Exhibit 10.2
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into
this 5th day of April, 2000, by and between ADVANCED COMMUNICATIONS
TECHNOLOGIES, INC., a Florida corporation ("ACT-US") and ADVANCED COMMUNICATIONS
TECHNOLOGIES PTY LTD, an Australian corporation ("ACT-Australia").
RECITALS
WHEREAS, ACT-US is a Florida Corporation that is publicly traded on the
OTC Bulletin Board, administered by NASDAQ, under the ticker symbol "ADVC"; and
WHEREAS, ACT-Australia is an Australian corporation that owns certain
rights to a new wireless communications network technology, to be marketed under
the name Universe Wide Spectrum Cellular-"Spectrucell" (the "SpectruCell
Technology"); and
WHEREAS, the Parties have entered into a Memorandum of Understanding dated
February 15, 2000, whereby ACT-US will acquire 20% of the common stock of
ACT-Australia; and
WHEREAS, the parties desire to enter into this Agreement to formalize the
purchase contemplated by the Memorandum of Understanding upon the terms and
conditions contained herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties and their successors
agree as follows:
1. Recitals. The foregoing recitals are true and correct in every respect
and are hereby incorporated herein by reference,
2. Definitions. In addition to the terms defined elsewhere herein, the
terms defined in the introductory paragraph and the Recitals to this Agreement
shall have the respective meanings specified therein or below, and the following
terms shall have the meanings specified below when used herein with initial
capital letters:
"Adverse Consequences" means all actions, suits, proceedings,
claims, damages, penalties, fines, costs, reasonable amounts paid in settlement,
liabilities, losses, expenses, and fees, including court costs and reasonable
attorney's fees and expenses.
"Affiliate" means any person who, with respect to a certain other
person, controls that other person, or is controlled by that other person, or is
controlled by that same
third person who controls the other person, in each case whether or not such
control is direct or indirect through one or more intermediaries.
"Closing Date" means the later to occur of both the execution of
this Agreement and the performance of any conditions precedent to either party's
performance hereunder.
"Governmental Entity" means any court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency.
"Purchase Price" means 5,000,000 restricted shares of ACT-US common
stock and $7,500,000 US as further described in Section 3 herein.
"Transferred Shares: means 20% of the issued and outstanding shares
of stock of ACT-Australia existing at the Closing Date.
3. Purchase of Transferred Shares.
(a) ACT-US hereby agrees to acquire the Transferred Shares for the
Purchase Price. The Purchase Price shall be paid as follows:
(i) Certificates for 5,000,000 shares of restricted common stock of
ACT US shall be delivered to ACT-Australia as set forth in Section 3(e)
herein; and
(ii) $7,500,000 US to be paid in three equal monthly installments,
without interest, commencing on May 31, 2000 (the "Cash Portion of the
Purchase Price"). ACT-US shall be entitled to offset any amounts owed to
it by ACT-Australia against the Cash Portion of the Purchase Price.
(b) ACT-Australia hereby agrees to sell and deliver the Transferred
Shares to ACT-US for the Purchase Price as set forth in Section 3(e) herein.
(c) ACT-Australia merges or consolidates with any entity that
survives the merger or consolidation, ACT-Australia and its shareholders shall
cause the surviving entity to issue and deliver the Transferred Shares to ACT-US
pursuant to the terms herein.
(d) The parties acknowledge and agree that ACT-US shall use its best
efforts to raise the Cash Portion of the Purchase Price through a public or
private offering of securities. ACT Australia hereby agrees to extend the
monthly installment payment deadlines, without interest, to allow ACT-US to
raise the Cash Portion of the Purchase Price. The parties acknowledge and agree
that upon raising funds pursuant to a public or private offering of securities
ACT-US shall only be obligated to transfer to ACT-Australia as part of the Cash
Portion of the Purchase Price those funds remaining after deduction of reserves
needed for current operations, working capital and the development and expansion
of its operations and the
operations of its subsidiaries, as determined by its Board of Directors.
(e) Within 15 days after the Closing Date, ACT-US shall issue
certificates for 5,000,000 shares of restricted common stock to ACT-Australia in
denominations requested by ACT-Australia, which certificates shall be delivered
to and held in escrow by Xxxx Xxxxxxxx, Esq., counsel for ACT-US. Upon receipt
by him of the Transferred Shares, he will transfer the certificates for
5,000,000 shares of ACT-US common stock to ACT-Australia and the Transferred
Shares to ACT-US.
4. Representations and Warranties of ACT-Australia. ACT-Australia
represents and warrants to ACT-US as follows:
(a) Organization. ACT-Australia is a corporation duly organized,
validly existing, and in good standing under the laws of Australia, is duly
authorized under Australia law to carry on its business(7) has all requisite
corporate power and authority to own, lease, and operate its properties and to
carry on its business as now being conducted. ACT-Australia is duly qualified or
licensed to do business and is in good standing in each jurisdiction in which
the property owned, leased, or operated by it or the nature of the business
conducted by it makes such qualification or licensing unnecessary.
(b) Transferred Shares. ACT-Australia shall deliver to ACT-US good
and marketable title to the Transferred Shares free and clear of all liens,
trusts, claims, charges, security agreements and other encumbrances of any kind
or nature whatsoever.
(c) No Consents. Neither the execution, delivery or performance of
this Agreement nor the consummation by ACT-Australia of the transactions
contemplated hereby require any filing with, or authorization, consent or
approval of any Governmental Entity, notices, filings, authorizations, consents
and approvals which if not obtained or made would have a material adverse effect
to ACT-Australia or materially impair the ability of ACT-Australia to consummate
the transactions contemplated by this Agreement.
(d) Authority. ACT-Australia has all requisite corporate power and
authority to execute and deliver this Agreement and to carry out its obligation
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by alt necessary
corporate action on the part of ACT-Australia, including authorization by its
Board of Directors, and this Agreement has been duly executed and delivered by
ACT-Australia and constitutes the valid and legally binding obligation of
ACT-Australia, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, rehabilitation(7) or similar laws affecting the
enforcement of creditors' rights generally.
(e) No Violations. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (i)
violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling(1) charge or other restriction of any Governmental Entity to which
ACT-Australia is subject; (ii) conflict with or result in the breach
of any provision of ACT-Australia's charter or bylaws or (iii) conflict with,
result in a breach of, or constitute a default under any of the terms,
conditions or provisions of any material agreement or obligation to which
ACT-Australia may be bound or to which any of the assets of ACT-Australia may be
subject.
(f) Ownership of SpectruCell. ACT-Australia has all right, title and
interest in and to the Spectrucell Technology, and its development of the
Spectrucell Technology does not infringe any third party's patent or other
rights. Further, ACT-Australia owns 70% of the outstanding common stock of
Australian Enterprises Pty Ltd
(g) Financial Statements. To the extent available, ACT-Australia has
made available to ACT-US for inspection complete copies of the unaudited balance
sheets and operating (profit and loss) statements of ACT-Australia as at and for
December 31, 1999 (collectively, the "Statements"), including the Balance Sheet
of the Company as at December 31, 1999 (the "Effective Date Balance Sheet"). The
Statements, including the Effective Date Balance Sheet correctly and accurately
present the financial position and results of operations of ACT-Australia as of
the dates and for the periods covered by such Statements.
(h) The Recitals to this Agreement are true and correct in all
material respects.
5. Representations and Warranties of ACT-US. ACT-US hereby represents and
warrants to ACT-Australia as follows:
(a) Organization. ACT-US is a corporation duly organized, validly
existing, and in good standing under the laws of Florida, is duly authorized
under Florida law to carry on its business as presently being conducted, has all
requisite corporate power and authority to own, lease, and operate its
properties and to carry on its business as now being conducted and as proposed
to be conducted and consummate this Agreement.
(b) ACT-US Shares. ACT-US shall deliver to ACT-Australia good and
marketable title to its shares to be transferred pursuant to this Agreement,
free and clear of all liens, trusts, claims, charges, security agreements and
other encumbrances of any kind or nature whatsoever, provided that such shares
shall bear a restricted legend.
(c) No Consents. Neither the execution, delivery or performance of
this Agreement of ACT-US nor the consummation by ACT-US of the transactions
contemplated hereby require any filing with, or authorization, consent or
approval of any Governmental Entity except for notices, filings, authorizations
consents and approvals which if not obtained or made would not materially impair
the ability of ACT-US to consummate the transactions contemplated by this
Agreement.
(d) Authority. ACT-US has all requisite corporate power and
authority to execute and deliver this Agreement and to carry out its obligation
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of ACT-US,
including authorization by its Board of Directors, and this Agreement has been
duly executed and delivered by ACT-US and constitutes the valid and legally
binding obligation of ACT-US, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, rehabilitation, or similar laws
affecting the enforcement of creditors' rights generally.
(e) No Violations. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby, will (a)
violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge or other restriction of any Governmental Entity to which ACT-US
is subject; (b) conflict with or result in the breach of any provision of either
ACT-US's charter or bylaws or (c) conflict with, result in a breach of, or
obligation to which either ACT-US may be bound, except where the violation,
conflict(1) breach or default would not materially impair such ACT-US's ability
to consummate the transactions contemplated by this Agreement.
(f) Business of ACT-US. The business of ACT-US is accurately
described in the Current Report on Form 8-K of ACT-US filed with the United
States Securities and Exchange Commission on February 4, 2000, as amended and/or
supplemented by subsequent filings.
6. Board of Directors of ACT-Australia. ACT-US shall be entitled, on an
ongoing basis, to appoint one person (other than Xxxxx Xxx) to ACT-Australia's
Board of Directors, which person shall be elected as a Director of ACT-Australia
at its annual meetings.
7 Certain Covenants of the Parties.
(a) Reasonable Efforts. Each of the Parties shall use all reasonable
efforts to take all actions and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement. Each of the Parties shall execute such other agreements and documents
as may be necessary or desirable to effectuate the intent of this Agreement.
(b) Expenses. Each of the Parties shall pay its own costs and
expenses incurred in connection with the preparation of and consummation of this
Agreement and the transactions contemplated hereby. The Parties acknowledge that
no tiling under the H-S-R Act is required in connection with this transaction.
8. Survival: Indemnification.
(a) Survival of Representations and Warranties. All of the
representation and warranties of ACT Australia and of ACT-US contained herein
shall continue in full force and effect for 3 years after the Closing Date.
(b) Indemnification Provisions for Benefit of ACT-US. In the event
ACT-Australia breaches (i) any of its representations and warranties contained
in Section 4 of this
Agreement or (ii) any of their covenants contained in this Agreement, and ACT-US
shall have delivered a written notice setting forth with reasonable detail the
amount and basis for any claim (a "Claim Notice") to ACT-Australia before the
3rd anniversary date of the Closing Date, then, if ACT-Australia fail to cure
such breach within 30 days following the aforementioned written notice,
ACT-Australia agrees to indemnify ACT-US from and against any Adverse
Consequences ACT-US may suffer which are caused proximately by the breach.
(c) Indemnification Provisions for Benefit of ACT -Australia. In the
event ACT-US breaches (i) any of its representations and warranties contained in
Section 5 of this Agreement or (ii) any of its covenants contained in this
Agreement, and ACT-Australia shall have delivered a Claim Notice to ACT-US
before the 3rd anniversary date of the Closing Date, then ACT-US agrees to
indemnify ACT-Australia from and against any Adverse Consequences ACT-Australia
may suffer which are caused proximately by the breach.
9. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly delivered
and received when hand delivered, telecopied, faxed, delivered by courier or
five days after such notice is mailed by certified or registered mail, postage
prepaid and return receipt requested, to the address set forth below or to such
other address of which any party may have given notice in accordance with the
terms hereof:
If to the Corporation:
Advanced Communications Technologies, Inc.
Attn: Xxxxx Xxx
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 000, Xxxxxx #00
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx, LLP
Attn: Xxxxxxxx X. Xxxxxxxx, Esq.
Sanctuary Centre Suite D-l00
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
If to ACT-Australia:
Advanced Communications Technologies, Inc.
Attn: Xxxxxx Xxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XXX 0000
Xxxxxxxxx
Facsimile: (000) 000 0000 0000 or 8800
With a copy to.
Mr. Xxxxx Xxx
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 000, Xxxxxx #00
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
10. Review with Counsel. Each of the parties signing this Agreement
acknowledges that each of them have had an opportunity to review this Agreement
with its attorney and to consult with its attorney concerning the terms of this
Agreement.
11. Miscellaneous Provisions.
(a) This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Victoria, Australia. Venue for any
action brought hereunder shall be in Melbourne, Victoria.
(b) The Section headings contained herein are for reference purposes
only and will not in any way affect the meaning and interpretation of this
Agreement.
(c) This Agreement will be binding upon and will operate for the
benefit of the parties to this Agreement and their respective heirs, legal
representatives and successors.
(d) This Agreement contains the entire agreement of the parties and
all prior understandings and agreements, whether written or oral, between the
parties are merged into this Agreement. This Agreement cannot be altered,
amended, supplemented, modified, assigned or terminated except by an instrument
in writing signed by all of the parties to this Agreement.
(e) Should it become necessary for any party to institute legal
action to enforce the terms and conditions of this Agreement, the successful
party will be awarded reasonable attorneys' fees, which will include reasonable
attorneys' fees for any appellate proceedings, expenses, including any
accounting expenses, and costs.
(f) the invalidity or unenforceability of any particular provision
of
this Agreement will not affect the other provisions of this Agreement, and the
Agreement will be construed in all respects as if such invalid or unenforceable
provisions were omitted.
(g) This Agreement will be signed and executed in one or more
counterparts, each of which will be deemed an original and all of which together
shall constitute one agreement. Faxed signatures shall be deemed original
Signatures for purposes of execution of this Agreement.
(h) The parties expressly represent, acknowledge and agree that this
Agreement was negotiated and entered into on an arms-length, equal bargaining
power basis and not under duress of any kind whatsoever. The preparation of this
Agreement has been a joint effort of the parties hereto and the resulting
document shall not, solely as a matter of judicial Construction, be construed
more severely against one of the parties than the other.
(i) The parties will execute and deliver such further documents and
take such further actions as may reasonably be requested by counsel for any
party in order to more fully carry out the intentions of this Agreement.
(j) All references to sums of money contained in this Agreement
shall be in United States dollars.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
WITNESSES:
ADVANCED COMMUNICATIONS
------------------------------ TECHNOLOGIES, INC.
------------------------------ By: /s/ Xxxxx Xxx
----------------------------------
Xxxxx Xxx, Chief Executive Officer
ADVANCED COMMUNICATIONS
------------------------------ TECHNOLOGIES, INC.
------------------------------ By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx, Chief Financial Officer
