AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This Amendment ("Amendment") to the Agreement and Plan of Merger
by and Lockwave, Inc. ("Lockwave"), Imojo, Inc. ("Imojo"),
Audiomonster Online, Inc. ("Audiomonster" and together with
Lockwave and Imojo, the "Parties") and XXXX, Inc. dated September
25, 2000 (the "Merger Agreement") is entered into as of this ___
day of January 2001. Capitalized terms used, but not defined,
herein shall have the meaning ascribed to such terms in the
Merger Agreement.
W I T N E S S E T H
WHEREAS, the Parties desire to amend the Merger Agreement to
reflect (i) the issuance of an additional 3,000,000 shares of
Audiomonster Common Stock to Imojo in lieu of payment of a
portion of the Cash Portion; (ii) the revision of the payment
schedule with respect to the remainder of the Cash Portion; and
(iii) an increase in the Merger Consideration by 12,000,000
shares of Audiomonster common stock.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties,
intending to be legally bound, do hereby agree as follows:
1. Amendment to Merger Agreement. The definition of Merger
Consideration set forth in the Merger Agreement is hereby amended
as follows: (i) the Share Portion is hereby increased from
4,500,000 shares of Audiomonster common stock ("Common Stock") to
19,500,000 shares of Common Stock (Imojo acknowledges that such
shares will be "restricted shares" pursuant to the Securities Act
of 1933, as amended and the rules and regulations promulgated
thereunder); (ii) the Cash Portion payable to Imojo is hereby
amended to $2,000,000; and (iii) the payment schedule with
respect to the Cash Portion payable to Imojo shall be $250,000
payable on or before February 1, 2001 , $250,000 payable on or
before March 1, 2001 $500,000 payable on or before April 1, 2001,
$500,000 payable on or before May 1, 2001 and $500,000 payable on
or before June 1, 2001. Any amounts paid prior to the date of
this Amendment shall not be included in the Cash Portion.
Transactions with Affiliates. Audiomonster shall terminate
or cause to be terminated all of Audiomonster's obligations to
its affiliates, including but not limited to Xxxx Xxxxxxxx, and
shall ensure that all monies owed to Xxxxxxxx whether owed as of
the date hereof or in the future, including but not limited to
the obligations set forth on Schedule 2 attached hereto, shall be
forgiven in exchange for the transfer to Xxxxxxxx of all of the
shares of AudioMonster Online of British Columbia, Inc. ("B.C.
Ltd.") held by Audiomonster. Xxxxxxxx and Audiomonster agree
that upon termination of such obligations, all intellectual
property and other assets, including but not limited to domain
names leased to the Company by Xxxxxxxx shall without further
action become property of the Company. Audiomonster represents
and warrants that other than the obligations to Xxxxxxxx,
Audiomonster does not have any outstanding obligations to any of
its affiliates or others whether or not such obligations have
been disclosed in Audiomonster's public filings. Xxxxxxxx agrees
to forgive any and all such obligations in exchange for the
transfer of the shares of B.C. Ltd. and Xxxxxxxx also hereby
resigns as a director and officer of Audiomonster. By his
signature below, Xxxxxxxx agrees to be bound by the terms of this
Section 2.
3. Consulting Agreement. Audiomonster hereby ratifies and
affirms in all respects, the consulting agreement with Xxxxx
Xxxxxxxx dated as of January 2, 2001 for the provision of certain
consulting services pursuant to which Audiomonster issued
3,600,000 shares of its Common Stock to Xx. Xxxxxxxx pursuant to
Audiomonster's stock option plan, or similar plan, for its
employees and consultants ("Stock Option Plan"). Pursuant to such
agreement, Audiomonster agreed to take all necessary corporate
action, including obtaining stockholder approval, to increase the
number of shares available under the Stock Option Plan to the
extent necessary to accommodate the issuance of stock to Xx.
Xxxxxxxx. Audiomonster shall register such shares under the
Securities Act on Form S-8 within forty five (45) days of the
date hereof. If Audiomonster's existing Stock Option Plan does
not permit the issuance of such shares to Xx. Xxxxxxxx for any
reason, Audiomonster shall take all steps necessary or
appropriate to amend the Stock Option Plan to permit the issuance
of shares to Xx. Xxxxxxxx in accordance with the terms of this
Section 3.
4. Change of Name. As soon as practicable after the execution
of this Agreement, Audiomonster shall take all steps necessary or
appropriate to change its name to Lockwave, Inc., subject to
stockholder approval.
5. Entire Agreement. Except as specifically amended by the
terms of this Amendment, the terms of the Merger Agreement shall
remain in full force and effect.
6. Governing Law. This Amendment shall be construed in
accordance with the laws of the State of New York as applied to
contracts that are executed and performed entirely in New York.
The parties hereto (including Xxxxxxxx) agree that any action,
suit, arbitration or other proceeding arising out of or related
to this Amendment shall be brought, maintained and conducted only
in New York, and each party hereby irrevocably consents and
submits to the personal jurisdition of an venue in the United
States District Court for the Eastern District of New York and
the New York State Courts located in Nassau County, New York in
any such proceeding.
7. Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have hereunto set
their hands to this Amendment on the day and year first
above written.
LOCKWAVE, INC.
By:___________________________
______
Name:
Title:
AUDIOMONSTER ONLINE, INC.
By:___________________________
______
Name:
Title:
IMOJO, INC.
By:___________________________
______
Name:
Title:
Agreed and Accepted
With respect to Sections 2 and 6:
____________________________________
XXXX XXXXXXXX
