AMENDMENT NO. 1 TO THE ASSET PURCHASE AGREEMENT
This Amendment No. 1 to the Asset Purchase Agreement (the
"Amendment") is made and entered into this 20th day of June, 1997, by and
between WorldPort Communications, Inc., a Delaware corporation ("Buyer") and
Telenational Communications Limited Partnership, a Nebraska limited partnership
("Seller"). Buyer and Seller are collectively referred to herein as the
"Parties".
WHEREAS, the Parties have previously entered into an Asset Purchase
Agreement dated April 23, 1997 (the "Agreement"); and
WHEREAS, the Parties desire to amend the Agreement in certain
respects.
NOW, THEREFORE, the Parties hereby agree as follows:
1. The two (2) sentences following Section 1.3(h) of the Agreement,
beginning with the words "At any time until two . . ." and concluding with the
words ". . . the G.P. Note, as defined hereafter" are hereby deleted and
replaced in their entirety with the following sentence:
At any time up until sixty (60) days following Closing, the Partners to
whom amounts are owed under the Affiliate Liabilities may elect to receive
the common stock of Buyer, at $1.50 per share, as payment in lieu of cash.
2. The phrase "$4.5 million" in the third line of the final paragraph of
Section 1.3 of the Agreement is hereby deleted and replaced in its entirety with
the phrase "$4.6 million".
3. Section 1.7(b) of the Agreement is hereby deleted and replaced in
its entirety with, "(b) [intentionally omitted]".
4. The last sentence of Section 1.7 is hereby deleted in its entirety.
5. A new Section 8.6 is hereby added to the Agreement stating as
follows:
8.6. Affiliate Liabilities. Within sixty (60) days of Closing,
Buyer shall enter into payment arrangements with all the Partners to whom
money is owed under the Affiliate Liabilities.
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6. Article IX of the Agreement is hereby deleted and replaced in its
entirety with the following:
ARTICLE IX
EMPLOYEES
9.1 Lease of Seller Employees. For a period of up to one
hundred eighty (180) days following the Closing (the "Leasing Period"),
Seller shall use its reasonable efforts to provide to Buyer the services
of the persons listed on Exhibit 1 hereto, who are all currently employees
of Seller (the "Leased Employees") needed to operate the Business in a
manner similar to that heretofore conducted by the Leased Employees for
Seller. All Leased Employees shall be under the administrative and
executive control of Seller. Any new positions and salary increases must
be approved by Buyer. Seller shall have sole authority for the discipline,
retention, and termination of all Leased Employees; provided, however,
Buyer shall give Seller input into the job evaluation of such Leased
Employees.
9.2 Services.
(a) During the Leasing Period, Seller shall have sole responsibility
to pay to, or on behalf of, the Leased Employees all costs related to
their employment including, but not limited to, wages and personnel
benefit plans, vacation, sick and severance pay, life and health insurance
premiums, contributions to pensions, retirement and benefit plans,
applicable federal, state and local taxes, Social Security contributions,
federal and state unemployment compensation insurance contributions,
workers' compensation insurance premiums, and all similar payments and
charges incurred by reason of Seller's applicable employment practices and
policies, contractual and statutory obligations and conditions of
employment (the "Aggregate Compensation"). Seller shall be responsible for
the withholding of all taxes and similar items and the remitting of
payments and returns to governmental agencies.
(b) Seller shall be and shall remain the employer of the Leased
Employees during the Leasing Period. During the Leasing Period, Leased
Employees shall at no time, for any purpose, be deemed the employees of
Buyer and shall not be entitled or eligible to participate in benefits or
privileges provided or extended by Buyer to Buyer's employees except as
otherwise required by law.
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(c) Buyer shall have daily responsibility for supervision of the
work activities of the Leased Employees. Seller shall cause the Leased
Employees to devote their entire time, attention, and energy to the
service of Buyer. The Leased Employees shall comply with and abide by
Buyer's policies, procedures, rules and regulations including expense
reimbursement procedures.
(d) At any time during the Leasing Period, Buyer shall have the
right, but not the obligation, to offer employment to any of the Leased
Employees then employed by Seller (those employees accepting such offers
of employment being "Buyer Employees").
(e) Upon written notice to Seller, Buyer may discontinue the receipt
of services with respect to any of the Leased Employees in the event Buyer
believes it has a reasonable basis to believe that such employee (i) is
incapable of adequately carrying out his or her duties; or (ii) has
engaged in willful misconduct, disloyalty, negligence, illegal conduct or
an intentional tort with respect to such employee's services to Buyer, or
has engaged in conduct potentially harmful to any Buyer employee and
Seller shall give such Leased Employee a notice of termination consistent
with Seller's employment policies for such situations.
(f) To the extent the parties agree that additional employees should
be leased by Seller to Buyer, such employees shall be leased pursuant to
this Article IX which lease shall be effected by adding the appropriate
names to Exhibit 1 through a written acknowledgement of the parties.
9.3 Compensation. Three days prior to the end of a pay period,
Seller shall xxxx Buyer for the Leased Employees supplied to Buyer at an
amount equal to 100% of the anticipated Aggregate Compensation of the
Leased Employees for the periods during which such Leased Employees
provide services to Buyer. Buyer shall pay Seller the full amount of each
invoice prior to the end of each such pay period for disbursement to the
Leased Employees. Any positive difference between the amount Seller bills
to Buyer for any given pay period and the actual Aggregate Compensation
paid for such pay period shall be subtracted from the Seller's subsequent
invoice for anticipated Aggregate Compensation.
9.4 Indemnification. Seller shall indemnify and hold Buyer
harmless against any claims by any Leased Employee arising from actions
taken by Seller, relating to events or occurrences through the end of the
Leasing Period, including any severance or termination pay obligations
based upon prior policies of Seller or arising from the Closing of the
Agreement.
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9.5 Employee Benefits.
(a) Buyer shall not assume or be responsible for any of Seller's
retirement, 401(k), profit-sharing or similar benefit plan, or any
liabilities related thereto. Seller shall grant 100% vesting credit to all
of the Buyer Employees as of the end of the Leasing Period in any
retirement, 401(k), profit-sharing or similar benefit plan. Seller shall
cause such participants to have full rights to all distribution
alternatives available to terminated employees and shall effect such
distribution within thirty (30) days of a notice of election of any
participant.
(b) To the extent reflected on unaudited financial statements to be
prepared by Seller for the period ending on the termination or expiration
of the Leasing Period, which financial statements must be approved by
Buyer, Buyer shall provide the Buyer Employees all vacation and personal
leave accrued as employees of the Seller but not yet received as of the
end of the Leasing Period. Buyer shall require all Buyer Employees to
waive in writing a claim against Seller for accrued but unused vacation
benefits, to the extent reflected on such unaudited financial statements.
(c) As of the termination or expiration of the Leasing Period, all
Buyer Employees will cease participation in Seller's retirement and
welfare plans (within the meaning of ERISA). Welfare claims incurred but
not reported as of the termination or expiration of the Leasing Period or
other welfare claims made upon Seller's welfare plans by Buyer Employees
after such time will be treated by Seller's plans as if the covered
employees had been terminated from employment at 11:59 PM on the
termination or expiration date of the Leasing Period.
(d) This Section is not intended to, and does not, create any rights
or obligations to or for the benefit of anyone, other than Buyer and
Seller.
7. Section B of Schedule 3.6 to the Agreement is hereby amended by
deleting the phrase "Total options authorized or issued as of April 10, 1997:
605,000," at the end thereof and replacing it with the following:
Xxxxxx Xxxxxx 20,000 @ $1.50 (authorized in June, 1997)
Manager of Corporate Subject to vesting over next three years.
Accounting
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Xxxxx XxXxxxxxxxx 4,500 @ $.75 (authorized in April, 1997)
Administrative Assistant Subject to vesting over next two years.
Total options authorized and issued as of June 20, 1997: 629,500
In an effort to attract a qualified individual to act as an outside
director, in June 1997, the Board of Directors authorized the issuance of
options for 65,000 shares with an exercise price of $1.50 per share and
with vesting upon issuance. If such individual joins the Board as an
outside director, the company will issue to such individual for his
services an option to acquire 50,000 shares and an option to acquire an
additional 15,000 shares if he serves on one of the Board's committees.
8. The Parties hereby acknowledge and approve that Buyer has designated
its wholly-owned subsidiary, Telenational Communications, Inc., a Delaware
corporation, to accept, assume and receive, all right, title and interest in, to
or arising from the Purchased Assets and to accept and perform all the duties
and obligations in, to or arising from the Assumed Liabilities and Assumed
Obligations, provided however, Buyer shall be responsible for the delivery of
the Buyer's Stock at Closing.
9. Except as amended by this Amendment, the Agreement shall remain in
full force and effect.
* * *
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IN WITNESS WHEREOF, each of the parties has executed this Amendment
or caused this Amendment to be executed on its behalf by a duly authorized
officer, all as of the date first written above.
WORLDPORT COMMUNICATIONS, INC.
By: /s/Xxxx X. Xxxxxx
Its: President & C.E.O
TELENATIONAL COMMUNICATIONS
LIMITED PARTNERSHIP
IMTS, INC. GENERAL PARTNER
By: /s/Xxxxxx X. Xxxxxxxxx
Its: President
The undersigned acknowledges the terms and conditions of the
Agreement and of the Amendment and agrees to be bound to their terms and
conditions.
TELENATIONAL COMMUNICATIONS, INC.
By: Xxxx X. Xxxxxx
Its: President & C.E.O.
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EXHIBIT 1
LEASED EMPLOYEES
EMPLOYEE LISTING as of: 06/18/1997
EMP. ID.. NAME............... JOB.TITLE................. ORG-ID DEPT. STATUS SHIFT HIRED.... SVC-YRS.
489543800 XXXXX X XXXXXXX 109 EXECUTIVE ADMIN. ASST. 1 10 PT 1 09/21/1993 3.0
508565822 XXXX X XXXXXXXX 150 DIR. H.R. / ADMIN. SVCS 1 15 PT 1 05/04/1983 8.0
063361746 XXXXX XXXXXXXX 156 RECEPTIONIST 1 15 PT 1 10/28/1991 5.0
507666952 XXXXXXXX XXXXXXX 156 RECEPTIONIST 1 15 FT 1 06/04/1997 0.0
698520899 XXXXX X XXXXXXX 220 ACCOUNTING MANAGER 1 20 FT 1 12/05/1988 6.0
508668731 XXXXXXX X XXXXX 208 BUSINESS ANALYST 1 20 FT 1 03/13/1983 7.0
506685076 XXXXXX X XXXXX 218 BILLING SPECIALIST 1 20 FT 1 01/16/1992 5.0
335429064 XXXXXX W OCOREK 205 CONTROLLER 1 20 FT 1 06/12/1995 2.0
550294321 XXXXXXX X XXXXX 458 BILLING/NETWORK ADMINSTR 1 30 FT 1 10/23/1995 1.0
180507196 XXXXX XXXXXX 316 PROGRAMMER 1 30 PT 1 10/08/1996 0.0
505843870 XXXXX X XXXXXXXXX 316 PROGRAMMER 1 30 PT 1 07/25/1997 0.0
506137913 XXXXXX X XXXXXXX 312 PC SUPPORT SPECIALIST 1 30 PT 1 05/22/1997 0.0
507745533 XXXXX X XXXXXXX 454 SERVICE TECHNICIAN 1 45 FT 1 01/02/1996 1.0
489549931 XXXXXX X XXXX 451 NETWORK SERVICES SUP 1 45 FT 1 05/06/1996 1.0
507881585 XXXXXXX X XXXXXXXX 517 CUSTOMER SUPPORT REP 1 53 PT 1 10/23/1990 6.0
498601221 XXXXX X XXXXXXXXX 530 OPERATOR SERVICES MGR 1 53 FT 1 09/26/1991 5.0
505442616 XXXX X XXXXXXX 536 OPERATOR SVCS TEAM LDR 1 53 FT 1 01/07/1993 4.0
109544046 XXXXXXXX XXXX 531 OPERATOR SVCS SUPERVISOR 1 53 PT 1 03/23/1993 4.0
506524878 XXXXXXX XXXXXX 538 BILINGUAL OPERATOR 1 53 PT 1 06/21/1993 4.0
505626327 XXXXXX X XXXXXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 05/19/1993 0.0
507025203 XXXXX X XXXXXXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 07/13/1993 3.0
507686475 XXXXX XXXXXXX 353 CUSTOMER SERVICE XXX. 0 00 XX 0 02/12/1996 1.0
565732624 XXXXXX XXXX 538 BILINGUAL OPERATOR 1 53 FT 1 11/23/1994 2.0
352865233 KATJA R. KUSLERKO-VAN CLE 538 BILINGUAL OPERATOR 1 53 FT 1 06/10/1995 2.0
507987693 XXXXXX R HULTNAM 536 OPERATOR SVCS TEAM LDR 1 53 FT 1 01/08/1996 1.0
508843289 XXXXXXX XXXXX 538 BILINGUAL OPERATOR 1 53 PT 1 05/25/1995 2.0
507251039 XXXXXXXXX A DE MONTJOYS 538 BILINGUAL OPERATOR 1 53 PT 1 08/03/1995 1.0
096583866 XXXXXXX X XXXXXX 536 BILINGUAL OPERATOR 1 53 PT 1 09/06/1995 1.0
360563282 MANERBOL KOPCKE 536 BILINGUAL OPERATOR 1 53 PT 1 09/11/1995 1.0
552335083 XXXXXXX X XXXX 000 XXXXXXXXX XXXXXXXX 0 00 XX 1 09/08/1995 1.0
508901118 EMILE N OLTHAX 536 OPERATOR SVCS TEAM LDR 1 53 PT 1 09/28/1995 1.0
507060892 XXXX X XXXXXX 537 CUSTOMER SUPPORT REP 1 53 PT 1 12/13/1995 1.0
573044903 XXXXX J LOXE 538 BILINGUAL OPERATOR 1 53 PT 1 01/10/1996 1.0
507193943 XXXXXX XXXXXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 03/12/1996 1.0
521703906 MOEIKA XXXXXX 538 BILINGUAL OPERATOR 1 53 PT 1 04/01/1996 1.0
483967346 XXXX X XXXXXX 539 IMS OPERATOR 1 53 PT 1 04/02/1996 1.0
484841245 XXXXXX X XXXXXX-XXXXXX 538 BILINGUAL OPERATOR 1 53 PT 1 04/03/1996 1.0
508986344 XXXX HERBOLSHEIHER 538 BILINGUAL OPERATOR 1 53 FT 1 05/02/1996 1.0
548152930 XXXXXX XXXXXXX 538 BILINGUAL OPERATOR 1 53 PT 1 08/12/1996 0.0
058669358 XXXXX XXXXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 08/19/1996 0.0
EMPLOYEE LISTING as of: 06/18/1997
EMP. ID.. NAME............... JOB.TITLE............ ORG-ID DEPT. STATUS SHIFT HIRED..... SVC-YRS.
532552875 XXXXXX X XXXXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 08/20/1996 0.0
450479521 XXXXXX XX XXXXXXX 000 IMS OPERATOR 1 53 PT 1 08/21/1996 0.0
506177972 XXXXXXXXX X XXXXXX 539 IMS OPERATOR 1 53 PT 1 08/26/1996 0.0
507251037 XXXXX D MONTJOYE 538 BILINGUAL OPERATOR 1 53 PT 1 09/04/1996 0.0
505886391 XXXXXXXX X XXXXXX 538 BILINGUAL OPERATOR 1 53 PT 1 09/10/1996 0.0
508066440 XXXXX XXXXX 538 BILINGUAL OPERATOR 1 53 PT 1 10/02/1996 0.0
508785157 XXXXXX X XXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 10/02/1996 0.0
253195972 XXXXXXXXX BLIFFE-DOUM 538 BILINGUAL OPERATOR 1 53 PT 1 10/05/1996 0.0
507170846 XXXXXXX X XXXXXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 02/19/1997 0.0
506122579 XXX M MONTANEL 538 BILINGUAL OPERATOR 1 53 PT 1 03/03/1997 0.0
461795167 XXXXX X XXXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 05/12/1997 0.0
505272331 XXXXXXX XXXXX 538 BILINGUAL OPERATOR 1 53 FT 1 06/16/1997 0.0
494864831 XXXX M LOEWEY 716 MARKETING SPECIALIST 1 71 FT 1 02/21/1994 3.0
54.0 Sum
Number of Observations: 53
See attached.
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