AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to the Asset Purchase Agreement (this "Amendment")
made as of October 27, 1995 by and among United Telemanagement Services, Inc., a
Delaware corporation with an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("UTS"), Quest United, Inc., a Delaware corporation with a mailing address
at c/o UTS, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Quest America
Management, Inc., a Delaware corporation with an office at 00 Xxxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Xxxxxx X. Xxxxx, Xx., residing at 000 Xxxxx
Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000, J. Xxxxxx Xxxxxxx, residing at 0
Xxxxxxxxx Xxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx 00000, and Quest America, LP, a
Delaware limited partnership with an office at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, the parties hereto are parties to that Asset Purchase Agreement
dated as of June 13, 1995 ("Asset Purchase Agreement"). All capitalized terms
used herein and not otherwise defined herein shall have the respective meanings
as set forth in the Asset Purchase Agreement; and
WHEREAS, the parties hereto desire to enter into this Amendment to amend
certain provisions of the Asset Purchase Agreement including, without
limitation, the purchase price payable for the Assigned Business and the
Assigned Assets.
TERMS
In consideration of the mutual covenants contained herein and good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties to this Amendment
hereby agree as follows:
1. Amendments to Asset Purchase Agreement. The Asset Purchase Agreement is
hereby amended as follows:
(a) The second recital appearing on page 2 of the Asset Purchase
Agreement is hereby amended by deleting the phrase "in exchange for shares of
Common Stock (as hereinafter defined)" appearing on the 6th and 7th lines
thereof and replacing such phrase with the following: "Newco's agreement to
assume such stated liabilities."
(b) The defined term "Instructions" appearing on page 4 of the Asset
Purchase Agreement is hereby deleted in its entirety.
(c) The defined term "Options" appearing on page 5 of the Asset
Purchase Agreement is hereby deleted in its entirety.
(d) The terms "PSC" and "PSC Approval" appearing on page 5 of the Asset
Purchase Agreement are hereby deleted in their entirety.
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(e) The defined terms "Stockholders' Agreement" and "Stockholders'
Agreement Amendment" appearing on page 6 of the Asset Purchase Agreement are
hereby deleted in their entirety.
(f) Section 2.1 of the Asset Purchase Agreement is amended by (i)
deleting the phrase "the shares of Common Stock to be issued by UTS (and
delivered by Newco) to Xxxxxxx and Xxxxx pursuant to the Instructions and in
accordance with Section 2.4 hereof, the $738,000 promissory note of" is hereby
deleted from the second, third and fourth lines of Section 2.1 of the Asset
Purchase Agreement on page 7 thereof and in lieu thereof inserting the
following: ", that certain $738,000 promissory note to be issued by Quest in
connection with the actions described in clauses (A) and (B) of Section 2.5.1
below and assumed by" and (ii) deleting the last line thereof and in lieu
thereof inserting the following: "of Quest set forth on Schedule 2.1 hereto and
each liability of Quest not in excess of $10,000 incurred after the date hereof
through the Closing Date in the ordinary course of Quest's business consistent
with its past practice (the "Stated Liabilities").".
(g) Section 2.4 of the Asset Purchase Agreement is amended as follows:
(i) Section 2.4.1 shall be deleted in its entirety and replaced by
the following: "[Intentionally Omitted.]"; and
(ii) Section 2.4.2 thereof shall be amended by deleting the first,
second and third lines thereof in their entirety and replacing such lines with
the
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following: "Until the Closing (as defined below), UTS shall make bi-weekly loans
to Quest to".
(h) Section 2.5 of the Asset Purchase Agreement is amended by deleting
the last three lines of Section 2.5.1 thereof in their entirety and replacing
such lines with the following: "and (C) Quest shall liquidate and shall
thereafter dissolve (collectively, the "Related Transactions")".
(i) Sections 2.6 and 2.7 of the Asset Purchase Agreement are each
deleted in their entirety and replaced by the following: "[Intentionally
Omitted.]".
(j) Section 3.1 of the Asset Purchase Agreement is hereby amended by
deleting in its entirety the first line of page 15 thereof and in lieu thereof
inserting the following: "10022, on October 13, 1995 (the "Closing Date"), or on
such".
(k) Section 3.2.14 of the Asset Purchase Agreement is deleted in its
entirety and replaced by the following: "[Intentionally Omitted.]".
(l) Section 3.3.2(B) of the Asset Purchase Agreement is hereby deleted
in its entirety and replaced by the following: "[Intentionally Omitted.]".
(m) Section 3.3.3 of the Asset Purchase Agreement is hereby deleted
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in its entirety and replaced by the following: "[Intentionally Omitted.]".
(n) Section 3.5 of the Asset Purchase Agreement is hereby deleted in
its entirety and replaced by the following: "[Intentionally Omitted.]".
(o) Section 3.6.2(B) of the Asset Purchase Agreement is hereby deleted
in its entirety and replaced by the following: "[Intentionally Omitted.]".
(p) Section 3.7 of the Asset Purchase Agreement is hereby deleted in
its entirety and replaced by the following: "[Intentionally Omitted.]".
(q) Each of Sections 4.23, 4.24, 4.25, 4.26 and 4.27 of the Asset
Purchase Agreement are hereby deleted in its entirety and replaced by the
following: "[Intentionally Omitted.]".
(r) Section 5.3 of the Asset Purchase Agreement is amended by deleting
the phrase "except for the PSC Approval, no" on the first line thereof replacing
such phrase with the following: "No".
(s) Each of Section 6.1.1 and Section 6.1.2 of the Asset Purchase
Agreement is hereby deleted in its entirety and replaced by the following:
"[Intentionally Omitted.]".
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(t) Section 7.1.7 through Section 7.1.11 inclusive and Section 7.2 of
the Asset Purchase Agreement are hereby deleted in their entirety and each of
such Sections is replaced with the following: "[Intentionally Omitted.]".
(u) Section 8.8 of the Asset Purchase Agreement is hereby deleted in
its entirety and replaced by the following: "[Intentionally Omitted.]".
(v) Section 9.1 of the Asset Purchase Agreement is hereby amended by
deleting Sections 9.1.2, 9.1.5, 9.1.6 and 9.1.9, in their entirety and placing
each of such Sections with the following "[Intentionally Omitted.]"; and Section
9.1.13 of the Asset Purchase Agreement is hereby amended and restated in its
entirety to read as follows: "9.1.13. Dissolution Certificates. The Dissolution
Certificates shall have been executed and delivered to Newco."
(w) Section 9.2 of the Asset Purchase Agreement is hereby amended by
deleting Sections 9.2.1, 9.2.3, and 9.2.8 thereof in their entirety and
replacing each of such Sections with the following: "[Intentionally Omitted.]".
(x) Section 11.3 of the Asset Purchase Agreement is hereby deleted in
its entirety and replaced with the following: "11.3 Security. The obligations
contained in Section 11.1 hereof shall be guaranteed by the Stockholders as more
fully set forth in the Guaranty Agreement and shall be secured by a pledge of
certain securities as set forth in the
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Guaranty Agreement.".
(y) All cross-references in the Asset Purchase Agreement to any
Sections and/or Exhibits deleted by this Amendment shall be considered deleted
from the Asset Purchase Agreement and the remaining text of any provision of the
Asset Purchase Agreement which contain such cross-reference shall be construed
as if such cross-reference did not exist.
(z) Exhibit G to the Asset Purchase Agreement is hereby amended and
restated in its entirety and shall be in the form of Annex A annexed to this
Amendment.
(aa) The heading of Section 2 shall be amended and restated to read as
follows: "SECTION 2. SALE OF ASSETS; CAPITALIZATION OF NEWCO; RELATED
TRANSACTIONS.".
(bb) The heading of Section 7 shall be amended and restated to read as
follows: "SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS.".
2. Waiver of Certain Closing Conditions. Newco and UTS hereby waive the
deliveries at the Closing contemplated by Section 3.3.1 of the Asset Purchase
Agreement; and Elliot and Xxxxx each hereby waives the deliveries at the Closing
contemplated by Section 9.1.6 of the Asset Purchase Agreement.
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3. Termination of Letter Agreement. With respect to that certain side
letter agreement dated as of June 13, 1995 executed and delivered in connection
with the execution and delivery of the Asset Purchase Agreement concerning the
treatment of certain of the Stated Liabilities, all of the parties' rights,
duties and obligations thereunder are hereby terminated of no further force and
effect, and such letter agreement shall be void ab initio.
4. Balance of Asset Purchase Agreement Unchanged. Other than as set forth
in this Amendment, the Asset Purchase Agreement shall remain unchanged and in
full force and effect.
5. Counterparts. If the Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute just one instrument.
6. Governing Law. The provisions of the Amendment and all the rights and
obligations of the parties hereunder shall be governed by and construed in
accordance with the substantive laws of the State of New York applicable to
agreements negotiated and executed wholly within such state, without regard to
its principles of conflicts of law. The parties hereto acknowledge that this
governing law provision shall replace Section 14.6 of the Asset Purchase
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
United Telemanagement Services, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, Chief Executive Officer
Quest United, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, Chairman of the Board
Quest America Management, Inc.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., President
Quest America, LP
By: Quest America Management, Inc.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., President
By: Quest West, Inc.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ Xxxxxx X. Xxxxx, Xx.
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J. Xxxxxx Xxxxxxx
/s/ J. Xxxxxx Xxxxxx
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