxxxx X. Xxxxxx and
Xxxxxxx Xxxxxxxx shall become the directors of the Surviving
Corporation at and as of the Effective Time until their
successors shall have been duly elected or appointed and
qualified in accordance with the Surviving Corporation's
Articles of Organization and Bylaws. Xxxxxxx Xxxxxxxx, Xxxxx
X. Xxxxxx and Xxxx X. Xxxxxxx shall become President,
Treasurer and Clerk, respectively, of the Surviving
Corporation at and as of the Effective Time
until their successors have been duly elected or appointed and
qualified in accordance with the Surviving Corporation's
Bylaws.
(c) The undersigned hereby agree to extend the Closing (as defined
in Section 3.1) and extend the Termination Date (as defined in
Section 3.3(b)) to a date which shall be no later than
November 30, 1995.
(d) Section 4.10 is hereby amended and restated in its entirety to
read as follows:
4.10 BROKERS AND INTERMEDIARIES. Except for the
agreement between Xxxxxx Resources and American Systems &
Technology, Inc. (the "ISC FINDERS") and ISC, a copy of which
has been furnished to SDC, none of the Transferors has
employed any broker, finder, advisor or other intermediary in
connection with the transactions contemplated by this
Agreement which would be entitled to a fee or commission in
connection therewith or upon the consummation thereof. The
Exchanging Stockholder shall be solely responsible and liable
for the payment of such fees or commissions of all brokers or
finders engaged by him and ISC, except that prior to the
Effective Time, ISC shall make a payment to the ISC Finders of
$22,500 from its working capital to pay finders' fees of ISC
and the Exchanging Stockholder.
(e) Section 5.3 is amended by (i) changing the number of shares of
Common Stock issued and outstanding from 7,443,748 to
7,529,011 shares and (ii) adding the following sentence at the
end of the first sentence: "SDC also has reserved 331,500
shares of SDC Common Stock for issuance pursuant to
outstanding warrants."
(f) Section 7.16 ("Opinion of Coopers & Xxxxxxx") is deleted in
its entirety.
(g) Section 9.2 shall be revised to add the following subsection:
(c) any and all payment obligations, liabilities or
personal guarantees which Exchanging Stockholder may suffer
under the Agreement with Check Point Technologies Ltd.
disclosed prior to the Effective Date, provided however, SDC
shall have no indemnification obligation for any undisclosed
payment obligations, liabilities or personal guarantees under
the Agreement with Check Point Technologies Ltd. which exist
as of the Effective Date; provided, however, that the
foregoing provisions are subject to the Basket Deductible as
set forth in Section 9.10(a) of the Agreement and the
limitations on liability set forth in 9.10(b) of the
Agreement.
Section 3. COUNTERPARTS; EFFECTIVENESS. This Amendment No. 1 may be
signed in counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Amendment No. 1 shall become effective when each party hereto shall have
received a counterpart hereof signed by the other parties hereto.
Section 4. AFFIRMATION. Each of the parties to the Merger Agreement
hereby agree that except as modified herein, the Merger Agreement is hereby
reconfirmed as being in full force and effect as a valid, binding and
enforceable obligation of the parties. Each of the undersigned hereby reconfirms
each of the representations, warranties and covenants set forth in the Merger
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment to the Agreement and Plan of Merger as of the date first above
written.
THE SOFTWARE DEVELOPER'S INTERNET SECURITY
COMPANY, INC. CORPORATION
BY: /s/ Xxxxx X. Xxxxxx BY: /s/ Xxxxxxx Xxxxxxxx
XXXXX X. XXXXXX, PRESIDENT XXXXXXX XXXXXXXX, PRESIDENT
ISC ACQUISITION CORP. EXCHANGING
STOCKHOLDER:
BY: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxxx
XXXXX X. XXXXXX, PRESIDENT XXXXXXX XXXXXXXX, PERSONALLY
