STOCK PURCHASE AGREEMENT,
AND AGREEMENT WITH RESPECT TO OTHER MATTERS
(hereinafter, "Agreement")
THIS AGREEMENT is entered into by and among ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation, a
Nevada corporation, (hereinafter, "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"), Progressive
Telecommunications Corp., a Florida corporation, (hereinafter, "PTC"), CCC
Merger Corporation, a Florida corporation, (hereinafter, "CCC Merger"), CCC
Communications Corporation, a Nevada corporation, (hereinafter, "Corporation"),
StormTel, Inc., a Nevada corporation, (hereinafter, StormTel"),
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇., Inc., a Delaware corporation, (hereinafter, "B-Mall Shell"),
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Florida corporation, (hereinafter, "Defunct
Yellow Page"), Progressive Telecommunications, Inc., a Delaware corporation,
(hereinafter, "Progressive Shell"), ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇., Corp., a
Delaware corporation, (hereinafter, "YPD"), and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
Florida corporation, (hereinafter, "Purchaser") this 14 day of
June, 2000. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, PTC, CCC Merger, and StormTel are
hereinafter referred to from time to time as, jointly and severally, as
"Affiliated Entities". B-Mall Shell, Defunct Yellow Page, Progressive Shell,
and YPD are hereinafter referred to from time to time, jointly and severally, as
"Entities Without An Interest").
BACKGROUND:
A. CCC merger is a party to a Merger Agreement made and entered into as of
December 31, 1998, as amended (the "Merger Agreement'), by and between PTC, CCC
Merger and Corporation, and certain shareholders of the Corporation.
B. Pursuant to the Merger Agreement, CCC Merger acquired and now owns 17,625,000
shares of the Corporation (the "Controlling Shares") representing 83.2% of the
outstanding shares of the Corporation and is obligated, subject to the terms and
conditions of the Merger Agreement to acquire the remaining 3,552,500 shares of
the Corporation (the "Minority Shares"). The Controlling Shares and the
Minority Shares are referred to as the "CCC Shares").
C. The Corporation is indebted to its long distance telephone carriers for
substantial amounts of money which the Corporation is unable to pay and PTC and
CCC Merger are unable to loan or invest additional capital in the Corporation to
satisfy these obligations.
D. In the event these obligations are not satisfied, long distance telephone
service to the Corporation's customers could be terminated or interrupted, which
could potentially result in damages to Corporation's customers, and potential
liability to the Corporation and/or the Affiliated Entities.
E. Even if the Corporation and/or the Affiliated Entities do not have actual
liability for any such termination or interruption of customer long distance
telephone service, a lawsuit or threat of a lawsuit and the potential liability
related thereto could result in additional expenses to the Corporation and/or
the Affiliated Entities.
F. Further, in the event of such termination or interruption of such telephone
service StormTel's regulatory standing as a properly licensed telephone company
in various states could potentially be irreparably damaged. All of the
Affiliated Entities stand to benefit from the possibility of avoiding such
problems and/or damage.
G. PTC, CCC Merger, and/or Affiliated Entities each therefore desires to divest
itself of any ownership in the Corporation, to avoid making any further
investments in the Corporation and to attempt to reduce the risk to itself and
the Affiliated Entities of any potential liability for interruption of service
which it or they may or may not have.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES SET FORTH HEREINABOVE AND
HEREINBELOW, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, the receipt and
adequacy of which is hereby acknowledged by each of the parties hereto, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Background Statements; Waiver of Rights of Entities Without An Interest. The
background statements set forth hereinabove are an integral part of this
Agreement, and are specifically incorporated into this Agreement as the
statements and representations of the Affiliated Entities and the Entities
Without An Interest. Corporation, Affiliated Entities, and Entities Without An
Interest hereby affirm the truth and accuracy of the background statements set
forth hereinabove. Further, the Entities Without An Interest hereby represent
and warrant to Purchaser, as a material inducement to Purchaser to enter into
this Agreement, that the Entities Without An Interest currently have no assets
or business operations, and do not have an interest in any assets or business
which could be confused with the assets and/or business relationships of
StormTel and/or the Corporation. The Entities Without An Interest expressly
hereby waive and release any rights or claims with respect to any such assets
and/or business relationships of StormTel and/or the Corporation.
2. Purchase and Sale. Subject to the terms and conditions of this Agreement,
PTC and/or CCC Merger shall sell, assign, and transfer to Purchaser, or shall
cause to be sold, assigned, and transferred to Purchaser, and Purchaser shall
purchase, the Controlling Shares pursuant to Section 3(c) hereinbelow for a
purchase price of One Dollar ($1.00).
3. Representations, Warranties, and Covenants of Affiliated Entities.
Affiliated Entities hereby represent, warrant, and covenant to Purchaser that:
a. Factual Matters Regarding Affiliated Entities and the Corporation. All of
the information set forth in Exhibit "A", Exhibit "B", Exhibit "C", Exhibit "D",
Exhibit "E", Exhibit "F", Exhibit "G", Exhibit "H", and Exhibit "I", each of
which is attached hereto and incorporated herein by reference, is true, complete
and correct in all respects.
b. Corporate Organization. The Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada and
has all requisite power and authority (corporate and other) to own, lease, and
operate its properties and conduct its business as now being conducted. CCC
Merger is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida and has all requisite power and authority
(corporate and other) to enter into and perform its obligations under this
Agreement.
c. Stockholders of the Corporation. CCC Merger is the owner of the Controlling
Shares, representing at least 83.2% of the issued and outstanding shares of
stock of the Corporation, which shares have been transferred to CCC Merger
pursuant to the Merger Agreement. CCC Merger is obligated to buy the Minority
Shares, representing 16.8% of the issued and outstanding shares of stock of the
Corporation, from certain other shareholders. PTC and CCC Merger shall utilize
their respective reasonable best efforts to cause CCC Merger to obtain good
title to the Minority Shares within ninety (90) days of the date of this
Agreement. For the purposes of this Section 3c, reasonable best efforts shall
include the offer to such shareholders of up to 643,679 shares of the common
stock of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Nevada corporation, pursuant to an effective
registration statement under the Securities Act of 1933, as amended.
d. Ownership of Shares. CCC Merger owns good and marketable title to the
Controlling Shares. The Controlling Shares represent all of the issued and
outstanding common stock of the Corporation. The CCC Shares are (i) validly
issued, fully paid and nonassessable and (ii) free and clear of any liens,
restrictions, claims, equities, charges, options, rights of first refusal, or
encumbrances, with no defects of title whatsoever. No options, warrants,
subscriptions, calls or other rights or commitments to acquire any capital stock
or obligations convertible into securities of any kind or class of the
Corporation are issued or outstanding. CCC Merger shall transfer or cause to be
transferred good and marketable title to the said Controlling Shares free and
clear of any liens, restrictions, claims, equities, options, charges, rights of
first refusal, or encumbrances or other restrictions, and with no defects of
title whatsoever. CCC Merger has the exclusive right to vote the Controlling
Shares, and there are no outstanding proxies in effect. Affiliated Entities
hereby agree to indemnify and hold Purchaser harmless from and against any loss,
liability, or claim arising from any third party claims with respect to the
Controlling Shares, or any claims related to nonfulfillment by the Corporation
or any of the Affiliated Entities of any obligations in connection with the
Merger Agreement or any other prior merger or other transaction involving the
sale, transfer, or issuance of any such CCC Shares.
e. (THIS SUBPARAGRAPH INTENTIONALLY LEFT BLANK)
f. (THIS SUBPARAGRAPH INTENTIONALLY LEFT BLANK)
g. Absence of Liabilities. The Corporation does not have any liabilities or
obligations of any nature to any of the Affiliated Entities or to any
shareholder, officer, director, employee, or agent of any of the Affiliated
Entities, or any family member by blood or marriage of any of such individuals,
whether accrued, absolute or contingent, and whether due or to become due,
except for commissions payable to a company owned by the wife of ▇▇▇ ▇▇▇▇▇▇▇▇.
h. No Liabilities as Guarantor. Corporation is not directly or indirectly
liable, as a guarantor or otherwise, for any debt, or other obligation of any
person or other entity.
i. Non-Contravention. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will result in the breach
of any term or provision of, constitute a default under, or accelerate or
augment the performance otherwise required under, any provision of the
Corporation's or CCC Merger's organizational documents or any agreement
(including without limitation any loan agreement or promissory note), indenture,
instrument, order, law or regulation to which the Corporation or CCC Merger is a
party or by which it is bound, or will result in the creation of any lien or
encumbrance upon any property of the Corporation or CCC Merger or the CCC
Shares, except to the extent of rights of others in the Minority Shares as
contemplated by the Merger Agreement. Any consent or approval required by any
individual or entity or governmental authority in order to enter into this
Agreement and consummate the transactions contemplated hereby, has been
obtained, to the best of their knowledge.
j. (THIS SUBPARAGRAPH INTENTIONALLY LEFT BLANK)
k. Assignment; Transfer of StormTel Assets. A letter of agency (hereinafter,
"LOA") is a document signed by a customer within the Customer Base which
appoints either StormTel and/or Corporation to act as such customer's agent to
make the following changes in such customer's long distance telephone service:
(i) changing the underlying long distance carrier on each telephone line of such
customer; and/or (ii) making telephone feature changes to such telephone lines.
A contract for telephone services (hereinafter, "Service Contract") is an
agreement by and between a customer within the Customer Base and StormTel and/or
Corporation to purchase long distance telephone services from StormTel and/or
Corporation upon specific rates, terms and conditions, some or all of which may
or may not be found published in StormTel's tariffs, as amended from time to
time. An LOA and a Service Contract often, if not always, are physically
included in the same document signed by the customer within the Customer Base,
however, the rights contained therein are separate and severable.
Contemporaneously with the execution of this Agreement, StormTel signed and
delivered to the Corporation the Assignment Agreement attached hereto as Exhibit
"J" and incorporated herein by reference, transferring and assigning to the
Corporation all of StormTel's LOA's and Service Contracts, accounts receivable,
the rights to repayment of the $20,000.00 Loan, hereinafter defined, all cash,
bank accounts, deposits, the underlying security for letters of credit,
telecommunication service carrier contracts, and all other rights with respect
to StormTel's customers and customer accounts; provided, however, StormTel has
not transferred to the Corporation any right or obligation with respect to its
tariffs, nor any tax or any other liability whatsoever of StormTel. The
obligation of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and YPD to repay the $20,000.00 Loan shall be
further evidenced by the execution and delivery of the Promissory Note attached
hereto as Exhibit "P-1" and incorporated herein by reference (hereinafter, "the
$20,000.00 Promissory Note"). The $20,000.00 Promissory Note shall be secured
by a Security Agreement executed by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ attached hereto as Exhibit
"Q-1" and incorporated herein by reference, and a Security Agreement executed by
YPD attached hereto as Exhibit "Q-2" and incorporated herein by reference, and
the Guaranty and Security Agreement of StormTel, attached hereto as Exhibit
"S-1" and Exhibit "Q-3," respectively, both of which are incorporated herein by
reference. Also contemporaneously with the execution of this Agreement, the
Affiliated Entities and the Corporation caused the Corporation to transfer all
of the issued and outstanding common stock of StormTel owned by the Corporation
to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, by execution and delivery of the ▇▇▇▇ of Sale attached
hereto as Exhibit "K" and incorporated herein by reference, and by endorsement
of stock certificates of StormTel.
l. Title to Property. The Corporation has good and marketable title to all of
its properties, rights, and assets including but not limited to those assets
listed on Exhibit "D" attached hereto and incorporated herein by reference, and
the contract rights and accounts of StormTel transferred to Corporation as
contemplated by Paragraph 3 (i) hereinabove.
m. Compliance With Law. Neither the Corporation nor CCC Merger is in violation
of, or has received any notice alleging a violation of, any law, judgment,
order, decree, regulation or rule of any court or government authority
applicable to it.
n. Employment at Will. All of the employees of the Corporation are employed on
an "employment at will" basis and there are no employment contracts or
agreements whatsoever between the Corporation and any employee. The Corporation
has not entered into any independent contractor agreements or any consulting
agreements with any person or entity, and except for agent agreements
(hereinafter, "Agent Contracts") for which the Corporation is currently paying
commissions with respect to the agency sales efforts associated with the
Customer Base.
o. Dividends; Other Transfers. No dividends have been paid, and no other
transfers of any kind of cash or other assets of the Corporation or StormTel to
any of the Affiliated Entities have occurred since May 10, 2000, through and
including the date of this Agreement, other than two loans from StormTel and/or
Corporation to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or YPD in the amount of Twenty Thousand
Dollars ($20,000.00) (hereinafter, "the $20,000.00 Loan") and Sixty Thousand
Dollars ($60,000.00) (hereinafter, "the $60,000.00 Loan"), respectively. The
$60,000.00 Loan shall be repaid to the Corporation simultaneously with the
execution of this Agreement. There are no dividends which have been declared
with respect to CCC Shares which have not been paid, and there is no obligation
to declare and/or pay any future dividend to CCC Merger or any other individual
or entity.
p. Articles and By-Laws. Exhibit "N", attached hereto and incorporated herein
by reference, contains a true, correct, and complete set of the Articles of
Incorporation and the Code of By-Laws of the Corporation, which are now in full
force and effect. Prior to Closing, the Corporation shall not make any further
amendments to its By-Laws or Articles of Incorporation.
q. Corporate Minute Books. The corporate minute books which have been delivered
to Purchaser contain the full, correct, and complete records of the Corporation
with respect to proceedings of the shareholders and board of directors of the
Corporation.
r. Loans; Indebtedness. For good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged by the Affiliated Entities, and
pursuant to the Release set forth in Paragraph 14 hereinbelow, the Corporation
is not obligated to make any payment or repayment of any monies to any of the
Affiliated Entities, and any prior obligation of the Corporation to make such
repayments in connection with any loans to, and/or debts paid on behalf of the
Corporation from or by any of the Affiliated Entities, are hereby fully and
finally released by the Affiliated Entities.
s. Corporate Books and Records. CCC Merger will provide to Purchaser at the
time of execution of this Agreement, all pertinent information with respect to
the business of the Corporation, including but not limited to all books and
business records of the Corporation.
t. Disclosure. No material facts regarding the Corporation and/or its
respective assets or business have been concealed from Purchaser which would
reasonably affect a prudent investor's decision to purchase the Corporation
through a stock purchase as contemplated by this Agreement.
u. Reliance. The foregoing representations and warranties are made by
Affiliated Entities with the knowledge and expectation that Purchaser is placing
complete reliance thereon.
v. Due Diligence. Each of the Affiliated Entities hereby expressly acknowledge
and agree that they have made an independent due diligence investigation as to
the condition of the Corporation and the terms of the transaction as set forth
in this Agreement, and none of the Affiliated Entities are relying upon any
representation or statement made or alleged to have been made by ▇▇▇▇▇▇▇ and/or
Purchaser and not expressly contained in this Agreement.
4. Representations, Warranties, and Covenants of Purchaser. Purchaser hereby
represents, warrants, and covenants to Affiliated Entities that:
a. Factual Matters Regarding Purchaser. All of the information set forth in
Exhibit "Z", which is attached hereto and incorporated herein by reference, is
true, complete and correct in all respects.
b. Corporate Organization. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida and
has all requisite power and authority(corporate and other) to own, lease, and
operate its properties and conduct its business as now being conducted.
c. Non-Contravention. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will result in the breach
of any term or provision of, constitute a default under, or accelerate or
augment the performance otherwise required under, any provision of the
Purchaser's organizational documents or any agreement (including without
limitation any loan agreement or promissory note), indenture, instrument, order,
law or regulation to which the Purchaser is a party or by which it is bound, or
will result in the creation of any lien or encumbrance upon any property of the
Purchaser or the CCC Shares. Any consent or approval required by any individual
or entity or governmental authority in order for Purchaser to enter into this
Agreement and consummate the transactions contemplated hereby has been obtained.
d. Compliance With Law. The Purchaser is not in violation of, and has not
received any notice alleging a violation of, any law, judgment, order, decree,
regulation or rule of any court or government authority applicable to it.
e. Dividends; Other Transfers. No dividends have been paid by Purchaser, and no
other transfers of any kind of cash or other assets of the Corporation or
Purchaser to any of the Affiliated Entities will occur until the expiration of
the Purchaser's indemnification agreement hereunder.
f. Reliance. Purchaser is not relying on any representations or warrants,
written or oral, except as contained herein in entering into this Agreement.
g. Due Diligence. Purchaser hereby expressly acknowledges and agrees that
Purchaser has made an independent due diligence investigation as to the
condition of the Corporation and the terms of the transaction as set forth in
this Agreement, and the Purchaser is not relying upon any representation or
statement made or alleged to have been made by Affiliated Entities and not
expressly contained in this Agreement.
h. Telecom Taxes. Corporation shall be directly responsible for any telecom
taxes collected from Corporation's customers.
i. Regulatory Fines. Corporation shall be directly responsible for any
regulatory fines assessed against StormTel for any act or omission of
Corporation.
5. Transfer of Tradename; Master Agency; Continuing Relationship. The
Affiliated Entities hereby agree as follows:
a. Corporation hereby transfers and assigns to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or StormTel,
or their designee, any and all right, title, and interest which Corporation may
have in the tradename "StormTel" (hereinafter, "Tradename"), subject to the
rights reserved hereinbelow. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or StormTel may sell,
transfer, and assign the Tradename to any other party or entity, subject to the
rights granted hereinbelow to Corporation.
b. StormTel hereby appoints Corporation as its non-exclusive agent for a period
of ten (10) years. This agency shall be irrevocable and non-cancellable by
StormTel, its successor or assigns. Such agency shall authorize the Corporation
to utilize the Tradename "StormTel" and the tariffs and Public Utility
Commission and Federal Communications Commission rights associated therewith.
This agency relationship is set forth in the Master Agency Contract attached
hereto as Exhibit "O" and incorporated herein by reference. This Tradename may
be used for customers who were customers of either StormTel or the Corporation
at the time of execution of this Agreement (hereinafter, "Customer Base"), but
not for any customers acquired by Corporation after the date of this Agreement,
(hereinafter, "New Customers"). During the term of this agency, Corporation may
use the Tradename StormTel for all purposes in conducting its business,
including but not limited to provisioning, customer service, billing,
collection, filing suit, settling prior trade debts (not including tax debts,
which have not been assumed by the Corporation), working with vendors, further
contracting with vendors, modifying or amending contracts with vendors, opening
bank accounts, or adding such Tradename as an acceptable payee on existing bank
accounts of the Corporation, and negotiating checks in the name of StormTel. It
is the intention of the parties that by entering into this agency relationship,
that the Corporation, which is an entity not qualified to conduct business to
provide and sell telecommunication services in the forty-seven (47) states in
which StormTel is qualified to sell and provide such services, to permit
Corporation to lawfully sell and provide such telecommunication services by its
association with StormTel. In the event the agency relationship created hereby
is not sufficient for achieving this purpose, or in the event that the
provisions hereof do not effectively or technically accomplish such purposes,
the parties hereto shall immediately take such further actions, execute such
further documents and instruments, and otherwise do all things necessary in
order to effectuate the intended purposes of this provision.
c. The Affiliated Entities agree that the fact that ▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are in discussions about including the revenue of the
Corporation in calculation of bonus stock incentives for ▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
pursuant to their respective Employment Agreements, such discussion shall not in
any manner alter the fact that such revenues and the customer contract rights
associated with such revenues, including but not limited to Service Contracts
and LOA's, are the sole and exclusive property of the Corporation and neither
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, nor any other individual or entity has any claim
with respect thereto.
d. StormTel shall have no further rights with respect to the Customer Base
and/or New Customers, and the Customer Base and/or New Customers shall for all
purposes be considered to be customers of the Corporation and the Corporation
shall have no obligation to StormTel with respect thereto. All payments with
respect to the Customer Base and/or New Customers may be received directly by
Corporation, and checks made payable to StormTel may be negotiated, endorsed,
and collected by the Corporation for its own account.
e. Notwithstanding anything set forth hereinabove, the Corporation has no
obligation or liability to cause any payment received from its customers,
whether included in the Customer Base or a New Customer, to be paid to StormTel,
and such payments may be received directly by Corporation for its own account,
even if acquired in the name of, and payable to StormTel.
f. Since StormTel will no longer be engaged in the retail sale of long distance
telephone or other communication services to the Customer Base or New Customers
after the date hereof, the Corporation shall, for and on behalf of StormTel,
file reports with the appropriate telephone excise tax authorities indicating
the zero revenue status of StormTel with respect to such retail sales.
Corporation shall not, however, have any other reporting obligations with
respect to the activities of StormTel.
6. Other Obligations of Affiliated Entities Regarding Transition of StormTel
and/or Corporation Customers, Customer Accounts and Assets, the Continuing
Relationship of the Parties, and Other Matters. The parties hereto also agree
as follows:
a. The Affiliated Entities will cause ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or YPD to provide
full health insurance benefits for up to four (4) employees of the Corporation
at any one time, which employees shall be designated by Corporation from time to
time, which benefits shall be no less favorable than those benefits currently
provided to the employees of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and with no premiums due from
either such employees or the Corporation. Such health insurance benefits shall
be provided at the sole expense of the Affiliated Entities for a period of four
(4) years from the date of this Agreement.
b. The Affiliated Entities shall provide the Corporation with office space,
consisting of four (4) cubicles, to accommodate the Corporation's business
operations and employees, which office space shall be located at the offices of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ located at ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ in Clearwater, Florida.
Such office space shall be provided at no expense to the Corporation for a
period of four (4) years, and in addition the Affiliated Entities shall provide
at no additional expense to Corporation, reasonable use of the utilities,
telephones, and office equipment of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or YPD.
c. The Affiliated Entities will assume all obligations to ▇▇▇ ▇▇▇▇▇▇▇▇ and/or
▇▇▇▇▇ ▇▇▇▇▇▇ under any employment agreement, termination agreement, or any other
liability or obligation of any kind of the Corporation, and will indemnify,
defend, and hold Corporation, CCC Merger, and ▇▇▇▇▇▇▇ harmless from any
liability or obligation to any individual or entity with respect thereto, and/or
with respect to any claim that ▇▇▇▇▇▇▇ did not have proper authority, or
otherwise acted wrongfully, in connection with any actions taken by ▇▇▇▇▇▇▇,
whether as an officer of StormTel and/or the Corporation, or otherwise.
d. The Affiliated Entities acknowledge that in connection with the assignment
and transfer of StormTel's customers, customer accounts, and other assets and
business operations to Corporation, as contemplated by paragraph 3 (j)
hereinabove, Corporation will incur expenses in the transitioning of the
Customer Base and/or Corporation's customers to new carriers, negotiating with
current vendors, training new personnel in all matters currently carried on by
StormTel, and physically moving business operations to another location (all
hereinafter referred to as the "Transition"). As a material inducement to
Purchaser to enter into this Agreement, Affiliated Entities hereby agree to pay
Corporation One Hundred Seventy-Six Thousand Five Hundred Dollars ($176,500.00)
to be used by Corporation to defer the cost of the Transition and operational
costs associated therewith and/or occurring thereafter. The obligation to make
such payments shall be further evidenced by execution and delivery of the
Promissory Note (hereinafter, "the $176,500.00 Promissory Note") attached hereto
as Exhibit "P-2" and incorporated herein by reference. The $176,500.00
Promissory Note shall be secured by the Security Agreement executed by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, attached hereto as Exhibit "Q-1" and incorporated herein by
reference, and a Security Agreement executed by YPD, attached hereto as Exhibit
"Q-2" and incorporated herein by reference, and a Guaranty and Security
Agreement of StormTel, attached hereto as Exhibit "S-1" and Exhibit "Q-3,"
respectively, both of which are incorporated herein by reference.
e. Affiliated Entities acknowledge that ITS Billing, Inc. incurred expenses
including but not limited attorneys fees in connection with the negotiation and
preparation of employment agreements and related documents relating to the
employment of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or YPD.
Purchaser represents and warrants that ITS Billing, Inc. has assigned to
Purchaser any rights to payment or reimbursement which ITS Billing, Inc. may
have in connection with such transaction. Affiliated Entities agree to pay
Purchaser Thirteen Thousand Dollars ($13,000.00) in reimbursement of such
expenses, and in full satisfaction of any obligation of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any
of the Affiliated Entities to pay for attorney fees and other expenses incurred
in the negotiation and preparation of such employment agreements, which amount
shall be paid in accordance with the terms of the Promissory Note (hereinafter,
"the $13,000.00 Promissory Note") attached hereto as Exhibit "P-3". The
$13,000.00 Promissory Note is secured by the Security Agreement of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, attached hereto as Exhibit "Q-4" and incorporated herein by
reference, the Security Agreement of YPD, attached hereto as Exhibit "Q-5" and
incorporated herein by reference, the Guaranty and Security Agreement of
StormTel, attached hereto as Exhibit "S-2" and "Q-6," respectively, both of
which are incorporated herein by reference, and the Guaranty and Security
Agreement of Corporation, attached hereto as Exhibit "S-3" and Exhibit "Q-7,"
respectively, both of which are incorporated herein by reference.
f. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to reimburse Purchaser for attorney fees and other
expenses incurred in connection with this transaction in the amount of
Thirty-Nine Thousand Dollars ($39,000.00), which amount shall be paid pursuant
to the terms of the Promissory Note (hereinafter, "the Promissory Note")
attached hereto as Exhibit "P-4" and incorporated herein by reference. The
$39,000.00 Promissory Note is secured by the Security Agreement of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, attached hereto as Exhibit "Q-4" and incorporated herein by
reference, the Security Agreement of YPD, attached hereto as Exhibit "Q-5" and
incorporated herein by reference, the Guaranty and Security Agreement of
StormTel, attached hereto as Exhibit "S-2" and "Q-6," respectively, both of
which are incorporated herein by reference, and the Guaranty and Security
Agreement of Corporation, attached hereto as Exhibit "S-3" and Exhibit "Q-7,"
respectively, both of which are incorporated herein by reference.
g. The parties understand and agree that the Affiliated Entities will, from time
to time, either jointly or severally hold certain contracts with long distance
carriers which will allow the Affiliated Entities to resell such long distance
service. The Affiliated Entities hereby agree to sell such long distance
telephone service to Corporation at cost, for further resale to Corporation's
customers. For purposes of this provision, "cost" means the actual cost paid by
the Affiliated Entities to the underlying long distance telephone carrier for
the services utilized by Corporation's customers. In the event Corporation
purchases more than Two Hundred Thousand Dollars ($200,000.00) per month of such
long distance telephone services from Affiliated Entities, and if the underlying
long distance telephone carrier requires an additional security deposit to be
made as a result of such long distance telephone services in excess of Two
Hundred Thousand Dollars ($200,000.00) per month, then Corporation shall be
responsible for providing such additional security.
h. The Affiliated Entities shall have no right to pay, compromise, or settle any
obligations or liability, or alleged liability or obligation of the Corporation
or Purchaser. In the event any of the Affiliated Entities pay any such
liability or obligation contrary to this provision, the Affiliated Entities
shall have no right to reimbursement from Corporation or Purchaser of any
amounts so paid, and shall have no right to off-set the amount so paid against
any other amounts owed to Purchaser or Corporation pursuant to this or any other
agreement. The Affiliated Entities acknowledge and agree that the Corporation
and the Purchaser shall have the sole discretion to determine whether and/or in
what manner to pay, deny, settle, compromise, or defend against any such
liability or obligation.
i. The Affiliated Entities agree to pay all costs of filing UCC Financing
Statements filed at the request of Purchaser and/or Corporation in connection
with any of the Security Agreements contemplated by this Agreement, including
but not limited to the cost of all documentary stamp taxes related to such UCC
Financing Statements.
j. Notwithstanding anything stated to the contrary in any Security Agreement
attached to this Agreement, such Security Agreements shall secure only the
payment of the Promissory Notes referenced in said Security Agreements, and
shall not secure representations and warranties of Affiliated Entities set forth
in this Agreement.
7. Waiver of Certain Breaches of Employment Agreement. The parties understand
and agree that the sole shareholder of Purchaser, ▇▇▇▇▇▇▇, is an employee of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ pursuant to an Employment Agreement, entered into by and among
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, f/k/a Progressive Telecommunications Corporation,
and YPD. The Affiliated Entities agree that for a period of three (3) months
from the date of this Agreement, any failure by ▇▇▇▇▇▇▇ to provide services
pursuant to said Employment Agreement or to provide notice of absences shall not
be considered to be a breach of said Employment Agreement, and said breaches are
hereby expressly waived by the parties to said Employment Agreement.
8. Waiver of Conflict of Interest. Each of the Affiliated Entities hereby
acknowledge and understand that ▇▇▇▇▇▇▇ is also an employee of one or more of
the Affiliated Entities, and each of the Affiliated Entities hereby expressly
waives any actual or potential conflict of interest, now or in the future
arising out of or in relation to this Agreement or the transaction contemplated
hereby, or arising out of ▇▇▇▇▇▇▇'▇ status as a shareholder, officer, director,
or employee of Purchaser or of Corporation.
9. GTE Letter of Credit; Mobile Office Link Division; IWATSU Contract. More
than six (6) months ago, the Corporation caused a Cape Coral Bank to issue a
Thirty-Five Thousand Dollars ($35,000.00) letter of credit in favor of GTE.
Corporation agrees that it will sign any documents requested by the Affiliated
Entities to cause the letter of credit to be revoked, and upon revocation of
said letter of credit and the release of the underlying security for said letter
of credit, said underlying security shall be payable to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or as
otherwise directed by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, provided that all loan repayments and
other amounts due Corporation and/or Purchaser from any of the Affiliated
Entities as set forth in this Agreement have been timely paid. In the event any
of the Affiliated Entities are in default of any such payment obligation to the
Corporation and/or Purchaser, the Corporation shall have the right, but not the
obligation, to offset any amounts owed by any of the Affiliated Entities against
said security. This agreement on the part of Corporation to sign any such
releases, shall not be construed as guarantying that said letter of credit will
be released by the issuing bank and shall not require Corporation to make any
payment or post any additional collateral in order to cause the release of said
underlying security. Corporation also agrees that it will, if requested by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ within ninety (90) days of the date of this Agreement, transfer
and assign to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ the tradename "Mobile Office Link", and the
cellular customers and contract with GTE which constitutes the Mobile Office
Link Division of the Corporation, and the IWATSU Contract and related hardware
customers. It is understood and agreed that nothing contained herein is
intended to constitute the transfer of any of the rights to Customer Base,
and/or new customers, and/or LOA(s), and/or Service Contract(s).
10. Tariffs. The Affiliated Entities shall cause StormTel to maintain in good
standing for a period of ten (10) years from the date of this Agreement, all
existing tariffs with respect to the name "StormTel" and one other tradename to
be designated by Corporation, at a later date, which will allow the Corporation
to add customers under a new name so as to not violate ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s sale
of the StormTel tradename, which tradename shall remain the sole and exclusive
property of the Corporation. During such ten (10) year period, the Affiliated
Entities shall cause StormTel to maintain all tariffs with respect to said
tradenames and fully comply with all public utility commission and/or federal
communications commission requirements, and to timely pay all filing, revenue,
assessments and other fees related thereto.
11. Non-Solicitation. The Affiliated Entities acknowledge that due to prior
dealings with the Corporation and StormTel, that the Affiliated Entities and
their employees, officers, directors, shareholders, and agents are familiar with
various aspects of the Corporation's long distance telephone and communication
business, and that protection of the Customer Base is essential to Corporation's
continuing operations.
a. Affiliated Entities hereby agree that neither any of the Affiliated
Entities nor any officer, director, shareholder, employee, or agent of any of
the Affiliated Entities shall, for a period of four (4) years from and after the
date of this Agreement, directly or indirectly, whether as an individual or sole
proprietor, or as an owner, partner, officer, director, manager, agent,
consultant, employee, or independent contractor, formal or informal adviser, or
by or through the lending of any form of assistance, to, for, or on behalf of
any organization or business:
(i) Solicit, take away or endeavor to take away, any customer included in the
Customer Base.
b. The parties expressly acknowledge and agree that the Affiliated Entities may
otherwise engage in a business in competition with the Corporation. It will not
be considered to be a violation of the non-solicitation provision set forth
above, if a customer included in the Customer Base signs up for long distance
telephone service through a web site offering of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or YPD,
provided that such customer was not targeted and/or solicited by any of the
Affiliated Entities, other than the general solicitation set forth in said web
site. If any of the Affiliated Entities inadvertently breaches the
non-solicitation provisions of this Agreement, the Affiliated Entities shall
have an opportunity for a period of thirty (30) days to cure such breach, by
causing the inadvertently solicited customer to be moved back to the
Corporation. Notwithstanding the foregoing, the Affiliated Entities shall have
no opportunity to cure a breach in the event of an intentional solicitation in
violation of the non-solicitation provisions set forth in this Agreement, and
Corporation may immediately exercise all rights and remedies available to it.
c. The parties and each of them agree and acknowledge that:
(i) The terms contained in this Agreement are necessary for the reasonable and
proper protection of the Corporation's interests and the success of its business
and that Purchaser would not enter into this Agreement unless, by the execution
of this Agreement, the Affiliated Entities acknowledged their acceptance of
these terms.
(ii) Each and every covenant and restriction of this Agreement is reasonable,
including but not limited to those regarding subject matter, length of time, and
specific customers, given the nature of Corporation's operations, and the
provisions of this paragraph and all other terms of this Agreement are fully
enforceable in any state in the United States.
d. Employee further agrees that the four (4) year period of this
non-solicitation provision shall be extended by the period of time there is a
violation of any portion of this non-solicitation provision.
12 Confidential Information; Nondisclosure. Affiliated Entities acknowledge
that the Affiliated Entities and/or their shareholders, officers, directors,
employees, or agents, have had access to certain information, including but not
limited to Trade Secret Information, as hereinafter defined, and other
proprietary information, with respect to StormTel and/or the Corporation and
their customers, which is of independent economic value, both actual and
potential, because it is neither generally known to those other than StormTel
and/or the Corporation or their customers, nor is such information readily
ascertainable by proper means by those other than StormTel and/or the
Corporation or their customers ("Confidential Information"). This Confidential
Information includes, but is not limited to the following: information relating
to customer lists, Agent Contracts, StormTel and/or Corporation agent lists, and
StormTel and/or Corporation agent dealings.
Upon execution hereof, and at any time thereafter, Affiliated Entities agree
that neither any Affiliated Entity, nor any shareholder, director, officer,
employee, or agent of any Affiliated Entity, will disclose any Confidential
Information, in whole or in part, to any person or entity for any reason or
purpose whatsoever. Affiliated Entities agree that neither any Affiliated
Entity, nor any shareholder, director, officer, employee, or agent of any
Affiliated Entity, will duplicate, remove, download, disclose, or transfer any
Confidential Information in any manner whatsoever and shall at all times keep
such Confidential Information secure and confidential. Upon request by
Corporation, all records of Confidential Information including all
correspondence, magnetic discs and any other information storage media,
drawings, blueprints, manuals, letters, notes, notebooks, reports, flow-charts,
programs, proposals, documents concerning StormTel's and/or Corporation's
customers/clients, lists of potential or actual customers, documents concerning
products or processes used by StormTel and/or Corporation, and all other
documents, writings, and materials utilized by StormTel and/or Corporation,
together with any copies or other reproductions thereof shall be promptly
delivered by Affiliated Entities to Purchaser. Affiliated Entities agree that
all data bases, including, without limitation, computer files, letters, copies
of contracts, telephone logs, diaries, expense reports or any form of record or
memorandum of customers names, addresses, telephone numbers, contacts and/or
service records containing Confidential Information, is the exclusive property
of Corporation.
AFFILIATED ENTITIES FURTHER AGREE THAT FOR A PERIOD OF FOUR (4) YEARS FROM THE
DATE OF THIS AGREEMENT, AFFILIATED ENTITIES WILL NOT MAKE ANY WRITTEN OR VERBAL
STATEMENT TO ANY OF CORPORATION'S VENDORS OR AGENTS OR TO ANY OTHER INDIVIDUAL
OR ENTITY, WHICH WOULD CAST CORPORATION IN AN UNFAVORABLE LIGHT, WHETHER OR NOT
ANY SUCH STATEMENT IS TRUE OR UNTRUE.
13 Remedies. Affiliated Entities acknowledge that the injury to Purchaser
and/or the Corporation which would be occasioned by Affiliated Entities' failure
to abide by the terms of paragraphs 11, 12, 16 (a) and/or 16(b) of this
Agreement shall not be adequately compensated by monetary damages. Affiliated
Entities agree that as Purchaser's and/or the Corporation's remedy at law would
be inadequate, Purchaser and/or Corporation shall be entitled to seek and obtain
specific performance and immediate and permanent injunctive and other equitable
relief including but not limited to temporary restraining orders and/or
preliminary or permanent injunctions to restrain or enjoin any such violation,
without the necessity of posting a bond or other security. These remedies of
Purchaser and/or the Corporation are in addition to all other relief set forth
in this Agreement, available at law, or available in equity, together with the
right to receive attorney's fees and costs of pursuing available remedies and
enforcing the terms of this Agreement. Affiliated Entities hereby waive, with
respect to any future dispute related to this Agreement, any defense based on
the argument that CCC Merger, Purchaser and/or the Corporation will not be
irreparably harmed or that it has available to it an adequate remedy at law.
14 RELEASE OF ALL CLAIMS AGAINST CORPORATION. EACH OF THE AFFILIATED ENTITIES
HEREBY FOR ITSELF, AND ON BEHALF OF ITS PREDECESSORS, SUCCESSORS, ASSIGNS,
EMPLOYEES, AGENTS, DIRECTORS, SHAREHOLDERS, AND OTHER AFFILIATES, HEREBY FULLY
AND FINALLY RELEASES AND DISCHARGES THE CORPORATION FROM AND AGAINST ANY AND ALL
CLAIMS, ACTIONS, LIABILITIES, AND OBLIGATIONS OF EVERY KIND, NATURE AND
DESCRIPTION, WHETHER NOW KNOWN OR UNKNOWN, WHENEVER THEY AROSE, CONTINGENT OR
FIXED, INCLUDING BUT NOT LIMITED TO ANY AND ALL OBLIGATIONS FOR THE REPAYMENT OF
ANY LOANS MADE OR OTHER FUNDS DISTRIBUTED OR PAID TO, FOR, OR ON BEHALF OF THE
CORPORATION, OR ANY OTHER OBLIGATIONS TO ANY OF THE AFFILIATED ENTITIES EXISTING
PRIOR TO THE DATE OF THIS AGREEMENT. THE AFFILIATED ENTITIES UNDERSTAND AND
AGREE THAT THIS IS A FULL AND FINAL RELEASE OF ALL CLAIMS AGAINST THE
CORPORATION FOR ANY LIABILITY OR OBLIGATION EXISTING AS OF THE DATE OF EXECUTION
OF THIS AGREEMENT AND/OR RELATING TO MATTERS PRIOR TO THE DATE OF THIS
AGREEMENT; HOWEVER, NOTHING CONTAINED HEREIN WILL BE CONSTRUED AS A WAIVER BY
THE AFFILIATED ENTITIES OF ANY RIGHTS OR CLAIMS THAT MAY ARISE DUE TO A BREACH
BY THE CORPORATION OF ANY OBLIGATIONS UNDER THIS AGREEMENT.
15 INDEMNIFICATION. (a) IN THE EVENT OF ANY BREACH OF ANY REPRESENTATION,
WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, EACH OF THE AFFILIATED
ENTITIES HEREBY AGREES TO JOINTLY AND SEVERALLY INDEMNIFY AND HOLD HARMLESS
PURCHASER, ▇▇▇▇▇▇▇, AND CORPORATION FROM AND AGAINST ANY AND ALL LOSSES,
LIABILITIES, DAMAGES, DEMANDS, CLAIMS, SUITS, ACTIONS, JUDGMENTS, OR CAUSES OF
ACTION, ASSESSMENTS, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION,
INTEREST, PENALTIES, ATTORNEYS FEES, CONSULTANTS FEES, ANY AND ALL EXPENSES
INCURRED IN INVESTIGATING, PREPARING OR DEFENDING AGAINST ANY LITIGATION,
COMMENCED OR THREATENED, OR ANY CLAIM WHATSOEVER, AND ANY AND ALL AMOUNTS PAID
IN SETTLEMENT OF ANY CLAIM OR LITIGATION (COLLECTIVELY, "DAMAGES"), ASSERTED
AGAINST OR INCURRED OR SUFFERED BY PURCHASER OR THE CORPORATION, AS A RESULT OF
OR ARISING FROM ANY SUCH BREACH. THE AFFILIATED ENTITIES SHALL PAY PURCHASER OR
▇▇▇▇▇▇▇, AS THE CASE MAY BE, OR THEIR ATTORNEYS, AS DIRECTED BY ▇▇▇▇▇▇▇, AN
AMOUNT EQUAL TO THE ATTORNEY FEES INCURRED BY ▇▇▇▇▇▇▇ OR PURCHASER, AS THE CASE
MAY BE, WITH RESPECT TO ANY INDEMNIFIABLE CLAIM FOR DAMAGES UNDER THIS
AGREEMENT, WHICH ATTORNEY FEES SHALL BE PAID BY THE AFFILIATED ENTITIES
IMMEDIATELY UPON DEMAND THEREFOR.
(b) IN THE EVENT OF ANY BREACH BY PURCHASER OF ANY REPRESENTATION, WARRANTY, OR
COVENANT CONTAINED IN THIS AGREEMENT, PURCHASER SHALL INDEMNIFY AND HOLD
HARMLESS CCC MERGER, AND PTC FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES,
DAMAGES, DEMANDS, CLAIMS, SUITS, ACTIONS, JUDGMENTS, OR CAUSES OF ACTION,
ASSESSMENTS, COSTS, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, INTEREST,
PENALTIES, ATTORNEYS' FEES, CONSULTANTS' FEES, ANY AND ALL EXPENSES INCURRED IN
INVESTIGATING, PREPARING OR DEFENDING AGAINST ANY LITIGATION, COMMENCED OR
THREATENED, OR ANY CLAIM WHATSOEVER, AND ANY AND ALL AMOUNTS PAID IN SETTLEMENT
OF ANY CLAIM OR LITIGATION (COLLECTIVELY, "DAMAGES'), ASSERTED AGAINST OR
INCURRED OR SUFFERED BY PTC OR CCC MERGER, AS A RESULT OF OR ARISING FROM ANY
SUCH BREACH. PURCHASER SHALL PAY PTC OR CCC MERGER AS THE CASE MAY BE, OR THEIR
ATTORNEYS, AS DIRECTED BY PTC OR CCC MERGER, AN AMOUNT EQUAL TO THE ATTORNEY
FEES INCURRED BY PTC OR CCC MERGER, AS THE CASE MAY BE, WITH RESPECT TO ANY
INDEMNIFIABLE CLAIM FOR DAMAGES UNDER THIS AGREEMENT, WHICH SHALL BE PAID BY
PURCHASER IMMEDIATELY UPON DEMAND THEREFOR.
16 Deliveries. Concurrently with the execution of this Agreement, the parties
shall deliver the following:
a CCC Merger shall deliver to Purchaser stock certificates of Corporation,
evidencing the Controlling Shares, duly endorsed for transfer to Purchaser free
and clear of all liens, security interests, and adverse claims. Affiliated
Entities shall exercise their best efforts to cause to be delivered to Purchaser
within ninety (90) days thereafter, stock certificates of the Corporation
evidencing the Minority Shares, duly endorsed for transfer to Purchaser free and
clear of all liens, security interests, and adverse claims.
b Purchaser shall deliver to CCC Merger the purchase price as provided in
paragraph 2 hereinabove.
c Purchaser and Affiliated Entities shall each execute and deliver such other
documents as are provided for in this Agreement.
17 Release by Corporation; Assumption by Affiliated Entities. Corporation
hereby releases the Affiliated Entities from any obligations to the Corporation
under the Merger Agreement, and any other obligations to the Corporation
existing prior to the date of this Agreement; provided, however, the Affiliated
Entities are not released of any obligation which they may have to any other
individual or entity under said Merger Agreement; provided further, however,
that the Affiliated Entities hereby agree to assume and perform any and all
obligations of the Corporation under said Merger Agreement with respect to any
other individual or entity. Nothing contained herein shall be construed as
releasing the Affiliated Entities of any obligations under this Agreement or
under any of the promissory notes or other documents executed in connection
herewith.
18 Good Faith; Further Assurances. The parties to this Agreement shall in good
faith undertake to perform their obligations under this Agreement, to satisfy
all conditions and to cause the transactions contemplated by this Agreement to
be carried out promptly in accordance with the terms of this Agreement. Upon
the execution of this Agreement and thereafter, each party shall do such things
as may be reasonably requested by the other party hereto in order more
effectively to consummate or document the transactions contemplated by this
Agreement.
19 Survival of Representations, Warranties and Covenants. All of the
representations, warranties, and covenants contained herein shall survive the
execution of this Agreement and the consummation of the transaction contemplated
herein. Such execution and consummation shall not be considered to be a waiver
of any misrepresentation or breach of warranty or covenant, and each party may
exercise any and all rights and remedies as provided for herein.
20 Waivers. No waiver by any party of, or consent by such party to, a
variation from, or breach of, or default under any provision of this Agreement
shall be effective unless made in a written instrument duly executed on behalf
of such party by its duly authorized officer or such individual (as the case may
be), and any such waiver or consent shall be limited solely to those rights or
conditions expressly so waived or consented to. No failure or delay on the part
of any party in exercising any power, right or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power preclude any other or further exercise thereof, or the
exercise of any other right or power under this Agreement. No other actions
taken by any party, including, without limitation, any investigation by or on
behalf of such party, and no failure to take action, shall be deemed to
constitute a waiver or an extension by such party of compliance with any
representation, warranty, condition, agreement or indemnification set forth in
this Agreement.
21 Parties Bound. This Agreement shall be binding upon the successors and
assigns of the parties hereto.
22 Amendments. This provision, and each and every other provision of this
agreement may not under any circumstance be modified, changed, amended or
provisions hereunder waived verbally, buy may only be modified, changed, amended
or provisions hereunder waived by an agreement in writing executed by all
parties hereto.
23 Severability. If fulfillment of any provision of this Agreement or
performance of any act contemplated hereby, at the time such fulfillment or
performance shall be due, shall exceed the limit of validity prescribed by law,
then the obligation to be fulfilled or performed shall be reduced to the limit
of such validity; and, if any clause or provision contained in this agreement or
in any document or instrument to be delivered pursuant hereto, operates or would
operate to invalidate this Agreement or such document or instrument, in whole or
in part, such clause or provision shall be held ineffective, as though not
herein or therein contained, and the remainder of this Agreement or such
document or instrument shall remain operative and in full force and effect.
24 Notices. All notices, requests, demands and other communications hereunder
shall be deemed to be fully given only if mailed by United States Certified
Mail, postage prepaid, return receipt requested, addressed as follows:
To Purchaser: ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
To Affiliated Entities: ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may change its address for notices by written notice to all other
parties in accordance with this paragraph.
25 Interpretation. The language in all parts of this Agreement shall in all
cases be construed as a whole according to its fair meaning, strictly neither
for nor against Purchaser or the Affiliated Entities, and without implying a
presumption that the terms hereof shall be more strictly construed against one
(1) party by reason of any rule of construction to the effect that a document is
to be construed more strictly against the party who personally or through such
party's agent prepared the same.
26 Applicable Law; Arbitration. This Agreement shall be governed and construed
under the laws of the State of Florida, not including the choice of law rules
thereof. Except as provided for in this Agreement, or in any instrument
executed in connection herewith, including but not limited to any promissory
note made in connection herewith, any and all disputes, complaints,
controversies, claims and grievances arising under, out of, in connection with,
or in any manner related to this Agreement or the relationship of parties
hereunder (an "Arbitrable Event") shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Each of the parties hereto expressly waives the right to conduct
any discovery in connection with such arbitration proceedings. In the event of
an Arbitrable Event, any party may request that an arbitrator be appointed by
the American Arbitration Association, and such matter be arbitrated, within
fifteen (15) days of the request of the appointment of such arbitrator. A
decision concerning such matter shall be made and given by the arbitrator within
fifteen (15) days after such arbitration. Notwithstanding said Rules, any
arbitration hearing to take place hereunder shall be conducted in Clearwater,
Florida, before one (1) arbitrator who shall be an attorney who has substantial
experience in commercial law issues. Either party may apply to any court of
competent jurisdiction for specific performance or injunctive relief or other
interim measures: (i) as expressly provided for elsewhere in this Agreement;
(ii) in aid of the arbitration proceedings; or (iii) to enforce the arbitration
award, but not otherwise. Any such application to a court shall not be deemed
incompatible or a waiver of this section. The arbitrator shall be required to
make written findings of fact and conclusions of law to support its award. The
arbitrator shall award costs and attorney fees to the most prevailing party in
any such arbitration. If any party to the arbitration does not appear at the
arbitration at the time and place set for arbitration, the arbitrator shall make
his decision based upon the testimony and evidence of the party present, and the
non-present party shall waive its right to present evidence or testimony to the
arbitrator. In rendering its judgment and award, the arbitrator shall have no
power to add or detract from the terms and conditions set forth in this
Agreement, and shall render its award and judgment strictly in accordance with
the terms and conditions hereof. The decision of the arbitrator will be final
and binding and the decision shall be entered as a final judgment in any Court
of competent jurisdiction. The Court shall grant summary judgment solely on the
basis of the arbitrator's finding of fact and decision.
27 Heading. The descriptive headings of the paragraphs of this Agreement are
inserted for convenience only and do not constitute a part of the Agreement.
28 Counterparts. This Agreement and all Exhibits, attachments, appendices, and
schedules attached hereto, and any other document executed in connection
herewith, may be executed in two or more counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same document.
Facsimile transmissions and/or photocopies of a signed counterpart of this
Agreement, or any such document shall be considered for all purposes to
constitute the delivery of a properly executed original of this Agreement or any
such document.
29 Corporate Authority. Each individual signing below represents that he or
she has all necessary corporate power and authority to enter into, execute and
perform this Agreement for and on behalf of the party for which such person is
signing. Attached hereto as Exhibit "R-1", "R-2", "R-3", "R-4", "R-5", "R-6",
"R-7", "R-8", and "R-9", and incorporated herein by reference, are Board of
Director Resolutions for each of the Affiliated Entities and Corporation. The
Affiliated Entities each represent and warrant that said corporate resolutions
were duly enacted and remain in full force and effect, and that no further
approvals or other corporate action is required, and this Agreement and the
obligations contained herein, are the binding obligations of the Affiliated
Entities, enforceable in accordance with their terms.
30 Consultation With Attorneys. Each of the Affiliated Entities hereby
acknowledges that each of the Affiliated Entities and their Board of Directors
have had an opportunity to consult with an attorney to review this Agreement
prior to the execution hereof and prior to the approval of such Agreement by
said Board of Directors.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this agreement the year and date
first above written.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"PURCHASER"
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"
PROGRESSIVE TELECOMMUNICATIONS
CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"PTC"
CCC MERGER CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"CCC MERGER"
CCC COMMUNICATIONS
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"CORPORATION"
STORMTEL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"STORMTEL"
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"B-MALL SHELL"
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, President
"DEFUNCT YELLOW PAGE"
PROGRESSIVE TELECOMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"PROGRESSIVE SHELL"
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇., CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
"YPD"