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 Xxxxxx Xxxxxx (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, Xxxxxx Xxxxxx 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.
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 Xxxxxx Xxxxxx 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 Xxxxxx
Xxxxxx 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);
2
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.
3
(b) Xxxxxx Xxxxxx represents and warrants that:
(i) This Agreement constitutes the legal, valid, and binding obligation
of Xxxxxx, enforceable against him in accordance with its terms.
(ii) Neither the execution and delivery of this Amendment No. 1 by
Xxxxxx nor the consummation or performance by Xxxxxx 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 Xxxxxx is a party.
(iii) Xxxxxx Xxxxxx 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 Xxxxxx or (ii) a transfer at death of ownership interests in
the Buyer to Xxxxxx'x spouse and/or children, or to one or more trusts for the
benefit of Xxxxxx'x 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).
4
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.
5
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.
6
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: Xxxxxx Xxxxxx
000 Xxxxxxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
With copy to: Xxxxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxxxx & Xxxx LLP
00 XxXxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
If to Xxxxxx: Xxxxxx Xxxxxx
000 Xxxxxxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
With copy to: Xxxxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxxxx & Wood LLP
00 XxXxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
If to the Seller:
EasyLink Services Corporation
00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
With copy to: Xxxxx Xxxxxxxx, Esq.
Executive Vice President and General Counsel
EasyLink Services Corporation
00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
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.
7
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/Xxxxx Xxxxxxxx By: s/Xxxxxx X. Xxxxxxxx
---------------- --------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: EVP and General Counsel Title: Chairman, President and
Chief Executive Officer
ATTEST NJ DOMAINS, LLC, BUYER
By: ______________________ By: s/X. Xxxxxx
-----------
Name: Name: X. Xxxxxx
Title: Title: Manager
WITNESS XXXXXX XXXXXX
______________________ s/X. Xxxxxx
-----------
Xxxxxx Xxxxxx
8
SCHEDULE 1
Schedule 1 has been omitted, but will be furnished supplementally to the
Commission upon request.
9
EXHIBIT A TO AMENDMENT NO. 1
[See Exhibit 10.2 for form of Secured Promissory Note]
10
EXHIBIT B TO AMENDMENT NO. 1
[See Exhibit 10.3 for form of Security Agreement]
11
EXHIBIT C TO AMENDMENT NO. 1
[See Exhibit 10.4 for form of Guaranty]
12
Exhibit D-1 to Amendment No. 1
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
-----------------------------------------------------------------------
A. NAME & PHONE OF CONTACT AT FILER [optional]
-----------------------------------------------------------------------
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
----- ----
----- ----
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or combine names
------------------------------------------------------------------------------------------------------------------------------------
OR 1a. ORGANIZATION'S NAME
NJ Domains LLC
----- ------------------------------------------------------------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------ -------------------------------- -------- ---------------- ------------
1c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
c/o Xxxxxx Xxxxxx, 000 Xxxxxxxxxxxxx Xxxx Xxxxxxx XX 00000
------------------------ ------------- --------------------- -------------------------------- ------------------------- ------------
1d. TAX ID #: SSN OR EIN ADD'L INFO 1e. TYPE OF 1f. JURISDICTION OF 1g. ORGANIZATIONAL ID #, if any
RE ORGANIZATION ORGANIZATION
ORGANIZATION LLC New Jersey
DEBTOR |_| NONE
------------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names
------------------------------------------------------------------------------------------------------------------------------------
OR 2a. ORGANIZATION'S NAME
----- ----------------------------------------------------------------------------------------------------------------- ------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
----- ------------------------------------------------------ -------------------------------- ------------------------- ------------
2c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
------------------------ ------------- --------------------- -------------------------------- ------------------------- ------------
2d. TAX ID #: SSN OR EIN ADD'L INFO 2e. TYPE OF 2f. JURISDICTION OF 2g. ORGANIZATIONAL ID #, if any
RE ORGANIZATION ORGANIZATION
ORGANIZATION
DEBTOR |_| NONE
------------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured party name (3a or 3b)
------------------------------------------------------------------------------------------------------------------------------------
3a. ORGANIZATION'S NAME
EasyLink Services Corporation
OR
----- ------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------ -------------------------------- -------- ---------------- ------------
3c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
00 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following collateral:
The Debtor's portfolio of Internet domain names transferred from the Secured
Party to the Debtor pursuant to the Domain Portfolio Purchase Agreement dated
December 23, 2004, as amended; all of Debtor's Accounts relating to or arising
out of the Portfolio or the use of any Names within the Portfolio; Debtor's
Books; all of Debtor's commercial tort claims relating to or arising out of
the Portfolio or the use of any Names within the Portfolio; all of Debtor's
General Intangibles relating to or arising out of the Portfolio or the use of
any Names within the Portfolio; and the proceeds and products, whether
tangible or intangible, of any of the foregoing, all as more fully described
and defined on Schedule I attached hereto.
------------------------------------------------------------------------------------------------------------------------------------
5. ALTERNATIVE DESIGNATION (if applicable): |_| LESSEE/LESSOR |_| CONSIGNEE/CONSIGNOR |_| BAILEE/XXXXXX |_| SELLER/BUYER
|_| AG. LIEN |_| NON-UCC FILING
------------------------------------------------------------------------------------------------------------------------------------
6. |_| This FINANCING STATEMENT is to be filed (for 7. Check to REQUEST SEARCH |_| All Debtors |_| Debtor 1 |_| Debtor 2
record) (or recorded) in the REAL ESTATE REPORT(S) on Debtor(s)
RECORDS. Attach Addendum [if applicable] [ADDITIONAL FEE] [optional]
------------------------------------------------------------------------------------------------------------------------------------
8. OPTIONAL FILER REFERENCE DATA
------------------------------------------------------------------------------------------------------------------------------------
FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV.
07/29/98)
UCC FINANCING STATEMENT ADDENDUM
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
----------------------------------------------------------------------------------
9. NAME OF FIRST DEBTOR (1a or 1b) ON RELATED FINANCING STATEMENT
-------------------------------------------------------------------------------
OR 9a. ORGANIZATION'S NAME
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
9b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME, SUFFIX
----------------------------------------------------------------------------------
10. MISCELLANEOUS :
----------------------------------------------------------------------------------
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
------------------------------------------------------------------------------------------------------------------------------------
11. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (11a or 11b) - do not abbreviate or combine names
----------------------------------------------------------------------------------------------------------------- ------------
OR 11a. ORGANIZATION'S NAME
----- ----------------------------------------------------------------------------------------------------------------- ------------
11b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------ -------------------------------- -------- ---------------- ------------
11c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
-------------------------- ------------- --------------------- -------------------------------- ------------------------------------
11d. TAX ID #: SSN OR EIN ADD'L INFO 11e. TYPE OF 11f. JURISDICTION OF 11g. ORGANIZATIONAL ID #, if any
OR EIN RE ORGANIZATION ORGANIZATION
ORGANIZATION
DEBTOR |_| NONE
------------------------------------------------------------------------------------------------------------------------------------
12. ADDITIONAL SECURED PARTY'S or ASSIGNOR S/P'S NAME - insert only one name (12a or 12b)
------------------------------------------------------------------------------------------------------------------------------
OR 12a. ORGANIZATION'S NAME
----- ------------------------------------------------------ -------------------------------- ------------------------- ------------
12b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------ -------------------------------- -------- ---------------- ------------
12c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
------------------------------------------------------------ -----------------------------------------------------------------------
13. This FINANCING STATEMENT covers |_| timber to be cut or 16. Additional collateral description:
|_| as-extracted collateral, or is filed as a |_| fixture filing.
14. Description of real estate.
15. Name and address of a RECORD OWNER of above-described real estate
(if Debtor does not have a record interest):
-----------------------------------------------------------------------
17. Check only if applicable and check only one box.
Debtor is a |_| Trust or |_| Trustee acting with respect to property
held in trust or |_| Decedent's Estate
----------------------------------------------------------------------
18. Check only if applicable and check only one box.
|_| Debtor is a TRANSMITTING UTILITY
|_| Filed in connection with a Manufactured-Home Transaction -
effective 30 years
|_| Filed in connection with a Public-Finance Transaction -
effective 30 years
------------------------------------------------------------------------------------------------------------------------------------
FILING OFFICE COPY -- NATIONAL UCC FINANCING STATEMENT ADDENDUM (FORM UCC1Ad) (REV. 07/29/98)
2
EXHIBIT D-1 TO AMENDMENT NO. 1 CONTINUED
Schedule I to UCC-1 Financing Statement
Debtor: Secured Party:
------ -------------
NJ Domains LLC EasyLink Services Corporation
x/x Xxxxxx Xxxxxx 00 Xxxxxxxxxxxxx Xxxx
000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Xxxxxxx, Xxx Xxxxxx 00000
"Collateral" means, with respect to the Debtor, all of the Debtor's now
owned or hereafter acquired right, title, and interest in and to each of the
following:
(1) the Portfolio and the Shares;
(2) all of Debtor's Accounts relating to or arising out of the
Portfolio or the use of any Names within the Portfolio;
(3) Debtor's Books;
(4) all of Debtor's commercial tort claims relating to or arising out
of the Portfolio or the use of any Names within the Portfolio;
(5) all of Debtor's General Intangibles relating to or arising out of
the Portfolio or the use of any Names within the Portfolio; and
(6) the proceeds and products, whether tangible or intangible, of any
of the foregoing, including proceeds of insurance covering any or all
of the foregoing, and any and all Accounts, Books, Deposit Accounts,
General Intangibles, Investment Property, Negotiable Collateral, money,
or other tangible or intangible property resulting from the sale,
exchange, collection, or other disposition of any of the foregoing or
any lease, license or other use of any of the Names, or any portion
thereof or interest therein, and the proceeds thereof.
For purposes of this Financing Statement, capitalized terms are defined as
follows:
"Account" means any "account" (as that term is defined in the New
Jersey Uniform Commercial Code), and any and all supporting obligations in
respect thereof.
"Books" means the Debtor's now owned or hereafter acquired books and
records (including all of its records indicating, summarizing, or evidencing its
assets (including the Collateral) or liabilities, all of its records relating to
its business operations or financial condition, and all of its goods or General
Intangibles related to such information).
"Deposit Account" means any "deposit account" (as that term is defined
in the New Jersey Uniform Commercial Code).
"General Intangibles" means "general intangibles" (as that term is
defined in the New Jersey Uniform Commercial Code), (including payment
intangibles, contract rights, rights to payment, rights arising under common
law, statutes, or regulations, choses or things in action, goodwill, patents,
trade names, trade secrets, trademarks, servicemarks, copyrights, blueprints,
drawings, purchase orders, customer lists, rights to payment and other rights
under any royalty, leasing, Internet domain redirect or use agreements or lease
or licensing agreements, infringement claims, computer programs, information
contained on computer disks or tapes, software, literature, reports, catalogs,
insurance premium rebates, tax refunds, and tax refund claims), and any and all
supporting obligations in respect thereof, and any other personal property other
than Accounts, Deposit Accounts, goods, Investment Property, and Negotiable
Collateral.
Page 1 of 2
"Investment Property" means "investment property" (as that term is
defined in the New Jersey Uniform Commercial Code), and any and all supporting
obligations in respect thereof.
"Name" means each Internet domain name transferred by the Secured Party
and its affiliates to Debtor pursuant to the Domain Portfolio Purchase Agreement
dated December 23, 2004, as amended.
"Negotiable Collateral" means letters of credit, letter of credit
rights, instruments, promissory notes, drafts, documents, and chattel paper
(including electronic chattel paper and tangible chattel paper), and any and all
supporting obligations in respect thereof.
"Portfolio" means all of the Names. The Portfolio comprises all or
substantially all of the Internet domain names registered by or for the benefit
of the Debtor.
"Shares" means all of the Debtor's and its affiliates' shares of
capital stock of Xxxxx.xxx, Inc., a Delaware corporation, together with all of
the Debtor's and its affiliates' shares of capital stock of Xxxx.xxx, Inc., a
New Jersey corporation.
Page 2 of 2
Exhibit D-2 to Amendment No. 1
UCC FINANCING STATEMENT AMENDMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
-----------------------------------------------------------------------
A. NAME & PHONE OF CONTACT AT FILER [optional]
-----------------------------------------------------------------------
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
----- ----
----- ----
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
------------------------------------------------------------------------------------------------------------------------------------
1a. INITIAL FINANCING STATEMENT FILE 1b. This FINANCING STATEMENT AMENDMENT IS
to be filed [for record] (or recorded) in the
2275916-0 |_| REAL ESTATE RECORDS
------------------------------------------------------------------------------------------------------------------------------------
2. TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to security interest(s) of the
Secured Party authorizing this Termination Statement.
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3. CONTINUATION: Effectiveness of the Financing Statement identified above with respect to security interest(s) of the Secured Party
authorizing this Continuation Statement is continued for the additional period provided by applicable law.
------------------------------------------------------------------------------------------------------------------------------------
4. ASSIGNMENT (full or partial): Give name of assignee in item 7a or 7b and address of assignee in item 7c, and also give name of
assignor in item 9.
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5. AMENDMENT (PARTY INFORMATION): This Amendment affects: |_| Debtor or |_| Secured Party of record. Check only one of these two
boxes.
Also check one of the following three boxes and provide appropriate information in items 6 and/or 7.
|_| CHANGE NAME and/or address: Please refer to the |_| DELETE name: Give record name |_| ADD name: Complete item 7a or
detailed instructions in regards to changing the to be deleted in item 6a or 6b 7b, and also item 7c; also
name/address of a party complete items 7e-7g (if
applicable)
------------------------------------------------------------------------------------------------------------------------------------
6. CURRENT RECORD INFORMATION:
---------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
6a. ORGANIZATION'S NAME
OR
----- ------------------------------------------------------ -------------------------------- ------------------------- ------------
6b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
7. CHANGED (NEW) OR ADDED INFORMATION:
------------------------------------------------------------------------------------------------------------------------------
7a. ORGANIZATION'S NAME
OR
----- ------------------------------------------------------ -------------------------------- ------------------------- ------------
7b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------ -------------------------------- -------- ---------------- ------------
7c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
------------------------ ------------- --------------------- -------------------------------- ------------------------- ------------
7d. SEE INSTRUCTIONS ADD'L INFO 7e. TYPE OF 7f. JURISDICTION OF 7g. ORGANIZATIONAL ID #, if any
RE ORGANIZATION ORGANIZATION
ORGANIZATION
DEBTOR |_| NONE
------------------------------------------------------------------------------------------------------------------------------------
8. AMENDMENT (COLLATERAL CHANGE): check only one box:
Describe collateral |_| deleted or |_| added, or give entire |X| restated collateral description, or describe collateral |_|
assigned.
THE DEBTOR'S PORTFOLIO OF INTERNET DOMAIN NAMES TRANSFERRED FROM THE SECURED PARTY TO THE DEBTOR PURSUANT TO THE DOMAIN PORTFOLIO
PURCHASE AGREEMENT DATED DECEMBER 23, 2004; ALL OF DEBTOR'S ACCOUNTS RELATING TO OR ARISING OUT OF THE PORTFOLIO OR THE USE OF ANY
NAMES WITHIN THE PORTFOLIO; DEBTOR'S BOOKS; ALL OF DEBTOR'S COMMERCIAL TORT CLAIMS RELATING TO OR ARISING OUT OF THE PORTFOLIO OR
THE USE OF ANY NAMES WITHIN THE PORTFOLIO; ALL OF DEBTOR'S GENERAL INTANGIBLES RELATING TO OR ARISING OUT OF THE PORTFOLIO OF THE
USE OF ANY NAMES WITHIN THE PORTFOLIO; AND THE PROCEEDS AND PRODUCTS, WHETHER TANGIBLE OF INTANGIBLE, OF ANY OF THE FOREGOING, ALL
AS MORE FULLY DESCRIBED AND DEFINED ON SCHEDULE I ATTACHED HERETO.
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9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of assignor, if this is an Assignment). If this is an Amendment
authorized by a Debtor which adds collateral or adds the authorizing Debtor, or it this is a Termination authorized by a Debtor,
check here |_| and enter name of DEBTOR authorizing this Amendment.
------------------------------------------------------------------------------------------------------------------------------
9a. ORGANIZATION'S NAME
EASYLINK SERVICES CORPORATION
OR
------------------------------------------------------------------------------------------------------------------------------
9b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
10. OPTIONAL FILER REFERENCE DATA
------------------------------------------------------------------------------------------------------------------------------------
International Association of Commercial Administrators (IACA)
FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT (FORM UCC3) (REV. 05/22/02)
EXHIBIT D-2 TO AMENDMENT NO 1 CONTINUED
Schedule I to UCC-3 Amendment
Debtor: Secured Party:
------ -------------
NJ Domains LLC EasyLink Services Corporation
x/x Xxxxxx Xxxxxx 00 Xxxxxxxxxxxxx Xxxx
000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Xxxxxxx, Xxx Xxxxxx 00000
"Collateral" means, with respect to the Debtor, all of the Debtor's now
owned or hereafter acquired right, title, and interest in and to each of the
following:
(1) the Portfolio and the Shares;
(2) all of Debtor's Accounts relating to or arising out of the
Portfolio or the use of any Names within the Portfolio;
(3) Debtor's Books;
(4) all of Debtor's commercial tort claims relating to or arising out
of the Portfolio or the use of any Names within the Portfolio;
(5) all of Debtor's General Intangibles relating to or arising out of
the Portfolio or the use of any Names within the Portfolio; and
(6) the proceeds and products, whether tangible or intangible, of any
of the foregoing, including proceeds of insurance covering any or all
of the foregoing, and any and all Accounts, Books, Deposit Accounts,
General Intangibles, Investment Property, Negotiable Collateral, money,
or other tangible or intangible property resulting from the sale,
exchange, collection, or other disposition of any of the foregoing or
any lease, license or other use of any of the Names, or any portion
thereof or interest therein, and the proceeds thereof.
For purposes of this Financing Statement, capitalized terms are defined as
follows:
"Account" means any "account" (as that term is defined in the New
Jersey Uniform Commercial Code), and any and all supporting obligations in
respect thereof.
"Books" means the Debtor's now owned or hereafter acquired books and
records (including all of its records indicating, summarizing, or evidencing its
assets (including the Collateral) or liabilities, all of its records relating to
its business operations or financial condition, and all of its goods or General
Intangibles related to such information).
"Deposit Account" means any "deposit account" (as that term is defined
in the New Jersey Uniform Commercial Code).
"General Intangibles" means "general intangibles" (as that term is
defined in the New Jersey Uniform Commercial Code), (including payment
intangibles, contract rights, rights to payment, rights arising under common
law, statutes, or regulations, choses or things in action, goodwill, patents,
trade names, trade secrets, trademarks, servicemarks, copyrights, blueprints,
drawings, purchase orders, customer lists, rights to payment and other rights
under any royalty, leasing, Internet domain redirect or use agreements or lease
or licensing agreements, infringement claims, computer programs, information
contained on computer disks or tapes, software, literature, reports, catalogs,
insurance premium rebates, tax refunds, and tax refund claims), and any and all
supporting obligations in respect thereof, and any other personal property other
than Accounts, Deposit Accounts, goods, Investment Property, and Negotiable
Collateral.
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"Investment Property" means "investment property" (as that term is
defined in the New Jersey Uniform Commercial Code), and any and all supporting
obligations in respect thereof.
"Name" means each Internet domain name transferred by the Secured Party
and its affiliates to Debtor pursuant to the Domain Portfolio Purchase Agreement
dated December 23, 2004, as amended.
"Negotiable Collateral" means letters of credit, letter of credit
rights, instruments, promissory notes, drafts, documents, and chattel paper
(including electronic chattel paper and tangible chattel paper), and any and all
supporting obligations in respect thereof.
"Portfolio" means all of the Names. The Portfolio comprises all or
substantially all of the Internet domain names registered by or for the benefit
of the Debtor.
"Shares" means all of the Debtor's and its affiliates shares of capital
stock of Xxxxx.xxx, Inc., a Delaware corporation, together with all of the
Debtor's and its affiliates shares of capital stock of Xxxx.xxx, Inc., a New
Jersey corporation.
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