EXHIBIT 2.2
WAIVER AND AMENDMENT AGREEMENT
THIS WAIVER AND AMENDMENT AGREEMENT (the "AGREEMENT"), is entered into
as of May 11, 2000, by and among Xxxxxx.xxx, Inc., a Nevada corporation
("BIDHIT"), EZ Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Bidhit ("SUB"), EZBid Inc., a Delaware corporation ("EZBID"),
and the shareholders of EZBid, Systemax Inc., a Delaware corporation
("SYSTEMAX"), and Xxxx Xxxxxx, an individual ("XXXXXX" and, together with
Systemax, the "SHAREHOLDERS"). Bidhit, Sub, EZBid and the Shareholders are
sometimes collectively referred to herein as the "PARTIES."
WHEREAS, the Parties entered into an Agreement and Plan of Merger dated
as of April 21, 2000 (the "MERGER AGREEMENT") providing for the merger of Sub
with and into EZBid (the "MERGER");
WHEREAS, the Merger Agreement provided for certain agreements and
certain conditions precedent to be satisfied before the Parties were each
obligated to close the Merger; and
WHEREAS, it is the desire of the Parties to and amend certain agreements
and waive certain conditions precedent set forth in the Merger Agreement in
order to expedite the closing of the Merger.
NOW, THEREFORE, the Parties hereby agree as follows:
1. CO-MARKETING AGREEMENT. The Parties, hereby waive, as a condition
precedent to the closing of the Merger, the provisions of Section 6.1.2 of
the Merger Agreement. Notwithstanding the provisions of this Section 1,
Bidhit and Systemax shall remain obligated to enter into the Co-Marketing
Agreement (as defined in Section 5.5 of the Merger Agreement), and a complete
and final agreement shall be agreed upon as soon as practicable after the
closing of the Merger. At a minimum, the Co-Marketing Agreement shall
contain provisions substantially similar to those set forth on EXHIBIT A
hereto and incorporated herein by this reference.
2. FINANCING (SECTION 6.1.4). The Parties hereby waive, as a condition
precedent to the closing of the Merger, the provisions of Section 6.1.4 of
the Merger Agreement.
3. FINANCING (SECTIONS 5.9 AND 6.2.7). Sections 5.9 and 6.2.7 of the
Merger Agreement are hereby deleted. In lieu of the conditions set forth in
Sections 5.9 and 6.2.7, the Parties agree that Systemax shall loan to Bidhit
$200,000 in accordance with the terms and conditions set forth in the Term
Sheet attached hereto as EXHIBIT B and incorporated herein by this reference
(the "LOAN"). The Loan shall be closed prior to or contemporaneous with the
closing of the Merger. In addition, in the event that Bidhit successfully
closes on a financing or series of financings with aggregate gross proceeds
of $5.6 million or more on or prior to May 12, 2001 (and had a commitment
letter therefor on or prior to November 12, 2000), Systemax agrees
to invest in Bidhit at the time of such closing an additional Two Hundred
Thousand Dollars ($200,000) on terms and conditions as favorable to Systemax
as the most favorable terms offered to investors in such financing or
financings.
4. DISCLOSURE SCHEDULE. The EZBid Disclosure Schedule is amended to
indicate that the agreement referenced as Number 3 under Section 2.1.8 also
relates to Section 2.1.2 and that it is being amended, effective as of the
closing under this Agreement, to delete the second and third bullet points.
5. CONSIDERATION. The parties acknowledge that 200,000 of the Closing
Shares otherwise issuable to Systemax are instead, at Systemax's request,
being issued to Xxxxxx X. Xxxxxx, in consideration for services performed by
Gerber & Company as a broker, pursuant to a Finders Payment Agreement.
6. REGISTRATION RIGHTS. The parties confirm their understanding that
Bidhit shall, subject to the provisions regarding amendment to correct
material omissions or misstatements set forth in Section 4.5 of the Merger
Agreement, maintain the effectiveness of the registration statement filed
pursuant to such Section 4.5 for a period of two (2) year after the initial
effectiveness thereof or until Systemax has completed the distribution
described in the registration statement relating thereto, whichever occurs
first. Notwithstanding the foregoing provisions of this Section 6 or section
4.5 of the Merger Agreement, Bidhit shall be entitled to postpone or suspend,
for so long as any of the following shall apply, the effectiveness or use of
the Registration Statement if the Board of Bidhit shall determine in good
faith upon passing a resolution to such effect that any such filing or the
offering would (i) materially impede, delay or interfere with any material
pending or proposed financing, acquisition, corporate reorganization or other
similar transaction involving Bidhit; or (ii) require disclosure of material
nonpublic information which, if disclosed at such time, would be harmful to
the interests of Bidhit or its stockholders.
7. OPERATION OF EZBID. Systemax and EZBid, jointly and severally,
hereby represent and warrant that, since the date of the Merger Agreement (i)
EZBid has operated in the ordinary course of business, consistent with its
past practices, including those with respect to payment of accounts payable
and collection of receivables and (ii) EZBid has not made any payment or
distribution of any cash or other asset to Systemax or any subsidiary or
affiliate of Systemax.
8. MERGER AGREEMENT. Except as modified hereby, the terms and
conditions of the Merger Agreement should continue in full force and effect
as originally written.
9. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Washington as applied to
agreements entered into and entirely to be performed within that state. The
Parties irrevocably consent to the jurisdiction of the state and federal
courts located in King County Washington with respect to any matter arising
out of this agreement.
10. HEADINGS. The headings contained in this Agreement are intended
principally for convenience and shall not, by themselves, determine the
rights of the parties to this Agreement.
11. COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument. All counterparts shall be deemed an original
of this Agreement.
IN WITNESS WHEREOF, Bidhit, Sub, the Shareholders and EZBid have
executed this Agreement as of the date first written above.
XXXXXX.XXX, INC. EZBID INC.
By /s/ Xxx Xxxxx By /s/ Xxxx Xxxxxx
-------------------------------- --------------------------------------
Xxx Xxxxx, President Xxxx Xxxxxx, President
EZ ACQUISITION CORP. SHAREHOLDERS
SYSTEMAX INC.
By /s/ Xxx Xxxxx By /s/ Xxxxxxx Xxxxx
-------------------------------- --------------------------------------
Xxx Xxxxx, President Xxxxxxx Xxxxx, Chief Executive Officer
/s/ Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx
EXHIBIT A
TERMS OF CO-MARKETING AGREEMENT
- The EZBid or Bidhit icon will be displayed on the desktop of
Systemax-manufactured PC's at no charge for one year; thereafter at a
mutually agreed upon rate.
- EZBid/Bidhit will be allowed to continue to advertise in the Systemax
catalogues, under the same pricing and terms as enjoyed by EZBid in the
past.
- Systemax will continue to give EZBid/Bidhit the right to bid on the
disposal of obsolete or distressed inventory.
- Systemax will assist Bidhit/EZBid in its European expansion efforts.
EXHIBIT B
SYSTEMAX - BIDHIT
BRIDGE LOAN TERMS
The following reflects the terms agreed to on the bridge loan from Systemax
to Bidhit:
Amount: $200,000.00
Security: Secured by assets of EZBid (the "Surviving Company")
Maturity Date: One (1) year from date of Promissory Note (the
"Note") (or sooner if conditions for mandatory
conversion are met). The Note shall be pre-payable
at the election of Bidhit.
Interest Rate: 9% per annum
Conversion Rights: The principal and accrued interest under the Note
shall be convertible into common stock of Bidhit at
any time at the election of Systemax. In addition,
all principal and accrued interest shall be
automatically converted into common shares of Bidhit
upon the closing by Bidhit of a financing in an amount
of at least $2.8 million within six (6) months from
the date of the Note. Any conversion into common
shares of principal and accrued interest shall be at a
price equal to the closing price of Bidhit common
stock as quoted on the NASD over-the-counter bulletin
board on the date prior to the closing of the merger
transaction.
Miscellaneous: Systemax's obligation under the Merger Agreement to
commit to an additional financing of $200,000 shall
remain intact per the terms of the Merger Agreement.
The Note shall not be assignable without the consent
of Bidhit, in its sole discretion.
