EXHIBIT 99.3
PUT AGREEMENT
This Put Agreement (this "Agreement"), dated as of July 30, 2004 (the
"Effective Date"), is made and entered into by and between Mobilepro
Corporation, a Delaware corporation ("Mobilepro") and Xxxxxxxxxxx Xxxxxx
("Xxxxxx").
RECITALS
WHEREAS, Mobilepro and Xxxxxx are parties to that certain Agreement and
Plan of Merger ("Merger Agreement"), dated as of July 30, 2004, by and among
Mobilepro, Affinity Acquisition Corp. ("Merger Sub"), C.L.Y.K., Inc., Xxxx
Xxxxxxxxx, Xxxxxx and Xxxxxx Xxxxxxx pursuant to which Merger Sub has or will
merger with and into C.L.Y.K., Inc.; and
WHEREAS, as a condition to the execution of the Merger Agreement,
Mobilepro agreed to provide Xxxxxx a right to require Mobilepro to repurchase
all, but not less than all, of the Mobilepro Common Stock, $0.001 par value per
share, to be issued to Xxxxxx pursuant to the Merger Agreement (including, but
not limited to, any shares received as a dividend, from any subdivision or
combination of the shares or from any merger, consolidation, spin off or other
corporate restructuring of Mobilepro or its affiliates) (the "Put Shares") at an
aggregate purchase price of $475,000, in accordance with and subject to the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Xxxxxx' Put Right
1.1 Put Right. Mobilepro hereby grants to Xxxxxx the one time right (the
"Put Right"), exercisable at any time after the one (1) year anniversary of this
Agreement but before thirty (30) days after the one year anniversary of this
Agreement (the "Termination Date"), to require Mobilepro to purchase all, but no
less than all, of the Put Shares for a purchase price of $475,000 payable by way
of a two year four percent (4%) non-convertible promissory note.
1.2. Exercise of the Put. Provided that Xxxxxx has not voluntarily
terminated or Merger Sub has not terminated for cause the Employment Agreement
between Xxxxxx and Merger Sub dated July 30, 2004 (the "Employment Agreement")
prior to the Termination Date, Xxxxxx may exercise the Put Right, at any time
within fifteen (15) days after the Termination Date by giving Mobilepro written
notice of exercise (the "Put Notice"). The Put Notice shall indicate Xxxxxx'
desire to require Mobilepro to purchase all, and not less than all, of the Put
Shares and the date on which such purchase is to be effected (the "Put Exercise
Date"), provided that the Put Exercise Date specified in the Put Notice shall
not be less than fifteen (15) business days, nor more than forty-five (45)
business days after the date of the Put Notice.
1.3 Payment and Delivery. On the Put Exercise Date, Xxxxxx shall deliver
to Mobilepro stock certificate(s) representing all of the Put Shares, against
delivery to Xxxxxx by Mobilepro of the aggregate purchase price for the Put
Shares being sold by Xxxxxx on such date, such purchase price to be paid by
Mobilepro delivering to Xxxxxx a two year four percent (4%) non-convertible
promissory note.
Section 2. Representations and Warranties of Mobilepro. Mobilepro hereby
represents and warrants to Xxxxxx as follows:
2.1 Organization, Good Standing and Qualification. Mobilepro has all
requisite corporate power and authority to enter into and perform its
obligations under this Agreement.
2.2 Authorization. All corporate action on the part of Mobilepro, its
officers, directors and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement has been taken. This Agreement has
been duly executed and delivered by Mobilepro and constitutes a valid and
legally binding obligation of Mobilepro, enforceable in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) as limited by Section 160 of the Delaware General
Corporation Law.
2.3 No Conflict. The execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby, will
not result in any violation of or be in conflict with, or constitute, with or
without the passage of time and giving of notice, a default under, any provision
of its Certificate of Incorporation or bylaws, or any instrument, judgment,
order, writ, decree or contract to which Mobilepro is a party or result in the
creation of any lien, charge, or encumbrance upon any assets of Mobilepro.
2.4 Governmental Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority on the part of Mobilepro is
required in connection with the consummation of the transactions contemplated by
this Agreement.
Section 3. Miscellaneous
3.1 Entire Agreement. This Agreement along with the Merger Agreement and
that certain Employment Agreement, constitutes the full and entire understanding
and agreement between the parties with respect to the subject hereof and
supersedes all prior agreements and understandings between or among any of the
parties hereto with respect to the subject matter hereof.
3.2 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
3.3 Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt request, postage prepaid as follows:
if to Mobilepro: Mobilepro Corp.
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxx X. Xxxxxx, President and CEO
Facsimile:(000) 000-0000
if to Xxxxxx: Xxxxxxxxxxx Xxxxxx
2
Any party hereto (and such party's permitted assigns) may by notice so given
change its address for future notices hereunder. Notice shall conclusively be
deemed to have been given when personally delivered or when deposited in the
mail in the manner set forth above.
3.4 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of Delaware as
applied to agreements among Delaware residents entered into and to be performed
entirely within Delaware, excluding that body of law relating to conflict of
laws and choice of law.
3.5 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
3.6 Assignment. This Agreement may not be assigned by Xxxxxx without
Mobilepro's written consent.
IN WITNESS WHEREOF, the parties have duly executed this Put Agreement as
of the date first written above.
MOBILEPRO:
Mobilepro Corp.
By:
-------------------------------
Name: Xxx X. Xxxxxx
-------------------------------
Its: President and CEO
-------------------------------
XXXXXX:
-------------------------------------
Xxxxxxxxxxx Xxxxxx
3
