EXHIBIT 10.01
17
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and
entered into as of the 1st day of December, 1996, by and between
Teletek, Inc., a Nevada corporation ("Seller"), and Dingaan
Holdings S.A., a Bahamas corporation ("Purchaser").
RECITALS
A. Seller is the owner of (i) 992,065 shares (the "Common
Shares") of common stock, $.001 par value (the "Common Stock"),
of United Payphone Services, Inc., a Nevada corporation (the
"Company"), evidenced by certificate no. 2821 dated May 8, 1995;
and (ii) 727 shares (the "Preferred Shares") of class A preferred
stock, $.001 par value (the "Preferred Stock"), of the Company,
evidenced by certificate no. A-1 dated December 1, 1996. The
Common Shares represent approximately 19% of the total
outstanding Common Stock of the Company, and the Preferred Shares
represent all of the outstanding Preferred Stock of the Company.
The Common Shares and the Preferred Shares are hereinafter
collectively referred to as the "Shares."
B. Purchaser previously made a loan (the "Loan") to Seller
in the principal amount of Two Million and No/100ths Dollars
($2,000,000.00), as evidenced by that certain Promissory Note
(the "Note") dated August 22, 1996, attached hereto as Exhibit A.
The Loan, which bears interest at 8.5% per annum, is due in full
on August 22, 1999. The Loan plus all accrued and unpaid
interest through the date of this Agreement, as well as all other
obligations of Seller under the Loan, are hereinafter
collectively referred to as the "Indebtedness."
C. Seller desires to sell the Shares to Purchaser upon the
terms and conditions hereinafter set forth, and Purchaser desires
to acquire the Shares upon such terms and conditions.
Now, Therefore, for and in consideration of the premises and
mutual covenants, agreements, understandings, undertakings,
representations, warranties and promises, and subject to the
conditions hereinafter set forth, and intending to be legally
bound thereby, the parties do hereby covenant and agree that the
Recitals set forth above are true and accurate, and further
covenant and agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale
Subject to the provisions hereof, on the Closing Date (as
hereinafter defined), Seller shall sell, transfer, assign and
deliver the Shares to Purchaser, and Purchaser shall buy the
Shares from Seller.
1.2 Consideration
In consideration of the sale of the Shares to Purchaser,
Purchaser hereby forgives and cancels all of the Indebtedness as
evidenced by the Note.
ARTICLE II
CLOSING
2.1 Closing Date
The closing (the "Closing") under this Agreement for the
purchase and sale of the Shares shall be at the offices of the
Company, unless otherwise agreed to in writing by each of the
parties hereto, on December 1, 1996 (the "Closing Date"). The
Closing shall take place at 10:00 a.m. on the Closing Date.
2.2 Seller's Closing Documents
At the Closing, Seller shall deliver to Purchaser
(i) certificates representing all of the Common Shares, together
with an assignment of the Common Shares executed by Seller; and
(ii) a certificate(s) representing the Preferred Shares, together
with an assignment of the Preferred Shares executed by Seller.
2.3 Purchaser's Closing Document
At the Closing, Purchaser shall deliver to Seller the Note,
marked "Paid in Full" across the face of the Note and signed by
the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and
warranties to Purchaser, and Seller warrants that the following
are true and accurate on the date hereof and will be true and
accurate on the Closing Date:
3.1 Title to Shares
Seller is the record and beneficial owner of the Shares,
free and clear of all liens, encumbrances, security agreements,
options, charges, restrictions or any other claims of any type,
kind or nature whatsoever.
3.2 Authority
Seller has the full right, power, legal capacity and
authority to enter into, and perform its obligations under this
Agreement, including the sale and delivery of the Shares to
Purchaser.
-2-
3.3 Binding Nature of Agreement
This Agreement constitutes the valid and binding obligation
of Seller, enforceable against Seller in accordance with its
terms.
3.4 No Violation
Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of the terms hereof by Seller will conflict with, or
result in a breach of or default under, any of the terms or
provisions of: (i) any agreement, note, indenture, mortgage, deed
of trust, instrument lease or franchise to which Seller is a
party or by which it or any of its assets or properties are
bound; or (ii) any law, judgment, order, arbitration award, rule,
regulation, ordinance, writ, injunction or decree of any
governmental agency or instrumentality or court applicable to or
having jurisdiction over Seller or any of its assets or
properties.
3.5 Valid Corporate Organization and Good Standing
Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada, and has
the corporate power and authority necessary and appropriate to
own its properties and to engage in the business in which it is
presently engaged.
3.6 No Commission or Finder's Fee
Seller has not dealt with any broker or finder in connection
with any of the transactions contemplated by this Agreement, and
to the best of its knowledge, no broker or other person is
entitled to any commission or finder's fee in connection with
such transactions.
3.7 No Representations Untrue
No representation made by Seller in this Agreement contains
or will contain any untrue statement of material fact or omit to
state any material fact known to Seller necessary to make any
statement, warranty or representation not misleading to
Purchaser. Seller knows of no material facts or conditions
adversely affecting the value of the Shares which have not been
disclosed to Purchaser. Except as set forth in this Agreement,
Seller does not make any representations or warranties to
Purchaser.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and
warranties to Seller, and Purchaser warrants that the following
are true and accurate on the date hereof and will be true and
accurate as the Closing Date:
-3-
4.1 Holder of Note
Purchaser is the sole holder of the Note, free and clear of
all liens, encumbrances, security agreements, assignments,
charges, restrictions or any other claims of any type, kind or
nature whatsoever.
4.2 Authority
Purchaser has the full right, power, legal capacity and
authority to enter into, and perform its obligations under this
Agreement, including the forgiveness and cancellation of the
Indebtedness.
4.3 Binding Nature of Agreement
This Agreement constitutes the valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with
its terms.
4.4 No Violation
Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of the terms hereof by Purchaser will conflict with,
or result in a breach of or default under, any of the terms or
provisions of: (i) any agreement, note, indenture, mortgage,
deed of trust, instrument, lease or franchise to which Purchaser
is a party or by which it or any of its assets or properties are
bound; or (ii) any law, judgment, order, arbitration award, rule,
regulation, ordinance, writ, injunction or decree of any
governmental agency or instrumentality or court applicable to or
having jurisdiction over Purchaser or any of its assets or
properties.
4.5 Valid Corporate Organization and Good Standing
Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the Bahamas, and has the
corporate power and authority necessary and appropriate to own
its properties and to engage in the business in which it is
presently engaged.
4.6 No Reliance
PURCHASER ACKNOWLEDGES THAT SELLER HAS NOT MADE AND DOES NOT
MAKE ANY REPRESENTATIONS OR WARRANTIES CONCERNING THE PAST OR
FUTURE PERFORMANCE OF THE COMPANY. IN MAKING ITS INVESTMENT
DECISION, PURCHASER HAS RELIED UPON ITS OWN EXAMINATION OF THE
COMPANY, INCLUDING THE MERITS AND RISKS INVOLVED. PURCHASER HAS
CONSULTED ITS OWN ATTORNEY, BUSINESS ADVISOR OR TAX ADVISOR AS TO
LEGAL, BUSINESS OR TAX ADVICE. PURCHASER POSSESSES SUFFICIENT
BUSINESS PROBITY AND SOPHISTICATION TO ASSESS THE RISKS OF
PURCHASING THE SHARES OR HAS CONSULTED WITH PERSONS OF ITS OWN
CHOOSING WHO POSSESS SUCH PROBITY AND SOPHISTICATION TO ADVISE
PURCHASER OF THE RISKS ATTENDANT TO THE INVESTMENT CALLED FOR
UNDER THIS AGREEMENT.
-4-
4.7 Investment Intent
Purchaser is acquiring the Shares for its own account for
investment and not with a view to the resale or distribution
thereof, and Purchaser understands the nature and effect of this
representation. [Purchaser has been informed by Seller that the
Shares have not been registered under the Securities Act of 1933
or the securities laws of any state, and may not be offered, sold
or transferred in the absence of such registration or an
exemption from such registration.]
4.8 No Commission or Finder's Fee
Purchaser has not dealt with any broker or finder in
connection with any of the transactions contemplated by this
Agreement, and to the best of its knowledge, no broker or other
person is entitled to any commission or finder's fee in
connection with such transactions.
4.9 No Representations Untrue
No representation made by Purchaser in this Agreement
contains or will contain any untrue statement of material fact or
omit to state any material fact known to Purchaser necessary to
make any statement, warranty or representation not misleading to
Seller. Purchaser knows of no material facts or conditions
adversely affecting the Note which have not been disclosed to
Seller. Except as set forth in this Agreement, Purchaser does
not make any representations or warranties to Seller.
ARTICLE V
COSTS
Purchaser and Seller shall each pay all costs and expenses
incurred or to be incurred by each of them respectively in
negotiating and preparing this Agreement and in taking whatever
actions may be necessary or appropriate to consummate the
transactions contemplated by this Agreement, including the costs
of obtaining any consents or approvals.
ARTICLE VI
MISCELLANEOUS
6.1 Captions
The subject headings or captions of the sections and
subsections of this Agreement are included only for purposes of
convenience and shall not affect the construction or
interpretation of any provisions contained herein.
6.2 Entire Agreement
This Agreement (together with all exhibits, documents,
agreements and instruments executed or furnished in connection
herewith) constitutes the entire agreement between the
-5-
parties pertaining to the subject matter hereof, and supersedes
any and all prior or contemporaneous written or oral
negotiations, agreements, representations, and understandings of
the parties with respect to such subject matter.
6.3 Expenses
If any legal action or any arbitration or other proceeding
is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to
which it may be entitled.
6.4 Notice
Any and all notices required under this Agreement shall be
in writing and shall be either (i) hand-delivered; (ii) mailed,
first-class postage prepaid, certified mail, return receipt
requested; or (iii) delivered via a nationally recognized
overnight courier service, addressed to:
SELLER: Teletek, Inc.
0000 X. Xxxxxxxx Xxxx
Xxxxx 000X
Xxx Xxxxx, Xxxxxx 00000
Attention: President
PURCHASER: Dingaan Holdings S.A.
Enro Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxxx Xxxxxx
P.O. Box N3802
Nassau, Bahamas
All notices hand-delivered or delivered via overnight
courier shall be deemed delivered as of the date actually
delivered. All notices mailed shall be deemed delivered as of
three (3) business days after the date postmarked. Any changes
in any of the addresses listed herein shall be made by notice as
provided in this Section 6.4.
6.5 Modification, Amendment or Waiver
This Agreement may not be amended, supplemented or otherwise
modified, and none of its terms may be waived, unless such
amendment, supplement, modification or waiver is in writing and
executed by the party or parties to be bound thereby. The
failure of any party at any time or times to require performance
of any provision hereof shall not affect the right of such party
at a later time to enforce the same, and no waiver of any term or
provision hereof on any one occasion shall be deemed to be a
waiver of the same or any other provision hereof at any
subsequent time or times.
-6-
6.6 Binding Effect; Assignment
This Agreement shall be binding upon, and shall enure to the
benefit of and be enforceable by, the parties hereto, and their
respective heirs, successors, assigns and legal representatives;
provided, however, that no assignment of any rights or delegation
of any obligations provided for herein may be made by either
party to this Agreement without the prior written consent of the
other party.
6.7 Construction
This Agreement shall be construed in accordance with its
intent and without regard to any presumption or any other rule
requiring construction against the party causing the same to be
drafted.
6.8 Governing Law
The laws of the State of Nevada shall govern the validity,
performance and enforcement of this Agreement and the courts of
Nevada shall have the sole and exclusive jurisdiction over any
matter brought under or by reason of this Agreement.
6.9 Counterparts
This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which taken together
shall constitute the same instrument.
6.10 No Third Parties Benefited
This Agreement is made and entered into for the sole
protection and benefit of Purchaser and Seller, their successors
and assigns, and no other person or persons shall have any right
of action hereon.
6.11 Severability
If any provision of this Agreement, or any portion of any
provision, shall be deemed invalid or unenforceable for any
reason whatsoever, such invalidity or unenforceability shall not
affect the enforceability and validity of the remaining
provisions hereof.
6.12 Time of the Essence
At all times stated herein, time shall be of the essence.
-7-
In Witness Whereof, the parties hereto have duly executed
this Agreement on the date first set forth above.
"Seller" "Purchaser"
Teletek, Inc., a Nevada Dingaan Holdings S.A., a
corporation Bahamas corporation
By: /s/ Xxxx X. Xxxxxxxx By: /s/
XXXX X. XXXXXXXX, Its: Director
PRESIDENT
-8-
AMENDMENT TO STOCK PURCHASE AGREEMENT
In order to correct a drafting exclusion, the Stock Purchase
Agreement (the "Agreement") entered into as of the 1st day of
December, 1996, by and between Teletek, Inc., a Nevada
corporation, and Dingaan Holdings S.A., a Bahamas corporation, is
hereby amended as follows:
Paragraph A of Recital identifying the securities purchased
should and does include two promissory notes, one in the amount
of $61,519 and one in the amount of $125,683. Said notes, for the
purposes of simplicity, shall be included in the definition of
"Shares" as used in the Agreement.
TELETEK, INC.
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
