Agreement to Amend Agreement and Plan of Merger among Phone.com, Inc., Silver Merger Sub Inc., and Software.com, Inc.

Summary

This agreement, dated October 5, 2000, is between Phone.com, Inc., Silver Merger Sub Inc., and Software.com, Inc. It amends certain terms of their original Agreement and Plan of Merger. The amendments clarify the post-merger company name, modify employee stock plan participation, and update specific merger procedures and conditions. All other terms of the original merger agreement remain in effect. The agreement is governed by Delaware law and is effective as of the date signed by all parties.

EX-2.1 2 0002.txt AGRMT TO AMEND AGRMT & PLAN OF MERGER EXHIBIT 2.1 AGREEMENT TO AMEND AGREEMENT AND PLAN OF MERGER AGREEMENT TO AMEND AGREEMENT AND PLAN OF MERGER dated as of October 5, 2000, by and among Phone.com, Inc., a Delaware corporation ("Phone"), Silver Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Phone ("Sub"), and Software.com, Inc., a Delaware corporation ("Software"). WHEREAS, Phone, Sub and Software have entered into an Agreement and Plan of Merger, dated as of August 8, 2000, by and among Phone, Sub and Software (the "Merger Agreement"); and WHEREAS, each of the respective Boards of Directors of Phone, Sub and Software has deemed it advisable and in the best interests of each of Phone, Sub and Software, respectively, and has resolved that the name of Phone from and after the Effective Time (as defined in the Merger Agreement) shall remain "Phone.com, Inc." until such time as the Board of Directors of Phone shall otherwise determine; and WHEREAS, the respective Board of Directors of each of Phone, Sub and Software has deemed it advisable and in the best interests of each of Phone, Sub and Software, respectively, and has resolved that Phone will not amend the Phone ESPP (as defined in the Merger Agreement) to provide a special offering period that would permit Software.com employees to immediately participate in the Phone ESPP after the Effective Time; and WHEREAS, each of the respective Boards of Directors of Phone, Sub and Software has deemed it advisable and in the best interests of each of Phone, Sub and Software, respectively, and has resolved that the Merger Agreement be amended to reflect the foregoing and certain other ministerial matters; and WHEREAS, Section 7.3 of the Merger Agreement sets forth the manner in which the Merger Agreement may be amended. NOW, THEREFORE, intending to be legally bound, the parties agree pursuant to Section 7.3 of the Merger Agreement, to amend and modify the Merger Agreement as set forth below to reflect the true intention and agreement of the parties: Fifth recital ("Whereas" Amend the fifth recital ("Whereas" clause) to read clause) of the Merger in its entirety as follows "WHEREAS, the Board of Agreement Directors of Phone has resolved to recommend to Phone's stockholders the approval of the issuance of shares of Phone Common Stock (as hereinafter defined) pursuant to the Merger". Section 1.5 of the Merger Amend Section 1.5 to read in its entirety as Agreement follows: "At the Effective Time, subject to the requirements of Section 5.5, the certificate of incorporation and the by-laws of Merger Sub, as in effect immediately prior to the Effective Time, shall become the certificate of incorporation and by-laws of the Surviving Corporation, in each case until thereafter amended in accordance with applicable law, except that from and after the Effective Time, Article First of the certificate of incorporation shall read in its entirety as follows: "The name of the corporation is "Software.com, Inc.' (hereinafter, the "Corporation")." Section 2.1(d) of the Amend the heading in Section 2.1(d) to read in its Merger Agreement entirety as follows: (d) Assumption and Conversion of Software.com Options and Assumption of Software.com Stock Plans. Section 2.1(d)(ii) of the Amend the first sentence of Section 2.1(d)(ii) to Merger Agreement read in its entirety as follows: "As of the Effective Time, Phone shall assume in full each Software.com Option, all of the other rights and obligations of Software.com under the Software.com Stock Plans (as defined in Section 3.2(c)) as provided herein, and each Software.com Stock Plan."

1 Section 2.1(e) of the Amend Section 2.1(e) by deleting the words: "; Merger Agreement provided, however, that Phone shall amend the Phone ESPP to provide for a special offering period that permits Software.com employees the ability to immediately participate in the Phone ESPP after the Effective Time, and that service with Software.com shall be treated as service with Phone for determining eligibility of Software.com's employees under the Phone ESPP" at the end of Section 2.1(e). Section 2.2(e)(ii) of the Amend Section 2.2(e)(ii) to read in its entirety Merger Agreement as follows: "Notwithstanding any other provision of this Agreement, each holder of shares of Software.com Common Stock converted pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Phone Common Stock (after taking into account all Certificates delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to (i) such fraction multiplied by (ii) the average of the closing price of a share of Phone Common Stock for the ten (10) most recent trading days that Phone Common Stock has traded ending on the trading day immediately prior to the Effective Time, as reported on the Nasdaq National Market." Section 3.1(l) of the Amend Section 3.1(l) to read in its entirety as Merger Agreement follows: "The affirmative vote at the Phone Stockholders' Meeting (the "Phone Stockholder Approval") of the holders of a majority of all outstanding shares of Phone Common Stock present in person or by proxy and entitled to vote at a duly convened and held meeting of Phone stockholders to approve the issuance of shares of Phone Common Stock pursuant to the Merger is the only vote of the holders of any class or series of Phone's capital stock necessary to adopt this Agreement and approve the transactions contemplated hereby." Section 4.2(b) of the Amend Section 4.2(b) by deleting the words: "or Merger Agreement the Charter Amendment" at the end of clause (i). Section 5.1(b) of the Amend Section 5.1(b) by deleting the words: "and Merger Agreement the Phone Charter Amendment" at the end of Section 5.1(b). Add new Section 5.18 to Add a new Section 5.18 to read in its entirety as the Merger Agreement follows: "SECTION 5.18 Name of Phone. The parties agree that after the Effective Time, the name of Phone shall continue to be 'Phone.com, Inc.' until the Board of Directors of Phone shall otherwise determine." Section 7.1(e) of the Amend Section 7.1(e) by deleting the words: "and Merger Agreement the Charter Amendment" at the end of the clause (i)(A).

Capitalized terms used herein and not defined herein shall have the meanings ascribed thereto in the Merger Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof, and constitutes the entire agreement of Phone, Sub and Software with respect to the matters set forth herein. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the Merger Agreement, the provisions of this Agreement shall govern. Each and every other term, condition, covenant, representation, warranty and provision set forth in the Merger Agreement shall remain in full force and effect. All references to the Merger Agreement in any other agreement or document shall hereinafter be deemed to refer to the Merger Agreement as amended hereby. Any amendment to or modification of this Agreement shall be effected in accordance with the provisions of Section 7.3 of the Merger Agreement. 2 This Agreement shall be effective as of the date first above written. Phone.com, Inc. /s/ Alan Black By: ---------------------------------- Name: Alan Black Title: Senior Vice President, Corporate Affairs and Chief Financial Officer Silver Merger Sub Inc. /s/ Linda Speer By: ---------------------------------- Name: Linda R. Speer Title: Vice President Software.com, Inc. /s/ Craig Shelburne By: ---------------------------------- Name: Craig A. Shelburne Title: Senior Vice President and General Counsel 3