1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of
January 28, 1999, by and between Shared Technologies Cellular, Inc., a Delaware
corporation (the "Company"), and each of the entities whose names appear on the
signature pages hereof. Such entities are each referred to herein as a
"Purchaser" and, collectively, as the "Purchasers".
The Company wishes to sell to each Purchaser, and each Purchaser
wishes to buy, on the terms and subject to the conditions set forth in this
Agreement, shares (the "Preferred Shares") of the Company's Series C Convertible
Preferred Stock, par value $.01 per share (the "Preferred Stock"), and related
Warrants in the form attached hereto as Exhibit A (the "Warrants"). The
Preferred Shares are convertible pursuant to the terms of the Certificate of
Designation relating to the Preferred Stock, the form of which is attached
hereto as Exhibit B (the "Certificate of Designation") into shares (the
"Conversion Shares") of the Company's common stock, par value .01 per share (the
"Common Stock"). The Warrants are exercisable into shares of Common Stock (the
"Warrant Shares") in accordance with their terms. The Preferred Shares, the
Conversion Shares, the Warrants and the Warrant Shares are collectively referred
to herein as the "Securities". Any capitalized term used herein that is not
otherwise defined shall have the meaning specified therefor in the Certificate
of Designation.
The sale of the Preferred Shares and the Warrants by the Company to
the Purchasers will be effected in reliance upon the exemption from securities
registration afforded by the provisions of Regulation D ("Regulation D"), as
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act. The Company has agreed to effect the registration of the
Conversion Shares and the Warrant Shares under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a Registration Rights Agreement of
even date herewith by and between the Company and each of the Purchasers (the
"Registration Rights Agreement").
The Company and each Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED SHARES.
1.1 Agreement to Purchase and Sell. Upon the terms and subject to the
satisfaction or waiver of the conditions set forth herein, the Company agrees to
sell and each Purchaser agrees to purchase the number of Preferred Shares and
Warrants set forth below such Purchaser's name on the signature pages hereof at
a purchase price for such Preferred Shares and Warrants equal to one thousand
dollars ($1,000) times the number of Preferred Shares purchased by such
Purchaser (the "Purchase Price").
1.2 Closing. The closing of the purchase and sale of the Preferred Shares
and Warrants hereunder (the "Closing") will occur upon the satisfaction (or
waiver) of the conditions set forth herein, the execution and delivery of this
Agreement and the other Transaction Documents (as defined below)
2
by the Company and each Purchaser (which delivery may be effected by facsimile
transmission), and full payment of the Purchase Price by each Purchaser by wire
transfer of immediately available funds against physical delivery by the Company
of duly executed certificates representing the Preferred Shares and the Warrants
purchased by such Purchaser at the Closing. The date on which the Closing occurs
is hereinafter referred to as the "Closing Date".
1.3 Certain Definitions. When used herein, (A) "Business Day" shall mean
any day on which the New York Stock Exchange (the "NYSE") and commercial banks
in the city of New York are open for business, (B) an "affiliate" of a party
shall mean any person or entity controlling, controlled by or under common
control with that party and (C) "control" shall mean, with respect to an entity,
the ability to direct the business, operations or management of such entity,
whether through an equity interest therein or otherwise.
2. REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER.
Each Purchaser hereby represents and warrants to the Company and agrees
with the Company that, as of the date of this Agreement and as of the Closing
Date:
2.1 Authorization; Enforceability. Such Purchaser is duly and validly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization with full power and authority
to purchase the Preferred Shares and Warrants and to execute and deliver this
Agreement. This Agreement and the Registration Rights Agreement each constitutes
such Purchaser's valid and legally binding obligation, enforceable in accordance
with its terms.
2.2 Accredited Investor; Purchase as Principal. Such Purchaser is an
accredited investor as that term is defined in Rule 501 of Regulation D, and is
acquiring the Preferred Shares and Warrants solely for its own account as a
principal and not with a present view to the public resale or distribution of
all or any part thereof, except pursuant to sales that are exempt from the
registration requirements of the Securities Act and/or sales registered under
the Securities Act; provided, however that in making such representation, such
Purchaser does not agree to hold the Securities for any minimum or specific term
and reserves the right to sell, transfer or otherwise dispose of the Securities
at any time in accordance with the provisions of this Agreement and with Federal
and state securities laws applicable to such sale, transfer or disposition.
2.3 Information. The Company has provided such Purchaser with information
regarding the business, operations and financial condition of the Company, and
has granted to such Purchaser the opportunity to ask questions of and receive
answers from representatives of the Company, its officers, directors, employees
and agents concerning the Company and materials relating to the terms and
conditions of the purchase and sale of the Preferred Shares and Warrants
hereunder. Neither such information nor any other investigation conducted by
such Purchaser or any of its representatives shall modify, amend or otherwise
affect such Purchaser's right to rely on the Company's representations and
warranties contained in this Agreement.
2
3
2.4 Limitations on Disposition. Such Purchaser acknowledges that, except
as provided in the Registration Rights Agreement, the Securities have not been
and are not being registered under the Securities Act and may not be transferred
or resold without registration under the Securities Act or unless pursuant to an
exemption therefrom.
2.5 Legend. Such Purchaser understands that the certificates representing
the Securities may bear at issuance a restrictive legend in substantially the
following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, and may not
be offered or sold unless a registration statement under the
Securities Act and applicable state securities laws shall have
become effective with regard thereto, or an exemption from
registration under such laws is available in connection with such
offer or sale."
Notwithstanding the foregoing, it is agreed that, as long as (A) the
resale or transfer (including without limitation a pledge) of any of the
Securities is registered pursuant to an effective registration statement, (B)
such Securities have been publicly sold pursuant to Rule 144 ("Rule 144"), or
(C) such Securities can be publicly sold pursuant to Rule 144(k) under the
Securities Act, such Securities shall be issued without any legend or other
restrictive language and, with respect to Securities upon which such legend is
stamped, the Company shall issue new certificates without such legend to the
holder upon request.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each Purchaser and agrees
with each Purchaser that, as of the date of this Agreement and as of the Closing
Date:
3.1 Organization, Good Standing and Qualification. Each of the Company and
its subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization and has all
requisite corporate power and authority to carry on its business as now
conducted. Each of the Company and its subsidiaries is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on the consolidated
business or financial condition of the Company and its subsidiaries taken as a
whole.
3.2 Authorization; Consents. The Company has the requisite corporate power
and authority to enter into and perform its obligations under (i) this
Agreement, (ii) the Registration Rights Agreement and (iii) the Warrants and all
other agreements, documents, certificates or other instruments executed and
delivered by or on behalf of the Company at the Closing (the instruments
described in (i), (ii) and (iii) being collectively referred to herein as the
"Transaction Documents"), to execute, file and perform its obligations under the
Certificate of Designation, to issue and sell the Preferred Shares and the
Warrants to the Purchasers in accordance with the terms hereof, to issue the
Conversion Shares
3
4
upon conversion of the Preferred Shares in accordance with the Certificate of
Designation, and to issue the Warrant Shares upon exercise of the Warrants in
accordance with the terms of the Warrants. Except as set forth on Schedule 3.2,
all corporate action on the part of the Company by its officers, directors and
stockholders necessary for (A) the authorization, execution and delivery of, and
the performance by the Company of its obligations under, the Transaction
Documents, and (B) the authorization, execution and filing of, and the
performance by the Company of its obligations under, the Certificate of
Designation has been taken, and no further consent or authorization of the
Company, its Board of Directors, its stockholders, any governmental agency or
organization (other than such approval as may be required under the Securities
Act and applicable state securities laws in respect of the Registration Rights
Agreement), or any other person or entity is required (pursuant to any rule of
the National Association of Securities Dealers, Inc. or otherwise).
3.3 Enforcement. The Transaction Documents constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms.
3.4 Disclosure Documents; Agreements; Financial Statements; Other
Information. The Company has filed with the Commission: (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 1997, (ii) Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 and September
30, 1998, (iii) all Current Reports on Form 8-K, and any other reports, required
to be filed with the Commission since December 31, 1997 and prior to the date
hereof and (iv) the Company's definitive Proxy Statement for its 1998 Annual
Meeting of Stockholders (collectively, the "Disclosure Documents"). The Company
is not aware of any event occurring on or prior to the Closing (other than the
transactions effected hereby) that would require the filing of, or with respect
to which the Company intends to file, a Form 8-K after the Closing. Each
Disclosure Document, as of the date of the filing thereof with the Commission,
conformed in all material respects to the requirements of the Exchange Act, and
the rules and regulations thereunder and, as of the date of such filing, such
Disclosure Document did not contain an untrue statement of material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. All material agreements required to be filed as exhibits to the
Disclosure Documents have been filed as required. Neither the Company nor any of
its subsidiaries is in breach of any agreement to which it is a party or by
which it is bound where such breach is reasonably likely to have a material
adverse effect on (i) the consolidated business, operations, properties,
financial condition, prospects or results of operations of the Company and its
subsidiaries taken as a whole, (ii) the transactions contemplated hereby, by the
other Transaction Documents (as defined below) and by the Certificate of
Designation or (iii) the ability of the Company to perform its obligations under
this Agreement, under the other Transaction Documents and under the Certificate
of Designation (collectively, a "Material Adverse Effect"). Except as set forth
in the Disclosure Documents, the Company has no liabilities, contingent or
otherwise, other than liabilities incurred in the ordinary course of business
which, under generally accepted accounting principles, are not required to be
reflected in such financial statements and which, individually or in the
aggregate, are not material to the consolidated business or financial condition
of the Company and its subsidiaries taken as a whole. As of their respective
dates, the financial statements of the Company included in the Disclosure
Documents complied as to form in all material respects with applicable
accounting
4
5
requirements and the published rules and regulations of the Commission with
respect thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied at the times and
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end adjustments). The written information
described on Schedule 2.3 does not contain an untrue or misleading statement of
material fact , and does not include any material, non-public information.
3.5 Capitalization. The capitalization of the Company, including its
authorized capital stock, the number of shares issued and outstanding, the
number of shares issuable and reserved for issuance pursuant to the Company's
stock option plans, the number of shares issuable and reserved for issuance
pursuant to securities (other than the Preferred Stock) exercisable for, or
convertible into or exchangeable for any shares of Common Stock and the number
of shares initially to be reserved for issuance upon conversion of the Preferred
Shares and exercise of the Warrants is set forth on Schedule 3.5 hereto. All of
such outstanding shares of capital stock have been, or upon issuance will be,
validly issued, fully paid and non-assessable. No shares of the capital stock of
the Company are subject to preemptive rights or any other similar rights of the
stockholders of the Company or any liens or encumbrances created by or through
the Company. Except as disclosed on Schedule 3.5, or as contemplated herein,
there are no outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights
convertible into or exercisable or exchangeable for, any shares of capital stock
of the Company or any of its subsidiaries, or arrangements by which the Company
or any of its subsidiaries is or may become bound to issue additional shares of
capital stock of the Company or any of its subsidiaries.
3.6 Valid Issuance. The Preferred Shares are duly authorized and, when
issued, sold and delivered in accordance with the terms hereof, (i) will be duly
and validly issued, fully paid and nonassessable, free and clear of any taxes,
liens, claims, preemptive or similar rights or encumbrances imposed by or
through the Company (collectively, "Encumbrances"), (ii) based in part upon the
representations of each Purchaser in this Agreement, will be issued, sold and
delivered in compliance with all applicable Federal and state securities laws
and (iii) will be entitled to all of the rights, preferences and privileges set
forth in the Certificate of Designation. The Warrants are duly authorized and,
when issued, sold and delivered in accordance with the terms hereof, (i) will be
duly and validly issued, fully paid and nonassessable, free and clear of any
Encumbrances and (ii) based in part upon the representations of each Purchaser
in this Agreement, will be issued, sold and delivered in compliance with all
applicable Federal and state securities laws. The Conversion Shares are duly
authorized and reserved for issuance and, when issued upon conversion of the
Preferred Shares in accordance with the terms of the Certificate of Designation,
will be duly and validly issued, fully paid and nonassessable, free and clear of
any Encumbrances. The Warrant Shares are duly authorized and, upon the issuance
thereof in accordance with the terms of the Warrant, will be duly and validly
issued, fully paid and nonassessable, free and clear of any Encumbrances. The
Company's Board of Directors (i) has
5
6
unanimously determined that the issuance and sale of the Preferred Shares and
Warrants hereunder, and the consummation of the transactions contemplated
hereby, by the other Transaction Documents and by the Certificate of Designation
(including without limitation the issuance of the Conversion Shares upon
exercise of the Preferred Shares and the Warrant Shares upon exercise of the
Warrants), are in the best interests of the Company, (ii) has unanimously
approved the issuance of Conversion Shares upon exercise of the Preferred Shares
and Warrant Shares upon exercise of the Warrants in the aggregate in excess of
19.99% of the number of shares of Common Stock outstanding on the Closing Date,
and (iii) intends to recommend to the stockholders of the Company that they
approve the issuance of Conversion Shares and Warrant Shares in excess of such
number.
3.7 No Conflict with Other Instruments. Except as set forth on Schedule
3.7, neither the Company nor any of its subsidiaries is in violation of any
provisions of its charter, bylaws or any other governing document as amended and
in effect on and as of the date hereof or in default (and no event has occurred
which, with notice or lapse of time or both, would constitute a default) under
any provision of any instrument or contract to which it is a party or by which
it is bound, or of any provision of any Federal or state judgment, writ, decree,
order, statute, rule or governmental regulation applicable to the Company, which
would have a material adverse effect on the consolidated business or financial
condition of the Company and its subsidiaries taken as a whole. Except as set
forth on Schedule 3.7, the (i) execution, delivery and performance of this
Agreement and the other Transaction Documents, (ii) execution and filing of the
Certificate of Designation and (iii) consummation of the transactions
contemplated hereby and thereby (including without limitation, the issuance of
the Preferred Shares and the Warrants and the reservation for issuance and
issuance of the Conversion Shares and the Warrant Shares) will not, in any such
case, result in any such violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a default under any
such provision, instrument or contract or an event which results in the creation
of any lien, charge or encumbrance upon any assets of the Company or of any of
its subsidiaries or the triggering of any preemptive or anti-dilution rights or
rights of first refusal or first offer on the part of holders of the Company's
securities.
3.8 Financial Condition; Taxes; Litigation.
3.8.1 The Company's financial condition is, in all material
respects, as described in the Disclosure Documents, except for changes in the
ordinary course of business and normal year-end adjustments that are not, in the
aggregate, materially adverse to the consolidated business or financial
condition of the Company and its subsidiaries taken as a whole. Except as
otherwise described in the Disclosure Documents, there has been no material
adverse change to the Company's business, operations, properties, financial
condition, prospects or results of operations since the date of the Company's
most recent audited financial statements contained in the Disclosure Documents.
3.8.2 Neither the Company nor any of its subsidiaries is the subject
of any pending or, to the Company's knowledge, threatened inquiry, investigation
or administrative or legal proceeding by the Internal Revenue Service, the
taxing authorities of any state or local jurisdiction, the Commission or any
state securities commission or other governmental or regulatory entity which
could reasonably be expected to have a Material Adverse Effect.
6
7
3.8.3 Except as described on Schedule 3.8.3, there is no material
claim, litigation or administrative proceeding pending, or, to the Company's
knowledge, threatened or contemplated, against the Company or any of its
subsidiaries, or against any officer, director or employee of the Company or any
such subsidiary in connection with such person's employment therewith. Neither
the Company nor any of its subsidiaries is a party to or subject to the
provisions of, any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality which could reasonably be expected to have
a Material Adverse Effect.
3.9 Reporting Company; Form S-3. The Company is subject to the reporting
requirements of the Exchange Act, has a class of securities registered under
Section 12 of the Exchange Act, and has filed all reports required thereby. The
Company is eligible to register for resale shares of its Common Stock on a
registration statement on Form S-3 under the Securities Act.
3.10 Acknowledgement of Dilution. The Company acknowledges that the
issuance of the Conversion Shares upon conversion of the Preferred Shares in
accordance with the terms of the Certificate of Designation and the issuance of
the Warrant Shares in accordance with the terms of the Warrants may result in
dilution of the outstanding shares of Common Stock, which dilution may be
substantial under certain market conditions. The Company further acknowledges
that its obligation to issue Conversion Shares upon conversion of Preferred
Shares in accordance with the terms of the Certificate of Designation and to
issue Warrant Shares in accordance with the terms of the Warrants is
unconditional and absolute regardless of the effect of any such dilution.
3.11 Intellectual Property. The Company and its subsidiaries each has the
right to use adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other intellectual
property rights necessary to conduct the business now operated by it, and is not
aware of any infringement by a third party with respect to such rights or of any
infringement by it or conflict with asserted rights of others that, in any such
case, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated business or financial condition of the Company and its subsidiaries
taken as a whole.
3.12 Registration Rights; Rights of Participation. Except as described on
Schedule 3.12 hereto, (A) the Company has not granted or agreed to grant to any
person or entity any rights (including "piggy-back" registration rights) to have
any securities of the Company registered with the Commission or any other
governmental authority and (B) no person or entity, including, but not limited
to, current or former stockholders of the Company, underwriters, brokers, agents
or other third parties, has any right of first refusal, preemptive right, right
of participation, anti-dilutive right or any similar right to participate in the
transactions contemplated by this Agreement, the other Transaction Documents or
the Certificate of Designation which has not been waived or will not be waived
or otherwise satisfied as of the Closing.
3.13 Listing on Nasdaq. The Common Stock is authorized for quotation on
the Nasdaq
7
8
SmallCap Market, and trading in the Common Stock on the Nasdaq SmallCap Market
has not been suspended. The Company is, to its knowledge, in full compliance
with the listing criteria of the Nasdaq SmallCap Market, and does not reasonably
anticipate that the Common Stock will lose its listing on the Nasdaq SmallCap
Market, whether by reason of the transactions contemplated by this Agreement,
the other Transaction Documents or the Certificate of Designation, or otherwise
and is not aware of any inquiry by or received any notice from the Nasdaq
regarding any failure or alleged failure by the Company to comply with such
criteria.
3.14 Solicitation; Other Issuances of Securities. Neither the Company nor
any of its subsidiaries or affiliates, nor any person acting on its or their
behalf, (i) has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with the offer or
sale of the Preferred Shares or Warrants , (ii) has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any
security, under any circumstances that would require registration of the
Preferred Shares or Warrants under the Securities Act or (iii) has issued any
shares of Common Stock or shares of any series of preferred stock or other
securities or instruments convertible into, exchangeable for or otherwise
entitling the holder thereof to acquire shares of Common Stock which would be
integrated with the sale of the Preferred Shares and Warrants to the Purchasers,
or the issuance of the Conversion Shares or Warrant Shares upon the conversion
or exercise thereof, for purposes of determining whether stockholder approval is
required under the listing criteria of the Nasdaq SmallCap Market.
3.15 Fees. Except as described on Schedule 3.15 hereto, the Company is not
obligated to pay any compensation or other fee, cost or related expenditure to
any underwriter, broker, agent or other representative in connection with the
transactions contemplated hereby.
3.16 Foreign Corrupt Practices. To the knowledge of the Company, neither
the Company, nor any of its subsidiaries nor any director, officer, agent,
employee or other person acting on behalf of the Company or any subsidiary, has
(i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to political activity, (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or
employee, (iii) violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, or made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment to any foreign or domestic government official or
employee.
3.17 Title. Neither the Company nor any of its subsidiaries owns any real
property; each of the Company and its subsidiaries has good and marketable title
to all personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects, except for liens, claims or encumbrances that do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries. Any real property and facilities held under lease
by the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries.
8
9
3.18 Regulatory Permits. The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, except where the failure to so possess such certificates,
authorizations or permits would not have a Material Adverse Effect, and neither
the Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit.
3.19 Key Employees. Each person whose name is set forth on Schedule 3.19
(each, a "Key Employee") is currently serving in the capacity indicated on such
schedule on a full-time basis. The Company is not aware of any fact or
circumstance (including without limitation the terms of any agreement to which
such person is a party or any litigation in which such person is or may become
involved) that would limit or prevent any such person from serving in such
capacity on a full-time basis in the foreseeable future, or of any intention on
the part of any such person to limit or terminate his or her employment with the
Company.
3.20 MCI Joint Venture. The Company is not aware of any fact, circumstance
or event that, with the passage of time or otherwise, could result in the
expiration or termination of the letter of intent, dated as of January 7, 1999,
between the Company and MCI WorldCom, Inc. (the "MCI Letter Agreement"), prior
to the execution of definitive documentation relating to the proposed joint
venture described in the MCI Letter of Intent.
4. COVENANTS OF THE COMPANY.
4.1 Corporate Existence. The Company shall, so long as any Purchaser or
any affiliate of such Purchaser beneficially owns any Securities, maintain its
corporate existence in good standing and shall pay all taxes owed by it when due
except for taxes which the Company reasonably disputes.
4.2 Provision of Information. The Company shall, so long as such Purchaser
or any affiliate of such Purchaser beneficially owns any Securities, provide
each Purchaser with copies of its annual reports on Form 10-K, quarterly reports
on Form 10-Q, current reports on Form 8-K and proxy statements and other
materials sent to stockholders, in each such case promptly after the filing
thereof with the Commission.
4.3 Form D; Blue-Sky Qualification. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D and to provide a
copy thereof to each Purchaser promptly after such filing. The Company shall, on
or before the Closing Date (or, if permitted under applicable law or regulation,
at such time following the Closing Date as required by such law or regulation),
take such action as is necessary to qualify the Preferred Shares and Warrants
for sale under applicable state or "blue-sky" laws or obtain an exemption
therefrom, and shall provide evidence of any such action to each Purchaser at or
prior to the Closing.
4.4 Reporting Status. As long as any Purchaser or any affiliate of such
Purchaser
9
10
beneficially owns any Securities and until the date on which any of the
foregoing may be sold to the public pursuant to Rule 144(k) (or any successor
rule or regulation), (i) the Company shall timely file with the Commission all
reports required to be so filed pursuant to the Exchange Act and (ii) the
Company shall not terminate its status as an issuer required by the Exchange Act
to file reports thereunder even if the Exchange Act or the rules or regulations
thereunder would permit such termination. The Company agrees to file with the
Commission a Form 8-K describing the terms of the transactions contemplated by
this Agreement and the other Transaction Documents, with this Agreement and all
exhibits attached to such Form 8-K as an exhibit thereto, on or before the fifth
(5th) Business Day following the Closing Date in the form required by the
Exchange Act.
4.5 Reservation of Common Stock. The Company shall at all times have
authorized and reserved for issuance, free from any preemptive rights, solely
for the purpose of effecting conversions of the Preferred Shares and exercise of
the Warrants, such number of its shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all of the Preferred Shares and
exercise of all of the Warrants (the "Reserved Amount"). As of the Closing Date,
the Reserved Amount shall be equal to no less than 5,175,000 (subject to
equitable adjustment for each of the events specified in Section 6 of the
Certificate of Designation) shares of Common Stock. The Reserved Amount as of
the Closing Date shall be allocated to each Purchaser in the same proportion as
the number of Preferred Shares purchased by such Purchaser hereunder bears to
the aggregate number of Preferred Shares purchased by all of the Purchasers
hereunder; and any increase to the Reserved Amount shall be allocated to each
Purchaser in the same proportion as the number of Conversion Shares and Warrant
Shares issuable to such Purchaser upon conversion of the Preferred Shares and
exercise of the Warrants held by such Purchaser at the time of such increase
(assuming for such purpose that such conversion or exercise were to occur as of
the time of such increase and without regard to any restriction or limitation on
such conversion or exercise) bears to the aggregate number of Conversion Shares
and Warrant Shares issuable to all of the Purchasers upon conversion of the
Preferred Shares and exercise of the Warrants held by such Purchasers at the
time of such increase (assuming for such purpose that such conversion or
exercise were to occur as of the time of such increase and without regard to any
restriction or limitation on such conversion or exercise). The Company shall not
reduce the number of shares reserved for issuance hereunder without the written
consent of each of the holders Preferred Shares then outstanding.
4.6 Use of Proceeds. The Company shall use the proceeds from the sale of
the Preferred Shares for general corporate purposes only (it being understood
that acquisitions by the Company of other entities shall be considered within
the meaning of "general corporate purposes"), in the ordinary course of its
business and consistent with past practice, and shall not use such proceeds to
make a loan to any employee, officer or director of the Company or to repurchase
or pay a dividend on shares of Common Stock.
4.7 Quotation on Nasdaq. The Company shall (i) promptly following the
Closing, take such action as may be necessary to include all of the Conversion
Shares and the Warrant Shares that may be issued by the Company on the Nasdaq
SmallCap Market, and (ii) use its reasonable commercial efforts to maintain the
designation and quotation, or listing, of the Common Stock on the
10
11
Nasdaq SmallCap Market, the Nasdaq National Market or the NYSE for a minimum of
five (5) years following the Closing.
4.8 Use of Purchaser Name. Except as may be required by applicable law,
the Company shall not use, directly or indirectly, any Purchaser's name or the
name of any of its affiliates in any advertisement, announcement, press release
or other similar communication unless it has received the prior written consent
of any Purchaser for the specific use contemplated (which consent will not be
unreasonably withheld) or as otherwise required by applicable law or regulation.
4.9 Company's Instructions to Transfer Agent. On or prior to the Closing
Date, the Company shall execute and deliver irrevocable instructions to its
transfer agent (the "Transfer Agent") (i) to issue certificates representing
Conversion Shares upon conversion of the Preferred Shares in accordance with the
terms of the Certificate of Designation and receipt of (i) a valid Conversion
Notice (as defined in the Certificate of Designation) from a Purchaser and (ii)
a confirmation from the Company, in the amount specified in such Conversion
Notice, in the name of such Purchaser or its nominee (subject to the Company's
right pursuant to the terms of the Certificate of Designation to pay cash in
lieu of issuing such certificates upon a conversion), (ii) to issue certificates
representing the Warrant Shares upon the exercise thereof in accordance with the
terms of the Warrant and receipt of a confirmation from the Company, and (iii)
to deliver such certificates to such Purchaser no later than the close of
business on the later to occur of (A) the third (3rd) Business Day following the
related Conversion Date (as defined in the Certificate of Designation) or
Exercise Date (as defined in the Warrant, and (B) the first Business Day
following the date of delivery of the original certificates, duly endorsed,
representing the Preferred Shares or Warrants (together in the case of the
Warrants with the Exercise Price (as defined in the Warrants)) being converted
or exercised, as the case may be. The Company shall instruct the transfer agent
that, in lieu of delivering physical certificates representing shares of Common
Stock to a Purchaser upon conversion of the Preferred Shares, or issuance of the
Warrant Shares, and as long as the Transfer Agent is a participant in the
Depository Trust Company ("DTC") Fast Automated Securities Transfer program, and
such Purchaser has not informed the Company that it wishes to receive physical
certificates therefor, the transfer agent may effect delivery of Conversion
Shares or Warrant Shares, as the case may be, by crediting the account of such
Purchaser or its nominee at DTC for the number of shares for which delivery is
required hereunder within the time frame specified above for delivery of
certificates. The Company represents to and agrees with each Purchaser that it
will not give any instruction to the Transfer Agent that will conflict with the
foregoing instruction or otherwise restrict such Purchaser's right to convert
the Preferred Shares or exercise the Warrants or to receive Conversion Shares or
Warrant Shares in accordance with the terms of the Certificate of Designation or
the Warrants, as the case may be. In the event that the Company's relationship
with the Transfer Agent should be terminated for any reason, the Company will
use reasonable commercial efforts to ensure that the Transfer Agent shall
continue acting as transfer agent pursuant to the terms hereof until such time
that a successor transfer agent is appointed by the Company and receives the
instructions described above.
11
12
4.10 Issuance of Equity Securities; Preemption Right.
4.10.1 Except as set forth on Schedule 4.10.1, the Company
agrees that it will not, during the one year period
following the Closing Date (the "Limitation Period"),
issue any Common Stock or any other equity security of
the Company, or any security convertible into, or
exercisable or exchangeable for, Common Stock or any
such equity security (collectively, an "Equity
Security"), unless it delivers written notice thereof (a
"Notice of Issuance") to each Purchaser at least ten
(10) Business Days prior to the effective date of such
issuance. Each Notice of Issuance shall set forth the
terms and conditions of the proposed issuance, including
without limitation a description of the Equity
Securities being issued, the amount thereof, the
purchase price therefor and the proposed closing date
for such issuance (the "Equity Security Closing Date").
Following delivery of a Notice of Issuance to a
Purchaser, the Company agrees that it will not issue any
Equity Securities specified therein during the
Limitation Period except on the terms set forth in such
notice.
4.10.2 Each Purchaser shall have the right (a "Preemption
Right") following receipt of a Notice of Issuance to, at
its option, either (A) purchase up to its Pro Rata Share
(as defined below) of the amount of Equity Securities
set forth in such Notice of Issuance (less any Equity
Securities that are purchased by the holders of the
Company's Convertible Notes issued in May 1998 (the
"Preemptive Right Holders") on the terms and for the
consideration described therein (a "Preemptive
Purchase") or (B) exchange all or any part of the
Preferred Shares then held by it for such Equity
Securities on the terms set forth in such Notice of
Issuance (a "Preemptive Exchange"). In the case of a
Preemptive Exchange, the Company shall issue Equity
Securities in an amount equal to the Stated Value of the
Preferred Shares being exchanged plus the Premium (as
defined in the Certificate of Designation) accrued
thereon (without regard to the amount of Equity
Securities set forth in such Notice of Issuance), and
delivery of such Preferred Shares shall be deemed to
constitute payment of the consideration specified in
such Notice of Issuance. A Purchaser may exercise its
Preemption Right by delivering written notice of such
exercise to the Company (a "Preemption Notice") on or
before the fifth (5th) Business Day following such
Purchaser's receipt of such Notice of Issuance. Each
Preemption Notice will specify whether the Purchaser
delivering such notice intends to effect a Preemptive
Purchase or a Preemptive Exchange, and the amount of
Equity Securities that such Purchaser intends to acquire
thereby.
4.10.3 In the case of a Preemptive Purchase, the Company may
issue Equity Securities to a third party only if and to
the extent that the amount of Equity Securities set
forth in the related Notice of Issuance exceeds the
aggregate amount of (i) Equity Securities that are
purchased by the Purchasers hereunder plus (ii) Equity
12
13
Securities that are purchased by the Preemptive Right
Holders; in the case of a Preemptive Exchange, the
Company may issue Equity Securities to a third party up
to the full amount of Equity Securities set forth in the
related Notice of Issuance (less any Equity Securities
that are purchased by a Purchaser under this Section
4.10) as long as the Company issues to each Purchaser
requesting such exchange, upon receipt of the Preferred
Shares being exchanged, Equity Securities in the amount
specified in such Purchaser's Preemption Notice. Upon
receipt of an Preemption Notice from a Purchaser, the
Company will, no later than the Business Day following
the date of such receipt, deliver to such Purchaser
copies of any and all written documentation (including
any terms sheets, letters of intent or agreements
between or among the Company and prospective purchasers
or other transferees of the Equity Securities) relating
to such issuance that then or thereafter exists. In the
event that the documentation relating to such issuance
contains terms that, in the reasonable judgment of any
Purchaser which has delivered a Preemption Notice
hereunder, are materially different from the terms set
forth in the related Notice of Issuance, such Purchaser
may rescind such Preemption Notice at any time prior to
the closing of such issuance.
This paragraph 4.10 will not apply, in addition to the issuances set forth on
Schedule 4.10.1, to (x) any underwritten offering of securities made pursuant to
a written underwriting agreement with a nationally-recognized investment bank,
(y) any issuance of securities made pursuant to a restricted stock or stock
option plan duly adopted by the Company or (z) any issuance of securities made
in connection with a strategic investment by an entity engaged in the same or
similar business as the Company, where the primary purpose of such issuance is
not to raise equity capital. A Purchaser's "Pro Rata Share" at any time shall
mean a fraction, the numerator of which is the number of Preferred Shares held
by such Purchaser at such time and the denominator is the number of Preferred
Shares held by all of the Purchasers at such time; provided, however, that if a
Purchaser declines to purchase any or the full amount of its Pro Rata Share of
Equity Securities being offered, the amount of such Pro Rata Share which such
Purchaser does not purchase shall be allocated among the Pro Rata Shares of the
remaining Purchasers on a pro rata basis calculated according to the number of
Preferred Shares then held by each such Purchaser.
4.11 Stockholder Approval. The Company agrees that it will (i) file with
the Commission, no later than the April 15th, 1999, proxy solicitation materials
("Proxy Materials") seeking the approval of the holders of a majority of the
Company's Common Stock for issuances of Conversion Shares and Warrant Shares in
excess of the Cap Amount (as defined in the Certificate of
Designation)("Stockholder Approval"), (ii) call and hold a meeting of its
stockholders for the purpose of voting on the proposals set forth in the Proxy
Materials on or before the one hundred and twenty fifth (125th) day following
the Closing Date and (iii) recommend approval of such proposals to its
stockholders at such meeting.
4.12 No Adverse Action. The Company and its subsidiaries shall refrain,
while any Preferred
13
14
Shares are outstanding, from taking any action or entering into any arrangement
which in any way adversely affects (i) the rights, privileges or benefits
available to a holder of Preferred Stock pursuant to the terms of the
Certificate of Designation or (ii) the rights, privileges or benefits available
to a holder of a Warrant.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Purchasers' Obligations at Closing. Each Purchaser's
obligations at the Closing, including without limitation its obligation to
purchase Preferred Shares and Warrants at the Closing, are conditioned upon the
satisfaction by the Company (or waiver by such Purchaser) of each of the
following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set
forth in this Agreement shall be true and correct in all
material respects as of such date as if made on such
date;
5.1.2 the Company shall have complied with or performed in all
material respects all of the agreements, obligations and
conditions set forth in this Agreement that are required
to be complied with or performed by the Company on or
before the Closing, and the Closing Date shall be a date
that is not later than February 5, 1999;
5.1.3 the Company shall have delivered to such Purchaser a
certificate, signed by an officer of the Company,
certifying that the conditions specified in this
paragraph 5.1 have been fulfilled as of the Closing;
5.1.4 the Company shall have filed the Certificate of
Designation with the Secretary of State of the State of
Delaware and shall have furnished such Purchaser with
reasonable evidence of such filing;
5.1.5 the Company shall have delivered to such Purchaser an
opinion of counsel for the Company, dated as of such
date, in substantially the form set forth on Exhibit
5.1.5 hereto, and covering such additional matters as
may reasonably be requested by such Purchaser;
5.1.6 the Company shall have delivered to such Holder duly
executed certificates representing the Preferred Shares
and Warrants being so purchased;
5.1.7 the Company shall have executed and delivered the
Registration Rights Agreement;
5.1.8 the Common Stock shall be designated for quotation on
the Nasdaq
14
15
SmallCap Market and no suspension of trading in the
Common Stock on such market shall have occurred and be
continuing as of the Closing Date;
5.1.9 the Company shall have authorized and reserved for
issuance the number of shares of Common Stock required
to be reserved under paragraph 4.5 hereof;
5.1.10 (i) each of the Company's executive officers and
directors who holds, beneficially owns or has voting
power with respect to at least 1000 shares of Common
Stock outstanding as of the Closing Date shall have
executed and delivered a letter agreement addressed to
such Purchaser in which such officer irrevocably agrees
to vote all of the shares of Common Stock beneficially
owned by such person and outstanding as of the record
date for any meeting of the Company's stockholders at
which Stockholder Approval is sought (or as of the date
of any written consent of stockholders) in favor of the
proposals set forth in the Proxy Materials and (ii) each
of Xxxxxxx Xxxxxxxx and Xxxxxxx XxXxxxxxxx shall have
executed and delivered a letter agreement addressed to
such Purchaser in which such person irrevocably agrees
to refrain from selling any shares of Common Stock
beneficially owned by such person (other than shares of
Common Stock that may be deemed to be beneficially owned
by such person as a result of such individual's
ownership of warrants issued by Share Technologies
Xxxxxxxxx, Inc. entitling the holder to purchase shares
of Common Stock ) until the Registration Statement (as
defined in the Registration Rights Agreement) is
declared effective and Stockholder Approval has been
obtained
5.1.11 the MCI Letter of Intent shall not have expired or
terminated prior to the execution of definitive
documentation relating to the proposed joint venture
described in the MCI Letter of Intent;
5.1.12 the Company shall have delivered to each Purchaser final
drafts of each Schedule to this Agreement no later than
the close of business on the Business Day immediately
prior to the Closing Date;
5.1.13 the Transfer Agent shall have agreed in writing to
comply with the instructions described in paragraph 4.9
hereof and the Company shall have notified such
Purchaser in writing of the name, address, and telephone
and fax number of, and the name of a contact person at,
the Transfer Agent for the purpose of delivering
Conversion Notices (as defined in the Certificate of
Designation); and
15
16
5.1.14 the aggregate Stated Value of the Preferred Shares to be
purchased by the Purchasers hereunder shall not be less
than $15,000,000.
5.2 Conditions to Company's Obligations at the Closing. The Company's
obligations at the Closing are conditioned upon the satisfaction (or waiver by
the Company) of each of the following events as of the Closing Date:
5.2.1 the representations and warranties of each Purchaser
shall be true and correct in all material respects as of
such date as if made on such date; and
5.2.2 each Purchaser shall have complied with or performed all
of the agreements, obligations and conditions set forth
in this Agreement that are required to be complied with
or performed by the Purchaser on or before the Closing.
6. MISCELLANEOUS.
6.1 Survival. The representations and warranties made by the parties
herein shall survive the Closing for a period of two years notwithstanding any
due diligence investigation made by or on behalf of the party seeking to rely
thereon. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that in such case the parties shall negotiate in good faith
to replace such provision with a new provision which is not illegal,
unenforceable or void, as long as such new provision does not materially change
the economic benefits of this Agreement to the parties.
6.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. The Purchaser may assign its
rights and obligations hereunder, in connection with any private sale or
transfer of the Preferred Shares in accordance with the terms hereof, as long
as, as a condition precedent to such transfer, the transferee executes an
acknowledgment agreeing to be bound by the applicable provisions of this
Agreement, in which case the term "Purchaser" shall be deemed to refer to such
transferee as though such transferee were an original signatory hereto. The
Company may not assign it rights or obligations under this Agreement except
that, in connection with a Change of Control Transaction (as defined below)
where the Company is not the surviving entity, the Company may assign its rights
or obligations hereunder to the surviving entity. For purposes hereof, "Change
of
16
17
Control Transaction" shall mean the sale, conveyance or disposition of all or
substantially all of the assets of the Company or any of its subsidiaries
(including without limitation the sale or other conveyance of any common stock
or other equity securities of any of the Company's subsidiaries), or the
effectuation of a transaction or series of related transactions, in which more
than 50% of the voting power of the Company is disposed of, or the
consolidation, merger or other business combination of the Company or any of its
subsidiaries with or into any other entity, immediately following which the
prior stockholders of the Company fail to own, directly or indirectly, at least
fifty percent (50%) of the surviving entity.
6.3 No Reliance. Each party acknowledges that (i) it has such
knowledge in business and financial matters as to be fully capable of evaluating
this Agreement, the other Transaction Documents and the transactions
contemplated hereby and thereby, (ii) it is not relying on any advice or
representation of the other party in connection with entering into this
Agreement, the other Transaction Documents or such transactions (other than the
representations made in this Agreement or the other Transaction Documents),
(iii) it has not received from such party any assurance or guarantee as to the
merits (whether legal, regulatory, tax, financial or otherwise) of entering into
this Agreement or the other Transaction Documents or the performance of its
obligations hereunder and thereunder, and (iv) it has consulted with its own
legal, regulatory, tax, business, investment, financial and accounting advisors
to the extent that it has deemed necessary, and has entered into this Agreement
and the other Transaction Documents based on its own independent judgment and on
the advice of its advisors as it has deemed necessary, and not on any view
(whether written or oral) expressed by such party.
6.4 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser hereunder are several and not joint with the
obligations of the other Purchasers hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at the Closing, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such purpose.
6.5 Injunctive Relief. The Company acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to the Purchaser and
that the remedy or remedies at law for any such breach will be inadequate and
agrees, in the event of any such breach, in addition to all other available
remedies, to an injunction restraining any breach and requiring immediate and
specific performance of such obligations without the necessity of showing
economic loss.
6.6 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed under the laws of the State of New York without regard to the
conflict of laws provisions
17
18
thereof. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof (certified or registered mail, return receipt requested)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
6.8 Headings. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
6.9 Notices. Any notice, demand or request required or permitted to
be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., eastern time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid), addressed to the
parties as follows:
If to the Company:
Shared Technologies Cellular, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Legal Department
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Day, Xxxxx & Xxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
18
19
and if to any Purchaser, to such address for such Purchaser as shall appear on
the signature page hereof executed by such Purchaser, or as shall be designated
by such Purchaser in writing to the Company.
6.10 Expenses. The Company and each Purchaser each shall pay all
costs and expenses that it incurs in connection with the negotiation, execution,
delivery and performance of this Agreement.
6.11 Entire Agreement; Amendments; Waiver. This Agreement and the
other Transaction Documents constitute the entire agreement between the parties
with regard to the subject matter hereof and thereof, superseding all prior
agreements or understandings, whether written or oral, between or among the
parties. Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended except pursuant to a written instrument executed by
the Company and the holders of at least two-thirds (2/3) of the Preferred Shares
then outstanding, and no provision hereof may be waived other than by a written
instrument signed by the party against whom enforcement of any such waiver is
sought.
[Remainder of Page Intentionally Left Blank]
19
20
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: XXXXXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President
ADDRESS:
00 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 5,000
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
21
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: MARCUARD XXXX & CIE S.A.
By: /s/ Xxxx Xxxx /s/ Xxxx-Xxx Xxxxx
Name: Xxxx Xxxx Xxxx-Xxx Xxxxx
Title: Manager Manager
ADDRESS:
0 Xxx xxx Xxxxx
0000 Xxxxxx 1
Tel: 00 00 000 0000
Fax: 00 00 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 1,700
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
22
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: EAGLE & DOMINION EURO AMERICAN GROWTH FUND LTD.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
ADDRESS:
c/o Eagle & American Asset Management Ltd.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000-0000
Fax: 0000-000-0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 220
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
23
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: EAGLE & DOMINION EURO AMERICAN GROWTH FUND L.P.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director of General Partner
ADDRESS:
c/o Eagle & Dominion Asset Management Ltd.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000-0000
Fax: 0000-000-0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 60
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
24
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: MEINL BANK
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx Wegscheidler
Name: Xxxxxx Xxxxxx Name: Xxxxxxx Wegscheidler
Title: Member of the Title: Deputy Manager
Managing Board
ADDRESS:
Xxxxxxxxxxx 0
X-0000 Xxxxxx
Tel: ++ 431-531 88 ext. 261
Fax: ++ 431-531 88 ext. 46
Number of shares of Series C Preferred C Preferred Stock to be purchased: 1,050
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
25
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: XXXXXX FT
By: /s/ X. Xxxxxx
Name: X. Xxxxxx
Title: Fund Manager
ADDRESS:
00 Xxxxxxxxxxx Xx.
Xxxxxx
Tel: 0000 000 0000
Fax: 0000 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 50
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
26
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: AAGC ABN AMRO BANK NV
By: /s/ R.F. Bastiaenon
Name: R.F. Bastiaenon
Title: Head Trading
Private Banking
ADDRESS:
c/o Suisse American Securities, Inc.
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000
Tel: ____________________
Fax: ____________________
Number of shares of Series C Preferred C Preferred Stock to be purchased: 1,000
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
27
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: XXXXXX ESTATES LTD.
By: /s/ C. Xxxxxxx Xxxxx
Name: C. Xxxxxxx Xxxxx
Title: Director
ADDRESS:
0xx Xxxxx, Xxxxxx Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxx xx Xxx
Tel: 00000 000 000
Fax: 00000 000 000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 800
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
28
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: DULVILLE LIMITED
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Sole Director
ADDRESS:
0 Xxxxxx x'Xxxxxxx
XX-00000 Xxxxxx
Tel: 000-000000 00
Fax: 000-000000 00
Number of shares of Series C Preferred C Preferred Stock to be purchased: 800
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
29
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: GRANGE NOMINEES LIMITED
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Authorized Signatory
ADDRESS:
X.X. Xxx 000, Xxxxxxxx Xxxxx
Xxx Xxxxxxx, Xx. Xxxxx Xxxx,
Xxxxxxxx XX0 0XX
Tel: 00-0000-000000
Fax: 00-0000-000000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 420
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
30
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: NCL INVESTMENTS LTD A/C NCL (NOMINEES) LTD
By: /s/ X.X. Xxxxxx
Name: X.X. Xxxxxx
Title: Director
ADDRESS:
Xxxxxxxx Xxxxx
0-00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X SNS
Tel: 0000 000 0000
Fax: 0000 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 400
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
31
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: XXXXXXXXX INVESTMENT MANAGEMENT LIMITED ACCOUNT C
By: /s/ Xxxxxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxxxxx
Title: Director
ADDRESS:
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 183
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
32
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: XXXXXXXXX INVESTMENT MANAGEMENT LIMITED ACCOUNT B
By: /s/ Xxxxxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxxxxx
Title: Director
ADDRESS:
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 17
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
33
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: XXXXX XXXXXXXXXXXX & CO. S.A.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title:
ADDRESS:
0-0 Xx. Xxxxx'x Xxxxxx
Xxxxxx SWIA IEE
Tel: 0000 000 0000
Fax: 0000 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 341
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
34
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: XXXXX XXXXXXXXXXXX & CO. LIMITED
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Director
ADDRESS:
0-0 Xx. Xxxxx'x Xxxxxx
Xxxxxx SWIA IEE
Tel: 0000 000 0000
Fax: 0000 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 150
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
35
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: THE TRIDENT NORTH ATLANTIC FUND
By: /s/ Xxxxxxxxxxx Xxxxx
Name: Xxxxxxxxxxx Xxxxx
Title: Director
ADDRESS:
X.X. Xxx 000
Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxx Cayman
Tel: 00 0000 000 0000
Fax: 00 0000 000 0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 70
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
36
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: BELLHAVEN INVESTMENTS LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signer
ADDRESS:
X.X. Xxx X-0000
Xxxxxx, Xxxxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 28
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
37
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: E & D NO. 2 ACCOUNT, XXXX & CO. (NOMINEES) LTD.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
ADDRESS:
Eagle & Dominion Asset Management Ltd.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000-0000
Fax: 0000-000-0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 20
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
38
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: PEQUOT SCOUT FUND, L.P.
By: PEQUOT CAPITAL MANAGEMENT, INC.
Its Investment Adviser
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: CFO
ADDRESS:
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 1,441
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/X/ Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
39
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: INTERNATIONAL CAPITAL PARTNERS, INC. PROFIT-SHARING TRUST
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Trustee
ADDRESS:
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX
Tel: 000-000-0000
Fax: 000-000-0000
Number of shares of Series C Preferred C Preferred Stock to be purchased: 250
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/X/ Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
40
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx XxXxxxxxxx
Name: Xxxxxxx XxXxxxxxxx
Title: CFO
PURCHASER NAME: ARDARA INVESTMENT INC.
One Director:
XXXXX LTD
By: Two Directors: /s/ /s/
Name:
Title:
ADDRESS: Registered Office:
Xxxxxxxxxx Plaza, Wickhams Cay 1
Road Town, Tortola, BVI
Tel:
Fax: 4122/000.00.00
Number of shares of Series C Preferred C Preferred Stock to be purchased: 1,000
Number of Warrants to be purchased equals the Stated Value of the Series C
Preferred Stock to be purchased times 0.02
/ / Check here if Purchaser elects not to be bound by the 4.99% limitation on
conversions set forth in paragraph 5(c) of the Certificate of Designation.
20
