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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 18, 1999
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Internet America, Inc.
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(Exact name of registrant as specified in its charter)
Texas 000-25147 86-0778979
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(State or other jurisdiction (Commission (IRS Employer
of incorporation File Number) Identification No.)
One Dallas Center, 350 N. St. Paul Street, Suite 3000, Dallas, Texas 75201
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (214) 861-2500
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On February 18, 1999, Internet America, Inc., a Texas corporation (the
"Company"), acquired all the issued and outstanding membership interests of
CyberRamp, L.L.C., a Texas limited liability company ("CyberRamp"), in exchange
for 365,725 shares of common stock of the Company. As a result of the purchase,
the Company became the indirect holder of all assets and personal property of
CyberRamp. Those assets include approximately 14,000 individual and corporate
internet access accounts and the computer equipment used to service those
accounts. The Company intends to continue to use these assets to provide
internet access to customers. The acquisition was effected pursuant to a
Securities Purchase Agreement dated February 18, 1999, by and among the members
of CyberRamp (the "Members") and the Company. The acquisition will be accounted
for as a pooling of interests.
To the best knowledge of the Company, at the time of the acquisition there
was no material relationship between (i) CyberRamp and the Members on the one
hand and (ii) the Company, or any of its affiliates, any director or officer of
the Company, or any associate of such director or officer on the other hand.
The consideration paid by the Company to CyberRamp was 365,725 shares of
common stock, par value $.01 per share, of the Company. The acquisition
consideration was determined by arms-length negotiations between the parties to
the Securities Purchase Agreement.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a)(1) Financial Statements of businesses acquired in the transaction.(1)
(i) Consolidated Balance Sheet.
(ii) Interim Consolidated Balance Sheet.
(iii) Consolidated Statement of Income.
(iv) Interim Consolidated Statement of Income.
(v) Consolidated Statement of Cash Flows.
(vi) Interim Consolidated Statement of Cash Flows.
(b)(1) Pro forma Financial Information for the transaction.(1)
(i) Pro forma Condensed Balance Sheet.
(ii) Pro forma Condensed Consolidated Statement of Income.
(c) Exhibits.
The following is a list of exhibits filed as part of this Current Report on
Form 8-K:
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Exhibit No. Description
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2.1 Securities Purchase Agreement, dated February 18, 1999,
among Internet America Inc., CyberRamp, L.L.C. and the
members of CyberRamp, L.L.C. (2)
23.1 Consent of Deloitte & Touche LLP (3)
99.1 Press Release of Internet America, Inc. dated February 18,
1999 (2)
(1) It is impractical for the registrant to file such financial statements
and related financial data schedule at this time. Such financial
statements and related financial data schedule will be filed under cover
of Form 8-K/A as soon as practicable, but no later than 60 days after
the date by which this report on Form 8-K was required to be filed.
(2) Filed herewith.
(3) To be filed by amendment.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERNET AMERICA, INC.
Date: March 1, 1999 By: /s/ Michael T. Maples
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Michael T. Maples,
President and Chief Executive Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
2.1 Securities Purchase Agreement, dated February 18, 1999,
among Internet America Inc., CyberRamp, L.L.C. and the
members of CyberRamp, L.L.C (1)
23.1 Consent of Deloitte & Touche LLP (2)
99.1 Press Release of Internet America, Inc. dated February 18,
1999 (1)
</TABLE>
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(1) Filed herewith.
(2) To be filed by amendment.
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EXHIBIT 2.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement"), dated as of
February 18th, 1999, is by and among CyberRamp, L.L.C., a Texas limited
liability company (the "Company"), the undersigned members of the Company
(collectively, the "Members") and Internet America, Inc., a Texas corporation
("Purchaser").
W I T N E S S E T H:
WHEREAS, the Company is in the business of providing dial-up and
dedicated Internet access to customers, both individuals and businesses, in the
Dallas-Fort Worth metroplex market of the State of Texas; and
WHEREAS, the Members hold all of the issued and outstanding membership
interests in the Company, which ownership interests are as set forth on Schedule
3.4 (the "Securities"), and desire to sell, and Purchaser desires to purchase,
the Securities.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS. In addition to terms otherwise defined in
this Agreement, as used in this Agreement, the following terms shall have the
meanings set forth below:
"Closing" shall mean the closing of the transactions contemplated by
this Agreement.
"Closing Date" shall mean the date hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Principal Members" shall mean James G. Hazlewood, John H. Jackson and
Richard D. Evans.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the United States Securities and Exchange Commission.
SECURITIES PURCHASE AGREEMENT
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ARTICLE II.
PURCHASE AND SALE
SECTION 2.1. PURCHASE AND SALE OF SECURITIES. Subject to and upon the
terms and conditions contained herein, on the Closing Date, the Members shall
sell, transfer, assign, convey and deliver to Purchaser, free and clear of all
security interests, liens, claims, encumbrances and restrictions, and Purchaser
shall purchase, accept and acquire from the Members, the Securities.
SECTION 2.2. PURCHASE PRICE. The total consideration for the Securities
(the "Purchase Price") shall be 365,725 shares (the "Shares") of Purchaser's
common stock, par value $.01 per share (the "Common Stock"). The Shares shall be
paid to the Members in accordance with their ownership of the Securities as set
forth on Schedule 3.4B. Solely for federal income tax purposes, the parties
agree to treat the purchase and sale of the Securities in the manner described
in Situation 2 of Revenue Ruling 99-6, 1999-5 I.R.B. 1 (January 14, 1999). The
parties further agree that the "Acquisition Consideration" shall be allocated
among the assets deemed to have been acquired by the Company as set forth in
Schedule 2.2. The allocation shall be made in accordance with the provisions of
Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code") and
the Treasury regulations thereunder. Each of the parties to this Agreement
shall, solely for federal income tax purposes, (i) report the transactions
contemplated by this Agreement in a manner consistent with the allocations in
Schedule 2.2, and (ii) file, to the extent and in the manner required by the
Code, Internal Revenue Service Form 8594 (together with any required amendments
thereto) consistent with such agreed allocation.
SECTION 2.3. SPECIAL PROVISIONS. Certain of the Members shall enter
into a Noncompetition Agreement with Purchaser (the "Noncompetition
Agreements"), the forms of which are set forth in Schedule 5.1(d). In addition,
the Company and certain Members shall enter into an Amendment to Lease Agreement
in substantially the form set forth in Schedule 5.1(h).
ARTICLE III. A.
EACH MEMBER'S REPRESENTATIONS AND WARRANTIES AS
TO HIS OR HER MEMBERSHIP INTEREST
Each Member, severally and not jointly, represents and warrants that
the following are true and correct as of the date hereof and will be true and
correct through the Closing Date as if made on that date:
SECTION 3.1A. OWNERSHIP OF SECURITIES. Such Member owns of record and
beneficially the membership interest of the Company set opposite the name of
such Member on Schedule 3.4B.; such Member owns all rights, title and interests
in and to his or her Securities, free and clear of all liens, claims and
restrictions (including any voting trusts or members' agreements); and such
Member's transfer of his or her Securities to Purchaser pursuant to this
Agreement will pass to Purchaser all right, title and interest in and to such
Securities free of any liens, claims or restrictions whatsoever. Such Member has
the exclusive right to vote his or her Securities.
SECTION 3.2A. AUTHORIZATION. With respect to this Agreement and any
other contract,
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instrument or document executed and delivered by such Member at the Closing
pursuant to this Agreement (this Agreement and such other contracts, instruments
and documents, collectively the "Member Delivered Documents"): (a) such Member
has all right, power and authority to execute, deliver and perform the Member
Delivered Documents executed and delivered by him or her, including transferring
his or her Securities to Purchaser; (b) in the case of any Member that is not a
natural person, such Member is duly organized, validly existing and in good
standing under the laws of its state of organization, and has the power and
authority to own all of its properties and assets and to carry on its business
as it is now being conducted; (c) the execution, delivery and performance by
such Member of the Member Delivered Documents executed and delivered by him or
her have been duly authorized by all necessary action on the part of such Member
in compliance with governing or applicable agreements, instruments or other
documents (including, in the case of a Member that is not an individual, such
Member's articles or certificate of incorporation, bylaws, partnership
agreement, or if such Member holds its shares through an estate or trust, the
will governing such estate or the instrument governing such trust) and
applicable law; (d) this Agreement does, and each of the other Member Delivered
Documents will, when executed and delivered, constitute a valid and binding
agreement of such Member, enforceable against such Member in accordance with its
terms except as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally or the availability of equitable
remedies; and (e) the securities transfer power executed by such Member and
delivered at the Closing will effectively convey to, and vest in Purchaser all
of such Member's right, title and interest in and to such Member's Securities,
free and clear of all liens, claims or restrictions.
SECTION 3.3A. ABSENCE OF VIOLATIONS OR CONFLICTS. Neither the
execution, delivery or performance of the Member Delivered Documents nor the
consummation of the transactions contemplated hereby or thereby will (i) result
in a violation or breach of the terms, conditions or provisions of, or
constitute a default under, any agreement, contract or other instrument under
which such Member is bound or to which any of the Securities are subject, or
result in the creation or imposition of any security interest, lien, charge or
encumbrance upon any of the Securities or (ii) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over such Member
or any of his or her Securities.
SECTION 3.4A. NO CONSENTS REQUIRED. No consent, authorization,
clearance, order or approval of, or filing or registration with, any court or
any public, governmental or regulatory agency or body, any lender or lessor or
any other person or entity is required for or in connection with the
consummation by such Member of the transactions contemplated by the Member
Delivered Documents, or performance by such Member of the Member Delivered
Documents.
SECTION 3.5A. NO OTHER CLAIMS. Without limiting the foregoing, no act
or omission of such Member or any predecessor in interest (including any prior
offer, purchase, sale transfer, negotiation or transaction of any nature or kind
with respect to any membership interest or other securities or ownership
interest, or options, warrants, subscriptions, puts, calls, or other rights,
commitments, undertakings or understandings to acquire any membership interest
or other securities or ownership interest, of the Company or any predecessor, or
any bankruptcy or insolvency event affecting such Member) has resulted in, or
will result in, any former shareholder or holder of any
SECURITIES PURCHASE AGREEMENT
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ownership interest in a predecessor (or alleged or purported former shareholder
or holder of any ownership interest in a predecessor) of the Company or any
predecessor or any other person having now or in the future any valid claim or
cause of action whatsoever against the Securities of such Member, or Purchaser.
SECTION 3.6A. STATUS OF THE MEMBERS. Such Member is knowledgeable in
making investments and is able to bear the economic risk of loss of its
investment in Purchaser. Except as set forth on Schedule 3.6A., such Member is
an "accredited investor", as that term is defined in Rule 501(a) of Regulation D
under the Securities Act. Such Member is acting on his or her own behalf in
connection with the investigation and examination of Purchaser and his or her
decision to execute this Agreement and all related documents, instruments and
agreements. Such Member is purchasing the Shares for his or her own account, and
not with a view of distribution. Such Member acknowledges that the Shares are
unregistered and may not be sold or transferred in the absence of registration
under the Securities Act and applicable state securities laws, unless an
exemption exists therefor.
Such Member acknowledges Purchaser has made all documents pertaining to
the transactions contemplated herein and in the Schedules attached hereto
available to such Member and/or his or her representatives and has allowed such
Member and/or his or her representatives an opportunity to ask questions and
receive answers thereto and to verify and clarify any information contained in
such documents. Such Member has relied upon advice of his or her representative
and/or independent investigation made by the Member and/or his or her
representative, and acknowledges that no representations or agreements other
than those set forth in this Agreement and the other agreements included in the
Schedules attached hereto have been made in respect thereto. For any Member who
is not an accredited investor, such Member, by reason of his or her business or
financial experience and/or that of his or her representative (who is
unaffiliated with Purchaser or any affiliate of Purchaser and who is not
compensated by Purchaser or any affiliate of Purchaser), such Member has the
capacity to protect such Member's own interest in connection with the
transactions contemplated by this Agreement and the issuance of the
consideration to such Member with respect to the transactions contemplated
herein. Such Member expressly acknowledges and confirms that such Member has
evaluated and understands the risks and terms of investing in the securities of
Purchaser to be issued to such Member by Purchaser, and/or such Member and its
representative have such knowledge and experience in financial and business
matters in general and in particular with respect to this type of investment
that such Member is, or they are, capable of evaluating the merits and risks of
an investment in the Shares to be issued to such Member in connection with the
transactions contemplated herein.
ARTICLE III. B.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND MEMBERS
The Company and each Principal Member jointly and severally represent
and warrant that the following are true and correct as of the date hereof and
will be true and correct through the Closing Date as if made on that date:
SECTION 3.1B. ORGANIZATION AND GOOD STANDING; QUALIFICATION. The
Company is a limited liability company duly organized, validly existing and in
good standing under the laws of the
SECURITIES PURCHASE AGREEMENT
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State of Texas, with all requisite corporate power and authority to carry on the
business in which it is engaged, to own the properties it owns, to execute and
deliver this Agreement and the other agreements, instruments and documents
contemplated hereby and to consummate the transactions contemplated hereby and
thereby. The Company is duly qualified and licensed to do business and is in
good standing in all jurisdictions where the nature of its business makes such
qualification necessary, except where the failure to be qualified or licensed
would not have a material adverse effect on the business of the Company.
SECTION 3.2B. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by the Company of this Agreement and the other agreements,
instruments and documents contemplated hereby, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorized by the
Company, its Manager and Members. This Agreement and each other agreement,
instrument and document contemplated hereby has been duly executed and delivered
by the Company and Members, and are enforceable against the Company and Members
in accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
SECTION 3.3B. NO VIOLATION. Neither the execution, delivery or
performance of this Agreement or the other agreements, instruments and documents
contemplated hereby nor the consummation of the transactions contemplated hereby
or thereby will (i) result in a violation or breach of the terms, conditions or
provisions of, or constitute a default under, the Articles of Organization or
Regulations of the Company or any agreement, indenture or other instrument under
which the Company is bound or (ii) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company.
SECTION 3.4B. OWNERSHIP OF THE SECURITIES; CAPITALIZATION. The
authorized and issued membership interests of the Company and the ownership
interests of the Members are set forth on Schedule 3.4B. There are no authorized
but unissued membership interests of the Company. All of the issued and
outstanding membership interests of the Company are duly authorized, validly
issued, fully paid and nonassessable. No membership interests of the Company
have been issued or disposed of in violation of the rights of any of the
Company's members. All accrued dividends, distributions or other payments based
on membership interests of the Company, whether or not declared, have been paid
in full. The Company has no ownership interest in any of the capital stock of
any other corporation or any equity, profit sharing, participation or other
interest in any corporation, partnership, joint venture or other entity.
SECTION 3.5B. CONSENTS. Except as set forth on Schedule 3.5B., no
consent, authorization, approval, permit or license of, or filing with, any
governmental or public body or authority, any lender or lessor or any other
person or entity is required to authorize, or is required in connection with,
the execution, delivery and performance of this Agreement or the agreements,
instruments and documents contemplated hereby on the part of the Company.
SECTION 3.6B. CORPORATE RECORDS. Copies of the Articles of
Organization and Regulations of the Company, both as amended, are attached
hereto as Schedule 3.6B. and are true, correct and complete copies thereof, as
in effect on the date hereof. The minute books of the Company, copies
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of which have been delivered to Purchaser, contain accurate minutes of all
meetings of, and accurate consents to all actions taken without meetings by, the
manager (and any committees thereof) and the members of the Company since the
formation of the Company.
SECTION 3.7B. TAXES.
(a) All income, excise, corporate, franchise, property, sales, use,
payroll, withholding and other taxes related to taxable periods or portions
thereof ending prior to or on the date hereof, including without limitation
governmental charges, assessments and required contributions of the Company or
Members with respect to the Company's business that may result in the filing of
a lien on the Company's assets or that may result in the imposition of
transferee or other liability on Purchaser for the payment of such taxes, have
been accurately recorded and duly paid, collected or withheld and remitted to
the appropriate governmental agency, except for current taxes not due and
payable prior to or on the date hereof.
(b) All tax returns and information statements required to have been
filed by the Company have been timely filed (taking into account duly granted
extensions) and are true, correct and complete in all respects. The Company is
not currently the beneficiary of any extension of time within which to file any
tax return, and no claim has ever been made by any governmental authority in a
jurisdiction where the Company does not file tax returns that the Company is or
may be subject to taxation by that jurisdiction.
(c) No deficiencies exist or have been asserted or are expected to be
asserted with respect to taxes of the Company and the Company has not received
notice (verbally or in writing) nor does it expect to receive notice that it has
not filed a tax return or paid any taxes required to be filed or paid by it. No
audit, examination, investigation, action, suit, claim or proceeding relating to
the determination, assessment or collection of any tax of the Company is
currently in process, pending or, to the best knowledge of the Company and
Principal Members, threatened (verbally or in writing). No waiver or extension
of any statute of limitations relating to the assessment or collection of any
tax of the Company is in effect. There are no outstanding requests for rulings
with any tax authority relating to taxes of the Company.
(d) The Company is not and has never been a party to any tax sharing
agreement or arrangement (formal or informal, verbal or in writing) and is not
and has never been liable for the taxes of any other person, whether by law or
contract. Neither the Company nor any Member (or any direct or indirect owner of
any Member) is a "foreign person" as defined in Section 1445(f)(3) of the Code.
Except as set forth in Schedule 3.13B, the Company does not and has not ever
held, directly or indirectly, any "United States real property interest" as that
term is used in Section 897(a) of the Code. The Company is not required to make
any adjustment under Code Section 481(a) by reason of a change in accounting
method or otherwise.
(e) The Company is properly classified as a "partnership" for all
federal income tax purposes and has been so classified since its inception. The
Company is not and has never been a "publicly traded partnership" within the
meaning of Code Sections 7704(b) or 469(k)(2). The Company has not elected to be
excluded from any of the provisions of subchapter K of chapter 1 of the Code and
the Company has not filed any election pursuant to Treasury regulations Section
301.7701-3(c).
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SECTION 3.8B. COMPLIANCE WITH LAWS. The Company and Members have
complied with all laws, regulations and licensing requirements applicable to the
business of the Company, including without limitation, environmental laws and
requirements, and have filed with the proper authorities all necessary
statements and reports required to be filed by the Company. There are no
existing violations of, or any existing, pending or, to the best knowledge of
the Company and Principal Members, threatened investigation or inquiry with
respect to any federal, state or local law or regulation applicable to the
business of the Company. The Company possesses all necessary licenses,
franchises, permits and governmental authorizations to conduct the Company's
business as now conducted.
SECTION 3.9B. FINDER'S FEE. Neither the Company nor any Member has
incurred any obligation for any finder's, broker's or agent's fee in connection
with the transactions contemplated hereby.
SECTION 3.10B. LITIGATION. There are no legal actions or administrative
proceedings or investigations instituted, or to the best knowledge of the
Company and Members, threatened, against or affecting, or that could affect, the
Company, the Securities, any of the assets or the business of the Company.
Neither the Company nor any Principal Member knows of any basis for any such
action, proceeding or investigation.
SCHEDULE 3.11B. FINANCIAL STATEMENTS; LIABILITIES. Attached as Schedule
3.11B(1) are the Company's unaudited balance sheet and related unaudited
statement of income for each of the twelve-month periods ended December 31 for
the 1996, 1997 and 1998 calendar years and for the one-month period ended
January 31, 1999 (collectively, the "Financial Statements"). The Financial
Statements are true, correct and complete, are in accordance with the books and
records of the Company, fairly present the financial condition and results of
operations of the Company as of the dates and for the periods indicated and have
been prepared on a consistent basis with prior periods. Except as set forth on
Schedule 3.11B(2), the Financial Statements and footnotes thereto reflect all
known liabilities of the Company, accrued, contingent or otherwise (asserted or
unasserted), arising out of transactions effected or events occurring on or
prior to the dates thereof. All known liabilities of the Company, accrued,
contingent or otherwise (asserted or unasserted) arising out of transactions
effected or events occurring from February 1, 1999 through the Closing Date are
set forth on Schedule 3.11B(2). All reserves shown in the Financial Statements
are appropriate, reasonable and sufficient to provide for losses thereby
contemplated. All tangible assets used in the conduct of the business of the
Company are reflected in the Financial Statements. Except as set forth in
Schedules 3.11B(1) or (2), the Company is not liable upon or with respect to, or
obligated in any other way to provide funds in respect of or to guarantee or
assume in any manner, any debt, obligation or dividend of any person,
corporation, association, partnership, joint venture, trust or other entity, and
neither the Company nor the Principal Members know of any basis for the
assertion of any other claims or liabilities of any nature or in any amount.
SCHEDULE 3.12B. EMPLOYEE MATTERS. Schedule 3.12B. contains a complete
and accurate list of the names, titles and cash compensation, including without
limitation wages, salaries, bonuses (discretionary and formula) and other cash
compensation (the "Cash Compensation") of all salaried
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employees of the Company. In addition, Schedule 3.12B. contains a complete and
accurate description of (i) all accrued but unpaid Cash Compensation, vacation,
sick leave and all other benefits as of the Closing Date for all employees of
the Company and (ii) any promised increases in Cash Compensation of such persons
that have not yet been effected. Schedule 3.12B. contains a complete and
accurate list of all compensation plans, arrangements or practices (the
"Compensation Plans") sponsored by the Company or to which the Company
contributes on behalf of its employees. The Compensation Plans include without
limitation plans, arrangements or practices that provide for severance pay,
deferred compensation, incentive, bonus or performance awards, and stock
ownership or stock options. Except as set forth on Schedule 3.12B., the Company
is not a party to any employment agreements with respect to its employees
(including but not limited to employee leasing agreements, employee services
agreements and noncompetition agreements). Except as set forth in Schedule
3.12B. the Company does not sponsor or contribute to on behalf of its employees,
and has not sponsored or contributed to in the three years preceding the date of
this Agreement, any employee benefit plan within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended. The Company (i)
has been and is in compliance with all laws, rules, regulations and ordinances
respecting employment and employment practices, terms and conditions of
employment and wages and hours, and (ii) is not liable for any arrears of wages
or penalties for failure to comply with any of the foregoing. The Company has
not engaged in any unfair labor practice or discriminated on the basis of race,
color, religion, sex, national origin, age or handicap in its employment
conditions or practices. There are no (i) unfair labor practice charges or
complaints or racial, color, religious, sex, national origin, age or handicap
discrimination charges or complaints pending or, to the best knowledge of the
Company, threatened against the Company before any federal, state or local
court, board, department, commission or agency nor, to the best knowledge of the
Company, does any basis therefor exist or (ii) existing or, to the best
knowledge of the Company, threatened labor strikes, disputes, grievances,
controversies or other labor troubles affecting the Company, nor, to the best
knowledge of the Company, does any basis therefor exist. All employees of the
Company are citizens of, or are authorized to be employed in, the United States.
SECTION 3.13B. TITLE; LEASED ASSETS. The Company owns no real property.
Set forth on Schedule 3.13B(1) is a list of all tangible and intangible personal
property owned by the Company (collectively, the "Personal Property"). The
Company has good, valid and marketable title to all of the Personal Property. A
list and brief description of all leases of personal and real property to which
the Company is a party, either as lessor or lessee, are set forth in Schedule
3.13B(2). Except as set forth on Schedule 3.5B. all such leases are valid and
enforceable in accordance with their respective terms except as may be limited
by applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies. The Personal Property and
the leased personal property referred to in this paragraph constitute the only
personal property used in the conduct of the business of the Company. Except as
set forth in Schedule 3.13B(3), the Company owns, leases or otherwise possesses
a right to use all assets used in the conduct of the business of the Company,
which will not be impaired by the consummation of the transactions contemplated
hereby.
SECTION 3.14B. COMMITMENTS. Except as set forth on Schedule 3.14B.,
the Company has not entered into, nor are the assets or the business of the
company bound by, whether or not in writing, any agreement, contract, document
or obligation, whether written or oral (collectively, the
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"Commitments"). True, correct and complete copies of the written Commitments,
and true, correct and complete written descriptions of the oral Commitments,
have been delivered to Purchaser. There are no existing defaults, events of
default or events, occurrences, acts or omissions that, with the giving of
notice or lapse of time or both, would constitute defaults by the Company, and
no penalties have been incurred nor are amendments pending, with respect to the
Commitments and the Commitments are in full force and effect. Neither the
Company nor any of the Members has received notice of the exercise of any right
to cancel or terminate any Commitment. No customer or supplier of the Company
has refused, or communicated that it will or may refuse, to purchase or supply
goods or services, as the case may be, or has communicated that it will or may
substantially reduce the amounts of goods and services that it is willing to
purchase from, or sell to, the Company.
SECTION 3.15B. INSURANCE. The Company carries property, liability,
workers' compensation and such other types of insurance as is customary in the
industry of the insured. All of such policies are valid and enforceable
policies, issued by insurers of recognized responsibility in amounts and against
such risks and losses as is customary in the industry of the insured. Such
insurance policies shall be outstanding and duly in force without interruption
up to and including the Closing Date. True, complete and correct copies of all
such policies have heretofore been provided to Purchaser.
SECTION 3.16B. OWNERSHIP INTERESTS OF INTERESTED PERSONS. Except as set
forth on Schedule 3.16B., no officer, supervisory employee, manager or member of
the Company, or their respective spouses or children, owns directly or
indirectly, on an individual or joint basis, any material interest in, or serves
as an officer or director of, any customer or supplier of the Company, or any
organization that has a material contract or arrangement with the Company.
Except for the ownership of publicly traded securities constituting less than
one percent (1%) of the total issued and outstanding securities of the same
class, none of the Members owns directly or indirectly any interests or has any
investment in any corporation, business or other person that is a competitor of
the Company.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants that the following are true and
correct as of the date hereof:
SECTION 4.1. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas, with all requisite corporate power and authority to carry on the
business in which it is engaged, to own the properties it owns, to execute and
deliver this Agreement and the other agreements, instruments and documents
contemplated hereby and to consummate the transactions contemplated hereby and
thereby.
SECTION 4.2. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Purchaser of this Agreement and the other agreements, instruments
and documents contemplated hereby, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all requisite
corporate and other actions of Purchaser. This Agreement and each other
agreement, instrument and document contemplated hereby have been duly executed
and delivered by Purchaser as appropriate and constitute legal, valid and
binding obligations of Purchaser, enforceable against Purchaser in accordance
with their respective terms, except as may be limited
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by applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
SECTION 4.3. NO VIOLATION. Neither the execution, delivery or
performance of this Agreement or the other agreements, instruments and documents
contemplated hereby nor the consummation of the transactions contemplated hereby
or thereby will (i) conflict with, or result in a violation or breach of the
terms, conditions and provisions of, or constitute a default under, the Articles
of Incorporation or Bylaws of Purchaser or any agreement, indenture or other
instrument under which Purchaser is bound or (ii) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over Purchaser or
the properties or assets of Purchaser.
SECTION 4.4 AUTHORIZATION FOR THE SHARES. Purchaser has taken all
action necessary to permit it to issue the Shares. The Shares issued pursuant to
this Agreement will, when issued, be duly authorized, validly issued, fully paid
and nonassessable, free and clear of any liens, claims, charges or security
interests and no shareholder of Purchaser will have any preemptive right of
subscription or purchase in respect hereof.
SECTION 4.5 SEC REPORTS. Since December 9, 1998, Purchaser has filed
all forms, documents and reports with the SEC required to be filed by it
pursuant to federal securities laws and the SEC rules and regulations thereunder
(the "SEC Reports"), all of which complied in all material respects with all
applicable requirements of the Securities Act and the Exchange Act. The SEC
Reports do not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein to make statements contained
therein not misleading.
ARTICLE V.
CLOSING DELIVERIES AND CONDITIONS PRECEDENT
SECTION 5.1. DELIVERIES OF THE COMPANY AND MEMBERS. Unless waived by
Purchaser, at the Closing the Company and Members (as the case may be) shall
deliver to Purchaser the following, all of which shall be in a form satisfactory
to counsel to Purchaser:
(a) certificates representing the Securities, duly endorsed and in
proper form for transfer to Purchaser by delivery under applicable law, or
accompanied by duly executed instruments of transfer in blank;
(b) a copy of the resolutions of the Manager and Members of the Company
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements, each certified by the Company's Manager as
being a true and correct copy of the original thereof subject to no
modifications or amendments;
(c) a certificate, dated within ten (10) days of the Closing Date, of
the Secretary of State of Texas establishing that the Company is in existence,
has paid all franchise taxes and otherwise is in good standing to transact
business in the State of Texas;
(d) the executed Noncompetition Agreements of certain of the Members in
the forms attached hereto as Schedule 5.1(d);
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(e) all authorizations, consents, approvals, permits and licenses
referenced in Schedule 3.5;
(f) a Release of the Members in the form attached hereto as Schedule
5.1(f);
(g) the resignation of James G. Hazlewood as Manager;
(h) the executed Amendment to Lease Agreement in substantially the form
attached as Schedule 5.1(h);
(i) the resignations of James G. Hazlewood, John H. Jackson and Richard
D. Evans as employees, effective immediately prior to the Closing; and
(j) such other instruments of transfer as shall be necessary or
appropriate, as Purchaser may reasonably request, to vest in Purchaser good and
marketable title to the Securities.
SECTION 5.2. DELIVERIES OF PURCHASER. At the Closing, Purchaser shall
deliver to the Members:
(a) the Purchase Price; and
(b) the executed Noncompetition Agreements.
SECTION 5.3. PURCHASER'S CONDITIONS TO CLOSING. The obligations of
Purchaser hereunder are subject to fulfillment at or prior to the Closing of
each of the following conditions: (i) Purchaser shall have received all of the
closing deliveries set forth in Section 5.1; and (ii) no investigation, action,
suit or proceeding shall be pending or threatened before any court or
governmental body which seeks to restrain, prohibit or otherwise challenge or
interfere with the consummation of the transactions contemplated herein.
SECTION 5.4. COMPANY'S AND MEMBERS' CONDITIONS TO CLOSING. The
obligations of Company and Members hereunder are subject to fulfillment at or
prior to the Closing of each of the following conditions: (i) Members shall have
received all of the closing deliveries set forth in Section 5.2; and (ii) no
investigation, action, suit or proceeding shall be pending or threatened before
any court or governmental body which seeks to restrain, prohibit or otherwise
challenge or interfere with the consummation of the transactions contemplated
herein.
ARTICLE VI.
POST CLOSING COVENANTS AND AGREEMENTS
SECTION 6.1. FURTHER INSTRUMENTS OF TRANSFER. Following the Closing, at
the request of Purchaser, the Company and Members shall deliver any further
instruments of transfer reasonably requested by Purchaser, and take all
reasonable action as may be necessary or appropriate to (i) vest in Purchaser
good and marketable title to the Securities and (ii) carry out more effectively
the
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provisions of this Agreement and to establish and protect the rights created in
favor of the parties hereunder including but not limited to transfer of the
domain name interests listed on Schedule 3.13B(3). Following the Closing,
Purchaser shall instruct its transfer agent to issue the Shares to the Members
as of the Closing Date as provided in Schedule 6.1. Within thirty (30) days
following the Closing, James G. Hazlewood agrees to transfer to the Company the
domain names set forth in Schedule 3.13B(3).
SECTION 6.2. INCOME TAX ISSUES. The Members shall timely pay and shall
indemnify Purchaser against all income taxes assessed or payable in connection
with the transfer of the Securities from the Members to Purchaser or
attributable to the business or operations of the Company on or prior to the
Closing Date. For such purpose, the portion of any income tax attributable to a
taxable year or period beginning before and ending after the Closing Date shall
be apportioned based upon actual results of operations through the end of the
Closing Date. The Members shall cause the final federal income tax return for
the Company for the period ending on the Closing Date to be prepared, and shall
timely pay all income taxes accrued, for all taxable years or periods of the
Company ending on or before the Closing Date. All such returns shall be prepared
at the Members' expense and shall be prepared in a manner consistent with the
Company's prior practice to the extent permitted by applicable law. Such returns
shall be submitted to Purchaser for review, and any dispute about the treatment
of any item on such returns shall be submitted for determination by an
independent certified public accountant who is reasonably acceptable to
Purchaser and Principal Members. Each party hereto shall provide to each of the
other parties hereto such cooperation and information as any of them reasonably
may request in filing any income tax return, amended return or claim for refund,
determining a liability for income taxes or a right to refund of such taxes or
in conducting any audit or other proceeding in respect of such taxes. Such
cooperation and information shall include providing copies of all relevant
portions of returns, together with relevant accompanying schedules, work papers,
documents relating to rulings or other determinations by taxing authorities and
records concerning the ownership and tax basis of property, which such party may
possess.
SECTION 6.3. REGISTRATION RIGHTS.
(a) Shelf Registration.
(i) On or before May 17, 1999, Purchaser agrees to cause the
filing of a registration statement on an appropriate form (the
"Registration Statement") with the SEC to register the resale from time
to time in the open market of the Shares (as adjusted to or resulting
from additional securities being issued in connection with the
reclassification, split, combination, or dividends of securities paid
thereon). Purchaser shall use commercially reasonable efforts to cause
such Registration Statement to be declared effective by the SEC and to
remain effective from the date it is declared effective by the SEC
until the earlier of: (a) six months after the second anniversary of
the Closing Date; or (b) the date upon which all the Shares which are
included in such Registration Statement have been sold.
(ii) The Registration Statement filed pursuant to this Section
6.3(a) may include other securities of Purchaser.
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(b) Piggyback Registration.
(i) If at any time within one (1) year after the Closing Date,
Purchaser proposes to file a registration statement under the
Securities Act covering a proposed sale of any of its Common Stock, for
itself (other than a registration statement on Form S-4 or S-8, or any
form substituting therefor for securities to be offered in a
transaction of the type referred to in Rule 145 under the Securities
Act or to employees of Purchaser pursuant to any employee benefit plan,
respectively), or for anyone else (i.e., a secondary offering)
Purchaser shall give the Members written notice (the "Purchaser
Notice") of such proposed filing at least 10 days prior to the
anticipated filing date, and such notice shall offer the opportunity to
register such number of Shares as the Members may request, subject to
the Company's accepting the terms of the underwriting agreement,
including the public offering price and underwriting discounts and
commissions, as agreed upon between Purchaser and the managing
underwriter selected by it, if any. Purchaser shall use its best
efforts to cause any managing underwriter of a proposed underwritten
offering to permit the Members to include such Shares as it may request
be included in such offering on the same terms and conditions as any
similar securities of Purchaser included therein. In order to exercise
the above registration rights, the Members must notify Purchaser in
writing within 5 days after the date of the Purchaser Notice.
(ii) Notwithstanding anything in this Section 6.3(b) to the
contrary: (a) no such registration hereunder shall be required if the
managing underwriter for the proposed offering shall determine that the
inclusion of the Shares requested to be registered would have an
adverse effect on the marketability or the price of the securities
proposed to be offered by Purchaser, in which event Purchaser shall be
obligated to include only such limited number, if any, of Shares in
such offering as the managing underwriter believes may be sold without
causing such adverse effect, which securities will be taken from those
held by a group consisting of the Members and other holders of
securities of Purchaser having similar registration rights to those of
the Members, on a pro rata basis and (b) Purchaser may at any time
withdraw or cease proceeding with the registration of such Shares if it
shall at the time withdraw or cease proceeding with the registration of
such other securities originally proposed to be registered without
obligation to the Members. In the event that the contemplated
registration does not involve an underwritten public offering, the
determination that the inclusion of such Shares would have an adverse
effect on the marketability or the price of the securities proposed to
be offered by Purchaser shall be made by Purchaser in its reasonable
discretion.
(iii) No holder of Shares may participate in any underwritten
registration hereunder unless such holder (a) agrees to sell such
holder's Shares on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements
and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
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(iv) The Members shall furnish to Purchaser in writing
required information required for inclusion in the Registration
Statement, including a description of the proposed plans of
distribution. If any Member fails to provide such information,
Purchaser shall not be obligated to include such Member or his or her
Shares in the Registration Statement until such Member provides such
information.
(c) Expenses. All expenses incurred by Purchaser in complying with this
Section 6.3, including without limitation all registration and filing fees,
printing expenses, and fees and disbursements of counsel and accountants for
Purchaser, are herein called "registration expenses" and all underwriting
discounts, taxes and selling commissions applicable to the sales of the Shares
and all fees and disbursements of separate counsel for the Members are herein
called "selling expenses." Except as otherwise specifically provided herein,
Purchaser shall pay all of the registration expenses incurred in connection with
the registration statement filed pursuant to Section 6.4 and the Members shall
bear their own selling expenses.
(d) Copies of Registration Statement and Prospectus. Purchaser will
furnish to the Members a conformed copy of the registration statement as
declared effective by the SEC and each post-effective amendment thereto,
including financial statements and all exhibits and reports incorporated therein
by reference, and such number of copies of the final Prospectus and each
post-effective amendment or supplement thereto as well as all filings, if any,
with state securities agencies, as the Members may reasonably request.
(e) Transferability. The registration rights provided to the Members
under this Section 6.3 are not transferable.
(f) Indemnification. Purchaser shall indemnify and hold harmless the
Members from and against any and all losses, claims, obligations, demands,
assessments, penalties, liabilities, costs, damages and expenses (including
reasonable attorneys' and other expenses for investigation and defense with
respect to the foregoing) to the extent not covered and paid by insurance
(collectively "Damages"), joint or several, to which the Members may be or
become subject insofar as such Damages arise out of or are based on any untrue
statement or alleged untrue statement of material fact contained in a
registration statement relating to the sale of the Shares or any prospectus
forming in part thereof, or any amendment or supplement thereto, or arise out of
or based upon any omission or alleged omission to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such Damages are caused by an untrue statement or
omission based upon information furnished in writing to Purchaser by a Member.
The Members shall indemnify Purchaser, its directors, each officer signing the
Registration Statement and each person, if any, who controls Purchaser within
the meaning of the Securities Act, from and against any and all Damages to which
any of the foregoing persons may become subject insofar as such Damages arise
out of or are based on any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the prospectus forming
a part thereof, or any amendment or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make any statement therein not
misleading, but only insofar as such Damages are caused by any untrue statement
or alleged untrue statement or omission or alleged omission based upon written
information furnished to Purchaser by a Member, or any person engaged by a
Member or acting on a Member's behalf expressly for use therein.
SECURITIES PURCHASE AGREEMENT
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SECTION 6.4. ACCOUNTING TREATMENT. From and after the date of this
Agreement, none of Purchaser, the Company or any Member shall take, or cause or
permit any of their affiliates to take, any action that would preclude
qualification of the transactions contemplated by this Agreement for a pooling
of interests accounting treatment.
ARTICLE VII.
REMEDIES
SECTION 7.1. INDEMNIFICATION BY THE MEMBERS. (a) Subject to the terms
and conditions of this Article, the Members, severally and not jointly, agree to
indemnify, defend and hold Purchaser and its directors, officers, agents,
attorneys and affiliates (the "Purchaser Indemnitees") harmless from and against
all Damages asserted against or incurred by such indemnitees by reason of or
resulting from:
(i) a breach by such Member of any representation or warranty made by
such Member in Article 3.A.;
(ii) a breach by such Member of any covenant or agreement of such
Member in this Agreement;
(iii) a breach by such Member of any representation, warranty or
covenant made by such Member in any other Member Delivered Document;
(iv) all taxes upon or arising from the transactions contemplated
hereby and all taxes of the Company related to taxable periods or
portions thereof ending on or before the Closing Date, except as set
forth on Schedule 3.11B(2); or
(v) all transaction expenses of the Company over the aggregate amount
of $30,000.00.
(b) Subject to the terms and conditions of this Article, the Principal
Members, jointly and severally, agree to indemnify, defend and hold the
Purchaser Indemnitees harmless from and against all Damages asserted against or
incurred by such indemnities by reason of or resulting from:
(i) a breach of any representation, warranty or covenant of the Company
or Principal Members contained herein, in any schedule or certificate
delivered hereunder, or in any agreement executed in connection with
the transactions contemplated hereby; and
(ii) any liabilities, contingent or otherwise (known or unknown and
asserted or unasserted) arising out of the Company's conduct or its
business prior to Closing and the liabilities of the Company created
prior to Closing or arising out of transactions effected or events
occurring on or prior to the Closing Date (including, without
limitation, litigation matters which arose from events or circumstances
occurring on or prior to the Closing Date), except as disclosed herein
(unless such liability is specifically a subject of indemnification
hereunder.
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Notwithstanding the above paragraphs, the Principal Members shall not
be required to indemnify the Purchaser Indemnitees in respect of any Damages
pursuant to Section 7.1(b) until the aggregate amount of all such Damages
exceeds $50,000, whereupon the Principal Members shall be required to indemnify
the Purchaser Indemnitees in respect of such Damages only to the extent that
such Damages exceed $50,000.
SECTION 7.2. INDEMNIFICATION BY PURCHASER. Subject to the terms and
conditions of this Article, Purchaser hereby agrees to indemnify, defend and
hold the Members and their agents, attorneys and affiliates harmless from and
against all Damages asserted against or incurred by any of such indemnities by
reason of or resulting from a breach by Purchaser of any representation,
warranty or covenant of Purchaser contained herein or in any exhibit, schedule
or certificate delivered hereunder, or in any agreement executed in connection
with the transactions contemplated hereby.
SECTION 7.3. CONDITIONS OF INDEMNIFICATION. The respective obligations
and liabilities of the Members and Purchaser (the "indemnifying party") to the
other (the "party to be indemnified") under Sections 6.3(f), 7.1 and 7.2 with
respect to claims resulting from the assertion of liability by third parties
shall be subject to the following terms and conditions:
(a) Within twenty (20) days (or such earlier time as might be required
to avoid prejudicing the indemnifying party's position) after receipt of notice
of commencement of any action evidenced by service of process or other legal
pleading, the party to be indemnified shall give the indemnifying party written
notice thereof together with a copy of such claim, process or other legal
pleading, and the indemnifying party shall have the right to undertake the
defense thereof by representatives of its own choosing and at its own expense;
provided that the party to be indemnified may participate in the defenses with
counsel of its own choice, the fees and expenses of which counsel shall be paid
by the party to be indemnified unless (i) the indemnifying party has agreed to
pay such fees and expenses, (ii) the indemnifying party has failed to assume the
defense of such action or (iii) the named parties to any such action (including
any impleaded parties) include both the indemnifying party and the party to be
indemnified and the party to be indemnified has been advised by counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the indemnifying party (in which case, if
the party to be indemnified informs the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the party to be indemnified, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for the party to be indemnified, which firm shall be designated in writing
by the party to be indemnified).
(b) In the event that the indemnifying party, by the thirtieth (30th)
day after receipt of notice of any such claim (or, if earlier, by the tenth
(10th) day preceding the day on which an answer or other pleading must be served
in order to prevent judgment by default in favor of the person
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asserting such claim), does not elect to defend against such claim, the party to
be indemnified will (upon further notice to the indemnifying party) have the
right to undertake the defense, compromise or settlement of such claim on behalf
of and for the account and risk of the indemnifying party and at the
indemnifying party's expense, subject to the right of the indemnifying party to
assume the defense of such claims at any time prior to settlement, compromise or
final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not
settle any claim without the consent of the party to be indemnified, such
consent not to be unreasonably withheld, unless such settlement involves only
the payment of money and the claimant provides to the party to be indemnified a
release from all liability in respect of such claim. If the settlement of the
claim involves more than the payment of money, the indemnifying party shall not
settle the claim without the prior consent of the party to be indemnified. The
party to be indemnified and the indemnifying party will each cooperate with all
reasonable requests of the other.
SECTION 7.4. WAIVER. No waiver by any party of any default or breach by
another party of any representation, warranty, covenant or condition contained
in this Agreement, any exhibit or any document, instrument or certificate
contemplated hereby shall be deemed to be a waiver of any subsequent default or
breach by such party of the same or any other representation, warranty, covenant
or condition. No act, delay, omission or course of dealing on the part of any
party in exercising any right, power or remedy under this Agreement or at law or
in equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies.
SECTION 7.5. REMEDIES EXCLUSIVE. The remedies provided in this Article
shall be exclusive of any other rights or remedies available to one party
against the other, either at law or in equity, except in the case of fraud.
SECTION 7.6. COSTS, EXPENSES AND LEGAL FEES. Subject to the provisions
of Sections 6.2, 6.3(f), 7.1 and 7.2, whether or not the transactions
contemplated hereby are consummated, each party hereto shall bear its own costs
and expenses (including attorneys' and accountants' fees), except that (a) each
party hereto agrees to pay the costs and expenses (including reasonable
attorneys' fees and expenses) incurred by the other parties in successfully
enforcing any of the terms of this Agreement or proving that another party
breached any of the terms of this Agreement; and (b) the Company shall bear all
transaction expenses (including without limitation reasonable legal fees
(including the reasonable fees of Haynes & Boone, L.L.P., McGuire Craddock
Strother & Hale, P.C. and Jimmy Heisz, of which $1,800 has previously been paid)
but excluding accounting fees) up to an aggregate amount of $30,000.
SECTION 7.7. CLAIM PERIOD. Any claims for Damages must be made prior to
the expiration of the applicable periods set forth in Section 8.6, and as to any
such claim that is presented to the indemnifying party within the applicable
period set forth in Section 8.6, such obligation to indemnify shall continue to
survive until such claim is finally resolved or disposed of.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. AMENDMENT. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all the parties
hereto.
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SECTION 8.2. ASSIGNMENT. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto, except by Purchaser
to an affiliate of Purchaser.
SECTION 8.3. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
Agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
SECTION 8.4. ENTIRE AGREEMENT. This Agreement and the agreements
contemplated hereby constitute the entire agreement of the parties regarding the
subject matter hereof, and supersede all prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
SECTION 8.5. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
SECTION 8.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained herein shall survive the Closing and
all statements contained in any certificate, schedule or other instrument
delivered by or on behalf of the Company, Members or Purchaser pursuant to this
Agreement shall be deemed to have been representations and warranties by the
Company, Members or Purchaser, as the case may be, and, notwithstanding any
provision in this Agreement to the contrary, shall survive the Closing for a
period of twelve (12) months, except for representations and warranties with
respect to any environmental, tax or tax-related matters which shall survive the
Closing for a period of four (4) years.
SECTION 8.7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE STATE OF TEXAS.
SECTION 8.8. CAPTIONS. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
SECTION 8.9. CONFIDENTIALITY; PUBLICITY AND DISCLOSURES. Each party
shall keep this Agreement and its terms confidential, and shall make no press
release or public disclosure, either
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written or oral, regarding the transactions contemplated by this Agreement
without the prior knowledge and consent of the other parties hereto; provided
that the foregoing shall not prohibit any disclosure to attorneys, accountants,
investment bankers or other agents of the parties or as required by law.
SECTION 8.10. NOTICE. Any notice or communication hereunder or in any
agreement entered into in connection with the transactions contemplated hereby
must be in writing and given by depositing the same in the United States mail,
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, by facsimile transmission or by
delivering the same in person. Such notice shall be deemed received on the date
on which it is hand-delivered or transmitted by facsimile or on the third (3rd)
business day following the date on which it is so mailed. For purposes of
notice, the addresses of the parties shall be:
If to Purchaser: Internet America, Inc.
One Dallas Centre
350 N. St. Paul, Suite 3000
Dallas, Texas 75201
Attention: President
Fax No.: (214) 861-2663
If to the Members: The addresses set forth in
Schedule 3.4B
Any party may change its address for notice by written notice given to the other
parties in accordance with this Section.
SECTION 8.11. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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EXECUTED as of the date first above written.
COMPANY:
CYBERRAMP, L.L.C.
By: /s/ James G. Hazlewood
---------------------------------
James G. Hazlewood, Manager
MEMBERS:
/s/ James G. Hazlewood
--------------------------------------
James G. Hazlewood
/s/ John H. Jackson
--------------------------------------
John H. Jackson
/s/ Richard D. Evans
--------------------------------------
Richard D. Evans
/s/ David Hazlewood
--------------------------------------
David Hazlewood
/s/ Stephanie Hazlewood
--------------------------------------
Stephanie Hazlewood
/s/ Jennifer Hazlewood
--------------------------------------
Jennifer Hazlewood
/s/ Allison Hazlewood
--------------------------------------
Allison Hazlewood
<PAGE> 21
PURCHASER:
INTERNET AMERICA, INC.
By: /s/ Michael Maples
-----------------------------------
Michael Maples, President and
Chief Executive Officer
<PAGE> 1
EXHIBIT 99.1
[INTERNET AMERICA LOGO]
CONTACT FOR RELEASE
- --------------------------------------------------------------------------------
Paul R. Streiber
Director, Corporate Communications
214.861.2582
[email protected]
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INTERNET AMERICA ACQUIRES CYBERRAMP INTERNET SERVICES
----------
COMBINATION GIVES INTERNET AMERICA SIGNIFICANT MARKET SHARE
DALLAS, February 18 -- Internet America Inc. (Nasdaq: GEEK) today announced
that it has acquired all of the securities of CyberRamp L.L.C., a Dallas-based
Internet Service Provider, in exchange for 365,725 shares of common stock of
Internet America.
"This combination with CyberRamp significantly increases Internet America's
market share in Dallas/Fort Worth and Texas, and gives us the opportunity to
achieve greater operating efficiencies for Internet access and customer care,"
said Mike Maples, president and chief executive officer of Internet America. "We
intend to use our solid foundation here as the platform for continuing expansion
throughout the Southwest."
Jim Hazlewood, president of CyberRamp, commented, "The combination of
Internet America and CyberRamp makes a lot of sense for CyberRamp customers.
They will now enjoy greater access to the Internet, outstanding 24-hour-a-day,
7-day-a-week customer care and the availability of Internet America's unrivaled
AirNews service."
"We are very happy to be welcoming CyberRamp customers to the Internet
America family, and we are pleased that Internet America will be able to provide
our new members with the easiest, fastest and most enjoyable Internet experience
possible," added Maples. "We have taken great care to ensure CyberRamp customers
a smooth migration to Internet America. We will be transitioning new members
gradually and they will each receive an Internet America Welcome Kit. Also, we
have added customer-care technicians to help specifically with new members'
acclimation."
Based in Dallas, Internet America (www.airmail.net) is a leading Internet
Service Provider in the southwestern United States with over 53,500 subscribers.
Through its 1-800-Be-A-Geek(R) television campaigns, which emphasize the speed
and quality of its Internet services and its commitment to customer care,
Internet America has become one of the leading Internet service providers in its
markets. Internet America offers a wide array of Internet services tailored to
meet the needs of individual retail consumers, including dial-up Internet
access, multiple e-mail addresses, World Wide Web access, chat, Usenet News and
personal web sites. Internet America
<PAGE> 2
also provides a full range of services to business customers, including
dedicated high-speed access, web hosting, server co-location and domain name
registration.
This press release may contain forward-looking statements relating to
future financial results or business expectations and, as a result, should be
considered as subject to the many uncertainties that exist in the Company's
operations and business environment. Business plans may change as circumstances
warrant and actual results may differ materially as a result of a number of
factors. Such factors include, but are not limited to: the Company's expansion
and acquisition strategy, the Company's ability to achieve operating
efficiencies, the Company's dependence on network infrastructure, capacity,
telecommunications carriers and other suppliers, industry pricing and technology
trends, evolving industry standards, regulatory changes, and general economic
and business conditions. These risk factors and additional information are
included in the Company's filings with the Securities and Exchange Commission,
including its prospectus dated December 9, 1998, and its Form 10-Q dated
December 31, 1998.
