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EXHIBIT 5
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement"), dated as of March 17,
1999, is between BACE Investments, LLC, a Colorado limited liability company
("BACE") and Xxxxxxx X. Xxxxxxx ("Xxxxxxx") (BACE and Slancik are collectively
"the Parties").
RECITALS
Whereas, BACE owns capital stock consisting of 500 shares of Class A
Common Stock of Optimal Communications, Inc. ("Optimal") having the rights and
power set forth in Optimal's Certificate of Incorporation (as amended from time
to time);
Whereas, Slancik has been gifted 10 shares of Optimal's Class A Common
Stock from BACE;
Whereas, BACE and Slancik have agreed to make certain provisions to
restrict the transfer of Slancik's stock and to provide for confidentiality and
buyback rights;
Now, therefore, in consideration of the covenants and agreements made
herein, Slancik and BACE agree as follows:
ARTICLE I
CONFIDENTIALITY AND NON-DISCLOSURE
1.1 Slancik acknowledges that information, observations and data
obtained by Slancik concerning the business or affairs of BACE and Optimal (the
"Confidential Information") are the property of BACE and Optimal. Slancik will
not disclose to any person or use for its own account any Confidential
Information without the written consent of BACE. 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
Slancik, (ii) with respect to which Slancik's duty of confidentiality is waived
by BACE, (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 Slancik, or (v) which is lawfully obtained by
Slancik from other sources. Slancik agrees that upon the written request of
BACE, it will deliver to BACE all memoranda, notes, plans, records, reports and
other documents containing Confidential Information, and all copies thereof,
that Slancik 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.
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ARTICLE II
BUYBACK PROVISION
2.1 Buyback Provision. BACE has the right to purchase the 10 shares of
Optimal Stock from Slancik for $1 per share within five years from the date of
this Agreement if Slancik is not employed by BACE or an affiliate of BACE. This
purchase right shall expire at the earlier to occur of a) the sale of
substantially all of the stock or assets of Optimal, b) at the end of said five
year period, or c) at the death or disability of Slancik. For purposes of this
2.1, disability means that Slancik has become disabled to an extent which
substantially impairs Slancik's ability to perform employment obligations, as
determined in good faith by BACE.
ARTICLE III
TRANSFERS
3.1 Transfers. Slancik 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 Optimal ("Common Stock") without the written
approval of BACE.
ARTICLE IV
MISCELLANEOUS
4.1 Equitable Relief. Slancik and BACE 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 Slancik and BACE 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 Slancik and
BACE. No such assignment shall relieve the assignor from any liability
hereunder. No assignment hereof shall be effective until Slancik making an
assignment hereof delivers to BACE 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 Slancik hereto.
4.3 Shares Subject to this Agreement. All shares of Common Stock now
owned or hereafter acquired by Slancik 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:
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Stock Purchase Agreement
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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 BETWEEN BACE INVESTMENTS, LLC AND XXXXXXX X. XXXXXXX, DATED
AS OF MARCH 17, 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.
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 Colorado, 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 Slancik and BACE 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.
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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 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.
SLANCIK:
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
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BACE INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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(Print Name)
Title: Member
Address of Record: 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
