AMENDING AGREEMENT
AMENDING
AGREEMENT
This
Amending Agreement made as of the 24th day of May, 2007
BETWEEN:
LML
PAYMENT SYSTEMS INC., a corporation continued under the laws of the
Yukon Territory
(the
“Purchaser”)
AND:
BEANSTREAM
INTERNET COMMERCE INC., a company existing under the laws of British
Columbia
(the
“Company”)
WHEREAS:
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A.
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The
Purchaser and the Company entered into an arrangement agreement (the
“Arrangement Agreement”) made as of April 30, 2007
pursuant to which the Purchaser and the Company agreed to effect
a
transaction whereby the Purchaser would acquire all of the issued
and
outstanding shares of the Company by means of a Plan of Arrangement;
and
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B.
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The
Purchaser and the Company wish to make certain amendments to the
Arrangement Agreement pursuant to the terms and conditions of this
Amending Agreement in order reflect the agreement of the
parties;
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NOW,
THEREFORE, THIS AMENDING AGREEMENT WITNESSES that in consideration of $10.00
and
the premises, covenants, conditions and provisions hereof, and for other good
and valuable consideration, (the receipt and sufficiency whereof is hereby
acknowledged), the parties hereto agree to amend the Arrangement Agreement
as
follows:
Interpretation
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1.
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Unless
otherwise defined herein, all capitalized terms shall have the same
meaning as in the Arrangement
Agreement.
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Amendment
to the Arrangement Agreement
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2.
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The
parties hereby agree that the Arrangement Agreement shall be amended
as is
set out in this Amending Agreement.
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3.
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The
definition of “Depository” in section 1.1 of the Arrangement Agreement is
hereby deleted and replaced by the following new
definition:
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“Depository”
means Computershare Investor Services Inc.;
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4.
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The
definition of “Gross Effective Date Cash Proceeds” in section 1.1 of the
Arrangement Agreement is hereby deleted and replaced by the following
new
definition:
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“Gross
Effective Date Cash Proceeds” means the result of subtracting (X) the Cash Hold
Back from (Y) the sum of (p) $10,000,000; and (q) the Pre Effective Date
Calculated Working Capital;”
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5.
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The
definition of “Meeting Date” is hereby deleted and replaced by the
following new definition of “Meeting
Date”:
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““Meeting
Date” means the date on which the Meeting is held, which date shall not be later
than June 27, 2007;”
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6.
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The
definition of “Post Effective Date Working Capital Number” in section 1.1
of the Arrangement Agreement is hereby deleted and replaced by the
following new definition:
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““Post
Effective Date Working Capital Number” means the positive or negative amount
that is the result of subtracting (X) the Pre Effective Date Calculated Working
Capital from (Y) the Post Effective Date Calculated Working
Capital;”
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7.
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Subsection
3.2(d) of the Arrangement Agreement is hereby deleted and replaced
by the
following new subsection 3.2(d):
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“(d)
Each
Option (i) has been duly authorized by all necessary corporate action on the
part of the Company (including authorization by the Company’s board of
directors); (ii) was granted in compliance with all applicable Laws, including
the BCBCA; and (iii) is evidenced by a written stock option agreement executed
by the Company and the optionee thereunder (and the Company has provided
Purchaser with true and complete copies of such stock option agreements,
including any amendments thereto). To the extent that the exercise
price of any Option is less than the fair market value of the Common Shares
purchasable pursuant to such Option as of the date of grant of such Option,
the
Company has properly accounted for such Option in its consolidated financial
statements in accordance with GAAP (including with respect to properly recording
any compensation charges required to be taken by the Company in connection
with
the grant of such Option).”
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8.
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Subsection
6.3(d) of the Arrangement Agreement is hereby deleted and replaced
by the
following new subsection 6.3(d):
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“(d) the
Purchaser shall have deposited or caused to be deposited with the Depository
specified in the Plan of Arrangement, for the benefit of the Shareholders,
cash
in an amount equal to the Effective Date Cash Proceeds, share certificates
representing the Effective Date Share Proceeds, issued in the name of the
Depository, in trust, and the Notes;
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9.
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The
definition of “Depository” in subsection 1.1(v) of the Plan of Arrangement
is deleted and replaced by the following new
definition:
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“”Depository”
means Computershare Investor Services Inc.;”
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10.
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The
definition of “Gross Effective Date Cash Proceeds” in subsection 1.1(mm)
of the Plan of Arrangement set out as Schedule B to the Arrangement
Agreement is hereby deleted and replaced by the following new
definition:
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-2-
““Gross
Effective Date Cash Proceeds” means the result of subtracting (X) the Cash Hold
Back from (Y) the sum of (p) $10,000,000; and (q) the Pre Effective
Date Calculated Working Capital;”
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11.
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The
definition of “Post Effective Working Capital Number” in subsection
1.1(aaa) of the Plan of Arrangement set out as Schedule B to the
Arrangement Agreement is hereby deleted and replaced by the following
definition:
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““Post
Effective Date Working Capital Number” means the positive or negative amount
that is the result of subtracting (X) the Pre Effective Date Calculated Working
Capital from (Y) the Post Effective Date Calculated Working
Capital;”
Unamended
Terms Not Affected
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12.
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The
terms and conditions of the Arrangement Agreement not amended pursuant
to
sections 3 to 6, inclusive, hereof are not affected by this Amending
Agreement and remain in full force and
effect.
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IN
WITNESS WHEREOF the parties have executed this Amending Agreement as of the
day
and year fist above written.
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BEANSTREAM
INTERNET COMMERCE INC.
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/s/
Xxxxxxx X. Xxxxxx
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/s/
Xxxxx Xxxxxxx
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Authorized
Signatory
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Authorized
Signatory
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