STOCK PURCHASE AGREEMENT
AMONG
XXXXXXX X. XXXXXX,
AS PURCHASER,
AND
XXXXXXXXXXX X. XXXXXXXX,
XXX X. XXXXX,
AND
XXXXX X. LOUD,
AS SELLERS
OCTOBER 1, 1997
STOCK PURCHASE AGREEMENT
Agreement entered into as of October 1, 1997, by and among Xxxxxxx X.
Xxxxxx, an individual (the "Purchaser"), Xxxxxxxxxxx X. Xxxxxxxx
("Xxxxxxxx"), Xxx X. Xxxxx ("Xxxxx"), and Xxxxx X. Loud ("Loud"). Phillips,
Welch, and Loud are referred to collectively herein as the "Sellers" and
individually as a "Seller." The Purchaser and the Sellers are referred to
collectively herein as the "Parties."
Each Seller owns the number of shares of issued and outstanding common
stock of Rocky Mountain Internet, Inc., a Delaware corporation ("RMII"), set
forth next in the first column next to the respective Seller's name in
Exhibit A hereto.
This Agreement contemplates a transaction in which the Purchaser will
purchase from each of the Sellers, and each of the Sellers will sell to the
Purchaser, the number of the issued and outstanding shares of common stock of
RMII set forth next to the respective Seller's name in the second column of
Exhibit A hereto (the "Purchased Shares") in return for cash in the amount of
$2.00 per Purchased Share.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages (including incidental and consequential
damages), dues, penalties, fines, costs, amounts paid in settlement,
Liabilities, obligations, Taxes, liens, losses, expenses (including costs of
investigation and defense), diminution in value, and fees, including court
costs and attorneys' fees and expenses.
"APPLICABLE RATE" means 8% per annum.
"BEST EFFORTS" means the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances to ensure that such
result is achieved as expeditiously as possible.
"CLOSING" has the meaning set forth in Section 2(c) below.
"CLOSING DATE" has the meaning set forth in Section 2(c) below.
"CODE" means the Internal Revenue Code of 1986, as amended.
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"CONFIDENTIAL INFORMATION" means any information concerning the
businesses and affairs of RMII and its Subsidiaries that is not already
generally available to the public.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(d) below.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(d) below.
"LIABILITY" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity
and frequency).
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, a limited liability partnership, a limited liability
limited partnership, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"PURCHASE PRICE" has the meaning set forth in Section 2(b) below.
"PURCHASED SHARES" has the meaning set forth in the preface above.
"PURCHASER" has the meaning set forth in the preface above.
"RMII" has the meaning set forth in the preface above.
"RMII SHARE" means any share of the Common Stock, par value $0.001 per
share, of RMII.
"RMII STOCK PURCHASE AGREEMENT" has the meaning set forth in Section
7(a)(iv) below.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable or for Taxes
that the taxpayer is contesting in good faith through appropriate
proceedings, (c) purchase money liens and liens securing rental payments
under capital lease arrangements, and (d) other liens arising in the Ordinary
Course of Business and not incurred in connection with the borrowing of money.
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"SELLER" has the meaning set forth in the preface above.
"TAX" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Sec. 59A),
customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or
add-on minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
"THIRD PARTY CLAIM" has the meaning set forth in Section 8(d) below.
2. PURCHASE AND SALE OF PURCHASED SHARES.
(a) BASIC TRANSACTION. On and subject to the terms and conditions of
this Agreement, the Purchaser agrees to purchase from each of the Sellers,
and each of the Sellers agrees to sell to the Purchaser, the number of
Purchased Shares set forth next to the respective Seller's name in the second
column of Exhibit A hereto for the consideration specified below in this
Section 2.
(b) PURCHASE PRICE. The Purchaser agrees to pay to each of the Sellers
at the Closing $2.00 multiplied by the number of Purchased Shares set forth
next to the respective Seller's name in the second column of Exhibit A hereto
(the "Purchase Price"), in certified or official bank check or by wire
transfer of funds.
(c) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Minor & Xxxxx,
P.C., 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 at 9:30
a.m., local time on the second business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to
actions the respective Parties will take at the Closing itself) or such other
date as the Company and the Purchaser shall agree (the date of the Closing is
hereinafter referred to as the "Closing Date").
(d) DELIVERIES AT THE CLOSING. At the Closing, (i) each of the Sellers
will deliver to the Purchaser stock certificates representing all of the
Purchased Shares owned by such Seller, endorsed in blank or accompanied by
duly executed assignment documents, with signature Medallion guaranteed, and
(iv) the Purchaser will deliver to the Sellers the Purchase Price.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
(a) REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the Sellers
represents and warrants to the Purchaser that the statements contained in
this Section 3(a) are correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made then
and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 3(a)) with respect to himself, except as
set forth in Annex I attached hereto.
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(i) AUTHORIZATION OF TRANSACTION. The Seller has full power and
authority to execute and deliver this Agreement and to perform his
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of the Seller, enforceable in accordance with its terms
and conditions, except as such enforcement may be limited by the application
of bankruptcy, insolvency, reorganization, and other laws of general
applicability relating to creditors' rights. The Seller need not give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(ii) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Seller is subject; or
(B) conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to which the
Seller is a party or by which he is bound or to which any of his assets is
subject.
(iii) BROKERS' FEES. The Seller has no Liability or obligation to pay any
fees or commissions to any broker, finder, or similar agent with respect to
the transactions contemplated by this Agreement for which the Purchaser could
become liable or obligated.
(iv) RMII SHARES. The Seller holds of record and owns beneficially the
number of RMII Shares set forth next to his name in the first column next to
such Seller's name in Exhibit A hereto, free and clear of any restrictions on
transfer (other than any restrictions under the Securities Act and state
securities laws), Taxes, Security Interests, options, warrants, purchase
rights, contracts, commitments, equities, claims, and demands. The Seller is
not a party to any option, warrant, purchase right, or other contract or
commitment that could require such Seller to sell, transfer, or otherwise
dispose of any capital stock of RMII (other than this Agreement). The Seller
is not a party to any voting trust, proxy, or other agreement or understanding
with respect to the voting of any capital stock of RMII except that certain
Shareholders' Voting Agreement and Irrevocable Proxy among the Sellers and the
Purchaser of even date herewith.
(b) REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Sellers that the statements contained in this
Section 3(b) are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date (as though made then and
as though the Closing Date were substituted for the date of this Agreement
throughout this Section 3(b)), except as set forth in Annex II attached
hereto.
(i) AUTHORIZATION OF TRANSACTION. The Purchaser has full power and
authority to execute and deliver this Agreement and to perform his
obligations hereunder. This
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Agreement constitutes the valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms and conditions. The
Purchaser need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency
in order to consummate the transactions contemplated by this Agreement.
(ii) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Purchaser is subject or (B) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Purchaser is a party or by which
he is bound or to which any of his assets is subject.
(iii) INVESTMENT. The Purchaser is acquiring the Purchased Shares for
investment for his own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any unregistered distribution
thereof.
(iv) RESTRICTED SECURITIES. The Purchaser understands and acknowledges
that the Purchased Shares are not being registered under the Securities Act
or relevant state securities laws in connection with the sale to the Purchaser,
but are being offered and sold pursuant to exemptions from such registrations,
and that the Purchaser may not sell, transfer, assign, convey, pledge,
hypothecate, or otherwise dispose of any of the Purchased Shares in any manner
without first obtaining (i) an opinion of counsel satisfactory to the Company
that such proposed disposition or transfer lawfully may be made without the
registration of the Purchased Shares for such purpose pursuant to the Securities
Act, as then amended, and applicable state securities laws; or (ii) such
registration. In furtherance thereof, the Purchaser represents and warrants to
and agrees with the Sellers that the Purchaser:
(A) has been furnished with a copy of the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996, Forms 10-Q for
the quarters ended March 31, 1997 and June 30, 1997, and Current Report on
Form 8-K dated August 15, 1997 (collectively, the "Documents") and has
evaluated the risks of a purchase of the Shares based on the information
contained therein and in this Agreement; and
(B) has been given the opportunity to ask questions of, and
receive answers from, the management of the Company concerning the terms,
conditions, and other matters pertaining to the investment in the Purchased
Shares.
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(v) BROKERS' FEES. The Purchaser has no Liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which any Seller could
become liable or obligated.
4. DUTY TO UPDATE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN.
Each Party will give prompt written notice to the others of any material
adverse development causing a breach of any of his own representations and
warranties in Section 3 above. No disclosure by any Party pursuant to this
Section 4, however, shall be deemed to amend or supplement Annex I or Annex
II or to prevent or cure any misrepresentation, breach of warranty, or breach
of covenant.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use his Best Efforts to take all
action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth
in Section 7 below).
(b) NOTICES AND CONSENTS. Each of the Parties will give any notices to,
make any filings with, and use his Best Efforts to obtain any authorizations,
consents, and approvals of governments and governmental agencies in
connection with the matters referred to in Section 3(a)(ii) and Section
3(b)(ii) above.
(c) EXCLUSIVITY. None of the Sellers will (i) solicit, initiate, or
encourage the submission of any proposal or offer from any Person relating to
the acquisition of any capital stock or other voting securities, or any
substantial portion of the assets of, RMII (including any acquisition
structured as a merger, consolidation, or share exchange) or (ii) participate
in any discussions or negotiations regarding, furnish any information with
respect to, assist or participate in, or facilitate in any other manner any
effort or attempt by any Person to do or seek any of the foregoing. None of
the Sellers will vote his Shares in favor of any such acquisition structured
as a merger, consolidation, or share exchange. The Sellers will notify the
Purchaser immediately if any Person makes any proposal, offer, inquiry, or
contact with respect to any of the foregoing.
6. POST-CLOSING COVENANTS. The Parties agree as follows with respect
to the period following the Closing.
(a) GENERAL. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as any other Party reasonably may
request. Unless the requesting Party is entitled to indemnification therefor
under Section 8 below, all costs and expenses associated with the taking of such
further action
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(except for the payment of attorney's fees and costs) shall be reimbursed by
the requesting Party upon the presentation of valid receipts for such
expenses.
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection
with (i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or
prior to the Closing Date involving RMII, each of the other Parties will
cooperate with him and his counsel in the contest or defense, make available
their personnel, and provide such testimony and access to their books and
records as shall be necessary in connection with the contest or defense.
Unless the Party requesting such cooperation is entitled to indemnification
therefor under Section 8 below, all costs and expenses associated with the
taking of such further action (except for the payment of attorney's fees and
costs) shall be reimbursed by the requesting Party upon the presentation of
valid receipts for such expenses.
(c) TRANSITION. None of the Sellers will take any action that is
intended to discourage any lessor, licensor, customer, supplier, or other
business associate of RMII from maintaining the same business relationships
with RMII after the Closing or termination of this Agreement as it maintained
with RMII prior to the execution of this Agreement.
(d) CONFIDENTIALITY. Each of the Parties will treat and hold as such
all of the Confidential Information, refrain from using any of the
Confidential Information except in connection with this Agreement, and
deliver promptly to the disclosing Party or destroy, at the request and
option of the disclosing Party, all tangible embodiments (and all copies) of
the Confidential Information that are in his possession. In the event that
any of the Sellers is requested or required (by oral question or request for
information or documents in connection with any legal proceeding,
interrogatory, subpoena, civil investigative demand, or similar process) to
disclose any Confidential Information, that Seller will notify the Purchaser
promptly of the request or requirement so that the Purchaser may seek an
appropriate protective order or waive compliance with the provisions of this
Section 6(d). If, in the absence of a protective order or the receipt of a
waiver hereunder, any Seller is, on the advice of counsel, compelled to
disclose any Confidential Information to any tribunal or else stand liable
for contempt, that Seller may disclose the Confidential Information to the
tribunal; PROVIDED, HOWEVER, that the disclosing Seller shall use his Best
Efforts to obtain, at the request of the Purchaser, an order or other
assurance that confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed as the Purchaser shall
designate.. The foregoing provisions shall not apply to any Confidential
Information that is generally available to the public immediately prior to
the time of disclosure.
7. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF THE PURCHASER. The obligation of the
Purchaser to consummate the transactions to be performed by him in connection
with the Closing is subject to satisfaction of the following conditions:
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(i) the representations and warranties set forth in Section 3(a)
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Sellers shall have performed and complied with all of their
covenants hereunder in all respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, or (C) affect adversely the right of
the Purchaser to own the Purchased Shares;
(iv) the Purchaser shall have completed and closed the purchase and
sale of 1,225,000 shares of common stock of RMII from RMII, as contemplated
in that certain Stock Purchase Agreement dated as of October 1, 1997 between
the Purchaser and RMII (the "RMII Stock Purchase Agreement");
(v) the Purchase shall have entered into a Shareholders' Voting
Agreement and Irrevocable Proxy with the Sellers; and
(vi) all actions to be taken by the Sellers in connection with
consummation of the transactions contemplated hereby and all certificates,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to
the Purchaser.
The Purchaser may waive any condition specified in this Section 7(a) if it
executes a writing so stating at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLERS. The obligation of the
Sellers to consummate the transactions to be performed by them in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(b)
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Purchaser shall have performed and complied with all of his
covenants hereunder in all material respects through the Closing.
(iii) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions
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contemplated by this Agreement or (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation (and
no such injunction, judgment, order, decree, ruling, or charge shall be in
effect); and
(iv) all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
instruments, and other documents required to effect the tansactions
contemplated hereby will be reasonably satisfactory in form and substance
to the Sellers.
Any Seller may waive any condition specified in this Section 7(b) if they
execute a writing so stating at or prior to the Closing.
8. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Parties contained in this Agreement
shall survive the Closing hereunder (even if the damaged Party knew or had
reason to know of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect forever thereafter (subject to
any applicable statutes of limitations).
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE PURCHASER. In the event
that any of the Sellers breaches (or in the event any third party alleges
facts that, if true, would mean that any of the Sellers has breached) any of
his representations, warranties, and covenants contained herein, and,
provided that the Purchaser makes a written claim for indemnification
against any of the Sellers in accordance with the notice provisions of
Section 10(i) below, then each of the Sellers agrees to indemnify the
Purchaser from and against any Adverse Consequences the Purchaser may
suffer through and after the date of the claim for indemnification
(including any Adverse Consequences the Purchaser may suffer after the end
of any applicable survival period) resulting from, arising out of, relating
to, in the nature of, or caused by the breach (or the alleged breach).
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLERS. In the
event the Purchaser breaches (or in the event any third party alleges facts
that, if true, would mean the Purchaser has breached) any of his
representations, warranties, and covenants contained herein, and, provided
that any of the Sellers makes a written claim for indemnification against the
Purchaser pursuant to Section 10(i) below within such survival period, then
the Purchaser agrees to indemnify such Seller from and against the entirety
of any Adverse Consequences such Seller may suffer through and after the date
of the claim for indemnification resulting from, arising out of, relating to,
in the nature of, or caused by the breach (or the alleged breach).
(d) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") that may give
rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 8, then the Indemnified
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Party shall promptly notify each Indemnifying Party thereof in writing;
provided, however, that no delay on the part of the Indemnified Party in
notifying any Indemnifying Party shall relieve the Indemnifying Party from
any obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.
(ii) (ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of his choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 15 days
after the Indemnified Party has given notice of the Third Party Claim that
the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety of any Adverse Consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the Indemnified
Party that the indemnifying Party will have the financial resources to
defend against the Third Party Claim and fulfill his indemnification
obligations hereunder, (C) the Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief, (D)
settlement of, or an adverse judgment with respect to, the Third Party
Claim is not, in the good faith judgment of the Indemnified Party, likely
to establish a precedential custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim actively
and diligently.
(iii) So long as the Indemnifying Party is conducting the defense of the
Third Party Claim in accordance with Section 8(d)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at his sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnifying Party (not to be withheld unreasonably),
and (C) the Indemnifying Party will not consent to the entry of any judgment
or enter into any settlement with respect to the Third Party Claim without
the prior written consent of the Indemnified Party (not to be withheld
unreasonably).
(iv) In the event any of the conditions in Section 8(d)(ii) above is or
becomes unsatisfied, however, (A) the Indemnified Party may defend against,
and consent to the entry of any judgment or enter into any settlement with
respect to, the Third Party Claim in any manner it may deem appropriate (and
the Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), (B) the Indemnifying Party will
reimburse the Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including attorneys' fees and
expenses), and (C) the Indemnifying Party will remain responsible for any
Adverse Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third Party
Claim to the fullest extent provided in this Section 8.
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(e) DETERMINATION OF ADVERSE CONSEQUENCES. The Parties shall take into
account the time cost of money (using the Applicable Rate as the discount
rate) in determining Adverse Consequences for purposes of this Section 8.
All indemnification payments under this Section 8 shall be deemed adjustments
to the Purchase Price.
(f) OTHER INDEMNIFICATION PROVISIONS. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for breach of
representation, warranty, or covenant.
9. TERMINATION.
(a) TERMINATION OF AGREEMENT. Certain of the Parties may terminate this
Agreement as provided below:
(i) the Purchaser and the Sellers may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) the Purchaser may at his option terminate this Agreement by
giving written notice to the Sellers on or before the Closing Date if the
Purchaser is not satisfied with the results of his continuing business,
legal, and accounting due diligence regarding RMII in connection with his
proposed purchase of common stock from RMII pursuant to the RMII Stock
Purchase Agreement;
(iii) the Purchaser may terminate this Agreement by giving written
notice to the Sellers at any time prior to the Closing in the event any of
the Sellers has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Purchaser has
notified the Sellers of the breach, and the breach has continued without
cure;
(iv) the Sellers may terminate this Agreement by giving written notice
to the Purchaser at any time prior to the Closing in the event the
Purchaser has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Sellers have
notified the Purchaser of the breach, and the breach has continued without
cure; and
(v) the Purchaser may terminate this Agreement by giving written
notice to the Sellers at any time prior to the Closing if there has been
any adverse change in, or any development reasonably expected to result in
a prospective adverse change in, the condition, financial or otherwise, or
in the earnings, business affairs of business prospects of RMII, whether or
not arising in the Ordinary Course of Business.
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to Section 9(a) above, all rights and obligations of the Parties
hereunder shall terminate without any Liability of any Party to any other
Party (except for any Liability of any Party then in breach).
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(c) NON-PERFORMANCE. In the event of a failure of the Sellers to close
in accordance with the terms hereof or in the event of a breach by any Seller
of the covenants, warranties, representations and obligations hereof,
Purchaser may pursue any or all of the following remedies:
(i) Terminate this Agreement and be reimbursed by the Sellers for
all of the expenses incurred by Purchaser in seeking to close the transaction
contemplated herein;
(ii) Waive such default or breach and close the transaction
contemplated herein; and
(iii) Institute an action against the Sellers for specific
performance. The Sellers acknowledge and agree that the Purchaser would be
damaged irreparably in the event any of the provisions of this Agreement are
not performed in accordance with their specific terms or otherwise are
breached. Accordingly, the Purchaser shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in
any action instituted in any court of the United States or any state thereof
having jurisdiction over the Parties and the matter, in addition to any other
remedy to which Purchaser may be entitled, at law or in equity.
10. MISCELLANEOUS.
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter
of this Agreement prior to the Closing without the prior written approval of
the Purchaser and the Sellers; PROVIDED, HOWEVER, that any Party may make any
public disclosure it believes in good faith is required by applicable law or
any listing or trading agreement concerning RMII's publicly-traded securities
(in which case the disclosing Party will use his Best Efforts to advise the
other Parties prior to making the disclosure).
(b) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes
any prior understandings, agreements, or representations by or among the
Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement
or any of his rights, interests, or obligations hereunder without the prior
written approval of the Purchaser and the Sellers; provided, however, that
the Purchaser may without the approval of the Sellers (i) assign any or all
of his rights and interests hereunder and (ii) designate one or more of his
Affiliates to perform his obligations hereunder (in
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any or all of which cases the Purchaser nonetheless shall remain responsible
for the performance of all of his obligations hereunder).
(e) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in any number of counterparts, each of which may be executed by less than all
of the Purchasers, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument. Execution of a facsimile copy of this Agreement
by any Party and delivery of a copy of this Agreement bearing the facsimile
signature of any Party shall constitute the valid and binding execution and
delivery of this Agreement, and facsimile copies of this Agreement bearing
the facsimile signature of any Party shall constitute an original document
enforceable against such Party.
(h) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given upon the
earlier of actual delivery to the intended recipient or the first attempted
delivery by personal delivery, expedited courier, messenger service, or
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to Xxxxxxxx: Xxxxxxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
With a Copy to:
Xxxxxxx X. Xxxxx, Esq.
Hall & Xxxxx, LLC
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 303/000-0000
Telecopy: 303/628-3368
If to Xxxxx: Xxx X. Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
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With a Copy to:
Xxxxxxx X. Xxxxx, Esq.
Hall & Xxxxx, LLC
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 303/000-0000
Telecopy: 303/628-3368
If to Loud: Xxxxx X. Loud
0000 Xxxx Xxxx Xxxxx
Xxxxxx, XX 00000
With a Copy to:
Xxxxxxx X. Xxxxx, Esq.
Hall & Xxxxx, LLC
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 303/000-0000
Telecopy: 303/628-3368
If to the Purchaser: Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
telecopy: 303/777-4314
With a Copy to:
Xxx X. Xxxxx, Esq.
Minor & Xxxxx, P.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
telecopy: 303/320-6330
Any attempted delivery by any of the methods set forth above may be
verified by the person attempting personal delivery, the courier, the
messenger service, or the United States Postal Service, as the case may be,
through whom or which such delivery was attempted. Any Party may send any
notice, request, demand, claim, or other communication hereunder to the
intended recipient at the address set forth above using any other means
(including telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until, in the case of ordinary mail, it
actually is received by the intended recipient, and, in the case of delivery
by telecopier,
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telex, or electronic mail, on the date of such delivery and verified by
confirmation of such transmission.
Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
(j) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Colorado without giving
effect to any choice or conflict of law provision or rule.
(k) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
the Purchaser and the Sellers. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
(l) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction.
(m) EXPENSES. Each of the Parties will bear at Closing his own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby. The Sellers agree that
none of RMII and its Subsidiaries has borne or will bear any of the Sellers'
costs and expenses (including any of their legal fees and expenses) in
connection with this Agreement or any of the transactions contemplated hereby.
(n) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word "including" shall mean including without
limitation. The Parties intend that each representation, warranty, and
covenant contained herein shall have independent significance. If any Party
has breached any representation, warranty, or covenant contained herein in
any respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative
levels of specificity) which the Party has not breached shall not detract
from or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.
(o) INCORPORATION OF EXHIBITS AND ANNEXES. The Exhibits, Annexes and
other documents identified in this Agreement are incorporated herein by
reference and made a part hereof.
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(p) SUBMISSION TO JURISDICTION. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the
State of Colorado, City and County of Denver, or, if it has or can acquire
jurisdiction, in the United States District Court for the District of
Colorado, and each of the parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or proceeding
and waives any objection to venue laid therein. Process in any action or
proceeding referred to in the preceding sentence may be served on any Party
anywhere in the world. Each Party agrees that a final judgment in any action
or proceeding so brought shall be conclusive and may be enforced by suit on
the judgment or in any other manner provided by law or at equity.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
PURCHASER:
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
SELLERS:
/s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxx
------------------------------------
Xxx X. Xxxxx
/s/ Xxxxx X. Loud
------------------------------------
Xxxxx X. Loud
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EXHIBIT A TO STOCK PURCHASE AGREEMENT
Ownership of Common Stock, par value $0.001 per share, of Rocky
Mountain Internet, Inc. by Sellers and Shares of Common Stock to be Sold to
Purchaser
SHARES TO BE SOLD PURCHASE
SELLER SHARES OWNED ("PURCHASED SHARES") PRICE
------- ------------ -------------------- ---------
Xxxxxxxxxxx X. Xxxxxxxx 426,000 50,000 $100,000
Xxx X. Xxxxx 433,574 50,000 $100,000
Xxxxx X. Loud 483,500 25,000 $50,000
ANNEX I
Exceptions to Sellers' Representations and Warranties
Each of the Shareholders is a party to a Lock-Up Agreement for
shareholders among the RMII, the Shareholder and Neidiger, Tucker, Bruner,
Inc. (the "Underwriter"), dated on or about July 8, 1996, which prohibits the
Shareholder from selling any shares of RMII's common stock for period of 18
months without the Underwriter's consent.
ANNEX II
Exceptions to Purchaser's Representations and Warranties
[None]
