ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made this 15th day of May,
1998 by and between CONVERGENT COMMUNICATIONS SERVICES, INC., a Colorado
corporation ("CCSI") whose address is 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, and HH&H COMMUNICATIONS TECHNOLOGIES, INC., a Texas
corporation ("CTI"), whose address is 0000 Xxxx Xxxxxx X, Xxxxx Xxxxxxx, Xxxxx
00000 (hereinafter collectively referred to as "the parties").
RECITALS
A. CCSI is desirous of buying certain of CTI's assets and CTI is desirous
of selling certain of CTI's assets to CCSI.
NOW, THEREFORE, in Purchase Price of the mutual promises and covenants
contained herein, both parties agree as follows:
1. IDENTIFICATION AND TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES.
1.1 IDENTIFICATION OF ASSETS TO BE TRANSFERRED TO CCSI. The assets
described in EXHIBIT 1.1 shall collectively constitute the "Identified Assets."
1.2 ASSUMPTION OF CERTAIN LIABILITIES. Except for those liabilities
set forth on EXHIBIT 1.2 (the "Assumed Liabilities"), which are hereby expressly
assumed by CCSI, CCSI shall assume no other liabilities and obligations relating
to the Identified Assets; and further provided that CCSI shall not assume any
Assumed Liabilities (excluding operating expenses related to utilities,
telephone charges yellow page ads and office rent) in excess of the accounts
receivable and cash included as part of the Identified Assets. CTI agrees to
hold CCSI harmless from any other liabilities or obligations incurred by CTI,
including, without limitation, any Assumed Liabilities in excess of the accounts
receivable and cash included as part of the Identified Assets, or accruing with
respect to the Identified Assets, and all other assets of CTI, with respect to
any period prior to and including the Closing Date and from liabilities or
obligations with respect to all other assets of CTI with respect to any period
after the Closing Date.
1.3 TRANSFER OF IDENTIFIED ASSETS. CTI shall take all actions
reasonably requested by CCSI to transfer the Identified Assets to CCSI
including, but not limited to, the execution of a xxxx of sale and assignment in
the form attached hereto as EXHIBIT 1.3 ("Xxxx of Sale"), and all other bills of
sale, assignment and transfer forms, amendments, applications to governmental
agencies, licenses, and reports reasonably required by CCSI of CTI to effectuate
the transfer of the Identified Assets.
1.4 RECONCILIATION OF PRE-CLOSING IDENTIFIED ASSETS. The parties
acknowledge that effective May 11, 1998 ("Reconciliation Date") certain sales to
CTI's customers (which may include deposits received and accounts receivable
accrued from those customer and which would ordinarily become a part of the
Identified Assets to be transferred to CCSI) may be transferred to
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CCSI prior to Closing ("Pre-Closing Identified Assets"). The parties agree to
cooperate in the preparation of a reconciliation schedule ("Reconciliation
Schedule") showing the obligations and benefits accruing to each party as of the
Reconciliation Date with regard to the Pre-Closing Identified Assets. The
Reconciliation Schedule shall be delivered at the Closing.
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the
purchase and sale of the Identified Assets shall be equal to Three Hundred Fifty
Thousand Dollars ($350,000) and shall be paid by CCSI to CTI on the Closing
Date as follows:
2.1 XXXXXXX MONEY. CCSI has paid CTI a deposit in the amount of
$10,000 on or about May 14, 1998, receipt of which is hereby acknowledged
("Xxxxxxx Money).
2.2 CASH PAYMENT. CCSI will pay CTI $190,000 by wire transfer at the
Closing.
2.3 CONVERGENT STOCK. CCSI's parent company, namely Convergent
Communications, Inc., a Colorado corporation ("Convergent") will deliver a
treasury request to Convergent's transfer agent requesting the issuance of
thirty thousand (30,000) shares of Convergent's no par value common stock
("Convergent Stock") to CTI at the Closing. The parties agree that the value of
the Convergent Stock is $5.00 per share.
3. CLOSING DATE DOCUMENTATION. In addition to the other documents
required hereunder, as a predicate to the closing of the transactions hereunder,
CTI shall supply CCSI with the following on or before the Closing Date.
3.1 TRANSFER DOCUMENTS. Transfer Documents, in form and substance
reasonably satisfactory to CCSI and CTI, including, without limitation, the Xxxx
of Sale, to effect the transfer of the Identified Assets to CCSI pursuant to the
terms of this Agreement.
3.2 CONSENTS. Any and all consents, in a form and substance
reasonably satisfactory to CCSI and CTI, from any person or entity not a party
to this Agreement whose consent is necessary or desirable for the execution and
performance of this Agreement by CCSI and CTI.
3.3 COMPLIANCE CERTIFICATE. All corporate and other proceedings,
including approval by the board of directors and shareholders of CTI, required
to be taken by or on the part of CTI to authorize CTI to execute, deliver and
carry out this Agreement shall have been duly and properly taken. CCSI shall
have received a certificate of authorized individuals of CTI in the form of
EXHIBIT 3.3, dated as of the Closing, certifying to the fulfillment of the
conditions specified in this Agreement.
3.4 RECONCILIATION SCHEDULE. The Reconciliation Schedule
contemplated by Section 1.4.
3.5 BULK SALES LAWS. CTI shall be responsible for compliance with
all applicable bulk sales laws relating to the purchase and sale of the
Identified Assets. Evidence of compliance
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with any such laws, in form and substance reasonably satisfactory to CCSI, shall
be delivered to CCSI on the Closing Date, if applicable.
4. REPRESENTATIONS OF CTI. As material representations to induce CCSI to
enter into this transaction, CTI represents to CCSI as follows:
4.1 OWNERSHIP. Except as shown on EXHIBIT 4.1, the Identified Assets
transferred pursuant hereto are owned by CTI, free and clear of all liens,
encumbrances, agreements and claims with or of third parties.
4.2 CORPORATE STATUS AND AUTHORITY. CTI is a corporation duly
organized and existing in good standing under the laws of the state of its
incorporation and is fully authorized to carry on its business as it is now
being conducted and to enter into the transactions herein set forth. CTI is
duly qualified to transact business as a foreign corporation and is in good
standing in each of the jurisdictions requiring such qualification whether by
reason of the ownership or leasing of its properties or the conduct or nature of
its business. All board of directors and shareholder approvals required have
been secured to the extent required. Except as set forth on EXHIBIT 4.2, no
consents, approvals, or filings from or with any person or entity other than
those delivered to CCSI herewith are necessary for the execution, delivery and
performance by CTI of this Agreement and the transactions contemplated hereby.
CTI has all requisite power and authority to execute this Agreement and carry
out all the actions required of it herein. This Agreement is the legal, valid
and binding agreement of CTI enforceable against CTI in accordance with its
terms.
4.3 PENDING CLAIMS. CTI is not presently subject to any claim which
would materially and adversely affect the Identified Assets such as:
litigation; disclosed or undisclosed claims or liabilities; or pending
governmental investigations or complaints of any kind or description. The
Identified Assets are subject to no contracts, claims or liens other than as set
forth in EXHIBIT 4.3.
4.4 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of and compliance with this Agreement, or any agreement or
instrument contemplated hereby, by CTI will not result in any violation of its
Articles of Incorporation or by-laws or be in material conflict with or
constitute a default in any material respect under any term of any agreement,
instrument, judgment, decree, or, to the knowledge of CTI, any order, statute,
rule or governmental regulation applicable to CTI, or result in the creation of
any lien, charge or encumbrance of any kind or nature on the Identified Assets.
4.5 UNDISCLOSED LIABILITIES. CTI does not have, with respect to its
current operation, any material and undisclosed liabilities or obligations of
any nature affecting the Identified Assets.
4.6 ENVIRONMENTAL AND REGULATORY MATTERS. To the best knowledge of
CTI, CTI has duly complied with, and the operation of its business, equipment
and other assets in the facilities owned or leased by CTI and its subsidiaries
are in compliance with the provisions of all applicable federal, state and local
environmental, health and safety laws, statutes, ordinance, rules and
regulations of any governmental or quasi governmental authority relating to (i)
discharges to surface
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water or ground water, (ii) solid or liquid waste disposal, (iii) the use,
storage, generation, handling, transport, discharge, release or disposal of
toxic or hazardous substances or waste, (iv) the emission of non-ionizing
electromagnetic radiation, or (v) other environmental, health or safety matters,
including, without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Authorization Act of 1986; the Occupational Safety and Health Act; the
Resource Conservation and Recovery Act of 1976, as amended; the Federal Water
Pollution Control Act of 1970; the Safe Drinking Water Act of 1974; the Toxic
Substances Control Act of 1976; the Emergency Planning and Community Right to
Know Act of 1986, as amended; and the Clean Air Act, as amended (collectively
"Environmental and Health Laws"), or any law, rule or regulation of any state
public utility commission, the Federal Communications Commission or the Federal
Communications Act, as amended (collectively "Regulatory Laws"). To the best
knowledge of CTI, there are no investigations, administrative proceedings,
judicial actions, orders, claims or notices which are pending, anticipated or
threatened against CTI, relating to violations of the Environmental and Health
Laws and the Regulatory Laws. CTI has not received a notice of, and does not
know or have any reason to suspect, any facts which might constitute a violation
of any Environmental or Health Laws which relate to the use, ownership or
occupancy of any property or facilities used by CTI in connection with the
operation of its business or any activity of CTI's business which would result
in a violation or threaten violation of any Environmental or Health Laws or the
Regulatory Laws.
4.7 TAX LIENS. There are no tax liens on any of the Identified
Assets. CTI has duly filed all federal, state and local tax returns and reports
(including, without limitation, returns for estimated tax), and all returns and
reports for any other governmental units or taxing authorities having
jurisdiction with respect to any taxes required to be paid by CTI, except where
extensions have been applied for and granted, and where such extensions have not
expired; all such returns and all such reports show the correct and proper
amounts due, and all taxes shown on such returns and reports and all assessments
received by CTI have been paid to the extent that such taxes or any estimates
thereon have become due. From the date of this Agreement until the Closing, CTI
shall pay all taxes as and when the same become due and payable.
4.8 LIQUIDATION. CTI has not adopted any plan of liquidation or
dissolution affecting the Identified Assets.
4.9 ACCURACY OF DOCUMENTS AND INFORMATION. The copies of all
instruments, agreements, other documents and written information set forth as,
or referenced in, Exhibits and attachments to this Agreement or specifically
required to be furnished pursuant to this Agreement to CCSI by CTI are and will
be complete and correct in all material respects. There have been no material
changes, and will be no material changes as of the Closing Date, in the
information set forth in the Exhibits and attachments between the date of the
Exhibits and attachments and the date of this Agreement. No representations or
warranties made by CTI in this Agreement, nor any document, written information,
statement, financial statement, certificate, Exhibit or attachment furnished to
CCSI pursuant to the requirements of this Agreement contains any untrue
statement of a material fact, or omits to state a material fact necessary to
make the statements or facts contained therein not misleading. There is no fact
which materially and adversely affects the Identified Assets known to
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CTI which has not been expressly and fully set forth in this Agreement or the
Exhibits and attachments hereto.
4.10 DISCLOSURE. No representation or warranty whether contained in
this Agreement or in any certificates provided to CCSI pursuant to this
Agreement contains or will contain any materially untrue statement or omits, or
will omit, to state a material fact necessary to make any such statement(s) not
misleading.
4.11 STOCK REPRESENTATIONS. CTI (i) intends to acquire the shares of
Convergent Stock solely for the purpose of investment and not for the resale and
distribution thereof, and has no present intention to offer, sell, pledge,
hypothecate, assign or otherwise dispose of the same except in accordance with
this Section 4.11; (ii) understands and acknowledges that the sale of such
shares of Convergent Stock will not be registered under the Securities Act of
1933, as amended (the "Securities Act"), the Convergent Stock being acquired
pursuant to this Agreement constitute "restricted securities" as that term is
defined under Rule 144 promulgated under the Securities Act and may not be sold
except pursuant to a registration statement under the Securities Act or pursuant
to an exemption available under federal and applicable state Securities laws,
and such shares may be required to be held indefinitely unless the shares are
subsequently registered under the Securities Act or an exemption from such
registration is available, (iii) agrees that it will not offer, sell, pledge,
hypothecate, transfer, assign or otherwise dispose of any such shares of
Convergent Stock unless such shares and such offer, pledge, hypothecation,
transfer, assignment or other disposition shall be registered or exempt from
registration under the Securities Act and shall comply with all applicable
federal and state securities laws, and (iv) agrees and acknowledges that the
stock certificates representing the shares of Convergent Stock will contain a
legend restricting the transferability of the shares as provided herein and that
stop order instructions may be imposed by Convergent's transfer agent
restricting the transferability of the Convergent Stock.
4.12 ACCURACY OF REPRESENTATIONS. In the event that any of the
foregoing representations or warranties should be inaccurate as of the Closing
Date, CTI shall have thirty (30) days after written notice from CCSI in which to
cure such inaccuracy.
5. CTI'S EMPLOYEES AND CUSTOMERS. CCSI is not a successor business to
CTI nor any operation of CTI. CCSI shall not be liable for any obligations
which CTI has on any contracts including employment contracts, existing or
future workers compensation claims, employment discrimination claims, unfair
labor practice claims, or compensation claims except those obligations, if any,
specifically identified on EXHIBITS 1.1 and 1.2 and any obligations of which
CCSI hereby specifically assumes in writing. CCSI is purchasing the Identified
Assets and Assumed Liabilities only, and it is not taking over any employment
contracts for any employees or any obligations under agreements entered into by
CTI in its own right and CCSI shall not be liable for any sums owed to customers
by CTI.
6. REPRESENTATIONS OF CCSI. As material representations to induce CTI to
enter into this transactions, CCSI represents to CTI as follows:
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6.1 CORPORATE STATUS AND AUTHORITY. CCSI is a corporation duly
organized and existing in good standing under the laws of the state of its
incorporation and is fully authorized to carry on its business as it is now
being conducted and to enter into the transactions herein set forth. CCSI is
duly qualified to transact business as a foreign corporation and is in good
standing in each of the jurisdictions requiring such qualification whether by
reason of the ownership or leasing of its properties or the conduct or nature of
its business. All corporate approvals required have been secured. No consents,
approvals, or filings from or with any person or entity other than those
delivered to CTI herewith are necessary for the execution, delivery and
performance by CCSI of this Agreement and the transactions contemplated hereby.
CCSI has all requisite power and authority to execute this Agreement and carry
out all the actions required of it herein. This Agreement is the legal, valid
and binding agreement of CCSI enforceable against CCSI in accordance with its
terms.
6.2 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of and compliance with this Agreement, or any agreement or
instrument contemplated hereby, by CCSI will not result in any violation of its
Certificate of Incorporation or Bylaws or be in material conflict with or
constitute a default in any material respect under any term of any agreement,
instrument, judgment, decree, or, to the knowledge of CCSI, any order, statute,
rule or governmental regulation applicable to CCSI.
6.3 DISCLOSURE. No representation or warranty whether contained in
this Agreement or in any certificates provided to CTI pursuant to this Agreement
contains or will contain any materially untrue statement or omits, or will omit,
to state a material fact necessary to make any such statement(s) not misleading.
7. OBLIGATIONS PRIOR TO THE CLOSING DATE. The following conditions and
obligations shall be satisfactorily performed prior to the Closing Date.
7.1 GOVERNMENTAL AGENCY APPROVALS. Any governmental agencies whose
approval is required prior to the consummation of the transactions contemplated
by this Agreement shall have approved such sale on the terms contemplated by
this Agreement.
7.2 {Intentionally Deleted}
7.3 PERFORMANCE. Both parties shall have executed and delivered to
the other party this Agreement and the other documents required hereby and shall
have performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by the
parties prior to the Closing Date.
7.4 OPINION OF COUNSEL FOR CTI. CCSI shall have been furnished with
an opinion of CTI's counsel, dated the date of the Closing, in substantially the
form of EXHIBIT 7.4 attached hereto.
7.5 CONSENTS. All other consents to the purchase and sale of the
Identified Assets which are necessary or required to be obtained, in CCSI's
reasonable discretion, including, without
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limitation, those from CTI's customers, suppliers and vendors, shall have been
obtained by CTI and delivered to CCSI.
7.6 NO ACTION TO PREVENT COMPLETION. There shall not have been
instituted and be continuing or threatened any claim, action or proceeding that
would materially adversely affect the Identified Assets, nor shall there have
been instituted and be continuing or threatened any claim, action or proceeding
by or before any court or other governmental body to restrain, prohibit or
invalidate, or to obtain damages in respect of, the transactions contemplated by
this Agreement or which might materially and adversely affect the rights of
CCSI.
8. CONDUCT OF BUSINESS AND CERTAIN COVENANTS. Prior to the Closing Date,
CTI agrees that, with respect only to the Identified Assets, unless otherwise
specifically provided for in this Agreement or unless otherwise consented to in
writing by CCSI:
8.1 ORDINARY COURSE. CTI shall conduct its business in the ordinary
course.
8.2 CERTAIN CHANGES. CTI shall not: (i) grant any security interest
to or in connection with the Identified Assets; (ii) make or offer to make any
disposition, including any sale or transfer, of any of the Identified Assets;
(iii) make any change in any method of accounting, billing, rates, rate
structure, tariffs, payment of fees and expenses related in any way to the
Identified Assets; and, (iv) enter into any material contract, agreement, or
commitment relating to the Identified Assets.
9. CLOSING DATE. Closing will occur within three (3) business days after
the completion of due diligence and the receipt of any and all necessary board,
shareholder, governmental or other approvals, but not later than May 30, 1998,
unless extended by mutual agreement of the parties, and will take place at the
offices of CCSI.
10. NOTICES. Notices required or allowed hereunder shall be deemed given
when hand delivered or when deposited in the United States mail, postage
prepaid, return receipt requested, to the parties at the following addresses:
If to CCSI: Convergent Communications Services, Inc.
00 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Legal Department
If to CTI: Communications Technologies, Inc.
0000 Xxxx Xxxxxx X
Xxxxx Xxxxxxx, Xxxxx 00000
Attn.: President
or to such other addresses as may from time to time be supplied.
11. INDEMNITY.
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11.1 CTI'S INDEMNIFICATION. Notwithstanding the Closing and
regardless of any investigation at any time made by or on behalf of CCSI or of
any information CCSI may have in respect thereof, CTI will indemnify, defend and
save and hold CCSI harmless from and against any costs, expenses, damages,
liabilities, losses or deficiencies, including, without limitation, reasonable
attorneys' fees and other costs and expenses incident to any suit, action or
proceeding (collectively "Losses") suffered or incurred by CCSI arising out of
or resulting from, and will pay CCSI on demand the full amount of any such
amounts which CCSI may pay or may become obligated to pay in respect of:
(a) any material inaccuracy in any representation or document
delivered under or pursuant to this Agreement or the material breach of any
warranty made by CTI in or pursuant to this Agreement;
(b) any misrepresentations in or omission from any Exhibit,
schedule, or other attachment to this Agreement;
(c) any failure by CTI duly to perform or observe any term,
provision, covenant, or agreement in this Agreement to be performed or observed
on the part of CTI;
(d) acts or omissions in connection with business activities
conducted or to be conducted by CTI, including, without limitation, the sale of
goods or provision of services, prior to the Closing Date; or
(e) any action, suit, investigation, proceeding, demand,
assessment, audit, judgment and claim, including any employment-related claim,
arising out of the foregoing (collectively "Claims"), even though such Claims
may not be filed or come to light until after the Closing Date.
CCSI hereby covenants and agrees to immediately provide to CTI any and
all notifications or other correspondence it receives related to matters which
may affect this indemnity and hereby agrees to allow CTI to defend any and all
actions affecting this indemnity and shall not settle any action or dispute
affecting this indemnity without obtaining the prior written consent of CTI.
Upon such prior written consent, CCSI may defend against, and consent to the
entry of any judgment or enter into any settlement with respect to such Claims
in any manner it may deem to be appropriate and CTI shall reimburse CCSI
promptly for the acts of defending against such Claims and will otherwise remain
responsible for any Loss which CCSI may suffer from, arising out of, relating to
or caused by such Claims to the full extent provided in this Section.
All statements of fact contained in any written statement, certificate,
schedule or other document delivered to CCSI by or on behalf of CTI shall be
deemed representations and warranties by CTI hereunder.
11.2 CCSI'S INDEMNIFICATION. CCSI agrees that notwithstanding the
Closing and regardless of any investigation at any time made by or on behalf of
CTI or any information CTI may have in respect thereof, CCSI will indemnify,
defend and save and hold CTI harmless from and
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against any Losses suffered or incurred by CTI arising out of or resulting from,
and will pay CTI on demand the full amount of any such amounts which CTI may pay
or may become obligated to pay in respect of:
(a) any material inaccuracy in any representation or the breach
of any warranty made by CCSI in or pursuant to this Agreement;
(b) any failure by CCSI duly to perform or observe any item,
provision, covenant or agreement in this Agreement to be performed or observed
on the part of CCSI, as applicable; or
(c) acts or omissions in connection with business activities
conducted or to be conducted by CCSI, including, without limitation, the sale of
goods or provision of services, following the Closing Date.
12. NO THIRD PARTY BENEFICIARIES. This Agreement shall be for and inure
to the benefit of CCSI and CTI and there shall be no third party beneficiaries
hereto. Specifically excluded from any beneficial status hereunder are CTI's
creditors, employees, customers and suppliers.
13. GOVERNING LAW AND FORUM. This Agreement shall be construed under the
laws of the state of Colorado, without regard to its choice of law provisions
(except as to the applicable bulk sales laws, where it is agreed that to the
extent the parties' ability to so designate is restricted, the laws of the
applicable state shall apply) and any action to enforce, construe or modify this
Agreement shall be brought in an appropriate court of competent jurisdiction in
Colorado.
14. BINDING NATURE. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns. This Agreement shall not be assigned by either party without the
express written consent of the other party.
15. PARAGRAPH HEADINGS. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
16. TIME OF THE ESSENCE. Time is of the essence of this Agreement and the
obligations of the parties hereunder.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, indemnifications and agreements of CCSI and CTI provided herein
shall survive the Closing for a period of two (2) years following the Closing
Date.
18. WAIVER. The failure of either of the parties hereto to enforce any
provision of this Agreement shall not be construed to be a waiver of such
provision or of the right thereafter to enforce the same, and no waiver of any
breach shall be construed as an agreement to waive any subsequent breach of the
same or any other provisions.
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19. EXPENSES. Except as expressly provided herein, each party will pay
their own expenses, including fees of their respective attorneys, accountants
and consultants in connection with this transaction.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
21. NO BROKERS OR AGENTS. CTI represents that it has not used the
services of any brokers or agents in the negotiation or consummation of this
Agreement such that any commissions or fees are due to any such broker or agent
based upon the transactions herein set forth. CCSI represents that it has not
used the services of any brokers or agents in the negotiation or consummation of
this Agreement such that any commissions or fees are due to any such broker or
agent based upon the transactions herein set forth. Should any such claim be
advanced by any such foregoing broker or agent, it is agreed that the
satisfaction of such claim shall be the sole responsibility of the party which
it is claimed utilized the services of such broker or agent.
22. CONFIDENTIALITY. CTI and CCSI agree to not disclose the terms and
conditions of this Agreement except (i) as may be required to fulfill
obligations hereunder; (ii) as may be required by law, regulation, custom or
judicial or administrative proceeding; or, (iii) as and to the extent such
information becomes known to the general public through no fault of either party
in tangible, demonstrable form. Both parties shall take reasonable precautions
to insure that their respective employers, employees and agents also treat such
information in a confidential manner. The obligations of confidentiality shall
survive the consummation of the transactions herein set forth.
23. TAXES. CCSI shall be responsible for and shall pay all federal, state
and municipal taxes or other charges, if any, on the sale of the Identified
Assets except income taxes payable by CTI on the Purchase Price.
24. SEVERABILITY. It is agreed and understood that should any of the
provisions of this Agreement be determined by any court of competent
jurisdiction to be invalid or void for any reason, then the parties consent that
this Agreement shall be amended retroactive to the date of its execution to
include all terms and conditions other than those found by the court to be
invalid or void in order to give effect to the parties intent.
25. PUBLIC ANNOUNCEMENT. Each party acknowledges and agrees that either
may make a public announcement of the transactions contemplated by this
Agreement any time after the date of execution of this Agreement provided that
the other party approves the form and substance of any such public announcement
prior to its release, which approval shall not be unreasonably withheld or
delayed.
26. FORCE MAJEURE. This Agreement and the obligations of the parties
hereunder shall not be impaired or invalidated and a party shall not be in
breach hereof if such party is unable to fulfill any of its obligations
hereunder or is delayed in doing so by reason of strike, labor troubles, acts of
God or any other cause beyond the reasonable control of such party.
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27. ATTACHMENTS. All Exhibits and attachments to this Agreement are made
a part of this Agreement by this reference. Any information disclosed in an
Exhibit or attachment shall be deemed to be disclosed and incorporated into any
other Exhibit or attachment where such disclosure would be appropriate.
28. ADDITIONAL DOCUMENTATION. CTI shall from time to time, subsequent to
Closing, at CCSI's request and without further Purchase Price, execute and
deliver such other instruments of conveyance, assignment and transfer and take
such other action as CCSI reasonably may require in order more effectively to
effectuate the purchase of the Identified Assets.
29. ARBITRATION. Notwithstanding anything to the contrary herein, any
dispute arising pursuant to or in any way related to this Agreement or the
transactions contemplated hereby shall be settled by arbitration at a mutually
agreed upon location in Denver, Colorado; provided, however, that nothing in
this Section shall restrict the right of any party to apply to a court of
competent jurisdiction for emergency relief pending final determination of a
claim by arbitration in accordance with this Section. All arbitration shall be
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, in force at the time of any such dispute. Each party
shall pay its own expenses associated with such arbitration, provided that the
prevailing party in any arbitration shall be entitled to reimbursement of
reasonable attorneys' fees and expenses (including, without limitation,
arbitration expenses) relating to such arbitration. The decision of the
arbitrators, based upon written findings of fact and conclusions of law, shall
be binding upon the parties; and judgment in accordance with that decision may
be entered in any court having jurisdiction thereof. In no event shall the
arbitrators be authorized to grant any punitive, incidental or consequential
damages of any nature or kind whatsoever.
30. TERMINATION.
30.1 This Agreement may be terminated, and the transactions
contemplated hereby abandoned (i) by the mutual consent of CCSI and CTI; (ii) by
CCSI or CTI at any time after May 30, 1998 (or such later date as shall have
been agreed to in writing by the parties) if the conditions and obligations set
forth in this Agreement shall not have been fulfilled (or waived by the party
entitled to the benefit thereof) by such date, with no further liability on the
part of any party hereto; provided, however, that no party shall be released
from liability hereunder if any such condition is not fulfilled by reason of the
breach by such party of its obligations hereunder.
30.2 Notwithstanding anything contained in the foregoing to the
contrary, if this Agreement is terminated by CCSI due to a failure of CTI to
perform the conditions precedent to the Closing hereunder, CTI shall immediately
refund to CCSI all amounts paid to CTI, including, without limitation, the
Xxxxxxx Money.
31. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the
Exhibits, schedules and attachments hereto, contains the entire understanding
between the parties hereto with respect to the subject matter hereof and no
prior or collateral promises or conditions in connection with or with respect to
the subject matter hereof not incorporated herein shall be binding upon the
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parties. No modification, extension, renewal, rescission, termination or waiver
of any of the provisions contained herein or any future representation, promise
or condition in connection with the subject matter hereof, shall be binding upon
either of the parties hereto unless made in writing and duly executed by both
the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the day and year first above
written.
CONVERGENT COMMUNICATIONS SERVICES, INC.,
a Colorado corporation
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Xxxx X. Xxxxx, Chief Executive Officer
HH&H COMMUNICATIONS TECHNOLOGIES, INC.,
a Texas corporation
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxxxx, President
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