Exhibit 10.35
Amended and Restated Issuer Repurchase Plan
Agreement
This Amended and
Restated Issuer Repurchase Plan Agreement (this
“Agreement”) is entered into this 15th day of February
between SonicWALL, Inc., a California corporation (the
“Company”) and RBC Dain Rauscher, Inc. This Agreement
is intended to amend, restate and supercede the Issuer Repurchase
Plan Agreement entered into on the 29th day of November, 2004
between the Company and RBC Dain Rauscher Inc.
Recitals
The
Company desires to establish this Agreement to systematically
repurchase shares of its of common stock, par value $.01 per share
(the “Stock”) in compliance with Rule 10b5-1
(“Rule 10b5-1”) and Rule 10b-18
(“Rule 10b-18”) under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”).
The
Company desires to engage the Broker to effect repurchases of
shares of the Stock in accordance with this Agreement.
The
Stock is principally traded on the Nasdaq National Market (the
“Exchange”).
Agreement
Therefore, the
Company and the Broker hereby agree as follows:
1. The Company hereby
appoints the Broker to buy shares of Stock pursuant to the terms
and conditions set forth below. Subject to such terms and
conditions, the Broker hereby accepts such appointment.
2. The Broker is
authorized to begin purchasing Stock pursuant to this Agreement
commencing on December 1, 2004 and shall cease purchasing
Stock on the earliest to occur of: (a) the date that the
Company or any other person publicly announces a tender or exchange
offer with respect to the Stock, (b) the date of public
announcement of a merger, acquisition, reorganization, recapital
ization or comparable transaction affecting the securities of the
Company as a result of which the Stock is exchanged or converted
into shares of another company, (c) the date on which the
Broker receives notice of the commencement of any proceedings in
respect of or triggered by the Company’s bankruptcy or
insolvency, (d) the date immediately prior to any applicable
restricted period of a distribution (as such terms are defined in
Regulation M promulgated under the Exchange Act), (e)&nb
sp;the date that the aggregate amount of purchases pursuant to this
Agreement reaches Seventy Five Million Dollars ($75,000,000) , or
(g) Two (2) years after the public announcement by
Company that its Board of Directors had approved an Issuer
Repurchase Plan (each a “Termination Event”). The
Company shall provide the Broker with written notice of the
occurrence of Termination Events (a), (b), (d), and (e).
Notwithstanding the foregoing provisions of this Paragraph 2,
the Company ma y terminate this Agreement at any time by providing
written notice of termination prior to a Termination
Event.
3. From the date on
which the Broker is authorized to begin purchasing Stock pursuant
to this Agreement (as set forth in Paragraph 2 above) and
continuing until the occurrence of a Termination Event, the Broker
shall purchase:
(a)
up to the maximum number of shares
of Stock per trading day permitted under Rule 10b-18 (the
“Daily Purchase Amount”) for the account of the
Company, provided that the price of Stock purchased pursuant to
this Agreement is less than $6.00 per share;
(b)
up to 50% of the Daily Purchase
Amount for the account of the Company, provided that the price of
Stock purchased pursuant to this Agreement is between $6.00 and
$6.50 per share, inclusive; and
(c)
up to 25% of the Daily Purchase
Amount for the account of the Company, provided that the price of
Stock purchased pursuant to this Agreement is between $6.51 and
$7.00 per share, inclusive; and
(d)
up to 10% of the Daily Purchase
Amount for the account of the Company, provided that the price of
Stock purchased pursuant to this Agreement is between $7.01 and
$7.25 per share, inclusive. .
The
Broker shall not purchase any shares of Stock at prices greater
than $7.00 per share until the aggregate amount of purchases
pursuant to the Agreement exceeds Fifty Million Dollars
($50,000,000). When the aggregate amount of purchases pursuant to
this Agreement exceeds Fifty Million Dollars ($50,000,000), then
the price at which the Broker shall not purchase any shares of
Stock shall be increased to $7.25.
4. Subject to the
limits in this Agreement, the Broker shall have full discretion
with respect to the execution of all purchases, the Broker will not
be subject to any control or influence by the Company (or any of
its officers, directors, employees, and
