STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of February 13,
2002, by and between COMC, Inc., a Delaware corporation (the "Company") and
______________________________ ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Purchaser wishes to purchase from Company, and Company wishes to
sell to Purchaser, an aggregate of __________ shares of the Common Stock (the
"Shares") on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, and intending to be
legally bound, the parties hereto hereby agree as follows:
1. Purchase of Shares. On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, Purchaser will purchase the Shares from the Company
at $0.15 per share, for an aggregate purchase price of $___________ (the
"Purchase Price"), payable to the Company at the Closing in (as defined below).
The Purchase Price shall be paid to the Company at the Closing by check, or wire
transfer of immediately available funds to an account designated by the Company
in a written notice delivered to such Investors prior to the Closing Date.
2. Closing. The closing of the purchase and sale of the Shares hereunder
(the "Closing") shall take place upon execution of this Agreement and
satisfaction of the terms and conditions set forth herein at the offices of
McCutchen, Doyle, Xxxxx & Xxxxxxx, LLP. The date of the Closing is referred to
herein as the "Closing Date."
3. Representations and Warranties of Company. Company hereby represents
and warrants to Purchaser that:
(a) Organization and Standing. The Company is a corporation duly organized
and validly existing under, and by virtue of, the laws of the State of Delaware
and is in good standing under such laws. The Company has all requisite corporate
power to own and operate its assets and to carry on its business as presently
conducted and as proposed to be conducted. The Company is qualified to do
business as a foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse affect on the Company or its business
or prospects (a "Material Adverse Affect")
(b) Corporate Power. The Company has all requisite legal and corporate
power to execute and deliver this Agreement to sell and issue the Shares under
this Agreement, to issue the Common Stock issuable upon conversion of the Shares
and to carry out and perform its obligations under the terms of the Agreement,
including all exhibits and schedules hereto and thereto.
(c) Subsidiaries. The Company owns one hundred percent (100%) of the
issued and outstanding capital stock of ICF Communication Solutions, Inc., a
California corporation. The Company does not own or control, directly or
indirectly, any other corporation, association or business entity.
(d) Capitalization. The authorized capital stock of the Company
immediately prior to the Closing shall consist of 40,000,000 shares of Common
Stock, of which (A) 17,392,754 shares shall have been validly issued and shall
be outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof, (B) 5,216,187 shares shall have been duly
reserved initially for issuance upon exercise of currently outstanding options
or warrants of the Company, and (C) 1,500,000 shares shall have been duly
reserved initially for issuance upon conversion in the event of a payment
default of outstanding indebtedness of the Company.
(e) Authorization. All corporate action on the part of the Company, its
directors and shareholders necessary for the authorization, execution, delivery
and performance of the Agreement by the Company, the authorization, sale,
issuance and delivery of the Shares and the performance of the Company's
obligations under the Agreement has been taken or will be taken prior to the
Closing. The Agreement, when executed and delivered by the Company, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency, the relief of debtors, general equity principles, and
limitations upon rights to indemnity. The Shares, when issued in compliance with
the provisions of this Agreement, will be duly and validly issued, fully paid
and nonassessable; provided, however, that the Shares may be subject to
restrictions on transfer under state and/or federal securities laws as set forth
herein.
(f) Compliance with Other Instruments, etc. The Company is not, and will
not by virtue of entering into and performing the Agreement and the transactions
contemplated thereunder be, in violation of any term of its Certificate of
Incorporation or Bylaws or any term or provision of any material mortgage,
indenture, contract, agreement, instrument, judgment or decree to which it is a
party or by which it is bound, and is not, and will not by virtue of entering
into and performing the Agreement and the transactions contemplated thereunder
be, in violation of any order addressed specifically to the Company nor, to the
best of the Company's knowledge, any material order, statute, rule or regulation
applicable to the Company, other than any of the foregoing such violations that
do not, either individually or in the aggregate, have a material adverse affect
on the Company's business as presently conducted or planned to be conducted.
(g) Governmental Consent, etc. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Company is required in connection with the valid execution and delivery
of the Agreement, or the offer, sale or issuance of the Shares or the
consummation of any other transaction contemplated thereby, except such filings
as may be determined by counsel to the Company to be necessary to secure an
exemption from registration under the Securities Act of 1933, as amended (the
"Securities Act") which filing, if required, will be accomplished in a timely
manner prior to or promptly upon completion of the Closing.
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(h) Offering. Subject to the accuracy of the representations set forth in
Section 4 hereof, the offer, sale and issuance of the Shares pursuant to this
Agreement (i) constitute transactions exempt from the registration requirements
of Section 5 of the Securities Act and (ii) is in compliance with all applicable
state securities laws.
(i) Brokers or Finders. The Company has not incurred, and will not incur,
any liability for brokerage or finders' fees or agents' commissions or any
similar charges in connection with the Agreement,
4. Representations and Warranties of Purchaser. Purchaser represents and
warrants to each of the Company and Company that:
(a) Purchaser understands that Shares have not been registered under the
Act or any applicable state securities law, and may not be sold except pursuant
to an effective registration statement under the Act, or pursuant to a duly
available exemption from such registration requirements;
(b) Purchaser is purchasing the Shares for his own account and not with a
view to or for sale which would be in violation of the Act;
(c) In effecting the purchase of the Shares, Purchaser has not engaged in
any activities which would necessitate registration of the Shares under the Act
or any applicable state securities laws;
(d) Purchaser is a sophisticated investor, and qualifies as an accredited
investor under the Act, with such experience in financial and business matters
that he is capable of evaluating the merits and risks of the purchase of the
Shares; and Purchaser has had access to, and has been furnished with all such
information as he has considered necessary, including the Company's Annual
Report on Form 10-K for the year ended December 31, 2000, and Purchaser has
concluded that he is able to bear these risks;
(e) the Shares were not offered or sold to Purchaser by any form of
general solicitation or general advertising;
(f) Purchaser acknowledges that if any transfer of the Shares is to be
made in reliance on an exemption under the Act, the Company, as issuer of the
Shares, may require an opinion of counsel satisfactory to it that such transfer
may be made pursuant to an exemption under the Act;
(g) In making any subsequent offer or sale of the Shares, Purchaser will
be acting for himself and not as part of a sale or planned distribution which
would be in violation of the Act or any applicable state securities laws; and
(h) Purchaser acknowledges that for so long as appropriate, the legend
concerning transfer of the Shares currently set forth on the Shares will remain
on the Shares.
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5. Conditions to Closing.
(a) Conditions to All Parties' Obligations. The obligations of all the
parties to this Agreement to effect the purchase and sale of the Shares shall be
subject to the fulfillment of the following conditions:
(i) No temporary restraining order, preliminary or permanent
injunction or other order or restraint issued by any court of
competent jurisdiction, no order, decree, restraint or pronouncement
by any governmental entity, and no other legal restraint or
prohibition which would prevent or have the effect of preventing the
consummation of the sale of the Shares shall have been issued or
adopted or be in effect.
(ii) The parties shall have received all necessary contractual
and regulatory consents to effect the transactions contemplated
hereby.
(iii) There shall not be any litigation or governmental
proceeding seeking to enjoin or challenging, or seeking damages in
connection with, or having been threatened with respect to, the sale
of the Shares that, in the parties' respective judgment, makes it
inadvisable to proceed with the sale of the Shares.
(iv) The Company shall have executed and delivered the
Registration Rights Agreement in the form of Exhibit F attached
hereto.
(b) Conditions to the Obligations of Company. The obligations of Company
under this Agreement to consummate the sale of the Shares are subject to the
fulfillment at or prior to the Closing Date of the following conditions:
(i) The representations and warranties of Purchaser set forth
herein shall be true and correct as of the Closing Date.
(ii) Purchaser shall have duly performed and complied with the
covenants, agreements and conditions required by this Agreement to be
performed by or complied with by each of them, respectively, prior to
or at the Closing Date.
(iii) All corporate proceedings of the Company to be taken or
required to be taken in connection with the transactions contemplated
hereby have been taken on or prior to the Closing Date and all
documents incident thereto shall be reasonably satisfactory in form
and substance to Company, and Company shall have received all such
information and such counterpart originals or certified or other
copies of such documents as Company may reasonably request.
(c) Conditions to the Obligations of Purchaser. The obligations of
Purchaser under this Agreement to effect the transactions contemplated hereby
are subject to the fulfillment at or prior to the Closing Date of the following
conditions:
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(i) The representations and warranties of the Company and Company
set forth herein shall be true and correct as of the Closing Date.
(ii) The Company and Company shall have duly performed and
complied with the covenants, agreements and conditions required by
this Agreement to be performed by or complied with by it or him,
respectively, prior to or on the Closing Date.
(iii) All corporate proceedings of the Company to be taken or
required to be taken in connection with the transactions contemplated
hereby have been taken on or prior to the Closing Date and all
documents incident thereto shall be reasonably satisfactory in form
and substance to Purchaser and his counsel, and Purchaser and his
counsel shall have received all such information and such counterpart
originals or certified or other copies of such documents as Purchaser
and his counsel may reasonably request.
(iv) The Company shall have delivered, or cause to be delivered,
to Purchaser a certificate or certificates representing the Shares to
be sold by Company hereunder in negotiable form.
(v) On the Closing Date, Company shall pay, and shall hold
Purchaser harmless from and against, all transfer, sales, stamp,
registration, documentary or other similar taxes ("Transfer Taxes")
payable in connection with the transactions contemplated hereby and
will prepare and file any tax returns and other filings relating
thereto. Company and Purchaser shall be responsible for their own
personal income tax gain based on the purchase price contemplated
hereby. The Company shall pay when due any and all other taxes which
become payable, and all fees and charges, in connection with the
transactions contemplated hereby.
6. Survival of Representations and Warranties; Indemnification.
(a) All representations and warranties by the Company, Company and
Purchaser shall survive the Closing and shall remain in full force and effect
for a period equal to one year following the Closing Date, notwithstanding any
investigation at any time by or on behalf of any party or parties to this
Agreement, and shall not be considered waived by consummation of the
transactions contemplated by this Agreement, notwithstanding any alleged
knowledge of any breach. No claim for damages shall be brought after the third
anniversary of the date hereof.
(b) Each of Purchaser, on the one hand, and the Company, on the other
hand, agrees to indemnify and hold each other harmless from and against and to
reimburse the other with respect to, any and all loss, damage, liability, cost
or expense, including reasonable attorneys' fees, incurred by the other by
reason of or arising out of or in connection with: (i) a breach by each such
party of their respective representations or warranties contained herein, or in
any certificate delivered by any such party, as the case may be, pursuant to
this Agreement, and (ii) the failure of any such party to perform any act
required by this Agreement to be performed by it, respectively.
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7. Further Assurances. To the extent that applicable laws require the
execution and delivery of additional agreements, documents or instruments or the
taking of any other action in order to effectively transfer beneficial ownership
of the Shares to Purchaser, each of the parties hereto agrees to execute and
deliver all such agreements, documents or instruments and to take such action as
soon as reasonably possible and to effectuate the intentions and purposes of
this Agreement.
8. Notices. Any notice or other communication under this Agreement shall
be in writing and shall be considered given when received and shall be delivered
personally, mailed by registered or certified mail, return receipt requested,
or, to the extent available, sent by facsimile transmission to the parties at
the addresses set forth below (or at such other address as a party may specify
by notice to the other):
If to Company: Xxxxx Xxxxx, President & CEO
COMC, Inc.
0000 Xxxx Xxxx, Xxxxx X
Xxxxxxxx, XX 00000
If to Purchaser:
Phone No.: __________
9. Assignment, Transferees. Purchaser may not assign his rights or
obligations under this Agreement without the prior written consent of Company.
Subject to the foregoing, this Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
any provisions relating to conflicts of laws.
11. Entire Agreement. This Agreement, including the agreements and
Exhibits referred to herein, states the entire agreement between the parties
with respect to the subject matter hereof and no provision hereof may be
modified, waived or terminated orally, but only by a writing signed by the
parties.
12. Headings. The headings in this Agreement are inserted for convenience
and reference only and are not to be used in construing or interpreting any of
the provisions of the Agreement.
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13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above mentioned.
COMC, INC.
By:
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Chief Executive Officer
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Purchaser's Signature
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