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Exhibit (10) 43
AGREEMENT TO EXCHANGE STOCK
This stock purchase agreement, made and entered into on
14th day of November, 1997, by and between ▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Sellers") and Systems Communications,
Inc., a Florida corporation ("SCI").
WITNESSETH:
WHEREAS, Sellers own all of the issued and outstanding
capital stock of HMG HealthCare Claims Auditing, Inc.
("HMG"), a Pennsylvania corporation, which is engaged in the
business of auditing medical ▇▇▇▇▇▇▇▇ and has its principal
place of business which is located in Pittsburgh,
Pennsylvania; and,
WHEREAS, SCI is a publicly owned corporation which is
engaged in the purchase of companies and businesses in the
healthcare cost containment industry; and,
WHEREAS, Sellers desire SCI to acquire control of HMG
and SCI's Board of Directors desires SCI to acquire control
of HMG; and,
NOW, THEREFORE, in consideration of the premises
hereinbefore set forth and the mutual promises and
respective representations and warranties of the parties,
one to another made herein, and the reliance of each party
upon the other(s) based hereon and other good and valuable
consideration, the receipt and sufficiency of which the
parties acknowledge, the Sellers jointly and severally agree
with SCI, for purposes of consummating a tax free
reorganization or exchange of stock, as follows:
ARTICLE I
PRELIMINARY MATTERS
Section 1.01. Recitals. The parties acknowledge the
recitals hereinabove set forth in the preamble are correct,
are, by this reference, incorporated herein and are made a
part of this Agreement.
Section 1.02. Exhibits and Schedules. Exhibits and
Schedules referred to herein and annexed hereto are, by this
reference, incorporated herein and made a part of this
Agreement, as if set forth fully herein.
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ARTICLE II
DEFINITIONS
Section 2.01. Use of Words and Phrases. Natural
persons may be identified by last name, with such additional
descriptors as may be desirable. The words "herein,"
"hereby," "hereunder," "hereof ," " hereinbefore,"
"hereinafter" and "within" and other equivalent words refer
to this Agreement as a whole and not to any particular
Article, Section or other subdivision hereof. The words,
terms and phrases defined herein and any pronoun used herein
shall include the singular, plural and all genders. The
word "and" shall be construed as a coordinating conjunction
unless the context clearly indicates that it is intended to
be construed as a copulative conjunction. All accounting
terms not otherwise defined herein shall have the meanings
assigned to them under generally accepted accounting
principles obtaining in the United States of America.
ARTICLE III
THE TRANSACTION
Section 3.01. Purchase of Stock. At closing, SCI
shall purchase all of the issued and outstanding capital
stock of HMG and shall, as payment of the purchase price at
Closing: (1) deliver to the Sellers an amount of its
restricted common stock equal to 30% of its then issued
common stock as of the date of closing. Certificates
representing SCI's restricted common stock shall be
delivered to the order of such persons as the Sellers shall
instruct SCI in writing not less than seven business days
prior to Closing. The Sellers shall deliver or cause to be
delivered at Closing all of the issued, outstanding and
authorized capital stock of HMG. Each Seller and other
person who delivers HMG stock at Closing and receives SCI
restricted common stock shall complete and deliver to SCI at
Closing a subscription and investment representations
agreement for the purchase of "restricted stock." The
Buyer's common stock to be issued to the Sellers will not be
registered under federal or state securities laws and is
defined as "restricted securities" under the Securities Act
of 1933. Seller shall have piggyback registration rights
subject to underwriter approval. Each stock certificate
will contain the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (AND IS A "RESTRICTED
SECURITY" AS DEFINED UNDER SAID ACT) OR UNDER
THE SECURITIES LAWS OF ANY STATE OR
JURISDICTION. ACCORDINGLY, NEITHER THIS
SECURITY NOR ANY INTEREST THEREIN MAY BE SOLD,
OFFERED FOR SALE, ASSIGNED, TRANSFERRED, PLEDGED
OR HYPOTHECATED, EXCEPT BY BONA FIDE GIFT OR
INHERITANCE, IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SECURITY UNDER SAID
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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Section 3.02. HMG Loan Repayment . SCI will pay off
the existing note to NBOC Bank attached as Exhibit "A"
including ▇▇▇▇▇ ▇▇▇▇▇▇'▇ stock purchase consultant agreement
and marketing agreement.
Section 3.03. Continuation of Management. The
executive officers of HMG shall agree to continue as the
management of HMG after the Closing, pursuant to five year
employment agreements to be executed at the Closing,
provided that stock bonus, option and incentive plans
(subject to consideration with cash bonus and incentive
plans provided directly by HMG) and fringe benefit package
covering medical, dental and life insurance and retirement
benefits shall be in accordance with programs implemented
for all executives of SCI as of the date of Closing.
Section 3.04. Operations after Closing. Following
the Closing of the transaction covered in Section 3.01, all
authorized issued and outstanding shares of HMG shall be
wholly owned by SCI.
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Section 3.05. HMG Release. Subsequent to the closing
of this transaction, even though SCI shall own all of the
shares of HMG, HMG shall continue as a Pennsylvania
Corporation. The name of HMG shall be changed to HMG Health
Care Claims Auditing, Inc. in all jurisdictions where HMG is
qualified to do business. There are certain outstanding
claims and disputes, some of which are currently in
litigation, against SCI and whose claims and disputes will
more than likely continue past the date of closing. In
addition, even after the date of closing, claims or disputes
may occur against SCI arising from actions or transactions
involving or to which SCI was a party prior to the date of
closing of this transaction. Therefore, the parties agree
that if any of the currently outstanding claims and disputes
against SCI or if any other later claims or disputes are
made against or involve SCI arising from actions or
transactions to which SCI was a party prior to the date of
closing of this transaction, cause SCI to be unable to list
HMG Health Care Claims Auditing, Inc. on the New York,
American, Boston, Philadelphia Exchanges or NASDAQ Exchange,
then in that event, Sellers are hereby granted the right,
which shall survive the closing, to rescind this entire
transaction and to receive back from Sellers any and all of
SCI's shares delivered to Sellers. In addition, if any of
the currently outstanding claims or disputes against or
involving SCI or claims or disputes arising subsequent to
the closing against SCI but which arose from actions or
transactions involving SCI prior to the closing cause SCI to
become insolvent or to file for protection in the United
States Bankruptcy Court, the Sellers shall have the same
right as above to rescind this transaction. In no event,
however, shall this right to rescind this transaction by the
Sellers extend past June 1, 1998 at which time said right to
rescind this transaction shall automatically cease. If
there is a rescission by Sellers pursuant to the terms
hereof, any and all liabilities and assets and receivable of
HMG Health Care Claims Auditing, Inc. which were acquired,
incurred or created subsequent to the closing of this
transaction shall be divided and distributed equally between
and Sellers and SCI on a fifty-fifty basis.
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Section 3.06. Closing. The closing of the transaction
herein contemplated shall take place at 9:00 o'clock a.m. on
31 December, 1997, at the offices of SCI, subject to the
condition that (i) SCI shall have been afforded an
opportunity to conduct an investigation of the books,
records and facilities of HMG, including interviews with key
personnel, (ii) SCI shall have verified and approved to
its satisfaction the status of all employment agreements
between HMG and its employees, the provisions of contracts
between HMG and other parties, the status of HMG's business
and operation and all litigation involving, HMG and any of
the Sellers regarding HMG, (iii) no material adverse change
shall have occurred in HMG's assets or business and
prospects (financial and otherwise), (iv) SCI's Board of
Directors shall have approved the transaction, (v) SCI shall
have obtained a commitment for financing under Section 3.02
acceptable to both SCI and to HMG, (vi) documentation and
opinions of counsel shall be satisfactory to the parties and
their respective counsel; and, (vii) the transaction
qualifies as a tax free reorganization or exchange of stock.
At Closing, each party shall deliver the stock certificates
required to be delivered by it or them, certificates of
appropriate persons that all the conditions required to be
satisfied by it or them have been satisfied, unless such
condition has been waived in writing by the other party(ies)
and certificates of appropriate persons that the
representations and warranties set forth in this Agreement
are true and correct at Closing date and the employment
agreements provided in Section 3.03. The parties will
cooperate for purposes of closing the transactions
contemplated by this Agreement. If the Closing is not
completed by 31 March, 1998, subject to extension by the
mutual written agreement of the parties, this Agreement
shall terminate and be void and the parties shall be
released from their respective obligations hereunder and
shall execute without further consideration, upon the
request of any other party, a written acknowledgment of such
termination and release. All the above conditions shall be
deemed to be satisfied or waived unless written notice is
delivered to HMG at least four days prior to Closing.
Section 3.07. Transaction Costs. HMG shall pay its'
costs incurred in connection with this Agreement and SCI
shall pay its costs incurred by it in connection with this
Agreement. SCI, however, will pay up to $25,000 dollars of
any costs incurred by Seller.
Section 3.08. Executive Committee. Immediate upon
closing, an executive committee will be created and shall
report to the Board of Directors for the implementation of
all directives, policies and procedures. The committee will
be comprised of Messrs. Salmon, ▇▇▇▇ and Loeprich.
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Section 3.09. Board Membership. The Sellers as a
group shall, during the term of employment agreements
provided in Section 3.03, have the right to designate three
nominees for election to SCI's Board of Directors, which
Buyer's management shall support for election. Seller shall
have the right to keep three board positions for the
duration of the Seller's Employment Agreements. A Seventh
Board member will be appointed and approved by both Buyer
and Seller. This Section shall survive the Closing.
Section 3.10. Budgets and Cash control. Annual
budgets for HMG and adjustments thereto submitted by HMG's
management to SCI shall be subject to approval by the Board
of Directors of SCI. HMG's management will have control
over HMG's day-to-day business and over HMG's cash subject
to approved budgets and appropriate fiscal and accounting
controls. This Section shall survive the Closing.
Section 3.11. Confidential Information. The Buyer,
its directors, officers, employees, agents and attorneys
will hold in strictest confidence all information received
from HMG pursuant Section 3.06 or otherwise in connection
with this Agreement, shall not disclose same, except to
persons who have a need to know for purposes of the
Agreement, including attorneys, accountants and potential
lenders and investors (but not the public stock market) and
in the event that the transaction contemplated by this
Agreement does not close will return all such information
and copies thereof to HMG; except, that this provision shall
not apply to any information that is or comes into the
public domain and disclosures required by law or court or
administrative order. This Section shall survive the
Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of HMG
and the Sellers. Sellers individually, and also as
shareholders, officers and directors of HMG represent and
warrant to SCI as follows:
(a) HMG is a corporation duly incorporated and
organized, validly existing and in good standing under the
laws of the State of Pennsylvania, has all power to carry on
its business as it is now being conducted and to own, lease
and operate its properties and is not required to be
qualified, licensed or domesticated under the laws of any
other state as a foreign corporation; true and complete
copies of its Articles of Incorporation, as amended, Bylaws,
as amended, record of proceedings of its Board of Directors
and its Stockholders, a certificate of good standing issued
within thirty days prior to Closing by its state of
incorporation and copies of all material executory contracts
requiring future performance by HMG have been delivered to
SCI.
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(b) The transaction contemplated by this
Agreement will not result in any adverse consequences to or
breach of any agreement, mortgage, instrument, judgment,
decree, law or governmental regulation, permit or
authorization by HMG.
c) To Sellers best knowledge the unaudited
financial statements and federal and state tax returns for
the past five years (or shorter period of actual existence)
and for the period from the end of the last such year to the
end of the month preceding the Closing of HMG delivered to
SCI are and will be correct and complete in all material
respects and shall be certified to SCI as such by Sellers,
HMG having filed all state and federal tax returns
(including income, sales, real property, franchise and
other) which it is required to file and there is no tax,
including withholding and social security trust funds, which
have not been paid and are now due and owing, except for the
amounts due for the current period which are not yet
payable. HMG has not received a notice of audit and no
audit is underway with respect to any such tax returns.
(d) The adjusted historical cost of the assets
identified on the Balance Sheets of HMG at the dates thereof
are materially correct and all such assets are necessary for
the operation of its business and suitable for their
respective purposes, except as disclosed in writing to SCI.
HMG does not have any liabilities which are not disclosed on
the face of its current balance sheet or in the notes
thereto with respect to contingent liabilities and there is
no known pending, threatened litigation, claims,
investigations, proceedings or other actions of any nature
against HMG. HMG has good and marketable title to all of
its properties and assets, which are in good working order
and condition or are suitable to the purposes to which they
are devoted.
(e) HMG does not have any plans subject to ERISA.
HMG's relations with its employees are good.
(f) To the best knowledge of the Sellers, HMG is
in compliance with all laws, regulations, judgments, orders
and decrees which apply to the conduct of its business.
(g) Sellers will disclose to SCI all salary and
compensation agreements and arrangements with its employees.
(h) HMG has conducted and will, through Closing,
conduct its business in the ordinary course, and will not
grant any salary or compensation increase to any director,
officer or employee or make any commitment for capital
expenditures, other than as disclosed to SCI and approved by
it.
(i) HMG has not guaranteed the debts or
obligations of any other person.
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(j) HMG has not within the past five years given
or agreed to give any gift or similar benefit to any
customer, supplier, governmental employee or other person
who is or may be or have been in a position to help or
hinder the business of HMG, which might subject any of them
to damage or penalty in civil, criminal or governmental
litigation or proceedings.
(k) Information delivered by HMG to SCI in
contemplation of this Agreement or with respect hereto is
correct, complete and accurate.
(l) HMG is not obligated to pay any broker's or
finder's fee in connection with this Agreement. In the
event any finder's fee is claimed and payable, HMG and SCI
shall each pay one-half.
Section 4.02. Representations and Warranties of SCI.
SCI represents and warrants to the Sellers, as follows:
(a) SCI is a corporation duly incorporated and
organized, validly existing and in good standing under the
laws of the State of Florida, has all power to carry on its
business as it is now being conducted and, following the
exchange of stock contemplated by this Agreement, to be
conducted and to own, lease and operate its properties
(there being none at the date hereof) and is not required to
be qualified, licensed or domesticated under the laws of any
other state as a foreign corporation; true and complete
copies of its Articles of Incorporation, as amended, Bylaws,
as amended, record of proceedings of its Board of Directors
and its Stockholders and a certificate of good standing
issued within thirty days prior to the Closing by its state
of incorporation have been delivered to Sellers.
(b) The financial statements and, if any, tax
returns for the past five years of SCI delivered to Sellers
are correct and complete in all material respects, SCI
having filed or is preparing to file all state and federal
tax returns which it is required to file and there is no
tax, including withholding and social security trust funds,
which have not been paid and are now due and owing
thereunder. SCI has not received a notice of audit and no
audit is underway with respect to any such tax returns.
(c) SCI does not have any liabilities which are
not disclosed on the face of its current balance sheet or in
the notes thereto with respect to contingent liabilities and
there is no pending, threatened litigation, claims,
investigations, proceedings or other actions of any nature
against SCI except as set forth as Exhibit____.
(d) SCI does not have any plans subject to ERISA.
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(e) SCI is in compliance with all laws,
regulations, orders and decrees which apply to the conduct
of its business.
(f) SCI is not obligated to pay any broker's or
finder's fee in connection with this Agreement. In the
event any finder's fee is claimed and payable, HMG and SCI
shall each pay one-half.
(g) Information delivered by SCI to Sellers in
contemplation of this Agreement or with respect hereto is
correct, complete and accurate.
(h) SCI has duly authorized, executed and
delivered this Agreement and has the full power and
authority to enter into this Agreement and to perform its
obligations contemplated hereunder.
(i) SCI is currently a reporting company the
under the Securities Exchange Act of 1934.
(j) SCI does not have outstanding and, except for
underwriters' warrants which may be required as part of
underwriters' compensation in any public offering, will not
issue any capital stock or any options, warrants or rights
to purchase any capital stock which has or have any
preemptive rights to acquire capital stock or protection of
the holder(s) against dilution of percentage of ownership of
capital stock.
Section 4.03. Mutual Representations. Each party has
made available to the other party the complete and accurate
information and documentation requested by such other
parties and as is necessary for the purposes of evaluating
the risks and merits of the acquisition of stock and merger
contemplated by this Agreement and entering into this
Agreement.
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ARTICLE V
COVENANTS OF SELLERS
Section 5.01. Nondisclosure of Confidential
Information. Each Seller, for himself, recognizes and
acknowledges that the list of HMG's suppliers and customers,
methods of operation and confidential and proprietary
information, trade secrets and know-how, as they now exist,
are valuable, special and unique assets of HMG's business.
Each Seller will not, during or after the term of his
employment under this Agreement, use for his own benefit,
the identity of SCI's or HMG's suppliers and customers or
any part thereof or any of SCI's or HMG's present or future
methods of operation, confidential and proprietary
information, trade secrets and know-how, including the
manner of manufacturing, marketing, selling, producing, or
providing any of SCI's or HMG's products or services. The
Sellers will not disclose to any person, firm, corporation,
association, or any other entity for any reason or purpose
whatsoever the identity of SCI's or HMG's suppliers and
customers or any party thereof or any of the SCI's or HMG's
present or future methods or operation, confidential or
proprietary information, trade secrets and know-how,
including the manner of manufacturing , marketing, selling,
producing, or providing any of SCI's or HMG's products or
services without the written approval of SCI or HMG. In the
event of a breach or threatened breach by a Seller of the
obligations and restrictions of this section, SCI and HMG as
a direct beneficiary of this Section 5.01, or either of
them, shall be entitled upon application to a court of
competent jurisdiction and without the requirement to post
bond, to an injunction restraining such Sellers from use or
disclosure, in whole or in part of HMG's or SCI's suppliers
and customers or HMG's or SCI's methods of operation,
confidential and proprietary information, trade secrets and
know-how or from rendering any services to any person, firm,
corporation, association, partnership or other entity to
whom such lists or such methods of operation or confidential
and proprietary information, trade secrets and know-how, in
whole or in part, has been disclosed, is threatened to be
disclosed or would reasonable by deemed to be of
significance or of importance in the business or operations
of such other person, firm, corporation, association or
other entity. Nothing herein shall be construed as
prohibiting SCI and HMG or both from pursuing any other
remedies available to it or them for such breach or
threatened breach, including the recovery of direct,
indirect, and consequential damages from such Sellers. This
section shall survive Closing and is subject to modification
in the employment agreements provided under Section 3.03.
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Section 5.02. Covenant Not To Compete. No Seller
shall directly or indirectly enter into or engage in any
business in competition with HMG's or SCI's business, either
as an individual for his own account, or as a partner, joint
venture, employee, agent, or salesman for any person, or as
an officer, director or stockholder of a corporation or
entity, or otherwise, for a period of two years after the
later of Closing hereunder or termination of employment by
HMG or SCI. It is agreed by the parties that this covenant
may be enforced against a Seller in breach hereof by
injunction, upon application to a court of competent
jurisdiction and without the requirement to post bond. It
is agreed by the parties hereto that if any portion of this
covenant not to compete is held to be unreasonable,
arbitrary or against public policy, the covenant herein
shall be considered divisible both as to time and
geographical area so that a lesser period or geographical
area shall remain effective so long as the same is not
determined unreasonable, arbitrary or against public policy.
The parties hereto agree that, in the event any Court
determines the specified time period or the specified
geographical area to be unreasonable, arbitrary, or against
public policy, a lesser time period or smaller geographical
area which is determined by the court to be reasonable, non
arbitrary and not against public policy may be enforced
against such Sellers by injunction, as well as by all other
legal remedies available to HMG and SCI. This section shall
survive Closing and is subject to modification in the
employment agreements provided under Section 3.03.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Mutual Indemnification. The parties
shall indemnify each other and hold them harmless from and
against any claim, action, cost, expense, liability, loss,
damage, injury, suit or injury attributable to the breach of
such party's representations and warranties, including any
attorney's fees and costs incurred in connection therewith
or in the enforcement of this provision or of the terms of
this Agreement, except as follows; list to be provided by
both Buyer and Seller as Exhibit "C".
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ARTICLE VII
NOTICES
Section 7.01. Procedure for Sending Notices. Any and
all notices or other communications required or permitted to
be given under any of the provisions of this Agreement shall
be in writing and shall be deemed to have been duly given
when personally delivered (including receipted express
courier and overnight delivery service) or mailed by first
class certified mail, return receipt requested showing the
name of the recipient, addressed to the parties at the
addresses set forth below (or at such other address as any
party may specify by written notice to all other parties
given as provided in this Section). Copies of notices
shall be given to:
As to SCI ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Systems Communications, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
As to HMG: ▇▇▇▇▇ ▇▇▇▇
HMG Health Care Claims Auditing,Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Blvd.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ARTICLE VIII
LEGAL AND OTHER COSTS
Section 8.01. Party Entitled to Recover. In the event
any party defaults in his or its obligation under this
Agreement (the "Defaulting Party") and the other party )the
"Non-Defaulting Party") recovers against the Defaulting
Party, in addition to all damages and other remedies, the
Defaulting Party shall promptly pay to the Non-Defaulting
Party all costs and expenses (including reasonable
attorneys' fees and expert witness fees) paid or incurred
by the Non-Defaulting Party in connection with such
enforcement of its rights and shall promptly pay interest on
any money (both the amount recovered and the costs and
expenses) at the rate of 1.5% per month during the period
between the date such payment should have been make
hereunder, or the date the cost or expense was paid by the
Non-Defaulting Party, and the date of payments thereof by
the Defaulting Party to the Non-Defaulting Party.
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Section 8.02. Interest. In the event the Non-
Defaulting Party is entitled to receive an amount of money
by reason of the Defaulting Party's default hereunder,
then, in addition to such amount of money, the Defaulting
Party shall promptly pay to the Non-Defaulting Party a sum
equal to interest on such amount of money accruing at the
rate of 1.5% per month during the period between the date
such payment should have been made hereunder and the date of
the actual payments thereof.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Effective Date. The effective date of
this Agreement shall be the date after above written,
subject to any conditions set forth herein and
interruptions.
Section 9.02. Entire Agreement. This writing
constitutes the entire agreement of the parties with respect
to the subject matter hereof, superseding all prior
agreements, understandings, representations and warranties.
Section 9.03. Titles and Headings. The section and
paragraph titles and headings contained herein are for the
purpose of convenience only and are not intended to define
or limit the contents of said sections and paragraphs.
Section 9.04. Waivers. No waiver of any provision,
requirement, obligation, condition, breach or default
hereunder, or consent to any departure from the provisions
hereof, shall be considered valid unless in writing and
signed by the party giving such waiver, and no such waiver
shall be deemed a waiver of any subsequent breach or default
of the same or similar nature.
Section 9.05. Amendments. This Agreement may not be
amended, modified or terminated except by a written
agreement specifically referring to this Agreement signed by
all of the parties hereto and no amendment, modification or
alteration of, addition to or termination of this Agreement
or any provision of this Agreement shall be effective unless
it is made in writing and signed by the parties.
Section 9.06. Further Assurances. Each party hereto
after the Closing and without further consideration, shall
cooperate, shall take such further action and shall execute
and deliver such further documents as may be reasonable
requested by the other party in order to carry out the
provisions and purposes of this Agreement.
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Section 9.07. Construction. This Agreement has been
negotiated by the parties, section by section, and no
provision hereof shall be construed more strictly against
one party than against any other party by reason of such
party having drafted such provision. The order in which the
provisions of this Agreement appear are solely for
convenience of organization; and later-appearing provisions
shall not be construed to control earlier-appearing
provisions.
Section 9.08. Invalidity. It is the intent of the
parties that each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid
under applicable law. If any provision hereof shall be
prohibited, invalid, illegal or unenforceable, in any
respect, under applicable law, such provision shall be
ineffective to the extent of such prohibition, invalidity or
unenforceability only, without invalidating the remainder of
such provision or the remaining provisions of this
Agreement; and, there shall be substituted in place of such
prohibited, invalid, illegal or unenforceable provision a
provision which nearly as practicable carries out the intent
of the parties with respect thereto and which is not
prohibited and is valid, legal and enforceable.
Section 9.09. Multiple Counterparts. This Agreement
may be executed in one or more counterparts, each of which
shall be an original and, taken together, shall be deemed
one and the same instrument.
Section 9.10. Assignment Parties and Binding Effect.
This Agreement, and the rights, duties and obligations of
any party shall not be assigned without the prior written
consent of each other party. This Agreement shall benefit
solely the named parties and no other person shall claim,
directly or indirectly, benefit hereunder, express or
implied, as a third-party beneficiary or otherwise.
Wherever is this Agreement a party is named or referred to,
the successors (including heirs and personal representatives
of individual parties) and permitted assigns of such party
shall be deemed to be included, and all agreements,
promises, covenants and stipulations in this Agreement shall
be binding upon and inure to the benefit of their respective
successors and permitted assigns.
Section 9.11. Survival of Representations and
Warranties. The representations and warranties made herein
shall survive the execution and delivery of this Agreement
and full performance hereunder of the obligations of the
representing and warranting party.
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Section 9.12. Arbitration. Unless a court of
competent jurisdiction shall find that a particular dispute
or controversy cannot, as a matter of law, be the subject of
arbitration, any dispute or controversy arising hereunder,
other than injunctive relief under Article V, shall be
settled by binding arbitration in Tampa, Florida by a panel
of three arbitrators in accordance with the rules of the
American Arbitration Association. Judgment upon the award
rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The parties may pursue all
other remedies with respect to any claim that is not subject
to arbitration.
Section 9.13. Jurisdiction and Venue. Any action or
proceeding for enforcement of this Agreement and the
instruments and documents executed and delivered in
connection herewith which is determined by a court of
competent jurisdiction not, as a matter of law, to be
subject to arbitration as provided in Section 9.12 shall be
brought and enforced in the courts of the State of Florida
in and for Pinellas county or in the United States District
Court for the Middle District of Florida, Tampa Division,
and the parties irrevocably submit to the jurisdiction of
each such court in respect of any such action or proceeding.
Section 9.14. Applicable Law. This Agreement and all
amendments thereof shall be governed by and construed in
accordance with the law of the State of Florida applicable
to contracts made and to be performed therein (not including
the choice of law rules thereof).
19
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first
above written.
Systems Communications, Inc.
Attest:
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Witness: Sellers
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/S/ R. ▇▇▇▇▇ ▇▇▇▇
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