Exhibit 99(c)(3)
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of August 10,
1999, by and among Xxxx Xxxxxxxx ("Seller"), COMC, Inc., an Illinois corporation
(the "Company") and Xxxxxxxxxxx X. Xxxxx ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller owns an aggregate of 8,000,000 shares of the Common
Stock, $.01 par value (the "Common Stock"), of the Company; and
WHEREAS, Purchaser wishes to purchase from Seller, and Seller wishes to
sell to Purchaser, an aggregate of 200,000 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. (a) 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
Seller for an aggregate purchase price of $100,000.00 (the "Purchase Price")
payable at the Closing (as defined below).
2. Closing. The closing of the sale and purchase 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
Fulbright & Xxxxxxxx L.L.P. on the date hereof. The date of the Closing is
referred to herein as the "Closing Date."
3. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser that:
(a) Seller is the sole record and beneficial owner of 8,000,000
shares of the Common Stock of the Company, Including the Shares, and subject to
Section 6 hereof, is acting solely on his behalf and for his own account in
selling the Shares to Purchaser and has all requisite authority to transfer good
and lawful title in and to the Shares to Purchaser free of any security
interests, liens, encumbrances, equities, claims or other defects;
(b) neither Seller nor to Seller's knowledge anyone acting on his
behalf has taken any action which would subject the sale of the Shares to the
registration provisions of Section 5 of the Securities Act of 1933, as amended
(the "Act") and, to the best of Seller's knowledge, and relying
in part on Purchaser's representations set forth herein, the sale of the Shares
from Seller to Purchaser does not require registration under the Act;
(c) neither Seller nor anyone acting on Seller's behalf offered to
sell or is selling the Shares by means of general solicitation or general
advertising. Seller has not solicited anyone in connection with the sale of
shares of Common Stock;
(d) the consummation of the transactions contemplated hereby does
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, or (B) subject to Section 6(b) hereof, conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which Seller or the Company is a party or by which Seller or
the Company or any of his or its properties are bound, or any statute or any
judgment, decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to Seller or tile Company.
4. Representations and Warranties of the Company and Seller. The
Company and Seller hereby jointly and severally represent and warrant to
Purchaser as follows:
(a) The Company is a corporation duly organized and validly existing
and in good standing under the laws of the State of Illinois and is qualified to
conduct business and is in good standing, each other jurisdiction on which the
character of its properties or the nature of its business requires such
qualification, except where the failure to qualify would not have, individually
or in the aggregate, any material adverse effect on the assets, properties,
financial condition, operating results or business of the Company or prevent the
consummation of the transactions contemplated hereby (any such effect being
referred to herein as a "Material Adverse Effect"). The Company has the
requisite corporate power to own properties owned by it and to conduct business
as now being conducted by it and as proposed to be conducted by it (as disclosed
to Purchaser), and possesses all governmental and other permits, licenses and
other authorizations to own its properties as now owned and to conduct its
businesses as now conducted and as presently contemplated to be conducted,
except where the failure to hold such permit or license would not have a
Material Adverse Effect. The Company has furnished counsel to Purchasers with
true, correct and complete copies of its Charter, as amended to date (the
"Charter") and By-Laws, as amended to date (the "By-Laws").
(b) Except as set forth in Schedule 4(b) hereto, each of the
Company's subsidiaries, ICF Communication Solutions, Inc., a California
corporation, and Complete Communications, Inc., a California corporation (the
"Subsidiaries") has been duly organized and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, with
requisite corporate power to own properties owned by it and to conduct business
as now being conducted by it and as proposed to be conducted by it (as disclosed
to Purchaser), and possesses all governmental and other permits, licenses and
other authorizations to own its properties as now owned and to conduct its
businesses as now conducted, except where the failure to hold such
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permit or license would not have a Material Adverse Effect. The Subsidiaries are
the only subsidiaries, direct or indirect, of the Company.
(c) The Company has all requisite corporate power to enter into this
Agreement. The Company has the corporate power, including having obtained all
necessary consents and authorizations as required under Section 11.75 of the
Illinois Business Corporation Act of 1983, to carry out and perform its
obligations under the terms of (i) this Agreement, (ii) the Contribution
Agreement, described in Section 6(d)(vi) hereof, by and between the Company and
Seller (the "Contribution Agreement") in the form attached hereto as Exhibit B,
(iii) the Option Agreement, described in Section 6(d)(vii) hereof, by and
between the Company and Purchaser (the "Option Agreement") in the form attached
hereto as Exhibit C, (iv) the Stockholders Agreement, described in Section
6(d)(viii) hereof by and among the Company, Purchaser and the other stockholders
set forth in the stockholders agreement (the "Stockholders Agreement") in the
form attached hereto as Exhibit D, (v) the Senior Note, Loan Agreement and
Guaranty, described in Section 6(d)(x) hereof (collectively, the "Loan
Restructure Agreements"), in the forms attached hereto in Exhibit F and (vi) the
Registration Rights Agreement, described in Section 6(d)(xi) hereof, by and
between the Company and certain stockholders of the Company (the "Registration
Rights Agreement") in the form attached hereto as Exhibit G. The Contribution
Agreement, the Option Agreement, the Stockholders Agreement, the Loan
Restructure Agreements and the Registration Rights Agreement are referred to
collectively herein as the "Related Agreements."
(d) 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)
20,054,946 shares (less 3,651,948 shares of Common Stock contributed to the
Company by Seller on the date hereof ) shall have been validly issued and shall
be outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof, (B) 3,651,948 shares shall have been duly
reserved initially for issuance upon exercise of currently outstanding warrants
of the Company, (C) 306,666 shares shall have been duly reserved initially for
issuance upon exercise of Currently outstanding warrants of the Company issued
in connection with its July 1998 private placement and (D) 7,000,000 shares
shall have been duly reserved initially for issuance upon conversion in the
event of a payment default of outstanding indebtedness of the Company. Other
than as disclosed in this Section 4(d) and in Schedule 4(d) hereto, there are no
outstanding preemptive, conversion or other rights, options, warrants or
agreements granted or issued by of binding on the Company for the purchase or
acquisition of any shares of its capital stock;
(e) (i) All corporate action on the part of the Company and its
directors and stockholders necessary to be taken on or prior to the
Closing for the authorization, execution, delivery and performance by
the Company of this Agreement and the Related Agreements and the
consummation of the transactions contemplated herein and therein has
been of will be taken on or prior to the Closing. There is no action
which the Company has failed to take that would inhibit the
transactions contemplated hereby from being consummated. The Company
has obtained all necessary consents and authorizations as required
under Section
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11.75 of the Illinois Business Corporation Act of 1983 so as not to
limit the ability of Purchaser to purchase additional shares of the
Common Stock of the Company in the future.
(ii) This Agreement and the Related Agreements are valid and
binding obligations of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws of general
application affecting enforcement of creditors' rights generally and to
general equitable principles. The execution, delivery and performance
by the Company of this Agreement and the Related Agreements, and its
compliance herewith and therewith and the sale and delivery by Seller
of the Shares will not result in any violation of and will not conflict
with, or result in a breach of any of the terms of, or constitute a
default under, the Charter or By-Laws, and will not result in any
violation of and will not conflict with, or result in a material breach
of any of the terms of, or constitute a material default under, any
mortgage, indenture, agreement, instrument, judgment, decree, order,
rule or regulation or other restriction to which the Company is a party
or by which it is bound or any provision of state or Federal law to
which the Company is subject, or result in the creation of any
mortgage, pledge, lien, encumbrance or charge of any kind whatsoever
upon any of the properties or assets of the Company pursuant to any
such term or result in the suspension, revocation, impairment,
forfeiture or non-renewal of any permit, license, authorization or
approval applicable and material to the Company's operations or any of
its assets or properties.
(iii) The Shares, when sold by Seller in compliance with the
Provisions of this Agreement, shall be validly issued, fully paid and
nonassessable, and shall be free of any mortgage, pledge, lien,
encumbrance or char e of any kind whatsoever.
(f) Except as set forth on Schedule 4(f) hereto, the Company has no
outstanding indebtedness for borrowed money under any loan or other agreements,
notes, indentures, or instruments relating to or evidencing indebtedness for
borrowed money or security interest or other encumbrance on any of the Company's
property and is not a guarantor or otherwise contingently liable for any
indebtedness for borrowed money (including, without limitation, liability by way
of agreement, contingent or otherwise, to purchase, provide funds for payment,
supply funds or otherwise invest in any debtor or otherwise to insure any
creditor against loss). Except as set forth in Schedule 4(f), there exists no
default under the provisions of any instrument evidencing any Such indebtedness
or otherwise or of any agreement relating thereto.
(g) Except as set forth on Schedule 4(g), the Company has filed or
will file within the time prescribed by law (including valid extensions of time
in which to make such filings) all tax returns and reports required to be filed
with the United States Internal Revenue Service and with the State of Illinois
and (except to the extent that the failure to file would not have a Material
Adverse Effect) with all other jurisdictions where such filing is required by
law. Except as set forth on Schedule 4(g), the Company has paid, or made
adequate provision for the payment of, all taxes, interest, penalties,
assessments or deficiencies shown to be due or claimed to be due on or in
respect
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of such tax returns and reports. Except as set forth in Schedule 4(g) hereto,
the Company does not know of (i) any other tax returns or reports which are
required to be filed which have not been so filed and (ii) any unpaid assessment
for additional taxes for any fiscal period or any basis therefor. There are no
audits or investigations of the Company by any taxing authority or proceedings
relating to taxes of the Company threatened or in progress.
(h) Each of the Company and the Subsidiaries has good and marketable
title to all of its material properties and assets, both real and personal,
tangible and intangible, which the Company and the Subsidiaries purport to own
as reflected on the latest balance sheet disclosed to Purchaser in connection
with this Agreement or acquired after the date thereof (except inventory or
other personal property disposed of in the ordinary course of business
subsequent to the date thereof), and except as set forth in Schedule 4(h)
hereto, such properties and assets are not subject to any mortgage, pledge,
lien, security interest, conditional sale agreement, encumbrance or charge other
than (i) liens of current taxes not yet due and payable or (ii) liens securing
obligations reflected in Section 4(f) above. Neither the Company nor any of the
Subsidiaries is in default or in breach of any provision of its leases or
licenses and they each hold valid leasehold or licensed interests in the
property which it leases or which is licensed to it. No other party to any lease
or license to which the Company or any of the Subsidiaries is a party is in
default under or breach of any such lease or license.
(i) Except as set forth in Schedule 4(i) hereto, in connection with
the conduct of its business and ownership of its properties, each of the Company
and the Subsidiaries has complied with all applicable statutes and regulations
of all governmental authorities having jurisdiction over it except where the
failure to so comply would not have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has received notice of any violation or any
claim of violation of any law, rule, regulation, permit or license affecting,
involving, or relating to the conduct of its business, the failure to comply
with which would have a Material Adverse Effect.
(j) Except as set forth in Schedule 4(j) hereto, the Company has
timely made, and is up to date with, all filings with the Securities and
Exchange Commission (the "Commission") required under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and all such filings, including
the financial statements included therein, conform, in all material respects to
the requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder. Such filings, the financial statements included therein,
and any amendment thereto, do not contain, and will not contain, any untrue
statement of a material fact and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
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(k) (i) Except as set forth in Schedule 4(k)(i) hereto, there is
neither pending nor, to the Company's knowledge, threatened, any
action, suit, proceeding, claim or investigation, or any basis therefor
or threat thereof, whether or not purportedly on behalf of the Company
or any of the Subsidiaries, to which the Company or any of the
Subsidiaries is or may be named as a party or its property is or may be
subject or to its knowledge, after due inquiry, to which any founder,
officer, key employee or principal stockholder of the Company or any of
the Subsidiaries is subject that relate in any material respect to the
Company or the Subsidiaries or their business, assets or financial
condition; and neither the Company nor any of the Subsidiaries has
knowledge of any unasserted claim, the assertion of which is likely and
which, if asserted, will seek damages, an injunction or other legal,
equitable, monetary or nonmonetary relief.
(ii) Other than as set forth in Schedule 4(k)(ii) hereto,
neither the Company nor any of the Subsidiaries has admitted in
writing, its inability to pay its debts generally as they become due,
filed or consented to the filing against it of a petition in bankruptcy
or a petition to take advantage of any insolvency act, made an
assignment for the benefit of creditors, consented to the appointment
of a receiver for itself or for the whole or any substantial part of
its property, or had a petition in bankruptcy filed against it, been
adjudicated a bankrupt, or filed a petition or answer seeking
reorganization or arrangement under the Federal bankruptcy laws or any
other similar law or statute of the United States of America or any
other jurisdiction.
(l) Since the dates as of which information regarding the Company
has been given to Purchaser, there has not been any change in the Company's
business or prospects which would have a Material Adverse Effect, whether or not
occurring in the ordinary course of business, and there has not been any
material transaction entered into by the Company or any of the Subsidiaries,
other than transactions in the ordinary course of business. The Company and the
Subsidiary have no material contingent obligations which have not been disclosed
to Purchaser.
(m) The Company and each of the Subsidiaries do not own or possess
any trademarks, trade names, patent rights, copyrights, licenses, trade secrets
and other similar licenses, approvals other than as may be inferred from common
law. Neither the Company nor any of its Subsidiaries has received any notice of
infringement or conflict with asserted Intellectual Property Rights of others,
which infringement or conflict, if the subject of an unfavorable decision, would
have a Material Adverse Effect.
(n) Except as set forth on Schedule 4(n) hereto, the Company has no
currently existing contract, obligation., agreement, plan, arrangement,
commitment or the like (written or oral) of any material nature (involving more
than $25,000, either or in the aggregate if such contracts are of a similar
nature or with the same party) including, without limitation, the following:
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(i) Agreements with dealers, sales representatives, brokers or
other distributors, jobbers, advertiser or sales agencies;
(ii) Agreements with any labor union or collective bargaining
organization or other labor agreements;
(iii) Any contract or series of contracts with the same person
for the ftirnishing or purchase of machinery, equipment, goods or
services, including without limitation agreements with processors and
subcontractors;
(iv) Any indenture, agreement or other document (including,
private placement brochures) relating to the sale or repurchase of
shares;
(v) Any venture contract or arrangement or other agreement
involving a sharing of profits or expenses to which the Company is a
party;
(vi) Agreements expressly limiting, the freedom of the Company
to compete in any line of business or in any geographic area or with
any person;
(vii) Agreements providing for disposition of the business,
assets or shares, of the Company, agreements of merger or consolidation
to which the Company is a party or letters of intent with respect to
the foregoing; and
(viii) Letters of intent or agreements with respect to the
acquisition of the business, assets or shares of any other business.
(o) To the Company's knowledge, no employee or consultant of the
Company or any of the Subsidiaries is, or is now believed to be, in violation of
any term of any employment contract, patent disclosure agreement, noncompetition
agreement, proprietary information and inventions, assignment, agreement or any
other contract or agreement or any restrictive covenant or any other common law
obligation to a former employer or other person or entity relating to the right
of any such employee or consultant to be employed by the Company or any of the
Subsidiaries because of the nature of the business conducted or to be conducted
by the Company or any of the Subsidiaries or to the use of trade secrets or
proprietary information of others, and the employment of the Company's or any of
the Subsidiaries' employees or the retainer of their consultants does not
subject the Company or any of the Subsidiaries to any liability to a third
party.
(p) Except as set forth in Schedule 4(p) hereto, other than the
Company's discretionary bonus plan, neither the Company nor any of the
Subsidiaries has a collective bargaining labor, profit sharing, pension,
retirement, stock option, incentive, benefit or other similar contract, plan or
arrangement. Neither the Company nor any of its Subsidiaries sponsors, nor is it
obligated
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to contribute to, any employee benefit plan (as Such term is defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA").
(q) Neither the Company, nor to the Company's knowledge, any of its
affiliates, has taken or will take, directly or indirectly, any action designed
to cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilizati or manipulation of the price of the
shares of Common Stock.
(r) No consent, permit, approval, qualification, order or
authorization of, or filing with, any governmental authority, including, without
limitation, the Secretary of State of Illinois and the Secretary of State of
California, is required to be taken on or prior to the date hereof in connection
with the Company's valid execution, delivery or performance of this Agreement or
the Related Agreements or the consummation of any other transaction contemplated
on the part of the Company hereby.
(s) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(t) The Company and each of its Subsidiaries carry, or are covered
by, or will be covered within 90 days after the date of this Agreement,
insurance (including, Directors and Officers Insurance) in such amounts and
covering such risks as the Company reasonably considers adequate for the conduct
of their respective businesses and the value of their respective properties.
(u) The Company has not used any broker or finder in connection with
the transactions contemplated by this Agreement and the Related Agreements and
has no liability for any commission or compensation in the nature of an agent's
fee to any broker or finder or any other person.
5. Representations and Warranties of Purchaser. Purchaser represents
and warrants to each of the Company and Seller 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;
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(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, 1998, 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.
6. 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.
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(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 and Purchaser shall have executed and delivered
an Employment Agreement (the "Employment Agreement"), whereby Purchaser
is employed as the Chief Financial Officer of the Company, in the form
of Exhibit A attached hereto.
(v) Seller shall have executed and delivered to the Company the
Contribution Agreement, by which Seller has contributed an aggregate of
3,651,948 shares of the Company's Common Stock to fund options to be
granted to Purchaser in connection with his employment as Chief
Financial Officer of the Company, in the form of Exhibit B hereto.
(vi) The Company shall have executed and delivered the Option
Agreement in the form of Exhibit C attached hereto.
(vii) The Company, Purchaser and certain other stockholders of
the Company's Common Stock shall have executed and delivered the
Stockholders Agreement in the form of Exhibit D attached hereto.
(viii) The Company shall have executed and delivered to Xxxxxxx
X. Xxxxx ("WMB") and Xxxxxxx X. Xxxxxxx ("CEL") a note restructuring,
agreement (the "Restructure Agreement") in the form of Exhibit E
attached hereto.
(ix) The Company shall have executed and delivered the
Registration Rights Agreement in the form of Exhibit F attached hereto.
(x) The spouse of Seller shall have executed and delivered the
Spousal consent (the "Spousal Consent"), in the form of Exhibit F
attached hereto.
(b) Conditions to the Obligations of Seller. The obligations of
Seller 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 tile
covenants, agreements and conditions required by this Agreement to be
performed by or complied with by each of thern, respectively, prior to
or at the Closing Date.
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(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 Seller, and Seller shall have received all such
information and such counterpart oriamals or certified or other copies
of such documents as Seller may reasonably request.
(iv) The Company shall have released Seller from any and all
lock-up provisions of with respect to an aggregate of 4,671,948 shares
of Common Stock to enable Seller to enter into the this Agreement and
the Related Agreements.
(c) Conditions to the Obligations of the Company. The obligations of
the 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 and Seller
set forth herein shall be true and correct as of the Closing Date.
(ii) Purchaser and Seller shall have duty 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.
(d) 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:
(i) The representations and warranties of the Company and Seller
set forth herein shall be true and correct as of the Closing Date.
(ii) The Company and Seller 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 Seller hereunder in negotiable form.
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(v) The Company has obtained, or will obtain within 90 days of
the date hereof, Directors and Officers Insurance, to the extent that
the Company qualifies for such insurance.
(vi) On the Closing Date, the Company shall have delivered to
Fulbright & Xxxxxxxx L.L.P. a check or wire transfer in payment of the
legal fees and disbursements of Fulbright & Xxxxxxxx L.L.P., counsel to
Purchaser with respect to the transactions contemplated hereby.
(vii) On the Closing Date, Seller 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. Seller and Purchaser shall be responsible for their own
personal income tax gain which is 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.
7. Survival of Representations and Warranties; Indemnification. (a) All
representations and warranties by the Company, Seller and Purchaser shall
survive the Closing and shall remain in full force and effect for a period equal
to three years 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 with respect to Sections 1, 4 and 5 may be brought after the third
anniversary of the date hereof.
(b) Each Of Purchaser, on the one hand, and Seller 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.
Notwithstanding any contrary provision of this agreement, in no event shall
either party be liable for indirect, special, incidental, punitive or
consequential damages in connection with this agreement, if advised of the
possibility of such damages. In no event shall either party's liability,
including even for direct damages, exceed an aggregate of $650,000.
8. 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.
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9. 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 Seller: Xxxx X. Xxxxxxxx
c/o COMC, Inc.
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: ___________________
If to the Company: COMC, Inc.
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Fax No.: ___________________
with a copy to: Xxxx Xxxxx, Esq.
Xxxxxx Xxxxx, Inc.
1901 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: 000-000-0000
If to Purchaser: Xxxxxxxxxxx X. Xxxxx
00 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Phone No.: 000-000-0000
with a copy to: Xxxxxx Xxxxxx, Esq.
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
10. Assignment, Transferees. Purchaser may not assign his rights or
obligations under this Agreement without the prior written consent of Seller.
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.
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11. 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.
12. Entire Agreement. This Agreement, including the agreements and
Exhibits referred n In 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.
13. 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.
14. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above mentioned.
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx
COMC. INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
Xxxxxxxxxxx X. Xxxxx
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