AGREEMENT
AGREEMENT dated as of September 21, 1995 by and among SA
Telecommunications, Inc., f/k/a/ SA Holdings, Inc., a Delaware corporation
(the "Company"), and Xxxxxx Xxxxxxx, Xxxx X. Xxxxxxx and Xxxxxxxx Xxxx
(individually a "Purchaser" and collectively the "Purchasers").
WHEREAS, the Company and Purchasers have entered into that certain Note,
Preferred Stock & Warrant Purchase Agreement dated as of July 31, 1995 (the
"Purchase Agreement"), pursuant to which the Company issued and the
Purchasers purchased an aggregate of $2,750,000 principal amount of the
Company's Subordinated Notes Due October 1, 1996 (the "Bridge Notes") and an
aggregate of 125,000 shares of Series B Cumulative Convertible Preferred
Stock, $.00001 par value (the "Series B Preferred Stock");
WHEREAS, the Company desires to prepay an aggregate principal amount of
$1,100,000 of the Bridge Notes in exchange for waiver of the conversion
feature of the Series B Preferred Stock and a proxy exercisable in the event
the Company, in its sole discretion, desires to seek an amendment to the
Certificate of Designations, Preferences and Rights of Series B Cumulative
Convertible Preferred Stock ("Series B Designation") deleting all provisions
relating to conversion and adjusting any provisions dependant upon conversion
rights, and Purchasers desire to accept such prepayment and grant such waiver
and proxy;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. PREPAYMENT OF BRIDGE NOTES. Pursuant to Section 6 of the Purchase
Agreement, the Company hereby delivers to Purchasers as an aggregate
prepayment of principal of $1,100,000 plus $17,813.83 accrued and unpaid
interest on principal to the date hereof on the Bridge Notes, for a total of
$1,117,813.83 by checks payable to the order of (a) Xxxxxx Xxxxxxx in the
amount of $447,125.53, (b) Xxxx X. Xxxxxxx in the amount of $447,125.53, and
(c) Xxxxxxxx Xxxx in the amount of $223,562.77, and each of Purchasers hereby
accepts such prepayment and waives all notice to which such Purchaser may be
entitled under Section 6 or any other provision of the Purchase Agreement.
2. WAIVER OF CONVERSION FEATURE.
(a) Each of the Purchasers, being all the holders of the Series B
Preferred Stock, and the Company hereby waive all provisions giving the
holder of such Series B Preferred Stock the right to convert into the
Company's Common Stock. Accordingly, each of the Purchasers hereby
expressly acknowledges and agrees that the Series B Preferred Stock will
not now, nor ever be, convertible into shares of Common Stock of the
Company, and that any transfer of such Series B Preferred Stock will not
convey conversion rights.
(b) In the event that the Company, in its sole discretion, desires
to amend the Series B Designation to delete all provisions relating to
conversion and adjust any provisions dependent upon conversion rights, in
order to effectuate the covenant set forth in Section 2(a) above, each of
the Purchasers hereby irrevocably appoints Xxxx X. Xxxx, Xx. and J. Xxxxx
Xxxxxxx, and both or either of them, as proxies, each with the power to
appoint his substitute, and hereby authorizes each of them to vote all
shares of capital stock of the Company held by such Purchasers in favor of
such an amendment at any stockholder's meeting at which such amendment
shall be presented for approval.
(c) Each of the Purchasers agrees that such Purchaser will immediately
deliver all stock certificates representing shares of Series B Preferred
Stock held by such Purchaser to the Company in order that the Company can
place a legend on the reverse side thereof indicating that the holder
thereof has agreed to the waiver of the conversion feature previously
existing with respect to such Series B Preferred Stock.
3. AMENDMENT OF PURCHASE AGREEMENT. The Purchasers and the Company
hereby agree that the Purchase Agreement is hereby amended as follows:
(a) Section 1(c) of the Purchase Agreement is hereby amended to delete
the second sentence of Section 1(c).
(b) The definition of "Share" in Section 3(a) of the Purchase
Agreement is hereby amended to delete the reference to conversion of Series
B Preferred Stock and is amended and restated as follows:
"Share" or "Shares" means shares of the Company's Common Stock, or
other securities which can be obtained or have been obtained by
exercise in whole or in part of any Warrant or are obtained upon an
exchange of Shares pursuant to the terms of a Warrant or are obtained
upon an exchange of Shares pursuant to the terms of the Company's
articles of incorporation.
(c) Section 7.1 of the Purchase Agreement is hereby amended to delete
reference to the Series B Preferred Stock and restated as follows:
7.1 RESERVATION OF SHARES. There has been reserved, and the Company
shall at all times keep reserved, free from preemptive rights, out of
its authorized Common Stock, $.0001 par value per share, a number of
shares of Common Stock, $.0001 par value per share, sufficient to
provide for the exercise of the Warrants.
(d) Sections 15.2, 15.3, 15.4, 15.5 and 15.6 of the Purchase
Agreement are hereby amended to delete all references to "Series B
Preferred Stock" and "conversion of Series B Preferred Stock."
4. COUNTERPARTS; BINDING EFFECT. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument, and all signatures need not appear on
any one counterpart. The terms of this Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective successors and
permitted assigns whether so expressed or not.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SA TELECOMMUNICATIONS, INC.
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Xxxxxx Xxxxxxx
By:
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Xxxx X. Xxxx, Xx. Xxxx X. Xxxxxxx
Chairman and Chief Executive
Officer
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Xxxxxxxx Xxxx
