WAIVER AND AGREEMENT
This Waiver and Agreement is made this l2th day of October,1999, by Vianet
Technologies, Inc. ("Vianet"), Vianet Labs, lnc. ("Labs"), Infinop Holdings,
Inc. ("lnfinop") and Xxxx, Xxxxx and Xxxxxx Xxxxxx (the "Principal
Stockholders"), with respect to the Agreement and Plan of Merger (the "Merger
Agreement"), dated August 31,1999, among Vianet, Labs, Infinop and the principal
Stockholder. The parties agree as follows:
1. Capitalized terms used but not defined herein shall not have the
meanings ascribed to them in the Merger Agreement.
2. Section 4(b)(1) of the Disclosure Schedule hereby is amended to read in
its entirety as follows:
The holders of record of the Infinop Shares are as follows:
Name Number of Shares Held Certificate Number
Xxxxxx Xxxxxxxx 187,500 6
Xxxxxxx Xxxxxxxx 150,000 7
Xxxxxxxx Xxxxx 700,000 8
Xxxxxx X. Xxxxxx, Xx. 37,500 9
Albinias Kurkulis 75,000 10
Xxxxxx Xxxxxx 37,500 11
Xxxx Xxxxxxx 37,500 12
Xxxxxxx Xxxx 75,000 13
Xxxx Xxxxxx 37,500 14
Xxxxxxx Xxxxxx 300,000 15
Xxxx Xxxxxx 1,640,000 16
Xxxxxx Xxxxxx 1,230,000 17
Xxxxx Xxxxxx 1,230,000 18
Xxxxxxx Lzbowsky 37,500 19
Xxxxxxx XxXxxxx 100,000 20
Xxxx Xxxxxxxx 150,000 21
Xxxx Xxxxxx 528,292 22
C2, LLC 132,036 23
Vision Capital Parbners LLC 132,036 24
Total 6,817,364
3. Section 4(b)(iii) of the Disclosure Schedule hereby is amended to read
in its entirety as follows:
Infinop has issued the following securities convertible into shares of its
common stock:
Name of Holder Description of Security
Xxxxxxx Xxxxxxxx $150,000 Infinop Holdings, Inc. 8%
Convertible Debentures due September 30,
2002
ANDA Partinership $700,000 Infinop Holdings, Inc. 6%
Convertible Debenture due September 30,
2002
ANDA Partnership $250,000 Infinop Holdings, Inc. 6%
Convertible Debenture due September 30,
2002
Xxxxxx Xxxxx $25,000 Infinop Holdings, Inc. 8%
Convertible Debenture due September 30,
2002
4. The parties agree that Infinop will not obtain consents or waivers or
otherwise take the actions described in Section 4(c) of the Disclosure Schedule
with respect to the following agreements identified in Section 4(c) of the
disclosure Schedule:
(a) The Licensing Agreement, dated June 25,1998, between INFInet Op. Inc.
and VideoStream International, Inc.
(b) The Compression Product development Agreement, dated April 13,1998,
between Xxxx Xxxxx and INFInet Op. Inc.
(c) The Teaming Agreement dated March 16,1998 between Betac Corporation and
Infinop, Inc.
(d) The Software Development Agreement, dated July 13,1998, between
Spacebata LLC and INFInet Op. Inc.
(e) The Software License and Joint Marketing Agreement, dated June 5,1996,
between Peak Technologies, Inc. and Infinop, Inc.
(f) The Sales Representation Agreement, dated February 12,1999, between
Infinop, Inc. and Beijing Superstar Electronic Company of China.
(g) The Joint Venture Agreement, dated June 27,1999, between China Ministry
of Science & Technology, Southwest Information Center, Infinop, Amersia and
Beijing Superstar Electronic Corporation of China.
(h) The Compression Products development Agreement dated August 5,1999,
between WaveLogic, Inc. a d INFInet Op, Inc.
Vianet and Labs hereby waive any breach of the representations and
warranties of Infinop and the Principal Stockholders contained in Section 4(c)
of the Merger Agreement arising out of the failure to obtain such consents or
waivers or take such actions and any claim for indemnification arising under the
Merger Agreement as the result of such failure.
5. The information reflected in ss.4(b)(b) of the disclosure Schedule
hereby is modified as follows:
Mat Xxxxxx and Xaidong Wu have options to acquire 20,000 shares each. Xxxx
Xxxx recently left his employment with Infinop. At the time, he held vested
options to acquire 4,168 shares. A11 unvested options held by him have been
forfeited pursuant to his option agreement with the Infinop. The total number of
shares issuable upon the exercise of options is 2,727,410.
6. The parties acknowledge that, as of the date of the Merger Agreement,
(a) Infinop was not in good standing under the laws of the State of Delaware,
(b) Computer and Information Science, Inc. was not validly existing or in good
standing under the laws of the State of Kansas and was not in good standing
under the laws of the State of Texas, and (c) INFInet Op, Inc. was not in good
standing under the laws of the State of Texas, in each case, due to the failure
to timely file annual franchise tax or similar reports and/or pay any franchise
or other similar taxes due and owing. In addition, the parties acknowledge that
as of that date of the Merger Agreement, Infinop was not qualified to transact
business as a foreign corporation in the State of Texas. These matters
constitute a breach of he representations and warranties of Infinop and the
Principal Stockholders contained in Section 4(a) and Section 4(k) of the Merger
Agreement. Vianet and Labs hereby waive any breach of such representations and
warranties arising out of such matters and any claim for indemnification arising
under the Merger Agreement as the result of such matters. Infinop and the
Principal Stockholders represent and warrant to Vianet and Labs that the
representations and warranties contained in Section 4(a) and Section 4(k) of the
Merger Agreement are true and correct on and as of the date hereof.
[Schedule follows on next page]
EXECUTED as of the date first above written:
VIANET TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chairman
VIANET LABS, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chairman
INFINOP HOLDINGS, INC.
BY: /s/ Xxxx X. Xxxxxx
NAME: Xxxx X. Xxxxxx
TITLE: President
/s/ Xxxx X. Xxxxxx
Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
