EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
by and among
XIT CORPORATION, as Seller,
and
MICROTEL INTERNATIONAL, INC.
and the
PERSONS LISTED IN SCHEDULE I, as Buyers,
and
XXXX X. XXXXXXXX, as Buyer Representative,
with respect to the sale of
all of the capital stock owned by Seller of
HYCOMP, INC.
dated as of
October 13, 1999
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
October 13, 1999, by and among Microtel International, Inc., a corporation
organized under the laws of the State of Delaware ("MicroTel"), XIT Corporation
(formerly known as XCEL Corporation), a New Jersey corporation and a
wholly-owned subsidiary of MicroTel (the "Seller"), each of the persons listed
in Schedule I hereto (individually a "Buyer" and collectively, the "Buyers") and
Xxxx X. Xxxxxxxx, as representative of the Buyers (the "Buyer Representative").
WHEREAS, as of the date hereof, Seller is the record holder and
beneficial owner of 9,041,498 shares of common stock, par value $.01 per share
(the "Securities"), of HyComp, Inc., a corporation organized under the laws of
the Commonwealth of Massachusetts ("HyComp"), which Securities represent all of
the issued and outstanding shares of common stock and other securities of HyComp
owned by Seller;
WHEREAS, each of the Buyers desires to purchase from Seller, and Seller
desires to sell to each of the Buyers, for consideration hereinafter provided,
the number of Securities set forth opposite such Buyer's name on Schedule I
hereto, all upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and on the basis of
the respective representations, warranties, covenants, agreements, undertakings
and obligations set forth herein, and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE 1
PURCHASE AND SALE OF THE SECURITIES
1.1 Purchase and Sale of Securities. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined in Section
2), Buyers agree to purchase and accept delivery from Seller, and Seller agrees
to sell, assign, transfer and deliver to Buyers, all of the Securities of HyComp
beneficially owned by Seller, free of all liens, pledges, mortgages, security
interests, charges, restrictions, adverse claims or other encumbrances of any
kind or nature whatsoever ("Encumbrances"), for the consideration specified in
Section 1.2.
1.2 Purchase Price. The purchase price for the Securities shall be the
sum of U.S.$150,000 (the "Purchase Price"), payable by the Buyers at the
Closing. The Securities shall be purchased by Buyers and shall be allocated
among Buyers in proportion to their respective holding of the Securities, as set
forth opposite such Buyer's name on Schedule I hereto.
ARTICLE 2
CLOSING
2.1 Closing. The purchase and sale of the Securities provided for in
this Agreement will take place at the offices of Kramer, Levin, Naftalis &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
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10022, at 4:00 p.m. on the date hereof, or at such other time and place as the
parties may agree (the "Closing").
2.2 Closing Obligations. At the Closing:
(a) Seller shall deliver, or cause to be delivered, to the
Buyer Representative for the ratable benefit of Buyers the following:
(i) Certificates representing the Securities,
duly endorsed in blank (or accompanied by
duly executed blank stock powers) and all
other documents or instruments, including,
any and all necessary transfer stamps which
are necessary to vest all of Seller's right,
title and interest in and into the
Securities in Buyers;
(ii) Such legal opinions from Seller's counsel as
the Buyer Representative shall reasonably
request; and
(iii) Such other documents as the Buyer
Representative may reasonably require.
(b) Buyers shall deliver, or cause to be delivered, to Seller
the following:
(i) The Purchase Price, in accordance with
Article 1 of this Agreement; and
(ii) Such other documents as Seller may
reasonably require.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND MICROTEL
3. Representations and Warranties of Seller and MicroTel. Seller and
MicroTel, jointly and severally, represent and warrant to Buyers as follows:
3.1 Organization and Good Standing. Seller is a corporation duly
organized and validly existing under the laws of New Jersey and has all
requisite corporate or other power and authority to enter into this Agreement
and perform its obligations hereunder. MicroTel is a corporation duly organized
and validly existing under the laws of Delaware and has all requisite corporate
or other power and authority to enter into this Agreement and perform its
obligations hereunder.
3.2 The Securities.
(a) Seller has good and valid title to the Securities, free
and clear of any Encumbrances, and Seller shall deliver to Buyers good and valid
title to the Securities free and clear of any Encumbrances.
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(b) The Securities are owned of record and beneficially by
Seller. Seller has sole power of disposition with respect to the Securities,
with no restrictions, subject to United States and other applicable securities
laws, on Seller's rights of disposition pertaining thereto.
3.3 Authority; No Conflict.
(a) The execution and delivery of this Agreement by Seller and
MicroTel, and the sale of the Securities pursuant hereto, have been duly
authorized by all necessary corporate or other action required on the part of
Seller and MicroTel. This Agreement has been duly executed and delivered by
Seller and MicroTel and constitutes the legal, valid and binding obligation of
each of them enforceable against both of them in accordance with its terms,
subject to bankruptcy, insolvency and other similar laws relating to or
affecting the enforceability of creditors' rights generally, and to general
principles of equity.
(b) The execution, delivery and performance of this Agreement
by Seller and MicroTel, and the consummation by Seller and MicroTel of the
transactions contemplated hereby, will not (i) conflict with or violate the
organizational documents of Seller, MicroTel or HyComp, or (ii) conflict with,
violate, result in the breach of any term of, constitute a default under, or
require the consent of or any notice to or filing with any third party or
governmental authority under, any agreement or instrument to which Seller,
MicroTel or HyComp is a party or any law, order, rule, regulation, decree, writ
or injunction of any governmental body having jurisdiction over Seller, MicroTel
or HyComp or their respective properties, except for such consents or filings as
have been obtained or made.
3.4 Capitalization of HyComp. The authorized equity securities of
HyComp consist of (i) 20,000,000 shares of common stock, $.01 par value per
share, of which 10,197,070 shares are issued and outstanding; (ii) 2,000 shares
of non-voting 8% convertible redeemable preferred stock, $100 par value per
share, of which 53 shares of preferred stock are currently issued and
outstanding, but which are to be either redeemed or converted on or before
November 10,1999. All of the outstanding equity securities of HyComp have been
duly authorized and validly issued and are fully paid and nonassessable. There
are options outstanding to purchase 850,000 shares of common stock of HyComp,
exercisable at $.013 per share, pursuant to HyComp's 1985 Stock Option Plan (the
"1985 Plan"). Except as set forth in the preceding sentence pursuant to the 1985
Plan, there are no other outstanding or authorized options, warrants, calls,
rights, commitments, conversion rights or agreements of any character to which
HyComp is a party or by which HyComp is bound which could require HyComp to
issue, deliver, sell or otherwise transfer or cause to be issued, delivered,
sold, transferred or offered for sale or transfer, any shares of capital stock
of HyComp or securities convertible into or exchangeable for shares of capital
stock of HyComp or that could require either HyComp to grant, extend or enter
into any such option, warrant, call, right, commitment, conversion right or
agreement. None of the outstanding equity securities or other securities of
HyComp were issued in violation of the Securities Act or any other legal
requirement. HyComp is under no obligation to register any of its securities
under the United States Securities Act of 1933, as amended (the "Securities
Act") or securities laws of any other jurisdiction. No person has any preemptive
rights with respect to any security of HyComp.
3.5 Balance Sheet; Absence of Undisclosed Liabilities.
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(a) The balance sheet of HyComp, dated as of September 30,
1999 and attached hereto as Exhibit A (the "Balance Sheet"), fairly and
accurately reflects the financial condition of HyComp as of the date thereof,
and
(b) Except as and to the extent (i) reflected and reserved on
the Balance Sheet, or (ii) set forth on Schedule II (the "Disclosure Schedule")
attached hereto, as of the date of this Agreement, HyComp does not have any
liability or obligation, secured or unsecured, whether accrued, absolute,
contingent, unasserted or otherwise, which individually or in the aggregate is
material to HyComp. For purposes of this Section 3.5, "material" means any
amount in excess of $20,000.
3.6 Product Liability and Recalls. Without limiting the representation
contained in Section 3.5, except as disclosed in the Disclosure Schedule,
(a) There is no claim, and neither HyComp, MicroTel nor the
Seller is aware of the basis of any claim, against HyComp for injury to person
or property of employees or any third parties suffered as a result of the
manufacture, sale or distribution of any product or the performance of any
service by HyComp, including claims arising out of the allegedly defective or
unsafe nature of the products sold or distributed by HyComp;
(b) There is no pending or, to the best knowledge of HyComp,
MicroTel or the Seller, threatened recall or investigation of any product sold
or distributed by HyComp; and
(c) There are no liabilities of, or threatened claims against,
HyComp for (i) product returns, (ii) warranty obligations, or (iii) product
services.
3.7 No Activities. Except as set forth in the Disclosure Schedule,
(a) Since the sale of assets to Satcon Technology Corporation,
a Delaware corporation ("Satcon") on April 12, 1999 (the "Satcon Sale"), HyComp
has engaged in no business activity other than incident to such sale, the
settlement of claims identified on the Disclosure Schedule and the maintenance
of HyComp's corporate existence; and
(b) HyComp is not a party to any contract, agreement or other
arrangement, whether or not in writing, that requires any payment or performance
by HyComp after the date of this Agreement.
3.8 Taxes. HyComp (or Seller or MicroTel) has timely filed with the
appropriate taxing authorities all tax returns required to be filed by, or with
respect to, Hycomp (taking into account any extension of time to file). The
information on such tax returns is complete and accurate in all material
respects. HyComp, or Seller or MicroTel, has paid on a timely basis all taxes
due and payable. There are no liens for taxes upon the assets of HyComp. None of
HyComp, Seller or MicroTel has received any notice from any taxing or other
governmental authority claiming, proposing or assessing deficiencies for taxes
with respect to the HyComp and neither MicroTel nor the Seller has any knowledge
that there exists any unpaid (or unreserved in accordance with GAAP)
deficiencies for taxes with respect to HyComp. There are no pending or, to the
knowledge of either MicroTel or Seller, threatened audits, investigations or
claims or issued and outstanding assessments for or relating to any liability in
respect of taxes of HyComp.
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3.9 Authorization of Satcon Sale and Distribution of Proceeds of Sale.
The Satcon Sale, the execution and delivery of all documents and all other
actions taken in connection therewith and the distribution of the proceeds of
the Satcon Sale were duly authorized by all necessary corporate action on the
part of Seller.
3.10 Absences of Reporting Obligations. HyComp is not now and has never
in the past been subject to the reporting obligations of Section 13 or 15(d) of
the United States Securities Exchange Act of 1934, as amended, or similar
securities laws of any other jurisdiction.
3.11 No Subsidiaries. HyComp has no subsidiaries or affiliates and has
no ownership or other interest, direct or indirect, in any other corporate
entity, including, without limitation, HyComp Limited, a United Kingdom
corporation.
3.11 Directors and Officers of HyComp.
(a) Xxxx Xxxxxx and Xxxxxxxx Xxx are the only officers of
HyComp. Xxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxxxxx Xxx are the only directors of
HyComp. HyComp has no other officers or directors.
(b) MicroTel and Seller shall obtain the resignation of all
directors and officers of HyComp identified in subparagraph (a) above, to be
effective as of the Closing or such later time as Buyers shall designate.
3.12 Books and Records. Except as disclosed in the Disclosure Schedule,
the books of account and other records of HyComp, all of which have been made
available to Buyers, are true and correct. Except as disclosed in the Disclosure
Schedule, the minute books of HyComp contain true, correct and, since February
29, 1984, complete records of all meetings held of, and corporate action taken
by, the shareholders, the Board of Directors, and committees of the Board of
Directors of HyComp. The stock books of HyComp are true, accurate and complete.
At the Closing, all of such books and records will be in the possession of
HyComp.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4. Representations and Warranties of Buyer. Each Buyer, individually as
to such Buyer only, hereby represents and warrants to Seller as follows:
4.1 Authority; No Conflict.
(a) If Buyer is an individual, Buyer has the legal capacity to
enter into and perform all of Buyer's obligations under this Agreement.
(b) If Buyer is a corporation, it is duly organized and
validly existing under the laws of its respective jurisdiction and has all
requisite corporate or other power and authority to enter into this Agreement
and perform its obligation hereunder.
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(d) If Buyer is a corporation, (i) the execution and delivery
of this Agreement by Buyer, and the purchase of the Securities pursuant hereto,
have been duly authorized by all necessary corporate or other action required on
the part of Buyer. This Agreement has been duly executed and delivered by Buyer
and constitutes the legal, valid and binding obligation of Buyer enforceable
against Buyer in accordance with its terms, subject to bankruptcy, insolvency
and other similar laws relating to or affecting the enforceability of creditors'
rights generally, and to general principles of equity, and (ii) The execution,
delivery and performance of this Agreement by Buyer, and the consummation by
Seller of the transactions contemplated hereby, will not conflict with or
violate the organizational documents of Buyer, or conflict with, violate, result
in the breach of any term of, constitute a default under, or require the consent
of or any notice to or filing with any third party or governmental authority
under, any agreement or instrument to which Buyer is a party or any law, order,
rule, regulation, decree, writ or injunction of any governmental body having
jurisdiction over Buyer or its respective properties, except for such consents
or filings as have been obtained or made.
4.2 Investment Representations.
(a) Buyer acknowledges that (i) the Securities have not been
registered under the Securities Act, or any state securities laws, and cannot be
sold or otherwise disposed of except in a transaction registered under the
Securities Act and any applicable state securities laws, or that is exempt from
such registration, and (ii) so long as required by law, each certificate
representing the Securities will bear a legend to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND SUCH LAWS."
(b) Buyer either:
(i) certifies that it is an accredited investor as that term is
defined in Rule 501 promulgated under the Securities Act, or
(ii) certifies that it: (A) is not a U.S. person as that term is
defined in Rule 902 promulgated under the Securities Act;
(B) is not acquiring the Securities for the account or
benefit of any U.S. person; (C) agrees to resell the
Securities only in accordance with the provisions of
Regulation S promulgated under the Securities Act, pursuant
to registration under the Securities Act, or pursuant to an
available exemption from registration under the Securities
Act; and (D) agrees not to engage in hedging transactions
involving the Securities except in accordance with the
Securities Act and acknowledges that, so long as required by
law, the certificates representing the Securities will bear
a legend to the following effect:
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"HEDGING TRANSACTIONS INVOLVING THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT."
(c) The Securities are being acquired by Buyer for his own
account and not for any other person or entity, for investment only and with no
intention of distributing or reselling (and will not distribute or resell) such
Securities or any part thereof or interest therein in any transaction that would
violate the registration requirements of the Securities Act or other applicable
securities laws.
4.3 Distribution of Satcon Proceeds. Buyer acknowledges that Seller is
entitled to its ratable share of the net proceeds from the Satcon Sale, and if
the distribution of such proceeds to HyComp's shareholders is made after the
Closing, Buyers will hold in trust for and promptly pay over to Seller any of
such proceeds received by Buyer following the Closing on account of Buyer's
ownership interest in HyComp.
ARTICLE 5
COVENANTS OF SELLER AND MICROTEL
5.1 Filing of Tax Returns. Seller, and/or MicroTel shall prepare and
file all tax returns of HyComp with respect to all periods ending on or prior to
the Closing Date and shall pay all taxes with respect to such periods and with
respect to the pre-Closing Date portion of any taxable period of HyComp that
includes but does not end on the Closing Date.
ARTICLE 6
INDEMNIFICATION AND REMEDIES
6. Indemnification; Remedies.
6.1 By Seller and MicroTel.
(a) Seller and MicroTel, jointly and severally, hereby agree
promptly upon demand to indemnify and hold harmless Buyers and their affiliates
and their respective officers, director, employees and agents against all
claims, damages, losses, liabilities, costs and expenses (including, without
limitation, settlement costs and any legal, accounting or other expenses for
investigating or defending any actions or threatened actions) reasonably
incurred by such persons in connection with or arising out of each and all of
the following:
(i) Any breach by Seller or MicroTel of any
representation or warranty of Seller or MicroTel
in this Agreement;
(ii) Any breach of any covenant, agreement or
obligation of Seller or MicroTel contained in this
Agreement;
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(iii) The operation of the business of HyComp prior to
the Closing Date, including any warranty claim or
product liability claim relating to products
manufactured or sold by HyComp prior to the
Closing;
(iv) Unpaid debts, liabilities or obligations of HyComp
incurred prior to the Closing Date, including,
without limitation, liabilities or obligations
resulting or arising from either: (i) claims for
personal injury, property damage, employment
matters, intercompany accounts payable and notes
payable to lenders; or (ii) non-performance of any
contract, commitment or obligation imposed by law
or otherwise;
(v) Any claim by any person or other liabilities or
obligations relating to: (A) the Satcon Sale or
the authorization or consummation thereof; (B) the
breach of any representation, warranty, covenant,
agreement or obligation of Seller, MicroTel or
HyComp relating to the Satcon Sale or any
documents in connection therewith, including,
without limitation, any claims made in connection
with the Asset Purchase Agreement by and between
HyComp and HyComp Acquisition Corp. dated March
31, 1999; or (C) the distribution of the proceeds
of the Satcon Sale;
(vi) Any claims by any person or other liabilities or
obligations relating to any preferred stock of
HyComp issued and outstanding prior to the Closing
Date, the redemption or conversion thereof or
dividends accrued in respect thereof prior to the
Closing Date;
(vii) All taxes that may be imposed upon or assessed
against HyComp (including taxes imposed pursuant
to Treas. Reg.ss.1.1502-6) or the assets thereof
with respect to all taxable periods of HyComp or
portion thereof ending on or prior to the Closing
Date, and with respect to all taxable periods of
the Seller, MicroTel and their subsidiaries (other
than HyComp) ending prior to or including the
Closing Date, or arising by reason of any breach
by MicroTel or Seller of any representation or
warranty of Seller or MicroTel in this Agreement
and any losses, damages, liabilities, obligations,
deficiencies, costs and expenses incurred in
connection therewith; and
(viii) Any claim by any person for brokerage or finder's
fees or commissions or similar payments based upon
any agreement or understanding alleged to have
been made by any such person with Seller, MicroTel
or HyComp in connection with the transactions
contemplated hereby.
6.2 Indemnification by Buyers.
(a) Each Buyer, severally as to such Buyer only, hereby agrees
promptly upon demand to indemnify and hold harmless Seller and its affiliates
and their respective officers, directors, employees and agents against all
claims, damages, losses, liabilities, costs and expenses (including,
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without limitation, settlement costs and any legal, accounting or other expenses
for investigating or defending any actions or threatened actions) reasonably
incurred by such persons, in connection with each and all of the following:
(i) Any breach by Buyer of any representation or
warranty of Buyer in this Agreement;
(ii) Any breach of any covenant, agreement or
obligation of Buyer contained in this Agreement;
and
(iii) Any claim by any person for brokerage or finder's
fees or commissions or similar payments based upon
any agreement or understanding alleged to have
been made by any such person with Buyer in
connection with the transactions contemplated
hereby.
6.3 Claims for Indemnification. Whenever any claim shall arise for
indemnification hereunder the party seeking indemnification (the "Indemnified
Party"), shall promptly notify the party from whom indemnification is sought
(the "Indemnifying Party") of the claim and, when known, the facts constituting
the basis for such claim. In the event of any such claim for indemnification
hereunder resulting from or in connection with any claim or legal proceedings by
a third-party, the notice to the Indemnifying Party shall specify, if known, the
amount or an estimate of the amount of the liability arising therefrom. The
Indemnified Party shall not settle or compromise any claim by a third party for
which it is entitled to Indemnification hereunder without the prior written
consent of the Indemnifying Party, which shall not be unreasonably withheld. The
Indemnifying Party shall not settle or compromise any such claim unless such
settlement or compromise is without any cost to, and provides for a full and
unconditional release of, the Indemnified Party.
6.4 Defense of Indemnifying Party. In connection with any indemnity
hereunder resulting from or arising out of any claim or legal preceding by a
third-party, the Indemnifying Party at its sole cost and expense may, upon
written notice to the Indemnified Party, assume the defense of any such claim or
legal proceeding with counsel of its choice who shall be reasonably acceptable
to the Indemnified Party. In such case, the Indemnified Party shall be entitled
to participate in (but not control) the defense of any such claim or legal
proceeding, with its counsel and at its own expense. If the Indemnifying Party
does not assume the defense of any such claim or legal proceeding within thirty
(30) days after the date the Indemnified Party delivers notice of such claim to
the Indemnifying Party, (a) the Indemnified Party may, upon written notice to
the Indemnifying Party, defend against such claim or legal proceeding with
counsel of its choice who shall be reasonably acceptable to the Indemnifying
Party, at the cost and expense of the Indemnifying Party, payable to the
Indemnified Party on demand as incurred, and (b) the Indemnifying Party shall be
entitled to participate in (but not control) the defense of such claim or legal
proceeding with its counsel and at its own cost and expense.
ARTICLE 7
MISCELLANEOUS
7.1 Further Assurances. By its signature hereto, each party consents
and agrees to all of the transactions contemplated hereby. Each party hereto
shall execute, deliver, file and record any and all
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instruments, certificates, agreements and other documents, and take any and all
other actions, as reasonably requested by any other party hereto in order to
consummate the transactions contemplated hereby.
7.2 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or
made if (i) sent by registered or certified mail, return receipt requested,
postage prepaid, (ii) hand delivered, (iii) sent by prepaid overnight carrier,
with a record of receipt or (iv) sent by facsimile (with confirmation of
receipt), to the parties at the following address (or at such other addresses as
shall be specified by the parties by like notice):
(i) To Seller or MicroTel:
Microtel International, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
(ii) To Buyers:
Xxxxxxxx Capital Limited
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Attention: Xxxx X. Xxxxxxxx
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Each notice or other communication shall be deemed to have been given on the
date received.
7.3. Successors. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors, permitted
assigns, personal representatives, heirs, executors and estates.
7.4 Severability. Any provision in this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability at such time
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction at such time shall not invalidate or
render unenforceable such provision in any other jurisdiction or in the same
jurisdiction at any other time, so long as the economic or legal substance of
the transactions contemplated hereby is not affect in any manner materially
adverse to any party. To the extent permitted by applicable law, the parties
hereto waive any provision of law which renders any provision hereof prohibited
or unenforceable in any respect.
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7.5 Amendment; Waiver; Extension Waiver. This Agreement may be amended,
supplemented or otherwise modified only by the written agreement of the parties
hereto. Any waiver of any provision of this Agreement shall be in writing and
executed by the parties hereto, and any such waiver shall be effective only for
the specific purpose for which it is given and for the specific time period, if
any, contemplated therein. The parties hereto may extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
waive any inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto and waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument singed on behalf of all parties.
7.6 Counterparts. This Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an
original and all of which taken together shall constitute one agreement. This
Agreement may be delivered by facsimile transmission with the same effect as if
delivered in person.
7.7 Buyer Representative; Execution. The Buyer Representative is
empowered to act on behalf of any or all of the Buyers under this Agreement and,
unless a Buyer notifies Seller and MicroTel to the contrary, Seller and MicroTel
shall regard the Buyer Representative as the agent of such Buyer for all
purposes under this Agreement.
7.8 Waiver of Jury Trial. The parties hereto hereby unconditionally
waive trial by jury in any suit, action or proceeding relating to this
Agreement.
7.9 Specific Performance. Each party hereto recognizes and acknowledges
that a breach by such party of any covenants or agreements contained in this
Agreement will cause the other parties to sustain damages for which they would
not have an adequate remedy at law for money damages, and therefore each party
agrees that in the event of any such breach the non-breaching parties shall be
entitled to the remedy of specific performance of such covenant and agreement
and injunctive and other equitable relief in addition to any other remedy to
which such non-breaching parties may be entitled, at law or in equity, without
the posting of any bond and without proving that damages would be inadequate.
7.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be wholly performed within such State, without reference
to principles of conflicts of laws.
7.11 Jurisdiction; Venue. The parties hereto irrevocably and
unconditionally submit to the jurisdiction of any State or Federal court sitting
in the City of New York, Borough of Manhattan, over any suit, action or
proceeding arising out of or relating to this Agreement. Service of any process,
summons, notice or document by registered mail addressed to any party as
provided in Section 6.2 hereof shall be effective service of process for any
suit, action or proceeding brought against such party in any such court. The
parties hereto irrevocably and unconditionally waive any objection to the laying
of venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. A final judgment in any suit, action or
proceeding brought in any such court shall be conclusive and binding
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upon the parties and may be enforced in any other courts to whose jurisdiction a
party is or may be subject, by suit upon such judgment.
7.12 Entire Agreement; Interpretation. This Agreement contains the
entire agreement between the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect thereto. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. A
reference to a gender in this Agreement shall be interpreted to include the
masculine, feminine and/or neutral gender, as applicable.
7.13 Certain Costs and Expenses. Each party hereto shall pay its own
costs in connection with the preparation and execution of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
SELLER:
XIT CORPORATION
/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
MICROTEL INTERNATIONAL, INC.
/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
BUYERS:
/s/ Xxxxxxxx Xxxx
Xxxxxxxx Xxxx
/s/ Xxxxx Xxxx
Xxxxx Xxxx
/s/ Xxxxxx Xxxx
Xxxxxx Xxxx
/s/ Buckingham Securities
Buckingham Securities
/s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
-14-
/s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
/s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
/s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx
/s/ Xxx Xxxxx
------------------------------------
Xxx Xxxxx
/s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
/s/ Xxx Xxxxxxxxx
------------------------------------
Xxx Xxxxxxxxx
/s/ Xxx Xxxxxxxxx
------------------------------------
Xxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx
-15-
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
/s/ Xxx XxXxxx
------------------------------------
Xxx XxXxxx
/s/ Xxxxx X'Xxxx
------------------------------------
Xxxxx X'Xxxx
/s/ Xxxxxx Penichev
------------------------------------
Xxxxxx Penichev
/s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
/s/ Xxxxxx Xxxx
------------------------------------
Xxxxxx Xxxx
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
-16-
/s/ Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx
/s/ Xxxxxxxxxxx Xxxxx
------------------------------------
Xxxxxxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
-17-
SCHEDULE I
Number of
Shares Purchased
Name and Address of Buyer
Xxxxxxxx Xxxx 250,000
0000 Xxxxxxxxxxx Xxx, Xxxx 00
Xxxxxxxxxxx, XX X0X 0X0
Xxxxx Xxxx 500,000
Xxxxxx Xxxx 50,000
00 Xxxxx Xxx., Xxxx 0
Xxxxxxx, XX X0X 0X0
Buckingham Securities 40,000
000 Xxxx Xx. X., Xxxxx 0000
Xxxxxxx, XX X0X 0X0
Xxxxxxx Xxxx 50,000
x/x Xxxxx Xxxxx
000 Xxxxx Xx.
Xxxxxxx, XX X0X 0X0
Xxxxxx Xxxxxxx 75,000
100-21650 Xxxxxx Xx.
Xxxxxxxx Xxxxx, XX 00000
Xxxx Xxxxxx 250,000
000 Xxxx Xx., Xxxxx 000
Xxxxxxx, XX X0X 0X0
Xxxxx Xxxxx 500,000
c/x Xxxxxxxxx Securities
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Xxxxx 250,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxx Xxxxxxx 100,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
-18-
Number of
Shares Purchased
Name and Address of Buyer
Xxx Xxxxx 250,000
000 Xxxx Xx., Xxxxx 000
Xxxxxxx, XX X0X 0X0
Xxxx Xxxxxx 500,000
0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xx 00000
Xxxxx Xxxxxxxxx 500,000
000 Xxxxxxx Xx.
Xxxxxxx, XX 00000
Xxxx Xxxxxxxx 500,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxx Xxxxxxxxx 500,000
000 Xxxxxxx Xxx.
Xxxxx Xxxx, XX X0X 0X0
Xxx Xxxxxxxxx 500,000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Xxxxxxx Xxxxx 50,000
c/o Nesbitt Xxxxx
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Xxxxx Xxxxxxx 14,798
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxx XxXxxx 50,000
c/o Nesbitt Xxxxx
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Xxxxx X'Xxxx 500,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
-19-
Number of
Shares Purchased
Name and Address of Buyer
Xxxxxx Penichev 85,000
00 Xxxxxx Xx.
Xxxxxxx, XX X0X 0X0
Xxxx Xxxx 500,000
c/x Xxxxxxxxx Securities
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxx 50,000
x/x 000 Xxxxxxx Xx.
Xxxxx 0000
Xxxxxxxxx, XX X0X 0X0
Xxxxx Xxxxxxx 25,000
0000 Xxxxx Xxxx Xx.
Xxxxxxxxx, XX X0X 0X0
Xxxxxx Xxxxxxxx 200,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxxx Xxxxxxxx 100,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx Xxxxxxxx 500,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxx Xxxxxxxx 50,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxx Xxxxxxxx 500,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxx Xxxxx 250,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
-20-
Number of
Shares Purchased
Name and Address of Buyer
Xxxxxxxxxxx Xxxxx 50,000
c/x Xxxxxx XxXxxxxx
000 Xxxxx Xx., Xxxxx 0000
Xxxxxxx, XX X0X 0X0
Xxxxxx Xxxxxx 100,000
0000 Xxxxxx Xx., Xxxx 0000
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 500,000
c/o Xxxxxxx Xxxxx Associates
00 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX MAJ M
Xxxxx Xxxxxxx 50,000
c/o 000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx Xxxxxx 500,000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxxxx Capital Limited 151,700
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX X0X 324
Total 9,041,498
-21-
SCHEDULE II
DISCLOSURE SCHEDULE
Upon the Closing (as therein defined) of the Stock Purchase Agreement by and
between XXXXXXXX CAPITAL LIMITED and HYCOMP, INC. relating to all of the
outstanding capital stock of XXXXXXXX.XXX, INC. dated as of October 14, 1999,
HyComp, Inc. has agreed to issue Xxxxxxxx Xxx 500,000 shares of HyComp, Inc.
common stock, par value $0.01 per share.
-22-
Exhibit A
-23
