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EXHIBIT 10.10
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement"), dated as of March 31,
1999, is between Optimal Communications, Inc., a Delaware corporation (the
"Corporation") and Black Diamond Capital, LLC ("Purchaser") (Corporation and
Purchaser are collectively "the Parties").
RECITALS
Whereas, the Corporation has authorized capital stock consisting of
1000 shares of Class A Common Stock having the rights and power set forth in the
Certificate of Incorporation of the Corporation (as amended from time to time);
Whereas, the Purchaser is purchasing 214.2857 shares of Class A Common
Stock of the Corporation;
Whereas, the Corporation and the Purchaser have agreed to make certain
provisions to restrict the transfer of the Purchaser's stock and to provide for
non-competition and confidentiality;
Now, therefore, in consideration of the covenants and agreements made
herein, the Purchaser and the Corporation agree as follows:
ARTICLE I
NONCOMPETITION
1.1 Purchaser expressly covenants and agrees that for three years from
the date of this agreement, Purchaser will not, nor will any member of
Purchaser, directly or indirectly, as an officer, agent, principal, employee,
consultant, or otherwise, engage in any activity which, at that time, competes
to a material extent with the Corporation. Nothing herein will preclude
Purchaser from acquiring or holding securities representing less than
five-percent (5%) of the outstanding securities of any class of equity security
registered under the Securities Exchange Act of 1934, as amended.
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ARTICLE II
CONFIDENTIALITY AND NON-DISCLOSURE
2.1 Purchaser and all members of Purchaser acknowledge that
information, observations and data obtained by Purchaser or its members
concerning the business or affairs of the Corporation (the "Confidential
Information") are the property of the Corporation. Purchaser and its members
will not disclose to any person or use for its own account any Confidential
Information without the written consent of the Corporation. Nothing herein shall
prevent the disclosure of Confidential Information (i) which becomes generally
known to and available for use by the public other than as a result of a
disclosure by Purchaser or its members, (ii) with respect to which Purchaser's
and its members' duty of confidentiality is waived by the Corporation, (iii) if
required by applicable law, regulation or order of any governmental agency or
court of competent jurisdiction, (iv) which was known to the public when
received by Purchaser and its members, or (v) which is lawfully obtained by
Purchaser and its members from other sources. Purchaser and its members agree
that upon the written request of the Corporation, it will deliver to the
Corporation all memoranda, notes, plans, records, reports and other documents
containing Confidential Information, and all copies thereof, that Purchaser and
its members may then possess or have under its control. The obligations set
forth in this Confidentiality and Non-Disclosure paragraph shall continue for a
period of three years.
ARTICLE III
TRANSFER OF SECURITIES
3.1 Transfers. Purchaser shall not sell, transfer or otherwise dispose
of, hypothecate or otherwise encumber (voluntarily or involuntarily) (any such
sale, transfer, disposition, hypothecation or encumbrance being referred to as a
"transfer") any common stock of the Corporation ("Common Stock") without the
written approval of the Corporation except as expressly permitted in any
subsection of this Article III.
(a) Purchaser may transfer shares of Common Stock to an entity
owned by Purchaser (an "Affiliate"); provided, that (i) Purchaser first delivers
to the Corporation the written representation of Purchaser and such Affiliate,
expressly for the benefit of the Corporation and the other Parties, that such
transfer is not being made for purposes of circumventing the provisions of this
Article III and that such Affiliate agrees to be bound by the terms and
provisions of this Agreement and (ii) the Corporation determines, in its
reasonable discretion, that such representation is true.
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(b) Purchaser may transfer shares of Common Stock pursuant to
a registered public offering or pursuant to Rule 144 (other than Subsection (k)
thereof) promulgated under the Securities Act or any successor rule or
regulation then in place.
(c) Any purported transfer of Common Stock by a party which is
not permitted by the foregoing provisions of this Section, or which is in
violation of such provisions, shall be void and of no force and effect
whatsoever.
ARTICLE IV
MISCELLANEOUS
4.1 Equitable Relief. The Purchaser and the Corporation recognize that
the obligations imposed on them in this Agreement are special, unique, and of
extraordinary character, and that in the event of breach by any party, damages
will be an insufficient remedy; consequently, it is agreed that the Purchaser
and the Corporation may have specific performance, injunction, injunctive or
other equitable relief (in addition to damages) as a remedy for the enforcement
hereof, without providing damages.
4.2 Assignment. Except as otherwise expressly provided herein, 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 Purchaser
and the Corporation. No such assignment shall relieve the assignor from any
liability hereunder. No assignment hereof shall be effective until the Purchaser
making an assignment hereof delivers to the Corporation an executed counterpart
of this Agreement by the transferee or an agreement in writing executed by the
transferee to be bound by the terms hereof to the same extent as if such
transferee was a Purchaser hereto.
4.3 Shares Subject to this Agreement. All shares of Common Stock now
owned or hereafter acquired by the Purchaser shall be subject to the terms of
this Agreement.
4.4 Legend. Certificates evidencing shares of Common Stock owned by the
Parties shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN
REGISTERED UNDER SUCH SECURITIES ACT OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. THIS SECURITY IS SUBJECT TO RESTRICTIONS ON
TRANSFER AND OTHER TERMS AND CONDITIONS SET FORTH IN THE STOCK PURCHASE
AGREEMENT, DATED AS OF MARCH 31, 1999, AS IT MAY BE AMENDED FROM TIME
TO TIME, A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATION AT ITS
PRINCIPAL EXECUTIVE OFFICES.
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4.5 Notices. Any and all notices, designations, consents, offers,
acceptances or any other communications provided for herein shall be given in
writing by personal delivery, overnight courier or facsimile, which shall be
addressed, or sent, to the respective addresses set forth on the signature pages
hereto or such other address as designated by the Parties by like notice from
time to time.
4.6 Counterparts. This Agreement may be executed in two or more
counterparts and each counterpart shall be deemed to be an original and which
counterparts together shall constitute one and the same agreement of the Parties
hereto.
4.7 Section Headings. Headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Agreement or any provisions hereof.
4.8 Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the conflicts of laws principles
thereof.
4.9 Entire Agreement. This Agreement contains the entities
understanding of the Parties hereto respecting the subject matter hereof, and
supersedes all prior agreements, discussions and understandings.
4.10 Cumulative Rights. The rights of the Purchaser and the Corporation
under this Agreement are cumulative and in addition to all similar and other
rights of the Parties under other agreements, including the Investment
Agreement.
4.11 Severability. Should any particular provision of this Agreement be
adjudicated to be invalid or unenforceable, such provision shall be deemed
deleted and the reminder of the Agreement, nevertheless, shall remain unaffected
and fully enforceable; further, to the extent any provision herewith is deemed
unenforceable by virtue of its scope but may be made enforceable by limitation
thereof, the Parties hereto agree the same shall, nevertheless, be enforceable
to the fullest extent possible.
4.12 No Waiver. No delay on the part of any party hereunder in
exercising any right, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude other or further exercise thereof, or
the exercise of any other right, power of privilege.
4.13 Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
4.14 Attorneys' Fees. In the event of any action or suit based upon or
arising out of any actual or alleged breach by any party of any representation,
warranty or
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agreement in this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and expenses of such action or suit from the
other party, in addition to any other relief ordered by the court.
PURCHASER:
Black Diamond Capital, LLC
By: /s/ Xxxxx XxXxx
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Xxxxx XxXxx
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(Print Name)
Its: Member
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Address of Record: 0000 XxXxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000
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OPTIMAL COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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(Print Name)
Title: President
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Address of Record: 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
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ADDENDUM
THIS ADDENDUM to the Stock Purchase Agreement dated March 31, 1999 (the
"Agreement") by and between Optimal Communications, Inc. (the "Corporation") and
Black Diamond Capital, LLC ("Purchaser") adds additional stock transfer
restrictions to the Agreement as follows:
Transfer Restrictions. Unless otherwise agreed by the Corporation, except for
transfers to: a) Purchaser's Members and their immediate family members who
agree to be bound by the restrictions set forth in this Addendum (and a copy of
such agreement is furnished to the Corporation prior to the transfer); b)
trusts, limited partnerships or other estate planning entities for the benefit
of the Purchaser, Members of the Purchaser or the family members of the
Purchaser's Members, the trustees, partners or other persons having authority to
bind the trust, limited partnership or other estate planning entity of which
agree to be bound by such restrictions (and a copy of such agreement is
furnished to the Corporation prior to the transfer); or c) any charitable
organization that qualifies for receipt of charitable contributions under
Section 170(c) of the Code and such organization agrees to be bound by such
restrictions, the Purchaser or Purchaser's Members will not sell, assign,
exchange, transfer, pledge, or otherwise dispose of at any time prior to the
date which is 18 months after the initial public offering of the Corporation's
stock ("IPO") of any shares of the Corporation's stock owned by the Purchaser or
Purchaser's Members or received by the Purchaser or Purchaser's Members as part
of any stock option plan of the Corporation ("Shares"). Thereafter, up to 33.33%
of the Shares may be resold at any time, and an additional 16.67% of the Shares
may be resold by the Purchaser or Purchaser's Members beginning 24 months after
the IPO. Any remaining Shares may not be sold until the earlier to occur of 1)
the sale of all or substantially all of the assets or outstanding shares of the
Corporation, or 2) five years after the IPO. Certificates for the Shares will
bear a legend substantially in the form set forth on page 3 of the Stock
Purchase Agreement.
PURCHASER:
Black Diamond Capital, LLC
By: /s/ Xxxxx XxXxx
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Xxxxx XxXxx
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(Print Name)
Its: Member
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OPTIMAL COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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(Print Name)
Its: President
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