EXHIBIT 10.21
FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (the "FIRST AMENDMENT") is
made and entered into as of May 1, 1998, by and among SATELLINK PAGING, LLC
("Satellink"), a Georgia limited liability company, and HYDE'S STAY IN TOUCH,
INC. ("Hyde's"), a Louisiana corporation, and R. XXXXXX XXXX, JR., the sole
shareholder of Hyde's ("Shareholder").
Preamble
Satellink, Hyde's and Shareholder are parties to a Stock Purchase
Agreement, dated as of April 9, 1998, pursuant to which Satellink has agreed to
purchase, and Hyde's has agreed to sell, all of the issued and outstanding
capital stock of Hyde's (the "Stock Purchase Agreement"). The consummation of
the transactions contemplated by the Stock Purchase Agreement is subject to
certain consents and approvals by the FCC. In order to enable the parties to
consummate the transactions contemplated by the Stock Purchase Agreement prior
to receipt of such FCC consents and approvals, the parties wish to amend their
understanding so that the FCC License and certain assets used by Hyde's to
broadcast paging messages shall remain under the control of the Shareholder
until such FCC consents have been obtained.
Capitalized terms used in this First Amendment but not defined herein shall
have the meanings ascribed to those terms in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants and agreements set forth herein, the parties agree as
follows:
1.1 AMENDMENT TO PREAMBLE. The third sentence of the first paragraph of
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the Preamble of the Stock Purchase Agreement is deleted in its entirety.
1.2 AMENDMENT TO PURCHASE PRICE. The second sentence of Section 1.1 of
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the Stock Purchase Agreement is amended to read as follows:
"The purchase price for the Shares purchased herein (the "PURCHASE
PRICE") shall be an amount equal to (a) the Net Equity Value determined by
reference to the Closing Financial Data, less (b) $170,069.13."
1.3 TIME AND PLACE OF CLOSING. Section 1.2(a) of the Stock Purchase
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Agreement is deleted in its entirety and the following is substituted in lieu
thereof:
"(a) The closing of the transactions contemplated hereby (the
"CLOSING") will take place at 9:00 o'clock A.M. on May 1, 1998, or at such
other time as the Parties, acting through their authorized officers, may
mutually agree.
The Closing shall be held at the offices of Xxxxxx & Bird LLP, 0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000."
1.4 PRE-CLOSING TRANSACTIONS. The following new Section 1.4 is added to
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the Stock Purchase Agreement.
"Section 1.4 Pre-Closing Transactions.
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"(a) Immediately following the execution of the First Amendment to
Stock Purchase Agreement and in all events prior to the Closing, the
Shareholder shall cause a new corporation to be formed under the laws of
the State of Louisiana, which new corporation shall have the name "9077
Broadcasting, Inc." ("NEWCO"). Following such incorporation, the
Shareholder shall cause Newco to be duly organized The Shareholder shall be
the sole shareholder of Newco, and shall not cause, permit or allow Newco
to issue any Equity Rights with respect to its capital stock without the
prior consent of Satellink. Promptly upon organization of Newco,
Shareholder shall commence the preparation and filing of all applications
and filings necessary for Newco to become qualified to transact business as
a foreign corporation in the State of Texas.
"(b) Immediately following the organization of Newco and in all
events prior to the Closing, Hyde's shall transfer, and the Shareholder
shall cause Hyde's to transfer, to Newco the assets of Hyde's listed on
SCHEDULE 1.4 hereto (the "BROADCAST ASSETS"). In connection therewith,
promptly following such transfer, Hyde's shall execute all applications and
any amendments thereto or additional applications that may be necessary to
obtain the Consent of the FCC to the transfer and assignment of the FCC
Licenses to Newco, and Shareholder agrees to cause Newco to prepare all
such applications and amendments thereto and to cooperate fully with Hyde's
to procure such Consents. The Shareholder shall cause Newco to hold and
maintain the Broadcast Assets free and clear of all Liens until such time
as the transactions contemplated by the Newco Agreement (as hereinafter
defined) shall have been consummated.
"(c) Contemporaneously with the transfer to Newco of the Broadcast
Assets and in all events prior to the Closing, the Shareholder shall enter
into, and shall cause Newco to enter into, a stock purchase agreement (the
"NEWCO AGREEMENT") pursuant to which the Shareholder shall agree to sell
and transfer to Satellink, and Satellink shall agree to purchase and
acquire from the Shareholder, all of the issued and outstanding capital
stock of Newco for the purchase price of $170,069.13 with the consummation
of the transactions contemplated by the Newco Agreement being subject to
the prior receipt from the FCC of such consents and approvals as shall be
required by applicable law, rule or regulation to the transfer of control
over the FCC Licenses to Satellink.
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"(d) Contemporaneously with the consummation of the transactions
provided for in the Stock Purchase Agreement, as hereby amended, Satellink
shall enter into, and Shareholder shall cause Newco to enter into, (i) the
Management Agreement in the form of EXHIBIT E hereto, and (ii) the Reseller
Agreement in the form of EXHIBIT F hereto.
"(e) Seller shall not cause, permit or allow Newco to elect treatment
as a "small business corporation" under Section 1361(b) of the Internal
Revenue Code.
"(f) To the extent the Purchase Price payable under the Newco
Agreement is required to be allocated for either tax or book purposes to
the Broadcast Assets, the Parties agree that such purchase price shall be
allocated among such Broadcast Assets as set forth on SCHEDULE 1.4 hereto."
1.5 DELETION OF SECTION 4.7. Section 4.7 of the Stock Purchase Agreement
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is deleted in its entirety.
1.6 AMENDMENT OF CONDITIONS PRECEDENT. Section 5.1 of the Stock Purchase
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Agreement is amended by deleting clause (n) thereof and relettering clauses (o),
(p) and (q) thereafter as clauses (n), (o) and (p), respectively.
1.7 THRESHOLD AMOUNT. Section 7.8 of the Stock Purchase Agreement is
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amended to delete "$50,000" and to insert in lieu thereof the term "Threshold
Amount."
1.8 DEFINITIONS. The following defined terms are added to Section 8.1 of
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the Stock Purchase Agreement:
"'NEWCO AGREEMENT' shall mean the Stock Purchase Agreement of even
date herewith between Satellink, Shareholder and Newco.
"'THRESHOLD AMOUNT' shall mean $50,000 less the amount of any Loss, as
defined in the Newco Agreement, that is not subject to indemnification as
provided in Article VII of the Newco Agreement by reason of Section 7.8 of
the Newco Agreement."
1.9 COMPUTATION OF EBITDA AND NET EQUITY VALUE. The definitions of
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"EBITDA" and "Net Equity Value" contained in Section 8.1 of the Stock Purchase
Agreement is deleted in its entirety and replaced with the following
definitions:
"'EBITDA'" shall mean Hyde's earnings without deduction for interest,
income taxes, depreciation, amortization, officer's insurance premiums,
officer's travel and entertainment, administrative fees and inclusion or
recognition of unrealized gains or losses on investment portfolio and
interest income.
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"'Net Equity Value'" shall equal the Gross Enterprise Value less: (i)
all liabilities of Hyde's which are required by GAAP to be reflected on
Hyde's balance sheet excluding however accounts payable and accrued
operating expenses in an amount not to exceed $70,000; and (ii) all amounts
owed to Hyde's by Shareholder.
1.10 ADDITION OF EXHIBITS. The schedule of Exhibits attached to and a
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part of the Stock Purchase Agreement is amended to list thereon the following:
EXHIBIT E Management Agreement
EXHIBIT F Reseller Agreement
The agreements that are such EXHIBITS E and F, respectively, are attached
hereto and by this reference made exhibits to the Stock Purchase Agreement, as
hereby amended. The defined term "EXHIBIT" appearing in Section 8.1 of the
Stock Purchase Agreement is amended to mean and refer to EXHIBITS A through F,
inclusive.
1.11 EFFECT OF AMENDMENT. The Stock Purchase Agreement, as amended by
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this First Amendment, is hereby ratified and affirmed by the Parties. In the
event of any conflict between any provision of this First Amendment and any
provision of the Stock Purchase Agreement, the provision of this First Amendment
shall control.
1.12 GOVERNING LAW. Notwithstanding the place where this First Amendment
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may be executed by any of the Parties, the parties expressly agree that this
First Amendment shall in all respects be governed by, and construed in
accordance with, the laws of the State of Louisiana, without regard for its
conflicts of laws option.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, Shareholder has executed this First Amendment under
seal and each of the other Parties has caused this First Amendment to be
executed on its behalf by its duly authorized officers as of the day and year
first above written.
SATELLINK PAGING, LLC
BY: SATELLINK COMMUNICATIONS,
INC., ITS MANAGER
BY: /s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
PRESIDENT
HYDE'S STAY IN TOUCH, INC.
BY: /s/ R. Xxxxxx Xxxx, Jr.
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R. XXXXXX XXXX, JR.
PRESIDENT
THE SHAREHOLDER:
/s/ R. Xxxxxx Xxxx, Jr. (SEAL)
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R. XXXXXX XXXX, JR.
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