EXHIBIT 10.2
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FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT (the "Amendment"), dated as
of July 6, 2001, is made and entered into by and among Jabber, Inc. f/k/a
Xxxxxx.xxx, Inc. (the "Company"), Xxxx Interactive Services, Inc. ("Xxxx") and
France Telecom Technologies Investissements f/k/a France Telecom Technologies
(the "Investor").
Recitals
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A. The Company, Xxxx and the Investor are parties to a Note Purchase
Agreement dated as of May 2, 2001 (the "Purchase Agreement").
B. The Company, Xxxx and the Investor entered into the Purchase Agreement
in connection with the Investor's proposed investment in the Company and the
Investor's acquisition of certain capital stock of the Company as outlined in
the Series B Convertible Preferred Stock Summary of Terms (the "Summary of
Terms").
C. The Company, Xxxx and the Investor desire to amend the Purchase
Agreement as set forth herein, and to ratify and confirm the Purchase Agreement
as so amended.
Agreement
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NOW, THEREFORE, in consideration of the premises and the mutual agreements,
representations and warranties herein set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this
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Amendment shall have the meanings given thereto in the Purchase Agreement.
2. Agreements and Amendments to the Purchase Agreement.
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a. The Company, Xxxx and the Investor confirm and agree that, for
the purposes of clarification and the avoidance of doubt, the defined term
"Transaction Document" in the Purchase Agreement includes (i) the Purchase
Agreement, (ii) the Note, (iii) the Security Agreement, (iv) the Pledge
Agreement, (v) the Guaranty, (vi) the Stock Purchase Agreement dated as of July
6, 2001 among the Company, Xxxx and the Investor, (vii) the Stockholders
Agreement dated as of July 6, 2001 among the Company, the Investor and the
parties set forth on Schedule A thereto, (viii) the Series A-1 and Series B
Convertible Preferred Stock Investor Rights Agreement dated as of July 6, 2001
among the Company and the parties set forth on Exhibit A thereto, (ix) the
Amended Certificate of Designation of Series A, (x) the Amended Certificate of
Designation of Series B, (xi) the Amended Certificate of Designation of Series C
and (xii) all other agreements, documents or instruments executed and delivered
by or on behalf
of the Company or Xxxx in connection with the transactions contemplated by any
of the foregoing. The parties acknowledge that the Company has changed its
corporate name to Jabber, Inc. and that the Investor has changed its corporate
name to France Telecom Technologies Investissements.
b. The Purchase Agreement is hereby amended by adding a new Section
4.8 thereto as follows:
"4.8 Notices. The Company and Xxxx shall promptly give notice
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to the Investor of:
(a) the occurrence of an Event of Default and any event or
occurrence that with the passage of time, the giving of notice,
or both, would be reasonably likely to constitute an Event of
Default;
(b) any litigation, investigation or proceeding that may exist
at any time between the Company and/or Xxxx and any governmental
authority or any other person, that could reasonably be expected
to have a Material Adverse Effect on either the Company or Xxxx;
(c) any litigation or proceeding that questions the validity or
enforceability of any Transaction Documents; and
(d) any development, occurrence or event that has had or could
reasonably be expected to have a Material Adverse Effect on
either Xxxx or the Company."
c. The Purchase Agreement is hereby amended by deleting Section
6.1(b) therefrom and substituting the following therefor:
"b) Failure of the Company or Xxxx to perform or observe any
covenant, agreement or obligation (monetary, performance or
otherwise) as required by any Transaction Document and
continuation of such failure for a period of three (3) days
following written notice from the Investor."
d. The Purchase Agreement is hereby amended by deleting Section 6.4
therefrom.
e. The Purchase Agreement is hereby amended by adding a new Section
7.9 thereto as follows:
"7.9 Release of Security Documents; Termination of Covenants.
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Notwithstanding the payment in full of the principal and accrued
interest under the Note, this Agreement may not be cancelled and
shall not be terminated, and this Agreement remains in full force
and effect, until the later of (A) the payment in full of the
principal and interest on the Note,
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and (B) the expiration of the term of the Guarantor's obligations
with respect to the representations, warranties, covenants and
indemnifications set forth in Section 6 of the Stock Purchase
Agreement (the "Section 6 Term"), or, if there are any
outstanding demands, claims, causes of action or assessments
which have been asserted against the Guarantor prior to the
termination of the Section 6 Term, following resolution of all
such demands, claims, causes of action or assessments."
3. Representations and Warranties.
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a. Each of the Company and Xxxx hereby remakes and restates each of
the representations and warranties of such party in the Purchase Agreement
effective as of the date of this Amendment, which representations and warranties
are incorporated herein by reference as if fully set forth.
b. Each of the Company and Xxxx hereby further represents and
warrants that this Amendment has been duly authorized, executed and delivered by
each of the Company and Xxxx, and that this Amendment is binding upon and
enforceable against each of the Company and Xxxx in accordance with its terms.
4. Miscellaneous Provisions.
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a. This Amendment is an amendment to the Purchase Agreement, and the
Purchase Agreement as amended by this Amendment is hereby ratified, approved and
confirmed in each and every respect, and the parties hereto agree that the
Purchase Agreement remains in full force and effect in accordance with its
terms. Nothing contained herein shall be construed to deem paid the Note or to
release or terminate, in whole or in part, the Security Agreement, the Pledge or
the Guaranty or any lien, pledge or security interest granted pursuant thereto.
All references to the Purchase Agreement in each of the Transaction Documents
and in any other document or instrument shall hereafter be deemed to refer to
the Purchase Agreement as amended hereby.
b. This Amendment shall be governed by and construed in accordance
with the laws of the State of Colorado, excluding that body of law relating to
conflict of laws.
c. This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
d. The execution, delivery and effectiveness of this Amendment shall
not operate or be deemed to operate as a waiver of any rights, powers or
remedies of the Investor under the Purchase Agreement or any other Transaction
Document or constitute a waiver of any provision thereof.
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e. This Amendment shall be binding upon and inure to the benefit of
the Company, Xxxx and the Investor, and their respective successors and assigns
permitted by the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
The Company:
JABBER, INC.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Chief Executive Officer
XXXX:
XXXX INTERACTIVE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Senior Vice President, Corporate Development
The Investor:
FRANCE TELECOM TECHNOLOGIES INVESTISSEMENTS
By: /s/ Xxxx Cozanet
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Name: Xxxx Cozanet
Title: Chief Executive Officer
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