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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of March 28, 2001 by and between GOLD & XXXXX
TRANSFER, S.A., a British Virgin Islands corporation (the
"Seller"), and XXXXX X. XXXXX III, an individual (the
"Purchaser").
RECITALS
WHEREAS, the Seller desires to sell and transfer to the
Purchaser, and the Purchaser desires to purchase, 15,471,301
shares (the "Shares") of common stock, par value $.001 per share,
of Capsule Communications, Inc., a Delaware corporation (the
"Company"), for an aggregate purchase price of $3,094,260.20
(the "Purchase Price") on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises and obligations hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged,the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SECURITIES; CLOSING
Section 1.01 Purchase and Sale of the Shares. Subject to the
terms and conditions set forth in this Agreement, the Seller
agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from the Seller, the Shares.
Section 1.02 Closing. The closing of the sale of the Shares
by the Seller and the purchase of the Shares by the Purchaser
shall take place at 10:00 a.m. local time on March 29,2001 (the
"Closing Date") at the offices of Xxxxxxx Berlin Shereff
Xxxxxxxx, LLP, 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx D.C.,
or at such other time and place as may be agreed upon by the
Seller and the Purchaser (the "Closing").
Section 1.03 Purchaser's Closing Deliveries. On the Closing
Date, the Purchaser shall deliver (i) the Purchase Price to the
Seller by wire transfer of immediately available funds pursuant
to written instructions provided by the Seller to an account
identified to the Purchaser in writing by the Seller on or before
the Closing Date (the "Account") and (ii) a certificate executed
by the Purchaser certifying as to the accuracy of the
representations and warranties made in this Agreement as of the
Closing Date.
Section 1.04 Seller's Closing Deliveries. On the Closing
Date, the Seller shall deliver to the Purchaser a certificate
dated as of the Closing Date executed by an authorized officer of
the Seller certifying as to the accuracy of the representations
and warranties made in this Agreement as of the Closing Date.
Section 1.05 Seller's Post-Closing Deliveries. Not later
than 14 days after the Closing Date, Seller shall deliver to the
Purchaser a certificate or certificates representing the Shares,
duly endorsed for transfer or accompanied by duly executed blank
stock powers; provided, however, that if the Seller is unable to
obtain all necessary and appropriate releases under the Amended
and Restated Pledge Agreement described in Schedule I attached
hereto, by such date, Seller shall promptly deliver that portion
of the Purchase Price relating to such encumbered Shares to
Purchaser by wire transfer of immediately available funds
pursuant to written instructions provided by the Purchaser to an
account identified to Seller in writing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as
of the date hereof and as of the Closing, except as set forth on
Schedule I attached hereto, as follows:
Section 2.01 Authorization; Enforceability. The Seller has
full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Seller
and constitutes a legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its
terms and conditions except as such enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws relating
to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general
application.
Section 2.02 No Violation. The execution, delivery, and
performance by the Seller of this Agreement will not (1) conflict
with or result in any breach of any provision of the certificate
of incorporation or bylaws of the Seller; (ii) result in a
violation or breach of, or constitute a default (or give rise to
any right of termination, amendment, cancellation, or
acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which the Seller
is a party or by with any of its assets or properties may be
bound; or (iii) violate any order, writ, injunction, decree,
statute, rule (excluding any rules of state regulatory
commissions), or regulation (excluding any regulations of state
regulatory commissions) applicable to it or the transfer of the
Shares.
Section 2.03 Sole Owner. The Seller is the sole beneficial
and legal owner of all right, title, and interest in and to the
Shares.
Section 2.04 Transfer of Title. Upon the delivery of the
Shares as specified in Section 1.05, the Seller will transfer
good, valid, and marketable title to the Shares to the Purchaser,
free and clear of any security interests, claims, liens, pledges,
options, encumbrances, charges, agreements, voting trusts,
proxies, preemptive rights or rights of first refusal, or other
arrangement, restrictions, or legal or equitable limitations of
any kind.
Section 2.05 No Other Representations or Warranties. The
Seller is not making any other representations, express or
implied, with respect to any other matter, except as otherwise
set forth in this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as
of the date hereof and as of the Closing, as follows:
Section 3.01 Authorization; Enforceability. The Purchaser
has full power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the
Purchaser and constitutes a legal, valid and binding
obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms and conditions except as such
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws relating to, or affecting generally
the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
Section 3.02 No Violation. The execution, delivery, and
performance by the Purchaser of this Agreement will not (i)
result in a violation or breach of, or constitute a default (or
give rise to any right of termination, amendment, cancellation,
or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to
which the Purchaser is a party or by with any of its assets or
properties may be bound; or (ii) violate any order, writ,
injunction, decree, statute, title (excluding any rules of state
regulatory commissions), or regulation (excluding any regulations
of state regulatory commissions) applicable to the Purchaser.
Section 3.03 Investment Purpose; Accredited Investor.
(a) The Purchaser is acquiring the Shares solely for his
own account for investment and not with a view to, or for sale in
connection with, any public distribution thereof in violation of
the Securities Act.
(b) The Purchaser is an Accredited Investor within the
meaning ascribed to such term under Regulation D of the rules and
regulations promulgated under the Securities Act.
Section 3.04 No Other Representations or Warranties. The
Purchaser is not making any other representations, express or
implied, with respect to any other matter, except as otherwise
set forth in this Agreement.
ARTICLE IV
ADDITIONAL AGREEMENTS OF THE PARTIES.
Section 4.01 Confidentiality. The Seller and the Purchaser
acknowledge and agree that this Agreement and the matters
addressed therein are confidential until the Closing shall have
occurred and that all information provided to the Seller or the
Purchaser or their respective representatives or other recipients
in accordance with this Agreement shall be considered
confidential information until such Closing.
Section 4.02 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, received by facsimile
transmission, or delivered by overnight courier to the parties at
the following addresses or facsimile numbers:
If to the Seller, addressed to it at:
Gold & Xxxxx Transfer, S.A.
c/o Entree International Limited
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
If to the Purchaser, addressed to him at:
Xxxxx X. Xxxxx III
000 Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Either party from time to time may change its address or
facsimile number for the purpose of receipt of notices to that
party by giving a similar notice specifying a new address or
facsimile number to the other notice parties listed above in
accordance with the provisions of this Section 4.0.
Section 4.03 Further Assurances. On and after the Closing,
the Seller and the Purchaser will take all appropriate action and
execute all documents, instruments or conveyances of any kind
which may be reasonably necessary or advisable to carry out any
of the provisions hereof.
ARTICLE V
MISCELLANEOUS
Section 5.01 Expenses. The Purchaser hereby agrees that all
fees and expenses incurred by the Purchaser in connection with
this Agreement shall be borne by the Purchaser, and the Seller
hereby Agrees that all fees and expenses incurred by the Seller
in connection with this Agreement shall be borne by the Seller
(including any and all amounts payable in respect of the
Account.
Section 5.02 Entire Agreement. This Agreement constitutes
the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes any and all prior or
contemporaneous agreements (oral or written) among the parties.
Section 5.03 No Third-Party Beneficiaries; Assignment. This
Agreement is for the sole benefit of and binding upon the parties
hereto and their permitted successors and assigns, and nothing
herein, express or implied, is intended to or shall confer upon
any other person or entity any legal or equitable right, benefit
or remedy of any nature whatsoever under or by reason of this
Agreement. This Agreement shall be binding upon the parties
hereto and their respective successors and permitted assigns and
shall inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns.
Neither party may assign either this Agreement or any of his or
its rights, interests or obligations hereunder without the prior
written consent of the other party hereto.
Section 5.04 Amendments. This Agreement may be amended or
modified only by an instrument in writing signed by both parties
hereto.
Section 5.05 Counterparts. This Agreement may be executed in
one or more counterpart, each of which when executed shall be
deemed to be an original,but all of which taken together shall
constitute one and the same agreement.
Section 5.06 Gender and Number, Headings. Whenever used in
this Agreement, the singular number shall include the plural, the
plural the singular, and the use of any gender shall be
applicable to all genders. The headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 5.07 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Delaware without giving effect to the principles of conflicts of
laws thereof.
Section 5.08 Severability. In case any provision of this
Agreement shall be invalid, illegal, or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
SELLER
GOLD & XXXXX TRANSFER, S.A.,
a British Virgin Islands corporation
By:________________________________
Name: Xxxxxx Xxxxxxxx
Its: Attorney in Fact
PURCHASER
___________________________________
XXXXX X. XXXXX, III
Schedule I
5,671,300 shares of common stock, par value $.001 per share, of
the Company which constitute Shares are pledged pursuant to that
certain Amended and Restated Pledge Agreement between the Seller,
Revision LLC, Foundation for the International Non-governmental
Development of Space, Entree International Limited, Xxxxxx X.
Xxxxxxxx (the "Pledgors") and Xxxxxx X. Xxxxx (the "Pledgee"),
dated as of March 1, 2001 (the "Amended and Restated Pledge
Agreement"), a copy of which has been made available to the
Purchaser. The Seller intends to seek the release of such
encumbrance after the Closing Date.
