AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
COLUMBIA CAPITAL CORP.,
AND
FIRST INDEPENDENT COMPUTERS, INC.
TABLE OF CONTENTS
1. Plan of Reorganization. . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Pre-Closing Events. . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Exchange of Securities. . . . . . . . . . . . . . . . . . . . . . . . 2
5. Post Acquisition Events . . . . . . . . . . . . . . . . . . . . . . . 3
6. Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. Delivery of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 3
8. Representations of FIC Shareholders . . . . . . . . . . . . . . . . . 3
9. Representations of FIC. . . . . . . . . . . . . . . . . . . . . . . . 4
10. Representations of Columbia and Xxxxx . . . . . . . . . . . . . . . . 5
11. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. Conditions Precedent to the Obligations of FIC. . . . . . . . . . . . 7
13. Conditions Precedent to the Obligations of Columbia . . . . . . . . . 9
14. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15. Nature and Survival of Representations. . . . . . . . . . . . . . . . 10
16. Documents at Closing. . . . . . . . . . . . . . . . . . . . . . . . . 10
17. Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Signature Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Exhibit A - FIC Stockholder Schedule
Exhibit B - Amendment to Certificate of Incorporation
Exhibit C - Investment Letter
(i)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this 29th day of August, 1997, by and among
Columbia Capital Corp., a Delaware corporation (hereinafter "Columbia"); Xxxx
Xxxxx an officer, director and principal shareholder of Columbia (hereinafter
"Xxxxx"); First Independent Computers, Inc., a Texas corporation (hereinafter
"FIC"), and the owners of all the outstanding shares of common stock of FIC
(hereinafter the "FIC Stockholders").
RECITALS:
WHEREAS, the FIC Stockholders own all of the issued and outstanding
common stock of FIC which comprises 1,000 shares (the "FIC Common Stock").
Columbia desires to acquire the FIC Common Stock solely in exchange for
voting common stock of Columbia, making FIC a wholly-owned subsidiary of
Columbia; and
WHEREAS, the FIC Stockholders (as set forth on the attached Exhibit "A")
desire to acquire voting common stock of Columbia in exchange for the FIC
Common Stock, as more full set forth herein.
NOW THEREFORE, for the mutual consideration set out herein, and other
good and valuable consideration, the receipt of and legal sufficiency of
which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. PLAN OF REORGANIZATION. It is hereby agreed that all of the FIC
Common Stock shall be acquired by Columbia in exchange solely for Columbia
common voting stock (the "Columbia Shares"). It is the intention of the
parties hereto that all of the issued and outstanding shares of capital stock
of FIC shall be acquired by Columbia in exchange solely for Columbia common
voting stock and that this entire transaction qualify as an organizational
exchange under Section 351 of the Internal Revenue Code of 1986, as amended,
and related or other applicable sections thereunder and/or a corporate
reorganization under Section 368(a)(1)(B).
2. EXCHANGE OF SHARES. Columbia and FIC Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the FIC Common Stock
shall be delivered at Closing to Columbia in exchange for the Columbia
Shares, after giving effect to a 1 for 2 reverse stock split as to all
presently outstanding shares of Columbia common stock, as follows:
(a) The Columbia Shares will, on the Closing Date or at the Closing,
be delivered to FIC Stockholders in exchange for their FIC Common Stock on
the basis of 11,250 Columbia Shares for each outstanding share of the FIC
Common Stock.
(b) At Closing, Columbia shall, subject to the conditions set forth
herein, issue an aggregate of 11,250,000 shares of Columbia common stock to
the FIC Stockholders. The 11,250,000 shares and all future references herein
to the Columbia Shares are stated after giving effect to a 1 for 2 reverse
stock split of the currently outstanding shares of common stock of Columbia
(the "Columbia Reverse Stock Split").
(c) Each FIC Stockholder shall execute this Agreement.
(d) Unless otherwise agreed by Columbia and FIC this transaction shall
close only in the event Columbia is able to acquire all of the outstanding
FIC Common Stock.
3. PRE-CLOSING EVENTS. The Closing is subject to the completion of the
following:
(a) Columbia shall have authorized 50,000,000 shares of $.001 par value
common stock an 5,000,000 shares of $.001 par value preferred stock. The
preferred stock shall be subject to issuance in such series and with such
rights, preferences and designations as determined in the sole discretion of
the board of directors.
(b) Columbia shall have effectuated the Columbia Reverse Stock Split at
or prior to Closing, and shall have 1,250,000 shares of its common stock
issued and outstanding and no other shares of capital stock issued or
outstanding.
(c) Columbia shall demonstrate to the reasonable satisfaction of FIC
that it has no material assets and no liabilities contingent or fixed.
4. EXCHANGE OF SECURITIES. As of the Closing Date each of the
following shall occur:
(a) Each share of FIC Common Stock issued and outstanding immediately
prior to the Closing Date shall be exchanged for 11,250 shares of Columbia
common stock. All such outstanding shares of FIC Common Stock shall be
deemed, after Closing, to be owned by Columbia. The holders of such
certificates previously evidencing shares of FIC Common Stock outstanding
immediately prior to the Closing Date shall cease to have any rights with
respect to such shares of FIC Common Stock except as otherwise provided
herein or by law;
(b) Any shares of FIC Common Stock held in the treasury of FIC
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
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(c) The 1,250,000 shares of Columbia common stock previously issued and
outstanding prior to the Closing will remain outstanding.
5. POST-ACQUISITION EVENTS. Upon Closing, the following shall be
accomplished:
(a) Columbia shall file an amendment to its certificate of
incorporation with the Secretary of State of the State of Delaware in
substantially the form attached hereto as Exhibit "B" effecting an amendment
to its certificate of incorporation and to accomplish the Columbia Reverse
Stock Split set forth in the attached Exhibit "B".
(b) The resignation of the existing Columbia officers and directors and
appointment of new officers and directors as described in Section 12(f)
hereof.
6. OTHER MATTERS.
(a) Except for the recapitalization of Columbia, including the Columbia
Reverse Stock Split, there shall be no stock dividend, stock split,
recapitalization, or exchange of shares with respect to or rights issued in
respect of, Columbia's capital stock after the date hereof and there shall be
no dividends paid on Columbia's capital stock after the date hereof, in each
case through and including the Closing Date.
(b) FIC shall have received all requisite director and shareholder
approval of all matters set forth herein, and no shareholder of FIC shall
have exercised any dissenters rights under applicable corporate law.
(c) Columbia shall have received all requisite shareholder approval of
the matters set forth herein.
7. DELIVERY OF SHARES. On or as soon as practicable after the Closing
Date, FIC will use its best efforts to cause the FIC Stockholders to
surrender for cancellation certificates representing their shares of FIC
Common Stock, against delivery of certificates representing the Columbia
Shares for which the shares of FIC Common Stock are to be exchanged at
Closing.
8. REPRESENTATIONS OF FIC STOCKHOLDERS. FIC Stockholders hereby
represent and warrant each only as to its own FIC Common Stock, effective
this date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the FIC Common Stock is
free from claims, liens, or other encumbrances, and at the Closing Date FIC
Stockholders will have good title and the unqualified right to transfer and
dispose of such FIC Common Stock.
(b) Each FIC Stockholder, respectively, is the sole owner of the issued
and outstanding FIC Common Stock as set forth in Exhibit "A";
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(c) No FIC Stockholder has the present intent to sell or dispose of the
Columbia Shares and no FIC Stockholder is under a binding obligation, formal
commitment, or existing plan to sell or otherwise dispose of the Columbia
Shares.
9. REPRESENTATIONS OF FIC. FIC hereby represents and warrants as
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the FIC Stockholders listed on the
attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of FIC.
(b) FIC has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in Exhibit "A",
attached hereto.
(c) The audited financial statements as of and for the four months
ended April 30, 1997, and years ended December 31, 1996 and 1995, which have
been delivered to Columbia (hereinafter referred to as the "FIC Financial
Statements") are complete and accurate and fairly present the financial
condition of FIC as of the dates thereof and the results of its operations
for the periods covered; subject to normal year-end adjustments in the case
of the April 30, 1997 statements. There are no material liabilities or
obligations, either fixed or contingent, not disclosed in the FIC Financial
Statements or in any exhibit thereto or notes thereto other than contracts or
obligations in the ordinary course of business; and no such contracts or
obligations in the ordinary course of business constitute liens or other
liabilities which materially alter the financial condition of FIC as
reflected in the FIC Financial Statements. FIC has good title to all assets
shown on the FIC Financial Statements subject only to dispositions and other
transactions in the ordinary course of business, the disclosures set forth
therein and liens and encumbrances of record. The FIC Financial Statements
have been prepared in accordance with generally accepted accounting
principles consistently applied (except as may be indicated therein or in the
notes thereto).
(d) Since the date of the FIC Financial Statements, there have not been
any material adverse changes in the financial position of FIC except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of FIC.
(e) FIC is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected
in the FIC Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are
threatened against FIC.
(f) FIC is in good standing in its state of incorporation, and is in
good standing and duly qualified to do business in each state where required
to be so qualified except where the failure to so qualify would have no
material negative impact on FIC.
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(g) FIC has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof)
due or required to be filed and has (or will have) paid or made adequate
provisions for all taxes or assessments which have become due as of the
Closing Date.
(h) FIC has not materially breached any material agreement to which it
is a party. FIC has previously given Columbia copies or access thereto of
all material contracts, commitments and/or agreements to which FIC is a party
including all relationships or dealings with related parties or affiliates.
(i) FIC has no subsidiary corporations.
(j) FIC has made its corporate financial records, minute books, and
other corporate documents and records available for review to present
management of Columbia prior to the Closing Date, during reasonable business
hours and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which FIC is a party and has
been duly authorized by all appropriate and necessary corporate action and
FIC, to the extent required, has obtained all necessary approvals or consents
required by any agreement to which FIC is a party.
(l) All information regarding FIC which is set forth in its
Confidential Business Plan dated July 1997, or otherwise delivered to
Columbia by FIC for use in connection with the transaction described herein
is true, complete and accurate in all material respects.
10. REPRESENTATIONS OF COLUMBIA AND XXXXX. Columbia and Xxxxx hereby
jointly and severally represent and warrant as follows, each of which
representations and warranties shall continue to be true as of the Closing
Date:
(a) As of the Closing Date, the Columbia Shares, to be issued and
delivered to the FIC Stockholders hereunder will, when so issued and
delivered, constitute, duly authorized, validly and legally issued shares of
Columbia common stock, fully-paid and nonassessable.
(b) Columbia has the corporate power to enter into this Agreement and
to perform its respective obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by the board of directors of Columbia. The
execution and performance of this Agreement will not constitute a material
breach of any agreement, indenture, mortgage, license or other instrument or
document to which Columbia is a party and will not violate any judgment,
decree, order, writ, rule, statute, or regulation applicable to Columbia or
its properties. The execution and performance of this Agreement will not
violate or conflict with any provision of the certificate of incorporation or
by-laws of Columbia.
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(c) Columbia has delivered to FIC a true and complete copy of its
audited financial statements for the years ended December 31, 1996 and 1995,
(the "Columbia Financial Statements"). The Columbia Financial Statements are
complete, accurate and fairly present the financial condition of Columbia as
of the dates thereof and the results of its operations for the periods then
ended. There are no material liabilities or obligations either fixed or
contingent not reflected therein except as provided in subparagraph (e)
below. The Columbia financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
(except as may be indicated therein or in the notes thereto) and fairly
present the financial position of Columbia as of the dates thereof and the
results of its operations and changes in financial position for the periods
then ended.
(d) Since December 31, 1996, there have not been any material adverse
changes in the financial condition of Columbia except advances by Xxxxx to
pay reasonable and ordinary expenses in connection with maintaining its
corporate status and pursuing the matters contemplated in this Agreement.
Prior to Closing such advances and all accounts payable and other liabilities
of Columbia shall be paid and satisfied.
(e) Columbia is not a party to or the subject of any pending
litigation, claims, or governmental investigation or proceeding not reflected
in the Columbia Financial Statements or otherwise disclosed herein, and there
are no lawsuits, claims, assessments, investigations, or similar matters, to
the best knowledge of Xxxxx, threatened or contemplated against or affecting
Columbia, its management or its properties.
(f) Columbia is duly organized, validly existing and in good standing
under the laws of the State of Delaware; has the corporate power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where
the failure to so qualify would have no material negative impact.
(g) Columbia has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms,
or reports, which are due or required to be filed by it prior to the date
hereof, except where the failure to do so would have no material adverse
impact on Columbia, and has paid or made adequate provision in the Columbia
Financial Statements for the payment of all taxes, fees, or assessments which
have or may become due pursuant to such returns or pursuant to any
assessments received. Columbia is not delinquent or obligated for any tax,
penalty, interest, delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital
stock or other securities of Columbia, except as contemplated in this
agreement.
(i) The corporate financial records, minute books, and other documents
and records of Columbia have been made available to FIC prior to the Closing.
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(j) Columbia has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that Columbia has breached, any
of the terms or conditions of any agreements, contracts or commitments to
which it is a party or by which it or its properties is bound. The execution
and performance hereof will not violate any provisions of applicable law or
any agreement to which Columbia is subject. Columbia hereby represents that
it is not a party to any material contract or commitment other than
appointment documents with its transfer agent, and that it has disclosed to
FIC all relationships or dealings with related parties or affiliates.
(k) Columbia common stock is eligible for quotation on the NASD
Electronic Bulletin Board and there are no stop orders in effect with respect
thereto.
(l) All information regarding Columbia which has been provided to FIC
in the Columbia Information Statement dated August , 1997 or otherwise
disclosed to the public in connection with the transactions contemplated
herein, is true, complete and accurate in all material respects. Columbia
and Xxxxx make no representations or warranties regarding disclosures as to
FIC or its proposed business.
11. CLOSING. The Closing of the transactions contemplated herein shall
take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing shall be no later than September 30, 1997,
unless extended by mutual consent of all parties hereto. The "Closing Date"
of the transactions described herein (the "Acquisition"), shall be that date
on which all conditions set forth herein have been met and the Columbia
Shares are issued in exchange for the FIC Common Stock.
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF FIC. All obligations of
FIC under this Agreement are subject to the fulfillment, prior to or as of
the Closing and/or the Closing Date, as indicated below, of each of the
following conditions:
(a) The representations and warranties by or on behalf of Xxxxx and
Columbia contained in this Agreement or in any certificate or document
delivered pursuant to the provisions hereof shall be true in all material
respects at and as of the Closing and Closing Date as though such
representations and warranties were made at and as of such time.
(b) Columbia shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and
delivered all documents required by this Agreement to be performed or
complied with or executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of Columbia,
shall have approved in accordance with applicable state corporation law the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein.
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(d) On or before the Closing Date, Columbia shall have delivered to FIC
certified copies of resolutions of the board of directors and shareholders of
Columbia approving and authorizing the execution, delivery and performance of
this Agreement and authorizing all of the necessary and proper action to
enable Columbia to comply with the terms of this Agreement including the
election of FIC's nominees to the Board of Directors of Columbia and all
matters outlined herein.
(e) The Acquisition shall be permitted by applicable state law and
Columbia shall have sufficient shares of its capital stock authorized to
complete the Acquisition.
(f) At Closing, the existing officers and directors of Columbia shall
have resigned in writing from all positions as directors and officers of
Columbia upon the election and appointment of the FIC nominees.
(g) At the Closing, all instruments and documents delivered to FIC and
FIC Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for FIC.
(h) The shares of restricted Columbia capital stock to be issued to
FIC Stockholders at Closing will be validly issued, nonassessable and
fully-paid under Delaware corporation law and will be issued in a nonpublic
offering and isolated transaction in compliance with all federal, state and
applicable securities laws.
(i) FIC shall have received the advice of its tax advisor, if deemed
necessary by FIC, that the exchange of shares is a tax free reorganization as
to the exchanging FIC shareholders.
(j) FIC shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) At the Closing, Columbia shall have delivered to FIC an opinion of
its counsel dated as of the Closing to the effect that:
(i) Columbia is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and delivered
by Columbia and is a valid and binding obligation of Columbia enforceable
in accordance with its terms;
(iii) Columbia each through its board of directors and stockholders
has taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Columbia to FIC and FIC
Stockholders hereunder are valid and binding in accordance with their terms
and vest in
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FIC Stockholders, as the case may be, all right, title and interest in and
to the Columbia Shares to be issued pursuant to the terms hereof, and the
Columbia Shares when issued will be duly and validly issued, fully-paid
and nonassessable;
(v) Columbia has the corporate power to execute, deliver and perform
under this Agreement;
(vi) Legal counsel for Columbia is not aware of any liabilities,
claims or lawsuits involving Columbia;
13. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF COLUMBIA. All
obligations of Columbia under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties by FIC contained in this
Agreement or in any certificate or document delivered pursuant to the
provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) FIC shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing;
(c) FIC shall deliver on behalf of the FIC Stockholders a letter
commonly known as an "Investment Letter," signed by each of said
shareholders, in substantially the form attached hereto as Exhibit "C",
acknowledging that the Columbia Shares are being acquired for investment
purposes.
(d) FIC shall deliver an opinion of its legal counsel to the effect that:
(i) FIC is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation and is duly qualified
to do business in any jurisdiction where so required except where the
failure to so qualify would have no material adverse impact on FIC;
(ii) This Agreement has been duly authorized, executed and delivered
by FIC.
(iii) The documents executed and delivered by FIC and FIC
Stockholders to Columbia hereunder are valid and binding in accordance with
their terms and vest in Columbia all right, title and interest in and to
the FIC Common Stock, which stock is duly and validly issued, fully-paid
and nonassessable.
14. INDEMNIFICATION. For a period of one year from the Closing,
Columbia and Xxxxx agree to jointly and severally indemnify and
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hold harmless FIC, and FIC agrees to indemnify and hold harmless Columbia and
Xxxxx, at all times after the date of this Agreement against and in respect
of any liability, damage or deficiency, all actions, suits, proceedings,
demands, assessments, judgments, costs and expenses including attorney's fees
incident to any of the foregoing, resulting from any material
misrepresentations made by an indemnifying party to an indemnified party, an
indemnifying party's breach of covenant or warranty or an indemnifying
party's nonfulfillment of any agreement hereunder, or from any material
misrepresentation in or omission from any certificate furnished or to be
furnished hereunder.
15. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties and covenants made by any party in this Agreement shall survive
the Closing and the consummation of the transactions contemplated hereby for
one year from the Closing. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and not upon any investigation upon which it might have made or any
representation, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth herein.
16. DOCUMENTS AT CLOSING. At the Closing, the following documents
shall be delivered:
(a) FIC will deliver, or will cause to be delivered, to Columbia the
following:
(i) a certificate executed by the President and Secretary of FIC to
the effect that all representations and warranties made by FIC under this
Agreement are true and correct as of the Closing, the same as though
originally given to Columbia on said date;
(ii) a certificate from the state of incorporation of FIC dated at or
about the Closing to the effect that FIC is in good standing under the laws
of said state;
(iii) Investment Letters in the form attached hereto as Exhibit "C"
executed by each FIC Stockholder;
(iv) such other instruments, documents and certificates, if any, as
are required to be delivered pursuant to the provisions of this Agreement;
(v) certified copies of resolutions adopted by the shareholders and
directors of FIC authorizing this transaction; and
(vi) all other items, the delivery of which is a condition precedent
to the obligations of Columbia as set forth herein.
(vii) the legal opinion required by Section 13(d) hereof.
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(b) Columbia will deliver or cause to be delivered to FIC:
(i) stock certificates representing the Columbia Shares to be issued
as a part of the stock exchange as described herein;
(ii) a certificate of the President of Columbia, to the effect that
all representations and warranties of Columbia made under this Agreement
are true and correct as of the Closing, the same as though originally given
to FIC on said date;
(iii) certified copies of resolutions adopted by Columbia's board of
directors and Columbia's Stockholders authorizing the Acquisition and all
related matters;
(iv) certificate from the jurisdiction of incorporation of Columbia
dated at or about the Closing Date that Columbia is in good standing under
the laws of said state;
(v) opinion of Columbia's counsel as described in Section 12(k)
above;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignation of all of the existing officers and directors of
Columbia; and
(viii) all other items, the delivery of which is a condition
precedent to the obligations of FIC, as set forth in Section 13 hereof.
17. FINDER'S FEES. Columbia, represents and warrants to FIC, and FIC
represents and warrants to Columbia that neither of them, or any party acting
on their behalf, has incurred any liabilities, either express or implied, to
any "broker" of "finder" or similar person in connection with this Agreement
or any of the transactions contemplated hereby. In this regard, Columbia, on
the one hand, and FIC on the other hand, will indemnify and hold the other
harmless from any claim, loss, cost or expense whatsoever (including
reasonable fees and disbursements of counsel) from or relating to any such
express or implied liability.
18. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
(b) WAIVER. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
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(c) TERMINATION. All obligations hereunder may be terminated at the
discretion of either party's board of directors if (i) the closing conditions
specified in Sections 12 and 13 are not met by September 30, 1997, unless
extended, or (ii) any of the representations and warranties made herein have
been materially breached.
(d) AMENDMENT. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(e) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first class registered or certified mail, return receipt
requested.
(f) HEADINGS. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously 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.
(h) BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed
upon or understood in the transaction. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof.
(j) TIME. Time is of the essence.
(k) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(l) RESPONSIBILITY AND COSTS. All fees, expenses and out-of-pocket
costs and expenses, including, without limitation, fees and disbursements of
counsel, advisors and accountants, incurred by the parties hereto shall be
borne solely and entirely by the party that has incurred such costs and
expenses.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
COLUMBIA CAPITAL CORP.
By: /s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx, President and Secretary
/s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx, individually
FIRST INDEPENDENT COMPUTERS, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx, President
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, Secretary
SHAREHOLDERS OF FIRST INDEPENDENT
COMPUTERS, INC.
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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EXHIBIT "A"
TO AGREEMENT AND PLAN OF REORGANIZATION
LIST OF FIC STOCKHOLDERS
FIC COLUMBIA SHARES
NAME SHARES TO BE ISSUED
---- ------ ------------------
Xxxxxxx X. Xxxxx 500 5,625,000
Xxxxx X. Xxxxxxx 500 5,625,000
----- ----------
1,000 11,250,000
EXHIBIT "B"
TO AGREEMENT AND PLAN OF REORGANIZATION
FORM OF AMENDMENT TO CERTIFICATE OF INCORPORATION
COLUMBIA CAPITAL CORP.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
Columbia Capital Corp., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
1ST: That by unanimous written consent of the Board of Directors of
Columbia Capital Corp., a resolution was duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and proposing approval by the stockholders of
said corporation for consideration thereof. The resolution setting forth the
proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the FOURTH Article thereof so that, as amended said
Article shall read as set forth below:
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is:
Fifty Million (50,000,000) Shares of Common Stock With Par Value of $.001
each, amounting in total to Fifty Thousand Dollars ($50,000.00) and Five
Million (5,000,000) Shares of Preferred Stock With Par Value of $.001 each,
amounting in total to Five Thousand Dollars ($5,000.00).
The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article, to provide for the issuance of the
shares of preferred stock in series, and by filing a certificate pursuant
to the applicable law of the State of Delaware, to establish from time to
time the number of shares to be included in each such series, and to fix
the designations, powers, preferences and rights of the shares of each such
series and the qualifications, limitations or restrictions thereof.
2ND: The Corporation has effectuated a 1 for 2 reverse stock split as to
its shares of common stock outstanding as of August , 1997, which decreases
said shares from 2,500,000 shares to 1,250,000 shares. The reverse stock split
shall not change the authorized capital stock of the Corporation or par value
thereof from that authorized in the amended Fourth Article set forth above. No
fractional shares will be issued in connection with the reverse stock split and
all fractional interests will be rounded up to the next whole share. A
shareholder of the Corporation has contributed sufficient outstanding shares of
the Corporation's common stock to offset shares issued in lieu of fractional
shares. The
reverse stock split, without a corresponding change in par value, reduces the
capital of the Corporation by transferring $1,250 of stated capital to
capital surplus. The assets of the Corporation remaining after such
reduction in capital are sufficient to pay any debts of the Corporation for
which payment has not been otherwise provided.
3RD: That thereafter, pursuant to resolution of its Board of Directors, a
written approval by majority consent of the stockholders of said corporation was
duly received in accordance with the General Corporation law of the State of
Delaware, by which consent the necessary number of shares as required by statute
were voted in favor of the amendment.
4TH: That said amendment were duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware, and the necessary number of shares as required by statute were
voted in favor of the amendment.
IN WITNESS WHEREOF, said Columbia Capital Corp., has caused this
certificate to be signed by Xxxx Xxxxx, its President and its Secretary
-Treasurer, this 3rd day of August, 1997.
By:
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Xxxx Xxxxx, President and
Secretary - Treasurer
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EXHIBIT "C"
TO AGREEMENT AND PLAN OF REORGANIZATION
FORM OF INVESTMENT LETTER
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INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF COLUMBIA CAPITAL CORP.
The undersigned hereby represents to the Corporation, that (1) the
shares of the Corporation's common stock (the "Securities") which are being
acquired by the undersigned are being acquired for his own account and for
investment and not with a view to the public resale or distribution thereof;
(2) the undersigned will not sell, transfer or otherwise dispose of the
securities except in compliance with the Securities Act of 1933, as amended
(the "Act"); and (3) he is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 or the General Rules and
Regulations under the Act.
The undersigned hereby agrees to not transfer the Securities or any
interest therein outside of the United States without the express written
permission of the Corporation.
The undersigned acknowledges that he has been afforded access to all
disclosure documents and information regarding the Corporation.
The undersigned further acknowledges that he has had an opportunity to
ask questions of and receive answers from duly designated representatives of
the Corporation concerning the terms and conditions pursuant to which the
Securities are being purchased. The undersigned acknowledges that he has been
afforded an opportunity to examine such documents and other information which
he has requested for the purpose of verifying the information set forth in
the documents referred to above.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions
for the most part are set forth in Rule 144. The Rule permits sales of
"restricted securities" upon compliance with the requirements of such Rule.
If the Rule is available to the undersigned, the undersigned may make only
routine sales of securities, in limited amounts, in accordance with the terms
and conditions of that Rule.
The Company is the only person which may register its Securities under
the Act and it currently is not contemplating registering any of its
Securities. Furthermore, the Company
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has not made any representations, warranties or covenants to the undersigned
regarding registration of the Securities or compliance with any exemption
under the Act.
By reason of my knowledge and experience in financial and business
matters in general, and investments in particular, I am capable of evaluating
the merits and risks of an investment by me in the Securities.
I am capable of bearing the economic risks of an investment in the
Securities. I fully understand the speculative nature of the Securities.
My present financial condition is such that I am under no present or
contemplated future need to dispose of any portion of the Securities to
satisfy any existing or contemplated undertaking, need, or indebtedness.
Any and all certificates representing the Securities, and any and all
securities issued in replacement thereof or in exchange therefor, shall bear
the following legend, which the undersigned has read and understands:
The shares represented by this Certificate have not been registered
under the Securities Act of 1933 (the "Act") and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the Act
or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Company.
The undersigned further agrees that the Corporation shall have the right
to issue stop-transfer instructions to its transfer agent and acknowledges
that the Corporation has informed the undersigned of its intention to issue
such instructions.
Very truly yours,
-----------------------------
Date: , 199
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