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EXHIBIT 10.30
EXECUTION ORIGINAL
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COMMON STOCK PURCHASE AGREEMENT
DATED JANUARY 23, 1998,
BY AND AMONG
INSURERATE, INC.,
HOMECOM COMMUNICATIONS, INC.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
AND
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANY
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TABLE OF CONTENTS
Page
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ARTICLE I..................................................................... 1
PURCHASE, SALE AND TERMS OF COMMON SHARES..................................... 1
1.1. PURCHASE AND SALE........................................................ 1
1.2. PURCHASE PRICE AND CLOSING............................................... 1
1.3. REPRESENTATIONS BY THE PURCHASER......................................... 2
1.4. BROKERS OR FINDERS....................................................... 4
ARTICLE II.................................................................... 4
CONDITIONS TO THE PURCHASER'S OBLIGATIONS..................................... 4
2.1. REPRESENTATIONS AND WARRANTIES........................................... 4
2.2. DOCUMENTATION AT CLOSING................................................. 4
ARTICLE III................................................................... 5
REPRESENTATIONS AND WARRANTIES................................................ 5
OF THE COMPANY................................................................ 5
3.1. ORGANIZATION AND STANDING OF THE COMPANY................................. 5
3.2. CORPORATE ACTION......................................................... 6
3.3. SECURITIES ACT OF 1933................................................... 6
3.4. CAPITALIZATION; STATUS OF CAPITAL STOCK.................................. 6
3.5. NO BROKERS OR FINDERS.................................................... 7
ARTICLE IV.................................................................... 7
REPRESENTATIONS AND WARRANTIES OF HOMECOM..................................... 7
4.1. ORGANIZATION AND STANDING OF HOMECOM..................................... 7
4.2. CORPORATE ACTION......................................................... 7
4.3. OWNERSHIP OF COMPANY STOCK............................................... 8
4.4. BROKERS OF FINDERS....................................................... 8
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF CORSI............................ 8
5.1. AUTHORITY................................................................ 8
5.2. OWNERSHIP OF COMPANY STOCK............................................... 8
5.3. NO BROKERS OF FINDERS.................................................... 8
ARTICLE VI. DEFINITIONS....................................................... 8
6.1. CERTAIN DEFINED TERMS.................................................... 8
ARTICLE VII................................................................... 11
INDEMNIFICATION............................................................... 11
7.1. INDEMNIFICATION BY COMPANY............................................... 11
7.2. INDEMNIFICATION BY PURCHASER............................................. 11
7.3. INDEMNIFICATION PROCEDURE................................................ 11
7.4. INDEMNIFICATION LIMITATIONS.............................................. 12
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ARTICLE VIII. MISCELLANEOUS................................................... 12
8.1. NO WAIVER; CUMULATIVE REMEDIES........................................... 12
8.2. ENTIRE AGREEMENT; AMENDMENTS............................................. 13
8.3. ADDRESSES FOR NOTICES.................................................... 13
8.4. BINDING EFFECT; ASSIGNMENT............................................... 14
8.5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES............................... 14
8.6. SEVERABILITY............................................................. 14
8.7. CONFIDENTIALITY.......................................................... 14
8.8. GOVERNING LAW............................................................ 15
8.9. HEADINGS................................................................. 15
8.10. COUNTERPARTS............................................................ 15
8.11. FURTHER ASSURANCES...................................................... 15
Schedule 3.5 Balance Sheet
Schedule 3.7 Intellectual Property Matters
Exhibit 2.2(e) Shareholders' Agreement
Exhibit 2.2(f) Services Agreement
Exhibit 2.2(g) Warrant
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COMMON STOCK PURCHASE AGREEMENT
As of January 23, 1998
To the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company (the "Purchaser")
Re: Acquisition of Stock of InsureRate, Inc.
Gentlemen:
InsureRate Inc., a Georgia corporation (the "Company"), agrees with you as to
the purchase and sale of A certain number of shares of the Company's Common
Stock, pursuant to the terms and conditions set forth in this Common Stock
Purchase Agreement ("Agreement"). Certain capitalized terms used in this
Agreement shall have the meanings assigned to them in Article V hereof.
ARTICLE I.
PURCHASE, SALE AND TERMS OF COMMON SHARES
1.1. Purchase and Sale.
The Company has authorized the issuance, sale and exchange of 33,333.33
shares of Common Stock (the "Common Shares") of its authorized but unissued
shares of Common Stock, $ .01 par value (the "Common Stock"), at a purchase
price of $ 3.00 per share to the Purchaser, for an aggregate purchase price of
$100,000.00. The Common Shares shall be purchased by the Purchaser as of the
date hereof.
1.2. Purchase Price and Closing.
(a) At the Closing (as defined below), the Company will
deliver to the Purchaser a certificate for 33,333.33 Common Shares, representing
thirty-three and thirty-three one hundredths percent (33.33%) of the total
issued and outstanding shares of Common Stock, registered in the Purchaser's
name (or its nominee), against immediately available funds delivered by
Purchaser to Company.
(b) The Closing of the purchase, sale and exchange of the
Common Shares to be acquired by a Purchaser from the Company under this
Agreement (the "Closing") shall take place on the date hereof at the offices of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇▇▇
Financial Center, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such time and date thereafter as
the Purchaser and the Company may agree.
(c) At the Closing, and in addition to the delivery by the
Company to the Purchaser of a certificate for 33,333 Common Shares as set forth
in paragraph (a) of this Section, (i) HomeCom Communications, Inc., a Georgia
corporation ("HomeCom"), shall surrender its
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certificate(s) representing all of the issued and outstanding shares of the
Company for which HomeCom is the owner of record, and shall receive from the
Company therefor a certificate for 56,666.67 shares of its Common Stock,
representing fifty-six and sixty-seven one hundredths percent (56.67%) of the
total issued and outstanding shares of Common Stock, registered in HomeCom's
name (or its nominee), and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual resident of the
State of New Jersey ("Corsi"), shall surrender his certificate(s) representing
all of the issued and outstanding shares of the Company for which Corsi is the
owner of record, and shall receive from the Company therefor a certificate for
10,000 shares of its Common Stock, representing ten percent (10%) of the total
issued and outstanding shares of the Common Stock, registered in Corsi's name
(or its nominee).
1.3. Representations by the Purchaser.
(a) Organization and Standing of the Purchaser. The Purchaser
is a duly organized and validly existing corporation in good standing under the
laws of the State of Georgia and has all requisite corporate power and authority
for the ownership and operation of its properties and for the carrying on of its
business as now conducted and as now proposed to be conducted and to execute and
deliver this Agreement and the Other Agreements, and to perform its other
obligations pursuant hereto and thereto.
(b) Corporate Action. This Agreement and the Other Agreements
have been duly authorized, executed and delivered by the Purchaser and the
officers of the Purchaser, respectively, and constitute the legal, valid and
binding obligations of the Purchaser, enforceable against the Purchaser in
accordance with their respective terms.
(c) Investment Representations. The Purchaser represents that
it is its present intention to acquire the Common Shares to be acquired by it
hereunder for its own account (and it will be the sole beneficial owner thereof)
and that the Common Shares are being and will be acquired by it for the purpose
of investment and not with a view to distribution or resale thereof, except
pursuant to registration under the Securities Act or exemption therefrom. The
acquisition by the Purchaser of the Common Shares acquired by it shall
constitute a confirmation of this representation by the Purchaser. The Purchaser
further represents that it understands and agrees that, until registered under
the Securities Act or transferred pursuant to the provisions of Rule 144 or Rule
144A as promulgated by the Commission, all certificates evidencing any of the
Common Shares, whether upon initial issuance or upon any transfer thereof, shall
bear a legend, prominently stamped or printed thereon, reading substantially as
follows:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws. These securities
have been acquired for investment and not with a view to
distribution or resale. These securities may not be offered
for sale, sold, delivered after sale, transferred, pledged or
hypothecated in the absence of an effective registration
statement covering such Common Shares under the Act and any
applicable state securities
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laws, or the availability, in the opinion of counsel, of an
exemption from registration thereunder."
(d) Access to Information. The Purchaser or its representative
during the course of this transaction, and prior to the purchase of any Common
Shares, has had the opportunity to ask questions of and receive answers from
management of the Company concerning the terms and conditions of the offering of
the Common Shares and the additional information, documents, records and books
relative to the business, assets, financial condition, results of operations and
liabilities (contingent or otherwise) of the Company.
(e) General Access. The Purchaser or its representative has
received and read or reviewed, and is familiar with, this Agreement and the
other agreements executed or delivered herewith, including the terms of the
Common Stock, and confirms that all documents, records and books pertaining to
the Purchaser's investment in the Company and requested by the Purchaser or its
representative have been made available or delivered to it.
(f) Sophistication and Knowledge. The Purchaser or its
representative has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the purchase of
the Common Shares. The Purchaser can bear the economic risks of this investment
and can afford a complete loss of its investment.
(g) Transfer Restrictions Imposed by Securities Laws. The
Purchaser understands that: (i) the Common Shares have not been registered under
the Securities Act or applicable state securities laws, and, therefore, cannot
be resold unless they are subsequently registered under the Securities Act and
applicable state securities laws or unless an exemption from such registration
is available; and (ii) the Purchaser is and must be purchasing the Common Shares
for investment for the account of the Purchaser only, and not for the account or
benefit of others nor with any present view toward resale or other distribution
thereof. The Purchaser agrees (A) not to resell or otherwise dispose of all or
any part of the Common Shares purchased by it, except as permitted by law,
including, without limitation, any regulations under the Securities Act and
applicable state securities laws; (B) that the Company does not have any present
intention and is under no obligation to register the Common Shares under the
Securities Act and applicable state securities laws, except as provided in
Article IV hereof; and (C) that Rule 144 or Rule 144A under the Securities Act
may not be available as a basis for exemption from registration of the Common
Shares thereunder.
(h) Lack of Liquidity. The Purchaser has no present need for
liquidity in connection with its purchase of the Common Shares.
(i) Accredited Investor Status. The Purchaser is an
"Accredited Investor" as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act.
1.4. No Brokers or Finders. The Purchaser represents that no Person has
or will have, as a result of the transactions contemplated by this Agreement,
any right, interest or valid claim against or upon the Company for any
commission, fee or other compensation as a finder or broker because of any act
or omission by the Purchaser or its respective agents.
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ARTICLE II.
CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The obligation of the Purchaser to purchase and pay for the Common
Shares to be purchased by it at the Closing is subject to the following
conditions:
2.1. Representations and Warranties. Each of the representations and
warranties of (a) the Company set forth in Article III hereof, (b) HomeCom, set
forth in Article IV hereof, and (c) Corsi, set forth in Article V hereof shall
be true, accurate and correct on the hereof.
2.2. Documentation at Closing. The Purchaser shall have received prior
to or at the Closing all of the following materials, each in form and substance
satisfactory to the Purchaser and their counsel, and each of the following
events shall have occurred, or each of the following documents shall have been
delivered prior to or simultaneously with the Closing:
(a) A copy of the Articles of Incorporation of the Company, as
amended or restated to date, together with such evidence as may be available of
the filing thereof; a copy of the resolutions of the Board of Directors of the
Company providing for the approval of the approval of this Agreement, the
issuance of the Common Shares, and all other agreements or matters contemplated
hereby or executed in connection herewith; and a copy of the By-laws of the
Company, all of which have been certified by the Secretary of the Company to be
true, complete and correct in every particular; and certified copies of all
documents evidencing other necessary corporate or other action and governmental
approvals, if any, required to be obtained at or prior to the Closing with
respect to this Agreement and the issuance of the Common Shares.
(b) A certificate of the Secretary or an Assistant Secretary
of the Company which shall certify the names of the officers of the Company
authorized to sign this Agreement, the certificates for the Common Shares and
the other documents, instruments or certificates to be delivered pursuant to
this Agreement by the Company, any of its officers, together with the true
signatures of such officers. A Certificate of the Secretary of State of the
State of Georgia as to the due incorporation and good standing of the Company
shall have been provided to the Purchaser.
(d) All corporate and other action and governmental filings
necessary to effectuate the terms of this Agreement, the Common Shares and the
Other Agreements shall have been made or taken.
(e) A fully-executed copy of that certain Shareholders'
Agreement dated of even date herewith, by and among HomeCom, the Company and the
Purchaser, in substantially the form attached hereto as Exhibit 2.2(e).
(f) A fully-executed copy of that certain Web Hosting Services
Agreement dated of even date herewith, by and between the Company and the
Purchaser, in substantially the form attached hereto as Exhibit 2.2(f).
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Additionally, HomeCom shall have delivered to the Purchaser a
warrant for the purchase of 25,000 shares of the unregistered common stock of
HomeCom (the "Warrant"), substantially in the form attached hereto as Exhibit
2.2(g).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants, as of the date hereof, as follows:
3.1. Organization and Standing of the Company. The Company is a duly
organized and validly existing corporation in good standing under the laws of
the State of Georgia and has all requisite corporate power and authority for the
ownership and operation of its properties and for the carrying on of its
business as now conducted and as now proposed to be conducted and to execute and
deliver this Agreement and the Other Agreements, to issue, sell and deliver the
Common Shares and to perform its other obligations pursuant hereto and thereto.
The Company is duly licensed or qualified and in good standing as a foreign
corporation authorized to do business in all jurisdictions wherein the character
of the property owned or leased or the nature of the activities conducted by it
makes such licensing or qualification necessary, except where the failure to be
so licensed or qualified would not have a material adverse effect on the
business, operations or financial condition of the Company. The Company has
delivered to the Purchaser true, correct and complete copies of its Certificate
of Incorporation and By-laws or other governing documents, as currently in
effect, and has made available to the Purchaser for its review all of the
Company's minute books and stock records, and such stock records are correct and
complete, and accurately reflect the stock ownership of the Company's capital
stock.
3.2. Corporate Action. This Agreement and the Other Agreements have
been duly authorized, executed and delivered by the Company and the officers of
the Company, respectively, and constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms. The Common Shares have been duly authorized. The
issuance, sale and delivery of the Common Shares have been duly authorized by
all required corporation action; the Common Shares have been validly issued, are
fully paid and nonassessable, with no personal liability attaching to the
ownership thereof, and are free and clear of all liens, charges, restrictions,
claims and encumbrances imposed by or through the Company, except as set forth
in this Agreement.
3.3. Securities Act of 1933. The Company has complied and will comply
with all applicable federal and state securities laws in connection with the
offer, issuance and sale of the Common Shares hereunder. Neither the Company nor
anyone acting on its behalf has or will sell, offer to sell or solicit offers to
buy the Common Shares or similar securities to, or solicit offers with respect
thereto from, or enter into any preliminary conversations or negotiations
relating thereto with, any Person, so as to bring the issuance and sale of the
Common Shares under the registration provisions of the Securities Act and
applicable state securities laws.
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3.4. Capitalization; Status of Capital Stock. Immediately prior to the
Closing, the Company shall have a total authorized capitalization consisting of
1,000,000 shares of Common Stock, $ .01 par value, with 100,000 shares of Common
Stock issued and outstanding, as follows: (i) 85,000 shares of Common Stock
issued to HomeCom; and (ii) 15,000 shares of Common Stock issued to Corsi. As of
the Closing, the Company will have a total authorized capitalization consisting
of 1,000,000 shares of Common Stock, $ .01 par value, with 100,000 shares of
Common Stock issued and outstanding, as follows: (i) 56,666.67 shares of Common
Stock will be issued to HomeCom; (ii) 10,000 shares of Common Stock will be
issued to Corsi; and (iii) 33,333.33 shares of Common Stock (the Common Shares)
will be issued to the Purchaser. Such Common Stock, when issued and delivered in
accordance with the terms hereof, will be duly authorized, validly issued,
fully-paid and non-assessable. None of the Common Shares acquired by Purchaser
hereunder have been issued in violation of any preemptive or subscription
rights, and the company is not a party to any contract, agreement, arrangement,
commitment, plan or understanding restricting or otherwise relating to the
voting, dividend, ownership or transfer rights of any of the Common Shares.
3.5. Balance Sheet. Attached hereto as Schedule 3.5 is a true and
correct copy of the Company's balance sheet (the "Balance Sheet") dated as of
January 22, 1998 (the "Balance Sheet Date"). The Balance Sheet presents fairly
the financial position of the operations of the Company as of the Balance Sheet
Date.
3.6. Delivery of Materials. The Company hereby confirms that all
documents, records and books pertaining to the Purchaser's investment in the
Company and requested by the Purchaser or its representative have been made
available or delivered to the Purchaser.
3.7. Intellectual Property Matters. The Company has exclusive ownership
rights to its corporate name as a domestic corporation under the laws of the
State of Georgia. Attached hereto as Schedule 3.7 is a true and correct copy of
a Trademark Search Report dated November 20, 1997, prepared by Corsearch with
respect to marks "InsureRate" and "Insure Rate."
3.8. No Brokers or Finders.
The Company represents that no Person has or will have, as a result of
the transactions contemplated by this Agreement, any right, interest or valid
claim against or upon the other parties to this Agreement for any commission,
fee or other compensation as a finder or broker because of any act or omission
by the Company or its respective agents.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF HOMECOM
4.1. Organization and Standing of HomeCom.
HomeCom is a duly organized and validly existing corporation in good
standing under the laws of the State of Georgia and has all requisite corporate
power and authority for the ownership and operation of its properties and for
the carrying on of its business as now
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conducted and as now proposed to be conducted and to execute and deliver this
Agreement and the Other Agreements to which it is a party, and to perform its
other obligations pursuant hereto and thereto.
4.2. Corporate Action.
This Agreement and the Other Agreements to which HomeCom is a party
have been duly authorized, executed and delivered by HomeCom and the officers of
HomeCom, respectively, and constitute the legal, valid and binding obligations
HomeCom, enforceable against HomeCom in accordance with their respective terms.
4.3. Ownership of Company Stock.
Immediately prior to the Closing, HomeCom was the record owner of
85,000 shares of the Company's Common Stock, representing 85% of the Company's
total issued and outstanding Common Stock.
4.4. No Brokers or Finders.
HomeCom represents that no Person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or valid claim
against or upon the Company for any commission, fee or other compensation as a
finder or broker because of any act or omission by HomeCom or its respective
agents.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF CORSI
5.1. Authority.
Corsi has all requisite execute and deliver this Agreement and the
Other Agreements to which it is a party, and to perform its other obligations
pursuant hereto and thereto. This Agreement and the Other Agreements to which
Corsi is a party have been duly authorized, executed and delivered by Corsi and
constitute the legal, valid and binding obligations of Corsi, enforceable
against Corsi in accordance with their respective terms.
5.2. Ownership of Company Stock.
Immediately prior to the Closing, Corsi was the record owner of 15,000
shares of the Company's Common Stock, representing 15% of the Company's total
issued and outstanding Common Stock.
5.3. No Brokers orFinders.
Corsi represents that no Person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or valid claim
against or upon the Company
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for any commission, fee or other compensation as a finder or broker because of
any act or omission by Corsi or its respective agents.
ARTICLE VI.
DEFINITIONS
6.1. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Accredited Investor" shall have the meaning assigned to that term in
Rule 501 under the Securities Act.
"Affiliate" means (i) any Person, directly or indirectly, controlling,
controlled by or under common control with another Person; or (ii) any officer,
director, partner, or direct or indirect beneficial or legal owner of 10% or
greater equity or voting interest of such Person. "Control" of any Person shall
mean the right to direct the management or operations of such Person, whether by
voting rights, contract or otherwise.
"Agreement" means this Common Stock Purchase Agreement as from time to
time amended and in effect between the parties, including all Exhibits hereto.
"Association" shall have the meaning assigned to that term in Section
5.1.
"Board of Directors" means the board of directors of the Company as
constituted from time to time.
"Closing" shall have the meaning assigned to that term in Section 1.2.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act or Exchange Act.
"Common Stock" includes (a) the Company's Common Stock, $ .01 par
value, as authorized on the date of this Agreement, and (b) any other capital
stock of any class or classes (however designated) of the Company authorized on
or after the date hereof, the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any Common Shares entitled to preference, and the holders of
which shall ordinarily, in the absence of contingencies or in the absence of any
provision to the contrary in the Company's Certificate of Incorporation, be
entitled to vote for the election of directors of the Company (even though the
right so to vote has been suspended by the happening of such a contingency or
provision).
"Company" means InsureRate, Inc., a Georgia corporation, and its
successors and assigns.
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"Copyrights" means United States and foreign copyrights, copyrightable
works, and mask work, whether registered or unregistered, and pending
applications to register the same.
"Corsi" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual resident of the State of
New Jersey.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
(or of any other Federal agency then administering the Exchange Act) thereunder,
all as the same shall be in effect at the time.
"HomeCom" means HomeCom Communications, Inc., a Georgia corporation.
"Intellectual Property" means Copyrights, Patent Rights, Trademarks,
Trade Secrets, and Software and all agreements, contracts, licenses,
sublicenses, assignments and indemnities which relate or pertain to any of the
foregoing.
"Other Agreements" shall mean this Agreement, the Shareholders'
Agreement, the Services Agreement and the agreements, documents, assignments and
instruments related hereto and thereto to be executed and delivered by the
Company pursuant to this Agreement.
"Patent Rights" means United States and foreign patents, patent
applications, continuations, continuations-in-part, divisions, reissues, patent
disclosures, inventions (whether or not patentable or reduced to practice) and
improvements thereto.
"Person" means an individual, corporation, partnership, joint venture,
trust, university, or unincorporated organization, or a government, or any
agency or political subdivision thereof.
"Purchaser" shall have the meaning assigned to that term in Section 1.1
of this Agreement and shall include the original Purchaser and also any other
holder of any of the Common Shares.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission (or of
any other Federal agency then administering the Securities Act) thereunder, all
as the same shall be in effect at the time.
"Services Agreement" shall have the meaning set forth in Section 2.2(f)
of this Agreement.
"Shareholders' Agreement" shall have the meaning set forth in Section
2.2(e) of this Agreement.
"Software" means computer software programs and software systems,
including all databases, compilations, tool sets, compilers, higher level or
"proprietary" languages, related documentation and materials, whether in source
code, object code or human readable form; provided, however, that Software shall
not include computer software programs licensed to The Company that are
available through a commercial distributor or in consumer retail stores and are
subject to "shrink-wrap" license agreements.
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"Trademarks" means United States, state and foreign trademarks, service
marks, logos, trade dress and trade names (including all assumed or fictitious
names under which The Company is conducting business or has within the previous
five (5) years conducted business), whether or registered or unregistered, and
pending applications to register the foregoing.
"Trade Secrets" means confidential ideas, trade secrets, know-how,
concepts, methods, processes, formulae, reports, data, consumer lists, mailing
lists, business plans, or other proprietary information.
ARTICLE VII.
INDEMNIFICATION
7.1. Indemnification by Company.
The Company agrees, from and after the Closing Date, to indemnify,
defend and hold harmless Purchaser, and Purchaser's agents, successors and
assigns from any loss, damage, expense, liability, claim or controversy,
including, without limitation, attorneys' fees and expenses of litigation (a
"Loss") arising out of any one or more of the matters set forth below:
(a) any inaccuracy or breach of any representation, warranty or
covenant of the Company contained in this Agreement;
(b) any person asserting any claim against Purchaser to any rights in
and to the Common Shares following the Closing Date, to the extent that such
claim arises or is alleged to arise by, through or under the Company;
(c) any obligation or liability of the Company arising prior to the
Closing Date which is not in the ordinary course of the Company's business,
whether or not such obligation or liability is fixed or contingent, or
liquidated or unliquidated, and whether or not such liability or obligation was
known to the Company or any of its employees, officers, directors or
shareholders on the Closing Date;
(d) any obligation or liability of the Company related to any claim,
action, suit or investigation relating to the Company's Intellectual Property
which is made, threatened or asserted on or after the Closing Date against
Purchaser with respect to acts or omissions of the Company or its officers,
directors, employees, contractors, or agents occurring before the Closing Date;
and
(e) any liability of the Company for any and all federal, state or
local taxes for any period ending on or before the Closing Date, with respect to
any item or matter occurring prior to the Closing Date or arising from the
transactions contemplated by this Agreement.
7.2. Indemnification by Purchaser.
Purchaser agrees from and after the date hereof to indemnify, defend
and hold harmless the Company, HomeCom and Corsi and each of the Company's
officers, directors, shareholders,
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employees and agents from any Loss arising out of any inaccuracy or breach of
any representations, warranties or covenants of Purchaser contained in this
Agreement.
7.3. Indemnification Procedure.
(a) In order to be indemnified and held harmless, pursuant to Sections
7.1 or 7.2, a party entitled to be indemnified and held harmless pursuant to
such Section (the "Indemnified Party") shall notify the party liable for such
indemnification (the "Indemnifying Party") in writing immediately upon becoming
aware of any claim or demand which the Indemnified Party has determined has
given or could give rise to a right of indemnification under this Agreement.
Subject to the Indemnifying Party's right to defend in good faith third party
claims as hereinafter provided, the Indemnifying Party shall satisfy its
obligations under this Section 7.3 within thirty (30) days after the receipt of
written notice thereof from the Indemnified Party.
(b) If the Indemnified Party shall notify the Indemnifying Party of any
claim or demand pursuant to Section 7.3(a), and if such claim or demand relates
to a claim or demand asserted by a third party against the Indemnified Party
which the Indemnifying Party acknowledges is a claim or demand for which it must
indemnify or hold harmless the Indemnified Party under Section 7.1 or 7.2, the
Indemnifying Party shall have the right to employ counsel acceptable to the
Indemnified Party to defend any such claim or demand asserted against the
Indemnified Party. The Indemnified Party shall have the right to participate in
the defense of any such claim or demand. The Indemnifying Party shall notify the
Indemnified Party in writing, as promptly as possible (but in any case before
the due date for the answer or response to a claim) after the date of the notice
of claim given by the Indemnified Party to the Indemnifying Party under Section
7.3(a) of its election to defend in good faith any such third party claim or
demand. So long as the Indemnifying Party is defending in good faith any such
claim or demand asserted by a third party against the Indemnified Party, the
Indemnified Party shall not settle or compromise such claim or demand. The
Indemnified Party shall make available to the Indemnifying Party or its agents
all records and other materials in the Indemnified Party's possession reasonably
required by it for its use in contesting any third party claim or demand.
Whether or not the Indemnifying Party elects to defend any such claim or demand,
the Indemnified Party shall have no obligations to do so.
7.4. Indemnification Limitations.
(a) All of the representations and warranties made by the Company and
the Purchaser shall survive the closing of the transactions contemplated hereby
and shall continue until 5:00 p.m., Atlanta, Georgia time, on the date which is
one (1) year following the Closing Date (the "Expiration Date").
(b) No claim for indemnification may be made after the Closing by the
Indemnified Party, unless the aggregate amount of all Losses incurred by the
Indemnified Party and otherwise indemnified against hereunder with respect to
all claims exceeds Ten Thousand Dollars ($10,000) (the "Basket"). If the
Indemnified Party incurs such Losses in an amount exceeding the Basket, the
Indemnified Party shall be entitled to indemnification in the full amount of
such Losses, irrespective of such threshold amount.
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ARTICLE VIII.
MISCELLANEOUS
8.1. No Waiver; Cumulative Remedies. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
8.2. Entire Agreement; Amendments.
This Agreement, together with the Schedules and Exhibits herein
referenced, contains the entire agreement among the parties hereto with respect
to the transactions contemplated herein, and all prior understandings, and
agreements and the letter of intent among the parties hereto are hereby
terminated in their entirety and are of no further force or effect. This
Agreement shall not be modified or otherwise amended except by an instrument in
writing signed by or on behalf of the parties hereto.
8.3. Addresses for Notices. All notices, consents, requests, demands
and other communications hereunder shall be in writing and shall be deemed to
have been duly given or delivered (i) if delivered personally, (ii) if delivered
by certified mail, return receipt requested, with proper postage prepaid, (iii)
if delivered by facsimile, or (iv) if delivered by recognized courier
contracting for same day or next day delivery:
(a) To Purchaser:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) To the Company:
InsureRate, Inc.
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
1600 Atlanta Financial Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇. ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) To HomeCom:
HomeCom Communications, Inc.
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇, President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) To Corsi:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the parties hereto shall have last
designated by notice to the other parties. Any item delivered personally or by
recognized courier contracting for same day or next day delivery shall be deemed
delivered on the date of delivery. Facsimile deliveries shall be deemed
delivered on the date of transmission by the sender provided sender has evidence
of successful transmission and receipt. Any item mailed shall be deemed to have
been delivered on the date evidenced on the return receipt.
8.4. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
8.5. Survival of Representations and Warranties. All representations,
warranties, agreements and covenants made or undertaken by the parties to this
Agreement, or contained in any other instrument or document delivered in
connection herewith or therewith, are material, have been relied upon by the
other parties hereto, shall survive the Closing hereunder, and shall not merge
in the performance of any obligation by any party hereto.
8.6. Severability. The provisions of this Agreement, the Other
Agreements, and the terms of the Common Stock are severable and, in the event
that any court of competent jurisdiction shall determine that any one or more of
the provisions or part of a provision contained in this Agreement, the Other
Agreements or the terms of the Common Stock shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement, the Other Agreements or the terms of the Common Stock; but this
Agreement, the Other Agreements and the terms of the Common Stock shall be
reformed and construed as if such invalid or illegal or unenforceable provision,
or part of a provision, had never been contained herein, and such provisions or
part reformed so that it would be valid, legal and enforceable to the maximum
extent possible.
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8.7. Confidentiality. The Purchaser agrees that it will keep
confidential and will not disclose or divulge any confidential, proprietary or
secret information which the Purchaser may obtain from the Company pursuant to
any reports, statements or other materials financial statements, reports and
other materials submitted by the Company to the Purchaser pursuant to this
Agreement, or pursuant to any visitation or inspection rights, unless such
information is known, or until such information becomes known, to the public;
provided, however, that the Purchaser may disclose such information (i) on a
confidential basis to its attorneys, accountants, consultants and other
professionals to the extent necessary to obtain their services in connection
with its investment in the Company or as required by applicable law.
8.8. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Georgia, and without
giving effect to choice of laws provisions.
8.9. Headings. Article, section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
8.10. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.11. Further Assurances. From and after the date of this Agreement the
parties hereto agree to execute and deliver such instruments, documents and
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement and the
Common Shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Purchase Agreement to be executed as of the date first above written.
"COMPANY": "PURCHASER":
INSURERATE, INC. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
"CORSI":
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
"HOMECOM":
HOMECOM COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇, President
15
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EXHIBIT 3.5
BALANCE SHEET
20
EXHIBIT 3.7
INTELLECTUAL PROPERTY MATTERS
