EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (hereinafter called the "Agreement") is
executed as of this 12th day of March, 1997, between and among Xxxxx X.
Xxxxxxxxxx and Xxxxx Xxxxxx (hereinafter referred to as the "Selling
Stockholders") and IntraTel Acquisition Company, Inc., a corporation
organized and existing in accordance with the laws of the State of Delaware
(hereinafter referred to as "Purchaser").
RECITALS
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WHEREAS, Intelicom Corporation ("Intelicom") is an SEC-registered
corporation existing under the laws of the State of Delaware, having its
principal place of business located at 00000 X.X. 00 Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx, 00000;
WHEREAS, the Selling Stockholders each own approximately 473,563
shares of the outstanding common stock of Intelicom (the "Intelicom Common
Stock");
WHEREAS, Purchaser is a corporation organized and existing under the
laws of the State of Delaware, having its principal place of business
located at The Oaks, 000 Xxxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxx, 00000;
WHEREAS, the parties hereto and others have previously entered into
that certain Letter of Intent, dated January 23, 1997 (the "Letter of
Intent"), whereby, among other things, Purchaser has offered to purchase
182,847 shares of Intelicom Common Stock (the "Shares") from each of the
Selling Stockholders in exchange for a total of $1,200,000 in cash and
secured promissory notes and certain other contingent consideration as
hereinafter described; and
WHEREAS, the Selling Stockholders are willing to sell the Shares
pursuant to the provisions of this Agreement.
NOW, THEREFORE, in consideration of the above premises and of the
respective representations, warranties and agreements herein contained, the
parties hereto agree as follows:
I. The Purchase
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A. AGREEMENT TO PURCHASE. Purchaser hereby agrees to purchase, and
Selling Stockholders hereby agree to sell to Purchaser the Shares in
exchange for the following consideration.
1. Cash in the full and true sum of $100,000 (to be divided by
the Selling Stockholders equally); and
2. Two (2) promissory notes (the "Promissory Notes") in the
amount of $550,000 each (one for each Selling Stockholder)
to be secured by the following:
a. The Security Agreement between Purchaser and the
Selling Stockholders attached hereto and made a part
hereof as Exhibit A; and
b. The Pledge Agreement between Purchaser and the Selling
Stockholders attached hereto and made a part hereof as
Exhibit B.
3. Additional contingent purchase price consideration as
described in Section II.A.2 of the Letter of Intent (the "Contingent
Consideration").
The cash, Promissory Notes, Security Agreement, Pledge Agreement, the
Contingent Consideration and all documents, instruments and resolutions
authorizing same shall hereinafter be referred to collectively as the
"Purchase Consideration".
B. CLOSING. The completion of the purchase shall take place as may
be agreed between the parties, but no later than March 12, 1997 (the
"Closing Date"). The date of completion of the purchase shall be
hereinafter referred to as the "Effective Date". At Closing, Purchaser
shall cause its counsel, Xxxxx and Xxxxxxx, to deliver a legal opinion to
the Selling Stockholders in form and content acceptable to the Selling
Stockholders and their counsel.
II. Actions on the Effective Date
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A. PURCHASER'S ACTIONS AT CLOSING. On the Effective Date, Purchaser
shall deliver to the Selling Stockholders the Purchase Consideration.
B. THE SELLING STOCKHOLDERS' ACTIONS AT CLOSING. On the Effective
Date, the Selling Stockholders shall deliver to Purchaser certificates
representing the Shares, properly endorsed and assigned to Purchaser.
III. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Selling Stockholders as follows (effective both as of the date
hereof and as of Closing):
A. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Purchaser has full power and authority, corporate and
otherwise, to carry on its business in the State of Delaware.
B. CORPORATE POWERS, GOVERNMENTAL CONSENTS AND LAW. Purchaser has
the unconditional right, power and authority to execute, pursue and
complete this Agreement. No consent, approval, authorization or order of
any court or governmental agency or body or union or other body is required
by Purchaser to complete the transactions contemplated herein. Purchaser's
execution of this Agreement and the other documents comprising the Purchase
Consideration does not conflict with, or constitute a breach or default
under (i) Purchaser's articles of incorporation or bylaws, (ii) any law,
rule, regulation or governmental or court order
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to which Purchaser is subject or (iii) any contract, agreement, lending or
other financing arrangement to which Purchaser is a party or by which any
of its assets or properties is bound.
C. DUE AUTHORIZATION; VALIDITY AND BINDING EFFECT. Purchaser's
execution and delivery of this Agreement and the completion of the
transactions contemplated hereby have been duly authorized by all required
corporate action, and this Agreement, the Promissory Notes, the Security
Agreement, the Pledge Agreement and any other documents comprising the
Purchase Consideration represent the legally valid and binding obligations
of Purchaser and are enforceable against Purchaser in accordance with their
respective terms.
D. NO INSOLVENCY. Purchaser is not insolvent (as such term is
defined in 11 U.S.C. Section 101(32)), nor will the performance of its
obligations under this Agreement or any other document comprising the
Purchase Consideration render Purchaser insolvent.
E. NO RELIANCE. Purchaser has made, and has had the opportunity to
make, such investigations and inquiries in connection with its acquisition
of the Shares as it deems appropriate or desirable, and Purchaser has not,
in any event, relied upon any representation, warranty or statement of the
Selling Stockholders except as expressly provided in Section 4 of this
Agreement.
IV. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. The
Selling Stockholders, and each of them, represent and warrant to Purchaser
as follows (effective both as of the date hereof and as of Closing):
A. The Selling Stockholders are the true and lawful owners of all of
the Shares and have the capacity to enter into, and to perform the
obligations required by, this Agreement.
B. No other person has any direct or indirect interest in the Shares
and the Selling Stockholders are the sole party in interest with respect to
the Shares.
V. Survival
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A. SURVIVAL OF REPRESENTATIONS, AND WARRANTIES. All of the
representations, warranties and covenants of Purchaser and the Selling
Stockholders contained in this Agreement shall survive the Closing for a
period of three (3) years.
VI. INDEMNIFICATION. Purchaser and the Selling Stockholders each hereby
covenants and agrees to indemnify and hold harmless the other from any
loss, claim, damage, cost and expense (including reasonable attorneys'
fees) incurred by them as the result of, or in connection with, any breach
or default by the other of any of their respective representations,
warranties and covenants contained in this Agreement or in any other
document comprising the Purchase Consideration.
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VII. Miscellaneous
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A. NOTICE. Any notice, request, instruction or other document to be
given hereunder shall be in writing and, except as otherwise provided for
herein, shall be delivered personally or sent by registered or certified
mail, return receipt requested, as follows:
If to Selling Stockholders:
XXXXX X. XXXXXXXXXX
00000 X.X. 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
XXXXX XXXXXX
00000 X.X. 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to Purchaser:
INTRATEL ACQUISITION COMPANY, INC.
The Oaks
000 Xxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxx, 00000
ATTN: Xxxxxx X. Xxx XX, Chairman
or to any subsequent address as to which the other party is advised in
accordance with the foregoing.
B. BENEFIT. This Agreement shall be binding upon and shall inure to
the benefit of Selling Stockholders and Purchaser and their respective
successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than Selling
Stockholders and Purchaser and their successors and permitted assigns, any
rights or remedies under or by reason thereof. No party hereto may assign
any of its rights or obligations hereunder without the prior written
consent of the other party.
C. FEES. Except as otherwise provided herein, Selling Stockholders
and Purchasers shall pay their own costs and expenses incident to the
negotiation, preparation and performance of this Agreement, and compliance
with all agreements and conditions contained herein, including all fees,
expenses and disbursements of their respective counsel, whether or not the
transactions contemplated hereby are completed.
D. MODIFICATION. This Agreement cannot be modified, changed,
discharged or terminated except by an instrument in writing, signed by the
party against whom the enforcement of any waiver, change, discharge or
termination is sought. This Agreement contains the entire understanding
between the parties with respect to the transactions covered hereby.
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E. APPLICABLE LAW. This Agreement will be construed and governed in
accordance with the laws of the State of Delaware.
F. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
G. LEGAL REPRESENTATION. Each party acknowledges that he or it has
obtained such legal, accounting, and investment representation as such
party has deemed necessary or appropriate, and no party is relying an
representation obtained by any other party with respect to this Agreement
or the actions contemplated hereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
XXXXX X. XXXXXXXXXX
/s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx
XXXXX XXXXXX
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
INTRATEL ACQUISITION COMPANY, INC.
By: /s/ XXXXXX X. XXX XX
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Name: Xxxxxx X. Xxx XX
Title: Chairman of the Board
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