CONTRIBUTION AGREEMENT
Exhibit 99. (d)
THIS
CONTRIBUTION AGREEMENT (the “Agreement”) is made as
of this 14th day of October
2009, by and among Optel Capital LLC, a Delaware limited liability company and ZG Nevada Limited
Partnership, a Nevada limited partnership (collectively, the “Contributing Stockholders”),
and Optel Acquisition Corp., a newly formed Delaware corporation (the “Company”).
RECITALS
A. The Company expects to file a Schedule 13E-3 with the Securities and Exchange Commission
announcing its intention to cause the Company to effect a “short-form” merger (the
“Merger”) with and into DIGL under Section 253 of the Delaware General Corporation Law (the
“DGCL”), with DIGL as the surviving corporation (the “Surviving Corporation”),
pursuant to which (i) the stockholders of DIGL other than the Company will receive cash in exchange
for their shares of DIGL common stock, par value $0.0001 per share (the “DIGL Common
Stock”), (ii) the Contributing Stockholders will receive shares of common stock of the
Surviving Corporation, and (iii) immediately following the Merger, the Contributing Stockholders
will own all of the common stock of the Surviving Corporation.
B. To effect the Merger, pursuant to the terms and conditions set forth herein, the
Contributing Stockholders desire to contribute to the Company, immediately prior to the Merger, all
of their respective shares of DIGL Common Stock, as of such time (the “Effective Time”).
C. Following the contribution by the Contributing Stockholders of their shares of DIGL Common
Stock pursuant to this Agreement, the Company will be the beneficial owner of approximately 91.1%
of the outstanding shares of DIGL Common Stock.
D. The Contributing Stockholders desire to evidence herein their consent to, and approval of,
the Merger.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement, the
parties hereto agree as follows:
1. Interpretation of this Agreement.
(a) Terms Defined. As used in this Agreement, the following terms when used in this
Agreement have the meanings set forth below:
“Agreement” means this Contribution Agreement and all exhibits and schedules hereto,
as amended, modified or supplemented from time to time.
“Company Common Stock” means the Company’s common stock, par value $0.0001 per share.
“Company” shall have the meaning given to it in the preamble of this Agreement.
“Contributed Shares” shall have the meaning given to it in Section 2(a) of
this Agreement.
“DGCL” shall have the meaning given to it in the recitals of this Agreement.
“DIGL” shall have the meaning given to it in the preamble of this Agreement.
“DIGL Common Stock” shall have the meaning given to it in the recitals of this
Agreement.
“Effective Time” shall have the meaning given to it in the recitals of this Agreement.
“Merger” shall have the meaning given to it in the recitals to this Agreement.
“Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political subdivision thereof.
“Securities Act” means the Securities Act of 1933, as amended.
“Shares” shall have the meaning given to it in Section 2(b) of this Agreement.
“Subsidiary” when used with respect to any Person means any other Person, whether
incorporated or unincorporated, of which (a) more than 50% of the securities or other ownership
interests or (b) securities or other interests having by their terms ordinary voting power to elect
more than 50% of the board of directors or others performing similar functions with respect to such
corporation or other organization, is directly owned or controlled by such Person or by any one or
more of its Subsidiaries.
“Surviving Corporation” shall have the meaning given to it in the recitals to this
Agreement.
(b) Interpretation. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the plural, and pronouns
stated in masculine, feminine or neuter gender shall include the masculine, feminine and the
neuter.
2. Contribution of DIGL Common Stock; Issuance of Shares; Consent to Merger.
(a) Contribution of DIGL Common Stock. At the Effective Time, the Contributing
Stockholders shall contribute, assign and transfer to the Company, and the Company shall accept,
all shares of DIGL Common Stock held by the Contributing Stockholders, as set forth opposite each
Contributing Stockholder’s name on Exhibit A hereto (the “Contributed Shares”),
free and clear of all liens, claims, encumbrances and restrictions of any kind whatsoever.
(b) Issuance of Shares. In consideration for each Contributing Stockholder’s
contribution of the Contributed Shares to the Company pursuant to Section 2(a), the Company
shall issue the shares of Company Common Stock as set forth opposite each Contributing
Stockholder’s name on Exhibit A hereto (the “Shares”), free and clear of any liens,
claims, encumbrances and restrictions of any kind whatsoever. Upon the issuance of the Shares, all
other outstanding shares of Company Common Stock will be cancelled.
(c) Consent to the Merger. Each Contributing Stockholder, as evidenced by its
signature hereto, in lieu of a special meeting of the stockholders of the Company, does hereby
consent to and approve (i) the Merger, (ii) the execution, delivery and performance by the Company
of a Certificate
of Ownership and Merger, in substantially the form attached hereto as Exhibit B, and
(iii) the other transactions contemplated herein and therein.
(d) Representations and Warranties of the Company. The Company hereby represents and
warrants to the Contributing Stockholders as follows:
(i) Organization; Power and Authority. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of State of Delaware. The Company has full
corporate power and authority to carry on the business in which it is engaged and to own and use
the properties owned and used by it. Before giving effect to the transactions contemplated herein,
the Company does not have any Subsidiaries, and does not own, directly or indirectly, any capital
stock or other equity interests in any other Person.
(ii) Authorization of Transaction; Agreement Binding. The Company has full corporate
power and authority to execute and deliver, and to perform its obligations under, this Agreement.
This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in
accordance with its terms, except as such enforcement may be limited by general equitable
principles or by applicable bankruptcy, insolvency or similar laws which affect creditors’ rights
generally.
(iii) No Conflict. The execution, delivery and performance of this Agreement by the
Company does not and will not violate, conflict with, or result in a breach of or default under
(A) the Company’s certificate of incorporation or bylaws; (B) any applicable law, order, judgment
or decree; or (C) any agreement, contract, understanding, mortgage, indenture or other obligation
to which the Company is a party or by which any of its assets or properties are bound.
(e) Representations and Warranties of the Contributing Stockholders. Each
Contributing Stockholder hereby represents and warrants to the Company as follows:
(i) Capacity. The Contributing Stockholder has full capacity to execute and deliver,
and to perform such Contributing Stockholder’s obligations under, this Agreement.
(ii) Agreement Binding. This Agreement constitutes the valid and legally binding
obligation of the Contributing Stockholder, enforceable in accordance with its terms.
(iii) Acquisition for Investment. The Contributing Stockholder is acquiring the
Shares for investment solely for such Contributing Stockholder’s account and not with a view to or
for sale in connection with any distribution thereof in violation of the federal securities laws,
applicable state securities laws or this Agreement.
(iv) Accredited Investor. The Contributing Stockholder is an “accredited investor”
within the meaning of Rule 501 promulgated under the Securities Act.
(v) Title to Contributed Shares. The Contributing Stockholder owns the Contributed
Shares set forth opposite such Contributing Stockholder’s name on Exhibit A hereto, free
and clear of any liens, claims, encumbrances and restrictions of any kind whatsoever.
3. Termination. This Agreement and the obligation of the Contributing Stockholders to
contribute the Contributed Shares will terminate automatically and immediately upon the earliest to
occur of the full discharge of the obligations herein in connection with the Merger.
4. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained in this Agreement.
5. Complete Agreement. This Agreement embodies the complete agreement and
understanding among the parties and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related to the subject
matter of this Agreement in any way.
6. Counterparts. This Agreement may be executed on separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement. Any telecopied signature shall be deemed a manually executed and delivered original.
7. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by the Contributing Stockholders, the Company, and their respective
successors and assigns and, where applicable, heirs and personal representatives.
8. Choice of Law; Jurisdiction. This Agreement shall be governed and construed in
accordance with the laws of the state of Delaware without regard to conflicts of laws principles
thereof and all questions concerning the validity and construction of this Agreement shall be
determined in accordance with the laws of such state. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN THE
STATE OF DELAWARE IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
HEREBY IRREVOCABLY AGREES, ON BEHALF OF ITSELF AND ON BEHALF OF SUCH PARTY’S SUCCESSOR’S AND
ASSIGNS, THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION SUCH PERSON MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
9. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy
which may arise under this Agreement is likely to involve complicated and difficult issues, and
therefore each such party hereby irrevocably and unconditionally waives any right such party may
have to a trial by jury in respect of any litigation directly or indirectly arising out of, under
or relating to this Agreement, or any of the transactions contemplated by this Agreement. Each
party certifies and acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver, (ii) each party understands and has considered
the implications of this waiver, (iii) each party makes this waiver voluntarily and (iv) each party
has been induced to enter into this Agreement by, among other things, the mutual waivers and
certifications expressed above.
10. Remedies. Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction
for specific performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
11. Amendments and Waivers. No provision of this Agreement may be amended or waived
without the prior written consent or agreement of the Contributing Stockholders and the Company.
12. Business Days. Whenever the terms of this Agreement call for the performance of a
specific act on a specified date, which date falls on a Saturday, Sunday or legal holiday, the date
for the performance of such act shall be postponed to the next succeeding regular business day
following such Saturday, Sunday or legal holiday.
13. No Third Party Beneficiary. Except for the parties to this Agreement and their
respective successors and assigns, nothing expressed or implied in this Agreement is intended, or
will be construed, to confer upon or give any person other than the parties hereto and their
respective successors and assigns any rights or remedies under or by reason of this Agreement.
[Signature page follows]
IN WITNESS WHEREOF, intending to be legally bound hereby, each of the undersigned has duly
executed and delivered this Contribution Agreement as of the day and year first above written.
| OPTEL ACQUISITION CORP. | ||||||
| By: | /s/ Al Zwan | |||||
| Name: | ||||||
| Title: | President | |||||
| Address: | x/x Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP 0000 Xxxxx Xxxx Xxxxx Xxxx, Xxxxxxxxxx 00000 Attn: Xxxxx X. Xxxx |
|||||
| OPTEL CAPITAL, LLC | ||||||
| By: | /s/ Al Zwan | |||||
| Name: | ||||||
| Title: | President | |||||
| Address: | x/x Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP 0000 Xxxxx Xxxx Xxxxx Xxxx, Xxxxxxxxxx 00000 Attn: Xxxxx X. Xxxx |
|||||
| ZG NEVADA LIMITED PARTNERSHIP | ||||||
| By: ZG Nevada, Inc., as General Partner | ||||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | President | |||||
| Address: | 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxx, Xxxxxx 00000 |
|||||
SIGNATURE PAGE TO
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT
EXHIBIT A
| Name | Contributed Shares | Shares | ||||||
| 221,203,773 | 232,722,523 | |||||||
ZG Nevada Limited Partnership |
11,518,750 | 0 | ||||||
Total |
232,722,523 | 232,722,523 | ||||||
EXHIBIT
B
CERTIFICATE
OF OWNERSHIP AND MERGER
