EXHIBIT 10(a)
STOCK EXCHANGE AGREEMENT
This agreement is made and entered into this 23rd Day of November,
1998 between Communitronics of America, Inc a Utah Corporation and Data
Paging, Inc. a Mississippi Corporation. Communitronics of America, Inc.
(C.OA.) is a public trading corporation, trading under the symbol ("BEEP").
Data Paging, Inc. is 100% owned by Xxxxxxx X. Xxxxx at 0000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxx (Shareholder) a Mississippi Corporation (Licensee)
WITNESSETH
WHEREAS, Shareholders owns all of the issued and outstanding stock
of Licensee ("the Licensee Shares"); and,
WHEREAS, Licensee holds numerous licenses authorized by the FCC for
the provision of communication services ("The System") which are more fully
described on Exhibit A attached hereto; and,
WHEREAS, Communitronics of America, Inc., is developing various
types of communication systems located in major markets through the United
States; and,
WHEREAS, Shareholders desires to assign to Communitronics of
America, Inc. and, Communitronics of America, Inc. desires to acquire from
Shareholder the Licensee shares, on the terms and conditions as set forth
herein; and,
WHEREAS, Communitronics of America and Shareholders intend that such
transaction shall qualify for treatment under Section 368 (a) (lB) of the
Internal Revenue Code; and now
therefore in consideration of these premises and mutual promises and
covenants contained herein, Communitronics of America, Inc. and Licensees and
Shareholders agree as follows:
ARTICLE I
Exchange of stock (a) in accordance with terms set forth in the
"Definitive Agreement" executed between the parties, dated November 23, 1998
and as set forth herein, Communitronics of America, Inc., agrees to acquire
from Shareholders.
The Shareholders agree to assign to Communitronics of America, Inc.
100% of all issued and outstanding voting stock of Data Paging, Inc. in
exchange for 250,000 shares of Communitronics of America 144 Restricted Stock
at $2.00 per share 88 agreed for a value of $500,000.
1.1. DISTRIBUTION OF COMMUNITRONICS OF AMERICA, INC.,SHARES: The
distribution of Communitronics of America, Inc. shares in this transaction
will be to Xxxxxxx X. Xxxxx owner of Data Paging, Inc.
1.2 SHARES: Shares will be in compliance with Rule 144. After 1 year
required by regulation, the stock will cease to be restricted and will be
free trading shares.
1.3 COMMUNITRONICS OF AMERICA, INC.: Communitronics of America, Inc.
hereby guarantees that its shares provided in payment for shares of stock in
Data Paging, Inc. will be worth no less than $2.00 per share in price up to
and including 72 hours following the time at which the Communitronics of
America ~hares transferred herein may be traded pursuant to IRS Rule 144
and/or such other IRS and/or SEC rules and regulations as may be applicable.
1.4 DATA PAGING, INC.: Data Paging, Inc. is to become a wholly owned
subsidiary of
Communitronics of America, Inc. subject to a mortgage on all shares of Data
Paging, Inc. stock, transferred to Communitronics of America, Inc. herein, in
favor of Xxxxxxx X. Xxxxx, until such time as Xxxxxxx X. Xxxxx sells all
shares of said stock in Communitronics of America, Inc or up to and including
72 hours following the time upon which the shares of Communitronics of
America, Inc. transferred herein may be traded pursuant to IRS Rule 144
and/or such other IRS and/or SEC rules and regulations as may be applicable,
whichever occurs first. Should the Communitronics of America shares
transferred Xxxxxxx X. Xxxxx be worth less than two dollars ($2.00) per share
during the time period described above, Communitronics of America does hereby
agree to pay Xxxxxxx X. Xxxxx the difference between the two dollar ($2.00)
guaranteed price and the sale price of the stock or return "the System" to
Data Paging, Inc. along with 811 issued shares of stock in Data raging, Inc.
1.5 PAYMENT FOR SALE AND TRANSFER: The agreement for sale and
transfer of Data Paging, Inc., shall be completed within ten (10) days of a
grant by FCC final order (as defined in Section 5.7 herein) and any other
necessary governmental authorities of an application for consent to the
transfer of contract of the system from Data Paging, Inc. to Communitronics
of America, Inc,
1.6 CLOSING: The closing transaction provided for in this agreement
("closing") shall take place at the corporate offices of Xxxxxx, Xxxxxxxx &
Xxxxxxxxx, PC, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx X, Xxxxxx, Xxxxxxx 00000 at or
about 2:00 P.M. C.S.T., within five (5) business days of the receipt by
Communitronics of America of all government consents to transfer of control
of The System by final order (as defined in Section 5.7 herein) or such other
place and time as mutually agreed to by both parties.
ARTICLE II
2.1 REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER: Shareholders
hereby represent and warrant to Communitronics of America, Inc. the following
material representations as set forth in the following paragraphs of this
Article II.
2.2 INSTRUMENTS OF CONVENIENCE TRANSFER AND CANCELLATION: Subject
other terms and provision herein, Shareholders will at closing execute or to
be executed and delivered to Communitronics of America, Inc.;
(a) A Stock Certificate ("certificate") representing a total of 100%
of the issued and outstanding shares of common voting stock of Data Paging,
Inc. which certificate or certificates (or accompanying assignment separate
from Certificate) shall be in negotiable form, duly endorsed for transfer to
Communitronics of America, Inc., subject to the mortgage established herein
in Section 1.4
(b) Copies of minute books, stock books and all other corporate and
business records or documents of Data Paging, Inc.;
(c) At least ten (10) business days prior to the closing date the
Shareholders will cause to be delivered to Comniunitronics of America, Inc.
an opinion of counsel for the Licensee that
(1) the Licensee is duly incorporated and legally existing in good
standing under the laws in Mississippi, and has full corporate power and
authority to carry on its present business;
(2) The transfer documents to be delivered to Communitronics of
America. Inc. at the closing are fully authorized, executed and delivered by
Shareholders and are valid and binding in
accordance with their terms;
(3) The execution and delivery of this Stock Purchase Agreement and
the consummation of the transactions contemplated herein and permis8ible
under the Articles of Incorporation and By Laws of Data Paging, Inc.
(4) This Stock Purchasing Agreement is a valid and legal obligation
of Shareholders, enforceable by its terms.
(5) Any and all requisite fees and state regulatory approvals of the
consummation of the transactions contemplated herein are granted by final
order (as defined in the Section 5.7 herein) and are in full force and effect
and have not been suspended, modified or revoked;
(6) Unless otherwise disclosed herein, the Shareholders represent
that neither they or Data Paging, Inc. is a party to or affected by any
pending or threatened proceedings, claims or investigations relating to the
stock being transferred to Communitronics of Amenca, Inc.; and,
(7) The Shareholders represent that Data Paging, Inc,, is not
subject to any' restnctions in it's Article of Incorporation or By Laws which
materially and adversely affect its business, property prospects, assets or
condition, financial or otherwise which adversely affects its ability to
carry out its obligation. under this agreement.
(d) Shareholders shall attach as schedules to this agreement copies
of all contracts, either in force or executory, pertaining to the Licensee's
business, and ~ other documents called for in this agreement.
2.3 STATUS OF STOCK WITH RESPECT TO THE SHARES OF STOCKS BEING
TRANSFERRED TO COMMUNITRONICS OF AMERICA, INC.:
(a) Such shares of stock have been lawfully issued, and are fully
paid and not assessable;
(b) Such shares represent a total of 100% of the issued common
voting stock in Licensee;
(c) Such shares are owned free and clear of any pledges, liens.
encumbrances and claims, and are not subject to any restrictions or
limitation~ prohibiting or restricting transfer to Communitronics of America,
Inc. except ~ maybe disclosed in this agreement.
(d) Shareholders have full right, power and authority to sell and
transfer such shares pursuant to this agreement.
(e) The certificates for the shares to be transferred to
Communitronics of America, Inc. will be genuine and together with any
supporting papers shall be in such form as to enable the shares of stocks
represented thereby to be immediately transferred to Communitronics of
America, Inc. on the stock transfer books of the Licensee.
2.4 AVAILABILITY: Shareholders hereby agree that, from time to time
after the closing at Communitronics of Amen ca, Inc.'s request and without
further consideration, Shareholders will executed and deliver such other
instruments of conveyance, assignment and transfer, and take such action as
Communitronics of America, Inc. may reasonable require, to more effectively
convey or transfer to in Communinitronics of America, Inc. possession of the
stock purchased hereunder; and, included in this agreement is 152.4800
frequency in Ocean Springs and Pascagoula, MS and 464.025 as operated.
2.5 COMPLETE TRANSFER: All assets and properties, if any of every
nature in
connection with the business of Licensee are owned by Licensee and are
hereinafter referred to as the "Assets".
2.6 CORPORATE EXISTENCE, ORGANIZATION AND QUALIFICATION OF
LICENSEE: Licensee is a corporation duly incorporated, legally existing and
in good standing under the laws of the State of Mississippi; and, it has no
state or local fees or penalties outstanding; and it has full corporate power
and authority to carry on the business as now being conducted by it. The
authorized stock of Licensee consists solely of: 5000 Shares of voting common
stock, of which 1600 are outstanding in the name of Xxxxxxx X. Xxxxx. There
are on this date no outstanding warrants, options or rights of any kind to
acquire from Licensee shares of stock in Licensee, other than as contained in
this agreement.
2.7 LICENSE'S SUBSIDIARIES AND AFFILIATES: Licensee has no
investments of any kind in any corporation, joint venture or partnership. The
Licenses is not subject to any mortgage, debt or other encumbrance, which
materially or adversely affects it business, properties, assets, or condition.
2.8 LITIGATION: Shareholders have no knowledge of litigation
threatened against or relating to Licensee's business or properties which
might individually or in the aggregate have a material adverse effect on such
business or properties or the financial condition of Licensee, nor has
Shareholder or Licensee received any notice that any basis is known to exist
for any such action or for any governmental investigation relative to
Licensee's business or properties.
2.9 COURT ORDERS AND DECREES: Shareholders assert that there is no
validly
served and effective outstanding order, writ, injunction or decree Of any
court, governmental agency or arbitration tribunal against or which could,
either individually or in the aggregate, have a material adverse effect upon
Licensee's business, property, assets or financial condition.
2.10 COMPLIANCE WITH LAWS: Except as specifically disclosed in
writing to Communitronics of America, Inc.'s counsel prior to execution of
this agreement, Licensees are in compliance with all provisions of all
applicable laws (including environmental laws) regulations and administrative
orders of the United States, all States and each municipality, county, or
subdivision of any thereof, to which its business or any properties may be
subjected which if not complied with either individually or in the aggregate
may have a material adverse effect upon Licensee's business, properties,
assets or financial condition.
2.11. NO ADVERSE CONTRACTS: Except for contracts specifically
identified and of which complete copies thereof specifically identified and
in Exhibit "B" hereto previously delivered to Communitronics of America, Inc.
counsel, Licensee is not obligated under any contract or agreement or any law
which materially and adversely affects its business, properties, prospects,
assets or condition, financially or otherwise.
2.12 EXECUTION AND PERFORMANCE OF AGREEMENT: The parties hereto
represent and agree that execution and performance by Shareholders of this
agreement and the transactions contemplated hereby by the Shareholder will
not violate any provision of, or resort in the breach of, or constitute a
default under, any law, order, writ, injunction, decree or regulation of any
court, state or federal government agency or arbitration, tribunal, or any
contract, agreement,
license, permit or instrument by which any of the stock or licensees,
businesses or property is bound.
2.13 STATUS OF LEASE AND AGREEMENT: Licensees are not a party, by
transfer or otherwise, to any lease or agreement not specifically identified
in Exhibit "C" hereto and disclosed to Commurnitronics of America, Inc. Said
leases and agreements, if any, are not suspended, modified or revoked and
Licensee and its transferors are operating and will continue to operate
without modification of its agreement rights until closing, in compliance
with all of the terms of said agreement.
2.14 STATEMENT AND RECORDS: All books, statements. documents,
records and financial, statements including but not limited to, yearly and
monthly profit and 1088 statements of Licensee furnished or given to
Communitronics of America, Inc. or it agents during the negotiation of and
preparatory to the execution or consummation of the transactions contemplated
herein, including Licensee' S audited due diligence acceptable financial
statement dated November 20, 1998, are true and correct are to be provided to
Communitronics of America are genuine and as accurately contain no material
misrepresentations or omissions of material facts, and all such statements
represent fairly the financial position of Licensee as of the date thereof,
and the results of its operation for the periods designated therein, and were
in prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as otherwise previously disclosed in
writing to Communitronics of America' counsel) throughout the period involved
as of the date of Licensee's latest audited financial statements it had no
liabilities, contingent or otherwise, except in those financial statements,
income statements and other financial documents.
2.15 NO UNDISCLOSED LIABILITY: At closing the Licensee will have no
material liabilities contingent on otherwise except these liabilities
referred to and attached as Exhibit "D" hereto, and those audited liabilities
incurred since that date in the ordinary course of business, but only to the
extent permitted under Article IV.
2.16 TAX RETURNS: Licensees has timely filed all Federal, State and
Local tax returns required to be filed by it by the laws of the United States
and each state which it does business in, including, but not limited to all
taxes with respect to income, property withholding, xxxxxxx'x compensation,
social security and unemployment taxes. To the best of Licensees' knowledge
and belief all such returns are correct as filed and all taxes due and all
additional assessments and penalties and interest thereon received prior to
the date hereof and at closing have been paid. All filed returns were
prepared in accordance with the applicable state's laws and generally
accepted accounting principles relating to taxation. The reserves for any
taxes in licensee's financial statements are sufficient for the payment of
all accrued and unpaid taxes of Licensee, if any.
2.17 Taxes and all personal income excise, conveyance or other taxes
directly related to the transaction contemplated herein which were incurred
prior to the closing of this transaction or concurrent therewith which may
become payable by reason of the sale and purchase of the stock at closing
will be borne by the Shareholders.
2.18 NO UNDISCLOSED CONTRACTS: Licensee has no contracts not
previously disclosed in writing and delivered to Communitronics of America,
Inc.; nor has Licensee caused any contracts for the purchase or sale of
products on services, nor continuing contracts for the future
purchase or lease of materials, supplies, services or equipment or other
property except as previously disclosed in writing to Communitronics of
America, Inc.
2.19 STATUS OF ASSETS: After due inquiry, Shareholders know of no
material adverse condition regarding the business of Licensee not disclosed
herein, exception generally applicable to the Paging industry.
2.20 NEW DIRECTORS AND OFFICERS: At closing the purchase of
Licensee's stock, any election of a new board of directors and officers of
Licensee will not cause the cancellation, beach, acceleration, or any other
material adverse change in terms of any contract or agreement to which
Licensee is bound.
2.21 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND OTHERS:
Licensee is not indebted to any director, officer, employer or agent of
Licensee except as indicated on the financial statement provided to
Communitronics of America or in the ordinary course of business.
2.22 GOVERNMENTAL CONSENT: No consent, approval, order or
authorization or regulation, qualification, designation, declaration or
filing with any governmental authority is required on part of Shareholder in
connection with the acceptance of this agreement and delivery of the stock of
Licensee as contemplated by the agreement, except any approval or filing as
may be required under requirements of the FCC and applicable state
authorities ("PUC").
2.23 FCC AUTHORIZATION: Licensee has been granted FCC authorization
to construct and operate the system by FCC action, which has become a Final
Order (as defined in Section 5.7).
Such authorization has not been suspended, modified, or revoked, and the
Licensee has complied with and will continue without modification with terms
with closing Shareholder knows of no event or condition which would materially
endanger the continued effectiveness of the Authorization.
2.24 DURING THE PERIOD FROM OCTOBER 16, 1998 UNTIL CLOSING DATE:
Shareholder shall riot discuss with, accept offers from or negotiate with any
other party regarding the sale, transfer, or management of Shareholders'
interests in Data Paging, Inc. but will instead deal exclusively and good faith
with Communitronics of America, Inc. regarding the transfer of control of the
Licensee. During this period, Shareholders shall be restricted from encumbering,
agreeing to transfer or convey, or, transferring or conveying any portion of
their interests except with the express written consent of Communitronics of
America, Inc.
2.25 SURVIVAL OF REPRESENTATIONS AND WARRANTIES: The representation
and warranties contained in this agreement shall survive the closing date and
shall bind Shareholders and Shareholders' transfer's heirs and assigns.
ARTICLE III
3.1 REPRESENTATIONS AND WARRANTIES OF COMMUNITRONICS OF AMERICA, INC.:
Communitronics of America, Inc. represents and warrants as set forth in this
Article III.
3.2 QUALIFICATIONS OF COMMUNITRONICS OF AMERICA, INC.: Commurntrorncs
of America, Inc. is a Utah corporation duly qualified to do business in all the
jurisdictions in which it is legally required to be so qualified. Communitronics
of America, Inc. is
legally, financially, technically, and otherwise qualified to acquire Licensee's
stock as contemplated herein.
3.3 AUTHORITY ACTION OF COMMUNITRONICS OF AMERICA, INC.: The execution
and delivery of this agreement by Communitronics of America, Inc. has been duly
authorized by all necessary corporate action. The consummation of the
transaction contemplated by this agreement will not violate any provision in
Communitronics of America, Inc.'s Articles of Incorporation, by-laws, or result
in any breech or default under any applicable State or Federal law, nor any
rule, regulation, order, writ, injunction or decree of any court, state or
federal governmental agency or arbitration tribunal having jurisdiction over
Communitronics of America, Inc. or any contract, agreement or instrument by
which Communitronics of America, Inc. may be bound. All action required of the
Shareholders and directors of Communitronics of America, Inc. in connection with
the execution, delivery and performance of this agreement has been taken.
3.4 LITIGATION: There is not any undisclosed litigation pending or
threatened against Communitronics of America, Inc. which would have a material
adverse effect on the business of Communitronics of America, Inc. or prevent
Communitronics of America, Inc. from fulfilling all its obligation hereunder.
4.1 CONDUCT OF BUSINESS FROM EXECUTION OF THIS AGREEMENT PENDING
CLOSING: From October 16, 1998 until the closing date, Shareholders warrant and
covenant that, pending and as a condition precedent to closing, except as
otherwise consented to in advance in writing by Communitronics of America, Inc.
with respect to Licensee the following, to
wit:
(a) Licensee's business will be conducted only in the ordinary and
usual course business;
(b) No contract or commitment will be entered into by Licensee except
in the ordinary course of business;
(c) No indebtedness for borrowed money will be created, assumed or
incurred by Licensee;
(d) No sale, transfer or other disposition, directly or indirectly, and
mortgage, pledge or other encumbrance, of its assets will be made or entered
into by or on behalf of Licensee (even if made in the ordinary course of
business);
(e) Licensee will use its best efforts to keep the organizations of its
business intact to preserve and maintain its assets and properties;
(f) Licensee will not directly or indirectly do, or agree to do any of
the following acts:
(1) Grant any increase in salaries payable or to become
payable or grant any bonus to any officer, employee,
agent, or representative, except with the consent of
Communitronics of America, Inc.; to any officer,
employee, agent or pension plan or other contract or
(2) Increase benefits payable representative under any
commitment;
(3) Enter into any collective bargaining agreement to
which it is a party or by which it may be bound;
(4) Enter into any employment agreement or other such
agreement;
(5) Pay any obligation or liability, fixed or contingent,
other than current audited
liabilities payable to persons other than
Shareholder, or other related or affiliated entities
or to their employees, agents, shareholders, partners
assigns;
(6) Waive or compromise any right or claim;
(7) Cancel, without full payment any note loan or other
obligation owing to it;
(8) Take any other action, which would materially
diminish the value of its business to Communitronics
of America, Inc.;
(9) Licensee will not directly or indirectly:
a. Declare, set aside or pay any dividend or
make any distribution in respect of its
capital stock;
b. Purchase, redeem, or otherwise acquire any
shares of its capital stock;
c. Change its accounting method or treatment of
any material item; or
d. Enter into any agreement obligation to do
any of the foregoing prohibited acts;
(10) Licensee will not directly or indirectly enter into
any contract or other agreement of any nature with
Shareholders or other related or affiliated persons
or entities or their employees, agents or assigns; or
(11) Licensee will not directly or indirectly modify,
cancel, or terminate any of its existing contracts or
agreements to do any of these acts.
4.2 ACCESS AND INFORMATION: To the extent reasonably required for the
purpose of this agreement Shareholders will permit Communitronics of America,
Inc., its counsel, accountants and other representatives to have full access
during normal business hours throughout the period prior to closing, to its
properties, books and records of Licensee, and will cause to be furnished to
Communitronics of America, Inc. and its representative during such all such
information concerning the affairs of Licensee as Communitronics of America,
Inc. or its representatives may reasonably request, including but not limited
to., subscriber customer data.
ARTICLE V
5.1 CONDITIONS PRESIDENT TO CLOSING: Closing shall occur only upon the
occurrence of all the conditions set forth in this Article V and elsewhere in
this agreement (unless expressly waiving in writing by the party to whose favor
the representation or condition runs at any time prior to closing). Each party
shall have performed its obligations due to be performed hereunder on or before
the closing date.
5.2 REPRESENTATION AND WARRANTIES TRUE WHEN MADE: No
representations or warranty of Shareholders or Communitronics of America, Inc.
contained in this agreement shall be inaccurate or incomplete, nor have
Shareholders knowingly or negligently omitted to disclose any material fact
pertinent to this transaction.
5.3 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING: The
representations and warranties of Shareholders and Communitronics of America,
Inc. contained in this agreement shall be deemed to have been made again at
the time of closing, and shall have
caused all covenants, agreements and conditions required by this agreement to be
performed or complied with prior to or at closing to be so performed and
complied with; and, The parties hereto will furnish to each other a certificate
signed by each respectively, dated on the date of closing date, certifying to
the truth of such representations and to the fulfillment Of all such covenants,
agreements and conditions.
5.4 OCCURRENCE OF EVENTS: All of the following events shall occur
at or prior to closing:
(a) The receipt by Communitronics of America of all government
approvals by final order (as defined in Section 5.9), if any are necessary, and
all other necessary approvals, if any, for the assignment and transfer of the to
Communitronics of America, Inc. with respect to the rights, agreements,
privilege, licenses and franchises referred to in this agreement, including but
not limited to the agreements, if any, referred to in Section 2.13.
Communitronics of America, Inc. and Shareholders agree to cooperate in obtaining
all necessary governmental and third party consents and approvals required to
complete this agreement.
(b) The receipt by Communitronics of America, Inc.'s attorneys of the
documents if any, referred to in Section 2.2.
(c) The mortgage referred to within Section 1.4 herein
5.5 ABSENCE OF ADVERSE CHANGES: Subsequent to the execution of this
agreement and prior to closing Shareholders and Licensee agree that there
shall not be any adverse change in the business or prospects of Licensee's
properties or business and on the closing date,
there shall be delivered to Communitronics of America, Inc. a certificate to
such effect, dated the date of closing and signed by the Shareholders. It is
understood that Shareholders assume all risks of destruction, loss or damage due
to fire or other causes of destruction to the Licensee's properties and business
up to and including the date of closing.
5.6 TERMINATION AS OF RIGHT: If this agreement is terminated pursuant
to Section 8.11 of this agreement) Communitronics of America, Inc. agrees to
return to Shareholders any and all information, documents or assets received
from Shareholders, and Shareholders agree to return to Communitronics of
America, Inc., the funds held by escrow agent pursuant to the Escrow Agreement
and this agreement shall have no effect whatsoever and the transactions
contemplated herein shall terminate and be null and void.
5.7 FINAL ORDER: For purposes of this agreement, a grant by
governmental authority shall be considered a Final Order ("Final Order") when it
is no longer subject to regulatory or administrative reconsideration, review or
appeal, with said times have lapsed with no petition, appeal, objection or other
like adverse pleading having been filed with the FCC or other authority having
jurisdiction over the matter.
ARTICLE VI
6.1 INDEMNIFICATION BY SHAREHOLDERS: Shareholders agree to defend and
hold Communitronics of America, Inc. harmless from any and all losses,
liabilities, expenses, damages Qr costs (including reasonable attorney' s
penalties and interest), payable to or for the benefit of or asserted by any
party, resulting from or arising out of or incurred as a result of the
falsify of any representation or breach of any warranty or covenant made by
Communitronics of America, Inc. herein or in accordance herewith.
6.3 SURVIVAL OF COVENANTS AND WARRANTIES: The representative,
warranties and agreements made by Shareholders, except as they may be fully
performed prior to or contemporaneously with closing, shall survive closing and
shall be fully enforceable at law or in equity against Shareholders, Licensee
and 'their successors and assigns by Communitronics of America, Inc. and its
successors and assigns. The representations, warranties and agreements made by
Communitronics of America, Inc. herein, except as they may be fully performed
prior to or contemporaneously with closing shall survive closing and shall be
enforceable at law or in equity against Communitronics of America, Inc. and it'
successors and assigns. Any investigation at any time made by or on behalf of
(or disclosure to) any party hereto shall not diminish in any respect whatsoever
all parties hereto right to rely on such representation and warranties.
ARTICLE VII
7.1 Notices, all notices, request, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given and
effective upon receipt if delivered in person or by prepaid overnight express
service delivered to the parties hereto at the following addresses:
If to Shareholder:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000-0000
If to Communitronics of America, Inc.:
Xxxxx Xxxxxxxx, President & C.E.O.
Magnolia Shopping Center
00000 Xxxxxxx 00, Xxxxx XX-X
Xxxxxx, XX 00000
(Facsimile (000) 000-0000
with copy to:
Xxxxxx Xxxxxxxx, C.F.O. & Secretary
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 000x0
or such other address as specified by the parties from time to time.
ARTICLE VIII
8.1 NOTICE OF CLAIMS: Shareholder and Communitronics of America, Inc.
each agree to give prompt written notice to the other and to all affected
parties of any claim against the party giving notice which might give rise to a
claim against the party, to include information detailing the nature and basis
of the claim and the actual or estimated amount thereof. In the event action,
suit or proceeding is brought against the Shareholders, Licensee and/or
Communitronics of America, Inc. with respect to which any party hereto may have
liability under the indemnity provisions herein, the indemnifying party shall
have the right, but not the responsibility, at its sole cost and expense, to
defend such action in the name of and on behalf of the indemnified party or
corporation, and in connection with any such action, suit or proceeding and in
connection with any such assistance as may reasonably be required, in order to
insure proper and adequate defense of any such action, suit or proceeding. No
party hereto shall make any settlement of any claim which might give rise to
liability of the other parties hereto under the indemnity provisions contained
herein without the written consent of such other party(s), of which said consent
such party covenants shall not be unreasonably withheld.
8.2 AMENDMENTS: This agreement may be amended or modified only by a
written instrument executed by Communitronics of America, Inc. and Shareholders.
8.3 EXPENSES: Communitronics of America, Inc. agrees to reimburse
Shareholders for out-of-pocket expenses (including capital contribution)
incurred during normal course of operation and construction of the system
between October 16, 1998 and the closing date, provided that said expenses have
been approved in writing by Communitronics of America, Inc. In addition,
Communitronics of America, Inc. shall assume the continuing obligation of the
systems, if any reasonable incurred in the normal course of operation and
construction of the system through such closing date. Communitronics of America,
Inc. shall not reimburse Shareholders for Shareholder's legal expenses
attributable to the sale of their interests. Communitronics of America, Inc.
shall not be reimbursed for reasonable and necessary out-of-pocket expenses or
construction costs incurred by Communitronics of America, Inc. not paid by
System Financing if the FCC or other governmental authority does not approve
contemplated transfer of control of the system without first obtaining written
consent from Shareholders.
8.4 BROKERS: Shareholders agree to indemnity Communitronics of
America, Inc. against any third person for any commission, brokerage fee, finder
fee or other payment alleged to be due as a result of this transaction based
upon any alleged agreement or understanding between such third
person and shareholders whether expressed or implied from actions of
Shareholders or their agents.
8.5 COUNTER PARTS: This agreement may be executed in any number of
counter parts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.6 PARTIES IN INTEREST: This agreement shall inure to the benefit of
and be binding upon Communitronics of America, Inc. and Shareholders (Data
Paging, Inc.) and their respective successors, heirs and assigns. Nothing in
this agreement, either expressed or implied, is intended to confer upon any
other person any rights or remedies under or by reason of this agreement.
8.7 APPLICABLE LAW: The rights and obligations of the parties shall be
construed under and governed by the laws of the State of Utah. Personal
jurisdiction over all parties hereto and venue over any legal action shall be
in the Federal or State courts of general jurisdiction, which are under the
laws of the State of Utah.
8.8 WAIVERS: No provision in this agreement shall be deemed waived by
course of conduct, including the act of closing under Article V unless such
waiver is in writing signed by all parties and stating specifically that it was
intended to modify this agreement.
8.9 SCHEDULES AND EXHIBITS: The exhibits attached hereto shall be
deemed to be incorporated by referenced in this agreement as if fully set forth
herein.
8.10 CAPTIONS: Section headings are descriptive only, and shall have no
legal effects.
8.11 TERMINATION OF RIGHTS: Shareholders (Data Paging, Inc.) and
Communitronics of America, Inc. may terminate this agreement if counsel for
Shareholders and
counsel for Communitronics of America, Inc. determine in good faith that any
provision of this agreement or the performance of any obligation will adversely
affect Shareholders or Licensee's application for, or their qualification to
hold or transfer the FCC authorization or PVC Certificate for the System- If an
irreconcilable difference of opinion develops between counsel for Shareholders
and counsel for Communitronics of America regarding a claim of such adverse
condition, then both counsel shall agree upon a independent counsel whose
opinion shall be determinative in this matter. However, in the event that a
determination is made that such adverse conditions exists, the parties agree to
use their best efforts to cure the adverse or disqualifying condition, provided
that the cure does not substantially diminish the benefits of this agreement to
either party.
8.12 SEVERABLITY: In the event that any item or provision of this
agreement is determines to be void, unenforceable, or contrary to law, the
remainder of this agreement shall continue in full force and effect, provided.
that such continuation would not materially diminish the benefits of this
agreement for either party.
8.13 ASSIGNMENT: No right or obligation herein may be assigned or
delegated by a party, either directly or indirectly, by transfer of control
without the written consent of the other party, where whose consent shall not
be unreasonably withheld.
8.14 ARBITRATION AGREEMENT: Shareholders, Licensee and/or
Communitronics of America, Inc agree that any material dispute arise
out of this agreement between Shareholders, Licensee and/or
Communitronics of America, Inc., said dispute. will be submitted for
resolution by arbitration in accordance with the rules of the
American Arbitration Association. Such arbitration
shall be binding and final. In agreeing to arbitration? all parties acknowledge
that in the event of a dispute, each party is giving up the right to have the
dispute decided in a court of law before a judge of jury, and instead are
accepting the use of arbitration far resolution. The non prevailing party(s) as
a result of the arbitration process 8180 agrees to pay all costs, including
reasonable attorney's fees, incurred in said arbitration process including such
initial fees as may be required to initiate a claim in arbitration.
8.15 ENTIRE AGREEMENT: This agreement and letter agreement entered into
between Shareholders (Data Paging, Inc.) and Communitronics of America, Inc.
constitute the entire agreement between the parties governing the matters
addressed, No prior agreement or representation, whether verbal or written,
shall have any force or effect upon this agreement
12/14/98 s/ Xxxxx Xxxxxxxx
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Dated XXXXX XXXXXXXX
President & C.E.O. of
Communitronics of America, Inc.
11/23/98 s/ Xxxxxx Xxxxxxxx
-------------- ----------------------------------
Dated XXXXXX XXXXXXXX
C.F.O. & Secretary
12/14/98 s/ Xxxxxxx Xxxxx
-------------- ----------------------------------
Dated XXXXXXX XXXXX
Owner of Data Paging, Inc.
12/14/98 s/ Xxxxxx X. Xxxxxxxx
-------------- ----------------------------------
Dated Witness by Xxxxxx X. Xxxxxxxx
Xxxxxx, Xxxxxxxx & Xxxxxxxxx, P.C.
