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Exhibit 2.5
AMENDMENT NO. 2 TO PURCHASE AGREEMENT
This AMENDMENT NO. 2 to Purchase Agreement (the "Amendment") is dated
as of February 11, 1999, and it serves as an amendment to the Purchase Agreement
dated December 18, 1998, by and among CNET, Inc., a Delaware Corporation
("Buyer"), Jenesys LLC, a Washington limited liability company ("Seller"), and
for the limited purposes specified under the signature page thereto, Xxxxx
Xxxxxxx ("Xxxxxxx"), as amended by Amendment No. 1 to Purchase Agreement dated
as of January 22, 1999. The Purchase Agreement and Amendment No.1 are
hereinafter collectively referred to as the "Purchase Agreement." Capitalized
terms not defined herein shall have the meaning give to them in the Purchase
Agreement.
WHEREAS, the parties hereto wish to amend certain provisions of the
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements set forth in this Amendment and the
Purchase Agreement, the parties hereto agree as follows:
1. Closing. Section 7.1 of the Purchase Agreement is hereby deleted in
its entirety and replaced with the following:
7.1 Termination. This Agreement and the transactions contemplated
hereby may be terminated and abandoned (a) at any time prior to Closing
by mutual written consent of Buyer and Seller; or (b) by either Buyer
or Seller if the Closing has not occurred by the close of business on
March 12, 1999. Any termination pursuant to clause (b) above will be
without prejudice to any right that any party may have hereunder
against the other party for any misrepresentation or breach of warranty
or covenant under this Agreement.
Section 1.4 of the Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
1.4 Closing. The closing of the transaction contemplated by this
Agreement (the "Closing") will occur on the 10th business day after all
the conditions set forth in Article V have been satisfied or waived, or
on such earlier date as Buyer and Seller may mutually agree (the
"Closing Date"); subject, however, to the right of termination
contained in Section 7.1 below.
2. Summary of Site Traffic. Schedule 2.6(c) of the Agreement is
replaced with Schedule 2.6(c) attached hereto.
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3. Microsoft Representation and Warranty. Since the date of the
Agreement, Seller has had continued discussions with Microsoft regarding use of
the Disputed Names. Seller has kept Buyer generally apprised of the contents and
progress of those discussions. Provided that Seller has, prior to closing,
entered into an agreement with Microsoft on terms satisfactory to Buyer and that
is assignable to Buyer, which will permit (a) Microsoft to acquire ownership of
the Disputed Names in return for an agreement to promote the Site on certain of
Microsoft's Internet sites, and (b) Buyer to use the names "xxxxxxx00.xxx" and
"xxxxxxx00.xxx" in connection with the Business for a specific period of time,
Seller shall not be obligated to update in writing Schedule 2.12 attached to the
Agreement. An agreement between Seller and/or Xxxxxxx and Microsoft providing
for these terms and otherwise acceptable to Seller shall be referred to herein
as the "License."
4. Closing Obligations. Upon Seller receiving the License from
Microsoft which Seller is prepared to sign, Seller shall provide a copy of the
License to Buyer. Buyer shall have one (1) business day following receipt of the
License from Seller in which to approve or disapprove of the License. If Buyer
approves of the License, then upon Seller providing Buyer with a fully executed
copy of such License, all Buyer's closing conditions under the Purchase
Agreement and under this Amendment shall be deemed satisfied, and, provided that
Seller makes its required closing deliveries under Section 1.5 of the Agreement,
Buyer shall be irrevocably and unconditionally obligated to close its purchase
under the Agreement. As used in this paragraph, Seller's closing deliveries
shall include the closing certificate described in Section 5.1(d) of the
Agreement, and any UCC-3 Termination Statements or other releases required under
Section 5.1(g) of the Agreement, and the legal opinion described under Section
5.1(h) of the Agreement. Buyer's failure to close as required under this
paragraph shall constitute a material default to this Amendment and this
Agreement, and allow Seller, without further notice or demand, to immediately
exercise all rights and remedies available to it at law or in equity.
5. Authority Relative to the Amendment. The execution, delivery and
performance of the Purchase Agreement and this Amendment, and the consummation
of the transactions contemplated hereby, have been duly and effectively
authorized by all necessary action of the parties, and the Purchase Agreement,
as amended by this Amendment, constitutes the valid and binding obligations of
the parties, enforceable against each of them in accordance with its terms.
6. Reference to and Effect on the Purchase Agreement.
(a) Upon execution of this Amendment, each reference in the
Purchase Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import, and each reference in any document related thereto, or executed
in connection herewith, shall mean and be a reference to the Purchase Agreement
as amended hereby, and the Purchase Agreement and this Amendment shall be read
together and construed as one single instrument.
(b) Except as specifically amended above, the Purchase
Agreement shall remain in full force and effect and is hereby ratified and
confirmed by the parties.
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(c) In case of a conflict between the terms of this Amendment
and the terms of the Purchase Agreement, the terms of this Amendment shall
control.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
CNET, INC.
/s/ XXXXXXX X. XXXXXXX
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Chief Financial Officer
Date: February 12, 1999
JENESYS LLC
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, Member
Date: February 12, 1999
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, Individually
Date: February 12, 1999
