EXHIBIT 2.4
THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Agreement"), is entered into as of December 2, 1999, among Adrenalin
Interactive, Inc., a Delaware corporation (the "Parent"), Adrenalin Acquisition
Corporation, a California corporation and a wholly owned subsidiary of the
Parent (the "Merger Sub"), McGlen Micro Inc., a California corporation (the
"Company"), Xxxxxx Xxx, an individual, Xxxx Xxxx, an individual and ACST
Computer, Inc., a California corporation (collectively, the "Principal
Shareholders"), with reference to the following.
RECITALS
A. Parties to this Amendment entered that certain Agreement and
Plan of Merger, dated April 28, 1999 (the "Agreement").
B. The Agreement has been amended twice to extend the Closing
Date. The parties now desire to amend the Agreement as set forth herein.
AMENDMENT
NOW, THEREFORE, in consideration of the foregoing provisions,
representations, warranties, covenants and agreements contained herein and other
good and valuable consideration, the parties hereby amend the Agreement as
follows.
1. The Closing. Section 1.2 of the Agreement is hereby amended
and restated to read as follows:
"1.2 The Closing. Subject to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") shall take place at the offices of the
Company at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 at 10:00 a.m.,
on (i) the business day of the satisfaction of the conditions set forth in
Article X (other than those conditions that by their nature are to be satisfied
at the Closing, but subject to the satisfaction or, where permitted, waiver of
those conditions) and the date on which the Agreement of Merger is deemed filed
by the Secretary of State of California (ii) or at such other time, date, or
place as the Parent and the Company may agree. The date on which the Closing
occurs is hereinafter referred to as the 'Closing Date.'"
2. Parent Officers. Section 2.3 of the Agreement is hereby
amended and restated to read as follows:
"2.3 Parent Officers. The Surviving Corporation and the Parent
shall take such actions as are necessary to elect as the officers of the Parent
effective immediately following the Effective Time: Xxxxxx Xxx, Chief Executive
Officer and Chief Financial Officer; Xxxx Xxxx, President and Secretary (the
"Parent Officers").
3. Section 3.2(a). Section 3.2(a) is hereby modified to provide
that shares issued in exchange for unexercised options and warrants of the
Company described in the Exchange Ratio Calculation attached hereto as Exhibit
"A" shall be issued to an escrow agent to be held for the benefit of the
optionees and warrant holders and issued to them upon exercise. Shares
underlying the options and warrants which are not exercised and terminate or
which become unexercisable and terminate shall be distributed from the escrow
ratably to the shareholders of the Company as of the date hereof, based upon
their percentage ownership interest in the Company as of the date hereof. For
Rule 144 holding purposes, the issuance date of shares released from escrow to
the existing shareholders of the Company shall be December 2, 1999.
4. Section 4.8. Section 4.8(b)(ii) is modified and amended to
provide that since March 31, 1999, the Company has amended its Articles of
Incorporation and Bylaws. Reference is hereby made to Section 4.8(b)(ii) of the
disclosure schedules.
5. Section 5.3. The first sentence of Section "5.3
Capitalization" is hereby modified and amended to read as follows:
"Effective upon the filing of the Certificate of Amendment of Certificate of
Incorporation, the authorized capital of the Parent consists of 50,000,000
shares of Common Stock, $.03 par value and 5,000,000 shares of blank check
preferred stock, $.01 par value."
6. Section 5.7. Section "5.7 Financial Statements" is hereby
modified and amended to provide that the Financial Statements in Section 5.7
shall be the audited consolidated balance sheet and consolidated statement of
operations of the Parent as of and for the 12 months ending June 30, 1999, and
the unaudited consolidated balance sheet of the Parent as of September 30, 1999,
and the related consolidated statement of operations for the three months ended
on that date. The balance sheet of the Parent as of September 30, 1999, is
referred to in the Agreement as the "Parent Balance Sheet".
7. Section 5.9(a). The reference to "March 31, 1999" in Section
"5.9 Absence of Certain Changes or Events (a)" is hereby modified and amended to
read "September 30, 1999."
8. Section 10.2(a). Section "10.2 Termination" is hereby modified
and amended to change the November 30, 1999 as the last Closing Date to
"December 10, 1999."
9. Defined Terms. Each of the capitalized terms not defined this
Amendment shall maintain the meaning given to them in the Agreement.
10. Controlling Provisions. Each and every provision of the
Agreement not modified or amended in this Amendment remains in force and effect,
as if set forth in its entirety in this Amendment . In the event of a conflict
between any of the terms of this Amendment and the provisions of the Agreement,
the terms and provisions set forth in this Amendment shall be controlling.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first set forth above.
"PARENT"
ADRENALIN INTERACTIVE, INC., a
California corporation
By: /s/Xxx Xxxxx lll
----------------------------
Xxx Xxxxx, III, President
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxxxx, Secretary
"MERGER SUB"
ADRENALIN ACQUISITION
CORPORATION, a California corporation
By: /s/Xxx Xxxxx lll
----------------------------
Xxx Xxxxx, III, President
By: /s/Xxx Xxxxx lll
----------------------------
Xxx Xxxxx, III, Secretary
"THE COMPANY"
MCGLEN MICRO INC., a California
corporation
By: /s/Xxxxxx Xxx
----------------------------
Xxxxxx Xxx, CEO
By:/s/Xxxx Xxxx
---------------
Xxxx Xxxx, Secretary
"THE PRINCIPAL SHAREHOLDERS"
XXXXXX XXX, an individual
XXXX XXXX, an individual
ACST COMPUTERS, INC., a California
corporation
By:Xxxx Xxxx
------------
Xxxx Xxxx, President and Chairman
