EXHIBIT 2
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.
By /s/ Xxx Xxxxx
Xxx Xxxxx, President
| EZBID INC.
By /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, President
| EZ ACQUISITION CORP.
By /s/ Xxx Xxxxx
Xxx Xxxxx, President
| SHAREHOLDERS
SYSTEMAX INC.
By /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Chief Executive Officer
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx, President
EXHIBIT A
TERMS OF CO-MARKETING AGREEMENT
| o
| 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.
| o
| 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.
| o
| Systemax will continue to give EZBid/Bidhit the right to bid on the disposal of
obsolete or distressed inventory.
| o
| 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.
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