AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
COLUMBIA CAPITAL CORP.,
AND
FIRST INDEPENDENT COMPUTERS, INC.
TABLE OF CONTENTS
1. Plan of Reorganization. . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Pre-Closing Events. . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Exchange of Securities. . . . . . . . . . . . . . . . . . . . . . . . 2
5. Post Acquisition Events . . . . . . . . . . . . . . . . . . . . . . . 3
6. Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. Delivery of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 3
8. Representations of FIC Shareholders . . . . . . . . . . . . . . . . . 3
9. Representations of FIC. . . . . . . . . . . . . . . . . . . . . . . . 4
10. Representations of Columbia and Xxxxx . . . . . . . . . . . . . . . . 5
11. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. Conditions Precedent to the Obligations of FIC. . . . . . . . . . . . 7
13. Conditions Precedent to the Obligations of Columbia . . . . . . . . . 9
14. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . .10
15. Nature and Survival of Representations. . . . . . . . . . . . . . . .10
16. Documents at Closing. . . . . . . . . . . . . . . . . . . . . . . . .10
17. Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
18. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Signature Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Exhibit A - FIC Stockholder Schedule
Exhibit B - Amendment to Certificate of Incorporation
Exhibit C - Investment Letter
(i)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement") is
entered into effective as of this ____ day of August, 1997, by and among
Columbia Capital Corp., a Delaware corporation (hereinafter "Columbia"); Xxxx
Xxxxx an officer, director and principal shareholder of Columbia (hereinafter
"Xxxxx"); First Independent Computers, Inc., a Texas corporation (hereinafter
"FIC"), and the owners of all the outstanding shares of common stock of FIC
(hereinafter the "FIC Stockholders").
RECITALS:
WHEREAS, the FIC Stockholders own all of the issued and outstanding common
stock of FIC which comprises 1,000 shares (the "FIC Common Stock"). Columbia
desires to acquire the FIC Common Stock solely in exchange for voting common
stock of Columbia, making FIC a wholly-owned subsidiary of Columbia; and
WHEREAS, the FIC Stockholders (as set forth on the attached Exhibit "A")
desire to acquire voting common stock of Columbia in exchange for the FIC Common
Stock, as more full set forth herein.
NOW THEREFORE, for the mutual consideration set out herein, and other good
and valuable consideration, the receipt of and legal sufficiency of which is
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. PLAN OF REORGANIZATION. It is hereby agreed that all of the FIC
Common Stock shall be acquired by Columbia in exchange solely for Columbia
common voting stock (the "Columbia Shares"). It is the intention of the
parties hereto that all of the issued and outstanding shares of capital stock
of FIC shall be acquired by Columbia in exchange solely for Columbia common
voting stock and that this entire transaction qualify as an organizational
exchange under Section 351 of the Internal Revenue Code of 1986, as amended,
and related or other applicable sections thereunder and/or a corporate
reorganization under Section 368(a)(1)(B).
2. EXCHANGE OF SHARES. Columbia and FIC Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the FIC Common Stock
shall be delivered at Closing to Columbia in exchange for the Columbia Shares,
after giving effect to a 1 for 2 reverse stock split as to all presently
outstanding shares of Columbia common stock, as follows:
(a) The Columbia Shares will, on the Closing Date or at the Closing, be
delivered to FIC Stockholders in exchange for their FIC Common Stock on the
basis of 11,250 Columbia Shares for each outstanding share of the FIC Common
Stock.
(b) At Closing, Columbia shall, subject to the conditions set forth
herein, issue an aggregate of 11,250,000 shares of Columbia common stock to the
FIC Stockholders. The 11,250,000 shares and all future references herein to the
Columbia Shares are stated after giving effect to a 1 for 2 reverse stock split
of the currently outstanding shares of common stock of Columbia (the "Columbia
Reverse Stock Split").
(c) Each FIC Stockholder shall execute this Agreement.
(d) Unless otherwise agreed by Columbia and FIC this transaction shall
close only in the event Columbia is able to acquire all of the outstanding FIC
Common Stock.
3. PRE-CLOSING EVENTS. The Closing is subject to the completion of the
following:
(a) Columbia shall have authorized 50,000,000 shares of $.001 par value
common stock an 5,000,000 shares of $.001 par value preferred stock. The
preferred stock shall be subject to issuance in such series and with such
rights, preferences and designations as determined in the sole discretion of the
board of directors.
(b) Columbia shall have effectuated the Columbia Reverse Stock Split at or
prior to Closing, and shall have 1,250,000 shares of its common stock issued and
outstanding and no other shares of capital stock issued or outstanding.
(c) Columbia shall demonstrate to the reasonable satisfaction of FIC that
it has no material assets and no liabilities contingent or fixed.
4. EXCHANGE OF SECURITIES. As of the Closing Date each of the following
shall occur:
(a) Each share of FIC Common Stock issued and outstanding immediately
prior to the Closing Date shall be exchanged for 11,250 shares of Columbia
common stock. All such outstanding shares of FIC Common Stock shall be deemed,
after Closing, to be owned by Columbia. The holders of such certificates
previously evidencing shares of FIC Common Stock outstanding immediately prior
to the Closing Date shall cease to have any rights with respect to such shares
of FIC Common Stock except as otherwise provided herein or by law;
(b) Any shares of FIC Common Stock held in the treasury of FIC immediately
prior to the Closing Date shall automatically be canceled and extinguished
without any conversion thereof and no payment shall be made with respect
thereto;
(c) The 1,250,000 shares of Columbia common stock previously issued and
outstanding prior to the Closing will remain outstanding.
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5. POST-ACQUISITION EVENTS. Upon Closing, the following shall be
accomplished:
(a) Columbia shall file an amendment to its certificate of incorporation
with the Secretary of State of the State of Delaware in substantially the form
attached hereto as Exhibit "B" effecting an amendment to its certificate of
incorporation and to accomplish the Columbia Reverse Stock Split set forth in
the attached Exhibit "B".
(b) The resignation of the existing Columbia officers and directors and
appointment of new officers and directors as described in Section 12(f) hereof.
6. OTHER MATTERS.
(a) Except for the recapitalization of Columbia, including the Columbia
Reverse Stock Split, there shall be no stock dividend, stock split,
recapitalization, or exchange of shares with respect to or rights issued in
respect of, Columbia's capital stock after the date hereof and there shall be no
dividends paid on Columbia's capital stock after the date hereof, in each case
through and including the Closing Date.
(b) FIC shall have received all requisite director and shareholder
approval of all matters set forth herein, and no shareholder of FIC shall have
exercised any dissenters rights under applicable corporate law.
(c) Columbia shall have received all requisite shareholder approval of the
matters set forth herein.
7. DELIVERY OF SHARES. On or as soon as practicable after the Closing
Date, FIC will use its best efforts to cause the FIC Stockholders to surrender
for cancellation certificates representing their shares of FIC Common Stock,
against delivery of certificates representing the Columbia Shares for which the
shares of FIC Common Stock are to be exchanged at Closing.
8. REPRESENTATIONS OF FIC STOCKHOLDERS. FIC Stockholders hereby
represent and warrant each only as to its own FIC Common Stock, effective this
date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the FIC Common Stock is
free from claims, liens, or other encumbrances, and at the Closing Date FIC
Stockholders will have good title and the unqualified right to transfer and
dispose of such FIC Common Stock.
(b) Each FIC Stockholder, respectively, is the sole owner of the issued
and outstanding FIC Common Stock as set forth in Exhibit "A";
(c) No FIC Stockholder has the present intent to sell or dispose of the
Columbia Shares and no FIC Stockholder is under a binding obligation, formal
commitment, or existing plan to sell or otherwise dispose of the Columbia
Shares.
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9. REPRESENTATIONS OF FIC. FIC hereby represents and warrants as follows,
which warranties and representations shall also be true as of the Closing Date:
(a) Except as noted on Exhibit "A", the FIC Stockholders listed on the
attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of FIC.
(b) FIC has no outstanding or authorized capital stock, warrants, options
or convertible securities other than as described in Exhibit "A", attached
hereto.
(c) The audited financial statements as of and for the four months ended
April 30, 1997, and years ended December 31, 1996 and 1995, which have been
delivered to Columbia (hereinafter referred to as the "FIC Financial
Statements") are complete and accurate and fairly present the financial
condition of FIC as of the dates thereof and the results of its operations for
the periods covered; subject to normal year-end adjustments in the case of the
April 30, 1997 statements. There are no material liabilities or obligations,
either fixed or contingent, not disclosed in the FIC Financial Statements or in
any exhibit thereto or notes thereto other than contracts or obligations in the
ordinary course of business; and no such contracts or obligations in the
ordinary course of business constitute liens or other liabilities which
materially alter the financial condition of FIC as reflected in the FIC
Financial Statements. FIC has good title to all assets shown on the FIC
Financial Statements subject only to dispositions and other transactions in the
ordinary course of business, the disclosures set forth therein and liens and
encumbrances of record. The FIC Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
(except as may be indicated therein or in the notes thereto).
(d) Since the date of the FIC Financial Statements, there have not been
any material adverse changes in the financial position of FIC except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of FIC.
(e) FIC is not a party to any material pending litigation or, to its best
knowledge, any governmental investigation or proceeding, not reflected in the
FIC Financial Statements, and to its best knowledge, no material litigation,
claims, assessments or any governmental proceedings are threatened against FIC.
(f) FIC is in good standing in its state of incorporation, and is in good
standing and duly qualified to do business in each state where required to be so
qualified except where the failure to so qualify would have no material negative
impact on FIC.
(g) FIC has (or, by the Closing Date, will have filed) all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed and has (or will have) paid or made adequate provisions for
all taxes or assessments which have become due as of the Closing Date.
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(h) FIC has not materially breached any material agreement to which it is
a party. FIC has previously given Columbia copies or access thereto of all
material contracts, commitments and/or agreements to which FIC is a party
including all relationships or dealings with related parties or affiliates.
(i) FIC has no subsidiary corporations.
(j) FIC has made its corporate financial records, minute books, and other
corporate documents and records available for review to present management of
Columbia prior to the Closing Date, during reasonable business hours and on
reasonable notice.
(k) The execution of this Agreement does not materially violate or breach
any material agreement or contract to which FIC is a party and has been duly
authorized by all appropriate and necessary corporate action and FIC, to the
extent required, has obtained all necessary approvals or consents required by
any agreement to which FIC is a party.
(l) All information regarding FIC which is set forth in its Confidential
Business Plan dated July 1997, or otherwise delivered to Columbia by FIC for use
in connection with the transaction described herein is true, complete and
accurate in all material respects.
10. REPRESENTATIONS OF COLUMBIA AND XXXXX. Columbia and Xxxxx hereby
jointly and severally represent and warrant as follows, each of which
representations and warranties shall continue to be true as of the Closing Date:
(a) As of the Closing Date, the Columbia Shares, to be issued and
delivered to the FIC Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly and legally issued shares of Columbia
common stock, fully-paid and nonassessable.
(b) Columbia has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by the board of directors of Columbia. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
Columbia is a party and will not violate any judgment, decree, order, writ,
rule, statute, or regulation applicable to Columbia or its properties. The
execution and performance of this Agreement will not violate or conflict with
any provision of the certificate of incorporation or by-laws of Columbia.
(c) Columbia has delivered to FIC a true and complete copy of its audited
financial statements for the years ended December 31, 1996 and 1995, (the
"Columbia Financial Statements"). The Columbia Financial Statements are
complete, accurate and fairly present the financial condition of Columbia as of
the dates thereof and the results of its operations for the periods then ended.
There are no material liabilities or obligations either fixed or contingent not
reflected therein except as provided in subparagraph (e) below. The Columbia
financial
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statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be indicated therein or
in the notes thereto) and fairly present the financial position of Columbia as
of the dates thereof and the results of its operations and changes in financial
position for the periods then ended.
(d) Since December 31, 1996, there have not been any material adverse
changes in the financial condition of Columbia except advances by Xxxxx to pay
reasonable and ordinary expenses in connection with maintaining its corporate
status and pursuing the matters contemplated in this Agreement. Prior to
Closing such advances and all accounts payable and other liabilities of Columbia
shall be paid and satisfied.
(e) Columbia is not a party to or the subject of any pending litigation,
claims, or governmental investigation or proceeding not reflected in the
Columbia Financial Statements or otherwise disclosed herein, and there are no
lawsuits, claims, assessments, investigations, or similar matters, to the best
knowledge of Xxxxx, threatened or contemplated against or affecting Columbia,
its management or its properties.
(f) Columbia is duly organized, validly existing and in good standing
under the laws of the State of Delaware; has the corporate power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material negative impact.
(g) Columbia has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms, or
reports, which are due or required to be filed by it prior to the date hereof,
except where the failure to do so would have no material adverse impact on
Columbia, and has paid or made adequate provision in the Columbia Financial
Statements for the payment of all taxes, fees, or assessments which have or may
become due pursuant to such returns or pursuant to any assessments received.
Columbia is not delinquent or obligated for any tax, penalty, interest,
delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive rights or
commitments of any character relating to the issued or unissued capital stock or
other securities of Columbia, except as contemplated in this agreement.
(i) The corporate financial records, minute books, and other documents and
records of Columbia have been made available to FIC prior to the Closing.
(j) Columbia has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that Columbia has breached, any of
the terms or conditions of any agreements, contracts or commitments to which it
is a party or by which it or its properties is bound. The execution and
performance hereof will not violate any provisions of applicable law or any
agreement to which Columbia is subject. Columbia hereby represents that it is
not a party to any material contract or commitment other than appointment
documents with
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its transfer agent, and that it has disclosed to FIC all relationships or
dealings with related parties or affiliates.
(k) Columbia common stock is eligible for quotation on the NASD Electronic
Bulletin Board and there are no stop orders in effect with respect thereto.
(l) All information regarding Columbia which has been provided to FIC in
the Columbia Information Statement dated August , 1997 or otherwise
disclosed to the public in connection with the transactions contemplated herein,
is true, complete and accurate in all material respects. Columbia and Xxxxx
make no representations or warranties regarding disclosures as to FIC or its
proposed business.
11. CLOSING. The Closing of the transactions contemplated herein shall
take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing shall be no later than September 30, 1997,
unless extended by mutual consent of all parties hereto. The "Closing Date" of
the transactions described herein (the "Acquisition"), shall be that date on
which all conditions set forth herein have been met and the Columbia Shares are
issued in exchange for the FIC Common Stock.
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF FIC. All obligations of
FIC under this Agreement are subject to the fulfillment, prior to or as of the
Closing and/or the Closing Date, as indicated below, of each of the following
conditions:
(a) The representations and warranties by or on behalf of Xxxxx and
Columbia contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material respects at and
as of the Closing and Closing Date as though such representations and warranties
were made at and as of such time.
(b) Columbia shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of Columbia, shall
have approved in accordance with applicable state corporation law the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein.
(d) On or before the Closing Date, Columbia shall have delivered to FIC
certified copies of resolutions of the board of directors and shareholders of
Columbia approving and authorizing the execution, delivery and performance of
this Agreement and authorizing all of the necessary and proper action to enable
Columbia to comply with the terms of this Agreement including the
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election of FIC's nominees to the Board of Directors of Columbia and all matters
outlined herein.
(e) The Acquisition shall be permitted by applicable state law and
Columbia shall have sufficient shares of its capital stock authorized to
complete the Acquisition.
(f) At Closing, the existing officers and directors of Columbia shall have
resigned in writing from all positions as directors and officers of Columbia
upon the election and appointment of the FIC nominees.
(g) At the Closing, all instruments and documents delivered to FIC and FIC
Stockholders pursuant to the provisions hereof shall be reasonably satisfactory
to legal counsel for FIC.
(h) The shares of restricted Columbia capital stock to be issued to FIC
Stockholders at Closing will be validly issued, nonassessable and fully-paid
under Delaware corporation law and will be issued in a nonpublic offering and
isolated transaction in compliance with all federal, state and applicable
securities laws.
(i) FIC shall have received the advice of its tax advisor, if deemed
necessary by FIC, that the exchange of shares is a tax free reorganization as to
the exchanging FIC shareholders.
(j) FIC shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) At the Closing, Columbia shall have delivered to FIC an opinion of its
counsel dated as of the Closing to the effect that:
(i) Columbia is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and delivered
by Columbia and is a valid and binding obligation of Columbia enforceable
in accordance with its terms;
(iii) Columbia each through its board of directors and stockholders
has taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Columbia to FIC and FIC
Stockholders hereunder are valid and binding in accordance with their terms
and vest in FIC Stockholders, as the case may be, all right, title and
interest in and to the Columbia Shares to be issued pursuant to the terms
hereof, and the Columbia Shares when issued will be duly and validly
issued, fully-paid and nonassessable;
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(v) Columbia has the corporate power to execute, deliver and perform
under this Agreement;
(vi) Legal counsel for Columbia is not aware of any liabilities,
claims or lawsuits involving Columbia;
13. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF COLUMBIA. All obligations
of Columbia under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
(a) The representations and warranties by FIC contained in this Agreement
or in any certificate or document delivered pursuant to the provisions hereof
shall be true in all material respects at and as of the Closing as though such
representations and warranties were made at and as of such time.
(b) FIC shall have performed and complied with, in all material respects,
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing;
(c) FIC shall deliver on behalf of the FIC Stockholders a letter commonly
known as an "Investment Letter," signed by each of said shareholders, in
substantially the form attached hereto as Exhibit "C", acknowledging that the
Columbia Shares are being acquired for investment purposes.
(d) FIC shall deliver an opinion of its legal counsel to the effect that:
(i) FIC is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation and is duly qualified
to do business in any jurisdiction where so required except where the
failure to so qualify would have no material adverse impact on FIC;
(ii) This Agreement has been duly authorized, executed and delivered
by FIC.
(iii) The documents executed and delivered by FIC and FIC
Stockholders to Columbia hereunder are valid and binding in accordance with
their terms and vest in Columbia all right, title and interest in and to
the FIC Common Stock, which stock is duly and validly issued, fully-paid
and nonassessable.
14. INDEMNIFICATION. For a period of one year from the Closing, Columbia
and Xxxxx agree to jointly and severally indemnify and hold harmless FIC, and
FIC agrees to indemnify and hold harmless Columbia and Xxxxx, at all times after
the date of this Agreement against and in respect of any liability, damage or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses including attorney's fees incident to any of the foregoing,
resulting from any material misrepresentations made by an indemnifying party
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to an indemnified party, an indemnifying party's breach of covenant or
warranty or an indemnifying party's nonfulfillment of any agreement
hereunder, or from any material misrepresentation in or omission from any
certificate furnished or to be furnished hereunder.
15. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. All of the parties hereto are executing and carrying out
the provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement and not upon
any investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
16. DOCUMENTS AT CLOSING. At the Closing, the following documents shall
be delivered:
(a) FIC will deliver, or will cause to be delivered, to Columbia the
following:
(i) a certificate executed by the President and Secretary of FIC to
the effect that all representations and warranties made by FIC under this
Agreement are true and correct as of the Closing, the same as though
originally given to Columbia on said date;
(ii) a certificate from the state of incorporation of FIC dated at or
about the Closing to the effect that FIC is in good standing under the laws
of said state;
(iii) Investment Letters in the form attached hereto as Exhibit "C"
executed by each FIC Stockholder;
(iv) such other instruments, documents and certificates, if any, as
are required to be delivered pursuant to the provisions of this Agreement;
(v) certified copies of resolutions adopted by the shareholders and
directors of FIC authorizing this transaction; and
(vi) all other items, the delivery of which is a condition precedent
to the obligations of Columbia as set forth herein.
(vii) the legal opinion required by Section 13(d) hereof.
(b) Columbia will deliver or cause to be delivered to FIC:
(i) stock certificates representing the Columbia Shares to be issued
as a part of the stock exchange as described herein;
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(ii) a certificate of the President of Columbia, to the effect that
all representations and warranties of Columbia made under this Agreement
are true and correct as of the Closing, the same as though originally given
to FIC on said date;
(iii) certified copies of resolutions adopted by Columbia's board of
directors and Columbia's Stockholders authorizing the Acquisition and all
related matters;
(iv) certificate from the jurisdiction of incorporation of Columbia
dated at or about the Closing Date that Columbia is in good standing under
the laws of said state;
(v) opinion of Columbia's counsel as described in Section 12(k)
above;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignation of all of the existing officers and directors of
Columbia; and
(viii) all other items, the delivery of which is a condition
precedent to the obligations of FIC, as set forth in Section 13 hereof.
17. FINDER'S FEES. Columbia, represents and warrants to FIC, and FIC
represents and warrants to Columbia that neither of them, or any party acting on
their behalf, has incurred any liabilities, either express or implied, to any
"broker" of "finder" or similar person in connection with this Agreement or any
of the transactions contemplated hereby. In this regard, Columbia, on the one
hand, and FIC on the other hand, will indemnify and hold the other harmless from
any claim, loss, cost or expense whatsoever (including reasonable fees and
disbursements of counsel) from or relating to any such express or implied
liability.
18. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) WAIVER. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
(c) TERMINATION. All obligations hereunder may be terminated at the
discretion of either party's board of directors if (i) the closing conditions
specified in Sections 12 and 13 are not met by September 30, 1997, unless
extended, or (ii) any of the representations and warranties made herein have
been materially breached.
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(d) AMENDMENT. This Agreement may be amended only in writing as agreed to
by all parties hereto.
(e) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first class registered or certified mail, return receipt requested.
(f) HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) ENTIRE AGREEMENT. This Agreement and the attached Exhibits constitute
the entire agreement of the parties covering everything agreed upon or
understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) TIME. Time is of the essence.
(k) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(l) RESPONSIBILITY AND COSTS. All fees, expenses and out-of-pocket costs
and expenses, including, without limitation, fees and disbursements of counsel,
advisors and accountants, incurred by the parties hereto shall be borne solely
and entirely by the party that has incurred such costs and expenses.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
COLUMBIA CAPITAL CORP.
By: /s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx, President and Secretary
/s/ Xxxx Xxxxx
----------------------------------------
Xxxx Xxxxx, individually
FIRST INDEPENDENT COMPUTERS, INC.
By: By:
-------------------------------- -------------------------------------
Secretary President
SHAREHOLDERS OF FIRST INDEPENDENT
COMPUTERS, INC.
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
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