WAIVER AND RELEASE AGREEMENT
THIS RELEASE AND AMENDMENT AGREEMENT, dated as of November 6, 2000 (this
"Agreement"), is by and among Virtual Communities, Inc., a Delaware corporation
(the "Company"), and Aspen International Ltd. ("Aspen"), Acqua Wellington Value
Fund Ltd., Narragansett I, LP and Narragansett Offshore, Ltd. (collectively, the
"Purchasers").
RECITALS:
WHEREAS, the Company and the Purchasers have previously entered into that
certain Series C Convertible Preferred Stock Purchase Agreement, dated as of
July 28, 2000 (the "Purchase Agreement"), pursuant to which, among other things,
the Purchasers agreed to purchase $5,500,000 of Series C Preferred Stock, par
value $01 per share (the "Preferred Stock"), of the Company and warrants (the
"Warrants") to purchase shares of the common stock, par value $.01 per share
(the "Common Stock"), of the Company in two or more tranches (the "July
Financing").
WHEREAS, the Company and the Purchasers have previously entered into that
certain Registration Rights Agreement, dated as of July 28, 2000 (the
"Registration Rights Agreement"), pursuant to which, among other things, the
Company agreed to file a registration statement covering the resale of the
shares of Common Stock issuable upon conversion of the Preferred Stock and
exercise of the Warrants (the "Registration Statement") with the Securities and
Exchange Commission within thirty (30) days after the closing of the first
tranche of the July Financing the "Filing Date") and have such registration
statement declared effective within ninety (90) days after the Filing Date (the
"Effectiveness Date").
WHEREAS, pursuant to the Purchase Agreement, the Company agreed to pay
from the aggregate purchase price, at the closing of the first tranche, all
attorneys' fees and expenses (exclusive of disbursements and out-of-pocket
expenses) incurred by the Purchasers up to $55,000 in connection with the July
Financing (the "Fees").
WHEREAS, the closing of the final tranche of $2,000,000 in respect of the
July Financing was to occur on or before August 31, 2000 and as of the date
hereof the Purchasers had only purchased in the aggregate $2,010,000 of
Preferred Stock and Warrants.
WHEREAS, as of the date hereof, the Registration Statement had not been
filed with or declared effective by the Securities and Exchange Commission and
the Company had not paid the Fees.
WHEREAS the Company and the Purchasers believe that it is in their
respective mutual
best interests to waive certain provisions of the Registration Rights Agreement
and the Purchase Agreement in connection with the July Financing.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, the parties hereby
agree as follows:
1. Waiver.
(a) Each of the Purchasers hereby waives the Company's obligation to
file the Registration Statement by the Filing Date and have such Registration
Statement declared effective by the Effectiveness Date, provided, the Company
files the registration Statement on or before the 30th day after the date hereof
(the "New Filing Date") and has the Registration Statement declared on or before
the 60th day after the New Filing Date (the "New Effectiveness Date").
Notwithstanding the foregoing, if the Company fails to file the Registration
Statement by the New Filing Date or have it declared effective by the New
Effectiveness Date, this waiver shall automatically terminate and be of no
further force and effect.
(b) Each of the Purchasers hereby waives the Company's obligation to
pay the Fees at the Tranche I Closing, provided, the Company pays such Fees on
or before December 10, 2000. Notwithstanding the foregoing, if the Company fails
to pay the Fees on or before December 10, 2000, this waiver shall automatically
terminate and be of no further force and effect.
2. Releases.
(a) The Company hereby releases, waives, relinquishes, renounces and
forever discharges each of the Purchasers, together with the respective
stockholders, subsidiaries, affiliates, successors and assigns of each such
Purchaser, as well as their respective present and former directors, officers,
managers, employees, agents, attorneys and other representatives acting on their
behalf and the successors and assigns of each of them (each a "Purchaser
Released Party"), from any and all claims, suits, debts, liens, liabilities,
losses, causes of action, rights, damage, demands, obligations, promises, costs
and expenses (including, without limitation, attorneys' fees and expenses) of
every kind, nature and description, in law or in equity, whether known or
unknown, or known in the future, fixed or contingent, billed or unbilled,
suspected, disclosed or undisclosed, claimed or concealed, from the beginning of
time through the date of this Agreement, which the Company could assert against
any Purchaser Released Party relating to or arising out of the failure of the
Purchasers to purchase the remaining $3,490,000 of Preferred Stock and Warrants
pursuant to the Purchase Agreement.
(b) If the Company brings any claim, suit, action or other
proceeding against any Purchaser Released Party in any administrative
proceeding, in arbitration, at law, in equity or mixed, in any way connected
with, relating to or arising out of any right, matter or thing which is released
hereby, then the Company agrees to jointly and severally indemnify and hold
harmless such Purchaser Released Party in amount of any final monetary judgment
or settlement and any related costs (including, without limitation, its
reasonable attorneys' fees and expenses) entered
against, paid or incurred by the Purchaser Released Party arising from such
claim, suit, action or proceeding.
3. Miscellaneous.
(a) Except as otherwise expressly provided herein, the Purchase
Agreement shall remain in full force and effect in accordance with its terms.
(b) This Agreement shall be governed by, and construed in accordance
with, the laws of the state of New York (without giving effect to the conflicts
of laws principles thereof).
(c) This Agreement shall be binding on the parties hereto and their
respective successors and permitted assigns under the Purchase Agreement.
(d) The parties hereto agree to execute and deliver such further
documents and instruments as maybe reasonably required or requested by the other
parties hereto in order to more fully effect the purposes of this Agreement in a
manner consistent with the terms thereof.
(e) This Agreement may be executed in two or more counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Waiver and
Release Agreement as of the ___th day of November, 2000.
VIRTUAL COMMUNITIES, INC.
By: _____________________________________
Name:
Title:
ASPEN INTERNATIONAL, INC.
By: _____________________________________
Name:
Title:
ACQUA WELLINGTON VALUE FUND, LTD.
By: _____________________________________
Name:
Title:
NARRAGANSETT I, LP
By: _____________________________________
Name:
Title:
NARRAGANSETT OFFSHORE, LTD.
By: _____________________________________
Name:
Title: