AMENDMENT TO MERGER AND REORGANIZATION AGREEMENT
THIS AMENDMENT (the "Amendment"), dated as of November 1, 1998, is entered
into between Global Telecommunication Solutions, Inc. ("GTS"), Centerpiece
Communications, Inc. ("CCI") and J. Xxxx Xxxxxxxxxx ("Xxxxxxxxxx").
WHEREAS, GTS, CCI, Xxxxxxxxxx and CCI Acquisition Corporation entered into
that certain Merger And Reorganization Agreement dated as of February 1, 1998
(the "Merger Agreement") pursuant to which CCI was merged with and into a wholly
owned subsidiary of GTS (the "Merger"); and
WHEREAS, simultaneous with the execution of this Amendment Xxxxxxxxxx is
entering into a transaction pursuant to which Xxxxxxxxxx will convey the
Promissory Note and the Stock Consideration he received in consideration of the
Merger to a group of investors; and
WHEREAS, simultaneous with the execution of this Amendment, Xxxxxxxxxx is
entering into an agreement terminating his Employment Agreement with GTS
pursuant to which Xxxxxxxxxx will no longer be employed by GTS in any capacity
whatsoever; and
WHEREAS, pursuant to Section 6.2 of the Merger Agreement, Xxxxxxxxxx, on
behalf of himself and his Affiliates, agreed to not compete with GTS for a
period of four (4) years following the date of the Merger Agreement in any state
of the United States of America (all as defined in the Merger Agreement); and
WHEREAS, the parties desire to amend Section 6.2 of the Merger Agreement to
narrow Xxxxxxxxxx'x non-compete agreement, all as more particularly provided
herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follow:
1. Section 6.2 of the Merger Agreement is hereby amended to read as
follows:
Section 6.2 Restrictive Covenant.
(a) To assure that GTS will realize the value inherent in the transactions
contemplated by this Agreement, the Stockholder agrees with GTS that neither the
Stockholder nor any of his Affiliates (except for the Stockholder's performance
under an Employment Agreement with GTS) nor any person or entity controlling,
controlled by or in any common control with the Stockholder shall, directly or
indirectly, for a period of one (1) year following the date of this Agreement in
any state of the United States of America:
(i) own, manage, operate, control or otherwise engage in a Competitive
Business (as hereinafter defined);
(ii) attempt to solicit or solicit the customers or facilities
serviced by GTS (including, without limitation, those acquired by GTS hereunder
and in connection with GTS' merger with Networks Around The World, Inc.) in
connection with a Competitive Business; or
(iii) attempt to solicit, solicit or employ any person employed or
contracted by GTS (except Xxxxxx Xxxx and Xxxx Xxxxxxxxxx) to leave their
employment or not fulfill their contractual responsibility, whether or not the
employment or contracting is full-time or temporary, pursuant to a written or
oral agreement, or for a determined period or at will.
As used in this Section 6.2, "Competitive Business" shall mean the design,
development and/or marketing of prepaid telecommunications products, including,
without limitation, prepaid phone cards, prepaid cellular products and services,
prepaid dial tone and related services, or prepaid enhanced and/or prepaid
interactive telecommunications services and/or products. Notwithstanding the
foregoing or any other term of the Merger Agreement, as amended, Stockholder,
any Affiliates and any person or entity controlling, controlled by or in common
control with Stockholder may: (i) provide outside consulting services to third
party individuals and/or entities that have not ordered prepaid products or
services from GTS or any of its subsidiaries during the six (6) months
immediately preceding November 1, 1998, regardless of the nature of the business
activities in which such individuals or entities engage or to which such
consulting services relate; and (ii) provide outside consulting services to any
third party individuals and/or entities, regardless of the nature of the
business activities in which such individuals or entities engage, as long as
those consulting services do not relate to the design, development and/or
marketing of prepaid telecommunications products. Nothing in the Merger
Agreement, as amended, shall be interpreted as precluding any entity, including
without limitation, Technology Law Group, LLC ("TLG"), from providing legal
services to third party individuals and/or entities involved in a "Competitive
Business" (it being understood that Stockholder may become a member of a
consulting firm associated with TLG).
(b) If Section 6.2(a) of this Agreement, as applied to the Stockholder or
any other person, is adjudged by a court to be invalid or unenforceable, the
same will in no way affect any other provision of that Section or any other part
of this Agreement, the application of that provision in any other circumstances
or the validity or enforceability of this Agreement. If any provision, or any
part of any provision, is held to be unenforceable because of the duration of
the provision or the geographic scope of the provision, the parties agree that
the court making such determination will have the power to reduce the duration
and/or geographic scope of the provision to the longest permissible duration and
largest permissible geographic scope, and/or to delete specific words or
phrases, and in its reduced form Section 6.2(a) will then be enforced.
Because GTS will be irreparably damaged if the provisions of this Section
6.2 are not specifically enforced, GTS shall be entitled to an injunction
restraining any violation or threatened violation of this Section 6.2, or any
other appropriate decree of specific performance, without the necessity of
showing any actual damage or that monetary damages would not provide an adequate
remedy. Such remedies shall not be exclusive and shall be in addition to any
other remedy which GTS may have as a result of any such violation. Nothing
contained in this Section shall be construed as prohibiting GTS and its
Affiliates from pursuing all other remedies available to them for a breach of
the provisions of Section 6.2. The Stockholder further acknowledges and agrees
that the covenants contained in Section 6.2 are necessary for the protection of
the CCI's and Surviving Corporation's legitimate business interests, and are
reasonable in scope and content.
2. Except as set forth in Section 6.2 of the Merger Agreement as amended
herein, Xxxxxxxxxx shall have no continuing obligation under the Merger
Agreement and is hereby released from all liability of any nature arising at any
time under the Merger Agreement.
3. Neither GTS, nor any of its subsidiaries, including without limitation
CCI, shall have any continuing obligation under the Merger Agreement and each of
GTS and its subsidiaries is hereby released from all liability of any nature
arising at any time under the Merger Agreement.
4. Unless otherwise amended by this Amendment, each of the provisions of
the Merger Agreement shall remain in full force and effect. In the event of a
conflict between a provision contained in this Amendment and a provision
contained in the Merger Agreement, the provision contained in this Amendment
shall prevail. All defined terms not defined in this Amendment, shall have the
meaning ascribed in the Merger Agreement.
5. In the event Xxxxxxxxxx performs consulting services to third party
entities/individuals as provided in Section 6.2 of the amended Merger Agreement,
Xxxxxxxxxx shall have the right to retain all earnings in connection with his
consulting services.
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6. Each of the parties acknowledge and agree that simultaneous with the
execution of this Amendment, Xxxxxxxxxx shall deliver to the Company 47,891
shares of the Company's Common Stock which Xxxxxxxxxx received as apart of the
Merger in full consideration of Xxxxxxxxxx'x liability for the failure of Access
Telecom, Inc. as provided in Section 8.1 of the Merger Agreement.
IN WITNESS WHEREOF, the parties to this Amendment have caused this
Amendment to be duly executed as of the date hereof.
GLOBAL TELECOMMUNICATION SOLUTIONS, INC.,
a Delaware corporation
/s/ Xxxxx Xxxxxxx
By: ________________________________
Xxxxx Xxxxxxx
CENTERPIECE COMMUNICATIONS, INC.,
a New Jersey corporation
/s/ Xxxxx Xxxxxxx
By: _________________________________
Xxxxx Xxxxxxx
STOCKHOLDER:
/s/ J. Xxxx Xxxxxxxxxx
________________________________________
J. Xxxx Xxxxxxxxxx
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