AMENDED PURCHASE AGREEMENT
THIS AMENDED PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the ____ day of August, 1999, by and between New World Publishing,
Inc., a Colorado corporation ("PURCHASER") and Interactive Consumer Services,
Inc. ("SELLER").
W I T N E S S E T H
WHEREAS, SELLER owns rights to a network of 96 Points of Presence
("POPs") and desires to sell POPs to PURCHASER on the terms and conditions set
forth in this Agreement; and
WHEREAS, PURCHASER desires to acquire POPs for the purchase price
stated in this Agreement and on the terms and conditions set forth herein;
WHEREAS, PURCHASER and SELLER entered into a Purchase Agreement on July
22, 1999 (the "Purchase Agreement") with respect to purchase of POPs; and on the
terms and conditions set forth therein;
WHEREAS, PURCHASER and SELLER desire to amend the Purchase Agreement
with the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows:
ARTICLE 1
SALE AND PURCHASE OF POPS
1.1 SALE OF POPS. At the date of the signing of this Agreement as
provided in Section 3.1 hereto (the "Closing"), subject to the terms and
conditions herein set forth, and on the basis of the representations, warranties
and agreements herein contained, SELLER shall sell to PURCHASER, and PURCHASER
shall purchase from SELLER, the POPs together with all Ecodyne and other voice
hardware and software located at the 96 POPs. The list of 96 POP locations and
description POPs equipment, including but not limited to, hardware and software
equipment (collectively, "POPs Equipment") is attached to this Agreement as
Exhibit 1.1 and incorporated herein by reference.
1.2 GRANT OF EXCLUSIVE RIGHT TO PURCHASER. SELLER grants to PURCHASER
an exclusive right to collocate voice and other data hardware and software at
the 96 POP locations.
1.3 GRANT OF EXCLUSIVE RIGHT TO SELLER. PURCHASER grants to SELLER an
exclusive right to use POPs Equipment for SELLER'S own business, which shall not
compete or interfere with PURCHASER'S business. SELLER agrees not to move off
POPs Equipment at any time during use.
1.4 GRANT OF RIGHT OF FIRST REFUSAL. PURCHASER grants to SELLER an
exclusive right of first refusal to purchase back the Ecodyne and other voice
hardware and software from PURCHASER for 50,000 shares of PURCHASER's common
stock.
1.5 RIGHT TO BUY-BACK. SELLER shall have an exclusive right to purchase
back POPs Equipment, as herein defined, from PURCHASER in the event that
PURCHASER (i) becomes insolvent; (ii) admit in writing its inability to pay its
debts generally or as they become due; (iii) make an assignment for the benefit
of creditors or commence proceedings for its dissolution; or (iv) apply for, or
consent to the appointment of, a trustee, liquidator, or receiver for its or for
a substantial part of its property or business; or a trustee, liquidator or
receiver shall be appointed for PURCHASER or for a substantial part of its
property or business without PURCHASER'S consent and such appointment is not
discharged within sixty (60) days after such appointment; or (v) any
governmental agency or any court of competent jurisdiction at the instance of
any governmental agency shall assume custody or control of the whole or any
substantial portion of the properties or assets of the PURCHASER and shall not
be dismissed within sixty (60) days thereafter; or (vi) bankruptcy,
reorganization, insolvency or liquidation proceedings or other proceedings for
relief under any bankruptcy law or any law for the relief of debtors shall be
instituted by or against the PURCHASER and, if instituted against PURCHASER,
shall not be dismissed within sixty days after such institution or PURCHASER
shall by any action or answer approve of, consent to, or acquiesce in any such
proceedings or admit the material allegations of, or default in answering a
petition filed in, any such proceeding; or (vii) substantial change in
management of PURCHASER. The buy-back purchase price in the events described in
this Section 1.5 shall be 200,000 shares of common stock of PURCHASER.
1.6 MAINTENANCE OF POPS EQUIPMENT AND LEASES BY SELLER. SELLER agrees
to maintain and upgrade, as may be necessary, POPs Equipment to ensure that POPs
Equipment is in working condition at all times. SELLER and PURCHASER agree that
POPs Equipment shall not be moved from its current locations or altered in
anyway unless otherwise herein provided, or with written authorization of
SELLER. SELLER also agrees to maintain the leases and other relevant contracts,
as they pertain to POPs locations, including but not limited to, monthly lease
payments for all 96 POPs. See Exhibit 1.5 incorporated herein by reference.
1.7 ACCOMMODATION OF POPS' APPLICATIONS BY PURCHASER. PURCHASER agrees
to accommodate applications currently being used at POPs' locations. Further as
PURCHASER builds its voice over IP network, it agrees to accommodate the voice
applications of SELLER, as provided in the Exhibit 1.6 incorporated herein by
reference. SELLER agrees to such accommodations of POPs' applications.
1.8 INSTRUMENTS OF CONVEYANCE AND TRANSFER. SELLER agrees to grant,
convey, sell, assign, transfer and deliver to PURCHASER on the Closing Date (as
hereinafter defined), and PURCHASER agrees on the Closing Date to purchase,
accept and assume, all properties, assets, privileges, rights, interests and
claims that are owned by SELLER and used or held for use in connection with the
network of 96 POPs, as described herein and in the Exhibits to this Agreement,
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which are incorporated herein by reference and constitute a part of this
Agreement, as of the Closing Date.
1.9 CONSIDERATION AND PAYMENT FOR POPS. In consideration for the
acquisition of POPs, PURCHASER shall issue and deliver to SELLER, the purchase
price equal to 300,000 shares of "restricted" common stock of PURCHASER
("Purchase Price Shares"). With respect to 50,000 shares of common stock
included in the Purchase Price (the "Shares"), PURCHASER agrees to provide the
SELLER with "piggyback" registration rights, pursuant to which the PURCHASER has
agreed to include the Shares in any registration statement filed by the
PURCHASER under the Securities Act of 1933, as amended, to cover a public resale
of the shares of the common stock.
1.10 LIABILITIES. The POPs shall be sold and conveyed for PURCHASER'S
use free and clear of all security interests, including, but not limited to, all
mortgages, liens, deeds of trust, security interests, pledges, restrictions,
prior assignments, charges, claims, and encumbrances of any kind or type
whatsoever, as may herein be applicable. Except as otherwise specifically
provided herein, or as otherwise specifically agreed by PURCHASER and SELLER,
PURCHASER shall NOT assume or be liable for, and does not, and does not
undertake to attempt to, assume or discharge any liability or obligation of
SELLER arising out of or relating to POPs, their locations, leases, contracts or
POPs Equipment.
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF SELLER AND PURCHASER
2.1 The SELLER hereby represents and warrants that:
(a) It shall transfer right and title, in and to POPs, to
the SELLER free and clear of all liens, security
interests, pledges, encumbrances, charges, demands
and claims, of any kind and nature whatsoever,
whether direct or indirect or contingent.
(b) By reason of the SELLER'S knowledge and experience in
financial and business matters in general, and
investments in particular, the SELLER'S is able to
evaluate the merits and risks of an investment in the
Purchase Price Shares.
(c) The SELLER is acquiring the Purchase Price Shares as
principal, solely for the SELLER'S respective own
accounts, for investment, and not with an intent to
sell, or for sale in connection with any distribution
of the Purchase Price Shares, and no other person has
any interest in or right with respect to the Purchase
Price Shares.
(d) The SELLER is an "accredited investor" as that term
is defined in Section 501 of Regulation D of the Act.
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(e) The person executing this Agreement on behalf of the
SELLER has all right, power and authority to so
execute and deliver this Agreement.
(f) Each of the representations and warranties of SELLER
contained in this Agreement shall have been true and
correct as of the date when made and shall be deemed
to be made again on and as of the Closing Date and
shall then be true and correct except to the extent
changes are permitted or contemplated pursuant to
this Agreement or arise in the ordinary course of
business, such determination shall be made based upon
the Exhibits delivered prior to or concurrent with
the execution of this Agreement.
(g) SELLER shall have performed and complied with each
and every covenant and agreement required by this
Agreement to be performed or complied with by it
prior to or on the Closing Date.
2.2 The PURCHASER hereby represents and warrants that:
(a) The person executing this Agreement on behalf of the
PURCHASER has all right, power and authority to so
execute and deliver this Agreement.
(b) Each of the representations and warranties of
PURCHASER contained in this Agreement shall have been
true and correct as of the date when made and shall
be deemed to be made again on and as of the Closing
Date and shall then be true and correct except to the
extent changes are permitted or contemplated pursuant
to this Agreement or arise in the ordinary course of
business, such determination shall be made based upon
the Exhibits delivered prior to or concurrent with
the execution of this Agreement.
(c) PURCHASER shall have performed and complied with each
and every covenant and agreement required by this
Agreement to be performed or complied with by it
prior to or on the Closing Date.
2.3 On the Closing Date as defined herein in Section 3.1, the SELLER
shall deliver to the PURCHASER this signed Agreement and any and all other
instruments necessary for transfer, use and operation of POPs, as may be
necessary or applicable, and PURCHASER shall deliver to SELLER this signed
Agreement and certificates representing the Purchase Price Shares subject to no
liens, security interests, pledges, encumbrances, charges, demands or claims in
any other party whatsoever, except for the Rule 144 restrictive legend endorsed
thereon.
ARTICLE 3
CLOSING AND DELIVERY OF DOCUMENTS
3.1 CLOSING. The Closing shall be deemed to have occurred on or before
August___, 1999. Subsequent to the signing of this Agreement, the following
shall occur:
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3.2 DELIVERY BY SELLER. SELLER shall deliver this signed Agreement with
all the necessary instruments of conveyance and transfer of right and title with
respect to POPs, as may be applicable.
3.3 DELIVERY BY PURCHASER. The PURCHASER shall deliver this signed
Agreement and the Purchase Price Shares as required by Section 1.3 and Section
1.4 to SELLER at the Closing.
ARTICLE 4
TERMINATION, AMENDMENT AND WAIVER
4.1 TERMINATION. Notwithstanding anything to the contrary contained in
this Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to delivery of all
consideration due hereunder solely by the mutual consent of all of the parties.
4.2 WAIVER AND AMENDMENT. Any term, provision, covenant,
representation, warranty or condition of this Agreement may be waived, but only
by a written instrument signed by the party entitled to the benefits thereof.
The failure or delay of any party at any time or times to require performance of
any provision hereof or to exercise its rights with respect to any provision
hereof shall in no manner operate as a waiver of or affect such party's right at
a later time to enforce the same. No waiver by any party of any condition, or of
the breach of any term, provision, covenant, representation or warranty
contained in this Agreement, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such condition or breach
or waiver of any other condition or of the breach of any other term, provision,
covenant, representation or warranty. No modification or amendment of this
Agreement shall be valid and binding unless it be in writing and signed by all
parties hereto.
ARTICLE 5
MISCELLANEOUS
5.1 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
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5.2 ARBITRATION. If a dispute or claim shall arise with respect to any
of the terms or provisions of this Agreement, or with respect to the performance
by either of the parties under this Agreement, then either party may, by notice
as herein provided, require that the dispute be submitted under the Commercial
Arbitration Rules of the American Arbitration Association to an arbitrator in
good standing with the American Arbitration Association within fifteen (15) days
after such notice is given. The written decision of the single arbitrator
ultimately appointed by or for both parties shall be binding and conclusive on
the parties. Judgment may be entered on such written decision by the single
arbitrator in any court having jurisdiction and the parties consent to the
jurisdiction of the courts of the state of California for this purpose. Any
arbitration undertaken pursuant to the terms of this section shall occur in the
state of California.
5.3 CHOICE OF LAW. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of California including all matters of construction, validity,
performance, and enforcement and without giving effect to the principles of
conflict of laws.
5.4 JURISDICTION. The parties submit to the jurisdiction of the Courts
of the State of California or a Federal Court empaneled in the State of
California for the resolution of all legal disputes arising under the terms of
this Agreement, including, but not limited to, enforcement of any arbitration
award.
5.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
5.6 INDEMNIFICATION. PURCHASER, on the one hand, and SELLER, on the
other hand, hereby jointly and severally agree to indemnify and hold harmless
each other, their directors, officers and employees and all persons which they
directly or indirectly, through one or more intermediaries, control, are
controlled by, or are under common control with, and their respective successors
and assigns from, against and in respect of, the amount of any and all losses,
damages, liabilities and claims sustained by the party to be indemnified and
arising out of, based upon or resulting from: (i) their breach of any
misrepresentation, breach of warranty, or any non-fulfillment of any
representation, warranty, covenant, obligation or agreement made by them
pursuant to this Agreement; (ii) any error contained in any statement, report,
certificate or other document or instrument delivered by them pursuant to this
Agreement or contained in any exhibit hereto; and (iii) any and all acts, suits,
proceedings demands, assessments and judgements, and all fees, costs and
expenses of any kind, related or incident to any of the foregoing (including,
without limitation, any and all Attorneys' Fees (as defined below)).
5.7 ATTORNEYS' FEES. Except as otherwise provided herein, if a dispute
should arise between the parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the nonprevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
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5.8 CONFIDENTIAL INFORMATION.
(a) The parties acknowledge that either party may have access or
furnish to the other party in the course of the negotiation,
execution and performance of this Agreement, proprietary
information pertaining to POPs Equipment or know-how
technology, as well as to other material related to POPs,
non-public information owned or possessed by either party. The
parties further agree that such proprietary information owned
or possessed by either party is Confidential Information.
(b) The parties agree to keep and shall cause its agents to keep,
all Confidential Information of the other party secret (using
appropriate safeguards and in a manner not less stringent than
it would use with respect to its own confidential
information), and not to disclose it to others, unless a
written consent of such a party is obtained.
(c) Notwithstanding the foregoing, neither party shall have the
obligation to hold Confidential Information of the other in
confidence, if: (i) such Confidential Information is now in,
or subsequently comes into, the public domain except as a
result of a breach of this or any other secrecy or
nondisclosure agreement; (ii) the Confidential Information is
made the subject of a patent, but only to the extent that
Confidential Information is disclosed therein; (iii) the
Confidential Information was known to the party prior to
disclosure to it: (iv) the Confidential Information is
disclosed by a third party having the right to disclose the
same; or (v) disclosure of the Confidential Information is
required by a court, or in the reasonable opinion of counsel
to the party proposing to disclose, the disclosure is required
by applicable government regulation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written hereinabove.
NEW WORLD PUBLISHING, INC.
PURCHASER
By: ___________________________
Its:____________________________
INTERACTIVE CONSUMER SERVICES, INC.
SELLER
By: ___________________________
Its: ___________________________
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EXHIBIT 1.1
POPS LOCATIONS
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POPS EQUIPMENT
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EXHIBIT 1.5
POPS LEASES AND CONTRACTS
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EXHIBIT 1.6
DESCRIPTION OF ACCOMMODATION TO POPS APPLICATIONS
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Within the CISCO 5300 and 5800 routers voice applications support a voice
module. The current voice boxes will be attached to the voice ports of the CISCO
routers. At Irvine the CISCO routers will have a T1 interface that will drop
into the voice boxes. Over the same T1 links that carry dial tone, they will
also carry voice. The function of the 5300 and 5800 also provide compression on
the voice which is normally 64 KB (1DSO) could get up to 8 to 1 depending on the
quality that is acceptable to SELLER. Where they are used to getting 24 DSO's
per T1, with compression they will have left over bandwidth which will be used
for data.
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EXHIBIT 1.7
INSTRUMENTS OF CONVEYANCE AND TRANSFER
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