1
EXHIBIT 2.04
AMENDMENT AGREEMENT AND CONSENT
This Amendment Agreement and Consent dated February 23, 2001 is made by
and among xXxxx.xxx, Inc., a California corporation (the "Buyer"), KCI
Acquisition Corp., a Delaware corporation ("Transitory Subsidiary"), xXxxx.xxx,
Inc., a Delaware corporation ("uDate Delaware"), Xxxx.xxx, Inc., a Washington
corporation ("Xxxx.xxx"), and Xxx Xxxxxx ("Xxxxxx") (collectively, the
"Parties").
All capitalized terms not otherwise defined herein shall have the deemed
ascribed to them in the Merger Agreement (as defined below).
RECITALS
1. As of February 13, 2001 the Buyer, Transitory Subsidiary,
Xxxx.xxx, and Xxxxxx entered into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which Xxxx.xxx would be merged with and into Transitory
Subsidiary with Xxxx.xxx becoming a wholly owned subsidiary of the Buyer;
2. Pursuant to Section 4.12 of the Merger Agreement, the Buyer agreed
that without the prior written consent of Xxxx.xxx it will not amend it charter,
bylaws, or other organizational documents or take any other action that would
require to be disclosed on a current report on a Form 8-K;
3. On February 23, 2001 the Board of Directors of the Buyer
recommended the merger of the Buyer with and into uDate Delaware, a newly formed
Delaware corporation and wholly owned subsidiary of the Buyer, for the purpose
of changing the state of incorporation of the Buyer from the State of California
to the State of Delaware (the "Reincorporation"), pursuant to which the Buyer's
Articles of Incorporation and Bylaws will be amended and replaced by the
Certificate of Incorporation and Bylaws of uDate Delaware;
4. The holders of a majority of the issued and outstanding shares of
the Buyer intend to act on or about February 23, 2001 to approve the
Reincorporation;
5. The Company desires to obtain the consent of Xxxx.xxx and Xxxxxx
to the Reincorporation and the amendment of the Certificate of Incorporation and
Bylaws in connection with the Reincorporation; and
6. The Parties desire to amend the Merger Agreement so that,
following the Reincorporation, all references in the Merger Agreement to the
Buyer and its shares will be references to uDate Delaware and the common stock,
par value $0.001 per share, of uDate Delaware (the "uDate Delaware Common
Stock"), and upon completion of the acquisition of Xxxx.xxx, Xxxx.xxx will be a
wholly owned subsidiary of uDate Delaware and Messrs. Xxxxxx and Xxxx will be
added to the Board of Directors of uDate Delaware.
2
Now therefore, in consideration of the foregoing recitals and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Buyer, Transitory Subsidiary, uDate Delaware, Xxxx.xxx, and
Xxxxxx hereby agree as follows:
1. Consent to Reincorporation and Amendment of Certificate of
Incorporation and Bylaws. Pursuant to Section 4.12 of the Merger Agreement,
Xxxx.xxx and Xxxxxx hereby consent to the Reincorporation and the amendment of
the Certificate of Incorporation and Bylaws of the Buyer. Without limiting the
effect of the foregoing, Xxxx.xxx and Xxxxxx approve (i) the form of Agreement
and Plan of Merger (the "Reincorporation Agreement") between the Buyer and uDate
Delaware attached hereto as Exhibit A, (ii) the Certificate of Incorporation of
uDate Delaware attached hereto as Exhibit B, and (iii) the Bylaws of uDate
Delaware attached hereto as Exhibit C, and Xxxx.xxx and Xxxxxx authorize the
Buyer and uDate Delaware to make such changes to the Reincorporation Agreement
as the Buyer and uDate Delaware deem necessary or appropriate to complete the
Reincorporation.
2. Amendment of Definition of Buyer. From and after the
Reincorporation, references to the "Buyer" in the Merger Agreement shall be
deemed to be references to uDate Delaware. Without limiting the effect of the
foregoing, (i) all references to "Buyer Common Stock" shall be deemed to be
references to the uDate Delaware Common Stock, (ii) at the Effective Time,
Xxxx.xxx will be a wholly owned subsidiary of uDate Delaware, and (iii) pursuant
to Section 4.9 of the Merger Agreement, Xxxxxx and Xxxx shall be appointed
members of the Board of Directors of uDate Delaware immediately following the
Effective Time.
3. Merger Agreement. In all other respects the Merger Agreement, as
heretofore in effect, shall remain unchanged and is hereby ratified and
confirmed.
4. Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests or obligations hereunder without the prior written approval of
the other Parties; provided that the Transitory Subsidiary may assign its
rights, interests, and obligations hereunder to an Affiliate of the Buyer.
5. Counterpart and Facsimile Signatures. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. This
Agreement may be executed by facsimile signature.
6. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered four
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or two business day after it is sent for next
business day delivery via a reputable international overnight courier service,
in each case to the intended recipient as set forth below:
3
If to the Buyer, uDate Delaware, or the Transitory
--------------------------------------------------
Subsidiary, to:
--------------
xXxxx.xxx, Inc.
New Xxxxxxxxxx Xxxxx
Xx. Xxxxxx Xxxxxx
Xxxxx Xxxxxxx XX0 0XX
United Kingdom
Phone: x00 0000-000000
Fax: x00 00 0000-0000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
--------------
Xxxx and Xxxx LLP
The Xxxxxxx Office Building
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to the Buyer, to:
-------------------
Xxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx
with a copy to:
--------------
Cairncross & Hempelmann, P.S.
70th Floor, Bank of America Tower (after March 1, 2001)
000 Xxxxx Xxxxxx 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
4
If to Xxxxxx, to:
------------
Xxx Xxxxxx
----------------
----------------
----------------
Phone: (206)
-----------
Fax: (206)
----------
with a copy to:
--------------
Cairncross & Hempelmann, P.S.
70th Floor, Bank of America Tower (after March 1, 2001)
000 Xxxxx Xxxxxx 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
Any Party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the party for
whom it is intended. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner herein set forth.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Washington without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Washington or any other jurisdiction) that would cause the application of
laws of any jurisdictions other than those of the State of Washington.
8. Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the Parties. No waiver of any right or
remedy hereunder shall be valid unless the same shall be in writing and signed
by the Party giving such waiver. No waiver by any Party with respect to any
default, misrepresentation, or breach of warranty or covenant hereunder shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
9. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term
5
or provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction declares that any term or
provision hereof is invalid or unenforceable, the Parties agree that the court
making the determination of invalidity or unenforceability shall have the power
to limit the term or provision, to delete specific words or phrases, or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.
10. Submission to Jurisdiction. Each of the Parties (a) submits to the
jurisdiction of any state or federal court sitting in Seattle, Washington in any
action or proceeding arising out of or relating to this Agreement, (b) agrees
that all claims in respect of such action or proceeding may be heard and
determined in any such court, and (c) agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other Party with respect thereto. Any
Party may make service on another Party by sending or delivering a copy of the
process to the Party to be served at the address and in the manner provided for
the giving of notices in Section 6. Nothing in this Section 10, however, shall
affect the right of any Party to serve legal process in any other manner
permitted by law.
[remainder of page intentionally left blank]
6
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
XXXXX.XXX, INC., a California corporation
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxx Xxxxxx
Title: CEO
XXXXX.XXX, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxx Xxxxxx
Title: CEO
KCI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXX.XXX, INC.
By: /s/ Xxxxx Xxxx
--------------
Name: Xxxxx Xxxx
Title: CEO
By: /s/ Xxx Xxxxxx
--------------
Name: Xxx Xxxxxx
