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Exhibit 10.21
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER ("the
Amendment"), is entered into as of this 10th day of March, 1997, among Smith
Micro Software, Inc., a Delaware corporation ("Buyer"), PCI Video Products,
Inc., a Delaware corporation and a wholly owned subsidiary of Buyer ("the
Merger Subsidiary") and Performance Computing, Inc., an Oregon corporation
("the Company"), and shall serve to amend that certain Agreement and Plan of
Merger dated as of March 14, 1996, among the parties as follows:
RECITALS
WHEREAS, the parties hereto entered into the Agreement and
Plan of Merger dated as of March 14, 1996 ("the Agreement") providing for the
Merger of the Company into the Merger Subsidiary on the Effective Time; and
WHEREAS, the parties desire to modify the terms of payments
due 365 days following the Closing as set forth in Sections 7.4 and 8.4 of the
Agreement;
INTENDING TO BE LEGALLY BOUND and in consideration of the
premises and mutual covenants and agreements contained herein and in the
Agreement, Buyer, Merger Subsidiary and the Company hereby agree as follows:
AMENDMENT
The Agreement shall be amended to clarify the intentions and
agreements of the parties thereto in the manner and to the extent set forth
below. All defined terms contained in this Agreement shall have the same
meaning as provided in the Agreement, unless otherwise specifically provided
herein. All Section numbers set forth herein shall correspond to the Section
number of the Agreement being amended hereby.
7.4 Milestones. Section 7.4 of the Agreement shall be amended and
restated in its entirety as follows:
If all the targets set forth in Exhibit B hereto are achieved
during the 365 days following the Closing, then within ten
business days after March 14, 1997, Buyer shall pay to former
Company employees who are then current employees of Buyer or
the Merger Subsidiary Business (the "Current Employees")
$200,000 in the aggregate in cash. Subject to the last
sentence of this Section 7.4, the payments pursuant to this
Section 7.4 will be paid to such
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Current Employees that are so designated by Buyer, after
consultation with the Sellers who are then employed by Buyer;
provided, that in all events, if all milestones are met, Buyer
shall pay out to such current Employees the entire $200,000.
If some, but less than all, of the targets set forth in
Exhibit B are achieved during the 365 days following the
Closing, then within ten business days after March 14, 1997,
Buyer shall pay to the Current Employees, in the same
percentages, form and manner set forth above, payments with an
aggregate value equal to the product of (i) $200,000 and (ii)
the aggregate of the percentages assigned to each of the
targets set forth on Exhibit B that are actually achieved
during such period.
8.4 Earn Out. Section 8.4 of the Agreement shall be amended and
restated in its entirety as follows:
If all of the targets set forth on Exhibit B hereto are
achieved during the 365 days following the Closing, then
within ten business days after March 14, 1997, Buyer shall pay
to Sellers Six Hundred Thousand Dollars ($600,000) in cash pro
rata based on each Seller's proportionate equity interest in
the Company immediately prior to the Closing. If some, but
less than all of the targets set forth on Exhibit B are
achieved during the 365 days following the Closing, then
within ten business days after March 14, 1997, Buyer shall pay
to Sellers in the same percentages and manner set forth above,
the product of (i) Six Hundred Thousand Dollars ($600,000)
and (ii) the aggregate of the percentages assigned to each of
the targets set forth on Exhibit B that are actually achieved
during such period.
Except as specifically provided hereinabove, all other
provisions of the Agreement shall remain in full force and effect and are
hereby ratified and confirmed by the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
Buyer: Smith Micro Software, Inc.
By: /s/ William W. Smith, Jr.
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William W. Smith, Jr.
Title: President and Chief Executive Officer
Merger Subsidiary: PCI Video Products, Inc.
By: /s/ William W. Smith, Jr.
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William M. Smith, Jr.
Title: President and Chief Executive Officer
The Company: Performance Computing Inc.
By: /s/ Daniel C. Budge
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Daniel C. Budge
Title: President
Sellers (executing solely for purposes of those
provisions applicable to them):
/s/ Daniel C. Budge
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Daniel C. Budge
/s/ David N. Glass
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David N. Glass
/s/ Carol E.G. Vallens
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Carol E.G. Vallens
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