AMENDMENT TO AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
PACIFIC INTERMEDIA, INC.
AND
RAPTOR NETWORKS TECHNOLOGY, INC.
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment") is dated
October 15, 2003 by and between PACIFIC INTERMEDIA, INC. ("PFII") and RAPTOR
NETWORKS TECHNOLOGY, INC. ("RAPTOR"), parties to the original Agreement and Plan
of Merger dated August 23, 2003 (the "Agreement"). This Amendment modifies the
terms and provisions of the original Agreement and Plan of Merger dated August
23, 2003 as follows:
AMENDMENT RECITALS
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This Amendment to the original Agreement modifies the original Agreement
to revise the transaction contemplated by and between the parties to be an
acquisition of RAPTOR by PFII as a wholly-owned subsidiary of PFII in lieu of
the merger contemplated in the original Agreement. Accordingly, the specified
terms and provisions of the original Agreement are modified by this Amendment as
follows:
SECTION 1.1 NAME OF SURVIVING CORPORATION; ARTICLES OF INCORPORATION AND
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BY-LAWS; BOARD OF DIRECTORS; OFFICERS shall read as follows:
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1.1 Name of Surviving Corporation. Pacific Intermedia, Inc. shall
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continue as a Colorado corporation following completion of the
acquisition of 100% of the issued and outstanding capital stock of
Raptor Networks Technology, Inc. which is contemplated hereby.
Following completion of that acquisition, the parties intend to
subsequently replace the PFII Board of Directors and officers with
the Board of Directors of RAPTOR and to subsequently seek PFII
shareholder approval for change of the name of PFII, the acquiring
corporation, to: "Raptor Networks Technology, Inc.".
1.2 Articles of Incorporation and By-Laws. Following completion of the
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acquisition transaction contemplated herein, the parties intend to
seek PFII shareholder approval to replace the Articles of
Incorporation and By-Laws of PFII with the then-current Articles
of Incorporation and By-Laws of RAPTOR. Throughout the original
Agreement, the term, "Surviving Corporation" shall be synonymous
with Pacific Intermedia, Inc., a Colorado corporation.
Sections 1.3 and 1.4 of the original Agreement are DELETED as inapplicable to
the acquisition transaction contemplated by this Amendment.
SECTION 2. STATUS AND CONVERSION OF SECURITIES shall reflect the exchange of
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stock contemplated in the original Agreement consistent with the
modified transaction set out in this Amendment. That is,
acquisition by PFII of 100% of the capital stock of RAPTOR rather
than the merger contemplated in the original Agreement. The term
"Disappearing Corporation" shall refer to Raptor Networks
Technology, Inc. and shall be modified instead to the term
"subsidiary" in all cases.
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2.1(c) Surrender and Exchange of Raptor Common Stock and/or Raptor Series
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C Stock shall be modified to specify the exchange agent to be Xxxx
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Xxxxx, Esq. ("Exchange Agent") at 65 Enterprise, Aliso Viejo,
California. All other terms and provision of Section 2.1(c) shall
remain unchanged.
SECTION 3. STOCKHOLDER APPROVALS; BOARD OF DIRECTORS' RECOMMENDATIONS;
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FILING; EFFECTIVE TIME. Throughout Section 3. of the original
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Agreement, the term "Merger" shall be replaced with the term
"Acquisition".
SECTION 4. CERTAIN EFFECTS OF THE MERGER is DELETED as not applicable to the
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acquisition contemplated by this Amendment as opposed to the
Merger contemplated by the original Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES shall be amended as follows:
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6.2(g) Retirement Plans. Is modified to reflect the Acquisition
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contemplated by this Amendment rather than a merger contemplated
by the original Agreement.
SECTION 8. ADDITIONAL TERMS OF ABANDONMENT shall be amended as follows:
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8.2(b) Optional Abandonment shall read as follows:
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(2) At the option of any of the respective Boards of Directors
of the parties, if the effective time shall not have
occurred on or before November 30, 2003.
All other terms and provisions of the original Agreement shall remain in
full force and effect, consistent with the acquisition by PFII of RAPTOR as a
wholly-owned subsidiary of the PFII, rather than the merger contemplated in the
original Agreement.
IN WITNESS WHEREOF, this Amendment has been approved by Resolutions duly
adopted by the Board of Directors of each of the parties and has been signed by
their respective, duly authorized officers and each of the parties has caused
its corporate seal to be hereunto affixed and attested by the signature of its
Secretary, all as of October 15, 2003.
PACIFIC INTERMEDIA, INC. October 17, 2003
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
President and Chief Executive Officer
RAPTOR NETWORKS TECHNOLOGY, INC.
/s/ Xxxx Xxxxxxx October 17, 2003
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Xxxx Xxxxxxx,
President and Chief Executive Officer
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