Exhibit 10.1
REAFFIRMATION AGREEMENT
THIS REAFFIRMATION AGREEMENT ("REAFFIRMATION AGREEMENT") is made as of
July 23, 2004, by and among EasyLink Services Corporation (f/k/a Xxxx.xxx,
Inc.), a Delaware corporation ("EasyLink"), Swift Telecommunications, Inc., a
Delaware corporation ("Swift"), and Xxxxxx Xxx Xxxx ("GAZ").
W I T N E S S E T H:
WHEREAS, EasyLink, Swift and GAZ are parties to the Agreement And Plan
Of Merger dated as of January 31, 2001, as amended (the "Merger Agreement");
WHEREAS, all capitalized terms used herein that are not defined herein
shall have the respective meanings ascribed to such terms as set forth in the
Merger Agreement;
WHEREAS, subject to the terms and conditions of the Merger Agreement,
pursuant to Section 2.1(a) and (c) thereof, GAZ is entitled to receive the
Contingent Payment consisting of an amount in cash, or under certain
circumstances Class A common stock, equal to the amount of Comtext SRL Net
Proceeds;
WHEREAS, under Section 2.1(c) of the Merger Agreement, Comtext SRL Net
Proceeds means "the net proceeds from the sale of the business and assets of GN
Comtext S.r.L., an Italian corporation ("Swift Comtext srl"), after payment of
(a) all costs and expenses incurred in connection with such sale, (b) all Taxes
(as defined in Section 3.9(e)) payable as a result of such sale or the
distribution of such proceeds to the Surviving Corporation, (c) all liabilities
and obligations arising out of such sale or otherwise arising out of or relating
to Swift Comtext srl, including special employee bonuses payable in connection
with such sale, (d) all costs and losses, if any arising, out of the conversion
of such proceeds into United States dollars and (e) the deferred portion of the
purchase price (including any contingent payment obligations) now or hereafter
owed to GN Comtext Limited, whether paid in cash or by offset of payments,
including with respect to applicable Taxes, due from GN Comtext Ltd. under the
Telecoms Agreement (as defined in the GN Comtext Ltd. agreement);"
WHEREAS, pursuant to Section 11.1(a) of the Merger Agreement, GAZ has
agreed to indemnify and hold EasyLink, Swift and their respective affiliates and
successors harmless from, and to reimburse them for, any Losses (as that term is
hereinafter defined) arising out of, based upon or resulting from, among other
Losses specified in Section 11.1(a) of the Merger Agreement, "(iv) any Losses
arising out of or relating to GN Comtext S.r.L., including but not limited to
the sale of its assets and business and the distribution of the proceeds of such
sale", which Losses include but are not limited to the Losses described in
clauses (a) through (e) of the immediately preceding WHEREAS clause
(collectively, the "Swift Comtext srl Losses"; with the term "Losses" being
defined in Section 11.1(a) of the Merger Agreement to mean "any and all losses,
damages, deficiencies, liabilities, obligations, actions, claims, suits,
proceedings, demands, assessments, judgments, recoveries, fees, costs and
expenses (including, without limitation, all out-of-pocket expenses, reasonable
investigation expenses and reasonable fees and disbursements of accountants and
counsel) of any nature whatsoever, net of insurance proceeds actually realized
by the party incurring such Loss");
WHEREAS, Swift has received $370,190 of additional cash proceeds from
the sale of the business and assets of Swift Comtext srl;
WHEREAS, upon the execution and delivery of this agreement by the
parties hereto, EasyLink and Swift have agreed to pay $320,190 of the cash
proceeds described in the immediately preceding WHEREAS clause (the "Current
Proceeds Payment") on the condition that GAZ reaffirm his obligation to
indemnify and hold EasyLink, Swift and their respective affiliates and
successors harmless from, and to reimburse them for, all Swift Comtext srl
Losses;
NOW, THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each of the undersigned agrees as follows:
1. Current Proceeds Payment; Payment of Remaining Comtext SRL Net
Proceeds. EasyLink and Swift agree to make the Current Proceeds Payment to GAZ
in the amount of $320,190 immediately upon the execution and delivery of this
Reaffirmation Agreement by all of the parties hereto in accordance with wire
transfer instructions submitted by GAZ to EasyLink. EasyLink and Swift shall pay
all remaining Comtext SRL Net Proceeds, if any, to GAZ promptly after the
completion of the liquidation and dissolution of Swift Comtext srl subject to
the prior payment of all Swift Comtext srl Losses that are known or asserted as
of the time of the liquidation and dissolution.
2. Reaffirmation. GAZ hereby ratifies and reaffirms all of his payment
and performance obligations, contingent or otherwise, under the Merger Agreement
to indemnify and hold EasyLink, Swift and their respective affiliates and
successors harmless from, and to reimburse them for, all Swift Comtext srl
Losses, whether now existing or hereafter arising. Each of EasyLink, Swift and
GAZ acknowledges that the Merger Agreement remains in full force and effect and
is hereby ratified and confirmed. The execution of this Reaffirmation Agreement
shall not operate as a novation, waiver of any right, power or remedy of
EasyLink or Swift, nor constitute a waiver of any provision of any of the Merger
Agreement.
3. Miscellaneous.
(a) Amendment; Waiver. This Reaffirmation Agreement may be amended, and
any provision hereof may be waived, by written agreement between EasyLink and
Swift, on the one hand, and GAZ, on the other hand.
(b) Waiver of Compliance. Except as otherwise provided in this
Reaffirmation Agreement, any failure of any of the parties to comply with any
obligation, covenant or agreement contained herein may be waived only by a
written notice from the party or parties entitled to the benefits thereof. No
failure by any party hereto to exercise, and no delay in exercising, any right
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or future exercise of that
right by that party.
(c) Notices. All notices and other communications hereunder shall be
deemed given if given in writing and delivered personally, by registered or
certified mail, return receipt requested, postage prepaid, or by overnight
courier to the party to receive the same at its respective address set forth
below (or at such other address as may from time to time be designated by such
party to the others in accordance with this Section 3(c)):
(i) if to GAZ, to:
Xxxxxx Xxx Xxxx
c/o Swift Telecommunications, Inc.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telecopier: 000-000-0000
with copies to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
(ii) if to EasyLink or Swift, to:
EasyLink Services Corporation
00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
With a copy at the same address to:
Xxxxx X. Xxxxxxxx, Esq.
Telecopier: 000-000-0000
All such notices and communications hereunder shall be deemed given
when received, as evidenced by the signed acknowledgment of receipt of the
person to whom such notice or communication shall have been personally
delivered, the acknowledgment of receipt returned to the sender by the
applicable postal authorities or the confirmation of delivery rendered by the
applicable overnight courier service.
(d) Assignment. This Reaffirmation Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors (or, in the case of GAZ, his heirs, administrators,
executors and personal representatives) and permitted assigns. Neither this
Reaffirmation Agreement 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 vested rights to receive payment or to initiate
legal action with respect to causes of action that have accrued hereunder shall
be assignable by devise, descent or operation of law and except that each of
EasyLink and Swift may assign its rights under this Reaffirmation Agreement in
connection with a merger or consolidation with, or a transfer of all or
substantially all of its assets to, another person.
(e) No Third Party Beneficiaries. Neither this Reaffirmation Agreement
or any provision hereof, is intended to create any right, claim or remedy in
favor of any person or entity, other than the parties hereto and their
respective successors (or, in the case of GAZ, his respective heirs,
administrators, executors and personal representatives) and permitted assigns
and any other parties indemnified hereunder or under the Merger Agreement.
(f) Counterparts. This Reaffirmation Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g) Headings. The article and section headings contained in this
Reaffirmation Agreement are solely for convenience of reference, are not part of
the agreement of the parties and shall not be used in construing this
Reaffirmation Agreement or in any way affect the meaning or interpretation of
this Reaffirmation Agreement.
(h) Entire Agreement. This Reaffirmation Agreement embodies the entire
agreement of the parties hereto in respect of, and there are no other agreements
or understandings, written or oral, among the parties relating to, the subject
matter hereof, other than the Merger Agreement.
-2-
(j) Governing Law. The parties hereby agree that this Reaffirmation
Agreement, and the respective rights, duties and obligations of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to principles of conflicts of law
thereunder. Each of the parties hereby (i) irrevocably consents and agrees that
any legal or equitable action or proceeding arising under or in connection with
this Reaffirmation Agreement shall be brought exclusively in the federal or
state courts sitting in New York, New York and any court to which an appeal may
be taken in any such litigation, and (ii) by execution and delivery of this
Reaffirmation Agreement, irrevocably submits to and accepts, with respect to any
such action or proceeding, for itself and in respect of its properties and
assets, generally and unconditionally, the jurisdiction of the aforesaid courts,
and irrevocably waives any and all rights such party may now or hereafter have
to object to such jurisdiction.
-3-
IN WITNESS WHEREOF, EasyLink, Swift and GAZ have caused this
Reaffirmation Agreement to be duly executed and delivered as an instrument under
seal as of the date first above written.
EASYLINK SERVICES CORPORATION,
------------------------------
a Delaware corporation
By: s/Xxxxxx Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and CEO
SWIFT TELECOMMUNICATIONS, INC.,
-------------------------------
a Delaware corporation
By: s/Xxxxxx Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
s/Xxxxxx Xxx Xxxx
-----------------
XXXXXX XXX XXXX
-4-
