STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
This
Stock Purchase Agreement (“Agreement”), dated as of May 1, 2008, by and among
Fiesta Communications, Inc., a Texas Corporation (“Purchaser”), and ATSI
Communications, Inc., a Nevada corporation (“Stockholder”).
WITNESSETH:
WHEREAS,
Stockholder owns 1000 shares, par value $0.001 per share (the “Shares”), of
common stock (“Common Stock”) of Telefamilia Communications, Inc., a Texas
corporation (the “Company”), which represents 100% of the issued and outstanding
capital stock of the Company;
WHEREAS,
Stockholder desires to sell to Purchaser, and Purchaser desires to purchase
from
Stockholder, all of the Shares, subject to the terms and conditions of this
Agreement;
NOW,
THEREFORE, in consideration of the premises and mutual covenants and agreements
of the parties hereinafter contained, the parties hereby agree as
follows:
ARTICLE
I
DEFINITIONS
For
purposes of this Agreement, capitalized terms shall have the meanings specified
or referred to in Exhibit
A
attached
hereto.
ARTICLE
II
SALE
OF STOCK
2.01 Sale
of Shares.
On the
Closing Date, and subject to the terms and conditions herein stated, Stockholder
agrees to sell, assign, transfer and deliver to Purchaser, and Purchaser agrees
to purchase from Stockholder, all of the Shares. At the Closing, certificates
representing the Shares shall be duly endorsed in blank, or accompanied by
stock
powers duly executed in blank, by Stockholder.
2.02 Purchase
Price; Payment.
The
purchase price which the Purchaser shall pay for the Shares and in consideration
of the representations, warranties, covenants and agreements of the Stockholder
contained herein is $30,000 in cash due July 31, 2008 and 975,000 shares of
common .stock of Purchaser (giving effect to 500 for 1 forward split: 10,000
shares to 5 million shares) payable at the Closing.
2.03 Closing
Date.
The
Closing of the Subject Transactions (the “Closing”) shall be held on May 1, 2008
or such other date as Purchaser and Stockholder may agree to in writing. Such
date on which the Closing is to be held is herein referred to as the “Closing
Date.” The Closing shall be held at the offices of ATSI Communications, Inc.,
0000 Xxxxxx Xxxxx Xx., Xxxxx X000, Xxx Xxxxxxx, Xxxxx 00000, at 10:00 a.m.
on the Closing Date.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF STOCKHOLDER
Stockholder
represents, warrants and agrees as follows:
3.01 Ownership
of Stock.
Stockholder is the lawful owner of all of the Shares, free and clear of all
Encumbrances. Stockholder has the corporate power and authority to enter into
this Agreement and to sell, assign, transfer and convey all of the Shares
pursuant to this Agreement and all necessary corporate action has been taken
by
Stockholder to authorize the Subject Transactions. This Agreement constitutes
the legal, valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms except as such enforceability may
be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting creditors’ rights generally, general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) or the discretion of the court before which any proceeding
therefor may be brought. Assuming that Purchaser is a protected purchaser of
the
Shares subject to and within the meaning of Section 8.303 of the Texas Uniform
Commercial Code as in effect on the date hereof and that Purchaser is not aware
of any adverse claim with respect to the Shares, the delivery by Stockholder
to
Purchaser of the Shares pursuant to the provisions of this Agreement will
transfer to Purchaser all rights and interests in and to the Shares, free of
any
adverse claim.
3.02 Existence,
Good Standing and Authority.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas. The Company has the corporate power to
own
its properties and to carry on its businesses as now being conducted. The
Company is duly qualified to do business in all jurisdiction(s) in which the
character or location of the properties owned or leased by it or the nature
of
the businesses conducted by it makes such qualification necessary except where
the failure to be qualified would not have a Material Adverse Effect. The
Stockholder has caused the Company to provide to Purchaser true and complete
copies of all of the current Organizational Documents of the
Company.
3.03 Capital
Stock.
The
Company has an authorized capitalization consisting of 1000 shares of Common
Stock, of which 1000 shares are issued and outstanding. No shares of Common
Stock are held in the Company’s treasury. All such outstanding shares have been
duly authorized and validly issued and are fully paid and nonassessable. There
are no preemptive rights or any outstanding options, warrants, rights, calls,
commitments, conversion rights, rights of exchange, plans or other agreements
of
any character providing for the purchase, issuance or sale of any shares of
the
capital stock of the Company, other than as contemplated by this
Agreement.
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3.04 Investments;
Subsidiaries.
The
Company does not have any Subsidiaries. The Company does not own, directly
or
indirectly, any capital stock or other equity or ownership or proprietary
interest in any other corporation, partnership, association, trust, joint
venture or other entity.
3.05 No
Material Changes.
Since
March 31, 2008, there has not been any material adverse change in the condition
(financial or otherwise) or in the properties, assets, liabilities or business
of the Company.
3.06 Books
and Records.
The
books of account, stock record books, and other records of the Company, all
of
which have been made available to Purchaser, are complete and correct in all
material respects and have been maintained in accordance with sound business
practices, including the maintenance of an adequate system of internal controls.
At the Closing, all of such books and records will be in the possession of
the
Company.
3.07 Title
to Properties; Encumbrances; Condition of Assets.
Except
for properties and assets which have been sold or otherwise disposed of in
the
Ordinary Course of Business since the Balance Sheet Date, the Company has good,
valid and marketable title to (a) all of the properties and assets (real and
personal, tangible and intangible) owned by the Company, including, without
limitation, all of the properties and assets reflected in the Balance Sheet
as
being owned by the Company, except as indicated in the notes thereto, and (b)
all of the properties and assets purchased by the Company since the Balance
Sheet Date; in each case not subject to any Encumbrances.
3.08 No
Conflict.
(a)
Except for such conflicts, violations or defaults that would not, individually
or in the aggregate, have a Material Adverse Effect on the Company, neither
the
execution and delivery of this Agreement nor the consummation or performance
of
any of the Subject Transactions will, directly or indirectly (with or without
notice or lapse of time):
(i) contravene,
conflict with, or result in a violation of (A) any provision of the
Organizational Documents of the Company, or (B) any resolution adopted by
the Board of Directors or the stockholders of the Company;
(ii) contravene,
conflict with, or result in a violation of, or give any Governmental Body or
other Person the right to challenge any of the Subject Transactions or to
exercise any remedy or obtain any relief under, any Legal Requirement or any
Order to which the Company or any Stockholder, or any of the assets owned or
used by the Company, may be subject;
(iii) contravene,
conflict with, or result in a violation of any of the terms or requirements
of,
or give any Governmental Body the right to revoke, withdraw, suspend, cancel,
terminate, or modify, any Governmental Authorization that is held by the Company
or that otherwise relates to the business of, or any of the assets owned or
used
by, the Company;
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(iv) contravene,
conflict with, or result in a violation or Breach of any provision of, or give
any Person the right to declare a default or exercise any remedy under, or
to
accelerate the maturity or performance of, or to cancel, terminate, or modify,
any Contract to which Stockholder or the Company is a party; or
(v) result
in
the imposition or creation of any Encumbrance upon or with respect to any of
the
assets owned or used by the Company.
(b) Neither
the Company nor Stockholder is or will be required to give any notice to or
obtain any Consent from any Person in connection with the execution and delivery
of this Agreement or the consummation or performance of any of the Subject
Transactions.
3.09 Litigation.
There
is no Proceeding by any Person, or by or before (or any investigation by) any
Governmental Body, pending, or to the Knowledge of Stockholder, threatened,
against or affecting the Company or any of its properties or rights which is
reasonably likely to have a Material Adverse Effect upon the Company or the
Subject Transactions.
3.10 Taxes.
(a) All
of the Tax Returns required to be filed by the Company have been filed and
all
such Tax Returns are true and correct in all material respects; (b) all Taxes
payable by the Company for any taxable period (or a portion thereof) ending
on
or prior to the Closing have been properly reserved for in the books and records
of the Company; and (c) all Taxes required to be withheld by the Company in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder or other third party, have been duly and timely withheld,
and such withheld Taxes have been either duly and timely paid to the proper
Governmental Body or properly set aside in accounts for such purpose and will
be
duly and timely paid to the proper Governmental Body.
3.11 Intellectual
Property.
Set
forth on Exhibit B are all patents, trademarks, trade names, service marks,
copyrights, and any applications and registrations for such patents, trademarks,
trade names, service marks, and copyrights, and all rights with respect to
the
foregoing (collectively, “Intellectual Property Rights”) owned by or licensed to
the Company or used by the Company in connection with the conduct of its
business. The Company is the owner of all Intellectual Property Rights. The
Company has taken adequate measures to maintain in confidence all trade secrets
and confidential information that it owns or uses. The Company has valid and
enforceable rights to utilize the Intellectual Property Rights in its business
as they are presently operated, free and clear of any Encumbrances. To
Stockholder’s Knowledge, the Company is not infringing, or otherwise acting
adversely to, the right of any Person under or in respect to, any Intellectual
Property Right, and there is no claim by any Person pending or threatened
against the Company with respect thereto. To Stockholder’s Knowledge, there is
no Person infringing upon any Intellectual Property Rights utilized by the
Company.
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3.12 Employees
and Labor Matters.
The
Company is not a party to or bound by any collective bargaining agreement,
and
there is no labor union or other organization representing or purporting or
attempting to represent any of the employees of the Company. There has not
been
or, to the Knowledge of the Company, been threatened any strike, slowdown,
picketing, work stoppage, concerted refusal to work overtime or other similar
labor activity with respect to any employees employed in the operation of the
Business. The Company has complied with all applicable Legal Requirements
pertaining to the employment or termination of employment of employees, other
than such violations that could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on the Company.
3.13 Broker’s
or Finder’s Fees.
No
agent, broker, person or firm acting on behalf of Stockholder or the Company
is,
or will be, entitled to any commission or broker’s or finder’s fees from any of
the parties hereto, or from any Affiliate of Stockholder or the Company, in
connection with any of the Subject Transactions.
ARTICLE
IV
REPRESENTATIONS
OF PURCHASER
Purchaser
represents, warrants and agrees as follows:
4.01 Existence,
Good Standing and Authority.
Purchaser is a Corporation, duly organized, validly existing and in good
standing under the laws of the State of Texas. Purchaser has full power to
execute and deliver this Agreement and to perform its obligations hereunder
and
all necessary action has been taken by Purchaser to authorize the Subject
Transactions. This Agreement constitutes the legal, valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its terms except
as such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting creditors’ rights
generally, general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) or the
discretion of the court before which any proceeding therefor may be
brought.
4.02 No
Conflict.
Neither
the execution and delivery of this Agreement nor the consummation or performance
of any of the Subject Transactions will, directly or indirectly (with or without
notice or lapse of time) (a) contravene, conflict with, or result in a violation
of (i) any provision of the Organizational Documents of Purchaser, or (ii)
any
resolution adopted by the Board of Directors of Purchaser; (b) contravene,
conflict with, or result in a violation of, or give any Governmental Body or
other Person the right to challenge any of the Subject Transactions or to
exercise any remedy or obtain any relief under, any Legal Requirement or any
Order to which Purchaser may be subject; or (c) contravene, conflict with,
or
result in a violation or Breach of any provision of, or give any Person the
right to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any Contract
to
which Purchaser is a party. Purchaser is not and will not be required to give
any notice to or obtain any Consent from any Person in connection with the
execution and delivery of this Agreement or the consummation or performance
of
any of the Subject Transactions.
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4.03 Broker’s
or Finder’s Fees.
No
agent, broker, person or firm acting on behalf of Purchaser is, or will be,
entitled to any commission or broker’s or finder’s fees from any of the parties
hereto, or from any Affiliate of Purchaser, in connection with any of the
Subject Transactions.
4.04 Litigation.
There
is no Proceeding by any Person, or by or before (or any investigation by) any
Governmental Body, pending, or, to the Knowledge of Purchaser, threatened,
against or affecting Purchaser or any of its properties or rights that could
have a Material Adverse Effect upon Purchaser or the Subject
Transactions.
4.05 Investment
Intent.
The
Shares being acquired by Purchaser hereunder are being purchased for Purchaser’s
own account and not with the view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities
Act. Purchaser understands that the Shares have not been registered under the
Securities Act or any applicable state laws by reason of their issuance in
a
transaction exempt from the registration and prospectus delivery requirements
of
the Securities Act and such laws, and that the Shares must be held indefinitely
unless such shares are registered under the Securities Act and any applicable
state laws or are exempt from registration.
4.06 Compliance
with Laws.
Purchaser is in compliance with all Legal Requirements of any Governmental
Body.
Purchaser has not received any notice of any asserted present or past failure
of
Purchaser to comply with such Legal Requirements.
4.07 No
Implied Warranties.
It is
understood and agreed that Stockholder and the Company are not making and have
not made, any representation or warranty of any kind, express or implied, to
Purchaser except for those specifically provided in Article III of this
Agreement. Except for the matters which are expressly covered by such
representations and warranties, and upon which Purchaser intends to rely,
Purchaser is relying on its own investigation and analysis in entering into
this
Agreement and consummating the Subject Transactions. Without limiting the
generality of the foregoing, and notwithstanding any otherwise express
representations and warranties made by the Company and the Stockholder in
Article III hereof, the Company and the Stockholder make no representation
or
warranty to Purchaser regarding (a) any projections, estimates or budgets
heretofore delivered or made available to Purchaser of future revenues, expenses
or expenditures, future results of operations (or any component thereof), future
cash flows or future financial conditions (or any component thereof) of the
Company or the future business operations of the Company; or (b) any other
information or documents made available to Purchaser or its counsel, accountants
or advisors with respect to the Company except as expressly set forth in Article
III hereof.
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ARTICLE
V
MUTUAL
COVENANTS
5.01 Confidentiality;
Public Announcements.
Neither
Stockholder nor Purchaser shall disclose or use in any manner any confidential
information of each other or of the Company to which it may have access under
this Agreement, except for the purposes of consultation with its Representatives
for the purposes of performing this Agreement and consummating the Subject
Transactions. If this Agreement is terminated for any reason pursuant to
Section
8.01,
the
parties shall return all documentation and materials and copies thereof which
shall have been furnished by or on behalf of another party. Except as may be
required by applicable Legal Requirements, the parties hereto will keep this
Agreement and the Subject Transactions confidential. The parties hereto will
consult with each other regarding any press release or public announcement
pertaining to this Agreement and the Subject Transactions and shall not issue
any such press release or make any such public announcement prior to such
consultation, except as may be required by applicable Legal Requirements or
by
obligations pursuant to any listing agreement with any national securities
exchange or national automated quotation system.
5.02 Cooperation.
Subject
to the terms and conditions herein provided, each party hereto will use such
party’s Reasonable Efforts to take, or cause to be taken, such actions, to
execute and deliver, or cause to be executed and delivered, such additional
documents and instruments and to do, or cause to be done, all things necessary,
proper or advisable under the provisions of this Agreement and applicable law
to
consummate and make effective all of the Subject Transactions.
ARTICLE
VI
CONDITIONS
TO PURCHASER’S OBLIGATIONS
All
obligations of Purchaser to be discharged under this Agreement at the Closing
are subject to the fulfillment, prior to or at the Closing, of each of the
following conditions, unless waived in writing by Purchaser prior to or at
the
Closing:
6.01 Truth
of Representations and Warranties.
The
representations and warranties of Stockholder and the Company contained in
this
Agreement or in any Schedule delivered pursuant hereto shall be true and correct
in all material respects when made and as of the Closing Date.
6.02 Covenants
and Agreements.
Stockholder shall have caused all covenants, agreements, and conditions required
by this Agreement to be performed or complied with by them prior to or at the
Closing to be so performed or complied with.
6.03 No
Material Adverse Change.
Prior
to the Closing Date, there shall have been no material adverse change in the
assets, liabilities, business, condition (financial or otherwise), operations
or
prospects of the Company since the Balance Sheet Date, and there shall not
have
been any events, circumstances or developments which have resulted in a Material
Adverse Effect on the Company.
6.04 No
Litigation Threatened.
No
Proceeding shall have been instituted or, to the Knowledge of Stockholder,
threatened to restrain or prohibit any of the Subject
Transactions.
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6.05 Approvals;
Filings.
All
Consents, if any, necessary to permit the consummation of the Subject
Transactions shall have been received. All filings (other than those, if any,
which may be required to be filed, given, obtained or taken solely by Purchaser)
shall have been duly filed, given, obtained or taken on or prior to the Closing
Date and will be in full force and effect on the Closing Date.
6.06 Officer’s
Certificate.
Purchaser shall have received a certificate, dated the Closing Date, executed
by
an executive officer for and on behalf of Stockholder, certifying that the
conditions to the obligations of Purchaser set forth in Sections
6.01, 6.02, 6.03, and 6.04
of this
Agreement have been satisfied.
ARTICLE
VII
CONDITIONS
TO STOCKHOLDER’S OBLIGATIONS
All
obligations of Stockholder to be discharged under this Agreement at the Closing
are subject to the fulfillment, prior to or at the Closing, of each of the
following conditions, unless waived in writing by Stockholder prior to or at
the
Closing:
7.01 Truth
of Representations and Warranties.
The
representations and warranties of Purchaser contained in this Agreement or
in
any Schedule delivered pursuant hereto shall be true and correct in all material
respects when made and as of the Closing Date.
7.02 Covenants
and Agreements of Purchaser.
Purchaser shall have caused all covenants, agreements and conditions required
by
this Agreement to be performed or complied with by it prior to or at the Closing
to be so performed or complied with.
7.03 No
Litigation Threatened.
No
Proceeding shall have been instituted or, to the Knowledge of Purchaser,
threatened before a court or other government body or by any public authority
to
restrain or prohibit any of the Subject Transactions.
7.04 Approvals;
Filings.
All
Consents, if any, necessary to permit the consummation of the Subject
Transactions shall have been received. All filings (other than those, if any,
which may be required to be filed, given, obtained or taken solely by
Stockholder) shall have been duly filed, given, obtained or taken on or prior
to
the Closing Date and will be in full force and effect on the Closing
Date.
7.05 Officer’s
Certificate.
Stockholder shall have received a certificate, dated the Closing Date, executed
by an executive officer for and on behalf of Purchaser, certifying that the
conditions to the obligations of Stockholder set forth in
Sections 7.01, 7.02, and 7.03 of
this
Agreement have been satisfied.
ARTICLE
VIII
MISCELLANEOUS
8.01 Termination.
This
Agreement may, by notice given prior to or at the Closing, be
terminated:
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(i) by
the
mutual written agreement of Purchaser and Stockholder;
(ii) by
either
Purchaser or Stockholder if a material Breach of any provision of this Agreement
has been committed by the other party and such Breach has not been waived or
cured;
(iii) if
the
Closing shall not have occurred (other than through the failure of any party
seeking to terminate this Agreement to comply fully with its obligations under
this Agreement) as of May 1, 2008, or such later date as the parties may agree
upon in writing.
8.02 Expenses.
The
parties hereto shall pay all of their own expenses relating to the transactions
contemplated by this Agreement, including, without limitation, the fees and
expenses of its counsel and financial advisers.
8.03 Governing
Law.
The
interpretation and construction of this Agreement, the Subject Transactions
and
all matters relating hereto, shall be governed by the laws of the State of
Texas.
8.04 Enforcement;
Venue; Service of Process.
In the
event either party shall seek enforcement of any covenant, warranty or other
term or provision of this Agreement or seeks to recover damages for the breach
thereof, the party which prevails in such proceedings shall be entitled to
recover reasonable attorneys’ fees and expenses actually incurred by it in
connection therewith. The parties hereto agree that this Agreement is
performable in Bexar County, Texas and that the sole and exclusive venue for
any
proceeding involving any claim arising under or relating to this Agreement
shall
be in Bexar County, Texas.
8.05 Captions;
References.
The
Article and Section captions used herein are for reference purposes only, and
shall not in any way affect the meaning or interpretation of this Agreement.
References to a “Section” or “Subsection” when used without further attribution
shall refer to the particular sections or subsections of this
Agreement.
8.06 Notices.
Any
notice or other communications required or permitted hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed to have been
duly
given upon delivery in person, by telecopy, by overnight courier or by certified
or registered mail, return receipt requested, as follows:
|
If
to Stockholder:
|
ATSI
Communications, Inc.
|
|
|
0000
Xxxxxx Xxxxx Xx, Xxxxx X000
|
||
|
Xxx
Xxxxxxx, Xxxxx 00000
|
||
|
Attention:
Xxxxxxx Xxxxxxx
|
||
|
Facsimile:
(000) 000-0000
|
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|
If
to Purchaser:
|
Fiesta
Communications, Inc.
|
|
|
000
Xxxxx Xxxx
|
||
|
XxXxxxx,
Xxxxx 00000
|
||
|
Attention:
Xxxx Xxxxxxxx
|
||
|
Facsimile:
(000) 000-0000
|
or
at
such other address or telecopy number as shall have been furnished in writing
by
any such party, except that such notice of such change shall be effective only
upon receipt. Each such notice or other communication shall be effective when
received or, if given by mail, when delivered at the address specified in this
Section
8.06
or on
the fifth business day following the date on which such communication is posted,
whichever occurs first.
8.07 Parties
in Interest.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and its successors and permitted assigns. This Agreement may not be
transferred, assigned, pledged or hypothecated by any party hereto.
8.08 Counterparts.
This
Agreement may be executed in two or more counterparts, all of which taken
together shall constitute one instrument.
8.09 Entire
Agreement.
This
Agreement, including the other documents referred to herein which form a part
hereof or any other written agreements that the parties enter into pursuant
to
or relating to the Subject Transactions, contains the entire understanding
of
the parties hereto with respect to the subject matter contained herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter. All exhibits and
schedules referred to herein and attached hereto are incorporated herein by
reference.
8.10 Amendments.
This
Agreement may not be changed orally, but only by an agreement in writing signed
by Purchaser, the Company and Stockholder.
8.11 Severability.
In case
any provision in this Agreement shall be held invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions hereof
will not in any way be affected or impaired thereby.
8.12 Third
Party Beneficiaries.
Each
party hereto intends that this Agreement shall not benefit or create any right
or cause of action in or on behalf of any Person other than the parties hereto
and any Designee of Purchaser.
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8.13 Arbitration;
Waiver of Trial By Jury.
(a) Any
and
every dispute of any nature whatsoever that may arise between the parties
hereto, whether sounding in contract, statute, tort, fraud, misrepresentation,
discrimination or any other legal theory, including, but not limited to,
disputes relating to or involving the construction, performance or breach of
this Agreement, or any schedule, certificate or other document delivered by
any
party hereto or thereto, or any other agreement between the parties hereto,
whether entered into prior to, on, or subsequent to the date of this Agreement,
or those arising under any federal, state or local law, regulation or ordinance,
shall be determined by binding arbitration in accordance with the then current
commercial arbitration rules of the American Arbitration Association, to the
extent such rules do not conflict with the provisions of this paragraph. If
the
amount in controversy in the arbitration exceeds Two Hundred Fifty Thousand
Dollars ($250,000), exclusive of interest, attorneys’
fees and
costs, the arbitration shall be conducted by a panel of three (3) neutral
arbitrators. Otherwise, the arbitration shall be conducted by a single neutral
arbitrator. The parties hereto shall endeavor to select neutral arbitrators
by
mutual agreement. If such agreement cannot be reached within thirty (30)
calendar days after a dispute has arisen which is to be decided by arbitration,
any party or the parties jointly shall request the American Arbitration
Association to submit to each party an identical panel of fifteen (15) persons.
Alternate strikes shall be made to the panel, commencing with the party bringing
the claim, until the names of three (3) persons remain, or one (1) person if
the
case is to be heard by a single arbitrator. The parties may, however, by mutual
agreement, request the American Arbitration Association to submit additional
panels of possible arbitrators. The person(s) thus remaining shall be the
arbitrator(s) for such arbitration. If three (3) arbitrators are selected,
the
arbitrators shall elect a chairperson to preside at all meetings and hearings.
The arbitrator(s), or a majority of them, shall have the power to determine
all
matters incident to the conduct of the arbitration, including without limitation
all procedural and evidentiary matters and the scheduling of any hearing. The
award made by a majority of the arbitrators shall be final and binding upon
the
parties thereto and the subject matter. The arbitration shall be governed by
the
United States Arbitration Act, 9 U.S.C. §1-16, and judgment upon the award
rendered by the arbitrator(s) may be entered by any court having jurisdiction
thereof. The arbitrators shall have no authority to award punitive or exemplary
damages or any statutory multiple damages, and shall only have the authority
to
award compensatory damages, arbitration costs, attorneys’ fees, declaratory
relief and permanent injunctive relief, if applicable. Unless otherwise agreed
by the parties, the arbitration shall be held in San Antonio, Texas. This
Section
8.13
shall
not prevent either party from seeking a temporary restraining order or temporary
or preliminary injunctive relief from a court of competent jurisdiction in
order
to protect its rights under this Agreement. In the event a party seeks such
injunctive relief pursuant to this Agreement, such action shall not constitute
a
waiver of the provisions of this Section
8.13,
which
shall continue to govern any and every dispute between the parties, including
without limitation the right to damages, permanent injunctive relief and any
other remedy, at law or in equity.
(b) EACH
OF
THE PARTIES TO THIS AGREEMENT WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY DISPUTE
OF ANY NATURE WHATSOEVER THAT MAY ARISE BETWEEN THEM, INCLUDING, BUT NOT LIMITED
TO, THOSE DISPUTES RELATING TO OR INVOLVING IN ANY WAY THE CONSTRUCTION,
PERFORMANCE OR BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE
PARTIES, THE PROVISIONS OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION OR
ORDINANCE NOTWITHSTANDING. By execution of this Agreement, each of the parties
hereto acknowledges and agrees that it has had an opportunity to consult with
legal counsel and that he/she/it knowingly and voluntarily waives any right
to a
trial by jury of any dispute pertaining to or relating in any way to the Subject
Transactions, the provisions of any federal, state or local law, regulation
or
ordinance notwithstanding.
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Stock Purchase Agreement 4012008
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IN
WITNESS WHEREOF, Purchaser and Stockholder have executed this Agreement to
be
effective as of the day and year first above written.
|
FIESTA
COMMUNICATIONS, INC.
|
||||
|
“Purchaser”
|
||||
|
By:
|
/s/ Xxxxxx X Xxxxx
|
|||
|
May
1, 2008
|
||||
|
ATSI
COMMUNICATIONS, INC.
|
||||
|
By:
|
/s/ Xxxxxxx Xxxxxxx
|
|||
|
May
1,2008
|
||||
Telefamilia
Stock Purchase Agreement 4012008
12
EXHIBIT
A
Definitions
For
purposes of this Agreement, the following terms have the meanings specified
or
referred to in this Exhibit
A:
“Affiliate”
is
used
in this Agreement to indicate a relationship with one or more persons and when
used shall mean any corporation or organization of which such person is an
executive officer, director or partner or is directly or indirectly the
beneficial owner of ten percent (10%) or more of any class of equity securities
or financial interest therein; any trust or other estate in which such person
has a beneficial interest or as to which such person serves as trustee or in
any
similar fiduciary capacity; any relative or spouse of such person, or any
relative of such spouse (such relative being related to the person in question
within the second degree); any director or executive officer of such person;
or
any person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified.
“Agreement”
has
the
meaning set forth in the preamble.
“Balance
Sheet Date”
means
the balance sheet of the Company as of January 31, 2008.
“Breach”
means
that a “Breach” of a representation, warranty, covenant, obligation, or other
provision of this Agreement or any instrument delivered pursuant to this
Agreement will be deemed to have occurred if there is or has been (a) any
inaccuracy in or breach of, or any failure to perform or comply with, such
representation, warranty, covenant, obligation, or other provision, or (b)
any
claim (by any Person) or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant, obligation, or other
provision, and the term “Breach” means any such inaccuracy, breach, failure,
claim, occurrence, or circumstance.
“Closing”
has
the
meaning set forth in Section
2.03.
“Closing
Date”
has
the
meaning set forth in Section
2.03.
“Code”
means
the Internal Revenue Code of 1986, as amended, or any successor law, and
regulations issued by the IRS pursuant to the Internal Revenue Code or any
successor law.
“Common
Stock”
means
the common stock, par value $0.001 per share, of the Company.
“Company”
has
the
meaning set forth in the preamble.
“Consent”
means
any approval, consent, ratification, waiver, or other authorization (including,
without limitation, any Governmental Authorization).
“Contract”
means
any agreement, contract, instrument, obligation, promise, commitment or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
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Stock Purchase Agreement 4012008
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“Encumbrance”
means
any charge, claim, community property interest, condition, covenant, equitable
interest including any equitable servitude, lien, option, pledge, security
interest, right of first refusal, or restriction of any kind, including any
restriction on use, voting, transfer, receipt of income, or exercise of any
other attribute of ownership.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any successor law, and
regulations and rules issued pursuant to that Act or any successor
law.
“GAAP”
means
generally accepted United States accounting principles, applied on a basis
consistent with the basis on which the Financial Statements were
prepared.
“Governmental
Authorization”
means
any approval, consent, license, permit, waiver, or other authorization issued,
granted, given, or otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement.
“Governmental
Body”
means
any:
(a) nation,
state, county, city, town, village, district, or other jurisdiction of any
nature;
(b) federal,
state, local, municipal, foreign, or other government;
(c) governmental
or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other
tribunal);
(d) multi-national
organization or body; or
(e) body
exercising, or entitled to exercise, any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power of any
nature.
“Intellectual
Property Rights”
has
the
meaning set forth in Section 3.11.
“IRS”
shall
mean the Internal Revenue Service.
“Knowledge”
means
an individual will be deemed to have “Knowledge” of a particular fact or other
matter if:
(a) such
individual is actually aware of such fact or other matter; or
(b) a
prudent
individual could be expected to discover or otherwise become aware of such
fact
or other matter in the course of conducting a reasonably comprehensive
investigation concerning the existence of such fact or other
matter.
“Legal
Requirement”
means
any federal, state, local, municipal, foreign, international, multinational,
or
other administrative order, constitution, law, ordinance, principle of common
law, regulation, statute, or treaty.
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Stock Purchase Agreement 4012008
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“Material
Adverse Effect”
means,
with respect to any company or entity, any event, condition or change which
materially and adversely affects or may materially and adversely affect the
business, financial condition, prospects, assets or results of operations of
such company.
“Order”
means
any award, decision, injunction, judgment, order, ruling, subpoena, or verdict
entered, issued, made, or rendered by any court, administrative agency, or
other
Governmental Body having jurisdiction or by any arbitrator appointed as provided
in this Agreement.
“Ordinary
Course of Business”
means
an action taken by a Person will be deemed to have been taken in the “Ordinary
Course of Business” only if:
(a) such
action is consistent with the past practices of such Person and is taken in
the
ordinary course of the normal day-to-day operations of such Person;
(b) such
action is not required to be authorized by the board of directors of such Person
(or by any Person or group of Persons exercising similar authority);
and
(c) such
action is similar in nature and magnitude to actions customarily taken, without
any authorization by the board of directors (or by any Person or group of
Persons exercising similar authority), in the ordinary course of the normal
day-to-day operations of other Persons that are in the same line of business
as
such Person.
“Organizational
Documents”
means
(a) the articles or certificate of incorporation and the bylaws of a
corporation; (b) the partnership agreement and any statement of partnership
of a general partnership; (c) the limited partnership agreement and the
certificate of limited partnership of a limited partnership; (d) any
charter or similar document adopted or filed in connection with the creation,
formation, or organization of a Person; and (e) any amendment to any of the
foregoing.
“Person”
means
any individual, corporation (including any non-profit corporation), general
or
limited partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, or other entity or Governmental
Body.
“Preferred
Stock”
means
the preferred stock, par value $0.001 per share, of the Company.
“Proceeding”
means
any action, arbitration, audit, hearing, investigation, litigation, or suit
(whether civil, criminal, administrative, investigative, or informal, at law
or
in equity) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
“Purchaser”
has
the
meaning set forth in the preamble.
“Reasonable
Efforts”
means
the efforts that a reasonably prudent Person desirous of achieving a result
would use in similar circumstances to ensure that such result is achieved with
reasonably promptness; provided,
however,
that an
obligation to use Reasonable Efforts under this Agreement does not require
the
Person subject to that obligation to take actions that would result in a
materially adverse change in the benefits to such Person of this Agreement
and
the Subject Transactions.
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Stock Purchase Agreement 4012008
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“Representative”
means,
with respect to a particular Person, any director, officer, employee, agent,
consultant, advisor, or other representative of such Person, including legal
counsel, accountants, and financial advisors.
“Securities
Act”
means
the Securities Act of 1933, as amended, or any successor law, and regulations
and rules issued pursuant to that Act or any successor law.
“Shares”
has
the
meaning set forth in the recitals.
“Stockholder”
has
the
meaning set forth in the preamble.
“Subject
Transactions”
means
all of the transactions contemplated by this Agreement, including:
(a) the
sale
of the Shares hereunder;
(b) the
execution, delivery, and performance of this Agreement;
(c) the
performance by the parties of their respective covenants and obligations under
this Agreement; and
(d) Purchaser’s
acquisition, ownership and exercise of control over the Company and its
operations.
“Subsidiary”
means,
with respect to any Person (the “Owner”), any corporation or other Person of
which securities or other interests having the power to elect a majority of
that
corporation’s or other Person’s board of directors or similar governing body, or
otherwise having the power to direct the business and policies of that
corporation or other Person (other than securities or other interests having
such power only upon the happening of a contingency that has not occurred)
are
held by the Owner or one or more of its Subsidiaries; when used without
reference to a particular Person, “Subsidiary” means a Subsidiary of the
Company.
“Tax”
means
any tax (including, without limitation, any tax on gross income, net income,
franchise, gross receipts, royalty, capital gains, value added, sales, property,
ad valorem, transfer, license, use, profits, windfall profits, withholding
on
amounts paid to or by the Company, payroll, employment, excise, severance,
stamp, occupation, premium, gift, or estate), levy, assessment, tariff, duty
(including customs duty), deficiency, or other fee, and any related charge
or
amount (including any fine, penalty, interest, or addition to tax), imposed,
assessed, or collected by or under the authority of any Governmental Body or
payable pursuant to any tax-sharing agreement or any other Contract relating
to
the sharing or payment of any such tax, levy, assessment, tariff, duty,
deficiency, or fee.
Telefamilia
Stock Purchase Agreement 4012008
16
“Tax
Return”
means
any return (including any information return), report, statement, schedule,
notice, form, or other document or information filed with or submitted to,
or
required to be filed with or submitted to, any Governmental Body in connection
with the determination, assessment, collection, or payment of any Tax or in
connection with the administration, implementation, or enforcement of or
compliance with any Legal Requirement relating to any Tax.
Telefamilia
Stock Purchase Agreement 4012008
17
EXHIBIT
B
The
following trademark is owned by the Company:
Telefamilia
Stock Purchase Agreement 4012008
18
