EXHIBIT 10.15
AMENDMENT TO STOCK PURCHASE AGREEMENT
BETWEEN INCOMNET, INC. AND RAPID CAST, INC.
AMENDMENT
AMENDMENT (the "Amendment"), dated as of June 15, 1995, by and
among Incomnet, Inc., a California corporation ("Buyer") and the persons
listed on Exhibit A hereto (the "Seller Stockholders") who are the founding
stockholders of Rapid Cast, Inc., a Delaware corporation ("Seller").
WHEREAS, Seller, Buyer and the Seller Stockholders are parties
to a stock purchase agreement, dated as of January 19, 1995 (the "Original
Agreement"), pursuant to which, among other things, (a) Buyer acquired from
Seller 5,300,000 shares of common stock, par value $.001 per share (the
"Common Stock"), of Seller for aggregate consideration of $15,000,000 and (b)
Buyer acquired from the Seller Stockholders 4,900,000 shares of the Common
Stock for aggregate consideration of (i) 750,000 shares of common stock, no
par value, of Buyer (the "Buyer Common Stock") and (ii) contingent rights
(the "Rights") to receive such number of additional shares of the Buyer
Common Stock as determined in accordance with Section 4.06(b) of the Original
Agreement; and
WHEREAS, Buyer and the Seller Stockholders desire to amend their
agreement, as of the date hereof, to provide for the exchange of the Rights
for 600,000 shares of the Buyer Common Stock (the "New Shares").
NOW, THEREFORE, in consideration of the foregoing premises and
the respective representations, warranties, covenants
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and agreements hereinafter set forth, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
EXCHANGE
Section 1.01 THE EXCHANGE. Effective upon the execution of
this Amendment, the Seller Stockholders will, and hereby do, exchange, sell,
assign, transfer and deliver to Buyer, and Buyer will, and hereby does,
accept and purchase from the Seller Stockholders, the Rights for aggregate
consideration of the New Shares. The foregoing transaction is referred to
herein as the "Exchange."
Section 1.02 TIME AND PLACE OF CLOSING. The closing of the
Exchange (the "Closing") shall occur by delivery of all documents and
instruments required hereby as mutually agreed upon by the parties
concurrently with the execution and delivery of this Amendment. The date on
which the Closing occurs is hereinafter referred to as the "Closing Date."
Section 1.03 DELIVERIES. At the Closing (a) the Seller
Stockholders will deliver to Buyer (i) this Amendment duly executed by each
of the Seller Stockholders and (ii) such other documents and certificates as
are required to be delivered by the Seller Stockholders pursuant to the terms
of this Agreement or reasonably requested by Buyer and (b) Buyer will deliver
(i) to each of the Seller Stockholders validly issued certificates
representing that number of New Shares as is set forth on Exhibit A hereto
and (ii) such other documents and certificates as are required to be
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delivered by Buyer pursuant to the terms of this Agreement or reasonably
requested by the Seller Stockholders.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER STOCKHOLDERS
Each of the Seller Stockholders represents and warrants to Buyer
as follows:
Section 2.01 TITLE TO THE RIGHTS. At the Closing, each of the
Seller Stockholders will have delivered to Buyer good and valid title to the
Rights, free and clear of all pledges, security interests, liens, charges,
claims and encumbrances of whatever nature.
Section 2.02 AUTHORITY RELATIVE TO THIS AMENDMENT. Each Seller
Stockholder has full power and authority to execute and deliver this
Amendment and to consummate the transactions contemplated hereby. This
Amendment has been duly and validly executed and delivered by each of the
Seller Stockholders and constitutes a valid and binding agreement of each
such Seller Stockholder, enforceable against each such Seller Stockholder in
accordance with its terms.
Section 2.03 ACCESS TO INFORMATION. The Seller Stockholders
confirm that Buyer has made available to them the opportunity to ask
questions of officers and employees of Buyer and to acquire additional
information about the business and financial condition of Buyer.
Section 2.04 NO IMPLIED REPRESENTATION. It is the explicit
intent of each party hereto that each Seller Stockholder
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is not making any representation or warranty whatsoever, express or implied,
except those representations and warranties explicitly set forth in this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Seller Stockholder as
follows:
Section 3.01 NEW SHARES. Upon delivery of the New Shares,
Buyer will have delivered to the Seller Stockholders good and valid title to
such shares, free and clear of all pledges, security interests, liens,
charges, claims and encumbrances of whatever nature.
Section 3.02 AUTHORITY RELATIVE TO THIS AGREEMENT. Buyer has
full corporate power and authority to execute and deliver this Amendment and
to consummate the transactions contemplated hereby. The execution and
delivery of this Amendment and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of Buyer and no other corporate proceedings on the part of Buyer
are necessary to authorize this Amendment or to consummate the transactions
contemplated hereby. This Amendment has been duly and validly executed and
delivered by Buyer and constitutes a valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms.
Section 3.03 CONSENTS AND APPROVALS; NO VIOLATIONS. No filing
with, and no permit, authorization, consent or approval of,
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any public body or authority, including courts of competent jurisdiction,
domestic or foreign, is necessary for the consummation by Buyer of the
transactions contemplated by this Amendment. Neither the execution and
delivery of this Amendment by Buyer nor the consummation by Buyer of the
transactions contemplated hereby nor compliance by Buyer with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the certificate of incorporation or by-laws of Buyer or any of
its subsidiaries, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to which Buyer
or any of its subsidiaries is a party or by which any of them or any of their
properties or assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, treaty, rule or regulation applicable to Buyer,
any of its subsidiaries or any of their properties or assets.
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS
Section 4.01 FURTHER ASSURANCES. The Seller Stockholders and
Buyer agree that, from time to time after the Closing, each of them will
execute and deliver such further instruments and take such other action as
may be necessary to make effective the transactions contemplated hereby.
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Section 4.02 ORIGINAL AGREEMENT. All agreements, covenants,
representations and warranties contained in the Original Agreement which
survived the closing of the Original Agreement shall remain in full force and
effect; PROVIDED, HOWEVER, each of the Seller Stockholders acknowledges and
agrees that upon receipt of the New Shares, all rights (a) to receive any
Block B Shares (as defined in the Original Agreement) shall be null and void
and Buyer shall have fully satisfied its obligation to deliver Block B Shares
and (b) to demand or piggyback registration of the Block B Shares or the New
Shares shall be terminated.
ARTICLE V
AMENDMENT
Section 5.01 AMENDMENT. This Amendment may be amended at any
time by the parties hereto, but only by an instrument in writing signed on
behalf of each of the parties hereto.
Section 5.02 FEES AND EXPENSES. Each party shall bear its own
fees and expenses incurred in connection with the transactions contemplated
hereby.
ARTICLE VI
SURVIVAL; INDEMNIFICATION
Section 6.01 SURVIVAL PERIODS. All representations and
warranties of the parties contained in this Amendment shall survive the
Closing until the fifteen month anniversary of the Closing, provided that the
representation and warranties set forth in Sections 2.01 and 3.01 shall
survive without limit. The covenants
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and agreements of the parties hereto shall survive the Closing without limit.
Section 6.02 INDEMNIFICATION. The procedure for
indemnification, and obligation to indemnify, as contained in the Original
Agreement, shall apply to each of the representations, warranties, covenants
and agreements contained in this Amendment.
ARTICLE VII
MISCELLANEOUS
Section 7.01 NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given upon receipt to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Buyer, to
Incomnet, Inc.
21031 Ventura Boulevard
Woodland Hills, California 91364
Attention: Sam Schwartz
with a copy to
Mark J. Richardson, Esq.
1299 Ocean Avenue
Suite 900
Santa Monica, California 90401
and
(b) if to the Seller Stockholders, to
The Seller Stockholders
c/o Rapid Cast, Inc.
336 Atlantic Avenue
East Rockaway, New York 07866
with a copy to
Solovay Marshall & Edlin, P.C.
7
845 Third Avenue
New York, New York 10022
Attention: Michael B. Solovay, Esq.
Section 7.02 DESCRIPTIVE HEADINGS. The descriptive headings
herein are inserted for convenience only and are not intended to be part of
or to affect the meaning or interpretation of this Amendment.
Section 7.03 COUNTERPARTS. This Amendment may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
Section 7.04 ENTIRE AGREEMENT; ASSIGNMENT. This Amendment (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof (other than, except as modified hereby, the Original
Agreement) and (b) shall not be assigned by operation of law or otherwise.
Section 7.05 GOVERNING LAW. This Amendment shall be
governed and construed in accordance with the laws of the State
of New York without regard to any applicable principles of
conflicts of law.
Section 7.06 SPECIFIC PERFORMANCE. The parties hereto agree
that if any of the provisions of this Amendment were not performed in
accordance with their specific terms or were otherwise breached, irreparable
damage would occur, no adequate remedy at law
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would exist and damages would be difficult to determine, and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
Section 7.07 PUBLICITY. Except as otherwise required by law or
the rules of any national securities exchange, for so long as this Amendment
is in effect, no party shall issue or cause the publication of any press
release or other public announcement with respect to the transactions
contemplated by this Amendment without the express prior approval of the
other party.
Section 7.08 PARTIES IN INTEREST. This Amendment shall be
binding upon and inure solely to the benefit of each party hereto, and
nothing in this Amendment, express or implied, is intended to or shall confer
upon any other person or persons any rights, benefits or remedies of any
nature whatsoever under or by reason of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be signed by their respective officers thereunto duly authorized
as of the date first written above.
INCOMNET, INC.
By /s/ Sam Schwartz
-------------------------------
Name:
Title:
/s/ Larry Joel /s/ Robert Cohen
- ------------------------------------ ---------------------------------
LARRY JOEL ROBERT S. COHEN
/s/ Jeffrey Rubin /s/ Alan Cohen
- ------------------------------------ ---------------------------------
JEFFREY RUBIN ALAN COHEN
/s/ Meryl Cohen
- ------------------------------------
MERYL COHEN as custodian for
JACLYN COHEN and GABRIELLE COHEN /s/ Laura Huberfeld
under the New York UGMA ---------------------------------
LAURA HUBERFELD
THE ALLYSON COHEN IRREVOCABLE TRUST
By: /s/ Michael Goodman, Trustee /s/ Laura Huberfeld
--------------------------------- ---------------------------------
LAURA HUBERFELD as custodian
for JESSICA HUBERFELD and
RACHEL HUBERFELD under
THE JEFFREY COHEN the New York UGMA
IRREVOCABLE TRUST
By: /s/ Michael Goodman, Trustee
---------------------------------
THE STEFANIE COHEN RUBIN IRREVOCABLE TRUST
By: /s/ Michael Goodman, Trustee
---------------------------------
/s/ Naomi Bodner
- ------------------------------------
NAOMI BODNER
/s/ Naomi Bodner
- ------------------------------------
NAIOMI BODNER as custodian for
MOSHE BODNER, AARON BODNER, ELIZAR BODNER,
TZYPPORAH BODNER, MORDECHI BODNER, YAAKOV BODNER,
RACHEL BODNER and YISSOCHAR BODNER
under the New York UGMA
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Exhibit A
NAME OF NUMBER OF
SELLER STOCKHOLDER NEW SHARES
- ------------------ ----------
- -Larry Joel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175,000
- -Jeffrey Rubin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58,334
- -Meryl Cohen as Custodian
for Jaclyn Cohen
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 23,333
- -Meryl Cohen as Custodian
for Gabrielle Cohen
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 23,333
- -Alan Cohen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,667
- -The Allyson Cohen
Irrevocable Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,555
- -The Stefanie Cohen Rubin
Irrevocable Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,555
- -The Jeffrey Cohen
Irrevocable Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,555
- -Robert Cohen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,668
- -Laura Huberfeld. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,668
- -Laura Huberfeld as Custodian
for Jessica Huberfeld
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 41,666
- -Laura Huberfeld as Custodian
for Rachel Huberfeld
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 41,666
- -Naomi Bodner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000
- -Naomi Bodner as Custodian
for Moshe Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500
- -Naomi Bodner as Custodian
for Aaron Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500
- -Naomi Bodner as Custodian
for Elizar Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500
- -Naomi Bodner as Custodian
for Tzypporah Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500
- -Naomi Bodner as Custodian
for Mordechi Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500
- -Naomi Bodner as Custodian
for Yaakov Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500
- -Naomi Bodner as Custodian
for Rachel Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500
- -Naomi Bodner as Custodian
for Yissochar Bodner
under the New York UGMA. . . . . . . . . . . . . . . . . . . . . . . . . 12,500