EX-10.2
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STOCK PURCHASE AGREEMENT
EXHIBIT 10.2
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated as of March 10, 2000, is by and
between Intellicall, Inc., a Delaware corporation ("Seller") and Gotthardfin
Limited, Nassau, Bahamas, a wholly-owned subsidiary of Banca del Gottardo
("Purchaser").
W I T N E S S E T H
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires
to purchase from Seller, 11,836 shares of common stock and 58,772 shares of
Series A Preferred stock, par value $0.01 per share of ILD
Telecommunications, Inc. (the "Shares"), a Delaware corporation (the
"Company");
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to
the conditions herein set forth, the parties hereto hereby agree as follows:
1. Purchase and Sale. Subject to the remainder of this Section 1, at
the Closing (as hereinafter defined), Seller agrees to sell to Purchaser, and
Purchaser agrees to purchase from Seller, the Shares. The closing of the
purchase and sale of the Shares (the "Closing") shall occur on the first
business day following the satisfaction of the condition precedent set forth
in Section 2 below (the "Closing Date"), at the offices of Seller. At the
Closing, Seller shall deliver to Purchaser original certificates representing
the Shares, together with executed stock powers relating thereto. At the
Closing, Purchaser shall deliver to Seller: (i) by wire transfer of
immediately available funds, of the sum of U.S. $15,533,760.00; and (ii) an
Instrument of Accession, in the form of Exhibit A attached hereto (the
"Instrument of Accession).
2. Condition Precedent. The parties acknowledge and agree that the
transfer of the Shares from Seller to Purchaser is subject to the terms and
provisions of that certain Fourth Amended and Restated Shareholders'
Agreement, dated as of December 22, 1999, by and among the Company and
certain of its Shareholders (the "Shareholders Agreement"). The obligations
of the parties hereto shall be subject to the waiver of the parties to the
Shareholders Agreement of Sections 2.02 and 2.03 of the Shareholders
Agreement, or the failures of such parties to exercise any of their rights
under such Sections within the time periods prescribed in such Sections. Upon
satisfaction of the above condition precedent, Seller shall give written
notice to Purchaser thereof.
3. Representations and Warranties of Purchaser. Purchaser represents
and warrants to Seller as follows: (a) this Agreement is a legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms; and (b) Purchaser has the right, power and authority to
execute and deliver this Agreement and to consummate the transactions set
forth herein. In addition, Purchaser acknowledges and agrees that, due to an
officer of Seller
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being on the Board of Directors of the Company, Seller may have knowledge of
certain material information concerning the Company which Purchaser does not
have knowledge of, and that the purchase price for the Shares may not bear
any relevance to the actual value of the Shares or the Company. Purchaser
further represents and warrants that Purchaser has done its own due diligence
on the Company and is not relying upon Seller to furnish Purchaser with any
information.
4. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as follows: (a) this Agreement is a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with
its terms; (b) Seller is the legal and beneficial owner of the Shares, and,
subject to compliance with the terms and provisions of the Shareholders
Agreement, Seller has no obligation to any person or entity to sell or vote
the Shares; (c) Seller has the right, power and authority to execute and
deliver this Agreement and to consummate the transactions set forth herein;
(d) subject to compliance with the terms and provisions of the Shareholders
Agreement, the delivery of the Shares to the Company pursuant to this
Agreement will convey to the Company legal, valid and marketable title to the
Shares, free and clear of all liens, security interests, or other
encumbrances of any character whatsoever (other than those imposed by federal
or state securities laws or by the Shareholders Agreement).
5. FURTHER AGREEMENTS.
(a) Purchaser agrees that Seller shall use (i) approximately $2.6
million of the proceeds from the sale of Shares to pay-off the
promissory note, dated December 22, 1995, with Seller as "maker"
and Purchaser as "payee"; and (ii) the remaining proceeds from such
sale for general corporate purposes (including the repayment of a
$500,000 bridge loan made by Bank of America, N. A. to Seller).
Seller acknowledges that Seller owes an additional approximately
$2 million to a group of lenders pursuant to a series of promissory
notes, dated on or about June 10, 1999, and that Seller shall offer to
such lenders the opportunity to have such indebtedness repaid, without
premium or penalty. Seller further acknowledges that Seller owes an
additional approximately $5 million to a group of lenders pursuant to a
series of promissory notes, dated on or about November 22, 1996
(including Purchaser), and that Seller shall offer to such lenders the
opportunity to have such indebtedness repaid, without premium or
penalty.
(b) The parties hereto agree that the Deposit Agreement, dated June 8,
1999, by and between the parties, is hereby terminated in its entirety
and of no further force or effect, and Purchaser hereby agrees to
promptly deliver to Seller the certificate representing the shares of
Series A Preferred Stock of the Company which is being held by
Purchaser under the Deposit Agreement.
(c) During the period commencing on the Closing Date and ending on the
one-year anniversary of the Closing Date (the "Option Period"),
Purchaser hereby grants to Seller an option (the "Option") to
repurchase all or any part of the Shares for a
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purchase price of U.S.$250 per share (subject to appropriate adjustment
for any stock split, stock dividends or the like). The Option may be
exercised by Seller by delivery of written notice to Purchaser
indicating the number of Shares to be repurchased and the date to be
repurchased (which date may be no later than thirty (30) days following
the date of such written notice). The repurchase price shall be paid in
immediately available funds, unless otherwise agreed to by Purchaser.
Purchaser agrees not to take any action which would impede or hinder
the ability of Seller to exercise the Option (including, without
limitation, selling, transferring or encumbering the Shares). The
Option shall be assignable by Seller upon written notice to Purchaser.
6. MISCELLANEOUS.
(a) This Agreement may be amended, modified or supplemented only by an
instrument in writing executed by the party against which enforcement
of the amendment, modification or supplement is sought.
(b) Except as provided in Section 5(b) above, neither this Agreement nor
any right created hereby shall be assignable by any party hereto.
(c) This Agreement and the rights and obligations of the parties hereto
shall be governed, construed and enforced in accordance with the laws
of the State of Delaware.
(d) This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and
the same instrument.
EXECUTED as of the date first set forth above.
GOTTHARDFIN LIMITED
By:__________________________________
Title:_______________________________
INTELLICALL, INC.
By:__________________________________
Title:_______________________________
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