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EXHIBIT 10.32
EXHIBIT 2.2 (e)
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (the "Agreement") is made and entered into
as of the date below written by and among Xxxxxxxx Xxxxxx Xxxxxx Company, a
Georgia corporation ("HDA"), HomeCom Communications, Inc., a Georgia corporation
"(HomeCom"), and InsureRate, Inc., a Georgia corporation (the "Company").
R E C I T A L S :
WHEREAS, HDA owns thirty-three thousand three hundred thirty-three and
33/100 (33,333.33) shares (the "HDA Stock") and HomeCom owns fifty-six thousand
six hundred sixty-six and 67/100 (56,666.67) shares of the issued and
outstanding common stock, par value $.01 per share, of the Company (the
"Stock");
WHEREAS, the parties hereto believe it is in their respective best
interests to enter into this Agreement providing for, among other things,
restrictions on the transfer of shares of the HDA Stock and the right of HDA to
sell the HDA Stock to HomeCom and the right of HomeCom to purchase the HDA
Stock, upon the occurrence of certain events as provided herein.
NOW THEREFORE, for and in consideration of the premises and the mutual
promises, covenants and agreements herein contained, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Parties, each intending to be legally bound, covenant and
hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the respective meanings
set forth below:
1.1 "Affiliate" means, with respect to a Person, any other person
directly or indirectly controlling, controlled by, or under common control with,
such first Person, where control shall be presumed to exist by the ownership of
ten percent (10%) or more of the outstanding voting capital interests of a
Person.
1.2 "Agreement" means this Agreement as originally executed, or as it
may from time to time be amended by one or more written amendments or
modification agreements executed by all Parties.
1.3 "Business Day" shall mean any day other than a day on which
national banks located in Atlanta, Georgia are required to be closed.
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1.4 "Company" shall have the meaning set forth in the first paragraph
of this Agreement.
1.5 "HomeCom" shall have the meaning set forth in the first paragraph
of this Agreement.
1.6 "HDA" shall have the meaning set forth in the first paragraph of
this Agreement.
1.7 "Person" means any individual, corporation, partnership (general or
limited), limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government, or any agency or
political subdivision thereof.
1.8 "Shareholder" means HDA or HomeCom.
ARTICLE 2
RESTRICTIONS ON TRANSFER AND ENCUMBRANCE OF HDA STOCK
Except as otherwise expressly permitted by the terms of this Agreement,
HDA shall not sell, assign, transfer, give, pledge, encumber, hypothecate or
otherwise dispose of, any the shares of the HDA Stock, whether now owned or
hereafter acquired (any such disposition being hereinafter referred to as a
"Share Transfer"), to any Person (including without limitation an existing
shareholder of the Company). Any Share Transfer made by HDA not in strict
accordance with the terms of this Agreement shall be deemed null and void ab
initio and have no force or effect whatsoever.
ARTICLE 3
RIGHT OF FIRST REFUSAL OF HOMECOM FOR TRANSFERS BY HDA
If HDA desires to cause a Share Transfer, upon receiving an arm's
length written offer to purchase any of the HDA Stock (the "Offered Stock") from
a bona fide, third party unaffiliated with HDA (an "Offer"), which Offer HDA
desires to accept, HDA shall first offer to HomeCom the option to purchase the
Offered Stock as follows:
3.1 Notice. HDA shall give HomeCom notice (the "First Refusal Notice")
of its intention to effect a Share Transfer of the Offered Stock. The First
Refusal Notice shall provide a full description of all the material terms of the
proposed Share Transfer, including without limitation the identities and
addresses of all real parties in interest, the price per share, the terms of
payment, and a copy of the Offer duly signed by the Offeror.
3.2 Election and Exercise of Rights. HomeCom shall have the right to
purchase all, but not less than all, of the Offered Stock by giving notice of
exercise of such purchase right to HDA within thirty (30) Business Days after
HomeCom's receipt of the First Refusal Notice from HDA.
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3.3 Terms. If HDA has received an Offer, the purchase price at which
HomeCom may purchase the Offered Stock shall be the price per share contained in
the Offer, and such purchase and sale shall occur upon the same terms and
conditions contained in the Offer; provided, however, that HomeCom may, at its
option, pay the purchase price for the Offered Stock by paying twenty percent
(20%) of the total purchase price in immediately available funds (cash or
equivalent conveyed by bank wire transfer or federal funds check) and delivering
to HDA a promissory note of HomeCom for the balance of the purchase price
payable in equal monthly installments of principal and interest over the two (2)
year period following the date of the closing of such transaction and bearing
interest on the outstanding principal balance thereof at a per annum simple
interest rate equal to the prime interest rate as stated in the Wall Street
Journal on the date of such purchase of the Offered Stock by HomeCom.
3.4 No Bona Fide Offer. If HomeCom has determined in good faith that
HDA has received no Offer, HomeCom shall not be obligated to purchase the
Offered Stock upon such terms, and HDA may not cause a Share Transfer to the
alleged Offeror. HomeCom shall give notice to HDA and the Board of Directors of
the Company of such finding prior to the expiration of the time within which
HomeCom may exercise the option contained in Section 3.2 hereof to purchase the
Offered Stock. The Board of Directors of the Company shall, within ten (10)
Business Days after receipt of such Notice, determine whether the Offer is bona
fide and deliver notice of such determination to the Shareholders. The decision
of the Board of Directors of the Company shall be final, binding, conclusive and
non-appealable by the Shareholders. If the Board of Directors of the Company
shall determine that the Offer is bona fide, then HomeCom shall have five (5)
Business Days after receipt of notice of such determination to exercise the
option contained in Section 3.2 hereof.
3.5 Closing Procedure. If, pursuant to Section 3.2 hereof, HomeCom
exercises the right to purchase the Offered Stock from HDA, the closing for such
transaction shall be held at the Company's principal place of business thirty
(30) Business Days after the date of receipt by HomeCom of notice of such
exercise, at 10:00 a.m., or at such other place and time as may be mutually
agreed between HDA and HomeCom. At such closing, HomeCom shall purchase (subject
to Section 3.3 hereof) the Offered Stock on the same terms and conditions as
contained in the First Refusal Notice, and HDA shall deliver the Offered Stock
to HomeCom free and clear of all encumbrances with applicable transfer stamps,
if any, affixed and with warranties of title delivering the Offered Stock free
and clear, and shall execute and transfer all documents necessary to effectuate
such purchase.
3.6 Failure or Refusal of HomeCom to Exercise Option. If HomeCom fails
or refuses to exercise the option contained in Section 3.2 hereof, HDA may, for
a period of thirty (30) days after (i) receipt of HomeCom's affirmative written
refusal or (ii) expiration of all time periods for the exercise of the option
contained in Section 3.2 hereof (the "Share Transfer Period"), effect the Share
Transfer to the bona fide, third party purchaser based upon the terms of the
Share Transfer contained in the First Refusal Notice. Upon expiration of the
Share Transfer Period, HDA shall not have the right to effect the contemplated
Share Transfer and any purported Share Transfer effected after the Share
Transfer Period shall be null and void ab initio without legal force or effect.
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ARTICLE 4
PUT AND CALL OPTIONS
4.1 Put by HDA. HDA shall have the right to cause HomeCom to purchase
from HDA all (and only all) of the HDA Stock at a purchase price equal to one
hundred thousand dollars and no/100 ($100,000) (the "Put Purchase Price") at any
time by delivering a written notice to HomeCom stating that HDA has elected to
exercise such right. HomeCom, at its sole discretion, may pay the Put Purchase
Price either in the form of (a) cash or (b) shares of the unregistered common
stock of HomeCom having a value equal to the Put Purchase Price; provided,
however, that if HDA exercises such right within thirty (30) days after the date
on which the Company's internet web site is first open for public access through
the World Wide Web on the Internet, then HomeCom shall pay the entire Put
Purchase Price in cash.
4.2 Call by HomeCom.
(a) HomeCom shall have the right to purchase from HDA fifty percent
(50% ) of the HDA Stock at a purchase price equal to one hundred thousand and
no/100 dollars ($100,000) (the "Call Purchase Price") at any time by delivering
a written notice to HDA stating that HomeCom has elected to exercise such right.
HDA may, in its sole discretion, elect to receive the Call Purchase Price either
in the form of (a) cash or (b) shares of the unregistered common stock of
HomeCom.
(b) Notwithstanding anything contained herein to the contrary, HomeCom
shall have the right to purchase all the HDA Stock at a purchase price equal to
one hundred thousand dollars ($100,000) upon any "Change in Control" of HDA. For
purposes of this Agreement, a "Change in Control" of HDA shall mean the
acquisition by any Person, who is not an Affiliate of HDA on the date hereof, of
twenty-five percent (25%) or more of the total outstanding voting capital stock
of HDA.
4.3 Closing Procedure. If, pursuant to Section 4.1 or 4.2 hereof, HDA
exercises its right to sell the HDA Stock to HomeCom or HomeCom exercises the
right to purchase fifty percent (50%) of the HDA Stock from HDA, respectively,
the closing for such transaction shall be held at the Company's principal place
of business thirty (30) Business Days after the date of receipt by HomeCom of
notice of such exercise, at 10:00 a.m., or at such other place and time as may
be mutually agreed between HDA and HomeCom. At such closing, HDA shall deliver
the certificates evidencing the HDA Stock to be sold to HomeCom free and clear
of all encumbrances with applicable transfer stamps, if any, affixed and with
warranties of title delivering the Offered Stock free and clear, and shall
execute and transfer all documents necessary to effectuate such purchase. If,
pursuant to Section 4.1 or 4.2 hereof, the purchase price to be paid upon the
exercise of the right to sell or the right to purchase HDA Stock, as
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applicable, shall be paid in shares of unregistered common stock of HomeCom,
then (i) the value of each such share shall be calculated by computing the
average daily closing price of the common stock of HomeCom for the period of
time from the date of the delivery of written notice of the exercise of such
right to sell or right to purchase, as applicable, until and including the
business day immediately preceding the date of the closing of the transaction,
using for each daily closing price the last reported sale price per share of the
common stock of HomeCom as reported on the National Association of Securities
Dealers Automated Quotations System ("Nasdaq") National Market (the "Average
Daily Closing Price"), and (ii) the purchase price to be paid upon the exercise
of the right to sell or the right to purchase HDA Stock, as applicable, shall be
divided by the Average Daily Closing Price to determine the number of shares of
unregistered common stock of HomeCom to be delivered upon such exercise.
ARTICLE 5
DRAG-ALONG RIGHTS
5.1 Drag-Along Rights of HomeCom. If HomeCom proposes to effect a Share
Transfer to any third parties other than an Affiliate of HomeCom of any shares
of Stock owned by HomeCom, then, if requested by HomeCom, HDA shall join HomeCom
in such sale on a pro rata basis equal to the total number of shares of Stock
owned by HomeCom to be sold to such third party purchasers (the "Purchasers") by
HomeCom and HDA multiplied by a fraction, the numerator of which shall be the
total number of shares of the HDA Stock, and the denominator of which shall be
the total number of shares of Stock then owned by HomeCom plus the total number
of shares of the HDA Stock, for a purchase price per share of the Stock equal to
the purchase price per share to be paid by the Purchasers to HomeCom and, on the
same terms and conditions applicable to HomeCom.
ARTICLE 6
RESTRICTIVE COVENANTS OF HDA
6.1 Covenants Not to Solicit.
(a) Customers; Providers. So long as HDA owns any capital
stock of the Company and for a period of two (2) years thereafter (the
"Restricted Period"), HDA shall not, on HDA's own behalf or on behalf of any
Person, firm, partnership, association, corporation or business organization,
entity or enterprise ("Other Entity"), solicit, contact, call upon, communicate
with or attempt to communicate with (i) any holder of an insurance policy or any
individual or entity insured under an insurance policy, which was purchased or
otherwise acquired through the Company's Internet web site, using an Internet
platform on the World Wide Web which is directly competitive with the Company's
Internet web site and (b) any insurance company or other provider of financial
services which has marketed its products or services through the Company's
Internet web site with a view to providing "Competitive Services" to such
insurance company or financial services provider. For the purposes of this
Agreement, the term "Competitive Services" shall mean the marketing or
distribution of insurance or other
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financial services or products using an Internet platform on the World Wide Web
which is substantially similar to the Company's web site.
(b) Employees. During the Restricted Period, HDA shall not, on
HDA's own behalf or on behalf of any Other Entity, recruit or hire, or attempt
to solicit or recruit or hire, any employees of the Company or any of its
affiliates who were employed by the Company during the Restricted Period.
6.2 Confidentiality.
(a) The Company may from time to time disclose to HDA certain Trade
Secrets and Confidential Information (as defined below). HDA acknowledges and
agrees that the Trade Secrets and Confidential Information are the sole and
exclusive property of the Company (or a third party providing such information
to the Company) and that the Company or such third party owns all worldwide
rights therein under patent, copyright, trade secret, confidential information,
or other property right. HDA acknowledges and agrees that the disclosure of the
Trade Secrets and Confidential Information to HDA does not confer upon HDA any
license, interest or rights of any kind in or to the Trade Secrets or
Confidential Information. Except in the performance of services for the Company,
HDA will hold in confidence and not reproduce, distribute, transmit, reverse
engineer, decompile, disassemble, or transfer, directly or indirectly, in any
form, by any means, or for any purpose, the Trade Secrets or the Confidential
Information or any portion thereof. HDA agrees to return to the Company, upon
request by the Company, the Trade Secrets and Confidential Information and all
materials relating thereto and copies thereof.
(b) HDA's obligations under this Agreement with regard to the Trade
Secrets shall remain in effect for as long as such information shall remain a
trade secret under applicable law. HDA acknowledges that its obligations with
regard to the Confidential Information shall remain in effect while HDA during
the Restricted Period. As used herein, "Trade Secrets" means information of the
Company, its licensors, suppliers, customers, or prospective licensors or
customers, including, but not limited to, technical or nontechnical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans, or a list
of actual or potential customers, suppliers, employees or independent
contractors, which (i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use and
(ii) is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. As used herein, "Confidential Information" means
information, other than Trade Secrets, that is of value to its owner and is
treated as confidential; provided, however, that HDA shall not be restricted
from disclosing or using Confidential Information that: (i) is or becomes
generally available to the public other than as a result of an unauthorized
disclosure; (ii) was known to HDA on a non-confidential basis and not in
contravention of applicable law or a confidentiality or other similar agreement
before its disclosure to HDA by the Company or one of the Company's officers or
(iii) is required to be disclosed by law, court order or other legal process;
provided, however, that in the event disclosure is required by law, HDA shall
provide the Company with prompt notice of such requirement so that the Company
may seek an appropriate protective order prior to any such
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required disclosure by HDA. Confidential Information may include, but not be
limited to, future business plans, licensing strategies, advertising campaigns,
information regarding executives, employees and independent contractors and the
terms and conditions of this Agreement.
6.3 Acknowledgments. The parties hereto agree that: (i) the periods of
restriction and Territory of restriction contained in this Agreement are fair
and reasonable in that they are reasonably required for the protection of the
Company; (ii) by having access to information concerning employees and actual or
prospective customers of the Company, HDA shall obtain a competitive advantage
as to such parties; (iii) the covenants and agreements of HDA contained in this
Agreement are reasonably necessary to protect the interests of the Company in
whose favor said covenants and agreements are imposed in light of the nature of
the Company's business and the involvement of HDA in such business; (iv) the
restrictions imposed by this Agreement are not greater than are necessary for
the protection of the Company in light of the substantial harm that the Company
will suffer should HDA breach any of the provisions of said covenants or
agreements and (v) the covenants and agreements of HDA contained in this
Agreement form material consideration for this Agreement.
6.4 Remedy for Breach. HDA agrees that remedies at law of the Company
for any actual or threatened breach by HDA of the covenants contained in
Sections 8.1 through 8.3 of this Agreement would be inadequate and that the
Company shall be entitled to specific performance of the covenants in such
paragraphs or injunctive relief against activities in violation of such
paragraphs, or both, by temporary or permanent injunction or other appropriate
judicial remedy, writ or order, in addition to any damages and legal expenses
(including attorney's fees) which the Company may be legally entitled to
recover. HDA acknowledges and agrees that the covenants contained in Sections
6.1 through 6.3 of this Agreement shall be construed as agreements independent
of any other provision of this or any other agreement between the parties
hereto, and that the existence of any claim or cause of action by HDA against
the Company, whether predicated upon this or any other agreement, shall not
constitute a defense to the enforcement by the Company of said covenants.
6.5 Survival. Notwithstanding anything to the contrary contained
herein, all of the terms and conditions contained in Sections 6.1, 6.2, 6.3 and
6.4 hereof shall survive any termination of this Agreement.
ARTICLE 7
TERMINATION
7.1 Termination. The term of this Agreement and all obligations
hereunder (except all obligations which by their terms survive the termination
of this Agreement) shall terminate without notice upon the earlier occurrence of
any of the following events:
(a) The Company's adjudication as a bankrupt, the Company's
execution of a general assignment for the benefit of creditors, or the
appointment of a receiver for the Company;
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(b) Voluntary or involuntary legal dissolution of the Company;
(c) All the common stock of the Company becoming owned by any
one (1) Shareholder; or
(d) The mutual agreement of the parties as expressed in a
writing clearly indicating such intent and duly signed by all the
parties.
(e) The date which is ten (10) years after the date hereof.
ARTICLE 8
MISCELLANEOUS
8.1 Stock Legend. In addition to the standard investment restrictive
legends, necessary to comply with applicable securities laws, and any other
required legends, each certificate representing shares of Stock shall bear on
its reverse side a legend stating substantially the following:
"THIS CERTIFICATE AND THE SHARES EVIDENCED HEREBY MAY NOT BE SOLD,
GIVEN, PLEDGED, ASSIGNED, HYPOTHECATED, TRANSFERRED ENCUMBERED,
REDEEMED OR OTHERWISE DISPOSED OF, EXCEPT ACCORDING TO THE TERMS AND
CONDITIONS OF THAT CERTAIN SHAREHOLDERS' AGREEMENT AMONG THE COMPANY
AND CERTAIN OF ITS SHAREHOLDERS DATED JANUARY ___, 1998."
All additional Stock certificate(s) acquired by any Shareholder shall bear a
similar legend.
8.2 Dividends, Splits, and Similar Matters. If as a result of a stock
dividend, stock split, recapitalization, or other adjustment in the Company's
capital stock or as a result of a merger, consolidation, or other reorganization
of the Company, the number of the Company's shares of capital stock increases,
reduces, or otherwise changes, and if any Shareholder shall thereupon be
entitled to new, additional or different shares, such new shares shall upon
issuance automatically be subject to the terms, conditions and restrictions
herein contained relating to the original shares of Stock owned by the
Shareholder.
8.3 Options, Rights or Warrants. If options, rights or warrants are
awarded with respect to any Securities of the Company, or if any Shareholder
exercises such options, rights or warrants, the shares of securities issuable
upon such exercise shall likewise be subject to the terms, conditions and
restrictions herein contained relating to the original Stock.
8.4 Original Issuance of Stock. After the date hereof, the Company
shall not issue any unissued shares or treasury shares of the Stock to any
person who is not a party to this Agreement unless (a) the Person(s) acquiring
such stock agree in writing to be bound by the terms and conditions of this
Agreement, and (b) the stock certificates representing such shares bear a legend
substantially in the form set forth in Section 10.1 hereof.
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8.5 Stock Transfers. Any shares of Stock transferred by a Shareholder
in accordance with the term hereof to a Person not currently a party to this
Agreement, shall remain subject to the terms, conditions and restrictions of
this Agreement and any transferee, as a condition precedent to such transfer,
shall execute all such written acknowledgments, amendments or other agreements
or documents as the Company may reasonably request, as necessary to effectuate
this provision.
8.6 Notices and Other Communications. All notices of objections, other
notices or other communications required or permitted hereunder must be in
writing and shall be deemed effectively given (a) upon delivery, when delivered
personally against receipt therefor, (b) upon delivery when sent by certified
mail, postage prepaid and return receipt requested, (c) upon transmission, when
transmitted by telecopier, facsimile, telex or other electronic transmission
method, provided that receipt is confirmed and notice is sent by certified mail,
postage prepaid and return receipt requested, or (d) upon delivery, when sent by
Federal Express or other nationally recognized overnight delivery service.
If more than one (1) party is entitled to receive a specific notice or
other communication, the same shall be deemed to have been effectively given
when given to all of the parties entitled to receive the same, in the manner
described above. Any such notice shall be sent to the party to whom notice is
intended to be given at its address as shown below:
If to the Company: InsureRate, Inc.
Xxxxxxxx 00, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, President
Facsimile: (000) 000-0000
If to HomeCom: HomeCom Communications, Inc.
Xxxxxxxx 00, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxx, President
Facsimile: (000) 000-0000
If to HDA: Xxxxxxxx Xxxxxx Xxxxxx Company
Xxxxx 000
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 30339-3346
Facsimile: (000) 000-0000
All notices, requests, claims, demands and other communications
required or permitted to be made hereunder shall be in writing and shall be
given (and shall be deemed to be received on the date given) by hand, cable,
telegram, telex, telecopy (with receipt confirmed) or by overnight courier
service, to the respective parties hereto at their addresses set forth below
their signatures
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hereto, and a copy of each such notice, request, claim, demand or other
communication shall be sent to the then registered agent of the Company at its
registered office.
8.7 Assignment; Delegation. No Party may assign any of its rights, or
delegate any of its duties, pursuant to the terms of this Agreement, without the
prior written consent of all other Parties.
8.8 Entire Agreement. This Agreement supersedes all prior discussions
and agreements by the Parties, with respect to the transactions described
herein, and constitutes the sole and entire agreement between the parties hereto
as to such transactions.
8.9 Applicable Law. This Agreement has been negotiated, drafted, and
executed in Georgia, and shall be construed and enforced according to the laws
of the State of Georgia.
8.10 Validity. If any provision of this Agreement is held for any
reason to be invalid, it will not invalidate any other provisions of this
Agreement which are in themselves valid, nor will it invalidate the provisions
of any other agreement between the parties hereto.
8.11 Survival of Representations, Warranties and Covenants. All
representations, warranties and covenants made in this Agreement are cumulative,
are in addition to those imposed by law or equity, and will survive the
execution and delivery hereof, and the termination of the term hereof where
applicable.
8.12 Headings. The titles of the articles and subsections hereof appear
as a matter of convenience only and shall not affect the interpretations
thereof.
8.13 Waiver. Nothing contained in this Agreement shall prevent the
written waiver of the provisions of this Agreement by the parties hereto;
provided, however, that waiver by any party of a breach by any other party of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by such party. No waiver shall be valid unless in writing
and signed by all other parties hereto.
8.14 Word Forms. Words importing the singular number shall include the
plural number and vice versa, and any pronoun used shall be deemed to cover all
genders.
8.15 Further Assurances. The parties hereto agree to execute and
deliver in a timely fashion any and all additional documents reasonably
necessary to effectuate the purposes of this Agreement.
8.16 Dividends. No dividends shall be paid or any distributions made
with respect to any Stock sold, transferred, pledged, assigned, given,
encumbered, or otherwise disposed of in breach of the terms of this Agreement,
and no such transfer be registered on the books or records of the Company.
8.17 Amendment. This Agreement may not be amended, modified or
supplemented except in a writing duly signed by all the parties hereto and
clearly expressing such intent.
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8.18 Binding Agreement. This Agreement, and all of its provisions,
shall be binding upon and inure to the benefit of all the parties hereto, and
their respective heirs, Legal Representative(s), successors and permitted
assigns, without any further act or action by any party hereto; provided,
however, such transfer will not be recognized on the books and records of the
Company and will not be valid unless such transfer occurs pursuant to the terms
hereof and such heir, Legal Representative, successor or permitted assign has
consented in writing to the terms and conditions hereof.
8.19 Conflicting Agreements. Each party hereto represents and warrants
that the execution, delivery and performance of this Agreement by such party
does not conflict with the terms of any agreement, judicial decree or order to
which such party is a party or is subject.
8.20 Adequacy of Consideration. This Agreement constitutes a separate
agreement independently supported by good and adequate consideration, the
receipt and sufficiency of which is hereby acknowledged. This Agreement shall be
interpreted, construed, enforced, and conclusively deemed separate, apart from,
and independent of any other agreement between and among the parties hereto. Any
claim or cause of action of any party hereto against any other party hereto
arising under any other agreement between or among the parties, or out of any
set of facts, shall not constitute a defense to the enforcement of covenants and
agreements contained in this Agreement.
8.21 Enforceability. The parties recognize and acknowledge that it is
impossible to measure in money the damages which would result to any party
hereto as a result of the failure of any one of the parties hereto to perform
any of the obligations imposed pursuant to the terms of this Agreement. If any
party hereto or its Legal Representative should institute an action or
proceeding in equity to enforce the provisions hereof, any party hereto against
whom such action or proceeding is brought hereby waives the claim or defense
that such complaining party or its Legal Representative has an adequate remedy
at law, and such party or such Legal Representative shall not urge in any action
or proceeding the claim or defense that such remedy at law exists. Each party
hereto agrees that specific performance, or injunctive relief, as the case may
be, is an appropriate remedy for any breach hereof; provided, however, that
nothing contained herein shall prevent any party hereto from seeking a remedy at
law in connection with any breach of this Agreement by the other party hereto.
8.22 Judicial Interpretation. If a provision in this Agreement requires
judicial interpretation, the judicial body interpreting or construing the same
shall not apply the assumption that the terms hereof shall be more strictly
construed against one party hereto by reason of the rule of construction that an
instrument must be construed more strictly against the party which itself or
through its agents prepared the same, the parties hereto hereby agreeing that
all parties hereto and their agents have participated in preparation hereof
equally.
8.23 Consent to Jurisdiction. Each party hereto agrees to the exclusive
jurisdiction of the United States District Court for the Northern District of
Georgia with respect to any claim or cause of action, whether in law or equity,
including specific performance, arising under or relating to this Agreement, and
waives personal service of any and all process upon it, and
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consents that all services of process may be made by certified or registered
mail, postage pre-paid and return receipt requested, to the address of the
parties set forth in Section 10.6 hereof. Each party hereto waives any objection
based on forum nonconveniens and waives any objection to venue of any action
instituted hereunder. Each party hereto waives trial by jury in any action
brought hereunder. Each party hereto agrees that a final judgment in any such
action shall be conclusive and may be enforced in any other jurisdiction by suit
on a judgment or in any other manner provided by law. Nothing in this Section
10.23 shall affect the right of any party hereto to serve legal process in any
other manner permitted by law. To the extent that any party hereto has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process with respect to itself or its property, such party hereby waives
(to the fullest extent permitted by applicable law) such immunity in respect of
its obligations hereunder.
8.24 Time. Time is of the essence with respect to this Agreement and
the exercising by any party hereto of any rights or performance by any party
hereto of any duties contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed this 23rd day of January 1998.
"COMPANY"
InsureRate, Inc.
By:
-----------------------------------------
Xxxxxx X. Xxxxx, President
"HDA"
Xxxxxxxx Xxxxxx Xxxxxx Company
By:
-----------------------------------------
Xxxx X. Xxxxxxx, Senior Vice President
"HOMECOM"
HomeCom Communications, Inc.
By:
-----------------------------------------
Xxxxxx Xxx, President
ACKNOWLEDGED AND ACCEPTED
ON THIS 23RD DAY OF JANUARY, 1998:
(SEAL)
-------------------------------
Xxxxxx X. Xxxxx
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