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Data Delivery Network Agreement [Amendment No. 1]
Data Delivery Network Agreement [Amendment No. 1] (28K)
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AMENDMENT NO. 1
TO
DATA DELIVERY NETWORK AGREEMENT
THIS AMENDMENT NO. 1 TO DATA DELIVERY NETWORK AGREEMENT (this
"Amendment") is made as of September 11, 2000, by and between WAVO CORPORATION
(f/k/a WAVEPHORE, INC.), an Indiana corporation ("Wavo"), and NATIONAL DATACAST,
INC., a Delaware corporation ("NDI").
WHEREAS, WAVO and NDI are parties to that certain Data Delivery Network
Agreement dated October 15, 1996 (the "Agreement");
WHEREAS, WAVO currently is in arrears on the payments due NDI under the
Agreement;
WHEREAS, after giving effect to all payments made by Wavo under the
Agreement, there remains Four Million Four Hundred Thousand Dollars ($4,400,000)
of guaranteed base payments payable during the remainder of the Initial Service
Term; and
WHEREAS, the parties have agreed to revise the payment schedule under
the Agreement, and therefore desire to amend the terms of the Agreement to
reflect, in writing, their mutual understandings and agreements as to the
revised payment schedule and other matters described herein.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration set forth herein, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby covenant and agree as follows:
1. In addition to any bonus payments which may in the future become
payable to NDI under the Agreement, for the remainder of the Initial
Service Term, Wavo will pay a total of Two Million Dollars
($2,000,000) in cash to NDI, of which Eight Hundred Thousand Dollars
($800,000) will be payable on October 15, 2000, Two Hundred Thousand
Dollars ($200,000) will be payable on November 15, 2000, Four Hundred
Thousand Dollars ($400,000) will be payable on January 15, 2001, Four
Hundred Thousand Dollars ($400,000) will be payable on February 15,
2001, and the final payment of Two Hundred Thousand Dollars ($200,000)
will be payable on April 15, 2001.
2. (a) Within ten (10) business days of the date hereof, Wavo will
deliver to NDI shares of common stock of Wavo in a number equal to One
Million Four Hundred Thousand Dollars ($1,400,000) divided by the
closing sale price of such stock, as reported by NASDAQ (the "Closing
Price") on the second business day prior to delivery of such stock
(the "Wavo Shares"). Within thirty (30) days after delivery of the
Wavo Shares, Wavo shall file a registration statement on Form S-3, or
another appropriate form, with the
{PAGE} 2
Securities and Exchange Commission (the "SEC") covering the resale of
the Wavo Shares by NDI (the "Registration Statement"). Wavo hereby
represents to NDI that it is currently eligible to register the Wavo
Shares on Form S-3 under the Securities Act of 1933, as amended. Wavo
will use its best efforts to cause such Registration Statement to be
declared effective by the SEC as early as practicable, but no later
than ninety (90) days after its initial filing with the SEC. If the
Registration Statement is not declared effective within such ninety
(90) day period, Wavo will be immediately obligated to repurchase the
Wavo Shares for One Million Four Hundred Thousand Dollars ($1,400,000)
(the "Share Repurchase Obligation"), unless, prior to the expiration
of such ninety (90) day period, Wavo delivers to NDI a letter from its
outside legal counsel responsible for the filing of the Registration
Statement to the effect that, in the reasonable judgment of such
counsel, the SEC is expected to declare the Registration Statement
effective within ten (10) business days following the end of the
ninety (90) day period. Upon receipt by NDI of such a letter, (i) Wavo
will have an additional ten (10) business days after the expiration of
the ninety (90) day period to cause the Registration Statement to be
declared effective and (ii) the Share Repurchase Obligation will be
triggered only upon the end of such ten (10) business day period if
the Registration Statement is not effective prior to the expiration of
such ten (10) business day period. Wavo will use its best efforts to
ensure that the Registration Statement remains effective until the
earlier of (i) such time as NDI has realized One Million Four Hundred
Thousand Dollars ($1,400,000) of net proceeds (as described below)
from the sale of the Wavo Shares or (ii) such time as NDI has sold all
of the Wavo Shares.
(b) If the sum of the total net proceeds (gross proceeds less direct
selling costs) received by NDI from the sale of the Wavo Shares is
less than One Million Four Hundred Thousand Dollars ($1,400,000), Wavo
shall, within three (3) business days after receipt of notice by NDI
of the sale of the last Wavo Shares, issue a promissory note in the
amount represented by the difference between One Million Four Hundred
Thousand Dollars ($1,400,000) and the total net proceeds received by
NDI from the sale of the Wavo Shares. Such promissory note will be
payable by Wavo in cash to NDI in three equal monthly installments
commencing thirty (30) days after the end of the date required for
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SVB
As referenced in this Data Delivery Network Agreement [Amendment No. 1]:
Silicon Valley Bank – proceeds and products thereof (but only such portion of such accounts
receivable relating to the amounts due under the Agreement). NDI
acknowledges that Silicon Valley Bank currently holds a first priority
security interest in Wavo's accounts receivable; however, Wavo
acknowledges that NDI can refuse to consent to transmit
_____________
dt 705130
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 Venable
As referenced in this Data Delivery Network Agreement [Amendment No. 1]:
Venable, – one and one-half percent (1-1/2%) per month, or portion thereof.
Maker hereby appoints and designates Michael W. Robinson, Esquire, of
Venable, Baetjer and Howard, LLP, 2010 Corporate Ridge, Suite 400, McLean, VA
22102, William D. Dolan, III, Esquire, of Venable, Baetjer and Howard,
_____________
Venable, – W. Robinson, Esquire, of
Venable, Baetjer and Howard, LLP, 2010 Corporate Ridge, Suite 400, McLean, VA
22102, William D. Dolan, III, Esquire, of Venable, Baetjer and Howard, LLP, 2010
Corporate Ridge, Suite 400, McLean, VA 22102, and Lawrence A. Katz, Esquire, of
Venable, Baetjer and Howard,
_____________
Venable, – Dolan, III, Esquire, of Venable, Baetjer and Howard, LLP, 2010
Corporate Ridge, Suite 400, McLean, VA 22102, and Lawrence A. Katz, Esquire, of
Venable, Baetjer and Howard, LLP, 2010 Corporate Ridge, Suite 400, McLean, VA
22102 to each act individually as a duly constituted Attorney-in-
_____________
dt 695628
;
Venable Baetjer
As referenced in this Data Delivery Network Agreement [Amendment No. 1]:
Venable, Baetjer – one and one-half percent (1-1/2%) per month, or portion thereof.
Maker hereby appoints and designates Michael W. Robinson, Esquire, of
Venable, Baetjer and Howard, LLP, 2010 Corporate Ridge, Suite 400, McLean, VA
22102, William D. Dolan, III, Esquire, of Venable, Baetjer and Howard, LLP,
_____________
Venable, Baetjer – W. Robinson, Esquire, of
Venable, Baetjer and Howard, LLP, 2010 Corporate Ridge, Suite 400, McLean, VA
22102, William D. Dolan, III, Esquire, of Venable, Baetjer and Howard, LLP, 2010
Corporate Ridge, Suite 400, McLean, VA 22102, and Lawrence A. Katz, Esquire, of
Venable, Baetjer and Howard, LLP,
_____________
Venable, Baetjer – Dolan, III, Esquire, of Venable, Baetjer and Howard, LLP, 2010
Corporate Ridge, Suite 400, McLean, VA 22102, and Lawrence A. Katz, Esquire, of
Venable, Baetjer and Howard, LLP, 2010 Corporate Ridge, Suite 400, McLean, VA
22102 to each act individually as a duly constituted Attorney-in-Fact
_____________
dt 699929
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Preview
Full Doc
| 2000 |
Network Agreement
Network Agreement (24K)
Doc #394642: Click preview link for longer preview.
NETWORK AGREEMENT
-----------------
THIS AGREEMENT is dated as of the 25th day of May, 2000, by and among
Network Consulting Group, Inc., ("Network") and VDC Communications, Inc.
("VDC").
WITNESSETH:
-----------
WHEREAS, pursuant to a Merger Agreement by and among VDC, Voice & Data
Communications (Latin America), Inc. (the "Sub"), Rare Telephony, Inc., a Nevada
corporation (f/k/a Washoe Technology Corporation) ("Rare Telephony"), and the
holders of all of the outstanding shares of common stock of Rare Telephony dated
May 25, 2000 (the "Merger Agreement"), Rare Telephony will be merging with and
into the Sub (the "Merger") for shares of common stock of VDC (the "Shares");
WHEREAS, in connection with the Merger, VDC, the Sub, the Rare
Telephony Shareholders, and Buchanan Ingersoll Professional Corporation entered
into an Escrow Agreement, dated May 25, 2000 (the "Escrow Agreement");
WHEREAS, the terms of the Merger Agreement provide for the execution of
this Agreement.
WHEREAS, attached hereto as Exhibit "A" and incorporated herein by
reference is a list of certain leases to which Network is a party ("Leases").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Additional Payments. VDC shall pay to Network TEN DOLLARS AND NO/100
--------------------
($10.00).
2. Performance Under Leases.
-------------------------
(a) Network shall make each and every payment (other than end of
Lease fair market value or ONE DOLLAR AND NO/100 ($1.00) payments) due from
Network under the Leases.
(b) Network shall otherwise fully perform all of its agreements,
duties, responsibilities, obligations, and covenants under each of the Leases
(other than end of Lease fair market value or ONE DOLLAR AND NO/100 ($1.00)
payments).
3. End of Lease Payments. Within thirty (30) calendar days of the end of
-----------------------
each Lease, Network shall notify VDC in writing of the fact that the Lease is
about to end. Upon the payment of the end of Lease payment (i.e. the FMV payment
or the ONE DOLLAR AND NO/100 ($1.00) payment) by VDC or one of its subsidiaries
or affiliates to either Network or the lessor under the Lease, in VDC's sole
discretion, Network shall immediately take any and all action necessary or
appropriate (including, without limitation the execution of document(s)
requested by VDC's counsel) to transfer all of Network's right, title, and
interest in and to the equipment or property that is the subject of the Lease to
{PAGE}
VDC or one of its subsidiaries or affiliates, as directed by VDC. Additionally,
at any time thereafter, Network shall execute and deliver or cause to be
executed and delivered such further instruments of conveyance, assignment and
transfer and take such further action as VDC may request in order more
effectively to sell, assign, convey, transfer, reduce to possession and record
title to the equipment or property that is the subject of the Lease. Network
agrees to cooperate with VDC in all respects to assure the continued title to
and possession of such equipment and property in VDC or the VDC subsidiary or
affiliate of VDC's choosing.
4. Certain Remedies for VDC in the Event of Default. IF NETWORK BREACHES
-------------------------------------------------
ANY MATERIAL TERM OF THIS AGREEMENT OR OF ANY ONE OF THE LEASES (AND ANY SUCH
BREACH REMAINS UNCURED FIFTEEN (15) CALENDAR DAYS AFTER NOTICE OF SUCH BREACH IS
GIVEN BY VDC OR THE LESSOR, OR ITS AGENT, FOR ANY LEASE) (EACH SUCH BREACH AND
FAILURE TO CURE CONSTITUTING A "NETWORK DEFAULT EVENT"), NETWORK SHALL FORFEIT
SHARES ISSUED IN ITS NAME PURSUANT TO THE MERGER AND MERGER AGREEMENT (THE
"NETWORK SHARES") UPON THE TERMS AND CONDITIONS SET FORTH IN THE ESCROW
AGREEMENT. TO THE EXTENT THERE ARE NOT ENOUGH NETWORK SHARES BEING HELD IN
ESCROW PURSUANT TO THE ESCROW AGREEMENT TO COVER THE FORFEITURES ABOVE, THEN,
WITHIN FIVE (5) CALENDAR DAYS OF RECEIVING NOTICE OF THIS FACT FROM VDC, NETWORK
SHALL DELIVER ADDITIONAL VDC SHARES TO VDC FOR CANCELLATION TO COVER ANY SUCH
DEFICIENCY. NETWORK ACKNOWLEDGES AND AGREES THAT THE FORFEITURE OF THE NETWORK
SHARES IS IN ADDITION TO ANY OTHER REMEDIES WHICH VDC MAY HAVE AT LAW, IN
EQUITY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
PARTIES HEREBY AGREE THAT EVEN IN THE EVENT OF A NETWORK DEFAULT EVENT PURSUANT
TO WHICH THE NETWORK SHARES ARE FORFEITED IN ACCORDANCE WITH THE TERMS OF THE
ESCROW AGREEMENT, NETWORK SHALL STILL BE OBLIGATED TO PAY AND PERFORM UNDER THE
LEASES AND VDC SHALL BE ENTITLED TO RECOVER MONETARY DAMAGES AND ALL OTHER
REMEDIES AVAILABLE AT LAW, EQUITY, OR OTHERWISE.
5. Certain Representations and Warranties of Network.
--------------------------------------------------
(a) Network represents and warrants to VDC as follows:
(1) If Network is a corporation or a company, it is
duly organized or duly formed, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation or formation and has the corporate
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VDC
As referenced in this Network Agreement:
VDC Communications, Inc – 0012.txt
{DESCRIPTION}EX-10.43
{TEXT}
NETWORK AGREEMENT
-----------------
THIS AGREEMENT is dated as of the 25th day of May, 2000, by and among
Network Consulting Group, Inc., ("Network") and VDC Communications, Inc .
("VDC").
WITNESSETH:
-----------
WHEREAS, pursuant to a Merger Agreement by and among VDC, Voice & Data
Communications (Latin America), Inc. (the "Sub"), Rare Telephony, Inc., a Nevada
corporation (f/k/a
_____________
VDC Communications, Inc – at:
Peter J. Salzano
Network Consulting Group, Inc.
101 Route 46E
Pine Brook, NJ 07058
Facsimile No: (973) 882-8520
5
{PAGE}
(b) if to VDC at:
Frederick A. Moran
VDC Communications, Inc .
75 Holly Hill Lane
Greenwich, CT 06830
Facsimile: (203) 552-0908
with a copy to:
Louis D. Frost, Esq.
VDC Communications, Inc.
75 Holly Hill Lane
Greenwich, CT 06830
_____________
VDC Communications, Inc – b) if to VDC at:
Frederick A. Moran
VDC Communications, Inc.
75 Holly Hill Lane
Greenwich, CT 06830
Facsimile: (203) 552-0908
with a copy to:
Louis D. Frost, Esq.
VDC Communications, Inc .
75 Holly Hill Lane
Greenwich, CT 06830
Facsimile: (203) 552-0908
(l) This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the
_____________
VDC COMMUNICATIONS, INC – at the closing of
the Merger.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
ATTEST: VDC:
7
{PAGE}
/s/ Louis D. Frost VDC COMMUNICATIONS, INC .
------------------------------------
Signature
By: /s/ Frederick A. Moran
---------------------------------
Louis D. Frost Frederick A. Moran
------------------------------------ Chief Executive Officer
Print Name
ATTEST: NETWORK:
/s/ Debra Santa Lucia NETWORK CONSULTING GROUP, INC.
------------------------------------
Signature
By: /
_____________
dt 1318474
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Buchanan
As referenced in this Network Agreement:
Buchanan Ingersoll – with and
into the Sub (the "Merger") for shares of common stock of VDC (the "Shares");
WHEREAS, in connection with the Merger, VDC, the Sub, the Rare
Telephony Shareholders, and Buchanan Ingersoll Professional Corporation entered
into an Escrow Agreement, dated May 25, 2000 (the "Escrow Agreement");
WHEREAS, the terms of the Merger Agreement provide for the execution of
this Agreement.
WHEREAS, attached
_____________
dt 1048416
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