AMENDMENT
EXHIBIT
10.1
AMENDMENT
This
Amendment, dated as of December 16, 2009 (this “Amendment”), is to
the Purchase Agreement, dated as of November 2, 2009 (the “Purchase Agreement”),
by and between GLOBAL TELECOM & TECHNOLOGY AMERICAS, INC., a Virginia
corporation (the “Purchaser”);
GTT-EMEA, LIMITED, a company organized under the laws of the United Kingdom
(“Purchaser
Europe”); WBS CONNECT, L.L.C., a Colorado limited liability company
(“WBS LLC”);
TEK CHANNEL CONSULTING, LLC, a Colorado limited liability company (“TEK Channel”); WBS
CONNECT EUROPE LTD., a company formed under the laws of Ireland (“WBS Europe” and,
together with WBS LLC and TEK Channel, the “Companies”); Xxxxx
Charter, an individual (“Charter”); and
Xxxxxxx Xxxxxxxxx, an individual (“Xxxxxxxxx” and,
together with Charter, the “Sellers”). Any
capitalized terms used but not defined in this Amendment have the respective
meanings set forth in the Purchase Agreement.
Recitals:
A. Under
Section 10.5 of
the Purchase Agreement, the Purchase Agreement may be amended upon the execution
by the Purchaser and the Sellers of a written instrument.
B. The
parties would like to amend the Purchase Agreement as provided in this
Amendment.
Agreement:
In
consideration of the foregoing and the mutual promises contained herein and in
the Purchase Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Amendments.
(a) Section 1.1(b)(iii)
of the Purchase Agreement is hereby amended to change the reference therein to
“seven hundred fifty thousand dollars ($750,000)” to instead refer to “two
hundred fifty thousand dollars ($250,000)”.
(b) Section 1.1(b) of the
Purchase Agreement is hereby amended to add a new subsection (iv)
thereof, providing in its entirety as follows:
“the
Earnout U.S. Transaction Consideration, if any, under Section 1.11
(Earnout);”.
(c) Section 1.1(c) of the
Purchase Agreement is hereby amended to provide in its entirety as
follows:
“(b) The
Stock U.S. Transaction Consideration, Notes U.S. Transaction Consideration and
Earnout U.S. Transaction Consideration will each be subject to cancellation in
connection with satisfaction of any indemnification claims as provided in Section
7.6(a).”
(d) Section 1.4 of the
Purchase Agreement is hereby amended to delete subsection (x)
thereof.
(e) Section 1.6 of the
Purchase Agreement is hereby amended to provide in its entirety as follows:
“[reserved]” and all of the defined terms that are defined therein are hereby
deleted from the Purchase Agreement.
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(f) Section 1.10(b) of
the Purchase Agreement is hereby amended to change the reference therein to
“Notes U.S. Transaction Consideration” to instead refer to “Notes U.S.
Transaction Consideration or Earnout U.S. Transaction
Consideration”.
(g) Article I of the
Purchase Agreement is hereby amended to add a new Section 1.11 thereof
providing in its entirety as follows:
“1.11 Earnout.
(a) During
the time period starting on the Closing Date and ending on thirty-six (36) month
anniversary thereof, the Sellers, in their capacities as employees of the
Purchaser and WBS LLC, shall use commercially reasonable efforts to cause the
Purchaser and WBS LLC to collect in full each of the accounts receivables of WBS
LLC set forth on Schedule B hereto
(each, a “Relevant
Account Receivable”). As part of the U.S. Transaction
Consideration, the Sellers shall be entitled to receive cash payments from the
Purchaser (the “Earnout U.S. Transaction
Consideration”) equal to the amount, if any, by which: (i) the amount of
cash recovered by the Purchaser and WBS LLC with respect to each Relevant
Account Receivable during such time period (each, a “Recovered Amount”);
exceeds (ii) the GTTA Estimated Collectible Amount for such Relevant
Account Receivable set forth set forth next to its name on Schedule B; provided, however, that in no
event shall the aggregate Earnout U.S. Transaction Consideration amount exceed
five hundred thousand dollars ($500,000). The Purchaser and WBS LLC
shall be entitled to retain, without compensation to the Sellers, any Recovered
Amount with respect to any Relevant Account Receivable that is less than the
GTTA Estimated Collectible Amount for such Relevant Account
Receivable.
(b) The
Purchaser and WBS LLC shall fund their reasonable outside counsel fees
associated with collection of Relevant Accounts Receivable pursuant to Section 1.11(a),
which shall, except with respect to the WV Fiber matter (as described on Schedule B), be
solely at the expense of the Purchaser and WBS LLC and shall not reduce the
Earnout U.S. Transaction Consideration.
(c) The
Earnout U.S. Transaction Consideration, if any, with respect to each Relevant
Account Receivable shall be allocated fifty percent (50%) to Charter and fifty
percent (50%) to Hollander and shall be paid by the Purchaser to the Sellers, by
check or wire transfer of immediately available funds, promptly after such
receipt by the Purchaser or WBS LLC of the applicable Recovered
Amount.
(d) In
taking actions in connection with collection of Relevant Accounts Receivable:
(i) the Sellers shall act in a commercially reasonably manner in accordance with
the direction and oversight of their superiors within the Purchaser and WBS LLC;
(ii) without limiting the generality of the foregoing, in no event will any
Seller take any action that is reasonably likely to harm to the relationship of
the Purchaser and WBS LLC with the applicable account debtor; and (iii) the
Purchaser and WBS LLC shall act in a commercially reasonable
manner.”
(h) The last
sentence of Section
5.6(a) of the Purchase Agreement is hereby amended to delete therefrom
the following phrase: “but, as provided in the definition of NWC in Article IX, the
Companies Employees Severance Obligations shall not be included in the
NWC”.
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(i) Section 5.12 of the
Purchase Agreement is hereby amended to delete therefrom the following phrase:
“but, as provided in the definition of NWC in Article IX, up to
fifty-five thousand dollars ($55,000) of the Audit Expenses shall not be
included in the NWC”.
(j) Section 7.2(a) of the
Purchase Agreement is hereby amended to delete therefrom the following phrase:
“except to the extent accrued as a Current Liability included in the calculation
of the Final NWC”
(k) Section 7.6(a)(i) and
(ii) of the Purchase Agreement are hereby amended to provide in their entirety
as follows:
“(i) by
the Sellers under Section 7.2(a)
(Indemnification by the Sellers Concerning the Companies) shall be satisfied:
(A) first, by
cancellation of the Stock U.S. Transaction Consideration; (B) second, to the extent that
the Stock U.S. Transaction Consideration is insufficient to satisfy such Seller
Indemnification Payment Amount in full, by cancellation of the Notes U.S.
Transaction Consideration; (C)
third, to the extent that the Stock U.S. Transaction Consideration and
the Notes U.S. Transaction Consideration are insufficient to satisfy such Seller
Indemnification Payment Amount in full, by cancellation of the Earnout U.S.
Transaction Consideration; and (D) fourth, to the extent that
the Stock U.S. Transaction Consideration, the Notes U.S. Transaction
Consideration and the Earnout U.S. Transaction Consideration are insufficient to
satisfy such Seller Indemnification Payment Amount in full, by wire transfer of
immediately available funds of the unsatisfied part of the Seller
Indemnification Payment Amount by the Sellers, jointly and severally, to the
respective accounts of the Purchaser and Purchaser Europe (allocated between the
Purchaser and Purchaser Europe in proportion to the Transaction Consideration
for the Purchased Equity Interests that each is purchasing hereunder), in each
case not later than five (5) Business Days after determination of the Seller
Indemnification Payment Amount pursuant to this Article VII;
and
(ii) by
a Seller under Section
7.2(b) (Indemnification by each Seller Concerning Such Seller), shall be
satisfied: (A) first,
by cancellation of such Seller’s Stock U.S. Transaction Consideration; (B) second, to the extent that
such Seller’s Stock U.S. Transaction Consideration is insufficient to satisfy
such Seller Indemnification Payment Amount in full, by cancellation of such
Seller’s Notes U.S. Transaction Consideration; (C) third, to the extent that
such Seller’s Stock U.S. Transaction Consideration and Notes U.S. Transaction
Consideration are insufficient to satisfy such Seller Indemnification Payment
Amount in full, by cancellation of such Seller’s Earnout U.S. Transaction
Consideration; and (D) fourth, to the extent that
such Seller’s Stock U.S. Transaction Consideration, Notes U.S. Transaction
Consideration and Earnout U.S. Transaction Consideration are insufficient to
satisfy such Seller Indemnification Payment Amount in full, by wire transfer of
immediately available funds of the unsatisfied part of the Seller
Indemnification Payment Amount by such Seller to the respective accounts of the
Purchaser and Purchaser Europe (allocated between the Purchaser and Purchaser
Europe in proportion to the Transaction Consideration for the Purchased Equity
Interests that each is purchasing hereunder), in each case not later than five
(5) Business Days after determination of the Seller Indemnification Payment
Amount pursuant to this Article VII.”
(l) The first
sentence of Section
7.6(c) of the Purchase Agreement is hereby amended to delete the phrase
“to Section
1.6(c) or” therefrom.
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(m) Sections 1.3(b)(iii)
and Section
10.1(ii) of the Purchase Agreement are each hereby amended to change the
reference therein to “twenty-five thousand dollars ($25,000)” to instead refer
to “thirty-one thousand five hundred dollars ($31,500)”.
(n) The table
entitled “U.S. Transaction Consideration” in Schedule A to the
Purchase Agreement is hereby amended to change the column therein entitled
“Notes U.S. Transaction Consideration” to provide in its entirety as
follows:
|
Notes
U.S. Transaction Consideration
|
||
|
$125,000
|
||
|
$125,000
|
||
|
$250,000
|
(o) The
Purchase Agreement is hereby revised to add thereto a new Schedule B consisting
of Schedule B
to this Amendment.
(p) Exhibits A-1 and
A-2 to the
Purchase Agreement are hereby amended to consist of Exhibit A-1 and A-2, respectively, to
this Amendment.
2. Governing
Law. THIS AMENDMENT SHALL BE CONSTRUED, PERFORMED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO
ANY CHOICE OR CONFLICT OF LAW PROVISION (WHETHER OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
3. Counterparts. This
Amendment may be signed in any number of counterparts, each of which (when
executed and delivered) shall constitute an original instrument, but all of
which together shall constitute one and the same instrument,
respectively. Counterparts may be delivered via facsimile or other
electronic transmission and any counterpart so delivered shall be deemed to have
been duly and validly delivered and be valid and effective for all
purposes.
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of page intentionally left blank; signature page follows]
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IN
WITNESS WHEREOF, the parties have entered into Amendment as of the date written
above.
|
THE
PURCHASER:
|
THE
SELLERS:
|
||||
|
GLOBAL
TELECOM & TECHNOLOGY AMERICAS, INC.
|
|||||
| /s/ Xxxxx Charter | |||||
|
By:
|
/s/ Xxxxx Xxxxx |
Xxxxx
Charter
|
|||
|
Name:
|
Xxxxx XxXxx | ||||
|
Title:
|
Secretary and General Counsel | ||||
| /s/ Xxxxxxx Xxxxxxxxx | |||||
|
Xxxxxxx
Xxxxxxxxx
|
|||||
0
Xxxxxxx
X-0:
Charter
Seller Note
[attached]
6
Exhibit
A-2:
Xxxxxxxxx
Seller Note
[attached]
7
