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WAIVER AGREEMENT
This WAIVER AGREEMENT (the "Waiver") is made and entered into as of the
16th day of February, 2001, by and among High Speed Net Solutions, Inc.
("HSNS"), Summus, Ltd. ("Summus") and certain stockholders of Summus (the
"Stockholders"). Reference is hereby made to that certain Asset Purchase
Agreement (the "Asset Purchase Agreement"), dated as of October 30, 2000, by and
among HSNS, Summus and the Stockholders, as amended by the Amendment to the
Asset Purchase Agreement dated as of January 30, 2001. Capitalized terms not
otherwise defined herein shall have the definitions attributed thereto in the
Asset Purchase Agreement.
The parties to the Asset Purchase Agreement hereby agree to waive
certain provisions and conditions to Closing under the Asset Purchase Agreement,
pursuant to the following terms:
1. Each of Summus and Stockholder agrees to waive delivery of the
release from Xxxxxxx Xxxxxxxx referenced in Section 3.2(a)(ix) of the Asset
Purchase Agreement. Further, the parties agree that all other releases
referenced in Sections 3.2(a)(ix) and 3.2(b)(x) of the Asset Purchase Agreement
would be unduly burdensome to obtain by the Closing Date. Each of Summus and
HSNS agrees to waive delivery of such other releases, and to use its best
efforts to obtain all such releases as soon as practicable after Closing, with
the goal of obtaining such releases within 30 days following the Closing Date.
2. The parties hereto agree that the option agreements referenced in
Section 4.8 of the Asset Purchase Agreement between HSNS and option holders of
Summus would be unduly burdensome to obtain by the Closing Date. Each party
agrees to waive delivery of such option agreements, and each of Summus and HSNS
agrees to use its best efforts to obtain all such executed option agreements as
soon as practicable after Closing, but in no event later than 30 days following
the Closing Date.
3. Each of Summus and Stockholder acknowledges and consents to all
option grants made by HSNS between signing of the Asset Purchase Agreement and
the Closing Date, and waives any right to object to such grants pursuant to the
terms of the Asset Purchase Agreement.
4. The parties hereto agree that the employment agreements to be
delivered at Closing between HSNS and Messrs. Ban, Fox and Xxxxxx would be
unduly burdensome to obtain by the Closing Date. Each party agrees to waive
delivery of such employment agreements, and each of Summus and HSNS agrees to
use its best efforts to obtain all such executed employment agreements as soon
as practicable after Closing, but in no event later than 30 days following the
Closing Date.
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5. Notwithstanding the foregoing waivers, the options granted by the
Board of Directors on the afternoon of February 15, 2001 are not waived and are
confirmed as effective prior to Closing.
6. Each of Summus and Stockholder acknowledge that the number of shares
of Common Stock to be delivered by HSNS cannot be fixed until Closing, and
Summus therefore agrees to accept delivery of HSNS' Common Stock certificate for
20,012,552 shares at Closing, provided that either HSNS shall deliver to Summus
an additional certificate, or Summus shall deliver to HSNS a certificate (either
such certificate the "Reconciliation Certificate"), upon resolution of the
number of shares due Summus has been reached between the parties after Closing
(the "Final Share Amount"). The Reconciliation Certificate shall be made out for
that number of shares of HSNS Common Stock sufficient to reconcile the
certificate delivered at closing with the Final Share Amount.
7. HSNS agrees to waive the requirement that Summus deliver consent
documents at Closing from those equipment vendors listed in the Asset Purchase
Agreement, provided that Summus will deliver such consents as soon as
practicable and in no event later than 30 days following the Closing Date.
8. The parties hereto agree that the employee offer letters and
noncompetition, confidentiality and invention assignment agreements to be
delivered at Closing between HSNS and certain new employees pursuant to Section
3.2(b)(iv) would be unduly burdensome to obtain by the Closing Date. HSNS agrees
to waive delivery of such letters and agreements, and Summus agrees to use its
best efforts to obtain all such executed letters and agreements as soon as
practicable after Closing, but in no event later than seven days following the
Closing Date.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties have executed or caused this Waiver to
be executed by their duly authorized agents as of the day and year first above
written.
HIGH SPEED NET SOLUTIONS, INC. SUMMUS, LTD.
By: /s/ Xxxxxx Xxx By: /s/ Xxxxx Xxxxxxx
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Xxxxxx Xxx, President Xxxxx Xxxxxxx, President
STOCKHOLDER
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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