EXHIBIT 10.15
BUY-BACK/SELL-BACK AGREEMENT FOR PURCHASE
OF HARBOR CITY CORPORATION
THIS AGREEMENT made this 18th day of May, 1998, by and between Carnegie
International Corporation, a Colorado Corporation (hereinafter referred to as
"Carnegie"), Harbor City Corporation, t/a ACC Telecom, a Maryland Corporation
(hereinafter referred to as "ACC") and Xxxxx X. Xxxx, an individual, and Xxxxx
X. Xxxx, an individual, (hereinafter Xxxxx X. Xxxx and Xxxxx X. Xxxx shall
collectively be referred to as the "Hunts").
WHEREAS, the Hunts own One Hundred percent (100%) of the stock and
assets of ACC; and
WHEREAS, Carnegie desires to purchase and the Hunts desire to sell One
Hundred percent (100%) of the stock of ACC (the "Shares"); and
WHEREAS, Carnegie owns certain proprietary software through its wholly
owned subsidiary Profit Thru Telecommunications Limited ("PTT") including
Multi-Language Automated Voice Intelligent System ("XXXXX") Software; and
WHEREAS, Carnegie and the Hunts intend to execute a Stock Purchase
Agreement simultaneously with the execution of this Agreement which facilitates
ACC serving as the exclusive marketing agent of XXXXX in North America.
WHEREAS, Carnegie and the Hunts desire that under certain circumstances
that Hunts may Buy-Back the Shares or Carnegie may sell the Shares back to the
Hunts.
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the Parties do hereby agree as follows:
1. PURCHASE PRICE: The Purchase Price of the Shares of ACC shall be as
set forth in the Stock Purchase Agreement.
2. BUY-BACK/SELL-BACK: For a period of twenty-four (24) months from the
date of this Agreement, Xxxxx Xxxx shall have the option to exercise a Buy-Back
of the Shares from Carnegie and Carnegie shall have the option to exercise
Sell-Back of the Shares to the Hunts as follows:
X. Xxxxxxxx shall have the right to exercise a Buy-Back if ACC is
unable to meet its obligations as they become due or does not have sufficient
cash flow to pay expenses for more than two (2) consecutive months.
X. Xxxx shall have the option to Buy-Back and Carnegie shall have
the right to Sell-Back the Shares if XXXXX cannot be sold on a wholesale and/or
retail basis after the exercise of reasonably diligent marketing efforts. At a
minimum, reasonably diligent marketing efforts shall consist of Xxxxx Xxxx
contacting phone system manufacturers and suppliers of ACC, including but not
limited to Comdial, Sprint, Sony and their distributors and the like, phone
dealers with whom Xxxx is associated through common manufacturers or
distributors, existing customers of ACC, new customers of ACC and other phone
business associates of ACC and making a reasonably diligent good faith effort to
explain the XXXXX product and set up an appointment to demonstrate the product
to all such persons and or entities.
C. In the event the Hunts or Carnegie exercise their respective
options to exercise Buy-Back or Sell-Back of the Shares, as the case may be, the
following events shall occur:
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(1) The Party exercising the Buy-Back or Sell-Back option
shall give thirty (30) days prior written notice to the other Parties hereto of
said Party's intent to exercise said option, the closing for which shall occur
within thirty (30) days after the date of receipt of said notice by the
non-exercising Party (hereinafter referred to as the "Buy-Back Date"), unless
another date is agreed to in writing by each of the Parties hereto.
(2) The restricted preferred stock paid to the Hunts for the
Shares pursuant to Section 1.3 of the Stock Purchase Agreement shall be canceled
effective as of the Buy-Back Date and the stock certificate representing the
restricted preferred stock shall be returned to Carnegie. If the restricted
preferred stock has converted to Rule 000 Xxxxxx Xxxxxx Stock, these Shares of
Rule 144 Legend common stock shall be transferred to Carnegie or its designee on
the Buy-Back Date.
(3) The Employment Agreement between ACC and Xxxxx Xxxx and
Xxxxx Xxxx, if any, provisions related thereto contained in other Agreements
between any of the Parties hereto shall be canceled, null and void and of no
further force and effect as of the Buy-Back Date, except for those provisions
that relate to disclosure of information.
(4) The unpaid portion of the One Million Dollar
($1,000,000.00) consideration specified in Section 1.3 of the Stock Purchase
Agreement for the purchase of the Shares shall no longer be due and payable and
shall be canceled and of no further force and effect as of the date of receipt
of notice of exercise of Buy-Back by the non-exercising Party.
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(5) A License Agreement shall be negotiated in good faith
between ACC and Carnegie within sixty (60) days of the notice of exercise of
Buy-Back date that allows ACC to market the XXXXX product.
3. RESTRICTION ON TRANSFER: For the twenty-four (24) month period
commencing on the Closing Date under the Stock Purchase Agreement, Carnegie will
maintain ACC as a wholly owned subsidiary of Carnegie, and will not sell,
transfer or encumber the Shares of ACC, the Premises or the Property, merge ACC
into another entity or otherwise transfer the Shares of ACC, without the prior
written consent of Xxxxx Xxxx.
4. SEVERABILITY: In the event any portion or provision of this
Agreement shall be deemed or adjudged to be illegal or unenforceable, the
remaining portions or provisions of this Agreement shall continue with full
force and biding effect as if the portio so adjudged or deemed illegal or
unenforceable were not originally a part hereof.
5. CAPTIONS: The sectional or marginal titles or captions contained
herein shall be used for convenience and easy reference only, and shall in no
way define or limit the substance of any provisions or sections hereof.
6. AGREEMENT BINDING: This Agreement shall inure to the benefit of the
Parties hereto and shall be binding upon them, their successors, officers,
directors, and assigns. This Agreement constitutes the entire Agreement between
the Parties, and no other promises or inducements have been made other than as
specifically set forth herein. This Agreement shall only be amended or modified
by a written instrument signed by the Parties hereto. This Agreement shall be
construed and interpreted in accordance with the Laws of the State of Maryland.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
ATTEST: BUYER: Carnegie International Corporation
/s/ BY: /s/ Xxxxxx Xxxxxx (SEAL)
Xxxxxx Xxxxxx, President
ATTEST: Harbor City Corporation, t/a ACC Telecom
/s/ BY: /s/ Xxxxx X. Xxxx (SEAL)
WITNESS: SELLERS:
/s/ BY: /s/ Xxxxx X. Xxxx (SEAL)
Xxxxx X. Xxxx
/s/ BY: /s/ Xxxxx X. Xxxx (SEAL)
Xxxxx X. Xxxx
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