Exhibit 10.1
EXCHANGE AGREEMENT
BETWEEN
XXX.XXX, INC.
AND
INTERNET COMMUNICATIONS CORPORATION
Dated as of March 17, 2000
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT, dated as of March 17, 2000 (this
"Agreement"), is made and entered into by and between XXX.XXX, Inc., a Delaware
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corporation ("RMI"), and Internet Communications Corporation, a Colorado
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corporation (the "Company").
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RECITALS
A. Concurrently herewith RMI and the Company are entering into an
Agreement and Plan of Merger (the "Merger Agreement") pursuant to which a
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wholly-owned subsidiary of RMI will be merged (the "Merger") with and into the
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Company, with the Company as the surviving entity.
B. As a condition to their willingness to enter into the Merger
Agreement, each of RMI and the Company has required the other party to enter
into this Agreement.
C. Capitalized terms used herein and not otherwise defined shall have
the respective meanings ascribed to them in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, representations,
warranties and agreements herein contained and as contained in the Merger
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, the parties hereto
hereby agree as follows:
ARTICLE 1
THE EXCHANGE; ESCROW OF SHARES; CLOSING
1.1 Signing.
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(a) Timing. The execution of this Agreement (the "Signing")
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shall take place at the offices of Xxxxx, Johnson, Robinson, Xxxx &
Ragonetti, P.C., 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000, at 10:00 a.m., local time, on the date on which the Merger Agreement
is executed by all parties thereto (the "Signing Date"), or at such other
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time and place as RMI and the Company shall mutually agree upon in writing.
(b) Delivery of RMI Exchange Shares. At or within one (1)
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business day after the Signing, pursuant to an escrow agreement
substantially in the form of Exhibit A attached hereto (the "Escrow
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Agreement"), RMI shall deposit in escrow with Norwest Bank, Colorado,
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National Association (the "Escrow Agent") a duly-executed stock certificate
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representing the RMI Exchange Shares issued in the name of the Company,
which shares shall be held by the Escrow Agent until released in accordance
with the terms hereof and of the Escrow Agreement. The period of time
during which such shares are held in escrow shall be referred to herein as
the "Escrow Period".
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(c) Legal Opinion. At the Signing, RMI shall deliver to the
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Company a legal opinion regarding the validity of this Agreement, the share
exchange contemplated herein
and the issuance of the RMI Exchange Shares, in form and substance
reasonably satisfactory to the Company and its legal counsel.
1.2 Closing.
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(a) Timing. If no Reversion has occurred, the Escrow Agent shall
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cause the RMI Exchange Shares (as defined herein) to be released and
delivered to the Company in exchange for the issuance and delivery to RMI
of Company Exchange Shares (as defined herein) (the "Exchange"). The
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Exchange shall take place (the "Closing") at the offices of Otten, Johnson,
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Xxxxxxxx, Xxxx & Xxxxxxxxx, P.C., 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000, at 10:00 a.m., local time, on the date that is two
(2) business days following the termination of the Escrow Period (the
"Closing Date") or at such other time and place as RMI and the Company
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shall mutually agree upon in writing.
(b) Share Exchange.
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(i) At the Closing, the Company shall deliver or cause to be
delivered to RMI or to the Escrow Agent, and shall issue and sell to
RMI and RMI shall purchase from the Company, that number of newly-
issued shares of common stock, no par value per share, of the Company
(the "Company Common Stock") equal to 19.9% of the Company Common
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Stock outstanding on the Signing Date (the "Company Exchange Shares").
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(ii) The purchase price (the "RMI Exchange Shares") to be
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paid for the Company Exchange Shares shall be released by the Escrow
Agent and paid at Closing with the number of shares of RMI Common
Stock (as hereinafter defined) equal to the product of (A) 19.9% of
the Company Common Stock outstanding on the Signing Date multiplied by
(B) the quotient of (i) $3.25 divided by (ii) the RMI Share Price (as
defined herein) and rounding the result to the nearest one thousandth
of a share.
"RMI Common Stock" means the common stock, par value $0.001 per
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share, of RMI. The "RMI Share Price" means the average of the daily
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closing prices per share of RMI Common Stock on the Nasdaq National
Market for the fifteen (15) consecutive trading days ending on the
trading day that is one (1) day prior to the Signing Date.
(c) Legal Opinion. At the Closing, and as an express condition to
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the occurrence of an Exchange hereunder, the Company shall deliver to RMI a
legal opinion regarding the validity of this Agreement, the share exchange
contemplated herein and the issuance of the Company Exchange Shares, in
form and substance substantially similar in all material respects to the
legal opinion delivered by RMI pursuant to Section 1.1(c) hereof.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF RMI
RMI represents and warrants to the Company as follows:
2.1 Organization, Standing and Power. RMI is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to carry on its
business as now being conducted. Each Subsidiary of RMI is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and has the requisite corporate power and
authority to carry on its business as now being conducted. RMI and each of its
Subsidiaries is duly qualified to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification necessary, except where
the failure to be so qualified would not, individually or in the aggregate, have
a Material Adverse Effect on RMI. For purposes of this Agreement, "Material
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Adverse Change" or "Material Adverse Effect" means, when used with respect to
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RMI, any change or effect that is or could reasonably be expected (as far as can
be reasonably foreseen at the time) to be materially adverse to the business,
assets, liabilities, results of operations, or the financial condition of RMI
and its Subsidiaries, taken as a whole.
2.2 Authority. RMI has all requisite corporate power and authority
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to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by RMI, the consummation
by RMI of the transactions contemplated hereby and the performance by RMI of its
obligations hereunder have been duly authorized by all necessary corporate
action on the part of RMI. This Agreement has been duly executed and delivered
by RMI and (assuming the valid authorization, execution and delivery of this
Agreement by the Company and the validity and binding effect hereof on the
Company) constitutes the valid and binding obligation of RMI enforceable against
it in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws relating to
or affecting creditors rights generally and by general equity principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2.3 Consents and Approvals; No Violation. The execution and delivery
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of this Agreement by RMI does not, and the consummation by RMI of the
transactions contemplated hereby will not, conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination under, or accelerate the
performance required by, or result in the creation of any lien, security
interest, charge, increase in liability or other encumbrance upon the RMI Common
Stock or any of the assets of RMI under any provision of:
(a) Law. Any law, statute, rule, regulation or judicial or
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administrative decision,
(b) Governing Documents. The certificate of incorporation, by-
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laws or any other governing document of RMI or any of its Subsidiaries,
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(c) Other Agreements. Any mortgage, deed of trust, lease, note,
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shareholders' agreement, bond, indenture, contract or other instrument or
agreement, or
(d) Legal Order. Any judgment, order, writ, injunction or decree
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of any court, governmental body, administrative agency or arbitrator
relating to RMI or any of its Subsidiaries,
other than conflicts, violations, defaults, rights of termination or Liens which
could not reasonably be expected to have a Material Adverse Effect or could not
reasonably be expected to affect materially and adversely the enforceability or
validity of this Agreement.
2.4 RMI Common Stock to be Issued in the Exchange. All of the shares
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of RMI Common Stock issuable in exchange for Company Common Stock at the Closing
in accordance with this and subject to the terms of this Agreement will be, when
so issued, duly authorized, validly issued, fully paid and nonassessable and
free and clear of any and all Liens, including Liens created by statute, RMI's
certificate of incorporation or by-laws or any agreement to which RMI is a party
or by which RMI is bound.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to RMI as follows:
3.1 Organization, Standing and Power. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Colorado and has the requisite corporate power and authority to carry
on its business as now being conducted. Each Subsidiary of the Company is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is organized and has the requisite corporate
power and authority to carry on its business as now being conducted. The
Company and each of its Subsidiaries is duly qualified to do business, and is in
good standing, in each jurisdiction where the character of its properties owned
or held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified would not, individually
or in the aggregate, have a Material Adverse Effect on the Company. For
purposes of this Agreement, "Material Adverse Change" or "Material Adverse
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Effect" means, when used with respect to the Company, any change or effect that
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is or could reasonably be expected (as far as can be reasonably foreseen at the
time) to be materially adverse to the business, assets, liabilities, results of
operations, or the financial condition of the Company and its Subsidiaries,
taken as a whole.
3.2 Authority. The Company has all requisite corporate power and
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authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Company, the consummation by the Company of the transactions contemplated hereby
and the performance by the Company of its obligations hereunder have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and (assuming the
valid authorization, execution and delivery of this Agreement by RMI and the
validity and binding effect of the Agreement on RMI) constitutes the valid and
binding
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obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors
rights generally and by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3.3 Consents and Approvals; No Violation. The execution and delivery
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of this Agreement by the Company does not, and the consummation by the Company
of the transactions contemplated hereby will not, conflict with, or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination under, or accelerate the
performance required by, or result in the creation of any lien, security
interest, charge, increase in liability or other encumbrance upon the Company
Common Stock or any of the assets of the Company under any provision of:
(a) Law. Any law, statute, rule, regulation or judicial or
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administrative decision,
(b) Governing Documents. The articles of incorporation, by-laws
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or any other governing document of the Company or any of its Subsidiaries,
(c) Other Agreements. Any mortgage, deed of trust, lease, note,
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shareholders' agreement, bond, indenture, contract or other instrument or
agreement, or
(d) Legal Order. Any judgment, order, writ, injunction or decree
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of any court, governmental body, administrative agency or arbitrator
relating to the Company or any of its Subsidiaries,
other than conflicts, violations, defaults, rights of termination or Liens which
could not reasonably be expected to have a Material Adverse Effect or could not
reasonably be expected to affect materially and adversely the enforceability or
validity of this Agreement.
3.4 Company Common Stock to be Issued in the Exchange. All of the
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shares of Company Common Stock issuable in exchange for RMI Common Stock in
accordance with and subject to the terms of this Agreement will be, when so
issued, duly authorized, validly issued, fully paid and nonassessable and free
and clear of any Liens, including Liens created by statute, the Company's
articles of incorporation or by-laws or any agreement to which the Company is a
party or by which the Company is bound.
ARTICLE 4
OWNERSHIP AND EXPENSES
4.1 Ownership During Escrow Period. During the Escrow Period, the
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RMI Exchange Shares shall continue to be owned by and held in the name of RMI,
and the Company shall not be permitted to vote, sell, assign, transfer, pledge
or otherwise dispose of, encumber or exercise any rights with respect to the RMI
Exchange Shares.
4.2 Fees and Expenses. Except for the costs and expenses of the
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Escrow Agent (which shall be borne equally between RMI and the Company), all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including the fees
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and disbursements of counsel, financial advisors and accountants, shall be paid
by the party incurring such costs and expenses.
ARTICLE 5
TERMINATION OF ESCROW, AMENDMENT AND WAIVER
5.1 Termination of Escrow Period. The Escrow Period shall
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automatically expire and terminate upon the earlier to occur of (i) the
expiration or termination of the Merger Agreement for any reason, (ii) the
consummation of the Merger, or (iii) either of the events described in Section
5.2(a) or Section 5.2(b). In any of these events, on or before the Closing Date
the Escrow Agent shall effect the Exchange or Reversion, as applicable, in
accordance with this Article 5.
5.2 Escrowed Shares Returned; No Exchange. If the Escrow Period
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expires or is terminated as a result of and only as a result of any of the
following events, the Escrow Agent shall immediately cause the RMI Exchange
Shares to be returned to RMI, whereupon no Company Exchange Shares will be
issued or delivered to RMI, no Closing shall occur, and the Exchange shall not
be effected (a "Reversion"):
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(a) Both RMI and the Company provide mutual or simultaneous
written notice to the Escrow Agent to cause a Reversion;
(b) The Company, at its sole discretion, independently provides
written notice to the Escrow Agent directing the Escrow Agent to effect a
Reversion hereunder;
(c) The Company, rather than RMI, terminates the Merger Agreement
for any or for no reason other than as expressly provided below, and
provides written notice to RMI thereof, provided that RMI or the Company
subsequently provides such written notice of termination of the Merger
Agreement to the Escrow Agent. Notwithstanding the foregoing, however, a
Reversion shall not occur under this Section 5.2(c) if the notice of
termination states that the Company has terminated the Merger Agreement:
(i) pursuant to Section 7.1(c) of the Merger Agreement, due
to a material uncured breach of a representation, warranty, covenant
or obligations of RMI under the Merger Agreement; or
(ii) pursuant to Section 1.5(d) of the Merger Agreement,
because the Closing Share Price is equal to or less than 60% of the
Signing Share Price;
(d) RMI, rather than the Company, terminates the Merger Agreement upon
an uncured default by the Company under Section 4.2(b) of the Merger
Agreement when (i) the Prohibited Action (as defined therein) would give
rise to a financial effect on the Company in excess of $375,000; or (ii) it
would be commercially reasonable for the Company to cure the default caused
by such Prohibited Action; and RMI or the Company provides the Escrow Agent
with a copy of such notice of termination; or
(e) The Merger contemplated by the Merger Agreement is consummated.
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5.3 Closing; Release and Exchange of Escrowed Shares. Unless the
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Escrow Agent has effected a Reversion hereunder, in which event the provisions
of Section 5.2 will apply, on the Closing Date the Closing will proceed as
described in Section 1.2 hereof. Upon the occurrence or nonoccurrence of any
event that causes a termination of the Escrow Period but does not result in a
Reversion pursuant to Section 5.2, either party may provide written notification
to the Escrow Agent of such event, which notice shall set forth specifically the
date upon which the Closing of the Exchange shall occur.
5.4 Voting and Transfer Rights Following Exchange. If the Exchange
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is consummated in accordance with the provisions of this Agreement, the
following voting and transfer rights and restrictions will apply to the RMI
Exchange Shares and the Company Exchange Shares:
(a) Voting Restrictions on RMI Exchange Shares. The Company
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hereby grants to the board of directors of RMI, acting by majority in
interest, the Company's irrevocable proxy and hereby appoints such board of
directors as its attorney-in-fact to vote all of the RMI Exchange Shares
until such shares are sold or otherwise transferred in a manner expressly
permitted hereunder to a party other than the Company or the Controlling
Shareholder or an affiliate of the Company or the Controlling Shareholder,
any shareholder, officer, director, employee, consultant, or agent of the
Company or the Controlling Shareholder or an affiliate of the Company or
the Controlling Shareholder, or any child, spouse, parent, grandparent, or
issue or nominee of any of them. The Company acknowledges that this proxy
is coupled with an interest and irrevocable and agrees to take such further
action and execute such other instruments as may be necessary to effectuate
the intent of this irrevocable proxy.
(b) Voting Restrictions on Company Exchange Shares. RMI hereby
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grants to the board of directors of the Company, acting by majority in
interest, RMI's irrevocable proxy and hereby appoints such board of
directors as its attorney-in-fact to vote all shares of Company Exchange
Shares until such shares are sold or otherwise transferred in a manner
expressly permitted hereunder to a party other than RMI or an affiliate of
RMI, any shareholder, officer, director, employee, consultant, or agent of
RMI or an affiliate of RMI, or any child, spouse, parent, grandparent, or
issue or nominee of any of them. RMI acknowledges that this proxy is
coupled with an interest and irrevocable and agrees to take such further
action and execute such other instruments as may be necessary to effectuate
the intent of this irrevocable proxy.
(c) Transfer Restrictions on RMI Exchange Shares. The Company
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agrees that during the 365-day period immediately following such Exchange
(the "Restricted Period") it shall not and shall have no right to sell,
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assign, transfer, pledge or otherwise dispose of or encumber any RMI
Exchange Shares at any time or in any manner without the prior written
consent of RMI, provided, however, that, subject to the volume restrictions
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in subsection (e) below, the Company shall have the right during such
Restricted Period, and without RMI's prior written consent, to sell up to
and including:
(i) 200,000 shares of RMI Common Stock if (X) the average of the
daily closing prices per share of RMI Common Stock on the Nasdaq
National
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Market for each of any fifteen (15) consecutive trading days prior to
any such sale is greater than or equal to 150% of the RMI Share Price
and (Y) the sale price for such sale is greater than or equal to 150%
of the RMI Share Price; and
(ii) an additional 100,000 shares of RMI Common Stock if (X) the
average of the daily closing prices per share of RMI Common Stock on
the Nasdaq National Market for each of any fifteen (15) consecutive
trading days prior to any such sale is greater than or equal to 200%
of the RMI Share Price and (Y) the sale price for such sale is greater
than or equal to 200% of the RMI Share Price.
If the Closing of the Exchange occurs hereunder, RMI shall grant to
the Company certain demand and piggy-back registration rights relating to
the RMI Exchange Shares pursuant to a registration rights agreement
substantially in the form of Exhibit C attached hereto (the "Company
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Registration Rights Agreement").
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(d) Transfer Restrictions on Company Exchange Shares.
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(i) Definitions. For purposes of this Section 5.4(d), the term
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"Base Ratio" shall mean the ratio of 200,000 over the total number of
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RMI Exchange Shares; and the term "Ceiling Ratio" shall mean the ratio
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of 100,000 over the total number of RMI Exchange Shares.
(ii) Restrictions. RMI agrees that during the Restricted Period
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immediately following such Exchange it shall not and shall have no
right to sell, assign, transfer, pledge or otherwise dispose of or
encumber any Company Exchange Shares at any time or in any manner
without the prior written consent of the Company; provided, however,
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that, subject to the volume restrictions in subsection (e) below, RMI
shall have the right during such Restricted Period and without the
Company's prior written consent to sell up to and including:
a) that number of shares of Company Common Stock equal to
the product of the Base Ratio times the total number of Company
Exchange Shares; provided, however, that RMI may only sell such
Company Common Stock under this subsection (ii)(a) if (X) the
average of the daily closing prices per share of Company Common
Stock on the Nasdaq SmallCap Market for each of any fifteen (15)
consecutive trading days prior to any such sale is greater than
or equal to $4.875, and (Y) the sale price for such sale is
greater than or equal to $4.875; and
b) an additional number of shares of Company Common Stock
equal to the product of the Ceiling Ratio times the total number
of Company Exchange Shares; provided, however, that RMI may only
sell such Company Common Stock under this subsection (ii)(b) if
(X) the average of the daily closing prices per share of Company
Common Stock on the Nasdaq SmallCap Market for each of any
fifteen (15) consecutive
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trading days prior to any such sale is greater than or equal to
$6.50, and (Y) the sale price for such sale is greater than or
equal to $6.50.
If the Closing of the Exchange occurs hereunder, the Company shall
grant to RMI certain demand and piggy-back registration rights relating to
the Company Exchange Shares pursuant to a registration rights agreement
substantially in the form of Exhibit B hereto (the "RMI Registration Rights
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Agreement").
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(e) Volume Restrictions. Notwithstanding anything to the contrary
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herein, during the Restricted Period immediately following an Exchange, the
Company shall not at any time sell RMI Exchange Shares, and RMI shall not
sell Company Exchange Shares, on any single trading day in amounts in
excess of five percent 5% of the average daily trading volume of RMI Common
Stock on the Nasdaq National Market, or Company Common Stock on the Nasdaq
SmallCap Market, as applicable, for the five (5) consecutive trading days
prior to the date of any such sale.
5.5 Amendment. This Agreement may be amended by the parties hereto
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only by an instrument in writing signed on behalf of each of the parties hereto.
5.6 Waiver. The failure of either party hereto to enforce at any
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time any of the provisions of this Agreement shall in no way be construed to be
a waiver of any such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of such party thereafter to enforce
each and every such provision. No waiver of any breach of or non-compliance
with this Agreement shall be held to be a waiver of any other or subsequent
breach or non-compliance.
5.7 Survival. The terms and conditions of this Article 5 will
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survive the expiration or termination of the Escrow Period for any reason.
ARTICLE 6
GENERAL PROVISIONS
6.1 Survival of Representations and Warranties; No Other
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Representations and Warranties. The representations and warranties in this
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Agreement or in any instrument delivered pursuant to this Agreement shall
terminate upon the expiration or termination of the Escrow Period pursuant to
Section 5.1 hereof. Each party hereto agrees that, except for the
representations and warranties contained in this Agreement, neither the Company
nor RMI makes any other representations and warranties, and each hereby
disclaims any other representations and warranties made by itself or any of its
officers, directors, employees, agents, financial and legal advisors or other
representatives, with respect to the execution and delivery of this Agreement,
the documents and the instruments referred to herein, or the transactions
contemplated hereby or thereby, notwithstanding the delivery or disclosure to
the other party or the other party's representatives of any documentation or
other information with respect to any one or more of the foregoing.
6.2 Notices. All notices and other communications hereunder shall be
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in writing and shall be deemed given when delivered personally, one day after
being delivered to an overnight
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courier to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(a) RMI. If to RMI, to:
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XXX.XXX, Inc.
000 - 00/xx/ Xxxxxx, xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Vice President and General
Counsel
with a copy to:
Xxxxx, Johnson, Robinson, Xxxx & Xxxxxxxxx, P.C.
000 - 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Xxxxxxxxxx, Xxxxx & Xxxxxx, P.C.
000 - 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(b) Company. If to the Company, to:
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Internet Communications Corporation
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
One Xxxxx Center, Suite 1500
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
6.3 Interpretation.
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(a) Headings. When a reference is made in this Agreement to a
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Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation."
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(b) "Subsidiary" means any corporation, partnership, limited liability
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company, joint venture or other legal entity of which RMI or Company, as
the case may be (either alone or through or together with any other
Subsidiary), owns or controls, directly or indirectly, 50% or more of the
stock or other equity interests the holders of which are generally entitled
to vote for the election of the board of directors or other governing body
of such corporation, partnership, limited liability company, joint venture
or other legal entity.
6.4 Counterparts. This Agreement may be executed in counterparts,
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all of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
6.5 Entire Agreement; No Third-Party Beneficiaries. This Agreement
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constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
6.6 Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the internal laws of the State of Colorado,
without regard to conflicts of law principles thereof.
6.7 Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder may be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of
the other parties. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors or assigns.
6.8 Severability. If any term or other provision of this Agreement
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is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other terms, conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement may be consummated as
originally contemplated to the fullest extent possible.
6.9 Enforcement of this Agreement. The parties hereto agree that
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irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof, such remedy being
in addition to any other remedy to which any party is entitled at law or in
equity. Each party hereto irrevocably submits to the exclusive jurisdiction of
the United States District Court for the District of Colorado. Each party
hereto waives any right to a trial by jury in connection with any such action,
suit or proceeding and waives any objection based on forum non conveniens or any
other objection to venue thereof.
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6.10 Defined Terms. Each of the following terms is defined in the
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Section identified below:
Agreement.................................................. Preamble
Base Ratio........................................ Section 5.45.4(d)
Ceiling Ratio..................................... Section 5.45.4(d)
Closing............................................. Section 1.2(a)
Closing Date........................................ Section 1.2(a)
Company.................................................... Preamble
Company Common Stock................................. Section 1.2(b)
Company Exchange Shares.............................. Section 1.2(b)
Company Registration Rights Agreement................ Section 5.4(c)
Escrow Agent......................................... Section 1.1(b)
Escrow Agreement..................................... Section 1.1(b)
Escrow Period........................................ Section 1.1(b)
Exchange............................................. Section 1.2(a)
Material Adverse Change............................ Section 2.1, 3.1
Material Adverse Effect............................ Section 2.1, 3.1
Merger.................................................... Recitals
Merger Agreement.......................................... Recitals
Restricted Period.................................... Section 5.4(d)
Reversion............................................... Section 5.2
RMI........................................................ Preamble
RMI Common Stock..................................... Section 1.2(b)
RMI Exchange Shares.................................. Section 1.2(b)
RMI Registration Rights Agreement.................... Section 5.4(d)
RMI Share Price...................................... Section 1.2(b)
Signing Date......................................... Section 1.1(a)
Signing.............................................. Section 1.1(a)
Subsidiary........................................... Section 6.3(b)
IN WITNESS WHEREOF, RMI and the Company have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first above written.
XXX.XXX, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
______________________________________
Name: Xxxxxxx X. Xxxxxx
____________________________________
Title: Chairman and CEO
___________________________________
INTERNET COMMUNICATIONS CORPORATION,
a Colorado corporation
By: /s/ Xxx Xxxxxx
______________________________________
Name: Xxx Xxxxxx
____________________________________
Title: President
___________________________________
-12-
EXHIBIT A
ESCROW AGREEMENT
EXHIBIT B
RMI REGISTRATION RIGHTS AGREEMENT
EXHIBIT C
COMPANY REGISTRATION RIGHTS AGREEMENT
