AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 (this "AMENDMENT NO. 1") is made and
entered into as of September 1, 1999, by and among iTurf Inc., a Delaware
corporation ("ITURF"), iTurf Acquisition Corporation, a Delaware corporation and
a wholly-owned subsidiary of iTurf (the "MERGER SUB"), T@xxxxxxx.xxx, Inc., a
New Jersey corporation (the "COMPANY"), MarketSource Crorporation, a Delaware
corporation ("MARKETSOURCE"), Xxxxxx X. Xxxxxx ("XXXXXX"), the Xxxxxxxx X.
Xxxxxx Grantor Trust u/t/a/d January 1, 1995, the Xxxxxx X. Xxxxxx Grantor Trust
u/t/a/d January 1, 1995, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx
X. Xxxxxxx, Xxxxx X. Xxxxx and Xxxxxxx Xxxxx. Xxxxxx, the Xxxxxxxx X. Xxxxxx
Grantor Trust u/t/a/d January 1, 1995, the Xxxxxx X. Xxxxxx Grantor Trust
u/t/a/d January 1, 1995, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx
X. Xxxxxxx, Xxxxx X. Xxxxx and Xxxxxxx Xxxxx are collectively referred to
hereinafter as the "SELLING SHAREHOLDERS." Capitalized terms used herein not
otherwise defined shall have the meanings set forth in the Merger Agreement (as
defined below).
RECITALS
WHEREAS, iTurf, Merger Sub, the Company, MarketSource and the
Selling Shareholders have previously entered into an Agreement and Plan of
Merger, dated as of August 9, 1999 (the "MERGER AGREEMENT"), pursuant to which
Merger Sub will merge with and into the Company upon the terms and subject to
the conditions set forth therein and in accordance with New Jersey Law and
Delaware Law; and
WHEREAS, the parties desire to amend the Merger Agreement as
more fully set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Amendment No. 1, and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. EFFECT OF THE MERGER. Section 1.4 of the Merger Agreement
relating to the certificate of incorporation and bylaws of the Surviving
Corporation is hereby amended in its entirety to read as follows:
CERTIFICATE OF INCORPORATION; BYLAWS. At the Effective
Time, the certificate of incorporation of the Company as in
effect immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving Corporation,
except that the name of the Surviving Corporation
shall be "XxXxx.xxx, Inc." and the bylaws of the Company shall
be the bylaws of the Surviving Corporation, each of which
shall continue in full force and effect until thereafter
amended.
2. AMENDED CONTRACTS SCHEDULE. SCHEDULE 2.13 relating to the
material contracts, lease and commitments of the Company is hereby amended to
(i) delete the Agreement, dated as of March 17, 1999, by and between
MarketSource Interactive, Inc. and Contiki Holidays from the list of agreements
set forth therein; (ii) add the Agreement, dated July 27, 1999, by and between
MarketSource Canada Ltd. and T@xxxxxxx.xxx (the "NEW AGREEMENT") to the list of
agreements set forth therein; and (iii) attach to SCHEDULE 2.13 a true and
complete copy of the New Agreement in the form attached as Exhibit A hereto.
3. EXPENSES PAID BY THE COMPANY. Section 4.21 of the Merger
Agreement relating to certain expenses to be paid by the Company to MarketSource
after the Closing is hereby amended in its entirety to read as follows:
EXPENSES PAID BY THE COMPANY. The Company shall pay to
MarketSource within thirty (30) days following the Closing
an amount in cash equal to the amount of expenses actually
paid by the Company or MarketSource between the date hereof
and the Closing Date relating to the following Company
marketing programs: campus newspaper advertising and
decoder insert shipping, sweepstakes, premiums/incentives,
CollegeSource Board production, registration opt-in and
guerilla marketing and $4,142 of the cost of decoder insert
production.
4. PAYMENT OF LIABILITIES. Section 5.2(i) of the Merger
Agreement relating to the payment of certain Liabilities by the Company prior to
the Closing Date is hereby amended in its entirety to read as follows:
PAYMENT OF LIABILITIES. The Company shall have paid in
full all Liabilities relating to the Microsoft software
licenses and Dell Computers.
In addition, a new Section 4.22 of the Merger Agreement is hereby added as
follows:
4.22 PAYMENT OF LIABILITIES. MarketSource shall pay to
the Surviving Corporation within thirty (30) days following
the Closing an amount in cash equal to the sum of all
Liabilities relating to decoder insert production owed by
the Company prior to the Closing Date, including
Liabilities owed pursuant to that certain World Color
Direct invoice number 3088909041, dated August 31, 1999.
2
5. RESTATEMENT OF MERGER AGREEMENT. Upon execution of this
Amendment No. 1, the Merger Agreement shall automatically be amended and
restated to include the provisions of this Amendment No. 1 as though such
provisions had been contained in the Merger Agreement as of the date of its
original execution.
6. COUNTERPARTS. This Amendment No. 1 may be executed in one
or more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument and shall become effective when one
or more counterparts have been signed by each of the parties and delivered to
you.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1
as of the date first above written.
ITURF INC.
By: /s/ XXXXXX XXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
ITURF ACQUISITION CORPORATION
By: /s/ XXXXXX XXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
T@XXXXXXX.XXX, INC.
By: /s/ XXXXXX XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
MARKETSOURCE CORPORATION
By: /s/ XXXXXX XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
4
SELLING SHAREHOLDERS:
/s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx X. Xxxxxx, as Trustee of
the Xxxxxxxx X. Xxxxxx Grantor
Trust u/t/a/d January 1, 1995
/s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx X. Xxxxxx, as Trustee of
the Xxxxxx X. Xxxxxx Grantor
Trust u/t/a/d January 1, 1995
/s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx X. Xxxxxx, as Attorney-
in-Fact for Xxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx,
Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxx and
Xxxxxxx Xxxxx
5
