ANNEX A2
AMENDMENT NO. 1
This Agreement (the "Agreement") is entered into as of July 24, 1998 by and
between Motorola, Inc., a Delaware corporation ("Motorola"), SS Acquisition
Corporation, a California corporation ("Sub"), Starfish Software, Inc., a
California corporation and Xxxxxxxx Xxxx and Xxxxx Xxx Xxxx (collectively the
"Shareholders").
RECITALS
A. Motorola, Sub and Starfish have entered into an Agreement and Plan of
Merger dated as of July 1, 1998 ("Merger Agreement"), which provides (subject
to the conditions set forth therein) for the merger (the "Merger") of Starfish
into Sub. Unless otherwise defined herein, capitalized terms used herein shall
have the meaning assigned in the Merger Agreement.
B. The Shareholders own or control a majority of the outstanding shares of
Starfish.
C. Pursuant to the Merger Agreement, Motorola has agreed to fund a bonus
pool (the "Bonus Pool") of $19 million as additional compensation to employees
of Starfish other than the Shareholders. The Bonus Pool is to be paid over a
three year period following the Effective Time.
D. The Shareholders are prepared to contribute additional sums to the Bonus
Pool on the terms and conditions provided herein.
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound, agree to amend the Merger Agreement as follows:
1. Motorola agrees that the amount of the Bonus Pool shall be increased to
$24.11 million. The Bonus Pool shall be distributable $8.036 million per year
in accordance with Section 12.2 of the Merger Agreement and the provisions set
forth herein.
2. Subject to Section 4 hereof, the Shareholders agree that they shall
collectively contribute $5.11 million to the Bonus Pool. Such contribution
shall be made at the end of the third year following the Effective Time. The
Shareholders' contribution shall be made first by the withholding amounts
payable to the Shareholders from the Holdback Amount and second from canceling
shares issuable to the Shareholders from the Escrowed Non-Cash Merger
Consideration. For the purposes hereof, the Escrowed Non-Cash Merger
Consideration shall be valued at $52.97 (as adjusted for stock splits, stock
dividends and similar events).
3. In the event that the amounts remaining in the Holdback Amount and the
Escrowed Non-Cash Consideration are less than $5.11 million, the Shareholders
shall within 30 days of written request from Motorola, pay to Motorola the
difference between $5.11 million and the Holdback Amount and Escrowed Non-Cash
Merger Consideration payable to them.
4. Motorola agrees that unless otherwise agreed by Xxxxxxxx Xxxx as
Shareholder Representative pursuant to the Merger Agreement, the allocation of
the Bonus Pool as set forth in list delivered to Motorola concurrent with the
execution hereof, shall be the target bonuses for the persons specified
therein. Such allocation shall be payable to each employee each year on a pro
rata basis over the three year Bonus Pool period provided that such employee
remains in the employ of Starfish through the relevant period for which
payment is made. In the event that the full amount of such Bonus Pool is not
payable because Starfish employees leave the employment of Starfish before
earning all or a part of the Bonus Pool allocated to them, the amount of the
Shareholder contribution shall be reduced for each dollar of the Bonus Pool
which is not payable. If the amount of the Bonus
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Pool otherwise payable would be reduced below $19 million because of
terminations of employment, the amount of such reduction up to the $19 million
shall be distributed to other Starfish employees as determined by the Board of
Directors of Starfish and subject to the approval of the Shareholder
Representative as contemplated by Section 12.2 of the Merger Agreement.
5. No provisions of this Agreement are intended, nor will be interpreted, to
provide or create any third party beneficiary rights or any other rights of
any kind in any employee, client, customer, affiliate, stockholder, partner or
any party hereto or any other person or entity unless specifically provided
otherwise herein, and, except as so provided, all provisions hereof will be
personal solely between the parties to this Agreement.
6. Except as otherwise provided herein, the terms and conditions of the
Merger Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
MOTOROLA, INC., Xxxxxxxx Xxxx
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxxxxx Xxxx
--------------------------------- -------------------------------------
Address: 333 Spreading Oaks
Name: Xxxxx X. Xxxxx Xxxxxx Xxxxxx, XX 00000
-------------------------------
Title: Vice President Xxxxx Xxx Xxxx
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SS ACQUISITION CORPORATION,
a California corporation
/s/ Xxxxx Xxx Xxxx
-------------------------------------
By: /s/ Xxxxx X. Xxxxx Address: 333 Spreading Oaks
--------------------------------- Xxxxxx Xxxxxx, XX 00000
Name: Xxxxx X. Xxxxx
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STARFISH SOFTWARE, INC.,
Title: Treasurer a California corporation
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By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
-------------------------------
Title: President and Chief Executive
Officer
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