EXHIBIT 2.4
LICENSE AND
EXCHANGE AGREEMENT
by and among
EUROTECH, LTD.
HOMECOM COMMUNICATIONS, INC.
and, solely with respect to ARTICLE V and ARTICLE XI hereof
POLYMATE, LTD.
and
GREENFIELD CAPITAL PARTNERS LLC
March 27, 2003
LICENSE AND EXCHANGE AGREEMENT
This LICENSE AND EXCHANGE AGREEMENT, dated as of March 27, 2003 (this
"Agreement"), is made by and between EUROTECH LTD., a District of Columbia
corporation (the "Company"), HOMECOM COMMUNICATIONS, INC., a Delaware
corporation ("HomeCom"), and solely with respect to ARTICLE V and ARTICLE XI
hereof, POLYMATE, LTD., an Israeli corporation ("Polymate"), and GREENFIELD
CAPITAL PARTNERS LLC, a Delaware limited liability company ("Greenfield").
R E C I T A L S
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WHEREAS, the Company desires to acquire from HomeCom, and HomeCom agrees to
issue (i) 11,250 shares of Series F Convertible Preferred Stock of HomeCom, $.01
par value per share (the "HomeCom Series F Stock"),which will represent, upon
conversion, 75% of the issued and outstanding shares of HomeCom common stock,
par value $.001 per share (the "Common Stock") (other than the shares of Common
Stock issuable upon conversion of HomeCom's outstanding Series B-E Convertible
Preferred Stock and warrants or options, and the Series G Convertible Preferred
Stock of HomeCom convertible into Common Stock) (such shares the "Exchange
Shares"), such shares of HomeCom Series F Stock having the rights, powers and
designations set forth in the Certificate of Designations of such HomeCom Series
F Stock, a copy of which is annexed hereto as Exhibit B (the "Certificate of
Designations") and (ii) 1,069 shares of Series G Preferred Stock, $ .01 par
value per share, of HomeCom with a face value of $1,069,000 (the "Additional
Preferred Shares"); and
WHEREAS, the Company desires to license to HomeCom all right, title and
interest held by the Company in the intellectual property and other associated
assets described in Exhibit A attached hereto (collectively the "Licensed
Property") as consideration for the Exchange Shares, and upon the terms and
subject to the conditions set forth in this Agreement and the form of License
Agreement to be mutually agreed upon by Eurotech and HomeCom and deliverd at the
Closing (the "License Agreement"); and
WHEREAS, HomeCom agrees to issue to Polymate, in consideration of the
relinquishment of certain rights associated with the Licensed Property, 1,500
shares of HomeCom Series F Stock, representing, upon conversion, 10% of the
issued and outstanding shares of Common Stock (other than the shares of Common
Stock issuable upon conversion of HomeCom's outstanding Series B-E Convertible
Preferred Stock and warrants or options of HomeCom convertible into Common
Stock) (such shares the "Polymate Shares"), upon the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, HomeCom agrees to issue for its services as a finder in connection
herewith to Greenfield 750 shares of HomeCom Series F Stock, representing, upon
conversion, 5% of the issued and outstanding shares of Common Stock (other than
the shares of Common Stock issuable upon conversion of HomeCom's outstanding
Series B-E Convertible Preferred Stock and warrants or options of HomeCom
convertible into Common Stock) (such shares the "Greenfield Shares"), upon the
terms and subject to the conditions set forth in this Agreement; and
WHEREAS, simultaneously with the execution of this Agreement, the holders
of shares of Series B-E Convertible Preferred Stock are executing certain
consent and forbearance agreements relating to such shares (the "B-E Consents");
WHEREAS, the respective Boards of Directors of all of the parties hereto
have approved the form, terms and conditions of this Agreement upon the terms
and subject to the conditions set forth in this Agreement; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the parties hereto, the parties agree as
follows:
ARTICLE I.
Closing; The Exchange; The Exchange Procedures
1.1 Closing. The closing of the Exchange and the other transactions
contemplated hereby (the "Closing") shall be made at such time and place as the
parties may mutually agree, on or before April 15, 2003 (the "Closing Date").
1.2 Company/HomeCom Proceedings. At the Closing, HomeCom shall issue to the
Company 11,250 shares of HomeCom Series F Stock, representing the Exchange
Shares and the Additional Preferred Shares (each denominated by separate
certificates), and simultaneously therewith, and conditioned thereon, the
Company shall execute and deliver the License Agreement to HomeCom as a part of
and in connection with the issuance of the Exchange Shares. The Company will
enter into the License Agreement only upon the obtaining by the Company of any
applicable third party consents or similar documentation and the satisfaction of
the other conditions contained herein. The issuance of the Exchange Shares and
execution and delivery of the Licensed Property, in each case as contemplated
herein, are referred to herein as the "Exchange".
1.3 At the Closing, HomeCom shall issue to Polymate 1,500 shares of HomeCom
Series F Stock, representing the Polymate Shares.
1.4 Greenfield/HomeCom Proceedings. Greenfield is receiving the Greenfield
Shares in consideration of services provided to HomeCom as a finder in
connection with the transactions contemplated by the Exchange. At the Closing,
HomeCom shall issue to Greenfield 750 shares of HomeCom Series F Stock,
representing the Greenfield Shares.
ARTICLE II.
[intentionally omitted]
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ARTICLE III.
Representations and Warranties of the Company
The Company hereby represent and warrants to HomeCom that:
3.1 Organization, Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the District
of Columbia, and has all requisite corporate or similar power and authority to
own and operate its properties and assets and to carry on its business as
presently conducted and is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the ownership or operation of its
properties or conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing is not, when taken together
with all other such failures, reasonably likely to have a Material Adverse
Effect (as defined below) on it.
As used in this Agreement, the term "Material Adverse Effect" means, with
respect to any Person, a material adverse effect on the financial condition,
assets or liabilities or business of such Person; provided, however, that
Material Adverse Effect shall exclude any effect resulting from or related to
changes or developments involving (1) a prospective change arising out of any
proposed or adopted legislation, or any other proposal or enactment by any
governmental, regulatory or administrative authority, (2) general conditions
applicable to the economy of the United States, including changes in interest
rates and (3) conditions or effects resulting from the announcement of the
existence or terms of this Agreement.
3.2 Corporate Authority and Approval. The Company has all requisite
corporate power and authority and has taken all corporate action necessary in
order to execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly executed and delivered by the Company and is a valid and
binding agreement enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles (the "Bankruptcy and Equity Exception"). The
Board of Directors of the Company has unanimously approved this Agreement and
the other transactions contemplated by this Agreement.
3.3 Government Filings; No Violations.
(a) Except for filings required pursuant to the Securities Exchange
Act of 1934, as amended, or the rules and regulations promulgated thereunder
(collectively, the "Exchange Act") or any other federal or state securities laws
or any stock exchange or other self regulatory organization, no notices, reports
or other filings are required to be made by the Company with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by the Company from, any governmental or regulatory authority, court,
agency, commission, body or other governmental entity ("Governmental Entity"),
in connection with the execution and delivery of this Agreement by the Company
and the consummation of the transactions contemplated by this Agreement, except
those that the failure to make or obtain are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect on the Company or
the Licensed Property, nor prevent, materially delay or materially impair the
ability of the Company to consummate the transactions contemplated by this
Agreement.
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(b) The execution, delivery and performance of this Agreement by the
Company does not, and the consummation of the other transactions contemplated by
this Agreement will not, constitute or result in (A) a breach or violation of,
or a default under, the certificate of incorporation or bylaws of the Company,
(B) a breach or violation of, or a default under, the acceleration of any
obligations or the creation of a lien, pledge, security interest or other
encumbrance on the assets of each of the Company (with or without notice, lapse
of time or both) pursuant to, any agreement, lease, contract, note, mortgage,
indenture, arrangement or other obligation ("Contracts") binding upon it or any
law, statute, ordinance, regulation, judgment, order, decree, injunction,
arbitration award, license, authorization, opinion, agency requirement or permit
of any Governmental Entity or common law (each, a "Law" and collectively,
"Laws") to which it is subject or (C) any change in the rights or obligations of
any party under any Contracts to which the Company is a party, except, in the
case of clauses (B) or (C) above, for any breach, violation, default,
acceleration, creation or change that, individually or in the aggregate, is not
reasonably 1ikely to have a Material Adverse Effect on the Company or prevent,
materially delay or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement. Schedule 3.3(b) ("Prior
Contracts") sets forth a correct and complete list of Contracts of the Company
pursuant to which consents or waivers are or may be required prior to
consummation of the transactions contemplated by this Agreement other than those
where the failure to obtain such consents or waivers is not, individually or in
the aggregate, reasonably likely to have a Material Adverse Effect on the
Company or prevent or materially impair their ability to consummate the
transactions contemplated by this Agreement.
3.4 Reports; Financial Statements. The Company is a reporting company under
the Exchange Act and the shares of the Company's common stock are registered
under Section 12(g) of the Exchange Act. The Company has made available to
HomeCom, through electronic filings on XXXXX, each registration statement,
report, proxy statement or information statement prepared by it since December
31, 2000, including its Annual Report on Form 10-KSB for the year ended December
31, 2001 and its Quarterly Reports on Form 10-QSB for the quarters ended since
December 31, 2000, in the form (including exhibits, annexes and any amendments
thereto) filed with the Securities and Exchange Commission (the "SEC")
(collectively, including any such registration statements, reports, proxy
statements or information statements filed subsequent to the Agreement Date, its
"Reports"). Since June 30, 2000, the Company has made all filings required to be
made by the Securities Act of 1933, or any successor law, and the rules and
regulations issued pursuant thereto (the "Securities Act"), and the Exchange
Act. The financial statements and any supporting schedules of the Company
included or incorporated by reference in the Company's Reports present fairly
the consolidated financial position of the Company as of the dates indicated and
the consolidated results of their operations for the periods specified (subject,
in the case of unaudited statements, to notes and normal year-end audit
adjustments that will not be material in amount or effect), in each case in
accordance with generally accepted accounting principles of the United States
consistently applied ("GAAP") during the periods involved, except as may be
noted therein.
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3.5 Litigation and Liabilities. Except as disclosed in the Company's
Reports filed prior to the Closing Date or on Schedule 3.5, there are no (i)
civil, criminal or administrative suits, claims or hearings pending or, to the
actual knowledge of its executive officers, threatened against the Company or
any of its Affiliates with respect to the Licensed Property or (ii) obligations
or liabilities, whether or not accrued, contingent or otherwise and whether or
not required to be disclosed with respect to the Licensed Property, or any other
facts or circumstances, in either such case, of which its executive officers
have actual knowledge and that are reasonably likely to result in any claims
against or obligations or liabilities of the Company or any of its Affiliates,
except for those that are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect on the Company, or prevent, materially
delay or materially impair its ability to consummate the transactions
contemplated by this Agreement.
For purposes of this Agreement, the term "Affiliate" means, with respect to
any person or entity, any person or entity that, directly or indirectly,
controls, is controlled by, or is under common control with, such Person. For
purposes of this definition, "control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
3.6 Compliance with Laws. Except as disclosed in the Company's Reports
filed prior to the Closing Date or on Schedule 3.6, the businesses of the
Company with respect to the Licensed Property have not been, and are not being,
conducted in violation of Law, except for violations or possible violations that
are not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect on the Licensed Property or prevent, materially delay or
materially impair its ability to consummate the transactions contemplated by
this Agreement. To the actual knowledge of its executive officers, no material
change is required in the Company's processes, properties or procedures in
connection with any such Laws, and it has not received any notice or
communication of any material noncompliance with any such Laws that has not been
cured as of the Closing Date, except for such changes and noncompliance that are
not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect on them or prevent, materially delay or materially impair their
ability to consummate the transactions contemplated by this Agreement.
3.7 Brokers and Finders. Except for Greenfield, neither the Company nor any
of its officers, directors or employees has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders' fees in
connection with the Exchange or the other transactions contemplated in this
Agreement.
ARTICLE IV.
Representations and Warranties of HomeCom
HomeCom hereby represent and warrant to the Company that:
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4.1 Organization, Good Standing and Qualification. HomeCom is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and has all requisite corporate or similar power and authority and is qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction where the ownership or operation of its properties or conduct of
its business requires such qualification, except where the failure to be so
qualified or in good standing is not, when taken together with all other such
failures, reasonably likely to have a Material Adverse Effect on it. HomeCom has
made available to the Company a complete and correct copy of its certificate of
incorporation and bylaws, each as amended to date. Such certificates of
incorporation and bylaws are in full force and effect.
4.2 Capital Structure. The authorized capital stock of HomeCom consists of
(i) 15,000,000 shares of Common Stock, of which 14,999,156 shares shall be
issued and outstanding as of the Closing Date, and (ii) 125 shares of HomeCom
Series B Preferred Stock, of which 17.8 shares shall be issued and outstanding
as of the Closing Date; (iii) 175 shares of HomeCom Series C Preferred Stock, of
which 90.5 shares shall be issued and outstanding as of the Closing Date; (iv)
75 shares of HomeCom Series D Preferred Stock, of 1.3 shares shall be issued and
outstanding as of the Closing Date; (v) 106.4 shares of HomeCom Series E
Preferred Stock, of which 106.4 shares shall be issued and outstanding as of the
Closing Date (collectively, the "Series B-E Preferred Stock"). All of the
outstanding shares of Common Stock, and Series B-E Preferred Stock, and the
HomeCom Series F Stock, including the Exchange Shares, the Additional Preferred
Shares, and the Polymate Shares and Greenfield Shares when issued at the Closing
pursuant to this Agreement, have been or will (at the Closing) be duly
authorized, validly issued, fully paid and nonassessable. Except as disclosed in
this Section 4.2 or on Schedule 4.2, as of the Closing Date, there are no
additional issued and outstanding shares of Common Stock, Series B-E Preferred
Stock or HomeCom Series F Stock, and there are no rights, options, warrants or
similar instruments outstanding pursuant to which any shares of capital stock of
any class or series of HomeCom are issueable to any person or entity, except for
1,069 shares of Series G Convertible Preferred Stock.
4.3 Corporate Authority and Approval. HomeCom has all requisite corporate
power and authority and has taken all corporate action necessary in order to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly executed and delivered by HomeCom and is a valid and
binding agreement of HomeCom, enforceable against HomeCom in accordance with its
terms, subject to the Bankruptcy and Equity Exception. The Board of Directors of
HomeCom has duly approved this Agreement.
4.4 Government Filings; No Violations.
(a) Except for filings required pursuant to the Exchange Act, no
notices, reports or other filings are required to be made by HomeCom with, nor
are any consents, registrations, approvals, permits or authorizations required
to be obtained by HomeCom from, any Governmental Entity, in connection with the
execution and delivery of this Agreement by it and the other transactions
contemplated by this Agreement, except those that the failure to make or obtain
are not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect on HomeCom or prevent, materially delay or materially impair its
ability to consummate the transactions contemplated by this Agreement.
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(b) The execution, delivery and performance of this Agreement by
HomeCom does not, and the consummation by it of the Exchange and the other
transactions contemplated by this Agreement will not, constitute or result in
(A) a breach or violation of, or a default under, its certificate of
incorporation, certificates of designations or bylaws, (B) a breach or violation
of, or a default under, the acceleration of any obligations or the creation of a
lien, pledge, security interest or other encumbrance on its assets or the assets
of any of its Subsidiaries (with or without notice, lapse of time or both)
pursuant to, any Contract binding upon it or any of its Subsidiaries or any Law
to which it or any of its Subsidiaries is subject or (C) any change in the
rights or obligations of any party under any Contracts to which it or its
Subsidiaries are a party, except, in the case of clauses (B) or (C) above, for
any breach, violation, default, acceleration, creation or change that,
individually or in the aggregate, is not reasonably likely to have a Material
Adverse Effect on it or prevent, materially delay or materially impair its
ability to consummate the transactions contemplated by this Agreement.
4.5 Reports; Financial Statements. HomeCom is a reporting company under the
Exchange Act and the shares of HomeCom Common Stock are registered under Section
12(g) of the Exchange Act. HomeCom has made available to the Company, through
electronic filings on XXXXX, each registration statement, report, proxy
statement or information statement prepared by it since December 31, 2002,
including its Annual Report on Form 10-KSB for the year ended December 31, 2001,
and its Quarterly Reports on Form 10-QSB for the quarters ended since December
31, 2001, in the form (including exhibits, annexes and any amendments thereto)
filed with the SEC (collectively, including any such registration statements,
reports, proxy statements or information statements filed subsequent to the
Agreement Date, its "Reports"). Since June 30, 2000, HomeCom has made all
filings required to be made by the Securities Act and the Exchange Act. As of
their respective dates, the HomeCom Reports complied as to form with all
applicable requirements and did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances in which they
were made, not misleading. The financial statements and any supporting schedules
of HomeCom and its Subsidiaries included or incorporated by reference in the
HomeCom Reports present fairly the consolidated financial position of HomeCom
and its Subsidiaries as of the dates indicated and the consolidated results of
their operations for the periods specified (subject, in the case of unaudited
statements, to notes and normal year-end audit adjustments that will not be
material in amount or effect), in each case in accordance with GAAP consistently
applied during the periods involved, except as may be noted therein. To the
knowledge of the directors, officers, employees and legal and accounting
representatives of HomeCom, except as disclosed on Schedule 4.5, as of the
Closing Date, no Person or group beneficially owns 10% or more of the
outstanding voting securities of the Company. As used in this Section 4.5, the
terms "beneficially owns" and "group" shall have the meanings ascribed to such
terms under Rule 13d-3 and Rule 13d-5 under the Exchange Act.
4.6 Litigation and Liabilities. Except as disclosed in HomeCom's Reports
filed prior to the Closing Date, there are no (i) civil, criminal or
administrative actions, suits, claims, hearings, investigations or proceedings
pending or, to the actual knowledge of its executive officers, threatened
against HomeCom or any of its Affiliates or (ii) obligations or liabilities,
whether or not accrued, contingent or otherwise and whether or not required to
be disclosed, including those relating to matters involving any Environmental
Law, or any other facts or circumstances, in either such case, of which its
executive officers have actual knowledge and that are reasonably likely to
result in any claims against or obligations or liabilities of HomeCom or any of
its Affiliates, except for those that are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect on HomeCom or prevent,
materially delay or materially impair its ability to consummate the transactions
contemplated by this Agreement.
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4.7 Compliance with Laws. Except as disclosed in HomeCom's Reports filed
prior to the Closing Date, the businesses of HomeCom and its Subsidiaries have
not been conducted in violation of any Laws. Except as disclosed in the
HomeCom's Reports filed prior to the Closing Date, no investigation or review by
any Governmental Entity with respect to the HomeCom or any of its Subsidiaries
is pending or, to the actual knowledge of its executive officers, threatened,
nor has any Governmental Entity indicated an intention to conduct the same,
except for those the outcome of which are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect on it or prevent, materially
delay or materially impair its ability to consummate the transactions
contemplated by this Agreement.
4.8 Insurance. Schedule 4.8 to this Agreement is a complete list accurately
describing all insurance policies held by HomeCom concerning its businesses and
properties and any officer or director of HomeCom. All such policies are in the
respective principal amounts set forth in Schedule 4.8 and are in full force and
effect as of the Closing Date. HomeCom has not received written notice of any
pending or threatened termination or retroactive premium increase with respect
such policies, and HomeCom is in compliance in all material respects with all
conditions contained therein. There are no pending claims against such insurance
by HomeCom or any individual or entity covered under such policies as to which
insurers have denied liability and no defenses provided by insurers under
reservations of rights. HomeCom does not self insure any risk under any such
policies other than applicable deductibles. None of the policies listed on
Schedule 4.8 shall terminate or be terminable pursuant to their terms as a
result of the consummation of the transactions contemplated hereby.
4.9 Brokers and Finders. Except for Greenfield, neither HomeCom nor any of
its officers, directors or employees has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders' fees in
connection with the Exchange or the other transactions contemplated in this
Agreement.
4.10 Indebtedness. As of the date hereof, HomeCom has incurred the
indebtedness and obligations listed on Schedule 4.10, which schedule lists that
certain accrued dividend liability owed to a preferred stockholder of HomeCom
(the "Accrued Dividend Liability"). As of the Closing Date the Accrued Dividend
Liability will have been paid or otherwise satisfied.
4.11 Contracts. Except as set forth on Schedule 4.11 hereto, neither
HomeCom nor its Subsidiaries are a party to any material contracts, leases,
arrangements or commitments (whether oral or written) or is a party to or bound
by or affected by any contract, lease, arrangement or commitment (whether oral
or written) relating to: (a) the employment of any person; (b) collective
bargaining with, or any representation of any employees by, any labor union or
association; (c) the acquisition of services, supplies, equipment or other
personal property; (d) the purchase or sale of real property; (e) distribution,
agency or construction; (f) lease of real or personal property as lessor or
lessee or sublessor or sublessee; (g) lending or advancing of funds; (h)
borrowing of funds or receipt of credit; (i) incurring any obligation or
liability; or (j) the sale of personal property.
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4.12 As of the Closing, all of the holders of the Company's Series B
Convertible Preferred Stock, Series C Convertible Stock, Series D Convertible
Preferred Stock, and Series E Convertible Preferred Stock have executed
forebearance as to certain default and given their consents to the transactions
contemplated by the Agreement pursuant to the B-E Consents.
ARTICLE V.
Representations and Warranties of the Company, Polymate and Greenfield
Each of the Company, Polymate and Greenfield (for these purposes, each, a
"Stockholder") severally (and not jointly) represents and warrants to HomeCom,
solely with respect to each as a Stockholder, that:
5.1 Accredited Investor. The Stockholder is an "accredited investor" (as
such term is defined in Rule 501 of Regulation D promulgated under the
Securities Act), and has such knowledge and experience in financial business
matters that the Stockholder is capable of evaluating the merits and risks of
the Exchange. The Stockholder's residence or, if other than a natural person,
its principal office, is located in the jurisdiction indicated in the address of
such Stockholder opposite its name on the signature page hereof.
5.2 Review of SEC Filings. The Stockholder has had the opportunity to
review the HomeCom's Reports.
5.3 Opportunity for Investigation. HomeCom has given the Stockholder the
opportunity to meet with HomeCom's directors and executive officers for the
purpose of asking questions and receiving answers concerning the terms and
conditions of the Exchange, and to obtain any additional information that
HomeCom may possess or can acquire without unreasonable effort or expense that
is necessary to verify the accuracy of any information that HomeCom has
furnished the Stockholder in connection with the Exchange.
5.4 Restricted Securities. The Stockholder understands and acknowledges
that the Exchange Shares, the Polymate Shares and Greenfield Shares being issued
to the respective Stockholders in the Exchange are "restricted securities," (as
such terms is defined in Rule 144(a)(3) under the Securities Act) that the
certificate or certificates evidencing those shares will bear a legend,
substantially in the form set forth below, indicating that those shares are
restricted securities, and that those shares may not be Licensed except pursuant
to an effective registration statement under the Securities Act or an available
exemption from such registration.
The legend referred to above will be substantially as follows:
"These securities have been issued pursuant to an exemption under the
Securities Act of 1933 and are restricted securities, and neither such
securities nor any interest therein may be offered, sold, pledged,
hypothecated, made the subject of a gift or otherwise Licensed, for
value or otherwise, without the written approval of counsel for the
issuer making specific reference to this certificate. The transfer
agents of the issuer have been instructed to register transfers of the
shares evidenced by this certificate only in accordance with the
foregoing instructions."
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5.5 Stockholder's Intent. The Stockholders are acquiring the Exchange
Shares, the Polymate Shares and Greenfield Shares, respectively, and such
acquisition is for the Stockholders' own account, for investment purposes, and
not with a view towards their distribution, except such distribution is
permitted under applicable law or with the knowledge of HomeCom.
5.6 Enforceability. This Agreement is the Stockholders' valid and binding
obligation, enforceable against the Stockholder in accordance with it terms.
ARTICLE VI.
Post-Closing Covenants
6.1 Financial Statements. The parties shall cooperate in preparing and/or
causing to be prepared the information and financial statements required by Form
8-K under the Exchange Act. As soon as practicable after the Closing Date, but
in no event later than forty-five (45) days after the Closing Date, HomeCom
shall deliver its audited financial statements as of and for the year ended
December 31, 2002, and such audit shall have been conducted by such accounting
firm mutually acceptable to the parties.
6.2 Access; Consultation.
(a) Upon reasonable notice, and except as may be prohibited by
applicable Law, HomeCom and Company each shall (and shall cause their
Subsidiaries to) afford to the other and the employees, agents and
representatives (including any attorney or accountant retained by either party)
of either party, as the case may be, reasonable access, during normal business
hours throughout the period prior to the Closing Date, to its properties, books,
Contracts and records and, during such period, each shall (and shall cause their
Subsidiaries to) furnish promptly to the other all information concerning its
business, properties and personnel as may reasonably be requested, provided that
no investigation pursuant to this Section 6.2 shall affect or be deemed to
modify any representation or warranty under this Agreement, and provided,
further, that the foregoing shall not require HomeCom or the Company to permit
any inspection, or to disclose any information, that in the reasonable judgment
of HomeCom or the Company, as the case may be, would result in the disclosure of
any trade secrets of third parties or violate any of its obligations with
respect to confidentiality if HomeCom or the Company, as the case may be, shall
have used all reasonable efforts to obtain the consent of such third party to
such inspection or disclosure. All requests for information made pursuant to
this Section 6.2 shall be directed to an executive officer of HomeCom or the
Company, as the case may be, or such Person as may be designated by any such
executive officer, as the case may be.
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(b) Subject to applicable Laws relating to the exchange of
information, from the Agreement Date to the Closing Date, the Company and
HomeCom agree to consult with each other on a regular basis on a schedule to be
agreed with regard to their respective operations.
6.3 Other Actions; Notification.
(a) The Company and HomeCom shall cooperate with each other and use
(and shall cause their respective Subsidiaries to use) their respective
reasonable best efforts (i) to take or cause to be taken all actions, and do or
cause to be done all things, necessary, proper or advisable on its part under
this Agreement and the applicable Laws to consummate and make effective the
Exchange and the other transactions contemplated by this Agreement as soon as
practicable, including (A) obtaining opinions of their respective accountants,
if required, (B) preparing and filing as promptly as practicable all
documentation to effect all necessary applications, notices, petitions, filings
and other documents, and (C) instituting court actions or other proceedings
necessary to obtain the approvals required to consummate the Exchange or the
other transactions contemplated by this Agreement or defending or otherwise
opposing all court actions or other proceedings instituted by a Governmental
Entity or other Person for purposes of preventing the consummation of the
Exchange and the other transactions contemplated by this Agreement and (ii) to
obtain as promptly as practicable all consents, registrations, approvals,
permits and authorizations necessary or advisable to be obtained from any third
party and/or any Governmental Entity in order to consummate the Exchange or any
of the other transactions contemplated by this Agreement; provided, however,
that nothing in this Section 6.3(a) shall require either party to agree to any
divestitures or hold separate or similar arrangements in order to obtain
approval of the transactions contemplated by this Agreement if such divestitures
or arrangements would reasonably be expected to have a Material Adverse Effect
on the Company or HomeCom, or a Material Adverse Effect on the expected benefits
of the Exchange to the Company or HomeCom. Subject to applicable Laws relating
to the exchange of information, the Company and HomeCom shall have the right to
review in advance, and to the extent practicable each will consult the other on,
all the information relating to the Company or HomeCom, as the case may be, that
appear in any filing made with, or written materials submitted to, any third
party and/or any Governmental Entity in connection with the Exchange and the
other transactions contemplated by this Agreement. In exercising the foregoing
right, each of the Company and HomeCom shall act reasonably and as promptly as
practicable.
(b) The Company and HomeCom each shall, upon request by the other,
furnish the other with all information concerning itself, its Subsidiaries,
directors, officers and shareholders and such other matters as may be reasonably
necessary or advisable in connection with any Registration Statement or filing
with the SEC made by HomeCom or the Company in connection with the Exchange and
the transactions contemplated by this Agreement.
(c) The Company and HomeCom each shall keep the other apprised of the
status of matters relating to completion of the transactions contemplated by
this Agreement, including promptly furnishing the other with copies of notice or
other communications received by the Company or HomeCom, as the case may be, or
any of its Subsidiaries or, from any third party and/or any Governmental Entity
with respect to the Exchange and the other transactions contemplated by this
Agreement. Each of the Company and HomeCom shall give prompt notice to the other
of any change that is reasonably likely to result in a Material Adverse Effect
on it or of any failure of any conditions to the other party's obligations to
affect the Exchange.
11
6.4 Publicity. The initial press release with respect to the Exchange shall
be a joint, mutually agreed press release. Thereafter, HomeCom and the Company
shall consult with each other prior to issuing any press releases or otherwise
making public announcements with respect to the Exchange and the other
transactions contemplated by this Agreement and prior to making any filings with
any third party and/or any Governmental Entity (including any securities
exchange) with respect thereto, except as may be required by Law or by
obligations pursuant to any listing agreement with or rules of any securities
exchange.
6.5 Indemnification of Officers and Directors. The Company agrees that all
rights to indemnification existing in favor of any of the present or former
officers or directors of HomeCom (the "Managers") as provided in HomeCom's
Certificate of Incorporation or Bylaws as in effect as of the Closing Date, and
in any agreement between HomeCom and any Manager with respect to matters
occurring prior to the Closing Date, shall survive the Exchange in accordance
with the terms of the applicable agreements or instruments. The Company further
covenants not to amend or repeal any provisions of the Certificate of
Incorporation or Bylaws of HomeCom in any manner which would adversely affect
the indemnification or exculpatory provisions contained therein as they pertain
to acts occurring prior to the Closing. The provisions of this Section 6.5 are
intended to be for the benefit of, and shall be enforceable by, each indemnified
party and his or her heirs and representatives.
6.6 Post-Exchange Indemnification. If the Company or any of its successors
or assigns (i) shall consolidate with or merge into any other corporation or
entity and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or (ii) shall transfer all or substantially all of
its properties and assets to such Person, then and in each such case, proper
provisions shall be made so that the successors and assigns of the Company shall
assume all of the obligations set forth in Section 6.5.
6.7 Stockholder Meeting. On or prior to December 31, 2003, HomeCom shall
have held a special meeting of stockholders in respect of the transactions
contemplated by that certain Preliminary Proxy Statement filed on or about
November 30, 2001, as amended in April, 2002 with the Securities and Exchange
Commission by HomeCom, and shall have received all necessary shareholder and
regulatory approval to consummate the transactions therein contemplated, or as
otherwise agreed by the Company, and such transactions shall have been
consummated and closed.
6.8 Increase in Authorized Shares and Reverse Split. On or prior to
December 31, 2003, HomeCom shall have held a special meeting of stockholders,
and as a result thereof, HomeCom shall have amended its Certificate of
Incorporation to increase the number of authorized shares of Common Stock from
15,000,000 to 150,000,000, and implement a reverse split of issued and
outstanding Common Stock of not less than 1 for 10 as contemplated by the Proxy
Statement referred to in Section 6.7.
12
6.9 Registration Rights. The Exchange Shares, the Polymate Shares and
Greenfield Shares shall have piggy-back and demand rights with respect to
registration on a registration statement filed by HomeCom subsequent to the
Closing, either on Form S-l or other applicable form, for the resale of the
Common Stock of the HomeCom. Subsequent to the Closing, HomeCom and,
respectively, the Company, Polymate and Greenfield shall enter into separate
piggy-back and demand registration rights agreements for the registration, in a
commercially reasonable manner and time frame, of the Exchange Shares, the
Polymate Shares and Greenfield Shares. HomeCom shall pay all expenses of such
registration, other than broker commissions and discounts. A registration
statement covering such registration rights shall be filed by HomeCom within a
commercially reasonable time following request for registration.
ARTICLE VII
Conditions
7.1 Conditions to Each Party's Obligation to Effect the Exchange. The
respective obligation of each party to effect the Exchange is subject to the
satisfaction or waiver, if applicable, at or prior to the Closing Date, of each
of the following conditions:
(a) Exhibits and Schedules. The Exhibits and Schedules shall have been
delivered and accepted by the Company and HomeCom (such acceptance to be in each
party's sole and absolute discretion);
(b) Each of the Company and HomeCom shall have completed its
respective continuing business, legal and accounting due diligence review, shall
be satisfied with the results of such review in each's sole and absolute
discretion, and shall have notified the other that it has completed such review;
and
(c) Laws and Orders. No Governmental Entity of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any Law (whether
temporary, preliminary or permanent) that is in effect and restrains, enjoins or
otherwise prohibits consummation of the Exchange or the other transactions
contemplated by this Agreement and the License Agreement (collectively, an
"Order"), and no Governmental Entity shall have instituted any proceeding or
threatened to institute any proceeding seeking any such Order.
7.2 Condition to Obligations of the Company. The obligations of the Company
to effect the Exchange are also subject to the satisfaction or waiver by the
Company at or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and warranties
of HomeCom set forth in this Agreement (i) to the extent qualified by Material
Adverse Effect shall be true and correct and (ii) to the extent not qualified by
Material Adverse Effect shall be true and correct (except that this clause (ii)
shall be deemed satisfied so long as any failures of such representations and
warranties to be true and correct, taken together, would not reasonably be
expected to have a Material Adverse Effect on HomeCom and would not reasonably
be expected to have a material adverse effect on the expected benefits of the
Exchange to the Company), in the case of each of (i) and (ii), as of the
Agreement Date and (except to the extent such representations and warranties
speak as of an earlier date) as of the Closing Date as though made on and as of
the Closing Date;
13
(b) Performance of Obligations of Homecom. Homecom shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date, including the filing of
a Certificate of Designation, in the form annexed hereto as Exhibit B with the
Secretary of State of Delaware and issuance of the Exchange Shares to the
Company and the filing of a Certificate of Designation, in the form annexed
hereto as Exhibit C with the Secretary of State of Delaware and issuance of the
Additional Preferred Shares to the Company;
(c) Consents Under Agreements. HomeCom shall have obtained the
executed B-E Consents and the consent or approval of each Person whose consent
or approval shall be required in order to consummate the transactions
contemplated by this Agreement under any Contract to which HomeCom is a party,
except those for which the failure to obtain such consent or approval,
individually or in the aggregate, is not reasonably likely to have a Material
Adverse Effect on HomeCom or a material adverse effect on the expected benefits
of the Exchange to Company (it being understood that the failure to meet the
conditions set forth in Sections 7.2 (d), (e), (f) and (g) below would
constitute a Material Adverse Effect on HomeCom);
(d) HomeCom shall deliver to the Company evidence satisfactory to the
Company that HomeCom's accounts payable have been reduced from $1.9 million to
no more than $600,000 by the waiver or satisfaction of the Accrued Dividend
Liability;
(e) HomeCom shall deliver to Eurotech such executed corporate
governance documents of HomeCom (including written consents to action and
director resignations) as may be reasonably requested by Eurotech in order to
effect the changes to the board of directors and officers of HomeCom set forth
in Schedule 7.2(e), it being acknowledged and agreed that the parties intend to
effect such changes at or following the Closing, as the case may be pursuant to
such schedule;
(f) HomeCom shall deliver to the Company evidence satisfactory to the
Company that HomeCom has settled that certain dispute between HomeCom and the
landlord of HomeCom's leased real property located at 0000 Xxxxxxxx Xxxx,
Xxxxxxxx 00, Xxxxx 000, Xxxxxxx, XX, and the terms of such settlement shall be
satisfactory to the Company;
(g) HomeCom shall deliver to the Company evidence satisfactory to the
Company that the holders of Series B-E Preferred Stock have waived the mandatory
redemption and conversion provisions of the instruments of such securities and
extended the date of such mandatory redemption and conversion to March 31, 2004,
in each case pursuant to the B-E Consents; and
(f) HomeCom shall have filed with the Securities and Exchange
Commission and shall provide the Company with a certified copy of, its Annual
Report on Form 10-KSB for its fiscal year 2002.
14
7.3 Conditions to Obligation of HomeCom. The obligation of HomeCom to
effect the Exchange is also subject to the satisfaction or waiver by HomeCom at
or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and warranties
of the Company, Polymate and Greenfield set forth in this Agreement and the
License Agreement (i) to the extent qualified by Material Adverse Effect shall
be true and correct, and (ii) to the extent not qualified by Material Adverse
Effect shall be true and correct (except that this clause (ii) shall be deemed
satisfied so long as any failures of such representations and warranties to be
true and correct, taken together, would not reasonably be expected to have a
Material Adverse Effect on the Company and would not reasonably be expected to
have a material adverse effect on the expected benefits of the Exchange to
HomeCom), in the case of each of (i) and (ii), as of the Agreement Date and
(except to the extent such representations and warranties speak as of an earlier
date) as of the Closing Date as though made on and as of the Closing Date;
(b) Performance of Obligations of Polymate. Polymate shall have
executed, or shall cause to be executed, such further undertakings as may be
satisfactory to Eurotech in respect of the Licensed Property; and
(c) Consents Under Agreements. The Company shall have obtained the
consent or approval of each Person whose consent or approval shall be required
in order to consummate the transactions contemplated by this Agreement under any
Contract to which the Company is a party, except those for which the failure to
obtain such consent or approval, individually or in the aggregate, is not
reasonably likely to have a Material Adverse Effect on the Company, or a
material adverse effect on the expected benefits of the Exchange to HomeCom.
ARTICLE VIII
Termination
8.1 Termination by Mutual Consent. This Agreement may be terminated and the
Exchange may be abandoned at any time prior to the Closing Date by mutual
written consent of HomeCom and the Company, through action of their respective
Boards of Directors.
8.2 Termination by Either Company or HomeCom. This Agreement may be
terminated and the Exchange may be abandoned at any time prior to the Closing
Date by action of the Board of Directors of either Company or HomeCom if (i) the
Exchange shall not have been consummated by April 15, 2003 (the "Termination
Date"), or (ii) any order permanently restraining, enjoining or otherwise
prohibiting consummation of the Exchange shall become final and non-appealable;
provided, that the right to terminate this Agreement pursuant to clause (i)
above shall not be available to any party that has breached in any material
respect its obligations under this Agreement in any manner that shall have
approximately contributed to the failure of the Exchange to be consummated.
15
8.3 Effect of Termination and Abandonment. In the event of termination of
this Agreement and the abandonment of the Exchange in accordance with the
provisions of this Article, this Agreement shall become void and of no effect
with no liability on the part of any party to this Agreement or of any of its
directors, officers, employees, agents, legal or financial advisors or other
representatives; provided, however, no such termination shall relieve any party
to this Agreement from any liability for damages resulting from any breach of
this Agreement.
ARTICLE IX.
Indemnification and Survival
9.1 Survival; Right to Indemnification Not Affected by Knowledge. All
representations, warranties, covenants and obligations in this Agreement, and
any certificate or document delivered pursuant to this Agreement, shall survive
the closing until the second anniversary of the Closing Date. The right to
indemnification and payment of damages for third party claims based on such
representations, warranties, covenants and obligations will not be affected by
any investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution
and delivery of this Agreement or the Closing Date, with respect to the accuracy
or inaccuracy of or compliance with, any such representation, warranty, covenant
or obligation. The waiver of any condition based on the accuracy of any
representation or warranty, or on the performance of or compliance with any
covenant or obligation, will not affect the right to indemnification, payment of
damages for third party claims based on such representations, warranties,
covenants and obligations.
9.2 Indemnification and Payment of Damages by HomeCom. HomeCom will
indemnify and hold harmless the Company and will pay to the Company the amount
of any damages arising, directly or indirectly, from or in connection with third
party claims with respect to (a) any material breach of any representation or
warranty made by HomeCom in this Agreement or any other certificate or document
delivered by HomeCom pursuant to this Agreement, or (b) any material breach by
HomeCom of any agreement, covenant or obligation of HomeCom in this Agreement.
Any indemnity pursuant to this Section 9.2 shall only be available to the extent
that such damages pursuant to (a) or (b) above exceed $25,000 in aggregate.
9.3 Indemnification and Payment of Damages by the Company. The Company will
indemnify and hold harmless HomeCom, and will pay to HomeCom the amount of any
damages arising, directly or indirectly, from or in connection with third party
claims with respect to (a) any material breach of any representation or warranty
made by the Company in this Agreement or in any certificate delivered by the
Company pursuant to this Agreement or (b) any material breach by the Company of
any agreement, covenant or obligation of the Company in this Agreement. Any
indemnity pursuant to this Section 9.3 shall only be available to the extent
that such damages pursuant to (a) or (b) above exceed $25,000 in aggregate.
9.4 Procedure for Indemnification - Third Party Claims.
16
(a) Promptly after receipt by an indemnified party under Section 9.2
or 9.3 of notice of the commencement of any proceeding against it (a
"Proceeding"), such indemnified party will, if a claim is to be made against an
indemnifying party under such Section, give notice to the indemnifying party of
the commencement of such claim, but the failure to notify the indemnifying party
will not relieve the indemnifying party of any liability that it may have to any
indemnified party, except to the extent that the indemnifying party demonstrates
that the defense of such action is prejudiced by the indemnifying party's
failure to give such notice.
(b) If any Proceeding referred to in Section 9.4(a) is brought against
an indemnified party and it gives notice to the indemnifying party of the
commencement of such Proceeding, the indemnifying party will, unless the claim
involves Taxes, be entitled to participate in such Proceeding and, to the extent
that it wishes (unless (i) the indemnifying party is also a party to such
Proceeding and the indemnified party determines in good faith that joint
representation would be inappropriate, or (ii) the indemnifying party fails to
provide reasonable assurance to the indemnified party of its financial capacity
to defend such Proceeding and provide indemnification with respect to such
Proceeding), to assume the defense of such Proceeding with counsel satisfactory
to the indemnified party and, after notice from the indemnifying party to the
indemnified party of its election to assume the defense of such Proceeding, the
indemnifying party will not, as long as it diligently conducts such defense, be
liable to the indemnified party under this ARTICLE IX for any fees of other
counsel or any other expenses with respect to the defense of such Proceeding, in
each case subsequently incurred by the indemnified party in connection with the
defense of such Proceeding, other than reasonable costs of investigation. If the
indemnifying party assumes the defense of a Proceeding, (i) it will be
conclusively established for purposes of this Agreement that the claims made in
that Proceeding are within the scope of and subject to indemnification; (ii) no
compromise or settlement of such claims may be effected by the indemnifying
party without the indemnified party's consent unless (A) there is no finding or
admission of any violation of a Law or any violation of the rights of any Person
and no effect on any other claims that may be made against the indemnified
party, and (B) the sole relief provided is monetary damages that are paid in
full by the indemnifying party; and (iii) the indemnified party will have no
liability with respect to any compromise or settlement of such claims effected
without its consent. If notice is given to an indemnifying party of the
commencement of any Proceeding and the indemnifying party does not, within ten
business days after the indemnified party's notice is given, give notice to the
indemnified party of its election to assume the defense of such Proceeding, the
indemnifying party will be bound by any determination made in such Proceeding or
any compromise or settlement effected by the indemnified party.
(c) Notwithstanding the foregoing, if an indemnified party determines
in good faith that there is a reasonable probability that a Proceeding may
adversely affect it or its Affiliates other than as a result of monetary damages
for which it would be entitled to indemnification under this Agreement, the
indemnified party may, by notice to the indemnifying party, assume the exclusive
right to defend, compromise, or settle such Proceeding, but the indemnifying
party will not be bound by any determination of a Proceeding so defended or any
compromise or settlement effected without its consent (which may not be
unreasonably withheld).
(d) Notwithstanding Section 11.4 hereof, each of the Company and
HomeCom hereby consents to the non-exclusive jurisdiction of any court in which
a Proceeding is brought against any indemnified party for purposes of any claim
that an indemnified party may have under this Agreement with respect to such
Proceeding or the matters alleged therein.
17
ARTICLE X.
[Intentionally Omitted]
ARTICLE XI.
Miscellaneous and General
11.1 Modification or Amendment. Subject to the provisions of the applicable
law, the parties to this Agreement may modify or amend this Agreement by written
agreement executed and delivered by a duly authorized officer of the respective
parties.
11.2 Waiver.
(a) Any provision of this Agreement may be waived prior to the Closing
Date if, and only if, such waiver is in writing and executed and delivered by a
duly authorized officer of the respective parties.
(b) No failure or delay by any party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. Except as
otherwise provided in this Agreement, the rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by Law.
11.3 Counterparts. This Agreement may be executed in any number of
counterparts, and by facsimile, each such counterpart being deemed to be an
original instrument, and all such counterparts shall together constitute the
same agreement.
11.4 Governing Law and Venue; Waiver of Jury Trial.
(a) This Agreement shall be deemed to be made in and in all respects
shall be interpreted, construed and governed by and in accordance with New York
law without regard to the conflict of law principles thereof, except that
matters relating to the corporate governance of HomeCom shall be governed by
Delaware law. The parties hereby irrevocably and unconditionally consent to
submit to the exclusive jurisdiction of the courts of the State of New York and
of the United States of America located in the Borough of Manhattan (the "New
York Courts") for any litigation arising out of or relating to this Agreement
and the transactions contemplated by this Agreement (and agree not to commence
any litigation relating thereto except in such New York Courts), waive any
objection to the laying of venue of any such litigation in the New York Courts
and agree not to plead or claim in any New York Court that such litigation
brought therein has been brought in an inconvenient forum.
18
(b) Each party acknowledges and agrees that any controversy which may
arise under this Agreement is likely to involve complicated and difficult
issues, and therefore each party hereby irrevocably and unconditionally waives
any right such party may have to a trial by jury in respect of any litigation
directly or indirectly arising out of or relating to this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (ii) each such party
understands and has considered the implications of this waiver, (iii) each party
makes this waiver voluntarily, and (iv) each party has been induced to enter
into this Agreement by, among other things, the mutual waivers and
certifications in this Section 11.4.
11.5 Notices. Notices, requests, instructions or other documents to be
given under this Agreement shall be in writing and shall be deemed given, (i)
three business days following sending by registered or certified mail, postage
prepaid, (ii) when sent if sent by facsimile, provided that written or other
confirmation of receipt is obtained by the sending party, (iii) when delivered,
if delivered personally to the intended recipient, and (iv) one business day
later, if sent by overnight delivery via a national courier service, and in each
case, addressed to a party at the following address for such party:
If to the Company:
Eurotech, Ltd.
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx, President
Fax: 000-000-0000
with a copy (which shall not constitute notice) to:
Ellenoff Xxxxxxxx Schole & Cyruli, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
If to Polymate:
Polymate Ltd.
B'nai Xxxxx 00, Xxxxx, Xxxxxx
Attn: Xxxx Xxxxxxxx
Fax: 000-0-000-0000
If to HomeCom:
0000 Xxxxxxxx Xxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
19
with a copy to:
Xxxxxxx & Prager, LLP
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
If to Greenfield:
Greenfield Capital Partners LLC
0000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
ATT: X. Xxxx
Fax: (000) 000-0000
11.6 Entire Agreement. This Agreement (including any schedules or exhibits
to this Agreement, whether deliver as of the date hereof or at the Closing)
constitute the entire agreement, and supersede all other prior agreements,
understandings, representations and warranties, both written and oral, among the
parties, with respect to the subject matter of this Agreement. Each party to
this Agreement agrees that, except for the representations and warranties
contained in this Agreement, neither the Company nor HomeCom makes any other
representations or warranties, and each hereby disclaims any other
representations or warranties made by itself or any of its officers, directors,
employees, agents, financial and legal advisors or other representatives, with
respect to the execution and delivery of this Agreement or the transactions
contemplated by this Agreement, notwithstanding the delivery or disclosure to
the other or the other's representatives of any documentation or other
information with respect to any one or more of the foregoing.
11.7 No Third Party Beneficiaries. This Agreement is not intended to confer
upon any Person other than the parties to this Agreement any rights or remedies
under this Agreement.
11.8 Obligations of the Parent. Whenever this Agreement requires a
Subsidiary of either the Company or HomeCom to take any action, such requirement
shall be deemed to include an undertaking on the part of the Company, or
HomeCom, respectively, to cause such Subsidiary to take such action. For
purposes of this Agreement, the term "Subsidiary" shall mean, when used with
reference to any party hereto, any corporation or other entity of which such
party or any other subsidiary of such party directly or indirectly (i) is a
general or managing partner or managing member, (ii) owns (A) a majority of the
outstanding voting securities or interests of which, having by their terms
ordinary voting power to elect a majority of the board of directors or others
performing similar functions with respect to such corporation or other entity or
(B) securities in such corporation or entity which grant such party or its
subsidiary the right to perform or approve management functions of such
corporation or entity or (iii) owns more than fifty percent (50%) of the value
of the outstanding equity securities or interests (including membership
interests) of which are owned directly or indirectly by such party.
20
11.9 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability or the other provisions of this Agreement.
If any provision of this Agreement, or the application thereof to any Person or
any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefore in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
11.10 Interpretation. The table of contents and headings in this Agreement
are for convenience of reference only, do not constitute part of this Agreement
and shall not be deemed to limit or otherwise affect any of the provisions of
this Agreement. Where a reference in this Agreement is made to a schedule, such
reference shall be to a schedule to this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
11.11 Assignment. This Agreement shall not be assignable by operation of
law or otherwise. Any assignment in contravention of the preceding sentence
shall be null and void.
11.12 Further Assurances. Each party shall do and perform or cause to be
done and performed, all such further acts and things, and shall execute and
delivery all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement, including the schedules and exhibits
thereto, and the consummation of the transactions contemplated hereby.
11.13 Confidentiality. Except to the extent expressly authorized by this
Agreement or otherwise required by law or agreed to in writing by the applicable
party, the parties agree that all parties hereto shall keep completely
confidential and shall not publish or otherwise disclose and shall not use for
any purpose other than proper performance hereunder any information furnished to
it by the other parties pursuant to this Agreement (including the schedules and
exhibits hereto).
21
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first written
above.
HOMECOM COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
EUROTECH, LTD.
By: /s/ Xxx X. Xxxxxxxxx
------------------------
Name: Xxx X. Xxxxxxxxx
Title: President and CEO
Solely with respect to ARTICLE V and
ARTICLE XI hereof:
POLYMATE, LTD.
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: General Manager
GREENFIELD CAPITAL PARTNERS LLC
By: /s/ Xxxxxxx Xxx
-------------------
Name: Xxxxxxx Xxx
Title: Managing Director
22
SCHEDULES
Schedule 3.3(b) - Prior Contracts
Schedule 3.5 - Litigation and Liabilities
Schedule 3.6 - Violations
Schedule 4.2 - HomeCom Authorized Capital
Schedule 4.5 - 10% Holders
Schedule 4.8 - HomeCom Insurance
Schedule 4.11 - HomeCom Contracts
Schedule 7.2(e) - Corporate Governance Matters
EXHIBITS
EXHIBIT A Licensed Property
EXHIBIT B Certificate of Designation of HomeCom Series
F Convertible Preferred Stock
EXHIBIT C Certificate of Designations of HomeCome Series
G Convertible Preferred Stock
EXHIBIT A
Licensed Property
1. EKOR(TM)
EKOR(TM) is a family of non-toxic advanced composite polymer materials that
provides for effective and unique means of containment of nuclear and hazardous
materials and prevents radioactive contaminants from spreading. EKOR(TM) is
available as a coating or sealing agent with varying viscosity and as flexible
or rigid foam.
2. EMR/AC
Electromagnetic Radiography(TM) ("EMR") and Acoustic Core(TM) ("AC")
provide integrated remote sensing capabilities that produce 3D images of
subsurface contaminants with a high degree of discrimination and precision. They
offer large area coverage at high resolution and are significantly more cost
effective than monitoring methods currently used for environmental assessments.
3. Hybrid Nonisocyanate Polyurethane ("HNIPU")
HNIPU is a technology intended to improve upon conventional monolithic
polyurethanes, which have good mechanical properties, but are porous, with poor
hydrolytic stability and moderate permeability. HNIPU is modified polyurethane
with lower permeability, increased chemical resistance properties and material
synthesis that has superior environmental characteristics to conventional
polyurethanes. HNIPUs form into a material with practically no pores and
therefore, do not absorb moisture on the surface or in fillers during formation.
# # #
Schedule 7.2(e)
Corporate Governance Matters
The parties agree that the following has occurred and/or that they shall
draft and execute all corporate governance documents in order to affect the
following:
1. Current Business/Eurotech Business/Financing
Upon shareholder approval, HomeCom to complete sale of current business to
Tulix Systems, Inc.("Tulix"). Until closing of such sale, all ongoing
working capital needs related to operations to be acquired by Tulix will be
funded by revenues from those operations or other financings.
The board of directors of Homecom shall approve that the operations and
activities of Homecom related license from Eurotech (the "Eurotech
Business") will be segregated in an unincorporated division of HomeCom and
will be funded at the closing of the License and Exchange Agreement by
existing preferred shareholder of HomeCom in an amount equal to $150,000,
subject to acceptable security for financing (such financing, the "Licensed
Technology Financing"). The documentation for the Licensed Technology
Financing shall provide that such funds shall be used solely and
exclusively for the Eurotech Business. Additional documentation to be
delivered at closing (i.e., Board approval by HomeCom) will provide that
such funds shall be under the sole exclusive control of Xxx Xxxxxxxxx,
Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxx (as employees of HomeCom) and shall be
segregated in a separate operating bank account under the control of such
individuals only.
2. Resignation of Homecom Directors and Officers
In anticipation of the closing of the License and Exchange Agreement, two
Eurotech designated directors, Xxx Xxxxxxxxx and Xxxxx Xxxxxx, were elected
to the board of directors of Homecom as of March 21, 2003 by current the
directors. The board of directors of HomeCom shall grant Xx. Xxxxxxxxx, Xx.
Xxxxxx and Xx. Xxxxxxxx sole and exclusive authority to manage the Eurotech
Business through the unincorporated division discussed above. At the
closing of the License and Exchange Agreement, Xx. Xxxxxxxxx, Xx. Xxxxxx
and Xx. Xxxxxxxx will be hired by Homecom as employees of Homecom in order
to effect the foregoing, the board of Homecom to approve such hiring.
In anticipation of the closing of the License and Exchange Agreement, two
current directors of Homecom, Xx. Xxxxxxxxx and Xx. Xxxxxxxx, have resigned
as directors and an appropriate Form 8-K will be filed covering these and
all other applicable transactions. This will leave the board of directors
of Homecom with 6 members (including Xx. Xxxxxxxxx and Xx. Xxxxxx).
3. Homecom Proxy
Following the closing of the License and Exchange Agreement, the parties will
work together in good faith to update and cause the filing with the Securities
and Exchange Commission, and the delivery to Homecom stockholders of, a Homecom
Proxy Statement (the "Proxy Statement"). The Proxy Statement will provide that
if the Tulix sale is approved by Homecom stockholders and the transaction
closes, the remaining existing directors of Homecom, except for Xx. Xxxxxxxx,
will not stand for re-election at the Special Meeting of Homecom Stockholder
called for by the Proxy Statement and a full slate of Eurotech designated
directors, to be listed in Proxy Statement, will take office at the closing of
the Tulix Sale and existing officers of Homecom will resign and new officers
appointed. The Proxy Statement will also cover the increase in the authorized
common stock of Homecom, a stock split, the election of the new Eurotech
directors and such other matters as the parties may agree on.
