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EXHIBIT 2.3
Second Amendment Agreement
Reference is hereby made to the Agreement and Plan of Reorganization
dated March 2, 1998 between Network Associates, Inc. ("Parent"), Magic
Solutions International Inc., Merlin Acquisition Corp. and Xxxx Xxxxxxxx, as
amended by the Amendment Agreement dated March 24, 1998 (the "Reorganization
Agreement"). Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Reorganization Agreement.
Notwithstanding any other provisions of the Reorganization Agreement,
the undersigned parties hereby agree to the following:
(1) The "Escrow Amount" shall be $10,500,000 which shall be
allocated as among the Company Shareholders and the Company Optionholders as
set forth in Schedule A attached hereto;
(2) "Aggregate Vested Option Number" shall include, and "Unvested
Company Options" shall exclude the aggregate number of all Company Options that
vest upon and as a result of the termination of the employment of any Company
employee (other than Xxxxxx Xxxxxx) following the Merger;
(3) Section 7.2(b) of the Reorganization Agreement is amended by
deleting clause (vi) thereof and the definition of "Distributor Losses" as set
forth on Schedule 7.2(b) is deleted it being understood that Distributor Losses
shall not be the subject of any claims against the Escrow Fund;
(4) The parties understand that all amounts distributed to holders
of the Company Options from the Escrow Fund in accordance with the terms of the
Reorganization Agreement are subject to applicable federal and state
withholding taxes. In connection with any such distributions, the Escrow Agent
may withhold and shall be permitted to either (i) directly withhold such taxes
or (ii) pay to Parent for withholding the amounts so required to be withheld;
(5) The phrase "and Regulation S-X of the Securities Exchange
Commission" is deleted from Section (j) of Section 6.3 of the Agreement.
(6) Parent shall assume liability with respect to, and shall use
its best efforts to release Founder from any guarantee of:
(i) that certain automobile lease between the Company and
Mistubishi Finance with respect to a sales incentive automobile entered into in
the ordinary course of business consistent with past practice and in compliance
with the Reorganization Agreement; and
(ii) the charges of the Company on certain American
Express cards with respect to charges incurred by the Company in the ordinary
course of business in compliance with the Reorganization Agreement, which
currently aggregate approximately $350,000 and are properly reflected in the
accounts of the Company;
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(7) This Second Amendment Agreement may be executed in
counterparts, which when taken together shall constitute a single instrument;
and
(8) The parties, including the Company Stockholders Agent, shall
take such actions as are reasonably necessary or desirable to effect the
foregoing.
Except as expressly set forth herein, the Reorganization Agreement
shall remain in full force and effect in all other respects.
COMPANY PARENT
By_______________________________ By_______________________________
Name_____________________________ Name_____________________________
Title____________________________ Title____________________________
By_______________________________ By_______________________________
Name_____________________________ Name_____________________________
Title____________________________ Title____________________________
MERGER SUB FOUNDER
By_______________________________ By_______________________________
Name_____________________________ Name_____________________________
Title____________________________ Title____________________________
By_______________________________ By_______________________________
Name_____________________________ Name_____________________________
Title____________________________ Title____________________________
Dated: April 1, 1998
Acknowledged and Agreed:
ESCROW AGENT
By_______________________________
Name_____________________________
Title____________________________
