AMENDMENT TO AGENCY AGREEMENT
This amendment dated December 1, 1999 (the "Amendment") to the Agency
Agreement dated as of October 4, 1999 (the "Agreement"), is made by and between
Commonwealth Associates, L.P., and eB2B Commerce, Inc. Capitalized terms used in
this Amendment shall have the same meanings set forth in the Agreement, except
as otherwise set forth herein.
WHEREAS, the parties hereto wish to amend the terms of the Agreement to
reflect the increase in the size of the Offering, as well as certain other
modifications to the terms and conditions of the Offering.
NOW, THEREFORE, the parties hereto agree as follows:
1. Increase in the Offering. The Agreement is hereby amended by changing
the following defined terms:
"Minimum Offering" shall mean 40 Units for $10,000,000.
"Maximum Offering" shall mean 100 Units for $25,000,000.
"Over-Allotment Option" shall mean 32 Units for $8,000,000.
"Preferred Termination Date" shall mean December 30, 1999.
2. Placement Fees. Section 3(d)(ii) of the Agreement is hereby amended as
follows:
The definition of "Agent's Warrants" is changed to mean that number of
shares of Common Stock as equals 20% of the shares of Common Stock underlying
the Preferred Shares and the Offering Warrants minus 17,409, so that in the
event of the Minimum Offering such percentage shall be 19.23% and in the event
of the maximum Offering such percentage shall be 19.69%.
The reference to $50,000 in subsection (C) is changed to $150,000.
3. Lock-Up Agreement. Section 3(b)(xiii) of the Agreement is hereby deleted
in its entirety and replaced with the following new subsection:
(xiii) Lock-Up Agreements. The Placement Agent shall receive
agreements from each officer, director and principal stockholder of the
Company to the effect that such individual will not, without the prior
written consent of the Placement Agent, sell, transfer or otherwise
dispose of any of the Company's securities for one year after the
Initial Closing and thereafter will not dispose of more than 25% of the
securities on a cumulative basis during each subsequent 90 day period
thereafter (the "Lock-Up Period"); provided, however, that if the
Company undertakes a Qualified Private Offering or any public offering
(as defined in the Memorandum") within the first 12 months of the
Lock-Up Period, such individual will not sell, transfer or otherwise
dispose of the securities for such period of time after such offering
(not to exceed one year) as the managing underwriter or placement agent
may request in writing and the Placement Agent may agree to. This
restriction on transfer will apply to any securities issued in exchange
for the Securities in any merger.
4. Additional Closing Conditions. Section 3(b)(x) of the Agreement
relating to the delivery of
budgets and Section 3(b)(xv) of the Agreement relating to key-man insurance are
waived as conditions to the Initial Closing; however, each remains a condition
of the Placement Agent to the Final Closing.
5. O & D Insurance. Section 4(j) of the Agreement is amended to read in its
entirety as follows:
(j) D&O Insurance. Commencing on the Final Closing, the Company
shall maintain officers and directors liability insurance in the amount
of $2,000,000.
6. Effectiveness. This Amendment shall be deemed effective as of the date
hereof.
7. Miscellaneous.
(a) Agreement Amended. Subject to the provisions of this Section
7, this Amendment shall be deemed to be an amendment to the Agreement. All
references to the Agreement in any other document, instrument agreement or
writing hereafter shall be deemed to refer to the Agreement as amended hereby.
(b) Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the Company, the Placement Agent and their
respective successors and assigns.
(c) Governing Law. This Amendment and the rights and obligation
of the parties hereunder shall be construed in accordance with and governed by
the law of the State of New York, without regard to conflict of laws principles.
(d) Counterparts. This Amendment may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
eB2B COMMERCE, INC.
\s\ Xxxxx X. Xxxxxxxx
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By: Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Agreed:
COMMONWEALTH ASSOCIATES, L.P.
By: Commonwealth Associates Management Corp., Inc.
By: \s\ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
