FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
Exhibit
10.10(a)
FIRST
AMENDMENT
TO
THIS
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this “Amendment”),
dated as of November 27, 2007, is made by and between Longfoot
Communications Corp. a Delaware corporation (the “Company”), the
Investors listed on Exhibit A hereto (each, an
“Investor” and collectively, the “Investors”)
and Sim Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxx, PP6O, LLC, Gusmail, LLC and 32 Mayall,
LLC (collectively, the “Existing Stockholders”).
RECITALS
A. The
Company,
the Investors and the Existing Stockholders (collectively the “Parties”) entered
into that certain Stock Purchase Agreement dated as of October 22, 2007 (the
“Agreement”).
B. In
November
2007 the Company sold the operating assets of the Company’s wholly owned
operating subsidiary for $11,500.00 and returned its low power television
license to the Federal Communications Commission, resulting in the Company’s
having no further active business operations.
C. The
Parties
desire to amend the Agreement, in the manner and on the terms and conditions
hereinafter set forth.
D. Terms
defined
in the Agreement shall have the same meaning when used herein.
AGREEMENTS
NOW,
THEREFORE, in consideration of these premises, the mutual covenants and
agreements herein contained and for other good and valuable consideration,
the
sufficiency and receipt of which are hereby acknowledged, the Parties hereby
agree as follows:
1. Purchase
Price. As and when used in the Agreement “Purchase Price”
shall mean: the cash and cash equivalents of the Company
at the Closing Date
after deducting any and all liabilities, including liabilities related in any
manner to (i) the Stockholders Consent, (ii) soliciting approval of
the Company Stockholder Proposals and (iii) the costs and expenses of the
transactions contemplated thereby. The Existing Stockholders represent and
warrant that they will provide, as contributions to the capital of the Company,
such added funds so that at the Closing Date the cash and cash equivalents
of
the Company, net of all liabilities and costs, including without limitation
net
of those liabilities and costs related in any manner to Section 1, items (i)
to
(iii) above, shall be an amount that is equal to $50,000. In
addition, if it is subsequently determined after the Closing Date that the
cash
and cash equivalents of the Company net of all such liabilities and costs was
not (at least) $50,000, then the Existing Stockholders shall promptly following
written notice of such determination pay cash into the Company to make up the
difference.
2. Closing. The
Closing of the issuance and sale of the Shares pursuant to Section 2.1 of
the Agreement and certain of the other transactions contemplated thereby will
take place at 0000 Xxxxxx Xxxx., 0xx Xxxxx,
Xxxx
Xxxxxxxxx. Xxxxxxxxxx 00000 on the next business day (or such later date as
the
parties hereto may agree) following the satisfaction or waiver of the conditions
set forth in Section VI of the Agreement (the “Closing Date”), or at
such other time or place as the parties mutually agree.
3. Divestment
of Businesses; Reverse Stock Split;
Indemnification
(a) Each of
the Company and the Existing Stockholders represents and warrants that (i)
the
Company has completed the Divestment in November 2007 as required under the
Agreement, except that the Company surrendered and returned the Company’s low
power television license to the Federal Communications Commission and did not
sell it to any third party and the Company shall not have any liability with
respect to such surrender; (ii) in connection with the Divestment, the Company
has also divested itself of any and all assets and liabilities related in any
manner to the Businesses; (iii) the terms of the Divestment were satisfactory
to
and have been approved by the stockholders of the Company as provided in
Section 5.2 of the Agreement; (iv) any and all such
liabilities and obligations that were divested have been assumed either by
the
Existing Stockholders or by a third party and the Company has been released
from
all such liabilities and obligations; (v) the Divestment has been effected
in
compliance with any and all applicable laws, rules and regulations, (vi) the
Reverse Stock Split has been completed and (vii) the Company has obtained the
Company Stockholder Approval required under Section 5.4 of the
Agreement. Pursuant to Stockholder Approval, holders of more than 73%
of the Company’s voting securities: (a) ratified and approved the Agreement; (b)
ratified and approved a 1-for-3 reverse split; (c) ratified and approved an
increase in the number of authorized shares of common stock from 50,000,000
to
225,000,000; (d) ratified and approved increasing the number of authorized
shares of blank check preferred stock from 1,000,000 to 25,000,000; (e) ratified
and approved adopting new by-laws; and (f) ratified and approved the sale of
the
business of the Company.
(b) The
indemnification provisions of Section 5.10 of the Agreement shall also apply
to
the representations, warranties and covenants of the Existing Stockholders
contained in this Amendment.
4. Adjusting
Number of Shares to the Investors. In effecting the Reverse Split
the Company has agreed to round upward any fractional shares that might
otherwise be issuable to shareholders (the “Round Ups”). The
Agreement provides for the Company to issue 1,698,212 shares of common stock
to
the Investors based on the initial calculations of the
Parties. Section 2.1 of the Agreement requires that the Shares to be
issued to the Investors will equal fifty-one percent (51%) of the outstanding
capital stock of the Company at the Closing Date. As a consequence of
the Round Ups the Company may be required to increase the number of Shares
by an
amount such that the actual number will equal fifty-one percent (51%) and that
increased number is currently estimated not to exceed an additional one hundred
seventy (170) shares in the aggregate (the “Adjustment Shares”). The
Parties agree that, promptly after the exact number has been determined and
certified, the Company will issue and deliver certificates evidencing the
Adjustment Shares to the Investors pro rata to their respective
interests. The obligations to deliver the Adjustment Shares promptly
as herein provided, and to assure that the Shares together with the Adjustment
Shares will equal fifty-one percent (51%) of the outstanding capital stock
of
the Company at the Closing Date, shall survive the Closing.
5. Waivers
and Amendments. The
Agreement and this Amendment may be further amended or modified in whole or
in
part only by a writing which makes reference to the Agreement and this Amendment
executed by the Investors, the Company and the Existing
Stockholders. The obligations of any party hereunder may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the party claimed to have given
the waiver; provided, however, that any waiver by any party of any violation
of,
breach of, or default under any provision of this Agreement or any other
agreement provided for herein shall not be construed as, or constitute, a
continuing waiver of such provision, or waiver of any other violation of, breach
of or default under any other provision of this Agreement or any other agreement
provided for herein.
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6. Entire
Agreement. The
Agreement (together with the Schedules and the Exhibits thereto), and the other
agreements and instruments expressly provided for therein, together with this
Amendment, set forth the entire understanding of the parties hereto and
supersede in their entirety all prior contracts, agreements, arrangements,
communications, discussions, representations, and warranties, whether oral
or
written, among the parties with respect to the subject matter hereof.
Capitalized terms that are not defined in this Amendment have the meanings
ascribed to them in the Agreement. Except as explicitly amended and set forth
in
this Amendment, all other terms and provisions of the Agreement remain
applicable, operative and unchanged.
7. Governing
Law.
The
Agreement and this Amendment shall in all respects be governed by and construed
in accordance with the internal substantive laws of the State of Delaware
without giving effect to the principles of conflicts of law
thereof.
8. Counterparts;
Facsimile Signatures.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which together will constitute one and
the
same instrument. Any facsimile copy of this Amendment will be deemed
an original for all purposes.
9. Successors
and Assigns. This
Amendment shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns, except that the
Company may not assign or transfer its rights hereunder without the prior
written consent of the Investors.
10. Third
Parties.
Nothing
expressed or implied in the Agreement and this Amendment is intended, or shall
be construed, to confer upon or give any Person other than the parties hereto
and their successors and assigns any rights or remedies under or by reason
of
this Agreement.
11. Headings.
The
headings in this Agreement are solely for convenience of reference and shall
not
be given any effect in the construction or interpretation of this
Agreement.
12. Interpretation.
Whenever the context may require, any pronoun used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.
[Signature
Page Follows]
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SIGNATURE
PAGES TO
BY
AND AMONG
LONGFOOT
COMMUNICATIONS CORP,
THE
EXISTING STOCKHOLDERS AND THE INVESTORS
IN
WITNESS WHEREOF, the Company, the Existing Stockholders and each of the
Investors have executed this Amendment as of the date first above
written.
| THE COMPANY: | |||
| Longfoot Communications Corp. | |||
| a Delaware corporation | |||
|
By:
|
/s/ XXXXXX XXXXX | ||
| Name: | Xxxxxx Xxxxx | ||
| Title: | President | ||
| THE INVESTORS: | |||
| Frost Gamma Investment Trust | |||
|
By:
|
/s/ XXXXXXX XXXXX | ||
| Xxxxxxx Xxxxx | |||
| /s/ XX. XXXX XXXXX | |||
| Xx. Xxxx Xxxxx | |||
| /s/ XXXXXX X. XXXXX | |||
| Xxxxxx X. Xxxxx | |||
| /s/ XXXXXXXX XXXXXXXX | |||
| Xxxxxxxx Xxxxxxxx | |||
| THE EXISTING STOCKHOLDERS: | |||
| /s/ SIM XXXXX | |||
| Sim Xxxxx | |||
| /s/ XXXXXX XXXXX | |||
| Xxxxxx Xxxxx | |||
| /s/ XXXX XXXXX | |||
| Xxxx Xxxxx | |||
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| PP6O, LLC | |||
|
By:
|
/s/ SIM XXXXX | ||
| Its: | Member | ||
| Gusmail, LLC | |||
|
By:
|
/s/ XXXXXX XXXXX | ||
| Its: | Member | ||
| 32 Mayall, LLC | |||
|
By:
|
/s/ XXXX XXXXX | ||
| Its: | Member | ||
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EXHIBIT
A
SCHEDULE
OF INVESTORS
|
Name,
Address and
State
of Residence
|
Number
of Shares of Common Stock to be Purchased
|
Percentage
of
Shares
Purchased
|
|
Frost
Gamma Investments Trust
0000
Xxxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxxxx,
Xxxxxxx 00000
|
1,222,713
|
72%
|
|
Xx. Xxxx
Xxxxx
0000
Xxxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxxxx,
Xxxxxxx 00000
|
305,677
|
18%
|
|
Xxxxxx
X. Xxxxx
0000
Xxxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxxxx,
Xxxxxxx 00000
|
84,911
|
5%
|
|
Xxxxxxxx
Xxxxxxxx
0000
Xxxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxxxx,
Xxxxxxx 00000
|
84,911
|
5%
|
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