EXHIBIT 10.45
xXXXXXXX.XXX, INC.
XXXXXXX HOLDINGS, INC.
AGREEMENT AND PLAN OF MERGER
WAIVER
THIS WAIVER dated as of June 13, 2000 is entered into by and among
xXxxxxxx.xxx, Inc., a Maryland corporation ("eChapman") and Xxxxxxx
Holdings, Inc. ("Xxxxxxx").
RECITALS
A. eChapman and Xxxxxxx have entered into that certain Agreement and Plan
of Merger dated November 15, 1999 (the "Merger Agreement") pursuant to which
eChapman and Xxxxxxx have agreed that Xxxxxxx shall merge into a wholly-owned
subsidiary of eChapman on the terms and conditions set forth therein.
B. Section 8.1 of the Merger Agreement provides, in relevant part: "Unless
waived by the parties, the respective obligations of each party to effect the
Merger shall be subject to the fulfillment at or prior to the Closing Date of
the following conditions: ... (f) eChapman shall have completed a public
offering ... in which (i) eChapman receives gross proceeds of no less than
Twenty Million dollars ($20,000,000). . . ."
C. The Board of Directors of eChapman, the Board of Directors of Xxxxxxx
and, separately, the Merger Committee of the Board of Directors of Xxxxxxx,
constituted solely of independent directors, each have considered a partial
waiver of the condition set forth in Section 8.1(f)(i) of the Merger Agreement
and each have approved such partial waiver on the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The recitals set forth above are incorporated by reference herein.
2. eChapman and Xxxxxxx each hereby waive the condition set forth in
Section 8.1(f)(i) of the Merger Agreement only to the extent that in lieu of
gross proceeds of no less than Twenty Million dollars (20,000,000), eChapman
must receive gross proceeds of no less than Sixteen Million Three Hundred Twenty
Thousand dollars ($16,320,000).
IN WITNESS WHEREOF, this Waiver is entered into as of the date first set
forth above.
xXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXXXX, XX.
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Xxxxxx X. Xxxxxxx, Xx.
President
XXXXXXX HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXX, XX.
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Xxxxxx X. Xxxxxxx, Xx.
President
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