AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT is made as of November 30, 2001 by and among New
Systems, Inc., a Nevada corporation ("New Systems"), New Tremor Acquisition
Corp., a California corporation ("Acquisition"), and Tremor Entertainment Inc.,
a California corporation ("Tremor"). New Systems, Acquisition and Tremor are
referred to collectively herein as the "Parties."
WHEREAS, the undersigned are the only parties to that certain
Agreement and Plan of Merger dated as of August 21, 2001, among New Systems,
Acquisition and Tremor (as amended from time to time, the "Agreement"); and
WHEREAS, the date of mailing by New Systems to its stockholders of its
Information Statement on Schedule 14C previously filed with the Securities and
Exchange Commission pursuant to Regulation 14C promulgated under the Exchange
Act of 1934, as amended (the "Exchange Act"), was delayed until November 12,
2001; and
WHEREAS, the date of mailing by New Systems to its stockholders of its
Information Statement on Schedule 14f-1 previously filed with the SEC pursuant
to Rule 14f-1 promulgated under the Exchange Act, was delayed until November 30,
2001; and
WHEREAS, as a result of the foregoing, the Parties now wish to amend
the Agreement to modify and clarify certain provisions of the Agreement, as
provided herein.
NOW, THEREFORE, in consideration of the foregoing and the covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereby agree:
1. Section 2.06 of the Agreement pertaining to the Closing Date is
amended [italics] by deleting the outside date by which the Merger is to be
consummated from "November 30, 2001" and substituting therefor "December
12, 2001."
2. Section 9.1(a)(2) of the Agreement pertaining to terminating the
Agreement is amended [italics] by deleting the outside date by which the
Closing shall have occurred from "November 30, 2001" and substituting
therefor "December 12, 2001."
3. Upon completion of the Merger, each of the following named
individuals, constituting the current directors and/or officers of Tremor,
shall be appointed and/or elected, as the case may be, to the position(s)
set forth opposite his or her name; it being hereby acknowledged and agreed
by the Parties that the change of control of the board of directors of New
Systems contemplated by the Merger upon the resignation of the current
board of directors shall be effective subject to expiration of the ten (10)
day statutory
waiting period beginning on the later of the date of the filing by New
Systems of its Information Statement with the SEC pursuant to Rule 14f-1
promulgated by the SEC under the Exchange Act or the date of mailing of
such Information Statement to the stockholders of New Systems.
Name Position Title
----------------- -----------------
Xxxxxx Xxxxxxxx Director and Chairman of the Board,
President and Chief Executive
Officer
Xxxx Xxxxxxx Director
Xxxxxx Xxxx Xxxxxxxx Director and Secretary
Xxxxxxxx X. Xxxx President - Games Division
Xxxxx X. Xxxxxx Vice President of Finance &
Administration and Assistant
Secretary
Xxxxxxx Xxxxx Chief Technology Officer
4. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to such term in the Agreement.
5. The Agreement, as so amended by this Amendment, remains in full
force and effect.
6. This Amendment may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the date first above written.
NEW SYSTEMS, INC.
By:/s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
NEW TREMOR ACQUISITION CORP.
By:/s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
TREMOR ENTERTAINMENT INC.
By:/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
[SIGNATURE PAGE - AMENDMENT TO AGREEMENT AND PLAN OF MERGER]
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