Exhibit 10.57
WAIVER AND RELEASE AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT dated as of November 6, 2000 (this
"Agreement") is by and between Virtual Communities, Inc., a Delaware corporation
(the "Company"), and Intercoastal Financial Services Corp. ("Intercoastal").
RECITALS:
WHEREAS, the Company and Intercoastal have previously entered into
agreements providing for (i) the placement of $5,500,000 of Series C Convertible
Preferred Stock, par value $01 per share (the "Preferred Stock"), of the Company
and warrants (the "Warrants") to purchase shares of the common stock, par value
$.01 per share (the "Common Stock"), of the Company and (ii) the payment by the
Company of a placement fee equal to 4% of the total amount funded in connection
with the July Financing (as defined below), such fee to be paid to Intercoastal
in shares of Common Stock of the Company (the "Fee Shares").
WHEREAS, the Company and Aspen International Ltd. ("Aspen"), Acqua
Wellington Value Fund Ltd., Narragansett I, LP and Narragansett Offshore, Ltd.
(collectively, the "Purchasers") have entered into that certain Series C
Convertible Preferred Stock Purchase Agreement (the "Purchase Agreement"), dated
as of July 28, 2000, pursuant to which, among other things, the Purchasers
agreed to purchase $5,500,000 of Preferred Stock and Warrants (the "July
Financing").
WHEREAS, the Company and the Purchasers have previously entered into that
certain Registration Rights Agreement, dated as of July 28, 2000 (the
"Registration Rights Agreement"), pursuant to which, among other things, the
Company agreed to file a registration statement covering the resale of the
shares of Common Stock issuable upon conversion of the Preferred Stock and
exercise of the Warrants and the Fees Shares (the "Registration Statement") with
the Securities and Exchange Commission within thirty (30) days after the closing
of the first tranche of the July Financing the "Filing Date") and have such
registration statement declared effective within ninety (90) days after the
Filing Date (the "Effectiveness Date").
WHEREAS, the closing of the final tranche of $2,000,000 in respect of the
July Financing was to occur on or before August 31, 2000 and as of the date
hereof the Purchasers had only purchased in the aggregate $2,010,000 of
Preferred Stock and Warrants.
WHEREAS, as of the date hereof, the Registration Statement had not been
filed with or declared effective by the Securities and Exchange Commission.
WHEREAS, simultaneous with the execution of this Agreement, the Company
and the Purchasers are entering into a Waiver and Release Agreement, pursuant to
which, among other things, the Company is releasing the Purchasers from any
obligation to purchase the remaining $3,490,000 of Preferred Stock and Warrants
pursuant to the Purchase Agreement.
WHEREAS, the Company and Intercoastal believe that it is in their
respective mutual best interests to waive and release each other from certain
obligations in connection with the July Financing.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, the parties hereby
agree as follows:
1. Waiver. Intercoastal hereby waives the Company's obligation to file the
Registration Statement by the Filing Date and have such Registration Statement
declared effective by the Effectiveness Date, provided, the Company files the
registration Statement on or before the 30th day after the date hereof (the "New
Filing Date") and has the Registration Statement declared on or before the 60th
day after the New Filing Date (the "New Effectiveness Date"). Notwithstanding
the foregoing, if the Company fails to file the Registration Statement by the
New Filing Date or have it declared effective by the New Effectiveness Date,
this waiver shall automatically terminate and be of no further force and effect.
2. Releases.
(a) The Company hereby releases, waives, relinquishes, renounces and
forever discharges Intercoastal, together with its stockholders, subsidiaries,
affiliates, successors and assigns, as well as its and their respective present
and former directors, officers, employees, agents, attorneys and other
representatives acting on their behalf and the successors and assigns of each of
them (each an "Intercoastal Released Party"), from any and all claims, suits,
debts, liens, liabilities, losses, causes of action, rights, damage, demands,
obligations, promises, costs and expenses (including, without limitation,
attorneys' fees and expenses) of every kind, nature and description, in law or
in equity, whether known or unknown, or known in the future, fixed or
contingent, billed or unbilled, suspected, disclosed or undisclosed, claimed or
concealed, from the beginning of time through the date of this Agreement, which
the Company could assert against any Intercoastal Released Party relating to or
arising out of the failure of the Purchasers to purchase the remaining
$3,490,000 of Preferred Stock and Warrants pursuant to the Purchase Agreement.
(b) Intercoastal hereby releases, waives, relinquishes, renounces
and forever discharges the Company, together with its respective subsidiaries,
affiliates, successors and assigns, as well as their respective present and
former directors, officers, employees, agents, attorneys and other
representatives acting on their behalf and the successors and assigns of each of
them (each a "Company Released Party"), from any and all claims, suits, debts,
liens, liabilities, losses, causes of action, rights, damage, demands,
obligations, promises, costs and expenses (including, without limitation,
attorneys' fees and expenses) of every kind, nature and description, in law or
in equity, whether known or unknown, or known in the future, fixed or
contingent, billed or unbilled, suspected, disclosed or undisclosed, claimed or
concealed, from the beginning of time through the date of this Agreement, which
the Intercoastal could assert against any Company Released Party relating to or
arising out of the failure of the Company to issue shares of Common Stock to
Intercoastal as payment of fees relating to the remaining $3,490,000 of
Preferred Stock and Warrants pursuant to the Purchase Agreement.
(c) If the Company brings any claim, suit, action or other
proceeding against any Intercoastal Released Party in any administrative
proceeding, in arbitration, at law, in equity or mixed, in any way connected
with, relating to or arising out of any right, matter or thing which is released
hereby, then the Company agrees to jointly and severally indemnify and hold
harmless such Intercoastal Released Party in amount of any final monetary
judgment or settlement and any related costs (including, without limitation, its
reasonable attorneys' fees and expenses) entered against, paid or incurred by
the Intercoastal Released Party arising from such claim, suit, action or
proceeding.
(d) If Intercoastal brings any claim, suit, action or other
proceeding against any Company Released Party in any administrative proceeding,
in arbitration, at law, in equity or mixed, in any way connected with, relating
to or arising out of any right, matter or thing which is released hereby, then
Intercoastal agree to jointly and severally indemnify and hold harmless such
Company Released Party in amount of any final monetary judgment or settlement
and any related costs (including, without limitation, its reasonable attorneys'
fees and expenses) entered against, paid or incurred by the Company Released
Party arising from such claim, suit, action or proceeding.
3. Miscellaneous.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the state of New York (without giving effect to the conflicts
of laws principles thereof).
(b) This Agreement shall be binding on the parties hereto and their
respective successors and permitted assigns under the Purchase Agreement.
(c) The parties hereto agree to execute and deliver such further
documents and instruments as maybe reasonably required or requested by the other
parties hereto in order to more fully effect the purposes of this Agreement in a
manner consistent with the terms thereof.
(d) This Agreement may be executed in two or more counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the __th day of November, 2000.
VIRTUAL COMMUNITIES, INC.
By:________________________________
Name:
Title:
INTERCOASTAL FINANCIAL SERVICES CORP.
By:_____________________________________
Name:
Title:
