1
Exhibit 10.1
AMENDMENT TO
STOCK PURCHASE AGREEMENT
This Amendment is made as of October 11, 2000 by and among XxxXxxx.xxx,
inc., a Minnesota corporation ("Popmail"), Fan Asylum Inc., a California
corporation ("Fan Asylum") and Xxx XxXxxxx ("Shareholder").
WHEREAS, Popmail, Shareholder and Fan Asylum are parties to a Stock
Purchase Agreement dated as of June 14, 2000 (the "Purchase Agreement"); and
WHEREAS, the parties desire to amend the Purchase Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree to amend the Purchase Agreement as
follows:
1. Capitalized terms used in this Amendment and not defined will have the same
meanings as in the Purchase Agreement.
2. Popmail and Shareholder hereby agree to accelerate Shareholder's rights
pursuant to Section 5.04 of the Purchase Agreement as described in this
paragraph. On October 11, 2000 or a date mutually acceptable to Popmail and
Shareholder (the "Closing Date"), Shareholder will be authorized to
exercise his right, subject to the other terms and conditions of this
Amendment. On the Closing Date, Shareholder will put to Popmail the 800,000
Initial Shares at a Put Price of $2.50 per share, payable in cash. Popmail
and Shareholder agree to take any and all actions necessary and appropriate
to facilitate this transaction by instructing the Bank to draw down an the
Letter of Credit, and send the proceeds (subject to the provisions of
Paragraph 3 hereunder) to Shareholder and causing the Escrow Agent to
release the collateral securing the Letter of Credit.
3. On the Closing Date, Shareholder agrees to purchase from Popmail, and
Popmail agrees to sell to Shareholder, that number of shares of the
Popmail's common stock (the "New Shares") that can be purchased for
$400,000 at a per share price equal to the Fair Market Value of the common
stock. The "Fair Market Value" of the common stock will be the average
closing share price for the five (5) trading days prior to the Closing Date
(adjusted, if appropriate, for the effects of a one-for-ten reverse stock
split effective October 12, 2000). On the Closing Date, Shareholder will
pay $400,000 in cash to Popmail by wire transfer, and Popmail will cause to
be issued a certificate for the New Shares. Popmail and Shareholder
mutually agree that this $400,000 will be paid by the bank's delivery of
said sum out of the $2,000,000 described in paragraph 2. The New Shares
will be validly issued, fully paid and non-assessable shares of common
stock of Popmail. Shareholder acknowledges that, if the certificate for the
New Shares is issued on or before October 11, 2000, the number New Shares
will be further adjusted for a one-for-ten reverse stock split effective
October 12, 2000.
4. Shareholder and Purchaser agree that the certificate for the New Shares
will be delivered to the Escrow Agent on the Closing Date and will held
pursuant to the terms of the Escrow Agreement as if they were part of the
Purchase Price Shares. Shareholder and Popmail agree to execute any
amendment to the Escrow Agreement necessary for these purposes. In addition
to other restrictions imposed by law and the restrictions and rights set
forth in the Escrow Agreement, the New Shares shall be subject to lock-up
and restricted pursuant to Section 5.05 of the Purchase Agreement as if
they were part of the Purchase Price Shares. Further, the parties agree
that the
2
New Shares will be treated as though they were Purchase Price Shares under
all other provisions of the Stock Purchase Agreement, the Escrow Agreement
and the Registration Rights Agreement.
5. Popmail agrees that on the Closing Date it will use $206,000 of the
purchase price paid for the New Shares to pay the Xxxxxx and Xxxxx XxXxxxxx
Revocable Trust (the "Trust") in satisfaction of all amounts owed by Fan
Asylum to the Trust as referred to in Schedule 4.17 and 4.32 of the
Purchase Agreement. Popmail agrees that within five (5) business days after
the Closing Date it will use $80,000 of the purchase price paid for the New
Shares to repay Xxx XxXxxxx a portion of the obligation of Fan Asylum to
Xxx XxXxxxx as referred to in the Schedules to the Purchase Agreement;
provided, that this payment will not be due until the -------- closing date
of a private placement of equity securities with gross proceeds of at least
$4,000,000 (a "Qualifying Private Placement").
6. Shareholder agrees that Section 5.07 of the Purchase Agreement is hereby
amended so that the final $200,000 Working Capital installment due on
September 1, 2000 shall be due as follows. Working Capital payments of
$50,000, $100,000 and $50,000 will be due on October 15, 2000, November 15,
2000 and December 15, 2000, respectively; provided, that no Working Capital
payments will be due until the closing date of a Qualifying Private
Placement; and provided further, that any unpaid balance of such $200,000
in payments will be due and payable in full on the closing date of a
Qualifying Private Placement.
7. Shareholder acknowledges that Popmail is amending the Strategic Artists
Incentive Plan established under Section 5.06 of the Purchase Agreement to
reduce the number of shares reserved for issuance under the Plan to 500,000
shares. Shareholder agrees that Popmail shall have no obligation to
increase the number of shares issuable under this Plan to more than 500,000
(appropriately adjusted for stock splits, share combinations and similar
events).
8. Section 1.09 of the Purchase Agreement is hereby amended to read in its
entirety as follows:
"1 .09 Earn Out Shares. Notwithstanding the amount of the Purchase
Price, Shareholder shall have no rights to or in the Earn Out Shares until
such Earn Out Shares, if any, become "Vested Earn Out Shares" as defined
below. On June 14, 2001, Popmail shall contribute the Vested Earn Out
Shares to the Escrow Agent to be deposited in the Earn out Shares Account
(as defined in the Escrow Agreement) to be distributed as set forth in the
Escrow Agreement. One-third (1/3) of the Earn Out Shares shall become
vested ("Vested Earn Out Shares") on each of the dates June 14, 2001, June
14, 2002 and June 14, 2003. Popmail and Shareholder acknowledge that
Shareholder may, by letter to Escrow Agent, designate any portion of the
Earn Out Shares to be distributed to certain employees of Fan Asylum
(subject to all the terms and conditions of the Purchase Agreement and the
Escrow Agreement).
Except as expressly provided herein, the Purchase Agreement will remain
effective in all respects.
3
IN WITNESS WHEREOF, this Amendment has been signed by the parties hereto as of
October 11, 2000.
XXX.XXXX.XXX, INC.
By /s/ Xxxxx Xxxxx /s/ Xxx XxXxxxx
----------------------------------- -----------------------------------
Its CFO
-----------------------------------
FAN ASYLUM, INC.
By /s/ Xxx XxXxxxx
-----------------------------------
Its President
-----------------------------------
110562
