EXHIBIT 6.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 26th day of March, 1998, by and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇., Trustee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. 1995
Revocable Trust dated May 25, 1995, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Living Trust dated October 28, 1994, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, (hereinafter sometimes individually referred to as a
"Seller" and hereinafter collectively, jointly and severally referred to as the
"Sellers"); and FULLNET COMMUNICATIONS, INC., an Oklahoma corporation (the
"Purchaser").
EXPLANATORY STATMENT
A. The Sellers constitute all of the shareholders and all of the
directors of ANIMUS COMMUNICATIONS, INC. ("Company"), an Oklahoma corporation
that is engaged in the business of providing Web Hosting Services, selling
computer equipment and providing configuration and maintenance thereof (the "Web
Services").
B. The Sellers own of record and beneficial]y and in the aggregate
6,000 shares of the $1.00 common stock (the "Common Stock") of the Company (such
6,000 shares of Common Stock shall be hereinafter collectively referred to as
the "Sellers' Shares"). The Sellers' Shares constitute all of the issued and
outstanding capital stock of the Company.
C. The Sellers desire to sell, assign, transfer and deliver to
Purchaser, and the Purchaser desires to purchase, all, but not less than all, of
the Sellers Shares on the terms and subject to the conditions hereinafter
contained.
NOW, THEREFORE, in consideration of the Explanatory Statement that
shall be deemed to be a substantive part of this Agreement, the mutual
covenants, promises agreements, representations and warrantees contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged the parties hereby agree as follows:
1. Purchase and Sale of the Sellers Shares.
1.1. Purchase and Sale. On the terms and subject to the
conditions set forth in this Agreement, at the Closing on the Closing Date, the
Sellers shall each sell, assign, transfer and deliver to the Purchaser and the
Purchase shall purchase from each of the Sellers, that number of the Sellers'
Shares as is set forth opposite the name of each of the Sellers as follows:
Number of Sellers
Shares That Shall Be
Sellers Sold to Purchaser
------- -----------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 1,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
Trustee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. 1995 Revocable
Trust Agreement dated the 25th
day of May, 1995 1,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust
dated October 28,1994 1,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,000
▇▇▇▇▇ ▇▇▇▇▇ 1,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 1,000
------
TOTAL SHARES 6,000
======
1.2. Purchase Price: Transfer of Securities.
1.2.1. The total purchase price that shall be paid
by Purchaser to the Sellers for the Sellers Shares shall be Three Hundred Fifty
Thousand and no/100 Dollars ($350,000.00) (the "Purchase Price"), subject to the
following terms. Of that Purchase Price, One Hundred Seventy-Five Thousand and
no/100 Dollars ($175,000.00) shall be paid at the Closing by bank cashier's
check or by wire transfer into bank accounts to be designated by Sellers, and
allocated among the Sellers as follows:
Names Consideration
----- -------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ $ 23,333.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
Trustee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. 1995 Revocable
Trust Agreement dated the 25th
day of May, 1995 40,834.00
2
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust
dated October 28, 1994 40,834.00
▇▇▇▇▇ ▇▇▇▇▇▇▇ 23,333.00
▇▇▇▇▇ ▇▇▇▇▇ 23,333.00
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 23,333.00
TOTAL $ 175,000.00
============
1.2.2. Fifty Thousand and no/100 Dollars ($50,000.00)
of the Purchase Price shall be paid six months from the date of Closing by bank
cashier's check or wire transfer to bank accounts designated by Sellers and
allocated among the Sellers as follows:
Name Consideration
---- -------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Trustee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. 1995 Revocable
Trust Agreement dated the 25th
day of May, 1995 $ 14,583.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust
dated October 28, 1994 14,583.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 5,208.50
▇▇▇▇▇ ▇▇▇▇▇▇▇ 5,208.50
▇▇▇▇▇ ▇▇▇▇▇ 5,208.50
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 5,208.50
--------
TOTAL $ 50,000.00
===========
1.2.3. The remaining One Hundred Twenty-Five Thousand
and no/l00 Dollars ($125,000.00) of the Purchase Price, subject to the
provisions of paragraph 1.2.4. hereof, shall be paid on April 1, 1999, by bank
cashier's check or funds wire transferred into accounts designated to each
Seller and allocated among the Sellers as follows:
3
Names Consideration
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ $ 29,792.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
Trustee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. 1995 Revocable
Trust Agreement dated the 25th
day of May, 1995 2,916.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust
dated October 28, 1994 2,916.00
▇▇▇▇▇ ▇▇▇▇▇▇▇ 29,792.00
▇▇▇▇▇ ▇▇▇▇▇ 29,792.00
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 29,792.00
TOTAL $125,000.00
===========
1.2.4. The final payment of One Hundred Twenty-Five
Thousand and no/100 Dollars ($125,000.00) may be adjusted downward to reflect
the one year gross revenues actually produced by Company. If Company's gross
revenue at the end of 12 months of operation does not equal or exceed the
purchase Price, i.e. $350,000.00, the final payment will be adjusted so that the
final Purchase Price is equal to the gross revenue attributable to Company's
business between April 1, 1998 and March 31, 1999. "Gross revenue" is defined as
total cash receipts during the period April 1,1998 through March 31, 1999, plus
the accounts receivable on the books at March 31, 1999.
1.2.5. At Closing, the Sellers shall deliver to the
Purchaser stock certificate numbers 001, 004, 005, 007, 008, and 009 of the
Company, representing the Sellers' Shares owned of record and beneficially by
each of the Sellers, duly endorsed in blank, or accompanied by assignments
separate from certificate duly endorsed in blank. Sellers represent and warrant
to the Purchaser that at the time of such transfer, the Sellers' Shares shall be
free and clear of all liens, security interests and encumbrances.
1.2.6. Purchaser will execute a Promissory Note (the
"Note") on the balance of the Purchase Price not paid at closing ($175,000.00)
which Note shall be co-made by the Purchaser and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("Kilkenny"), the principal shareholder of PURCHASER. The co-making of the
Promissory Note by Kilkenny is a part of the consideration to Sellers from
Purchaser. A copy of the Promissory Note to be delivered to Sellers at Closing
is attached hereto as Exhibit "A" and made a part hereof.
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1.2.7. Prior to or at closing, Sellers shall cause
Company to distribute to Sellers all accounts receivable and cash of the Company
in existence through March 31, 1998. The sale of Company by Sellers specifically
does not include cash or accounts receivable of Company.
2. Closing
2.1. The closing of the purchase and sale of the Sellers'
Shares provided for by this Agreement (referred to throughout this Agreement as
the "Closing") shall take place at the offices of Animus Communications, Inc.,
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, on March 26, 1998, at
11:00 A.M., or at such other date, time and place to be agreed upon in writing
by all the parties.
2.2. At the Closing, the following actions, among others,
shall occur:
2.2.1. The Sellers shall deliver to the Purchaser:
2.2.1.1. Share Certificates owned by sellers
properly endorsed in blank;
2.2.1.2. Resignation of all Officers and
Directors of Company.
2.2.2. Purchaser shall deliver to Sellers:
2.2.2.1. Cashier's checks or wire transfer
advices in the amounts set out in paragraph 1.2.1. hereof.
2.2.2.2. The Promissory Note executed by
Purchaser and Kilkenny in the form as set out on Exhibit "A" hereto.
2.2.2.3. Certificate of Authority of the
Secretary of Purchaser in the form as set out on Exhibit "B" hereto and made a
part hereof.
2.2.3. Company shall distribute to Sellers
all cash and accounts receivable of Company if such distribution has not been
effected prior to closing.
3. Representations and Warranties.
3.1. Representations and Warranties of Sellers. The
Sellers represent and warrant to the Purchaser that to Sellers' best knowledge
and belief:
3.1.1. Ownership of Sellers' Shares. Each Seller
is the sole and exclusive record and beneficial owner of that number of the
Sellers' shares as is set forth opposite his name in Section 1.1. hereof,
subject to the provisions of a Shareholder's Agreement by and among the Sellers
and the Company. The Sellers possess good title to the Sellers' Shares, and own
5
the Sellers' Shares free and clear of any and all security interests,
agreements, restrictions, claims, liens, pledges and encumbrances of any nature
or kind. Subject to the Shareholder's Agreement, the Sellers have the absolute
and unconditional right to sell, assign, transfer and deliver the Sellers'
Shares to the Purchaser in accordance with the terms of this Agreement.
3.1.2. Due Organization, Good Standing, Authority
of the Company. The Company is a corporation duly organized, validly existing as
a stock corporation, and in good standing under the laws of the State of
Oklahoma. Company has full right, power and authority to own its properties and
assets, and to carry on its business as a provider of Web Services. The Company
is duly licensed, qualified and authorized to do business as a foreign
corporation, and is in good standing, in each jurisdiction in which the
properties and assets owned by it or the nature of the business conducted by it
makes such licensing, qualification and authorization legally necessary. A
complete and correct copy of the Company's certificate of incorporation, as
amended to the date of this Agreement (the "Certificate"), and bylaws as amended
to the date of this Agreement (the "Bylaws"), have been heretofore provided to
Purchaser. The Certificate and the Bylaws are in full force and effect, and the
Company is not in breach or violation of any of the provisions thereof.
3.1.3. Validity of Agreement. The Sellers have the
legal capacity and authority to enter in to this Agreement. This Agreement is a
valid and legally binding obligation of the Sellers and is fully enforceable
against the Sellers in accordance with its terms, except as such enforceability
may be limited by general principles of equity, bankruptcy, insolvency,
moratorium and similar laws relating to creditors' rights generally.
3.1.4. Capitalization, the Company Stock: Related
Matters. Company's authorized capital stock consists of 50,000 shares of common
stock, $1.00 par value per share, of which 6,000 shares, namely, the Sellers'
Shares, are issued and outstanding and owned of record and beneficially by each
Seller as is set forth opposite the name of each Seller in Section 1.1. hereof.
The Sellers' Shares have been duly, legally and validly issued, and are fully
paid and nonassessable. Delivery of the Sellers' Shares by the Sellers to the
Purchaser at the Closing on the closing Date pursuant to this Agreement will
transfer to the Purchaser full and entire legal and equitable title to 100% of
the issued and outstanding capital stock of the Company.
3.1.5. No Subsidiaries. The Company oes not have
any subsidiaries and does not, directly or indirectly, own any interest in or
control any corporation, partnership, joint venture or other business entity.
3.1.6. Agreement not in conflict with Other
Instruments: Required Approvals Obtained. The execution, delivery and
performance of this Agreement by the Sellers and the consummation of the
transactions contemplated by this Agreement will not (a) violate or require any
registration, qualification, consent, approval, or filing under, (i) any law,
statute, ordinance, rule or regulation (hereinafter collectively referred to as
"Laws") of any federal, state or local government (hereinafter collectively
referred to as "Governments") or any agency, bureau, commission or
instrumentality of any Governments (hereinafter collectively referred to as
"Governmental Agencies"), or (ii) any judgment, injunction, order, writ or
6
decree of any court, arbitrator, Government or Governmental Agency by which the
Company or any of its assets or Properties is bound; (b) conflict with, require
any consent, approval, or filing under, result in the breach or termination of
any provision of, constitute a default under, result in the acceleration of the
performance of the Company's obligations under, or result in the creation of any
claim, security interest, lien, charge, or encumbrance upon any of the Company's
properties, assets, or businesses pursuant to (i) the Company's Certificate or
Bylaws, (ii) any indenture, mortgage, deed of trust, license, permit, approval,
consent, franchise, lease, contract or other instrument or agreement to which
the Company is a party or by which the Company or any of the Company's assets or
properties is bound, or (iii) any judgment, injunction, order, writ or decree of
any court, arbitrator, Government or Governmental Agency by which the Company of
any of its assets or properties is bound.
3.1.7. Conduct of Business in Compliance with
Regulatory and Contractual Requirements. The Company has conducted and is
conducting the Company's business in compliance with all applicable Laws of all
Governments and Governmental Agencies.
3.1.8. Legal Proceedings. There is no action,
suit, proceeding, claim, arbitration or investigation by any Government,
Governmental Agency or other Person (a) pending to which Company is a party, (b)
threatened against or relating to Company or any of Company's assets or
businesses, (c) challenging Company's right to execute, acknowledge, seal,
deliver, perform under or consummate the transactions contemplated by this
Agreement, or (d) asserting any right with respect to any of the Sellers'
Shares, and there is no basis for any such action, suit, proceeding, claim,
arbitration or investigation.
3.1.9. Financial Statements: Undisclosed
Liabilities. The Financial Statements dated as of the 31st day of December, 1997
are in accordance with the books and records of Company, and are true, correct
and complete and accurately present Company's financial position for the periods
then ended, all in conformity with accounting principles utilized by the Company
on a consistent basis during each period and on a basis consistent with that of
prior periods. Except (a) as disclosed in the Financial Statements, and (b) as
disclosed in this Agreement, Company has no liabilities or obligations of any
nature or kind, known or unknown, whether accrued, absolute, contingent or
otherwise.
3.1.10. Tax Matters. Company has duly and
timely filed with all appropriate Governmental Agencies, all tax returns,
information returns and reports required to be filed by Company. Company has
paid in full all taxes (including taxes withheld from employees' salaries and
other withholding taxes and obligations), interest, penalties, assessments and
deficiencies owned by Company to all taxing authorities. All information
reported on the Returns is true, accurate and complete. All claims by the IRS or
any state taxing authorities for taxes due and payable by Company have been paid
by Company. All federal income tax returns required to be filed by Company have
either been examined by the IRS, or the period during which any assessments may
be made by the IRS has expired without waiver or extension for all years, and
any deficiencies or assessments claimed or made have been paid, settled or fully
provided for in Company's Financial Statements. Company has not adopted a plan
7
of complete liquidation under the Internal Revenue code of 1986, as amended (the
"Code"), or filed a consent pursuant to Section 341(f) of the code. Company is
not a party to, and is not aware of, any pending or threatened action, suit,
proceeding or assessment against it for the collection of taxes by any
Governmental Agency.
3.1.11. Accounts Receivable and Accounts Payable.
Company's accounts receivable (collectively, the "Accounts Receivable") Are bona
fide accounts receivable, the full amount of which is actually owing to Company.
Company's accounts payable arose from bona fide transactions in the ordinary
course of Company's business.
3.1.12. No Real Property. Company does not own or
have any interest in any real estate.
3.1.13. Condition of Personal Property. The
Company has sole and exclusive, good and merchantable title to all of the
Personal Property owned by it, free and clear of all pledges, claims, liens,
restrictions, security interests, charges and other encumbrances. AU of the
Personal Property is in good repair and good operating condition, fit for its
intended purposes, and is adequate for the continuation of Company's business as
a provider of Web Services and in selling computer equipment provider.
3.1.14. Pension Plans. Company does not own or have
any interest in any pension plans.
3.1.15. Benefit Plans. With respect to each benefit
plan Company may have an interest in, Company has complied with all reporting
and disclosure obligations under ERISA, and all documents arid report forms
submitted for such purposes are complete and accurate in all materiel respects.
Also, with respect to each Benefit Plan, (a) no prohibited transaction (as
defined in Section 4975 of the Code and Section 406 of ERISA) has occurred; (b)
each Benefit Plan is in conformity with ERISA and all other applicable laws; (c)
Company is not in default in any material respect in performing any of its
contractual or legal obligations; (d) all Persons having any fiduciary
responsibility are in compliance in all material respects with the applicable
provisions of ERISA; (e) there has not been a breach of any fiduciary duty; (f)
there are no pending ruling requests or appeals (either formal or informal),
investigations, or audits by or before any Governmental Agency; and (g) there is
no claim, demand, suit, proceeding or cause of action pending, or threatened
with respect to any Benefit Plan, and there is no liability except for
reasonable and customary administrative expenses and benefits payable pursuant
to the terms of each Benefit Plan.
3.1.16. Employee Relations and Employment Agreements.
3.1.16.1. None of Company's employees is
represented by a labor organization. No petition for representation has ever
been filed with the National Labor Relations Board (the "NLRB") with respect to
employees. Sellers are not aware of any union organizational activity with
respect to Company and have no reason to believe that any such activity is being
contemplated.
8
3.1.16.2. Company is not in violation of
applicable equal employment opportunity laws, wage and hour laws, occupational
safety and health laws, federal labor laws or any other Laws of any government
or Governmental Agency relating to employment. Sellers have disclosed to the
Purchaser the status of all investigations, claims, charges and
employment-related suits or controversies which have occurred with respect to
Company since its incorporation or which are presently pending or threatened
with respect to Company under any employment related Law of any Government or
Governmental Agency (including common law). Company has satisfied and performed
fully all judgments, decrees, conciliation agreements, or settlement agreements
by which it is bound or to which it is subject concerning employment-related
matters
3.1.16.3. Except as provided in Exhibit "C",
Company has not entered into any employment agreement and all employees can be
terminated at will. Company has no contractual obligation or special termination
or severance arrangement in respect of any employee.
3.1.16.4. Company has paid all wages due
(including all required taxes, insurance, and withholding thereon) through the
date of this Agreement.
3.1.17. Books and Records; Fiscal Year;
Method of Accounting. Company has made available to the Purchaser all of its
tax, accounting, corporate and financial books and records. The books and
records pertaining to Company's business made available to the Purchaser are
true, correct and complete, have been maintained on a current basis, and fairly
reflect the basis for Company's financial condition and results of operations as
set forth in its Financial Statements. Company has consistently used the fiscal
year ending December 31 as its taxable year, and has consistently used the cash
receipts and disbursements method of accounting for tax purposes.
3.1.18. Adverse Conditions. The Sellers have
no knowledge of any present or future condition, state of facts or circumstances
which has affected or may affect adversely the business of Company or prevent
Company from carrying on its business.
3.1.19. Full Disclosure. This Agreement
(including the Exhibits hereto) does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements contained herein not misleading. There is no fact known to Sellers or
Company which is not disclosed in this Agreement which materially adversely
affects the accuracy of the representations and warranties contained in this
Agreement or Company's financial condition, results of operations, business or
prospects.
3.1 20. No Brokerage. The Sellers have not
incurred any obligation or liability, contingent or otherwise, for brokerage
fees, finder's fees, agent's commissions or the like in connection with this
Agreement or the transactions contemplated hereby.
9
3.2. Representations and Warranties of the Purchaser. The
Purchaser represents and warrants to Sellers that:
3.2.1. Due Organization; Good Standing; Power. The
Purchaser is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Oklahoma. The Purchaser has all
requisite corporate power to enter into this Agreement and to perform its
obligations hereunder.
3.2.2. Authorization and Validity of Documents. The
execution, delivery and performance of this Agreement by the Purchaser, and the
consummation by the Purchaser of the transactions contemplated hereby, have been
duly and validly authorized by the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser and is a legal, valid and binding
obligation of the Purchaser.
3.2.3. No Brokerage. The Purchaser has not incurred
any obligation or liability, contingent or otherwise, for brokerage fees,
finder's fees, agent's commissions or the like In connection with this Agreement
or the transactions contemplated hereby.
3.2.4. Adverse Conditions. The Purchase has no
knowledge of any present or future condition, state of facts or circumstances
which have affected or may affect adversely the business of Purchaser or prevent
Purchaser from carrying on its business or which would prevent or render
Purchaser unable to timely complete the defined purchase provisions of this
Agreement.
3.2.5. Full Disclosure. This Agreement (including the
Exhibits hereto) does not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements contained
herein not misleading. There is no fact known to Purchaser which is not
disclosed in this Agreement which materially adversely affects the accuracy of
the representations and warranties contained in this Agreement or Purchaser's
financial condition, results of operations, business or prospects.
4. Covenants against Competition.
4.1. Sellers' Agreement Not to Compete. For a period of
three (3) years commencing on the date of Closing, Sellers shall not, within
Oklahoma County, Oklahoma, directly or indirectly, own, manage, operate, joint
or control, or participate in the ownership, management, operation or control
of, or be a shareholder or employee of, or a consultant to, any business, firm,
corporation or entity which is conducting any business which competes with the
Web Services. As a violation by Sellers of the provisions of this section could
cause irreparable injury to the Purchaser and there is no adequate remedy at law
for such violation, the Purchaser shall have the right, in addition to any other
remedies available to it, at law or in equity, to enjoin Sellers in a court of
equity for violating such provisions.
To the extent that any provision or portion of this section shall
be held, found or deemed to be unreasonable, unlawful or unenforceable by a
court of competent jurisdiction, then any such provision or portion thereof
shall be deemed to be modified to the extent necessary in order that any such
10
provision or portion thereof shall be legally enforceable to the maximum extent
permitted by applicable law, and any court of competent jurisdiction shall, and
the parties hereto do hereby expressly authorize, request and empower any court
of competent jurisdiction to enforce any such provision or portion thereof or to
modify any such provision or portion thereof in order that any such provision or
portion thereof shall be enforced by such court to the maximum extent permitted
by applicable law.
5. Liabilities of Seller. With the exception of certain
contractual obligations of Company as set out on Exhibit "D" hereto, all
liabilities of Seller shall be paid by Seller on or before Closing.
6. Additional Covenants of the Parties. At the Closing on the
Closing Date:
6.1. Resignations of Officers and Directors of Company.
The resignation of each of Company's officers and directors effective at the
Closing on the Closing Date shall have been executed and delivered to Purchaser
by each such officer and director.
7. Indemnification.
7.1. Indemnification by the Sellers. The Sellers shall
defend, indemnify and hold harmless the Purchaser, its officers, directors,
shareholders, agents, servants and employees, and their respective heirs,
personal and legal representatives, guardians, successors and assigns, from and
against any and all claims, threats, liabilities, taxes, interest, fines,
penalties, suits, actions, proceedings, demands, damages, losses, costs and
expenses (including attorneys' and experts' fees and court costs) of every kind
and nature arising out of, resulting from, or in connection with:
7 1.1. Any misrepresentation or breach by Sellers
or any of Sellers of any representation or warranty contained in this Agreement.
7.1.2. Any nonfulfillment, failure to comply or
breach by Sellers or any of Sellers of or with any covenant, promise or
agreement of the Sellers or any of Sellers contained in this Agreement.
7.1.3. Any act, failure to act or omission prior to
the Closing Date by any Participant.
7.2. Indemnification by the Purchaser. The Purchaser shall
defend, indemnify and hold harmless the Sellers and their respective heirs,
personal and legal representatives, guardians, successors and assigns, from and
against any and all claims, threats, liabilities, taxes, interest, fines,
penalties, suits, actions, proceedings, demands, damages, losses, costs and
expenses (including attorneys' and experts' fees and court costs) of every kind
and nature arising Out of, resulting from, or in connection with:
7.2.1. Any misrepresentation, omission or breach by
Purchaser of any representation or warranty contained in this Agreement.
7.2.2. Any nonfulfillment, failure to comply or breach
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by the Purchaser of or with any covenant, promise or agreement of the Purchaser
contained in this Agreement.
8. General.
8.1. Survival of Representations, Warranties, and
Agreements. All of the representations, warranties, covenants, promises and
agreements of the parties contained in this Agreement (or in any document
delivered or to be delivered pursuant to this Agreement or in connection with
the Closing) shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
8.2. Entire Agreement. This Agreement (including all
Exhibits hereto which are incorporated herein by this reference) constitutes the
full, entire and integrated agreement between the parties hereto with respect to
the subject matter hereof, and supercedes all prior negotiations,
correspondence, understandings and agreements among the parties hereto
respecting the subject matter hereof.
8.3. Assignability. This Agreement shall not be
assignable by any party hereto without the prior written consent of the other
parties hereto.
8.4. Binding Effect; Benefit. This Agreement shall inure
to the benefit of and be binding upon the parties hereto, each other Person who
is indemnified under any provision of this Agreement, and their respective
heirs, personal and legal representatives, guardians, successors and, in the
case of Purchaser, its permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights, remedies,
obligations or liabilities.
8.5. Severability. Any provision of this Agreement which
is held by a court of competent jurisdiction to be prohibited or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability,
without invalidating or rendering unenforceable the remaining provisions of this
Agreement.
8.6. Amendment; Waiver. No provision of this Agreement
may be amended, waived or otherwise modified without the prior written consent
of all of the parties hereto. No action taken pursuant to this Agreement,
including any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representation, warranty, covenant or agreement herein contained. The waiver by
any party hereto of a breach of any provision or condition contained in this
Agreement shall not operate or be construed as a waiver of any subsequent breach
or of any other conditions hereof.
8.7. Section Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
8.8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
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8.9. Applicable Law. This Agreement is made and entered
into, and shall be governed by and construed in accordance with, the laws of the
State of Oklahoma.
8.10. Remedies. The parties hereto acknowledge that the
Sellers' Shares are unique; that any claim for monetary damages may not
constitute an adequate remedy; and that it may therefore be necessary for the
protection of the parties and to carry out the terms of this Agreement to apply
for the specific performance of the provisions hereof. Accordingly, no objection
to the form of the action or the relief prayed for in any proceeding for
specific performance of this Agreement shall be raised by any party, in order
that such relief may be expeditiously obtained by an aggrieved party. All
parties may proceed to protect and enforce their rights hereunder by a suit in
equity, transaction at law or other appropriate proceeding, whether for specific
performance or for an injunction against a violation of the terms hereof or in
aid of the exercise of any right, power or remedy granted hereunder or by law,
equity or statute or otherwise. No course of dealing and no delay on the part of
any party hereto in exercising any right, power or remedy shall operate as a
waiver thereof or otherwise prejudice its rights, powers or remedies, and no
right, power or remedy conferred hereby shall be exclusive of any other right,
power or remedy referred to herein or flow or hereafter available at law, in
equity, by statute or otherwise.
8.11. Notices. All notices, offers, acceptances,
exercises of options, waivers and other acts under this Agreement shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by first class mail with postage prepaid, or sent by telex, telegram or
facsimile, as follows:
If to the Sellers:
ANIMUS COMMUNICATIONS, INC.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
WHTE, COFFEY, GALT & ▇▇▇▇, P.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Fax - (405) ▇▇▇-▇▇▇▇
If to the Purchaser:
FULLNET COMMNICATIONS, INC.
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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or to such other address as a party shall have specified by notice in writing to
the other parties. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date of personal
delivery or on the third business day after the mailing thereof or on the date
of confirmation of transmission of any telex, telegram or facsimile.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the date first above written.
SELLERS:
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
Trustee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. 1995 Revocable
Trust Agreement dated the 25th
of May, 1995
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust dated October 28,
1994
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
PURCHASER:
FULLNET COMMUNICATIONS, INC.
ATTEST:
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, President
14