<PAGE>
Amendment to Agreement and Plan of Merger
This Amendment to Agreement and Plan of Merger (this "Amendment") is dated
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as of July 24, 2000 (the "Amendment Date"), and is entered into by and among
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L90, Inc., a Delaware corporation ("Buyer"), WM Acquisition Corp., an Idaho
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corporation and wholly owned subsidiary of Parent ("Newco"), webMillion.com,
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Inc., an Idaho corporation (the "Company"), Anthony Hauser and Kenneth Adcock
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(each a "Founder," and collectively, the "Founders").
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Recitals
Whereas, Buyer, Newco, the Company and the Founders are parties to that
certain Agreement and Plan of Merger dated as of July 7, 2000 (the "Original
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Agreement"), whereby, among other things, Newco shall be merged with and into
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the Company.
Whereas, Buyer, Newco, the Company, and the Founders wish to amend the
Merger Agreement as provided herein.
Agreements
Now Therefore, in consideration of the premises and mutual agreements and
covenants set forth herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used herein and not
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otherwise defined shall have the meanings given to such terms in the Original
Agreement.
Section 2. Amendment to Section 2.06(a) - Conversion of Securities.
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Section 2.06(a) of the Merger Agreement is hereby amended in its entirety to
read as follows:
"(a) By virtue of the Merger and without any action on the part of the
holder thereof, at the Effective Time all shares of Company Common Stock
issued and outstanding immediately prior to the Effective Time (other than
Dissenting Shares), including any dividends or other distributions due or
accrued on such shares, shall be converted into the right to receive (subject
to the provisions of Section 2.09) the remainder of 2,000,000 shares of Buyer
Common Stock (adjusted appropriately for any stock splits, stock dividends or
similar recapitalization) less the sum of (i) the number of shares of Buyer
Common Stock into which Dissenting Shares would otherwise have been converted,
plus (ii) the number of Buyer Warrant Shares (the "Merger Shares"). The
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Merger Shares shall be distributed among the holders of Company Common Stock
in accordance with this Section 2.06(a).
1.
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"(i) At the Closing, the holders of Company Common Stock outstanding
at the Effective Time shall be entitled to receive in the aggregate (subject
to the provisions of Section 2.09) such number of shares of Buyer Common Stock
as is equal to the Merger Shares less the number of Escrow Shares (such
remainder being referred to as the "Common Initial Shares"). The Escrow
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Shares shall be deposited with the Escrow Agent pursuant to Section 2.09 and
shall be held and disposed of in accordance with the terms hereof and of the
Escrow Agreement.
"(ii) For purposes of determining the pro rata allocation for each
holder (other than the Founders) of Company Common Stock of the Common Initial
Shares among the holders (other than the Founders) of Company Common Stock
outstanding at the Effective Time, the Merger Shares shall be multiplied by a
fraction, the numerator of which shall be the number of shares of Company
Common Stock held by such holder at the Effective Time and the denominator of
which shall be the aggregate number of shares of Company Common Stock issued
and outstanding at the Effective Time.
"(iii) For purposes of determining the pro rata allocation for each
Founder of the Common Initial Shares, the Merger Shares shall be multiplied by
a fraction, the numerator of which shall be the number of shares of Company
Common Stock held by such Founder at the Effective Time and the denominator of
which shall be the aggregate number of shares of Company Common Stock issued
and outstanding at the Effective Time, and such product shall be reduced by
the number of Escrow Shares allocated to such Founder pursuant to Section
2.06(a)(iv) below.
"(iv) The number of Escrow Shares to be allocated to Anthony Hauser
shall be 226,386 and the number of Escrow Shares to be allocated to Kenneth
Adcock shall be 134,677."
Section 3. References. All references in the Original Agreement to
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"Agreement," "herein," "hereof," or terms of like import referring to the
Original Agreement or any portion thereof are hereby amended to refer to the
Original Agreement as amended by this Amendment.
Section 4. Effect of Amendment. Except as and to the extent expressly
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modified by this Amendment, the Original Agreement, the Exhibits thereto, the
Company Disclosure Schedules and the Buyer Disclosure Schedules shall remain in
full force and effect in all respects. In the event of a conflict between this
Amendment and the Original Agreement, the Exhibits thereto, the Company
Disclosure Schedules or the Buyer Disclosure Schedules, this Amendment shall
govern.
Section 5. Counterparts. This Amendment may be executed in several
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counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
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2.
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IN WITNESS WHEREOF, the parties have duly executed, or have caused this
Amendment to be duly executed on their behalf, as of the day and year first
above written.
WM ACQUISITION CORP.,
an Idaho corporation
By: /s/ [SIGNATURE ILLEGIBLE]^^
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An Authorized Officer
L90, INC.,
A Delaware corporation
By: /s/ [SIGNATURE ILLEGIBLE]^^
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An Authorized Officer
WEBMILLION.COM, INC.,
an Idaho corporation
By:__________________________________________
An Authorized Officer
FOUNDERS:
_____________________________________________
Anthony Hauser
_____________________________________________
Kenneth Adcock
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed, or have caused this
Amendment to be duly executed on their behalf, as of the day and year first
above written.
WM ACQUISITION CORP.,
an Idaho corporation
By:__________________________________________
An Authorized Officer
L90, INC.,
A Delaware corporation
By:__________________________________________
An Authorized Officer
WEBMILLION.COM, INC.,
an Idaho corporation
By: /s/ [SIGNATURE ILLEGIBLE]^^
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An Authorized Officer
FOUNDERS:
/s/ Anthony Hauser
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Anthony Hauser
/s/ Kenneth Adcock
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Kenneth Adcock
3.
