EXHIBIT 10.7
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made effective this 30th
day of June, 1998 by and between CONVERGENT CAPITAL CORPORATION, a Colorado
corporation ("C3") whose address is 000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, CONVERGENT COMMUNICATIONS, INC. , a Colorado
corporation ("Convergent") whose address is 000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000 and CMB HOLDINGS, INC. D/B/A INDEPENDENT
EQUIPMENT COMPANY, a Florida corporation ("IEC"), whose address is 0000
XxXxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter
collectively referred to as "the parties").
RECITALS
A. C3 is desirous of buying certain of IEC's assets and IEC is
desirous of selling certain of IEC's assets to C3;
B. This Agreement is intended to comply with the requirements of
Internal Revenue Code Section 368(a)(1)(C) for the deferral of gain
recognition.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, both parties agree as follows:
1. IDENTIFICATION AND TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES.
1.1 IDENTIFICATION OF ASSETS TO BE TRANSFERRED TO C3. The assets
described in EXHIBIT 1.1 shall collectively constitute the "Identified
Assets."
1.2 ASSUMPTION OF CERTAIN LIABILITIES. Except for those
liabilities set forth on EXHIBIT 1.2 (the "Assumed Liabilities"), which are
hereby expressly assumed by C3, C3 shall assume no other liabilities and
obligations relating to the Identified Assets. IEC agrees to hold C3
harmless from any other liabilities or obligations incurred by IEC, or
accruing with respect to the Identified Assets, and all other assets of IEC,
with respect to any period prior to and including the Closing Date and from
liabilities or obligations with respect to all other assets of IEC with
respect to any period after the Closing Date.
1.3 TRANSFER OF IDENTIFIED ASSETS. IEC shall take all actions
reasonably requested by C3 to transfer the Identified Assets to C3 including,
but not limited to, the execution of a xxxx of sale and assignment in the
form attached hereto as EXHIBIT 1.3 ("Xxxx of Sale"), and all other bills of
sale, assignment and transfer forms, amendments, applications to governmental
agencies, licenses, and reports reasonably required by C3 of IEC to
effectuate the transfer of the Identified Assets.
1.4 RECONCILIATION OF OBLIGATIONS. All obligations regarding the
Identified Assets and the Assumed Liabilities shall be determined as of June 30,
1998 ("Reconciliation
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Date"). The parties agree to cooperate in the preparation of a
reconciliation schedule ("Reconciliation Schedule") showing the obligations
and benefits accruing to each party as of the Reconciliation Date. The
Reconciliation Schedule shall be delivered at the Closing.
2. CONSIDERATION. The consideration ("Consideration") for the
purchase and sale of the Identified Assets shall be paid by Convergent, on
behalf of C3, to IEC on the Closing Date. On the Closing Date, Convergent
will deliver a treasury request to Convergent's transfer agent requesting the
issuance of Three Hundred Forty Thousand (340,000) shares of Convergent's no
par value common stock ("Convergent Stock") to IEC at the Closing.
3. CLOSING DATE DOCUMENTATION. In addition to the other documents
required hereunder, as a predicate to the closing of the transactions
hereunder, IEC shall supply C3 with the following on or before the Closing
Date.
3.1 TRANSFER DOCUMENTS. Transfer Documents, in form and substance
reasonably satisfactory to C3 and IEC to effect the transfer of the
Identified Assets to C3 pursuant to the terms of this Agreement.
3.2 CONSENTS. Any and all consents, in a form and substance
reasonably satisfactory to C3 and IEC, from any person or entity not a party
to this Agreement whose consent is necessary or desirable for the execution
and performance of this Agreement by C3 and IEC.
3.3 COMPLIANCE CERTIFICATE. All corporate and other proceedings,
including approval by the members and managers of IEC, required to be taken
by or on the part of IEC to authorize IEC to execute, deliver and carry out
this Agreement shall have been duly and properly taken. C3 shall have
received a certificate of authorized individuals of IEC in the form of
EXHIBIT 3.3, dated as of the Closing, certifying to the fulfillment of the
conditions specified in this Agreement.
3.4 RECONCILIATION SCHEDULE. The Reconciliation Schedule pursuant
to Section 1.4 of this Agreement.
3.5 CONSULTING AGREEMENT. C3 and Xxxx X. Xxxxxxxxx shall enter
into a consulting agreement ("Consulting Agreement") in substantially the
same form as EXHIBIT 3.5 attached hereto.
4. REPRESENTATIONS OF IEC. As material representations to induce C3
to enter into this transaction, IEC represents to C3 as follows:
4.1 OWNERSHIP. The Identified Assets transferred pursuant hereto
are owned by IEC, free and clear of all liens, encumbrances, agreements and
claims with or of third parties.
4.2 CORPORATE STATUS AND AUTHORITY. IEC is a corporation duly
organized and existing in good standing under the laws of the state of its
incorporation and is fully
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authorized to carry on its business as it is now being conducted and to enter
into the transactions herein set forth. IEC is duly qualified to transact
business as a foreign corporation and is in good standing in each of the
jurisdictions requiring such qualification whether by reason of the ownership
or leasing of its properties or the conduct or nature of its business. All
director or shareholder approvals required have been secured to the extent
required. Except as set forth on EXHIBIT 4.2, no consents, approvals, or
filings from or with any person or entity other than those delivered to C3
herewith are necessary for the execution, delivery and performance by IEC of
this Agreement and the transactions contemplated hereby. IEC has all
requisite power and authority to execute this Agreement and carry out all the
actions required of it herein. This Agreement is the legal, valid and
binding agreement of IEC enforceable against IEC in accordance with its terms.
4.3 PENDING CLAIMS. IEC is not presently subject to any claim
which would materially and adversely affect the Identified Assets such as:
litigation; disclosed or undisclosed claims or liabilities; or pending
governmental investigations or complaints of any kind or description. The
Identified Assets are subject to no contracts, claims or liens other than as
set forth in EXHIBIT 4.3.
4.4 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery
and performance of and compliance with this Agreement, or any agreement or
instrument contemplated hereby, by IEC will not result in any violation of
its Articles of Incorporation or By-laws or be in material conflict with or
constitute a default in any material respect under any term of any agreement,
instrument, judgment, decree, or, to the knowledge of IEC, any order,
statute, rule or governmental regulation applicable to IEC, or result in the
creation of any lien, charge or encumbrance of any kind or nature on the
Identified Assets.
4.5 UNDISCLOSED LIABILITIES. IEC does not have, with respect to
its current operation, any material and undisclosed liabilities or
obligations of any nature affecting the Identified Assets.
4.6 TAX LIENS. There are no tax liens on any of the Identified
Assets. IEC has duly filed all federal, state and local tax returns and
reports (including, without limitation, returns for estimated tax), and all
returns and reports for any other governmental units or taxing authorities
having jurisdiction with respect to any taxes required to be paid by IEC,
except where extensions have been applied for and granted, and where such
extensions have not expired; all such returns and all such reports show the
correct and proper amounts due, and all taxes shown on such returns and
reports and all assessments received by IEC have been paid to the extent that
such taxes or any estimates thereon have become due. From the date of this
Agreement until the Closing, IEC shall pay all taxes as and when the same
become due and payable.
4.7 LIQUIDATION. IEC has not adopted any plan of liquidation or
dissolution affecting the Identified Assets.
4.8 STOCK REPRESENTATIONS. IEC (i) intends to acquire the Convergent
Stock pursuant to Section 1 hereof solely for the purpose of investment and not
for the resale and
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distribution thereof, and has no present intention to offer, sell, pledge,
hypothecate, assign or otherwise dispose of the same, other than as
contemplated by this Agreement; (ii) understands and acknowledges that the
issuance of the Convergent Stock will not be registered under the Securities
Act of 1933, as amended (the "Securities Act"), the shares of Convergent
Stock being acquired pursuant to this Agreement constitute "restricted
securities" as that term is defined under Rule 144 promulgated under the
Securities Act and may not be sold except pursuant to a registration
statement under the Securities Act or pursuant to an exemption available
under federal and applicable Securities laws, and such shares may be required
to be held indefinitely unless the shares are subsequently registered under
the Securities Act or an exemption from such registration is available, (iii)
agrees that it will not offer, sell, pledge, hypothecate, transfer, assign or
otherwise dispose of any such shares of Convergent Stock unless such shares
and such offer, pledge, hypothecation, transfer, assignment or other
disposition shall be registered or exempt from registration under the
Securities Act and shall comply with all applicable federal and state
securities laws, and (iv) agrees and acknowledges that the stock certificates
representing the shares of Convergent Stock which will be issued to IEC under
this Agreement will contain a legend restricting the transferability of the
shares as provided herein and that stop order instructions may be imposed by
Convergent's transfer agent restricting the transferability of the shares.
4.9 ACCURACY OF DOCUMENTS AND INFORMATION. The copies of all
instruments, agreements, other documents and written information set forth
as, or referenced in, Exhibits and attachments to this Agreement or
specifically required to be furnished pursuant to this Agreement to C3 by IEC
are and will be complete and correct in all material respects. There have
been no material changes, and will be no material changes as of the Closing
Date, in the information set forth in the Exhibits and attachments between
the date of the Exhibits and attachments and the date of this Agreement. No
representations or warranties made by IEC in this Agreement, nor any
document, written information, statement, financial statement, certificate,
Exhibit or attachment furnished to C3 pursuant to the requirements of this
Agreement contains any untrue statement of a material fact, or omits to state
a material fact necessary to make the statements or facts contained therein
not misleading. There is no fact which materially and adversely affects the
Identified Assets known to IEC which has not been expressly and fully set
forth in this Agreement or the Exhibits and attachments hereto.
4.10 DISCLOSURE. No representation or warranty whether contained
in this Agreement or in any certificates provided to C3 pursuant to this
Agreement contains or will contain any materially untrue statement or omits,
or will omit, to state a material fact necessary to make any such
statement(s) not misleading.
4.11 ACCURACY OF REPRESENTATIONS. In the event that any of the
foregoing representations or warranties should be inaccurate as of the
Closing Date, IEC shall have thirty (30) days after written notice from C3 in
which to cure such inaccuracy.
5. IEC'S EMPLOYEES AND CUSTOMERS. C3 is not a successor business to
IEC nor any operation of IEC. C3 shall not be liable for any obligations
which IEC has on any contracts including employment contracts, existing or
future workers compensation claims, employment
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discrimination claims, unfair labor practice claims, or compensation claims
except those obligations, if any, specifically identified on EXHIBITS 1.1 and
1.2 and any obligations of which C3 hereby specifically assumes in writing.
C3 is purchasing the Identified Assets and Assumed Liabilities only, and it
is not taking over any employment contracts for any employees or any
obligations under agreements entered into by IEC in its own right and C3
shall not be liable for any sums owed to customers by IEC.
6. REPRESENTATIONS OF C3. As material representations to induce IEC
to enter into this transactions, C3 represents to IEC as follows:
6.1 CORPORATE STATUS AND AUTHORITY. C3 is a corporation duly
organized and existing in good standing under the laws of the state of its
incorporation and is fully authorized to carry on its business as it is now
being conducted and to enter into the transactions herein set forth. C3 is
duly qualified to transact business as a foreign corporation and is in good
standing in each of the jurisdictions requiring such qualification whether by
reason of the ownership or leasing of its properties or the conduct or nature
of its business. All corporate approvals required have been secured. No
consents, approvals, or filings from or with any person or entity other than
those delivered to IEC herewith are necessary for the execution, delivery and
performance by C3 of this Agreement and the transactions contemplated hereby.
C3 has all requisite power and authority to execute this Agreement and carry
out all the actions required of it herein. This Agreement is the legal,
valid and binding agreement of C3 enforceable against C3 in accordance with
its terms.
6.2 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery
and performance of and compliance with this Agreement, or any agreement or
instrument contemplated hereby, by C3 will not result in any violation of its
Certificate of Incorporation or Bylaws or be in material conflict with or
constitute a default in any material respect under any term of any agreement,
instrument, judgment, decree, or, to the knowledge of C3, any order, statute,
rule or governmental regulation applicable to C3.
6.3 DISCLOSURE. No representation or warranty whether contained
in this Agreement or in any certificates provided to IEC pursuant to this
Agreement contains or will contain any materially untrue statement or omits,
or will omit, to state a material fact necessary to make any such
statement(s) not misleading.
7. OBLIGATIONS PRIOR TO THE CLOSING DATE. The following conditions
and obligations shall be satisfactorily performed prior to the Closing Date.
7.1 GOVERNMENTAL AGENCY APPROVALS. Any governmental agencies
whose approval is required prior to the consummation of the transactions
contemplated by this Agreement shall have approved such sale on the terms
contemplated by this Agreement.
7.2 NOTICES TO CUSTOMERS AND SUPPLIERS. IEC, with the cooperation of
C3 and at IEC's sole expense, shall have provided any notice(s) to its
customers, suppliers, vendors and others required by its contracts, federal or
state laws, rules or regulations, if any, with respect
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to the transfer of the Identified Assets to C3. The content of such notice(s)
shall be approved by C3.
7.3 PERFORMANCE. Both parties shall have executed and delivered
to the other party this Agreement and the other documents required hereby and
shall have performed and complied in all material respects with all
agreements and conditions required by this Agreement to be performed or
complied with by the parties prior to the Closing Date.
7.4 OPINION OF COUNSEL FOR IEC. C3 shall have been furnished with
an opinion of IEC's counsel, dated the date of the Closing, in substantially
the form of EXHIBIT 7.4 attached hereto.
7.5 OPINION OF COUNSEL FOR C3 AND CONVERGENT. IEC shall have been
furnished with an opinion of C3's and Convergent's counsel, dated the date of
the Closing, in substantially the form of EXHIBIT 7.5 attached hereto.
7.6 NO ACTION TO PREVENT COMPLETION. There shall not have been
instituted and be continuing or threatened any claim, action or proceeding
that would materially adversely affect the Identified Assets, nor shall there
have been instituted and be continuing or threatened any claim, action or
proceeding by or before any court or other governmental body to restrain,
prohibit or invalidate, or to obtain damages in respect of, the transactions
contemplated by this Agreement or which might materially and adversely affect
the rights of C3.
8. CONDUCT OF BUSINESS AND CERTAIN COVENANTS. Prior to the Closing
Date, IEC agrees that, with respect only to the Identified Assets, unless
otherwise specifically provided for in this Agreement or unless otherwise
consented to in writing by C3:
8.1 ORDINARY COURSE. IEC shall conduct its business in the
ordinary course.
8.2 CERTAIN CHANGES. IEC shall not: (i) grant any security
interest to or in connection with the Identified Assets; (ii) make or offer
to make any disposition, including any sale or transfer, of any of the
Identified Assets; (iii) make any change in any method of accounting,
billing, rates, rate structure, tariffs, payment of fees and expenses related
in any way to the Identified Assets; and, (iv) enter into any material
contract, agreement, or commitment relating to the Identified Assets.
9. CLOSING DATE. Closing will occur within three (3) business days
after the completion of due diligence and the receipt of any and all
necessary board, shareholder, governmental or other approvals, but not later
than July 17, 1998, unless extended by mutual agreement of the parties, and
will take place at the offices of C3.
10. NOTICES. Notices required or allowed hereunder shall be deemed
given when hand delivered or when deposited in the United States mail,
postage prepaid, return receipt requested, to the parties at the following
addresses:
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If to C3: Convergent Capital Corporation
Convergent Communications, Inc.
000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Legal Department
If to IEC: CMB Holdings, Inc. d/b/a Independent Equipment
Company
0000 XxXxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xx. Xxxx Xxxxxxxxx
with a copy to: Temple X. Xxxxxxxx, Esq.
Kass Xxxxxx, P.A.
0000 X. Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other addresses as may from time to time be supplied.
11. INDEMNITY.
11.1 IEC'S INDEMNIFICATION. Notwithstanding the Closing and
regardless of any investigation at any time made by or on behalf of C3 or of
any information C3 may have in respect thereof, IEC will indemnify, defend
and save and hold each of C3 and Convergent harmless from and against any
costs, expenses, damages, liabilities, losses or deficiencies, including,
without limitation, reasonable attorneys' fees and other costs and expenses
incident to any suit, action or proceeding (collectively "Losses") suffered
or incurred by C3 and/or Convergent arising out of or resulting from, and
will pay C3 and/or Convergent on demand the full amount of any such amounts
which either of C3 or Convergent may pay or may become obligated to pay in
respect of:
(a) any material inaccuracy in any representation or document
delivered under or pursuant to this Agreement or the material breach of any
warranty made by IEC in or pursuant to this Agreement;
(b) any material misrepresentations in or omission from any
Exhibit, schedule, or other attachment to this Agreement;
(c) any failure by IEC duly to perform or observe any term,
provision, covenant, or agreement in this Agreement to be performed or
observed on the part of IEC;
(d) acts or omissions in connection with business activities
conducted or to be conducted by IEC, including, without limitation, the sale
of goods or provision of services, prior to the Closing Date; or
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(e) any action, suit, investigation, proceeding, demand,
assessment, audit, judgment and claim, including any employment-related
claim, arising out of the foregoing (collectively "Claims"), even though such
Claims may not be filed or come to light until after the Closing Date.
C3 hereby covenants and agrees to immediately provide to IEC any and
all notifications or other correspondence it receives related to matters
which may affect this indemnity and hereby agrees to allow IEC to defend any
and all actions affecting this indemnity and shall not settle any action or
dispute affecting this indemnity without obtaining the prior written consent
of IEC.
All statements of fact contained in any written statement, certificate,
schedule or other document delivered to C3 by or on behalf of IEC attached to
this Agreement shall be deemed representations and warranties by IEC
hereunder.
11.2 C3'S INDEMNIFICATION. C3 agrees that notwithstanding the
Closing and regardless of any investigation at any time made by or on behalf
of IEC or any information IEC may have in respect thereof, C3 will
indemnify, defend and save and hold IEC harmless from and against any Losses
suffered or incurred by IEC arising out of or resulting from, and will pay
IEC on demand the full amount of any such amounts which IEC may pay or may
become obligated to pay in respect of:
(a) any material inaccuracy in any representation or the
breach of any warranty made by C3 in or pursuant to this Agreement;
(b) any failure by C3 duly to perform or observe any item,
provision, covenant or agreement in this Agreement to be performed or
observed on the part of C3, as applicable; or
(c) acts or omissions in connection with business activities
conducted or to be conducted by C3, including, without limitation, the sale
of goods or provision of services, following the Closing Date.
12. NO THIRD PARTY BENEFICIARIES. This Agreement shall be for and
inure to the benefit of C3 and IEC and there shall be no third party
beneficiaries hereto. Specifically excluded from any beneficial status
hereunder are IEC's creditors, employees, customers and suppliers.
13. GOVERNING LAW AND FORUM. This Agreement shall be construed under
the laws of the state of Colorado, without regard to its choice of law
provisions (except as to the applicable bulk sales laws, where it is agreed
that to the extent the parties' ability to so designate is restricted, the
laws of the applicable state shall apply) and any action to enforce, construe
or modify this Agreement shall be brought in an appropriate court of
competent jurisdiction in Colorado.
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14. BINDING NATURE. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns. This Agreement shall not be assigned by either party without the
express written consent of the other party.
15. PARAGRAPH HEADINGS. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
16. TIME OF THE ESSENCE. Time is of the essence of this Agreement and
the obligations of the parties hereunder.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, indemnifications and agreements of C3 and IEC provided herein
shall survive the Closing for a period of two (2) years following the Closing
Date.
18. WAIVER. The failure of either of the parties hereto to enforce any
provision of this Agreement shall not be construed to be a waiver of such
provision or of the right thereafter to enforce the same, and no waiver of
any breach shall be construed as an agreement to waive any subsequent breach
of the same or any other provisions.
19. EXPENSES. Except as expressly provided herein, each party will pay
their own expenses, including fees of their respective attorneys, accountants
and consultants in connection with this transaction.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
21. NO BROKERS OR AGENTS. IEC represents that it has not used the
services of any brokers or agents in the negotiation or consummation of this
Agreement such that any commissions or fees are due to any such broker or
agent based upon the transactions herein set forth. C3 represents that it has
not used the services of any brokers or agents in the negotiation or
consummation of this Agreement such that any commissions or fees are due to
any such broker or agent based upon the transactions herein set forth.
Should any such claim be advanced by any such foregoing broker or agent, it
is agreed that the satisfaction of such claim shall be the sole
responsibility of the party which it is claimed utilized the services of such
broker or agent.
22. CONFIDENTIALITY. IEC and C3 agree to not disclose the terms and
conditions of this Agreement except (i) as may be required to fulfill
obligations hereunder; (ii) as may be required by law, regulation, custom or
judicial or administrative proceeding; or, (iii) as and to the extent such
information becomes known to the general public through no fault of either
party in tangible, demonstrable form. Both parties shall take reasonable
precautions to insure that their respective employers, employees and agents
also treat such information in a confidential manner. The obligations of
confidentiality shall survive the consummation of the transactions herein set
forth.
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23. TAXES. C3 shall be responsible for and shall pay all federal,
state and municipal taxes or other charges, if any, on the sale of the
Identified Assets except income taxes payable by IEC on the Consideration.
24. SEVERABILITY. It is agreed and understood that should any of the
provisions of this Agreement be determined by any court of competent
jurisdiction to be invalid or void for any reason, then the parties consent
that this Agreement shall be amended retroactive to the date of its execution
to include all terms and conditions other than those found by the court to be
invalid or void in order to give effect to the parties intent.
25. PUBLIC ANNOUNCEMENT. Each party acknowledges and agrees that
either may make a public announcement of the transactions contemplated by
this Agreement any time after the date of execution of this Agreement
provided that the other party approves the form and substance of any such
public announcement prior to its release, which approval shall not be
unreasonably withheld or delayed.
26. FORCE MAJEURE. This Agreement and the obligations of the parties
hereunder shall not be impaired or invalidated and a party shall not be in
breach hereof if such party is unable to fulfill any of its obligations
hereunder or is delayed in doing so by reason of strike, labor troubles, acts
of God or any other cause beyond the reasonable control of such party.
27. ATTACHMENTS. All Exhibits and attachments to this Agreement are
made a part of this Agreement by this reference. Any information disclosed
in an Exhibit or attachment shall be deemed to be disclosed and incorporated
into any other Exhibit or attachment where such disclosure would be
appropriate.
28. ADDITIONAL DOCUMENTATION. IEC shall from time to time, subsequent
to Closing, at C3's request and without further consideration, execute and
deliver such other instruments of conveyance, assignment and transfer and
take such other action as C3 reasonably may require in order more effectively
to effectuate the purchase of the Identified Assets.
29. ARBITRATION. Notwithstanding anything to the contrary herein, any
dispute arising pursuant to or in any way related to this Agreement or the
transactions contemplated hereby shall be settled by arbitration at a
mutually agreed upon location in Denver, Colorado; provided, however, that
nothing in this Section shall restrict the right of any party to apply to a
court of competent jurisdiction for emergency relief pending final
determination of a claim by arbitration in accordance with this Section. All
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, in force at the time of any
such dispute. Each party shall pay its own expenses associated with such
arbitration, provided that the prevailing party in any arbitration shall be
entitled to reimbursement of reasonable attorneys' fees and expenses
(including, without limitation, arbitration expenses) relating to such
arbitration. The decision of the arbitrators, based upon written findings of
fact and conclusions of law, shall be binding upon the parties; and judgment
in accordance with that decision may be entered in any court having
jurisdiction thereof. In no event shall the arbitrators
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be authorized to grant any punitive, incidental or consequential damages of
any nature or kind whatsoever.
30. TERMINATION.
30.1 This Agreement may be terminated, and the transactions
contemplated hereby abandoned (i) by the mutual consent of C3 and IEC; (ii)
by C3 or IEC at any time after June 30, 1998 (or such later date as shall
have been agreed to in writing by the parties) if the conditions and
obligations set forth in this Agreement shall not have been fulfilled (or
waived by the party entitled to the benefit thereof) by such date, with no
further liability on the part of any party hereto; provided, however, that no
party shall be released from liability hereunder if any such condition is not
fulfilled by reason of the breach by such party of its obligations hereunder.
30.2 Notwithstanding anything contained in the foregoing to the
contrary, if this Agreement is terminated by C3 due to a failure of IEC to
perform the conditions precedent to the Closing hereunder, IEC shall
immediately refund to C3 all amounts paid to IEC, including, without
limitation, the Xxxxxxx Money.
31. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the
Exhibits, schedules and attachments hereto, contains the entire understanding
between the parties hereto with respect to the subject matter hereof and no
prior or collateral promises or conditions in connection with or with respect
to the subject matter hereof not incorporated herein shall be binding upon
the parties. No modification, extension, renewal, rescission, termination or
waiver of any of the provisions contained herein or any future
representation, promise or condition in connection with the subject matter
hereof, shall be binding upon either of the parties hereto unless made in
writing and duly executed by both the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
CONVERGENT CAPITAL CORPORATION,
a Colorado corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, Secretary
CONVERGENT COMMUNICATIONS, INC.,
a Colorado corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, Executive Vice President
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CMB HOLDINGS, INC. D/B/A INDEPENDENT
EQUIPMENT COMPANY,
a Florida corporation
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxxx, President
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