LETTER OF INTENT
This letter of intent dated December 29, 1999 ("Letter") is made by and
between Xxxxx Xxxxx, including his approved assignee ("White"), Auto-
Graphics, Inc., a California corporation ("A-G"), XxxxxxxXxxx.xxx, Inc., a
Nevada corporation ("XxxxxxxXxxx.xxx") and A-G Sub, Inc., a Nevada
corporation ("A-G Sub"). White, A-G, XxxxxxxXxxx.xxx and A-G Sub are
sometimes collectively referred to herein as the "parties". XxxxxxxXxxx.xxx
and A-G Sub may hereinafter collectively be referred to as the "Companies".
RECITALS
WHEREAS, White and A-G have been discussing an arrangement whereby White
would make an investment in the Companies organized by A-G to own, carry-on
and conduct the business(es) such parties refer to as (1) "XxxxxxxXxxx.xxx"
and (2) "CMS" or "A-G Sub". A more detailed description of such proposed
businesses is set forth on Exhibit A hereto; and
WHEREAS, the parties desire to memorialize their discussions and
agreements in this Letter which, when signed by the parties, will constitute
and be the parties' legally binding and enforceable agreement, subject to the
within terms and conditions, in respect of the matters set forth herein;
AGREEMENT
NOW, THEREFORE, the parties do hereby agree, subject to the within terms
and conditions, as follows:
1. Organize Companies. The Company has organized the Companies to
own, carry-out and conduct, respectively, the XxxxxxxXxxx.xxx and CMS (A-G
Sub) businesses. The businesses of the respective Companies shall be as set
forth in Exhibit A, which is incorporated herein, and as further described
and mutually agreed upon in writing by the parties ("Exhibit A "). White
will be provided with the opportunity to review and approve the articles of
incorporation and bylaws of the Companies which approval by White will not be
unreasonably withheld. The articles will not provide for preemptive rights
or any similar provision.
2. Stock Purchase/Other Matters. At the closing, as provided for
in paragraph 9 hereof (the "Closing"), the parties will purchase, pay for and
acquire capital stock of the respective Companies, as follows:
X. Xxxxx. White will purchase, pay for, acquire and own that
number of shares in the Companies constituting twenty-seven percent (27%) of
the respective Companies issued and outstanding shares of capital stock
immediately after the Closing for cash consideration in the amount of Two
Million Dollars ($2,000,000) being $1 million for each of the Companies; and
B. A-G. A-G and Xxxxx X. Xxxxxx ("Xxxxxx") have or will
purchase, pay for, acquire and own that number of shares in the respective
Companies constituting the balance of such shares being seventy-three percent
(73%) of the Companies issued and outstanding capital stock immediately after
the Closing for consideration in the form of, in Patick's case, cash in the
maximum amount of Two Thousand Dollars ($2,000) being up to $1,000 for each
of the respective Companies and, in A-G's case, assets of A-G and agreements
by and between A-G and the Companies ("Non-Cash Contribution") and such cash
consideration as A-G may determine in its sole discretion and election to pay
for such stock in the maximum amount of Three Thousand Dollars ($3,000) being
up to $1,500 for each of the respective Companies;
C. Non-Cash Contribution. The Non-Cash Contribution by A-G
to the Companies shall be pursuant to and in accordance with Exhibit A, and
as otherwise mutually agreed to in writing by the parties, and shall be
contributed and transferred by A-G to the Companies and valued by the
Companies for accounting purposes at an amount equal to the book g and
comprising the Non-Cash Contribution by A-G as set forth on A-G's accounting
books and records at the time of the Closing. The Non-Cash Contribution by A-
G to the Companies shall be, unless otherwise previously agreed to in writing
by the parties, free and clear of any and all liens, claims and/or
encumbrances; and A-G represents and warrants to White that it has the
authority and power to make such Non-Cash Contribution and that the Companies
will obtain, as a result of such transfer by A-G, valid title to the assets
and other property which is the subject of such Non-Cash Contribution.
D. Private Offer/Sale and Restricted Stock. The stock which
has been or will be purchased and acquired by the parties and Xxxxxx, and
offered, sold and issued by the Companies to the respective parties and to
Xxxxxx, pursuant to and in accordance with this Letter has been or will be in
a private offering and sale/purchase transaction which is exempt from
registration and/or qualification under applicable federal and state
securities laws, rules and regulations; and, as such, the stock is and will
be deemed to be and treated as "restricted stock" under applicable securities
laws which means that such stock will be subject to restrictions on future
offer, sale and/or other transfer of the stock in whole or in part by the
holders thereof. The certificates for the stock will carry restrictive
legends and will be subject to "stop transfer" instructions as customarily
attend the offer, sale, and/or issuance of such restricted securities. The
parties and Xxxxxx have and/or will cooperate with the Companies, and will
deliver such further undertakings, acknowledgments and agreements as the
Companies and their counsel shall reasonably request in respect of such
private offer and sale transaction and the issuance of certificates
representing the parties' ownership of such shares of stock in the Companies
E. Stock Lock-Up For Possible IPO. In the event that the
Companies determine to conduct an initial public offering ("IPO") of the
securities of such Companies, whether on a "firmly underwritten", "best
efforts" or other basis, White and A-G agree and promise, including for the
benefit of the Companies as express third party beneficiaries, to enter into
a stock "lock-up" agreement whereby White and A-G agree not to offer and/or
sell any shares of the Companies securities in a public offering (as defined
under federal and state securities laws) for a minimum period of six (6)
months following the conclusion of any such IPO.
F. A-G Right Of First Refusal. White grants to A-G an
unconditional, irrevocable right of first refusal to purchase, on the same
terms and conditions contained in any third party offer, shares of the
Companies stock which he owns prior to the time he obligates himself to
and/or does sell or transfer any or all of the shares of the Companies
capital stock owned by him from time to time to any third person or entity
("A-G Right Of First Refusal"). White acknowledges and agrees that the
certificates representing shares of the Companies capital stock will carry a
legend restricting the sale and transfer of such shares of stock except in
accordance with such A-G Right Of First Refusal. White agrees and promises
to enter into a further agreement memorializing such Right Of First Refusal
and providing further normal and customary details in respect of the
description and implementation of such Right Of First Refusal in favor of A-G
(the "Additional RFR Agreement"). White will have the right to review and
approve such Additional RFR Agreement which approval shall not be
unreasonably delayed or withheld. Prior to the time the parties do, in fact,
make and enter into such Additional RFR Agreement, this Letter shall
constitute the parties A-G Right Of First Refusal agreement.
G. Initial Shareholders. Immediately following the Closing,
White will be a shareholder of the Companies and be the owner of record of
shares of the respective Companies I capital stock in the form of Common
Stock equal to twenty-seven percent (27%) of the Companies' issued and
outstanding (restricted) capital stock immediately following the issuance of
stock to White. Immediately following the Closing, A-G and Xxxxxx will be
shareholders of the Companies and be the owner of record of shares of the
respective Companies' Common Stock equal to seventy-three percent (73%) of
the Companies' issued and outstanding (restricted) capital stock. Following
the Closing, the Companies will adopt a qualified stock option plan for
employees covering shares equal to ten percent (10%) of the Companies' issued
and outstanding shares of Common Stock including as referenced herein in
paragraph 6 (representing dilution to all shareholders including White, A-G
and Xxxxxx).
H. Right of First Refusal In Favor Of White. If at any time
during the eighteen (18) month period following the Closing, the Companies
(or either of them) determines to offer, sell and issue shares of its Common
Stock or other shares of capital stock to buyers in an offering which is not
deemed to be a public offering as that phrase is defined under federal and/or
state securities law in effect at such time {a "private offering"), then in
addition to whatever other rights White may have under this Letter, White
shall be entitled to a right of first refusal to purchase and acquire in such
private offering, and thereby be obligated to pay for, that number of shares
of Common Stock or other capital stock which shall be required to maintain
White's pro rata ownership, if any, in the Companies issued and outstanding
shares of capital stock owned by White immediately prior to the offer, sale
and; issuance of any such shares of capital stock by the Companies in such
private offering for the purchase price or other consideration to be paid to
the Companies by the buyers for such shares of capital stock in any such
private offering as proposed by the Companies ("White's RFR"). For purposes
of this paragraph, it is understood and agreed that White's RFR shall not
apply to any of the shares of the Companies' Common Stock including options
in respect thereof which are the subject of the Companies' qualified stock
option plans and/or sold, issued and/or transferred thereunder. In the event
that the Companies actually determine to offer, sell and issue any shares of
capital stock or to obligate itself/themselves to do so during the first
eighteen (18) months following the Closing, then the Companies determining to
engage in any such private offering shall thereafter, and prior to offering,
selling and/or issuing any such shares of capital stock to any buyer or
prospective buyer shall first provide White with written notice of any such
decision to offer, sell and issue such shares of capital stock including the
terms and conditions of any such proposed capital stock transaction (the II
White RFR Notice II ), and White shall have ten (10) business days following
receipt of such White RFR Notice to provide the Companies whose capital stock
are the subject of such White RFR Notice with his written agreement (the
"White Subscription") to purchase that number of shares of capital stock
which will allow White to maintain his pro rata ownership of such shares of
capital stock immediately following the completion of any such proposed
offer, sale and issuance of such capital stock (the "White RFR Stock"); and
White shall tender to the Companies the consideration to be paid by White in
consideration of and for such White RFR Stock purchase transaction pursuant
to the White Subscription within five (5) business days following the
delivery of any such White Subscription to the Companies. If White does not
for any reason timely provide the Companies with the White Subscription, then
the Companies are free, without further obligation and or liability of any
kind to White in respect of such shares of capital stock transaction and/ or
otherwise under this paragraph of the Letter, to proceed with, consummate and
close the offer, sale and issuance of its/their shares of capital stock as
described in the White RFR Notice. If, for any reason, the Companies propose
to deviate in any manner from the terms and conditions of the offer, sale and
issuance of the capital stock which were the subject of any White RFR Notice,
then the Companies shall prior to proceeding with any such offer, sale and/or
issuance of any such capital stock issue a revised White RFR Notice covering
any such revised offer, sale and/or offering of any such capital stock (the
"Revised White RFR Notice"); and the parties shall repeat and follow the
procedures set forth herein in respect of any such Revised White RFR Notice
and in any such proposed private offering. In the event that White
provides the Companies with the required White Subscription, within five (5)
business days following the delivery of any such White Subscription to the
Companies, White shall fully and finally purchase and pay for the shares of
capital stock which are the subject of the Subscription. If White fails for
any reason to so perform his purchase and payment obligation under the White
Subscription or otherwise under this paragraph then, in addition to whatever
other rights the Companies may have against White pursuant to the White
Subscription and his failure to consummate the subject Subscription
transaction or otherwise under this Letter, the Companies obligation(s)
under this paragraph to White" shall automatically and forever terminate,
cease to exist and be of no further force and effect.
3. Operating Agreements. Prior to the Closing, the Companies will
negotiate with A-G for operating agreements ("Operating Agreements") setting
forth the support that A-G will render to the Companies in the development
and operation of their Businesses on an on-going basis, and the cost that A-G
will charge the Companies for such on-going support services and related
matters (rent, utilities, accounting services, etc.). Such Operating
Agreements will be submitted for review and written approval by White before
they are entered into by A-G and the Companies. White will not unreasonably
delay or withhold approval of the proposed Operating Agreements. For a period
of three (3) years, A-G will provide the Companies with services required or
otherwise needed by the Companies and available from A-G at actual cost plus
ten percent.
4. Business Plan. Prior to the Closing, the Companies will
prepare or cause to be prepared for the respective Companies preliminary
business plans for review by White. Thereafter, if the Companies propose to
make any substantial expenditures (such as, for either of the Companies, in
excess of $100, 000 for any particular item and/ or expenditures as to
particular items which exceed in the aggregate $500,000 over the first two
(2) years of operations) which are not already expressly provided for or
contemplated by the respective Companies I preliminary business plans (or any
subsequent business plan approved in writing by White) or which are not
otherwise in the ordinary course of the Companies' business as described by
such business plans, then the Companies will submit any such newly proposed
substantial expenditure(s) for the prior review and written approval of White
which approval will not be unreasonably delayed or withheld by White.
5. Board Representation. White will be entitled to serve, or
designate a person to serve as his representative, on the respective
Companies' Boards of Directors for a period of three (3) years from the date
of the Closing; and A-G agrees and promises to vote shares of the Companies'
capital stock registered in the name of A-G to cause White (or his substitute
designee) to be elected to the Companies' respective Boards of Directors for
such period of time. During the time that White, or his designee, is serving
on the Companies Boards of Directors as provided for herein, the Companies
will not enlarge the size of their Boards of Directors to more than five (5)
persons without the prior written consent of White, or his designee.
Following the Closing, the Companies will use their best efforts to purchase
and at their expense obtain officer/director liability insurance from a
Standard and Poors A+ or better rated company authorized to do business in
California.
6. Further Dilution. The parties acknowledge and agree that the
Companies will immediately seek to obtain additional financing, in the form
of debt and equity and/or any combination thereof, to be used to implement
their respective business plans. Such financing efforts could possibly take
on the form or otherwise include a "private placement" and/or an initial
public offering of the respective Companies' securities the result of any
such securities offerings would and/or could be dilutive of the existing
shareholders' ownership of the Companies including voting and other rights
and benefits attending ownership of the Companies' capital stock. Any such
securities offering(s), none of which can be predicted, contemplated and/or
assured at this point in time, will be approved and authorized by the boards
of directors and/or shareholders of the respective Companies in accordance
with applicable corporate law as being in the best interests of such
Companies as they may exist from time to time. Notwithstanding the foregoing
acknowledgment and agreement, the parties for themselves and for and on
behalf of the Companies, hereby agree that the Companies will not, and they
will not take any action to cause the Companies, to undertake any such
securities offering(s), without the prior review and written approval of said
parties if the dilution resulting therefrom will, in respect of any such
securities offering and/or in the aggregate of all such securities offerings
undertaken by the Companies during the succeeding three (3) year period
following the Closing, exceed fifty percent (50%) of such parties' ownership
and other rights in the respective Companies. (For example, such securities
offerings will not result in White's percentage ownership in the respective
Companies during such period of time falling below thirteen and one-half
percent (13.5%) on a fully diluted basis). The parties agree, however, that
for purposes of such dilution calculation, shares of capital stock issued or
issuable to employees of the Companies under qualified stock option plans
(limited to a maximum of ten percent (10%) of the Companies' issued and
outstanding shares of capital stock at any point in time) shall not be taken
into account or otherwise computed.
7. Representations/Warranties. White acknowledges and agrees that
A-G is not the proposed seller and issuer of the stock which White agrees to
purchase from the Companies pursuant to and in accordance with this Letter;
and that the respective Companies will be the issuer(s) of such securities.
White further acknowledges and agrees that he will conduct such inquiry and
investigation, referred to in this Letter including the following paragraph
as "due diligence", as he and his advisors determine to be necessary and
appropriate in order for White to determine whether or not to proceed under
this Letter including the within agreements; and that White will rely
entirely on his own due diligence and judgment in respect thereof in
determining to continue to perform under this Letter in accordance with the
terms and conditions hereof including the purchase of stock in the Companies
as provided for herein. White acknowledges and agrees that, A-G (including
without limitation its officers, directors, employees, consultants,
designers, attorneys or other representatives) has not and is not making any
representations or warranties or providing any assurances of any kind in
respect of (1) the investment merits of the capital stock to be purchased by
White as provided for in this Letter, (2) the Companies or the investment
opportunity associated with the Companies organized or to be organized under
the terms of this Letter, (3) the businesses and or the prospects for the
businesses to be owned, further developed and operated by the Companies as
contemplated by this Letter, (4) the business plans for the Companies to be
reviewed by White in accordance with the terms of this Letter, (5) the
financial condition and/or the adequacy of the, funding to be provided to or
otherwise obtained by the Companies as provided for or contemplated by this
Letter or otherwise, and/or (6) the assets and properties to be contributed
by A-G to the Companies in accordance with the terms of this Letter. In
addition to any other provisions of this Letter, White agrees and promises
to indemnify and hold harmless A-G (including without limitation its
officers, directors, employees, consultants, designers, attorneys or other
representatives) from any and all claims, debts, causes of action, actions,
proceedings, obligations, liabilities, expenses and costs (including without
limitation attorneys' and other professionals' fees and costs paid or
incurred by A-G) in respect of, based upon, arising as a result of, or
otherwise under, or in respect of, the specific disclaimers set forth in
items (1) through (6) above. Nothing in this paragraph is intended or shall
be deemed for any purpose to limit and/or nullify the representations,
warranties and agreements of A-G in favor of White expressly set forth in
paragraph 2.C. of this Agreement.
8. Due Diligence.
X. Xxxxx Due Diligence. White including his agents at his
direction and under his control has conducted and agrees to conduct, and A-G
has and agrees to cooperate in the conduct by White, such due diligence and
other inquiry and investigations (collectively herein "due diligence") as he
reasonably believes to be necessary, appropriate or otherwise advisable as a
basis for determining to enter into this Letter and to consummate the subject
stock purchase transaction pursuant to and in accordance with the provisions
of this Letter. Such due diligence has been and will continue to be at
White's sole cost and expense. Any and all due diligence at or similarly
involving A-G has been and shall be conducted by White including his agents
during normal business hours and, where deemed appropriate by A-G in its sole
discretion and election, has and shall be conducted pursuant to
confidentiality and non-disclosure agreements in form and content reviewed
and approved and to be reviewed and approved in writing by White which
approval has not and will not be unreasonably delayed or withheld by White.
The purpose of such due diligence is to allow White to obtain information
which will allow him to make an informed investment decision regarding the
entering into this Letter and the purchase of the stock of the Companies as
provided for and contemplated herein; and White has and agrees to rely
exclusively on such due diligence in making his decision as to whether or not
to enter into this Letter and to purchase such stock. The conduct of such
due diligence by White to his sole and exclusive satisfaction is a condition
to White's obligation to consummate the purchase of stock at the Closing, and
the Companies' obligation to sell and issue the stock to White, as provided
for herein.
B. A-G Due Diligence. White will provide A-G in writing with
the background and other information customarily required from
officers/directors of public reporting companies to appear in securities
offering, reporting and other disclosure documents under federal and state
securities laws so that A-G can conduct a reasonable background inquiry and
investigation confirming the accuracy and completeness of such information as
part of A-G's due diligence on White as the prospective purchaser and
substantial owner of stock in the Companies, A-G agrees to maintain the
confidentiality of all information provided by White which is not otherwise a
matter of public record. Completion of such A-G due diligence, to A-G's sole
and exclusive satisfaction and approval, is a condition to A-G's (and for and
on behalf of the Companies' as an express beneficiary of such provision)
duties and obligations under this Letter (including the sale of stock in the
Companies by the Companies to White at the Closing).
9. Closing. The Closing as referenced herein, whereby White will
purchase, pay for, acquire and receive the stock in the Companies as provided
for in paragraph 2, will take place on December 31, 1999 at 10:00 o'clock
A.M: at A-G's corporate offices in Pomona, California, or such other date,
time and place as the parties shall mutually agree to in writing (herein the
"Closing"). At the Closing White will purchase and pay for the stock in the
Companies by delivering to the Companies bank cashier's checks dated on or
prior to the Closing in the total amount of $2 million, as follows: (1) one
bank cashier's check for $1 million payable to "XxxxxxxXxxx.xxx, Inc." and
(2) one bank cashier's check for $1 million payable to " A-G Sub, Inc."
(collectively the "Cashier's Checks"). At the Closing, in consideration of
the Cashier's Checks, the Companies shall deliver to White (and/or his
approved assignees) certificates for the shares of stock in the Companies
being purchased by White registered in the name(s) of White and/or such
assignees.
10. Conditions To The Closing. The parties' respective duties and
obligations under this Letter are conditioned upon the following:
X. Xxxxx'x obligations under this Letter, including the
purchase of stock in the Companies at the Closing, are conditioned upon the
following:
(1) Due Diligence. Completion of White's due diligence,
as provided for herein at paragraph 8.A. hereof, to his sole satisfaction and
approval on or before December 30, 1999. If White has not notified A -G in
writing that such due diligence has not been completed to White's
satisfaction by the close of business on such date, then White's approval
shall be deemed to have finally taken place for all purposes including the
satisfaction of this condition.
(2) Operating Agreement. Review and approval by White of
the proposed Operating Agreement, as provided for in paragraph 3 hereof, to
his satisfaction on or before December 30, 1999. If White has not notified A-
G in writing that such review and approval of the proposed Operating
Agreement has not been completed to White's satisfaction by the close of
business on such date, then White's approval shall be deemed to have finally
taken place for all purposes including the satisfaction of this condition.
(3) Business Plan. Review by White of the proposed
Business Plans of the Companies, as provided for in paragraph 4 hereof, on or
before December 30, 1999. If White has not notified A-G in writing that
such, review of the Business Plans of the Companies has not taken place by
the close of business on such date, then such review shall be deemed to have
taken place for all purposes including the satisfaction of this condition.
(4) Corporate Documents. Review and approval by White of
the Articles of Incorporation and Bylaws ("Corporate Documents ") of the
Companies, as provided for in paragraph 1 hereof, to his satisfaction on or
before December 30, 1999. If White has not notified A-G in writing that such
review and approval of the Corporate Documents have not been completed to
White's satisfaction by the close of business on such date, then White's
approval shall be deemed to have finally taken place for all purposes
including the satisfaction of this condition.
(5) Additional RFR Agreement. Review and approval by
White of the Additional RFR Agreement, as provided for in paragraph 2.F.
hereof, to his satisfaction on or before December 30, 1999. If White has not
notified A-G in writing that such review and approval of the Additional RFR
Agreement has either not taken place or has not been completed to White's
satisfaction by the close of business on such date, then White's approval of
such Additional RFR Agreement, or alternatively the A-G Right Of First
Refusal as set forth herein if no such Additional RFR Agreement has been
submitted to and approved by White and in lieu thereof, shall be deemed to
have finally occurred and taken place for all purposes including the
satisfaction of this condition.
If the foregoing conditions are satisfied as to one of the Companies, but not
the other, then White's obligations to and in respect of the Company in
respect of which any or all of the conditions shall not have been timely
satisfied shall be excused based on the non-satisfaction of the conditions
applicable to such Company (but White's obligations under this Letter as to
the other Company, in respect of which all of the conditions shall have been
satisfied, shall be and remain operable and enforceable as to such Company
and White's obligation to purchase stock in such Company pursuant to and in
accordance with this Letter).
B. A-G. A-G's (and the Companies' where and if applicable as
express beneficiaries under this Letter) duties and obligations under this
Letter (including the sale and issuance of stock in the Companies by the
Companies at the Closing), are conditioned upon the following:
(1) Due Diligence Re White. Satisfaction to its sole
election and judgment of A-G's due diligence as to White's suitability as an
investor in the Companies, as provided for in paragraph 8.B. hereof, on or
before December 30, 1999. If A-G has not notified White in writing that such
due diligence has not been completed to A-G's satisfaction by the close of
business on such date, then A-G's approval shall be deemed to have finally
taken place for all purposes including the satisfaction of this condition.
(2) Compliance With Securities Laws. Satisfaction by the
Companies (regardless of whether or not the Companies are deemed to be an
express beneficiary of this particular provision which is of important
interest to A-G) of any and all applicable securities laws, rules and
regulations pertaining to the offer, sale and/or issuance of the stock
including certificates of the Companies to be sold by the Companies to and
purchased by White as provided for herein.
(3) Accounting Clearance. Consultation with, to the
extent deemed necessary or advisable by A-G in its sole discretion and
election, A-G's and/or the Companies independent auditor(s) and accountant(s)
in respect of this Letter and the matters provided for herein from a
financial reporting perspective; and A-G's determination and confirmation, to
A-G's sole satisfaction and determination, of its understanding and agreement
in respect thereof as to such financial reporting matters (" Accounting
Clearance"). If A-G has not notified White in writing that such Accounting
Clearance has not been obtained to A-G's sole satisfaction and determination
prior to the Closing, then A -G ' s review and approval of such Accounting
Clearance matters shall be deemed to have finally taken place for all
purposes including the satisfaction of this condition.
(4) A-G Board Approval. Approval of this Letter and the
transactions and arrangements provided for herein by the Board of Directors
of A-G and the Companies (collectively the "Board Approval"). If A-G has not
notified White in writing that such Board Approval has not been obtained
prior to the Closing, then such Board Approval shall be deemed to have
finally taken place for all purposes including the satisfaction of this
condition.
If any of the conditions to White and/or A-G's duties and
obligations under this Agreement have not been timely satisfied, then the
party in whose favor such condition is applicable shall have the right but
not the obligation to waive in writing any such condition(s) prior to or at
the Closing
11. If White, on or before January 14, 2000, in his sole, absolute
and unreviewable discretion, determines that the Y2K problem (the Y2K or Year
2000 problem is understood to mean the inability of computer software
programs to recognize the arrival of the year 2000 because of a common
software design feature that describes the current year by only its last two
digits) will adversely affect his investment, the Companies or the United
States economy, White will have the right to rescind in writing to the
Companies and to A-G (the "Notice of Rescission") the prior purchase and
payment for such stock of the Companies at any time prior to January 14, 2000
without further obligation of any kind to the Companies and White shall be
entitled to the immediate return of the full purchase price of the stock
purchased by White from the Companies at the Closing plus interest at the
rate of ten percent (10%) per annum in return for the surrender by White and
cancellation of the stock of the Companies purchased and paid for by White at
the Closing (the "Optional Y2K Post Closing Condition"). If White has not
timely provided the Companies and A-G with such Notice of Rescission
including the tender of the stock previously purchased by White at the
Closing for cancellation by the Companies, then the sale and purchase by
White and payment by White for the stock in the Companies as provided for in
this Letter and consummated by White at the Closing shall not be, for any
reason, subject to any unsatisfied Post Closing Condition; such Closing shall
be reaffirmed to have taken place on and effective December 31, 1999 for all
purposes whatsoever.
12. Miscellaneous.
A. Authority. By signing and returning this Letter, the
parties thereby represent, agree and warrant to each other that they are duly
authorized and empowered to do so and to fully and timely perform their
respective duties and obligations under this Letter. Where the Companies are
referenced in this Letter, the parties acknowledge and agree that as of the
date of this Letter such Companies are in the process of being incorporated
and organized and are not yet actually incorporated and in existence.
B. Governing Law/Venue. This Letter shall be interpreted,
enforced and otherwise governed for all purposes (without regard to conflict
of law provisions) under and in accordance with the laws of the State of
California in which state the parties are located at the date of this Letter.
This Letter is made and entered into by the parties in Orange County,
California. Further, the parties acknowledge and agree with one another
(including for and on behalf of the Companies as express party beneficiaries)
that should any legal action or proceeding of any kind be initiated,
maintained and prosecuted under, arising out of or otherwise in reference to
this Letter, such action/proceeding shall be initiated, maintained and
prosecuted for all purposes in a court of competent jurisdiction located in
Orange County, California, which the parties hereby elect as the best venue
for any such action/proceeding .
C. Attorneys' Fees/Costs.
(1). Legal Action/Proceeding. In the event that any of
the parties initiates any legal action or proceeding against any other party
(and/or the Companies) seeking to enforce any of the provisions of or
otherwise under, arising out of or in reference to this Letter, then the
party (or parties) who is determined to have been the "prevailing party
(ies)" in any such legal action or proceeding shall be entitled to receive
and recover, in addition to whatever other relief and recovery such party
(ies) may be entitled to under this Letter or otherwise as a result of such
action/proceeding, such prevailing party's (ies') reasonable legal and other
professionals' fees and costs paid or incurred by such prevailing party (ies)
as a result of any such legal action or proceeding (including any appeal
thereto).
(2) Reimbursement Of White's Legal Fees. In the event
that White timely purchases and pays for in full stock in the Companies as
provided for in this Letter, then A-G shall reimburse White for legal fees
paid or incurred by White to his attorney in connection with such attorney's
representation of White in connection with this Letter and the stock purchase
transaction provided for herein up to a maximum aggregate amount by the
Companies of Twenty- Five Thousand Dollars ($25,000); and the parties to this
Letter shall take such steps as may be necessary or advisable to cause A-G to
make such reimbursement within thirty (30) days following the Closing. .
D. Approved Assignees(s). If either party desires to assign
or otherwise designate or transfer any or all of such party' rights,
benefits, duties and/or obligation under this Letter, then such party shall
first notify the other party in writing of such proposed assignment/transfer
and provide such other party with such facts and information about the
proposed assignee and/or designee which the other party may reasonably
request for purposes of making an informed decision about the suitability and
acceptability of such proposed assignee, designee or transferee and matters
relating thereto which other party agrees not to unreasonably withhold
approval of any such proposed assignee, designee or transferee (herein "
approved assignee").
E. No Waiver. Failure by any party to timely object to any
non-performance of or under this Letter shall not be deemed to constitute a
waiver of any similar non-performance of or under the Letter or of any other
provision (including any term or condition) of the Letter.
F. Separate Agreement. This Letter, and the agreements
contained and set forth herein, is (are) separate from any other
understandings, agreements or documents (including White's subscription to
purchase shares of A-G's capital stock in the private placement of such
securities pursuant to and in accordance with that certain Private Placement
Memorandum, and related Questionnaire and Subscription Agreement, dated May
15, 1999) by, between and among the parties hereto; and shall be so treated
for all purposes whatsoever. No party shall claim any right of set-off,
offset or other deduction under or otherwise applicable to this Letter in
respect of any other duties or obligation(s) owed to such party by any other
party or under any other understanding or agreement in respect of this
Letter.
G. Notices. Any notice required to be given, referenced or
which any of the parties desires to provide to the other shall be given and
shall be deemed to have been provided by the other party (1) on the third
(3rd) business day following the date of mailing of any such notice in the
United States Mail postage prepaid in a sealed envelope(s) addressed as set
forth below, (2) on the date that any such notice is hand delivered to the
other party, (3) on the second (2nd) business day following transmission via
facsimile if such notice is in writing and is addressed to the receiving
party and transmitted via facsimile, as follows:
(1) If to A-G:
Auto-Graphics, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
or via facsimile transmission to
Fax No. 909/000-0000 addressed as
indicated above
With a copy to:
Xxxxxx X. Xxxxx, Esq.
000 Xxxxxxxxxx Xxxx.
Xxxxxx xxx Xxx, XX 00000
(Fax No. 310/000-0000)
(2) If to White:
Mr. Xxxxx Xxxxx
c/x XXXXXXX & XXXX
0000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, XX 00000-0000
Attn: Barnet Xxxxxxx, Esq
(Fax No. 949/000-0000)
With a copy to:
Barnet Xxxxxxx, Esq
XXXXXXX & XXXX
0000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, XX 00000-0000
(Fax No. 949/000-0000)
H. Third Party Beneficiaries. Except as expressly provided
in this Letter, no person or entity is intended or shall be deemed or
determined to be a third party beneficiary under this Letter and/ or the
agreements set forth herein.
I. Heirs successors And Assigns. By signing this Letter, the
undersigned parties thereby confirm and re-confirm their intention to make
legal delivery of the Letter at such time; and that such action is intended
and shall be deemed and determined for all purposes to bind any of the
parties' respective heirs, successors and assigns for all purposes whatsoever
under and otherwise in respect of this Letter.
J. Counterpart Signatures. This Letter may be signed and
thereby delivered by the parties using counterpart signature pages; and, when
all such counterpart signature pages have been exchanged, this Letter
including such counterpart signature pages shall be deemed for all purposes
to be the original of this Letter.
K. Assistance Of Legal Counsel and Other Professionals. The
parties represent, agree and warrant to each other that such parties have had
and have actually used the opportunity to have this Letter and the form and
content hereof reviewed by legal counsel and/or other professionals of the
respective parties' own choosing; and that such parties will not claim or
otherwise assert that they signed and thereby delivered this Letter without
the benefit of the involvement of and advice from such parties' legal and/or
other professional advisor(s). Except as expressly provided for in this
Letter in paragraph 12.C.(2) in favor of White, the parties shall bear their
own legal and other professional fees and costs.
L. Brokers Or Other Finders. Each of the parties,
represents, agrees and warrants to the other that such party has not made any
agreement or otherwise taken any action to engage or otherwise obligate the
parties or either of them (or the Companies) to any broker, finder or other
person or entity who is thereby or otherwise entitled to be paid or receive a
broker's, finder's or other similar fee or other type of compensation for,
under, arising out of or otherwise in reference to or connection with this
Letter including the stock purchase transaction provided for herein.
M. Arm's Length Transaction. The parties acknowledge and
agree that they are making and entering into this Letter as a result of and
in an "arm's length" negotiation and transaction, and that the parties
(including any agent, attorney or other representative thereof) are not under
any duty (including any fiduciary or similar duty) or responsibility to the
other as it relates to this Letter or otherwise. White acknowledges and
agrees that A-G and the Companies including their officers, directors,
employees, consultants, designers, attorneys or other representatives) are
under no duty and/or responsibility to him in respect of this Letter and the
matters covered thereby as a result of his, and/or entities including limited
liability companies which he may now of hereafter be associated with,
subscription to purchase shares in A-G as referenced in paragraph 12(t)
hereof.
N. Time of the Essence. For all purposes of this Letter and
the matters provided for in or contemplated by this Letter, time shall be
deem to be of the essence.
13. Reserved
14. A-G Assurances Re Companies. Without limiting A-G's duties and
responsibilities as otherwise set forth in this Letter, A-G does hereby agree
and promise to take whatever steps it can reasonably and/or is legally
entitled to take from time to time to ensure that he covenants by the
Companies to White as expressly set forth in this Letter are timely performed
and otherwise fulfilled by the Companies; and A-G agrees and promises not to
take any steps or other action which would reasonably be understood to
interfere with the Companies' covenants o White, and the timely performance
thereof by the Companies, as expressly set forth in this Letter.
15. Complete Agreement/Amendment. This Letter sets forth all of
the parties' agreements in respect of the subject matter of this Letter. The
parties represent to and agree with each other that, in entering into and
performing this Letter, they have not received and are not otherwise relying
upon any statements, representations, understandings, agreements, covenants,
promises, guaranties, warranties, assurances and/or any other matters which
are not expressly set forth in this Letter; and that they will not at 'any
time assert otherwise (whether by way of any claims in contract, tort or
otherwise). If either of the undersigned parties subsequently attempts r
seeks to and/or actually does assert any claim(s) that such party received
and/or relied upon any statement, representation, understanding, agreement
covenant, promise, guaranty, warranty, assurance or any other matter which is
(or are) not expressly set forth in this Letter, other than the implied
covenant of good faith and fair dealing, then the party prevailing in respect
of any such claim including any action or other proceeding instituted in
respect thereof shall be entitled, in addition to whatever other relief such
prevailing party may otherwise be entitled to, to be indemnified and held
harmless by the other party for any and all costs and expenses (including
reasonable attorneys' and other professionals' fees/costs paid or incurred by
such prevailing arty), losses and damages paid or incurred by such prevailing
party as a result of any assertion the other party which was inconsistent
with the above referenced representation and agreement or purposes of such
indemnification and hold harmless provision and the underlying
representations and warranties, the Companies are deemed to be express third
party beneficiaries his Letter (including the within agreement(s) and Exhibit
A may only be amended, modified or hanged by a further writing so stating and
signed by the party against which any such , amendment, modification and/or
change is sought to be enforced. This Letter was and shall be deemed for all
purposes to have been drafted and prepared by all of the parties hereto. If
the language used and contained in this Letter is subsequently determined for
any reason to be unclear or ambiguous in any way, then no party shall suffer
any prejudice or detriment as a result of having participated in the drafting
or other preparation of this Letter.
IN WITNESS WHEREOF, the undersigned parties have executed this Letter in Los
Angeles, California effective as of the date first above stated.
AUTO-GRAPHICS, INC.
("A-G")
By ss/Xxxxxx X. Xxxx
-------------------------
Xxxxxx X. Xxxx President
By ss/Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx,
Chief Financial Officer
XxxxxxxXxxx.xxx, Inc.
By ss/Xxxxx Xxxxxx
------------------------
Xxxxx Xxxxxx
CEO
By ss/Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
Secretary
A-G Sub, Inc.
By ss/Xxxxx Xxxxxx
-----------------------
Xxxxx Xxxxxx
CEO
By ss/Xxxxxx X. Xxxxx
-----------------------
Xxxxxx X. Xxxxx
Secretary
"White"
ss/Xxxxx Xxxxx
-----------------------
Xxxxx Xxxxx
EXHIBIT A
Description Of Businesses
XxxxxxxXxxx.xxx
A-G's bibliographic records and other library services and related
information directed at and offered to the consumer (as opposed to the in
library) market via the Internet or other similar electronic communication
system (XxxxxxxXxxx.xxx Business). XxxxxxxXxxx.xxx is envisioned to be a
Internet Web portal/destination site targeted at the consumer market (both
individual and business customers) which non-library customers are seeking to
purchase or otherwise acquire information in electronic format and other
reference materials through e-commerce. It is envisioned that revenue will
be generated through sponsorships, commercial advertising, licensing of
commercial databases and sale of information in electronic and print formats
including the sale books and related items.
A-G shall retain all rights of ownership of the information/content.
published via the XxxxxxxXxxx.xxx Business which is authored, created,
compiled developed, obtained, maintained and offered by A-G including any of
its other subsidiaries prior to (or authored, created, compiled, developed,
obtained, maintained and offered by A-G separately from XxxxxxxXxxx.xxx
Business after) the Closing. Notwithstanding such Companies' respective
ownership of such information, A-G and the .XxxxxxxXxxx.xxx Business shall
provide each other with an irrevocable, on-going royalty free non-exclusive
license and right to publish, sell or use the bibliographic records and other
library services and related information authored, created, complied,
developed, obtained, maintained and offered from time to time by the other.
Nothing herein shall, however, give XxxxxxxXxxx.xxx the right to re-sell
(versus use in the XxxxxxxXxxx.xxx Business) any bibliographic records owned
by A-G to any library or other third party purchaser.
CMS (and A-G Sub)
A-G's content management services product and all, enhancements and
improvements thereto offered, sold and/or licensed to any consumer,
commercial or government user (the CMS or A-G Sub. Business). Such CMS
Business product/service shall include the following customer contracts for
all or various sub-components of the product/service (which will be sold,
assigned and transferred to the CMS Business):
1. Boeing 2. Northrop/Grumman
The CMS product/service is intended to be an "end-to-end" enterprise
content management software solution for document preparation, management and
delivery/publication in various formats. including Internet, Intranet, CD,
print and via e-commerce applications. This product/service seeks to address
the growing need for business and other customers to reuse and repurpose
content in generating customized online information products/services, in a
dynamic environment, that can be published using various media.
A-G including any of its other subsidiaries shall retain and obtain
from CMS an irrevocable, on-going royalty free license, and right to use the
CMS Business product/service including all enhancements and improvements
thereto by or for the CMS Business after the Closing for its own internal use
and in Connection with the products and services offered, sold or otherwise
made available to A-G's customers for purposes other than the intended
exploitation by the CMS Business.
