EX-2 2 ammq2-2.txt AMENDMENT TO MERGER AGREEMENT 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 AMOL, 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 Greg Corcoran, and shall ensure that all monies owed to Corcoran 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 Corcoran of all of the shares of AudioMonster Online of British Columbia, Inc. ("B.C. Ltd.") held by Audiomonster. Corcoran 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 Corcoran shall without further action become property of the Company. Audiomonster represents and warrants that other than the obligations to Corcoran, 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. Corcoran agrees to forgive any and all such obligations in exchange for the transfer of the shares of B.C. Ltd. and Corcoran also hereby resigns as a director and officer of Audiomonster. By his signature below, Corcoran 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 Corey Morrison 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 Mr. Morrison 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 Mr. Morrison. 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 Mr. Morrison for any reason, Audiomonster shall take all steps necessary or appropriate to amend the Stock Option Plan to permit the issuance of shares to Mr. Morrison 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 Corcoran) 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: ____________________________________ GREG CORCORAN