AMENDMENT TO SHARE EXCHANGE AGREEMENT
THIS AMENDMENT is made effective this 16th day of March, 1999, by and
among Clariti Telecommunications International, Ltd., a Delaware (U.S.)
corporation formerly known as Sigma Alpha Group, Ltd. ("Clariti"); Xxxxxxxx
Xxxx Holdings, Limited, a corporation formed under the laws of the British
Virgin Islands ("CHH"); and MediaTel Global Communications Limited, a
corporation formed under the laws of the United Kingdom ("MediaTel").
BACKGROUND
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I. Clariti, CHH and MediaTel are the parties to that certain Share
Exchange Agreement dated February 3, 1999 (the "Share Exchange Agreement").
II. Clariti, CHH and MediaTel wish to hereby amend the Share Exchange
Agreement.
NOW THEREFORE, in consideration of the premises and of the respective
covenants, representations and warranties contained herein, intending to be
legally bound, the parties hereby agree as follows:
A. Capitalized Terms; Express Modification.
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Any capitalized term used herein and not defined herein shall retain the
meaning ascribed to it in the Share Exchange Agreement. Principles of
construction and interpretation stated in Paragraph 10 of the Share Exchange
Agreement are hereby incorporated by reference herein. This Amendment shall
govern any conflict between this Amendment and the Share Exchange Agreement.
Except as expressly amended or modified by this Amendment, every term,
provision, condition, covenant, representation, warranty and indemnity of the
Share Exchange Agreement is hereby ratified and shall remain in full force and
effect.
B. Modification of Share Exchange Agreement.
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B.1 Section 1.2 of the Share Exchange Agreement is hereby amended
and restated in its entirety as follows:
1.2 Consideration for MediaTel Shares.
---------------------------------
At the Closing and simultaneously with the transfer and assignment to
Clariti of the MediaTel Shares, Clariti shall deliver to CHH the following
consideration representing full and complete payment by Clariti to CHH for the
MediaTel Shares (the "MediaTel Consideration").
1.2.1 Clariti shall cancel and deliver to CHH that certain promissory
note dated February 3, 1999 made payable by CHH to Clariti in the principal
amount of Twenty-One Million U.S. Dollars (USD$21,000,000) [the "$21,000,000
Note"].
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1.2.2 Clariti shall execute and deliver to CHH its unsecured
promissory note in the principal amount of Three Million U.S. Dollars
(USD$3,000,000), in the form attached as Exhibit "A" to this Addendum and
incorporated herein (the "Promissory Note").
B.2 Sections 1.3., 4.3 and 6.2.2 of the Share Exchange Agreement and
Exhibit "B" to the Share Exchange Agreement are hereby deleted in their
entirety.
B.3 Section 1.4 of the Share Exchange Agreement is hereby amended and
restated in its entirety as follows:
1.4 Closing.
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The consummation of the transactions contemplated by this Agreement shall
take place on even date herewith (the "Closing" or the "Closing Date").
B.4 Section 8.1 of the Share Exchange Agreement is hereby amended and
restated in its entirety as follows:
8.1 Delivery of Clariti Shares and Other Consideration.
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Clariti shall have delivered to CHH: (i) the original, canceled
$21,000,000 Note and (ii) the Promissory Note.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
CLARITI:
Clariti Telecommunications International, Ltd.,
a Delaware corporation
s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
CHH:
Xxxxxxxx Hall Holdings, Limited,
a British Virgin Islands corporation
s/Xxxxxxx Xxxxxx
----------------
Xxxxxxx Xxxxxx, Director
[a duly authorized representative]
MEDIATEL:
MediaTel Global Communications Limited,
a United Kingdom corporation
s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Director
[a duly authorized representative]
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EXHIBIT "A"
to
Addendum to
Share Exchange Agreement
made by and among
Clariti Telecommunications International, Ltd. ("Clariti");
Xxxxxxxx Xxxx Holdings, Limited, ("CHH"); and
MediaTel Global Communications Limited ("MediaTel")
PROMISSORY NOTE
Three Million U.S. Dollars Philadelphia, Pennsylvania (U.S.)
(USD$3,000,000) March 16, 1999
FOR VALUE RECEIVED, Clariti Telecommunications International, Ltd., a Delaware
(U.S.) corporation ("Maker"), promises to pay to the order of Xxxxxxxx Hall
Holdings Limited, a corporation formed under the laws of the British Virgin
Islands ("Payee"), on the one (1) year anniversary of the date hereof ("Due
Date"), the principal sum of Three Million U.S. Dollars (USD $3,000,000),
together with interest thereon, at a rate equal to six and one half percent
(6.5%) per annum, which interest shall be calculated on the basis of the actual
number of days elapsed during any period during which the unpaid principal
balance of this Promissory Note (this "Note") shall be outstanding, upon the
terms and conditions set forth herein. Time is of the essence of this Note.
1. Place of Payment; Prepayment.
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The principal balance hereof and interest due thereon (the "Balance")
shall be payable by check or wire transfer on the Due Date and at such place as
Payee may from time to time designate in writing. At any time and from time to
time hereafter, Maker may prepay all or any part of the Balance without penalty
or premium, provided that any such prepayment of principal shall be accompanied
by the payment of all accrued and unpaid interest thereon to the date of such
prepayment.
2. Event of Default.
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The failure of Maker to pay any sum due and payable hereunder on the date
which is thirty (30) days after the date on which Payee shall have given notice
thereof to Maker shall constitute the Event of Default hereunder (the "Event of
Default"); provided, however, that if Maker shall at any time be precluded,
under the law of the jurisdiction of its incorporation, from paying any sum
then due and payable hereunder because its surplus is insufficient for such
purpose, Maker shall pay on account of such payment all available surplus and
any remaining portion of such payment shall be paid in full by Maker upon the
earlier to occur of: (i) the date that Maker may lawfully make such payment or
(ii) the date ninety (90) days from the date such payment was first due and
payable.
3. Post-Judgment Interest; Usury.
-----------------------------
Any judgment obtained for sums due under this Note shall accrue interest
until paid. Notwithstanding any provision contained herein, Maker's liability
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for the payment of interest under this Note shall not exceed the limits now
imposed by the applicable usury law. If any provision of this Note requires
interest payments in excess of the highest rate permitted by law, the provision
in question shall be deemed to require only the highest such payment permitted
by law. Any amounts theretofore received by Payee hereunder in excess of the
maximum amount of interest so permitted to be collected by Payee shall be
applied by Payee in reduction of the outstanding principal balance hereof (in
which event any applicable prepayment prohibition or premium shall be waived
with respect to the amount so prepaid) or, if this Note shall have theretofore
been paid in full, the amount of such excess shall be promptly returned by
Payee to the Maker.
4. Remedies; Noncumulative.
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Upon the occurrence of the Event of Default, Payee, at its option and
without further notice to Maker, may enforce and seek to recover any all sums
due and payable hereunder by any remedy available to Payee hereunder, at law or
in equity. All remedies shall be cumulative and concurrent and may be pursued
singly, successively or concurrently at Payee's discretion and may be exercised
as often as occasion therefor shall occur. The failure to exercise any right or
remedy shall in no event be construed as a waiver or release of the same.
5. Waiver of Defenses.
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Maker waives presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Note, and all
other notices in connection with the delivery, acceptance, performance,
default, or enforcement of the payment of this Note.
6. Representations and Warranties.
------------------------------
Maker represents and warrants to Payee that: (a) Maker's execution and
delivery of this Note and the enforceability against Maker of the transactions
hereby contemplated have been duly authorized by all requisite corporate
action; (b) this Note has been duly and validly executed and delivered by Maker
and constitutes a legal, valid and binding obligation of Maker; (c) the
execution and delivery of this Note by Maker does not, and the performance by
it of the transactions hereby contemplated will not result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, cancellation or
acceleration) under, any terms, conditions or provisions of any note,
debenture, security agreement, lien, mortgage or other agreement, instrument or
obligation, oral or written, to which Maker is a party (whether as an original
party or as an assignee or successor) or by which it or any of its properties
is bound; (d) no approval or consent by any third party is required in
connection with Maker's execution and delivery of this Note and the
transactions hereby contemplated.
7. Binding Effect.
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This Note and all rights, obligations and powers granted hereby will bind
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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8. Notices.
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All notices, requests, demands, and other communications hereunder must be
in writing and shall be given by a nationally recognized overnight delivery
service, addressed to the principal offices of each part or to such other
address as shall have been designated in writing by any party. All notices,
requests, demands and other communications hereunder shall be effective on the
earlier of (i) when received or (ii) the next business day if sent by such
nationally recognized overnight delivery service, and addressed as aforesaid,
except that notice of change of address shall be effective only from the date
of its receipt. For purposes hereof, the following are the principal offices:
If to CHH:
c/o Corporate & Legal Administration Services, Ltd.
73/77 Lowlands Road
Xxxxxx-xx-xxx Xxxx
Xxxxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxx
Telephone: 000 00 0000 000 0000
Telecopier: 000 00 0000 823 3638
With copies to:
Joblings Solicitors
00 Xxxxxx Xxxxxx
Xxxxx
Xxxxxxxxxxxx, Xxxxxxx
TCV212PE
Attn.: Xxxxx Xxxxxxx, Solicitor
Telephone: 000 00 0000 000 000
Telecopier: 000 00 0000 552 086
If to Clariti:
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxx, Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxx & XxXxxxxx, LLP
Two Commerce Square Suite 3410
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn.: Xxxx X. XxXxxxxx, Esquire
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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10. Captions; Headings; Number; Gender.
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The captions and headings in this Note are inserted for convenience only,
and in no way describe or limit the scope or intent of this Note or any of its
provisions. Whenever used, the singular number shall include the plural, the
plural the singular and the use of any gender shall be applicable to all
genders
11. Severability; Modification.
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The provisions of this Note are deemed severable. The invalidity or
unenforceability of any provision shall not affect or impair the remaining
provisions which shall continue in full force and effect. No modification of
this Note shall be binding or enforceable unless in writing and signed by or on
behalf of the party against whom enforcement is sought.
12. Assignment.
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Payee shall not assign, transfer, encumber, pledge or otherwise convey any
portion or all of this Note (including any rights or obligations hereunder),
without the prior written approval of Maker.
13. Governing Law.
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Notwithstanding the jurisdiction in which this Note shall be executed,
this Note shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania and the parties submit to the jurisdiction of the
courts of such jurisdiction.
IN WITNESS WHEREOF, intending to be legally bound hereby, Maker has caused this
Note to be duly executed the day and year first above mentioned.
MAKER:
Clariti Telecommunications International, Ltd.,
a Delaware corporation
s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
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