1
EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of the
1st day of December, 1994, by and between DCR COMMUNICATIONS, INC., a Maryland
corporation (the "Corporation" or the "Company"), and TELECONSULT, INC., a
Delaware corporation (hereinafter "Purchaser").
RECITALS:
The Corporation desires to issue and sell to the Purchaser and the
Purchaser desires to purchase Five Thousand (5,000) shares of the
Corporation's Class A Voting Common Stock, par value $.0l per share, ("Class A
Common Stock") at a purchase price of Fifty Dollars ($50.00) per share, upon
the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1
PURCHASE AND SALE OF SECURITIES
1.1. Sale and Issuance of Class A Common Stock. Subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase and the
Corporation agrees to authorize the issuance of and to sell, issue and deliver
to the Purchaser Five Thousand (5,000) shares of the Corporation's Class A
Common Stock, for a purchase price of Fifty Dollars ($50.00) per share
("Shares") which shall be paid as set forth in that certain Subscription
Agreement entered into by and between the Company and the Purchaser of even
date herewith.
1.2. Closing. The sale and purchase of the Shares issued pursuant to
Section 1.1 shall occur at a closing (the "Closing") to be held at 10:00 a.m.
E.S.T. on December 1, 1994, at the offices of Levan, Schimel, Xxxxxx &
Xxxxxxxx, P.A., 0000 Xxxxxx Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000,
or such date, time and/or location as the parties hereto shall otherwise agree
(hereinafter, the "Closing Date"). The cash portion of the payment for such
Shares shall be delivered to the Company in immediately available funds.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
As a material inducement to the Purchaser to purchase shares of Class A
Common Stock hereunder, the Corporation represents and warrants to the
Purchaser that the following statements are true and correct as of the Closing
Date.
2.1. Organization and Standing. The Corporation is a corporation duly
organized, validly existing and in good standing
2
under the laws of the State of Maryland, has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted.
2.2. Capitalization. The authorized capital stock of the Corporation
will consist of One Hundred Thousand (100,000) shares of Class A Voting Common
Stock and One Hundred Thousand (100,000) shares of Class B Non-Voting Common
Stock, of which Sixteen Thousand Six Hundred (16,600) shares of Class A Common
Stock will be duly authorized and validly issued and fully paid and
nonassessable subsequent to the Closing.
2.3. Authorization. All corporate action on the part of the Corporation
and its officers, directors and stockholders necessary for the authorization,
execution, delivery and performance of all obligations of the Corporation
under this Agreement has been or will be taken prior to or concurrently with
the Closing. This Agreement, when executed and delivered by the Corporation
(and assuming the due authorization, execution and delivery by the Purchaser
and/or any other parties thereto), shall constitute the legal, valid and
binding obligation of the Corporation, enforceable against the Corporation in
accordance with its terms, except that: (i) enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally, and (ii) the availability of certain remedies may be limited by
equitable principles of general applicability.
2.4. Business Plan. The Corporation has furnished to the Purchaser a
Business Plan of the Corporation ("Business Plan").
2.5. Title to Assets. The Corporation owns good, marketable title, free
and clear of all liens and encumbrances, to all of the property and assets as
described in the Business Plan, except to the extent that such property and
assets have been disposed of for fair value in the ordinary course of
business.
2.6. Contracts and Commitments. Except as set forth on Schedule 2.6,
the Corporation is not a party to any agreement, contract, commitment or other
obligation, including, but not limited to, any employment agreement, loan
agreement, pension or profit sharing plan, lease or other obligation.
2.7. Brokers and Finders. Except as set forth on Schedule 2.6, the
Corporation has not incurred or become liable for any commission, fee or other
similar payment to any broker, finder, agent or other similar payment to any
broker, finder, agent or other intermediary in connection with the negotiation
or execution of this Agreement or the consummation of the transactions
contemplated hereby.
2
3
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Corporation as
follows:
3.1. Organization, Standing, Etc. The Purchaser is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite power and authority to execute, deliver and
perform this Agreement. The execution, delivery and performance of this
Agreement by the Purchaser has been duly authorized by all appropriate action
and this Agreement constitutes a valid and binding obligation of the Purchaser
enforceable against it in accordance with the terms hereof.
3.2. Experience. The Purchaser is experienced in evaluating and
investing in companies such as the Corporation. The Purchaser is capable of
evaluating the merits and risks of an investment in the Corporation and has
evaluated the merits and risks associated with its investment in the
Corporation, including the current financial condition of the Corporation.
3.3. Investment. The Purchaser is acquiring the Shares for its own
account for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof. The Purchaser further represents
that it understands that (i) the Shares have not been registered under the
Securities Act of 1933 (the "Act") or the securities laws of any state, (ii)
the Shares cannot be sold unless a subsequent disposition thereof is
registered under the Act and under any applicable state securities law or is
exempt from such registration, (iii) the certificates representing the Shares
will bear a legend to such effect, and (iv) the Corporation will make a
notation on its transfer books to such effect.
3.4. Access to Information. The Purchaser has had a full opportunity to
request and receive from the Corporation and its responsible officers,
directors and employees, all information which the Purchaser deems relevant to
the purchase of shares of Class A Common Stock hereunder and to inspect the
Corporation's facilities and operations during normal business hours. The
Purchaser acknowledges that it is not relying upon any other purchasers, or
any officer, director, employee, agent, partner or affiliate of any such other
purchaser, in making its investment or decision to invest in the Corporation
or in monitoring such investment.
3
4
3.5. Ownership. As of the date first set forth above, the equity of the
Purchaser is owned as follows:
Non-Voting Voting
---------- ------
No. % No. %
-- - -- -
1. Xxxxxxx Xxx
2.
3.
TOTAL:
The Purchaser is a corporation that is entirely controlled by, and ____% of the
equity is owned by, Members of Minority Groups (as that phrase is defined in 47
CFR Section 24.720(i)) and/or women who are United States citizens.
SECTION 4
OWNERSHIP STATUS
4.1. Control Group. The Purchaser and Xxxxxxx Xxx ("Xxx") acknowledge
that upon the purchase of the Shares the Purchaser will be a qualifying member
of the "control group" of the Corporation as defined in 47 CFR Section
24.720(k) and Paz will be a "Qualifying Minority and/or Woman Investor" as
defined in 47 CFR Section 24.720(n). The Purchaser and Paz covenant and agree
that at all times during which the Purchaser owns any Common Stock, the
Purchaser and Paz will not, without the prior written consent of the
Corporation, assign or transfer control or any ownership interest of the
Purchaser to any person or entity unless, following such assignment or
transfer, the Purchaser shall continue to be a qualifying member of the
control group, and the transferee of any interest currently owned by Paz
shall continue to be owned by a Qualifying Minority and/or Woman Investor.
The Purchaser hereby grants to the Corporation a future right to inspect the
minute book, stock ledger and stock records of the Purchaser in order to
confirm the ownership status of the Purchaser.
4.2. Right to Repurchase. In the event that the Purchaser fails to
maintain its status as a qualifying member of the control group as set forth
in Section 4.1 above, Paz's interest in the Purchaser fails to be owned by a
Qualifying Minority and/or Woman Investor or it otherwise causes the
Corporation to fail to meet the definition of a Small Business owned by
Members of Minority Groups and/or Women (as defined in 47 CFR Section
24.720(d)), the Corporation may, at its option, repurchase any and all Shares
owned by the Purchaser. The right to repurchase shall be exercisable by the
Corporation immediately upon the Corporation providing written notice to the
Purchaser of its election to exercise its repurchase right. The repurchase
price shall be the net tangible book value (total assets excluding intangible
assets, less total liabilities,
4
5
excluding contingent liabilities) of the Shares based on a balance sheet
prepared by the regular accountant of the Corporation reflecting the financial
position of the Corporation as of a day that is not more than one hundred and
eighty (180) days from the date on which such notice is provided by the
Corporation. The balance sheet shall be prepared in accordance with the
accounting principles consistently applied by the Corporation in connection
with the maintenance of its books and records. The purchase price shall be
payable upon payment terms as determined by the Corporation and may be paid in
installments, with interest at the prime rate published in The Wall Street
Journal but in no event shall the installments extend beyond a five year
period.
SECTION 5
MISCELLANEOUS
5.1. Waivers by Purchaser. Any failure by a Purchaser to insist upon
strict performance by the Corporation of any of the terms and provisions of
this Agreement shall not be deemed to be a waiver of any of the terms and
conditions thereof and the Purchasers shall have the right thereafter to
insist upon strict performance thereof by the Corporation.
5.2. Relationships to Other Agreements. In the event of a conflict
between any of the provisions of this Agreement and any other agreement
relating to this transaction, the provisions of this Agreement shall control.
5.3. Titles and Captions. All section titles or captions in this
Agreement are for convenience only. They shall not be deemed part of this
Agreement and shall in no way define, limit, extend or describe the scope or
intent of provisions herein.
5.4. Applicable Law. This Agreement is to be governed by, and construed,
interpreted, and enforced in accordance with the laws of the State of
Maryland.
5.5. Binding Effect and Assignment. This Agreement shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors
and assigns of the parties. Notwithstanding the foregoing, neither the
Corporation nor any of the Purchaser shall have the right to assign any of
their respective rights or obligations under this Agreement.
5.6. Notices. All notices or other documents required hereunder shall be
deemed to have been given or made when delivered by registered mail or
certified mail, return receipt requested, postage prepaid to:
5
6
If the Corporation:
DCR Communications, Inc.
00000 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
With copies to:
Levan, Schimel, Xxxxxx & Xxxxxxxx, P.A.
0000 Xxxxxx Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esquire
If to the Purchaser, to the address of the Purchaser as provided to the
Corporation in the Subscription Agreement of the Purchaser. Any party may
from time to time give the others written notice of a change in the address to
which notices are to be sent and any successors in interest.
5.7. Severability. Inapplicability or unenforceability of any provision
of this Agreement shall not impair the operation or validity of any other
provision hereof. If any provision shall be declared inapplicable or
unenforceable, there shall be added automatically as part of this Agreement a
provision as similar in terms to such inapplicable or unenforceable provision
as may be possible and be legal, valid and enforceable.
5.8. Entire Agreement. This Agreement, including all Schedules hereto,
along with all other agreements required to be executed hereunder, constitutes
the entire agreement among the parties pertaining to the subject matter
hereof, and supersedes all prior agreements and understandings pertaining
thereto. No covenant, representation or condition not expressed in this
Agreement shall affect or be deemed to interpret, change or restrict the
express provisions hereof and no amendments hereto shall be valid unless
signed by the Corporation and the Purchaser.
5.9. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one instrument.
6
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST/WITNESS: DCR COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------- ------------------------
Xxxxxx X. Xxxxx, President
PURCHASER:
TELECONSULT, INC.
/s/ XXXXXXX X. XXXX By: /s/ XXXXXXX XXX
-------------------------- ------------------------
Xxxxxxx Xxx, President
The undersigned, Xxxxxxx Xxx, hereby joins this Agreement for the purpose
of making the representations and warranties of Section 3 and acknowledging and
consenting to the provisions of Sections 3 and 4 regarding ownership status of
Purchaser.
/s/ XXXXXXX XXX
-------------------------- ---------------------------
Xxxxxxx Xxx
7
8
SCHEDULE 2.6
1. Employment Agreement by and between the Corporation and Xxxxxx X. Xxxxx
(proposed draft, not yet executed).
2. Memorandum of Understanding by and between the Corporation and OSCI dated
October 11, 1994.
3. Agreement with a Japanese investment company to find investors for
capital necessary for auction pursuant to which the Company has agreed to
pay commissions in the form of stock and cash.
4. Consulting Agreements with Xxxxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxxx.
8
