EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of February 10, 2000 (this "Amendment"), to the
Agreement and Plan of Merger, dated as of December 21, 1999 (the "Merger
Agreement"), among AMERICA ONLINE, INC., a Delaware corporation ("Parent"), MQ
ACQUISITION, INC., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and XXXXXXXX.XXX, INC., a Delaware corporation (the
"Company").
WHEREAS, the Parent, Merger Sub and the Company desire to amend the Merger
Agreement on the terms provided herein;
WHEREAS, Section 7.4 of the Merger Agreement provides in relevant part that
the parties may modify or amend the Merger Agreement by written agreement
executed and delivered by duly authorized officers of the respective parties
hereto; and
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the
Company have approved this Amendment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Amendment to Section 4.1(d). Section 4.1(d) of the Merger Agreement
is hereby amended by deleting such section in its entirety and inserting in
lieu thereof the following:
"(d) sell, transfer, deliver, lease, license, sublicense, mortgage,
pledge, encumber or otherwise dispose of (in whole or in part), or
create, incur, assume or subject any Lien on, any of the assets of the
Company or any of its Subsidiaries (including any Intellectual
Property), except for (i) the sale of goods or licenses of Intellectual
Property in the ordinary course of business and in a manner consistent
with past practice (x) involving annual revenues or receipts of less
than or equal to $500,000, or involving annual expenditures or
liabilities of less than or equal to $250,000 and (y) having a term of
less than or equal to eighteen months, or (ii) dispositions of other
immaterial assets in the ordinary course of business and in a manner
consistent with past practice;"
2. Amendment to Section 4.1(h). Section 4.1(h) of the Merger Agreement
is hereby amended by deleting such subsection in its entirety and inserting
in lieu thereof the following:
"(h) (i) other than in the ordinary course consistent with past
practice, enter into any agreement that if entered into prior to the
date hereof would be a Material Agreement as defined in Section 2.7(a)
(excluding Section 2.7(a)(iii)); (ii) modify or amend in any material
respect, transfer or terminate any Material Agreement or waive, release
or assign any rights or claims thereto or thereunder; (iii) enter into
or extend any lease with respect to Real Property with any third party;
(iv) modify, amend or transfer in any way or terminate any standstill
or confidentiality agreement with any third party, or waive, release or
assign any rights or claims thereto or thereunder; (v) enter into,
modify or amend any License Agreement or other Contract to provide
exclusive rights or obligations; (vi) notwithstanding any limitation on
dollar amounts or term in this Section 4.1(h) or Section 4.1(d), enter
into, modify or amend any License Agreement or other Contract that
provides for (1) the distribution or provision of any product or
service of the Company or any of its Subsidiaries on or to any of the
sites ranked as one of the top twenty Digital Media/Web Properties in
the U.S. (Combined At Home and At Work) by Media Metrix in its then
most recent ratings that are made publicly available, (2) the marketing
or other distribution of any such site by the Company or any of its
Subsidiaries or (3) the use or distribution of any component product of
any such site by the Company or any of its Subsidiaries; (vii) enter
into, modify or amend any License Agreement or other Contract
obligating the Company to provide, or contracting for the provision of,
hosting services for a period of greater than one year; or (viii) enter
into, modify or amend any License Agreement or other Contract that (x)
involves annual revenues or receipts of greater than $500,000, (y)
involves annual expenditures or liabilities of greater than $250,000 or
(z) has a term of greater than eighteen months;"
3. Effective Date; No Other Amendments. Each of the parties hereto
agrees that the amendments to the Merger Agreement contained herein shall
be effective upon execution of this Amendment by each party hereto. Except
as expressly amended hereby, the provisions of the Merger Agreement are
hereby ratified and confirmed by the parties and shall remain in full force
and effect. All references in the Merger Agreement to "this Agreement"
shall be read as references to the Merger Agreement, as amended by this
Amendment.
4. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
5. Counterparts. This Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
2
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
AMERICA ONLINE, INC.
/s/ Xxxxx X. Xxxxxxx
By: _________________________________
Name:Xxxxx X. Xxxxxxx
Title: President--Business Affairs
MQ ACQUISITION, INC.
/s/ Xxxxx X. Xxxxxxx
By: _________________________________
Name:Xxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXXXX.XXX, INC.
/s/ Xxxxxxx X. Xxxxxxxx
By: _________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title:Chairman and CEO
3
