Exhibit 3
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
among:
RACOTEK, INC.,
a Delaware corporation;
QUICKSILVER ACQUISITION CORP.,
a California corporation;
QUICKSILVER GROUP, INC.
a California corporation;
and
CERTAIN DESIGNATED SHAREHOLDERS
Dated as of September 2, 1998
___________________________
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
("Agreement") made and entered into as of July 6, 1998, by and among:
Racotek, INC., a Delaware corporation ("Parent"); QUICKSILVER ACQUISITION
CORP., a California corporation and a wholly-owned subsidiary of Parent
("Merger Sub"); QUICKSILVER GROUP, INC., a California corporation (the
"QSG"); and CERTAIN SHAREHOLDERS OF QSG IDENTIFIED ON EXHIBIT B thereto (each
a "Shareholder" and collectively, the "Shareholders") is made and entered
into as of September 2, 1998 (the "Addendum").
RECITALS
A. Parent, Merger Sub and QSG intend to effect a merger of QSG with
and into Merger Sub in accordance with the Agreement, this Addendum and the
California General Corporation Law (the "Merger"). Upon consummation of the
Merger, QSG will cease to exist, and Merger Sub will be a wholly owned
subsidiary of Parent.
B. It is intended that the Merger qualify as a reorganization within
the meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"). For accounting purposes, it is intended that the
Merger be accounted for as a purchase.
C. The Agreement has been approved by the respective boards of
directors of Parent, Merger Sub and QSG.
D. This Addendum has been authorized by the respective boards of
directors of Parent, Merger Sub and QSG.
ADDENDUM
The parties to this Addendum, intending to be legally bound, agree as
follows:
1. In addition to the shares to be issued pursuant to SECTION 1.5(a)(i) of
the Agreement, a sum increment of 34,899 shares of Parent Common Stock
will be issued by Parent to shareholders of QSG, such that each share of
QSG Common Stock will receive an additional 0.0160 shares of Parent
Common Stock, resulting in each share of QSG Common Stock receiving a
total of 1.0754 shares in Parent Common Stock.
2. In addition to the rights with respect to Parent Common Stock granted to
holders of rights to QSG Common Stock pursuant to QSG Options as set
forth in SECTION (6.4) of the Agreement, a sum increment of 10,151
shares of Parent Common Stock will be granted by Parent to holders of
QSG Options as of the date of the Agreement, such that each such WSG
Option will be covered by an additional 0.0160 rights with respect to
Parent Common Stock, or a total of 1.5009 rights with respect to Parent
Common Stock. From
and after the Effective Time, (i) each such QSG Option assumed by Parent
may be exercised solely for shares of Parent Common Stock, (ii) the
number of shares of Parent Common Stock subject to each such QSG Option
shall be equal to the number of shares of QSG Common Stock subject to
such QSG Option immediately prior to the Effective Time multiplied by
1.5009, rounding down to the nearest whole share (with cash, less the
applicable exercise price, being payable for any fraction of a share),
and (iii) the per share exercise price under each such QSG Option shall
be adjusted by dividing the per share exercise price under such QSG
Option by the 1.5009 and rounding up to the nearest cent.
3. The Parent Warrant to be issued pursuant to SECTION 1.7 of the Agreement
shall provide rights with respect to an additional 4,950 shares in
Parent Common Stock, such that each right under the Parent Warrant shall
represent the right to receive an additional 0.0160 rights underlying
Parent Common Stock for each share of QSG Common Stock subject to the
QSG Warrant on the Closing Date, resulting in each right under the
Parent Warrant representing the right to receive 1.5009 rights
underlying Parent Common Stock for each share of QSG Common Stock
subject to the QSG Warrant on the Closing Date (with cash, less the
applicable exercise price, being payable for any fraction of a share).
The per share exercise price under such Parent Warrant shall be the
result of dividing the per share exercise price under such QSG Warrant
by 1.5009 and rounding up to the nearest whole cent.
4. This Addendum replaces SECTION 12.15 of the Agreement in its entirety with
the following:
12.15 ENTIRE AGREEMENT. The Agreement, the Addendum and the other
agreements referred to herein set forth the entire understanding
of the parties hereto relating to the subject matter hereof and
thereof and supersede all prior agreements and understandings
among or between any of the parties relating to the subject
matter hereof and thereof.
5. All other provisions of the Agreement shall remain in full force and
effect as of July 6, 1998.
The parties hereto have caused this Amendment to be executed and
delivered as of the date first written above.
RACOTEK, INC., a Delaware corporation
By: /s/ Michael A. Fabiaschi
------------------------
Name: Michael A. Fabiaschi
--------------------
Title: Chief Executive Officer
-----------------------
SIGNATURE PAGE
TO
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
The parties hereto have caused this Amendment to be executed and
delivered as of the date first written above.
QUICKSILVER ACQUISITION CORP., a California corporation
By: /s/ Michael A. Fabiaschi
------------------------
Name: Michael A. Fabiaschi
--------------------
Title: Chief Executive Officer
-----------------------
SIGNATURE PAGE
TO
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
The parties hereto have caused this Amendment to be executed and
delivered as of the date first written above.
QUICKSILVER GROUP, INC., a California corporation
By: /s/ Thomas W. Minick
--------------------
Name: Thomas W. Minick
----------------
Title: Chief Executive Officer
-----------------------
SIGNATURE PAGE
TO
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
The parties hereto have caused this Amendment to be executed and
delivered as of the date first written above.
/s/ Thomas W. Minick
--------------------
Thomas W. Minick
SIGNATURE PAGE
TO
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
The parties hereto have caused this Amendment to be executed and
delivered as of the date first written above.
/s/ Todd Fitzwater
------------------
Todd Fitzwater
SIGNATURE PAGE
TO
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
The parties hereto have caused this Amendment to be executed and
delivered as of the date first written above.
PETRA CAPITAL, LLC, a Georgia limited liability company
By: /s/ Robert A. Smith
-------------------
Name: Robert A. Smith
---------------
Title: Vice President
--------------
SIGNATURE PAGE
TO
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION