AGREEMENT FOR THE PURCHASE OF STOCK
THIS AGREEMENT FOR THE PURCHASE OF STOCK (the "Agreement"), is entered
into as of September 16, 1999 by and among Century Financial Group, Inc., a
Florida corporation ("Purchaser"), and CNG Financial Corporation, an Ohio
corporation ("Stockholder").
PREMISES
WHEREAS, Stockholder has entered into an Agreement for the Purchase of
Stock by and between Stockholder and Columbia Capital Corp., a Delaware
corporation (the "Company"), of even date herewith (the "CLCK/CNG Stock Purchase
Agreement");
WHEREAS, pursuant to the terms and conditions of the CLCK/CNG Stock
Purchase Agreement, Stockholder shall have the right, under certain terms and
conditions, to become the principal stockholder of the Company;
WHEREAS, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxx, the affiliates of
Purchaser, are currently the principal stockholders of the Company, and have
substantial knowledge of the financial condition and business prospects of the
Company;
WHEREAS, this Agreement provides for the right of Purchaser to purchase
1,000,000 shares (the "CLCK Shares") of the common stock of the Company ("CLCK
Common Stock") in consideration of the aggregate purchase price of $10.00
("Purchase Price"), determined in accordance with and subject to the terms and
conditions of this Agreement, and the covenants, representations and warranties
of each of the parties hereto; and
WHEREAS, the parties intend and believe that it is in their best
interests to enter into this Agreement and the other agreements contemplated
herein;
AGREEMENT
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF PURCHASER
As an inducement to, and to obtain the reliance of Stockholder,
Purchaser represents and warrants, as follows:
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Section 1.1 BINDING OBLIGATION; NO DEFAULT. Purchaser has duly taken
all action necessary to authorize the execution, delivery and performance of
this Agreement and the other instruments and agreements contemplated hereby.
Such execution, delivery and performance does not and will not, to the best
knowledge of Purchaser, constitute a default under or a violation of any
agreement, order, award, judgment, decree, statute, law, rule, regulation or any
other instrument to which Purchaser is a party or by which Purchaser or the
property of Purchaser may be bound or may be subject. This Agreement constitutes
the legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, except as may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
subject to general principles of equity, whether applied in a proceeding in
equity or at law.
Section 1.2 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither the
execution and delivery of this Agreement by Purchaser nor compliance by
Purchaser with the terms and conditions of this Agreement will: (a) require
Purchaser to obtain the consent of any governmental agency; (b) constitute a
material default under any indenture, mortgage or deed of trust to which
Purchaser is a party or by which Purchaser, or its properties may be subject;
(c) cause the creation or imposition of any Encumbrance (as defined hereinafter)
on any assets of Purchaser; or (d) breach any statute or regulation of any
governmental authority, domestic or foreign, or will on the Closing Date,
conflict with or result in a breach or any of the terms or conditions of any
judgment, order, injunction, decree or ruling of any court or governmental
authority, domestic or foreign, to which Purchaser is subject.
Section 1.3 CONSENTS. No consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority or any third party is required to be made or obtained by Purchaser in
connection with the execution, delivery and performance of this Agreement and
the transactions contemplated hereby.
Section 1.4 ACCURACY OF INFORMATION FURNISHED. No representation or
warranty by Purchaser contained in this Agreement or in respect of the exhibits,
schedules or documents delivered to Stockholder by Purchaser and expressly
referred to herein, and no statement contained in any certificate furnished or
to be furnished by or on behalf of Purchaser pursuant hereto, or in connection
with the transactions contemplated hereby, contains, or will contain as of the
date such representation or warranty is made or such certificate is or will be
furnished, and as of the Closing Date, any untrue statement of a material fact,
or omits, or will omit to state as of the date such representation or warranty
is made or such certificate is or will be furnished, any material fact which is
necessary to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading. True and correct
copies of each agreement and other document referred to in the schedules hereto
have been furnished by Purchaser to Stockholder.
Section 1.5 SECURITIES WARRANTIES. With respect to the CLCK Shares to
be transferred and delivered by Stockholder to Purchaser pursuant to Section 3.1
hereof, Purchaser hereby represents and warrants to Stockholder that:
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(a) The CLCK Shares are being acquired for the account of
Purchaser and not with a view to sale in connection with any distribution of the
CLCK Shares;
(b) Purchaser is acquiring the CLCK Shares hereunder without
having received any form of general solicitation or general advertising;
(c) Purchaser or its representative, if any, has been provided
with, or given reasonable access to, full and fair disclosure of all material
information concerning the Company;
(d) Purchaser has a preexisting personal or business
relationship with the Company or certain of its officers, directors or
controlling persons, or by reason of its business or financial experience,
Purchaser could reasonably be assumed to have the capacity to represent his own
interests in connection with this Agreement;
(e) Purchaser understands and hereby acknowledges that the
CLCK Shares will be transferred and delivered pursuant only to those
restrictions imposed by and exemptions available pursuant to applicable federal
and state laws and that the certificates to be issued in respect of the CLCK
Shares may bear a legend in a form satisfactory to counsel for the Company;
(f) Purchaser agrees that the certificates to be issued in
respect of the CLCK Shares may bear a legend in a form satisfactory to counsel
for the Company reflecting the status of the Shares as restricted securities
under Rule 144(a)(3) promulgated under the Securities Act of 1933, as amended
(the "Securities Act") and acknowledges that the transfer agent or registrar for
the Company may be instructed to restrict the transfer of the CLCK Shares in
accordance with such legend and any other restrictions provided in this
Agreement;
(g) Purchaser hereby agrees that he will not sell, transfer,
hypothecate, pledge, assign or otherwise dispose of any of the CLCK Shares,
except pursuant to the terms of this Agreement and to a registration statement
filed under the provisions of the Securities Act, a favorable no-action or
interpretive letter received from the Securities and Exchange Commission (the
"Commission") or an opinion of counsel satisfactory to the Company that such
sale, transfer, hypothecation, pledge, assignment or other disposition is exempt
from the registration requirements of the Securities Act, pursuant to an opinion
of counsel satisfactory to the Company that such sale, transfer, hypothecation,
pledge, assignment or other disposition is exempt from the registration
requirements of the Securities Act and does not in any way violate the terms of
this Agreement; and
(h) Purchaser hereby acknowledges that: (i) the CLCK Shares
referred to herein are being acquired after adequate investigation of the
business plan and prospects of the Company; (ii) that Purchaser is not relying
upon the accuracy of any predictions as to the future prospects or developments
of the Company or its business and is well informed as to the business of the
Company and has reviewed its operations and financial statements; (iii)
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Purchaser or his professional advisors have discussed the financial condition
and business operations of the Company with the officers, directors and
principal stockholders of the Company and has been afforded the opportunity to
ask questions with respect thereto; and (iv) Purchaser specifically acknowledges
that the CLCK Shares are speculative and involve a very high degree of risk and
that there can be no assurance that the Company will achieve its business
objectives.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF STOCKHOLDER
As an inducement to, and to obtain the reliance of Purchaser,
Stockholder represents and warrants, as follows:
Section 2.1 BINDING OBLIGATION; NO DEFAULT. Stockholder has duly taken
all action necessary to authorize the execution, delivery and performance of
this Agreement and the other instruments and agreements contemplated hereby.
Such execution, delivery and performance does not and will not, to the best
knowledge of Stockholder, constitute a default under or a violation of any
agreement, order, award, judgment, decree, statute, law, rule, regulation or any
other instrument to which Stockholder is a party or by which Stockholder or the
property of Stockholder may be bound or may be subject. This Agreement
constitutes the legal, valid and binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and subject to general principles of equity, whether applied in a
proceeding in equity or at law.
Section 2.2 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither the
execution and delivery of this Agreement by Stockholder nor compliance by
Stockholder with the terms and conditions of this Agreement will: (a) require
Stockholder to obtain the consent of any governmental agency; (b) constitute a
material default under any indenture, mortgage or deed of trust to which
Stockholder is a party or by which Stockholder or its properties may be subject;
(c) cause the creation or imposition of any Encumbrance (as defined hereinafter)
on any of its assets; or (d) breach any statute or regulation of any
governmental authority, domestic or foreign, or will on the Closing Date,
conflict with or result in a breach or any of the terms or conditions of any
judgment, order, injunction, decree or ruling of any court or governmental
authority, domestic or foreign, to which Stockholder is subject.
Section 2.3 CONSENTS. No consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority or any third party is required to be made or obtained by Stockholder
in connection with the execution, delivery and performance of this Agreement and
the transactions contemplated hereby.
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Section 2.4 ACCURACY OF INFORMATION FURNISHED. No representation or
warranty by Stockholder contained in this Agreement or in respect of the
exhibits, schedules or documents delivered to Purchaser by Stockholder and
expressly referred to herein, and no statement contained in any certificate
furnished or to be furnished by or on behalf of Stockholder pursuant hereto, or
in connection with the transactions contemplated hereby, contains, or will
contain as of the date such representation or warranty is made or such
certificate is or will be furnished, and as of the Closing Date, any untrue
statement of a material fact, or omits, or will omit to state as of the date
such representation or warranty is made or such certificate is or will be
furnished, any material fact which is necessary to make the statements contained
herein or therein, in light of the circumstances under which they were made, not
misleading. True and correct copies of each agreement and other document
referred to in the schedules hereto have been furnished by Stockholder to
Purchaser.
Section 2.5 TITLE TO THE CLCK SHARES. At the Closing Date: (a) all of
the CLCK Shares to be delivered to Purchaser shall be duly and validly issued,
fully paid and non-assessable and free from all stamp taxes, liens and charges
with respect to the purchase thereof; (b) Stockholder shall be the equitable and
legal owner of, and shall have good title to, the CLCK Shares, free and clear of
all pledges, liens, mortgages, encumbrances, security interests, equities,
options, claims, charges, limitations on voting rights or rights to receive
dividends, or other restrictions of any kind (other than any generally imposed
by federal, corporate or state securities laws or as otherwise provided for in
this Agreement)(collectively, "Encumbrances"), except as to Purchaser, and
Stockholder shall have the right to transfer the CLCK Shares as provided herein;
and (c) upon delivery to Purchaser of the certificates for the CLCK Shares
described in Section 3.1 of this Agreement, Purchaser shall receive good and
marketable title to the CLCK Shares, all of the CLCK Shares shall be received by
Purchaser as validly issued, fully paid and nonassessable, free and clear of all
Encumbrances.
ARTICLE III
CLOSING
Section 3.1 PURCHASE OF SHARES. As a result of and immediately upon the
completion of the transactions contemplated by this Agreement, at the Closing,
Stockholder shall transfer and deliver to Purchaser the 1,000,000 CLCK Shares in
consideration of the payment of the Purchase Price. Notwithstanding anything to
the contrary herein, this Agreement shall be null and void, and Stockholder
shall have no obligation whatsoever to sell any shares of CLCK Common Stock to
Purchaser, in the event that the following contingencies are not satisfied: (i)
that Purchaser shall procure or broker, without compensation, executed
processing contracts (the "Processing Contracts") between the Company and one or
more customers; (ii) that each of the Processing Contracts shall have a term
length of not less than five (5) years; (iii) that the Processing Contracts
shall collectively generate not less than $150,000 of processing revenues for
the Company, during the month of March, 2000; and (iv) that Stockholder shall
pay the Second Installment Payment to the Company in accordance with the terms
and conditions of the CLCK/CNG Stock Purchase Agreement.
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Section 3.2 CLOSING. The Closing of the transactions contemplated by
this Agreement shall be on March 31, 2000, or at such other time as the parties
may agree ("Closing Date"), prior to which the consummation of the transactions
contemplated hereby may not be effectuated.
Section 3.3 CLOSING EVENTS.
(a) At the Closing, each of the respective parties hereto
shall execute, acknowledge and deliver (or shall cause to be executed,
acknowledged, and delivered) this Agreement and any and all certificates,
opinions, financial statements, schedules, agreements, resolutions, rulings, or
other instruments required by this Agreement to be so delivered at or prior to
the Closing, together with such other items as may be reasonably requested by
the parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby. However, in no event shall the
Closing occur without the satisfaction or waiver of the conditions set forth in
Sections 5 and 6 of this Agreement;
(b) At the Closing, Stockholder shall deliver to Purchaser
certificates reflecting the number of CLCK Shares determined in accordance with
Section 3.1 hereof, registered in the name of Purchaser, or registered in the
name of Stockholder, together with stock powers executed by Stockholder, each
with medallion signature guarantees with respect to each stock certificate
reflecting the CLCK Shares; and
(c) At the Closing, Purchaser shall deliver to Stockholder
funds in the aggregate of amount of the Purchase Price.
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 AVAILABILITY OF RULE 144. Each of the parties acknowledge
that the CLCK Shares to be transferred and delivered pursuant to this Agreement
will be "restricted securities," as that term is defined in Rule 144 promulgated
pursuant to the Securities Act. The Company is under no obligation, except as
set forth herein, to register such shares under the Securities Act.
Section 4.2 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE SHARES.
The consummation of this Agreement and the transactions herein contemplated,
including the transfer and delivery of the CLCK Shares to Purchaser as
contemplated hereby, constitutes the offer and sale of securities under the
Securities Act, and applicable state statutes. Such transaction shall be
consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, INTER ALIA, upon the
circumstances under which Purchaser acquires such securities.
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Section 4.3 THIRD PARTY CONSENTS. Purchaser and Stockholder agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein and therein contemplated.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS
OF PURCHASER
The obligations of Purchaser under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Stockholder in this Agreement were true when made and shall
be true as of the Closing Date with the same force and effect as if such
representations and warranties were made as of the date of this Agreement
(except for changes therein permitted by this Agreement), and Stockholder shall
have performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Stockholder prior to or at the
Closing.
Section 5.2 OTHER ITEMS. Purchaser shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Purchaser may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDER
The obligations of Stockholder under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 6.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Purchaser in this Agreement were true when made and shall be
true as of the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the date of this Agreement
(except for changes therein permitted by this Agreement), and Purchaser shall
have performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Purchaser prior to or at the
Closing.
Section 6.2 OTHER ITEMS. Stockholder shall have received such further
documents, certificates, or instruments relating to the transactions
contemplated hereby as he may reasonably request.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 BROKERS AND FINDERS. Neither Purchaser nor Stockholder, nor
any of their respective officers, directors, agents or employees has employed
any investment banker, broker or finder, or incurred any liability on behalf of
Purchaser or Stockholder, as the case may be, for any investment banking fees,
brokerage fees, commissions or finders' fees, in connection with the
transactions contemplated by this Agreement. The parties each agree to indemnify
the other against any other claim by any third person for any commission,
brokerage or finder's fee or other payment with respect to this Agreement or the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.2 CHOICE OF LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Ohio.
Section 7.3 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by overnight mail, registered mail or certified mail, postage prepaid, or
by prepaid telegram, or when telecopied and followed by confirmation copy
hand-delivered or sent by first class mail, addressed as follows:
If to Purchaser, to: Xxxxxxx X. Xxxxx, President
Century Financial Group, Inc.
0000 Xxxxx Xxxx 00xx Xxxxxx
Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone no. (000) 000-0000
Facsimile no. (000) 000-0000
If to Stockholder, to: Xxxxx X. Xxxxx, President
CNG Financial Corporation
0000 Xxxxxxxxxxx-Xxxxxxx Xxxx
Xxxxx, Xxxx 00000
Telephone no. (513) 336-7735 ext. 101
Facsimile no. (000) 000-0000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
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Section 7.4 ATTORNEYS' FEES. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 7.5 THIRD PARTY BENEFICIARIES. This Agreement is solely among
Purchaser and Stockholder and as otherwise as specifically provided, no
director, officer, stockholder, employee, agent, independent contractor or any
other person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 7.6 ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understandings, agreements, representations or warranties, written or oral,
except as set forth herein.
Section 7.7 SURVIVAL; TERMINATION. The representations, warranties and
covenants of the respective parties shall survive the Closing Date of the
reorganization and the consummation of the transactions herein contemplated.
Section 7.8 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.9 AMENDMENT OR WAIVER. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended. This Agreement may not be amended or modified, except by a written
agreement signed by all parties hereto.
Section 7.10 INCORPORATION OF RECITALS. All of the recitals hereof are
incorporated by this reference and are made a part hereof as though set forth at
length herein.
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Section 7.11 EXPENSES. Each of the parties to this Agreement shall bear
all of its own expenses incurred by it in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation therefor.
Section 7.12 HEADINGS; CONTEXT. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
Section 7.13 BENEFIT. This Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
Section 7.14 PUBLIC ANNOUNCEMENTS. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
Section 7.15 SEVERABILITY. In the event that any particular provision
or provisions of this Agreement or the other agreements contained herein shall
for any reason hereafter be determined to be unenforceable, or in violation of
any law, governmental order or regulation, such unenforceability or violation
shall not affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the respective parties
hereto.
Section 7.16 FAILURE OF CONDITIONS; TERMINATION. In the event any of
the conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, the parties, or any one of them, have the right either to
proceed or, upon prompt written notice to the other, to terminate and rescind
this Agreement without liability to any other party. The election to proceed
shall not affect the right of such electing party reasonably to require the
other party to continue to use its efforts to fulfill the unmet conditions.
Section 7.17 NO STRICT CONSTRUCTION. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against either party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.18 EXECUTION KNOWING AND VOLUNTARY. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprised of its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) has been
afforded the opportunity to negotiate as to any and all terms hereof; and (d) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and entered into as of the date first above written at Mason, Ohio.
("Purchaser")
CENTURY FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx, President
("Stockholder")
CNG FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx, President
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