Exhibit 10.2
SHAREHOLDER AGREEMENT
AGREEMENT, dated as of March __, 2000, by and among XXX.XXX, Inc., a
Delaware corporation ("Parent"), Internet Communications Corporation, a Colorado
corporation (the "Company"), and Interwest Group, Inc., a Colorado corporation
("Interwest").
RECITALS
A. Simultaneously with the execution of this Agreement, Parent, Internet
Acquisition Corporation, a Colorado corporation and wholly-owned subsidiary of
Parent ("Sub"), and the Company have entered into an Agreement and Plan of
Merger (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which Sub will be merged with and into the
Company (the "Merger"); and
B. As an inducement and a condition to entering into the Merger
Agreement, Parent has required that Interwest agree, and Interwest has agreed,
to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Certain Definitions. In addition to the terms defined elsewhere
herein, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to
any securities means having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Without duplicative counting of the same
securities by the same holder, securities Beneficially Owned by a person
includes securities Beneficially Owned by all other persons with whom such
person would constitute a "group" within the meaning of Section 13(d) of the
Exchange Act with respect to the securities of the same issuer.
(b) "Existing Shares" means shares of Company Common Stock and
Company Preferred Stock Beneficially Owned by Interwest as of the date hereof.
(c) "Securities" means the Existing Shares together with any
shares of Company Common Stock or other securities of the Company acquired by
Interwest in any capacity after the date hereof and prior to the termination of
this Agreement whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution, split-up,
recapitalization, combination, exchange of shares or the like, gift, bequest,
inheritance or as a successor in interest in any capacity or otherwise.
2. Disclosure. Interwest hereby agrees to permit the Company and
Parent to publish and disclose in the Registration Statement and the Proxy
Statement (including all documents and schedules filed with the SEC), and any
press release or other disclosure document which Parent, in its sole discretion,
determines to be necessary or desirable in connection with the Merger and any
transactions related thereto, Interwest's identity and ownership of Company
Common Stock and Company Preferred Stock and the nature of Interwest's
commitments, arrangements and understandings under this Agreement. Parent will
provide Interwest with a copy of any proposed disclosure and will provide
Interwest with a reasonable opportunity to comment thereon.
3. Voting of Securities Prior to Effective Time. Interwest hereby
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of (a) the Effective Time or (b) the date that the
Merger Agreement is terminated, at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of the holders of Company
Common Stock or Company Preferred Stock, however called, or in connection with
any written consent of the holders of Company Common Stock or Company Preferred
Stock, Interwest will appear at the meeting or otherwise cause the Securities to
be counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Securities (x) in favor of the
adoption of the Merger Agreement and the approval of other actions contemplated
by the Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof; (y) against any action or agreement that would
result in a breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger Agreement or
this Agreement; and (z) except as otherwise agreed to in writing in advance by
Parent in its sole discretion, against the following actions: (i) any Takeover
Proposal or Superior Transaction, (ii) any change in a majority of the persons
who constitute the Board of Directors of the Company; (iii) any material change
in the present capitalization of the Company, including without limitation any
proposal to sell a substantial equity interest in the Company or its
Subsidiaries; (iv) any amendment of the Company's Certificate of Incorporation
or By-laws; (v) any other change in the Company's corporate structure or
business; or (vi) any other action that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone or materially adversely
affect the Merger and the transactions contemplated by this Agreement and the
Merger Agreement. Interwest may not enter into any agreement or understanding
with any person the effect of which would be inconsistent with or violative of
any provision contained in this Section 3.
4. Subsequent Actions by Interwest.
(a) Following the Effective Time, for so long as Interwest holds
or Beneficially Owns any Parent Common Stock, at any meeting (whether annual or
special or whether or not an adjourned or postponed meeting of the holders of
Parent Common Stock) or in connection with any written consent of the holders of
Parent Common Stock, Interwest will vote or consent (or cause to be voted or
consented) all shares of Parent Common Stock howsoever
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acquired then held or Beneficially Owned by Interwest (or any affiliates of
Interwest) as directed by a majority of the Board of Directors of Parent.
(b) If the Merger Agreement is terminated or the Merger is not
consummated for any reason other than termination of the Merger Agreement by
Parent, termination of the Merger Agreement by the Company pursuant to Section
7.1(a)(iii) or a material breach by Parent, and a Takeover Proposal or a
Superior Transaction with any other party is consummated during the 12 months
following the Termination Date, with respect to Securities for which Interwest
receives consideration pursuant to the Takeover Proposal or Superior
Transaction, Interwest will, subject to Section 4(d) below, immediately upon the
receipt thereof pay to Parent an amount in cash (if positive) (the "Differential
Amount") equal to (i) the excess of the net pre-tax proceeds received by
Interwest with respect to the Securities over the net pre-tax proceeds Interwest
would have received with respect to such Securities if the Merger had been
consummated, including any shares of Company Common Stock into or for which any
Securities are convertible, exchangeable or exercisable, of Interwest (such
Securities, the "Subject Shares") in such transaction, or in any sale of any
Subject Shares to a third party that was initiated by Interwest, directly or
indirectly, within 12 months after the Termination Date plus (ii) the product of
(A) $1.00 (the "Share Value"), subject to adjustment as set forth in Section
4(e) below, times (B) the number of Subject Shares.
(c) If the Merger Agreement is terminated or the Merger is not
consummated as a result of a material breach by Parent, and a Takeover Proposal
or a Superior Transaction with any other party is consummated during the six
months following the Termination Date, with respect to Securities for which
Interwest receives consideration pursuant to the Takeover Proposal or Superior
Transaction, Interwest will, subject to Section 4(d) below, immediately upon the
receipt thereof pay to Parent an amount in cash (if positive) equal to the
Differential Amount, calculated as described in Section 4(b) above with respect
to the Subject Shares in such transaction, or in any sale of any Subject Shares
to a third party that was initiated by Interwest, directly or indirectly, within
six months after the Termination Date.
(d) If a Differential Amount is payable pursuant to Section 4(b)
or 4(c) hereof and Interwest receives any non-cash consideration in the Takeover
Proposal or Superior Transaction as part of the net proceeds ("Other
Consideration") that consists of securities listed on a national securities
exchange or the Nasdaq National Market ("Marketable Securities"), Interwest
shall deliver immediately to Parent an amount of Marketable Securities whose
aggregate value, calculated on the basis of the closing price for such
Marketable Securities on the exchange where such Marketable Securities are
listed, equals the Differential Amount. To the extent the Other Consideration
consists of non-Marketable Securities or other assets, such Other Consideration
will be held by Interwest until Interwest shall have sold or otherwise disposed
of such Other Consideration for cash or Marketable Securities, or has otherwise
actually realized value, directly or indirectly, from such sale or disposition,
at which time the Differential Amount, to the extent not previously paid, will
be immediately paid to Parent in cash or such Marketable Securities.
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(e) The Share Value used in Section 4(b) or 4(c) above shall be
adjusted as appropriate and equitable to reflect any reorganization,
recapitalization, stock dividend or split, or combination or other change in the
Company's capital structure after the date hereof.
5. Covenants. Representations and Warranties of Interwest. Interwest
hereby represents and warrants to, and agrees with, Parent as follows:
(a) Ownership of Shares. Interwest is the sole record and
beneficial owner of Existing Shares consisting of 3,014,312 shares of Company
Common Stock and all of the issued and outstanding shares of Company Preferred
Stock, consisting of 50,000 shares of preferred stock designated as Series A
Preferred and 19,000 shares of preferred stock designated as Series B Preferred.
On the date hereof, the Existing Shares constitute all of the Shares owned of
record or beneficially owned by Interwest. Interwest has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Sections 3 and 4 hereof, sole power of disposition, sole power of conversion,
sole power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Existing Shares with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws, and the terms of this Agreement.
(b) Organization. Interwest is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado,
has all requisite corporate power or other power and authority to execute and
deliver this Agreement and perform its obligations hereunder. The execution and
delivery by Interwest of this Agreement and the performance by it of its
obligations hereunder have been duly and validly authorized by the Board of
Directors of Interwest and no other corporate proceedings on the part of
Interwest are necessary to authorize the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby by
Interwest.
(c) Corporate Authorization. This Agreement has been duly and
validly executed and delivered by Interwest and constitutes a valid and binding
agreement enforceable against Interwest in accordance with its terms except (i)
as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors rights and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(d) No Conflicts. Except for filings, authorizations, consents
and approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal Governmental Entity is necessary for the
execution of this Agreement by Interwest and the consummation by Interwest of
the transactions contemplated hereby and (ii) none of the execution and delivery
of this Agreement by Interwest, the consummation by Interwest of the transaction
contemplated hereby or compliance by Interwest with any of the provisions hereof
will (x) conflict with or result in any breach of the organizational documents
of Interwest, (y)
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result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Interwest is a party or
by which Interwest or any of their properties or assets may be bound, or (z)
violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to Interwest or any of its properties or assets.
(e) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Sections 3 and 4 hereof, the Existing Shares at all
times during the term hereof will be beneficially owned by Interwest, free and
clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder.
(f) Finder's Fees. Other than as contemplated by the Merger
Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Interwest.
(g) No Solicitation. During the term of this Agreement,
Interwest shall not, and shall not authorize or permit any of its directors,
officers, employees, agents or representatives, directly or indirectly, to
solicit or initiate, or furnish or disclose non-public information in
furtherance of, any inquiries or the making of any proposal with respect to any
Takeover Proposal, or negotiate or otherwise engage in discussions with any
person (other than Parent, Sub or their respective directors, officers,
employees, agents or representatives) with respect to any Takeover Proposal or
enter into any agreement, arrangement or understanding requiring it to abandon,
terminate or fail to consummate the Merger or any other transactions
contemplated by the Merger Agreement, and will immediately cease all existing
activities, discussions and negotiations with any parties conducted heretofore
with respect to any proposal for a Takeover Proposal.
(h) Restriction on Transfer, Proxies and Non-Interference Prior
to Effective Date. Interwest will not, directly or indirectly, prior to the
Effective Date or the Termination Date, (i) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Securities or any interest
therein except as provided in Section 4(b); (ii) grant any proxies or powers of
attorney, deposit the Securities into a voting trust or enter into a voting
agreement with respect to the Securities; or (iii) take any action that would
make any representation or warranty of Interwest contained herein untrue or
incorrect or would result in a breach by Interwest of its obligations under this
Agreement.
(i) Restriction on Transfer Following the Effective Date.
Interwest will not, directly or indirectly, for the one year period commencing
on the Effective Date, offer
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for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of the
Parent Common Stock received by it in the Merger or any interest therein, except
that Interwest shall have the right during such one-year period, without
Parent's prior written consent, to sell up to and including:
(i) 200,000 shares of Parent Common Stock (or such greater
number of shares as provided in clause (iii) below) if (x) the average
of the daily closing prices per share of Parent Common Stock on the
Nasdaq National Market for each of any 15 consecutive trading days
prior to any such sale is greater than or equal to 150% of the RMI
Share Price (as defined below) and (y) the sale price for such sale is
greater than or equal to 150% of the RMI Share Price;
(ii) an additional 100,000 shares of Parent Common Stock (or
such greater number of shares as provided in clause (iii) below) if
(x) the average of the daily closing prices per share of Parent Common
Stock on the Nasdaq National Market for each of any 15 consecutive
trading days prior to any such sale is greater than or equal to 200%
of the RMI Share Price and (y) the sale price for such sale is greater
than or equal to 200% of the RMI Share Price;
(iii) in the event that the aggregate amount of the Controlling
Shareholder Loan at the Effective Time exceeds the Maximum Amount, the
number of shares permitted to be sold pursuant to clauses (i) and (ii)
above shall be increased by an amount equal to such share number
(200,000 and 100,000, respectively) multiplied by the actual amount of
the Controlling Shareholder Loan at the Effective time and divided by
the Maximum Amount; and
(iv) notwithstanding anything to the contrary herein, during
the one-year period commencing on the Effective Date, Interwest shall
not at any time sell shares of Parent Common Stock in amounts in
excess of five percent of the average daily trading volume of Parent
Common Stock on the Nasdaq National Market for the five consecutive
trading days prior to the date of any such sale.
The "RMI Share Price" means the average of the daily closing price per share of
Parent Common Stock on the Nasdaq National Market for the 15 consecutive trading
days ending on the trading day that is one day prior to the date hereof.
(j) Reliance by Parent. Interwest understands and acknowledges
that Parent is entering into the Merger Agreement in reliance upon Interwest's
execution and delivery of this Agreement.
(k) Furtherance of Parent's Observer Rights. Interwest will
cooperate fully, and take all actions reasonably requested by Parent, to ensure
that the provisions of Section 4.10 of the Merger Agreement are fully complied
with.
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(l) Further Assurances. From time to time, at Parent's request
and without further consideration, Interwest will execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
6. Representations and Warranties of Parent. Parent hereby
represents and warrants to Interwest and the Company as follows:
(a) Organization. Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
has all requisite corporate power or other power and authority to execute and
deliver this Agreement and perform its obligations hereunder. The execution and
delivery by Parent of this Agreement and the performance by Parent of its
obligations hereunder have been duly and validly authorized by the Board of
Directors of Parent and no other corporate proceedings on the part of Parent are
necessary to authorize the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby by Parent.
(b) Corporate Authorization. This Agreement has been duly and
validly executed and delivered by Parent and constitutes a valid and binding
agreement of Parent enforceable against Parent in accordance with its terms,
except (i) as may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors rights and (ii) that the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(c) No Conflicts. Except for filings, authorizations, consents
and approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal Governmental Entity is necessary for the
execution of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Parent, the consummation by Parent of the transactions
contemplated hereby or compliance by Parent with any of the provisions hereof
will (x) conflict with or result in any breach of the certificate of
incorporation or by-laws of Parent, (y) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Parent is a party or by which Parent or any of
its properties or assets may be bound, or (z) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to Parent
or any of their respective properties or assets.
(d) No Finder's Fee. No broker, investment banker, financial
adviser or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or
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commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Parent.
(e) Registration Rights. Upon the Closing contemplated by the
Merger Agreement, Parent will enter into a Registration Rights Agreement with
Interwest in the form of Exhibit A hereto.
7. Stop Transfer; Legend.
(a) Interwest agrees with and covenants to Parent that Interwest
will not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Securities, unless such transfer is made in compliance with this Agreement.
(b) In the event of a stock dividend or distribution, or any
change in the Company Common Stock or Company Preferred Stock by reason of any
stock dividend, split-up, recapitalization, combination, exchange of shares or
the like other than pursuant to the Merger, the terms "Shares" and "Securities"
will be deemed to refer to and include the shares of Company Common Stock or
Company Preferred Stock as well as all such stock dividends and distributions
and any shares into which or for which any or all of the Securities may be
changed or exchanged and appropriate adjustments shall be made to the terms and
provisions of this Agreement.
(c) Interwest will promptly after the date hereof surrender to
the Company all certificates representing the Securities, and the Company will
place the following legend on such certificates in addition to any other legend
required thereon:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO AND OTHER PROVISIONS OF
A SHAREHOLDER AGREEMENT, DATED AS OF MARCH __, 2000, BY
XXX.XXX, INC., INTERNET COMMUNICATIONS CORPORATION AND
INTERWEST GROUP, INC.
8. Termination. This Agreement will terminate upon the earlier of
(i) the consummation of the Merger or (ii) the termination of the Merger
Agreement in accordance with its terms, except that the covenants and agreements
set forth in Sections 4(b) through 4(e) hereof will survive any termination of
this Agreement for the terms specified therein and the terms of Sections 4(a)
and 5(i) will survive the consummation of the Merger.
9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other
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prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
(b) Binding Agreement. Interwest agrees that this Agreement and
the obligations hereunder will attach to the Securities and will be binding upon
any person or entity to which legal or beneficial ownership of such Securities
shall pass, whether by operation of law or otherwise, including without
limitation, Interwest's successors or other transferees (for value or otherwise)
and any other successors in interest. Notwithstanding the foregoing, this
Agreement will not apply to any transferee of Interwest that is not an affiliate
controlled by Interwest provided that such transferee becomes such in a
transaction not in breach of this Agreement.
(c) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder will be assigned or delegated (whether by
operation of law or otherwise) without the prior written consent of the other
parties, provided that Parent may assign, in its sole discretion, its rights,
interests and obligations hereunder to any direct or indirect wholly owned
Subsidiary of Parent, but no such assignment will relieve Parent from any of its
obligations hereunder if such assignee does not perform such obligations.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns.
(d) Amendment and Modification. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. All notices and other communications hereunder will
be in writing and will be deemed given if delivered personally, telecopied
(which is confirmed) or sent by an overnight courier service, such as FedEx, to
the parties at the following addresses (or at such other address for a party as
will be specified by like notice):
If to Interwest:
Interwest Group, Inc.
2400 Anaconda Tower
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxx & Xxxxxxx, L.L.P.
One Xxxxx Center
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Company:
Internet Communications Corporation
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx, L.L.P.
One Xxxxx Center
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Parent:
XXX.XXX, Inc.
000 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Vice President & General
Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx, Johnson, Robinson, Xxxx & Ragonetti, P.C.
000 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
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Xxxxxxxxxx, Hyatt & Xxxxxx, P.C.
000 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(f) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement will remain in full force and effect and will in no way be
affected, impaired or invalidated.
(g) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties will be
entitled to the remedy of specific performance of the terms hereof, in addition
to any other remedy at law or equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, will not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(i) No Third Party Beneficiaries. This Agreement is not intended
to confer upon any person other than the parties hereto any rights or remedies
hereunder.
(j) Governing Law. This Agreement will be governed and construed
in accordance with the laws of the State of Colorado, without giving effect to
the principles of conflict of laws thereof.
(k) Description Headings. The description headings used herein
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in
counterparts, each of which will be considered one and the same agreement and
will become effective when such counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
IN WITNESS WHEREOF, Parent, the Company and Interwest have caused this
Agreement to be duly executed as of the day and year first above written.
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XXX.XXX, INC., a Delaware Corporation
By: /s/ Xxxxxxx Xxxxxx
__________________________________________
Name:
Title:
INTERNET COMMUNICATIONS CORPORATION, a Colorado
Corporation
By: /s/ Xxx Xxxxxx
__________________________________________
Name: Xxx Xxxxxx
Title: President
INTERWEST GROUP, INC., a Colorado
Corporation
By: /s/ Xxxxxxxx Xxxxxx
__________________________________________
Name:
Title:
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