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EXHIBIT 10.1
Certain schedules are omitted, but will be
furnished supplementally to the
Commission upon request.
AMENDMENT NO. 1 TO DOMAIN PORTFOLIO PURCHASE AGREEMENT
This AMENDMENT NO. 1 (hereinafter, "Amendment No. 1") made this
22nd
day of August, 2005 to the Domain Portfolio
Purchase Agreement made the 23rd day
of December, 2004 by and among, EasyLink
Services Corporation, a Delaware
corporation (the "Seller"), NJ Domains LLC,
a New Jersey limited liability
company (the "Buyer"), and Gerald Gorman
(the "Agreement"). All capitalized
terms used herein and not otherwise defined
herein shall have the respective
meanings ascribed to such terms in the
Agreement.
WITNESSETH
WHEREAS, the Parties entered into the Agreement on December 23,
2004;
and
WHEREAS, the Parties have agreed to terminate certain rights
and
obligations of the Parties under the
Agreement on the terms and conditions set
forth in this Amendment No. 1;
NOW
THEREFORE, the undersigned Parties agree as follows:
1. Consideration.
Upon the Closing (as defined in Section 3), Buyer and, in the case
of
clause (b)(iii) below, Gerald Gorman shall
(a) pay to the Seller cash (the
"Closing Cash Payment") in an amount equal
to $700,000, such payment to be made
by wire transfer of immediately available
funds to the account designated in
writing by the Seller on or before the
Closing Date (as defined in Section 3),
and (b) execute and deliver to the Seller
(as applicable) the following
instruments and agreements (collectively,
together with this Amendment No. 1,
the "Operative Documents"):
(i) the secured
promissory note (the "Note") in the form attached
hereto as Exhibit A;
(ii) the security
agreement (the "Security Agreement") in the form
attached hereto as Exhibit B;
(iii) the guaranty (the "Guaranty") in the form attached hereto
as
Exhibit C; and
(iv) the UCC-1 and/or
UCC-3 Financing Statement (the "Financing
Statement") in the form attached hereto as Exhibit Ds.
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2. Termination of Rights.
Upon receipt of the Closing Cash Payment in the Seller's
account
designated pursuant to Section 1 and the
execution and delivery to the Seller by
the Buyer and Gerald Gorman of the
Operative Documents, (i) all rights and
obligations of the Parties under section
4.b (Post Closing Consideration) of
Article One of the Agreement shall
automatically terminate and be of no further
force and effect and (ii) all rights and
obligations of the Parties under
section 1 of the Severance Agreement made
as of December 23, 2004 between Gerald
Gorman and the Seller (the "Severance
Agreement") shall automatically terminate
and be of no further force and effect.
3. Closing.
The closing of the transactions contemplated by Section 1 and 2
shall
occur simultaneously with the execution and
delivery of this Amendment No. 1
(the "Closing"), and the date on which the
Closing shall occur is herein
referred to as the "Closing Date."
4. Restrictions
(a) Required
Approvals
Except as provided below, until the Note is paid in full, the
Buyer shall not, directly or indirectly,
voluntarily or involuntarily:
(i) sell,
transfer, assign or otherwise dispose of (including any
disposition occurring by merger,
consolidation or operation of law involving
Buyer or any other person) any Name or any
of the Shares; or
(ii) grant any
security interest, lien or other encumbrance upon
any of Buyer's right, title and interest
in, to or under any Name (hereinafter
each a "Security Interest") or any of the
Shares unless (A) any such Security
Interest is fully subordinated to the
rights of the Seller under the Security
Agreement; (B) the Seller's rights under
the Security Agreement are recorded and
of public record through the filing of a
Form UCC-1 Financing Statement; and (C)
prior to the creation of any Security
Interest, the prospective secured party is
notified in writing of the existence of the
Note and the Security Agreement
(such notification being in addition to the
"notice" provided by the filing of a
UCC-1 or UCC-3); or
(iii) use or permit any other person to use the Names in any
manner
that is in violation of applicable law or
the rights of any third parties (it
being understood that the Buyer may comply
with its obligations under this
clause (iii) with respect to any other
person by obtaining contractual
agreements from such persons);
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except, in the case of clauses (i) or (ii),
with the prior written approval of
the Seller (hereinafter each a "Required
Approval"). In the case of clauses (i)
and (ii), the Seller shall have sole and
absolute discretion in its decision
whether to grant or deny a Required
Approval and may deny a Required Approval
for any reason or for no reason. Unless
otherwise agreed in writing by the
Seller, any such sale, transfer, assignment
or other disposition, license, lease
or other right to use, or security
interest, lien or other encumbrance to which
the Seller consents in writing shall be
subject to and subordinate to the
Seller's rights under the Security
Agreement and shall be conditioned upon the
other party thereto acknowledging in
writing such rights and agreeing to be
bound by the Buyer's obligations under the
Security Agreement with respect to
the applicable Name or Names or Shares. Any
such sale, transfer, assignment or
other disposition, or security interest,
lien or other encumbrance, to which the
Seller shall not consent in writing shall
be void ab initio.
(b)
Procedure
When the Buyer must obtain a Required Approval, the Buyer shall
give
written notice of the proposed transaction
to the Seller and shall disclose to
the Seller all of the terms and conditions
relating to such transaction
(including any agreements to be executed
and delivered in connection therewith),
the identity of the other party to such
transaction and any direct or indirect
relationship or association (if any)
between such party and the Buyer before and
after the consummation of the transaction.
The Seller may approve or reject any
such proposed transaction in its sole and
absolute discretion and the Seller may
also condition its approval of a proposed
transaction upon the Seller receiving
all or a portion of the transaction
proceeds to be applied to a pre-payment on
the Note. The Seller shall respond in
writing within fifteen (15) business days
(excluding the date of receipt of the
proposal) with either its approval or
rejection of the proposed transaction. If
the Seller does not respond in writing
within fifteen (15) business days as
required hereunder, then the Buyer shall be
entitled to assume that the Seller has
approved the proposed transaction on the
basis that the net proceeds of sale will be
applied to a pre-payment of the
Note. If the Seller rejects a proposal, the
Seller may, but is not required, to
explain the basis for its rejection in
order to facilitate a re-negotiation of
an acceptable (to the Seller) transaction
with respect to the Name or Shares in
question.
5. Representations and Warranties.
(a) The Buyer represents and warrants that:
(i) The Buyer is duly organized, validly existing and in good
standing
under the laws of the State of New Jersey
and has full power and authority to
enter into this Amendment No. 1 and perform
its obligations hereunder.
(ii) The Buyer is qualified to conduct business in New Jersey.
(iii) This Agreement has been duly executed and delivered on behalf
of
the Buyer and is a valid and binding
contract of the Buyer, enforceable against
the Buyer in accordance with its terms.
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(b) Gerald Gorman represents and warrants that:
(i) This Agreement constitutes the legal, valid, and binding
obligation
of Gorman, enforceable against him in
accordance with its terms.
(ii) Neither the execution and delivery of this Amendment No. 1
by
Gorman nor the consummation or performance
by Gorman hereunder will, directly or
indirectly, with or without notice or lapse
of time, contravene, conflict with
or result in a violation or breach of any
provision of any other agreement to
which Gorman is a party.
(iii) Gerald Gorman agrees that he will maintain ownership of a
majority of the outstanding economic and
voting equity interests in the Buyer
until the Note is paid in full, provided
however that (i) a lifetime transfer of
ownership interests in the Buyer to another
legal entity that is wholly owned
and controlled by Gorman or (ii) a transfer
at death of ownership interests in
the Buyer to Gorman's spouse and/or
children, or to one or more trusts for the
benefit of Gorman's spouse and/or children
shall not be considered a transfer of
ownership hereunder, provided that, in each
case, such transfer is expressly
subject to the terms and conditions of this
Amendment No. 1 and the Security
Agreement.
(c) The Seller represents and warrants that:
(i) The Seller is duly organized, validly existing, and in good
standing under the laws of the State of
Delaware and has full corporate power
and authority to enter into this Amendment
No. 1 and complete the transaction
contemplated herein.
(ii) The Seller is qualified to conduct business in New Jersey.
(iii) This Agreement has been duly executed and delivered on behalf
of
the Seller and is a valid and binding
contract of the Seller enforceable against
the Seller in accordance with its
terms.
6. Amendment of Exhibit I to Domain Portfolio Purchase
Agreement.
Exhibit I to the Domain Portfolio Purchase Agreement is hereby
amended
to add thereto the Names set forth on
Schedule 1 hereto.
7. Reference to and Effect on the Agreement.
Except as expressly provided herein, the Agreement and all of the
other
agreements executed and delivered in
connection therewith shall remain
unmodified and continue in full force and
effect and are hereby ratified and
confirmed (including but not limited to
Article II, Section 8 of the Agreement).
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8. Choice
of Law
This Amendment No. 1 and all disputes, controversies, or claims
arising out of or relating to this
Amendment No. 1 or a breach thereof shall be
governed by the laws of the State of New
Jersey without reference to the
principles of conflicts of law that would
apply the law of another state.
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9. Jurisdiction
Each Party agrees to the exclusive personal jurisdiction of the
courts
of the State of New Jersey and the Federal
courts for the District of New Jersey
for all matters arising from this Amendment
No. 1. Each Party waives all claims
of forum non conveniens in the selection of
forum by any other Party.
10. Counterparts
This Amendment No. 1 may be executed in one or more counterparts,
each
of which shall be deemed to be an original
and all of which together shall be
deemed to be one and the same instrument,
and shall become effective when one or
more counterparts have been signed by each
of the Parties.
11. Entire Agreement, Amendment
This Amendment No. 1, the Note, the Security Agreement, the
Guaranty,
the Agreement (as amended by this Amendment
No. 1) constitutes the complete and
entire agreement among the Parties with
respect to the subject matter herein and
supersedes any prior agreement, oral or
written, among the Parties concerning
this matter. This Amendment No. 1 may be
amended only by the written consent of
all the Parties.
12. Binding Agreement; No Third Party Beneficiaries; Assignment
This Amendment No. 1 is the binding agreement of each of the
Parties
and shall be binding upon, and inure to the
benefit of, each Party's successors,
heirs, and assigns. The representations,
warranties, covenants and agreements
contained in this Amendment No. 1 are for
the sole benefit of the Parties hereto
and the respective successors and permitted
assigns of all of the foregoing and
they shall not be construed as conferring
and are not intended to confer any
rights on any other persons, including the
right to enforce any of the
provisions of this Amendment No. 1.
Neither this Amendment No. 1 nor any rights, duties or
obligations
hereunder shall be assigned by any party
hereto without the prior written
consent of the other Parties hereto, except
that the Seller may assign its
rights hereunder to any lender to secure
debt obligations owed to such lender
and in connection with a merger or
consolidation of the Seller with, or a
transfer of all or substantially all of the
Seller's assets to, another person.
13. Context
In all references herein to any Parties, persons, or entities, the
use
of any particular gender or the plural or
singular number is intended to include
the appropriate gender or number as the
text of this Amendment No. 1 may
require.
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14. Notices
All notices, consents, requests, instructions, approvals, and
other
communications provided for herein or in
the Note, the Security Agreement or the
Guaranty shall be deemed validly given if
in writing and delivered personally or
sent by overnight courier, or by certified
mail, postage prepaid and return
receipt requested, to:
If to the Buyer:
Gerald Gorman
415 Bernardsville Road
Mendham, New Jersey 07945
With copy to: Michael Helmer,
Esq.
Thacher Proffitt & Wood LLP
25 DeForest Avenue
Summit, New Jersey 07901
If to Gorman:
Gerald Gorman
415 Bernardsville Road
Mendham, New Jersey 07945
With copy to: Michael Helmer,
Esq.
Thacher Proffitt & Wood LLP
25 DeForest Avenue
Summit, New Jersey 07901
If to the Seller:
EasyLink Services Corporation
33 Knightsbridge Road
Piscataway, New Jersey 08854
Attention:
Chief Executive Officer
With copy to: David Ambrosia,
Esq.
Executive Vice President and General Counsel
EasyLink Services Corporation
33 Knightsbridge Road
Piscataway, New Jersey 08854
Notice shall be deemed to have been given
on the date of delivery if delivered
personally or by overnight courier and on
the third day following the date of
mailing if delivered by certified mail.
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IN WITNESS WHEREOF, we have hereunto affixed our seals and our
signatures on the date first written
above.
ATTEST
EASYLINK SERVICES CORPORATION, SELLER
By: s/David Ambrosia
By: s/Thomas F. Murawski
----------------
--------------------
Name: David Ambrosia
Name: Thomas F. Murawski
Title: EVP and General Counsel
Title: Chairman, President and
Chief Executive Officer
ATTEST
NJ DOMAINS, LLC, BUYER
By: ______________________
By: s/G. Gorman
-----------
Name:
Name: G. Gorman
Title:
Title: Manager
WITNESS
GERALD GORMAN
______________________
s/G. Gorman
-----------
Gerald Gorman
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SCHEDULE 1
Schedule 1 has been omitted, but will be
furnished supplementally to the
Commission upon request.
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EXHIBIT A TO AMENDMENT NO. 1
[See Exhibit 10.2 for form of Secured Promissory Note]
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EXHIBIT B TO AMENDMENT NO. 1
[See Exhibit 10.3 for form of Security Agreement]
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EXHIBIT C TO AMENDMENT NO. 1
[See Exhibit 10.4 for form of Guaranty]
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Exhibit D-1 to Amendment No. 1
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<S> <C>
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back)
CAREFULLY
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A. NAME & PHONE OF CONTACT AT FILER
[optional]
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B. SEND ACKNOWLEDGMENT TO: (Name and
Address)
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THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
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1. DEBTOR'S EXACT FULL LEGAL NAME - insert
only one debtor name (1a or 1b) - do not abbreviate or combine
names
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