Exhibit 10.61
Amendment No. 2
to
Asset Purchase Agreement
This Agreement (this "Agreement") is dated as of March 15, 2002, is among
Xxxxx.xxx, Inc., a Florida corporation ("Qorus"), TMT Holdings, Inc., a Delaware
corporation and a wholly owned subsidiary of Qorus ("TMT"), Aelix, Inc., a
Delaware corporation and a wholly owned subsidiary of Qorus ("Aelix"), and Xxxxx
Communications, Inc., a Delaware corporation ("Xxxxx"), and is based upon the
mutual agreement of the parties as detailed below, and constitutes Amendment No.
1 to that certain Asset Purchase Agreement (the "Asset Purchase Agreement"),
dated as of May 29, 2001, among Qorus, TMT, and Aelix, as sellers, and Xxxxx, as
buyer. All defined terms used herein that are not defined herein are defined in
the Asset Purchase Agreement and are used herein with the same meanings as
ascribed to them therein.
WHEREAS, Pursuant to the Asset Purchase Agreement, Xxxxx purchased Qorus'
intelligent message communications service business (the "Business");
WHEREAS, Xxxxx is obligated, pursuant to Section 2.1 of the Asset Purchase
Agreement, to pay Qorus 5% of the net income arising from the Business for five
years (the "royalty obligation");
WHEREAS, Xxxxx, through its wholly owned subsidiary, Xxxxxxxx Communications
Corporation, a Delaware corporation ("Xxxxxxxx Communications"), is the owner of
record of (i) 3,010,000 shares of Qorus' common stock and (ii) options to
purchase an additional 1,066,500 shares of Qorus' common stock at a price of
$0.01 each.
WHEREAS, Qorus, TMT, Aelix and Xxxxx desire to amend the Asset Purchase
Agreement to remove the royalty obligation; and
WHEREAS, Qorus, TMT and Aelix are willing to amend the Asset Purchase Agreement
to remove the royalty obligation in exchange for a cash payment from Xxxxx, the
return of all common shares of Qorus common stock owned by Xxxxxxxx
Communications, and the cancellation of all unexercised options held by Xxxxx or
Xxxxxxxx communications to purchase common Qorus common stock.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. The Asset Purchase Agreement is hereby amended to remove Section
2.1 in its entirety therefrom.
2. In consideration for amending the Asset Purchase Agreement, Xxxxx
will pay to Qorus in immediately available funds $100,000 cash;
and will cause Xxxxxxxx Communications to transfer, assign and
convey to Qorus contemporaneously herewith 3,010,000 shares of
Qorus common stock owned by Xxxxxxxx Communications.
3. Xxxxx and Xxxxxxxx communications agree to the cancellation of any
and all unexercised options either of them may have been granted
by Qorus at any time to purchase common shares of Qorus stock.
4. Xxxxx represents that title to the Qorus common stock referenced
in Section 2 above and options to purchase Qorus common stock
referenced in Section 3 above are conveyed free of all liens or
other encumbrances.
5. This agreement may not be changed, modified, discharged or
terminated orally or in any manner, other than by an agreement in
writing signed by the parties hereto or their respective
successors and assigns.
6. If any provision of this Agreement is determined to be invalid,
illegal or unenforceable, such provision shall be ineffective to
the extent of such invalidity, illegality or unenforceability,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
7. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns. This Agreement shall be governed by and construed in
accordance with the internal substantive laws of the State of
Delaware without giving effect to conflict of laws principles
thereof, except if it is necessary in any other jurisdiction to
have the law of such other jurisdiction govern this Agreement with
respect to such matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above.
Xxxxx Communications, Inc. Xxxxx.xxx, Inc.
By: Xxxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxxxxx
Chief Executive Officer Chief Financial Officer
TMT Holdings, Inc. Aelix , Inc.
By: Xxxxxx X. Xxxxxxxxx By: Xxxxxx X. Xxxxxxxxx
Chief Financial Officer Chief Financial Officer
