EXHIBIT 4.3
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SERIES A PREFERRED STOCK PURCHASE AGREEMENT
BY AND AMONG
SATELLINK PAGING INC.
AND
THE SEVERAL PURCHASERS NAMED ON THE SIGNATURE PAGES HEREOF
Dated as of November 28, 1990
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TABLE OF CONTENTS
Page
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SECTION 1. THE SERIES A SHARES....................................... 1
1.1 Issuance, Sale, and Delivery of the Series A Shares....... 1
1.2 Closing................................................... 1
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............. 2
2.1 Organization, Standing, and Qualification................. 2
2.2 Subsidiaries and other Equity Interests................... 2
2.3 Authorization of Agreements, Etc.......................... 2
2.4 Compliance with other Instruments......................... 3
2.5 Authorized Capital Stock.................................. 3
2.6 Litigation; Compliance with Law........................... 4
2.7 Title to Properties....................................... 4
2.8 Leasehold Interests....................................... 4
2.9 Loans and Advances........................................ 5
2.10 Governmental Approvals.................................... 5
2.11 Financial Statements...................................... 5
2.12 Disclosure................................................ 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.......... 6
3.1 Investment Representations and Warranties................. 6
3.2 Legends................................................... 7
SECTION 4. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS........... 8
4.1 Representations and Warranties to be True and Correct..... 8
4.2 Performance............................................... 8
4.3 Consents and Waivers...................................... 8
4.4 Supporting Documents...................................... 9
4.5 Compliance Certificate.................................... 9
4.6 All Proceedings to be Satisfactory........................ 9
SECTION 5. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY.............. 9
5.1 Representations and Warranties to be True and
Correct................................................... 9
5.2 All Proceedings to be Satisfactory........................ 9
SECTION 6. RESERVATION OF CONVERSION SHARES.......................... 00
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XXXXXXX 0. MISCELLANEOUS............................................. 10
7.1 Expenses.................................................. 10
7.2 Survival of Agreements.................................... 10
7.3 Finder's Fees............................................. 10
7.4 Parties in Interest....................................... 11
7.5 Notices................................................... 11
7.6 Governing Law............................................. 12
7.7 Entire Agreement.......................................... 12
7.8 Counterparts.............................................. 12
7.9 Amendments and Waivers.................................... 12
7.10 Severability ............................................. 12
7.11 Titles and Subtitles...................................... 12
TABLE OF SCHEDULES
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SCHEDULE I Schedule of Purchasers
SCHEDULE II Investor Certification
TABLE OF EXHIBITS
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EXHIBIT A Articles of Amendment
TABLE OF DEFINED TERMS
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TERM DEFINED IN SECTION
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Agreement Preamble
Class A Common Stock Recitals
Class B Common Stock 2.5
closing 1.2
Closing Date 1.2
Common Stock 2.5
Company Preamble
Conversion Shares 2.3
Disclosure Letter 2-first paragraph
Financial Statements 2.14
Preferred Stock 2.5
Purchased Securities 3.1
Purchasers Preamble
Securities Act 3.11
Series A Shares Recitals
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SERIES A PREFERRED STOCK PURCHASE AGREEMENT
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THIS AGREEMENT (the "Agreement") is entered into as of November 28, 1990 by
and among SATELLINK PAGING INC., a Georgia corporation (the "Company") and the
several purchasers named on the signature pages hereof (individually a
"Purchaser" and collectively the "Purchasers").
W I T N E S E T H
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WHEREAS, the Company wishes to issue and sell to the Purchasers up to an
aggregate of 7,500 shares of its preferred stock, $.01 par value, designated as
"Series A Convertible Preferred Stock" (the "Series A Shares") which are
convertible into shares of Class A common stock, $.01 par value (the "Class A
Common Stock") of the Company; and
WHEREAS, the Purchasers, severally and not jointly, wish to purchase the
Series A Shares on the terms and subject to the conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties hereby agree as follows:
SECTION 1.
THE SERIES A SHARES
1.1 Issuance, Sale, and Delivery of the Series A Shares. The Company has
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authorized the sale and issuance of the Series A Shares to the Purchasers in
accordance with the terms of this Agreement. The Company agrees to issue and
sell to each Purchaser, and each Purchaser hereby agrees to purchase from the
Company, the number of Series A Shares set forth opposite the name of such
Purchaser under the heading "Number of Series A Shares Purchased" on Schedule I,
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at a price of $100.00 per Series A Share.
1.2 Closing. The closing of the purchase and sale of the Series A Shares
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shall take place at the offices of Powell, Goldstein, Xxxxxx & Xxxxxx, Xxxxx
0000, 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx, 00000 at 10:00 a.m., local
time, on November 30, 1990, or at such other location, date, and time as may be
fixed by mutual agreement between the Purchasers and the Company (such closing
being the "Closing" and the date the Closing actually occurs being the "Closing
Date"). At the Closing, the Company shall issue and deliver to each Purchaser a
certificate evidencing the number of Series A Shares set forth adjacent to such
Purchaser's name on Schedule I under the caption "Number of Shares Purchased" in
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definitive form, registered in
the name of such Purchaser, against delivery by each Purchaser of the purchase
consideration set forth adjacent to such Purchaser's name on Schedule I under
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the caption "Purchase Consideration," by certified or official bank check made
payable to the order of the Company.
SECTION 2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Purchaser that, except
as otherwise set forth in the letter dated November 21, 1990, as such letter may
be amended, supplemented or restated prior to the date of this Agreement (such
letter, as amended, supplemented or restated hereinafter referred to as the
"Disclosure Letter"), a copy of which has been delivered by the Company to each
of the Purchasers:
2.1 organization, Standing, and Qualification. The Company is a corporation
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duly organized, validly existing, and in good standing under the laws of the
State of Georgia and is duly qualified to transact business as a foreign
corporation and is in good standing in each state in which the nature of the
business transacted by it or the character of the properties owned or leased by
it requires such qualification. The Company has the requisite corporate power
and authority to own, lease, and operate its properties and assets, and to carry
on its business as presently conducted and as proposed to be conducted.
2.2 Subsidiaries and other Equity Interests. The Company does not (i) own
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of record or beneficially, directly, or indirectly, (A) any shares of capital
stock or securities convertible into capital stock of any corporation, or (B)
any participating interest in any partnership, joint venture, or other non-
corporate business enterprise or (ii) control, directly or indirectly, any other
entity.
2.3 Authorization of Agreements, Etc. All corporate action on the part of
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the Company, its officers, directors, and stockholders necessary for the sale
and issuance of the Series A Shares, the issuance of the Class A Common Stock
issuable upon conversion of the Series A Shares (the "Conversion Shares"), and
the execution, delivery, and performance by the Company of this Agreement has
been duly and validly taken. This Agreement is the valid and binding obligation
of the Company enforceable against the Company in accordance with its terms
except as enforcement may limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other laws of general application relating to or
affecting enforcement of creditors' rights and to the exercise of
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judicial discretion in accordance with general equitable principles.
2.4 Compliance with other Instruments. The execution and delivery by the
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Company of this Agreement and the other documents and instruments contemplated
hereby, the performance by the Company of its obligations hereunder and
thereunder, the issuance, sale, and delivery of the Series A Shares and the
Conversion Shares will not result in any such violation, conflict with, result
in a breach of, or constitute (with due notice or lapse of time or both) a
default under any such provision, require any consent or waiver under any such
provision, or result in the creation or imposition of any lien, charge,
restriction, claim, or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
2.5 Authorized Capital Stock The authorized capital stock of the Company
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will, immediately prior to the Closing, consist of (i) 50,000 shares of Class A
Common Stock, of which 27,970.54 shares will be validly issued and outstanding,
fully paid and nonassessable, (ii) 20,000 shares of Class B common stock, $.01
par value ("Class B Common Stock"), of which 2,821.32 shares will be validly
issued and outstanding, fully paid and nonassessable (the Class A Common Stock
and the Class B Common Stock hereinafter sometimes referred to as the "Common
Stock"), and (iii) 30,000 shares of preferred stock, $.01 par value ("Preferred
Stock") (including 7,500 shares of Preferred Stock designated as Series A
Shares), none of which will be issued and outstanding. The Series A Shares have
been duly and validly reserved for issuance upon the terms and conditions of the
Agreement and, when so issued, will be duly authorized, validly issued, fully
paid, and nonassessable, and will be free of any liens or encumbrances created,
or imposed, by operation of law or otherwise, upon such shares, by the Company
except for certain restrictions on transfer under state and/or federal
securities laws as set forth herein or otherwise required by such laws at the
time a transfer is proposed. The Conversion Shares have been duly and validly
reserved for issuance upon conversion of the Series A Shares and, when so
issued, will be duly authorized, validly issued, fully paid, and nonassessable,
and will be free of any liens or encumbrances created, or imposed, by operation
of law or otherwise, upon such shares, by the Company except for certain
restrictions on transfer under state and/or federal securities laws as set forth
herein or otherwise required by such laws at the time a transfer is proposed.
The designations, powers, preferences, rights, qualifications, and limitations
of the Series A Shares are as set forth in the Company's Articles of Amendment,
in substantially the form of Exhibit A hereto. There are no outstanding rights,
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plans, options, warrants, conversion rights, or agreements for the purchase or
acquisition from the
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Company of any shares of the capital stock of the Company. Neither the issuance,
sale, or delivery of the Series A Shares nor the issuance or delivery of the
Conversion Shares is subject to any preemptive right of stockholders of the
Company or to any right of first refusal or other right in favor of any person
which has not been waived.
2.6 Litigation; Compliance with Law. There is no (i) action, suit, claim,
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proceeding, or investigation pending or to the best of the Company's knowledge,
threatened against or affecting the Company, at law or in equity, by or before
any Federal, state, municipal, or other governmental department, commission,
board, bureau, agency, or instrumentality, domestic or foreign, (ii) arbitration
proceeding relating to the Company pending under collective bargaining
agreements or otherwise, or (iii) governmental inquiry pending or, to the best
of the Company's knowledge, threatened against or affecting the Company
(including without limitation any inquiry as to the qualification of the Company
to hold or receive any license or permit), and there is no basis known to the
Company for any of the foregoing. The Company is not subject to any order, writ,
injunction, or decree known to or served upon the Company of any court or of any
Federal, state, municipal, or other governmental department, commission, board,
bureau, agency, or instrumentality, domestic or foreign. The Company is, to the
best of its knowledge, in material compliance with all laws, rules, regulations,
and orders applicable to the Company's business. There is no existing law, rule,
regulation, or order nor is the Company aware of any proposed law, rule,
regulation, or order, whether Federal or state, which would prohibit or restrict
the Company from, or otherwise materially adversely affect the Company in,
conducting its business in any jurisdiction in which it is now conducting
business or in which it proposes to conduct business.
2.7 Title to Properties. The Company has good and marketable title to all
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the tangible properties and assets owned by it, free and clear of all mortgages,
pledges, security interests, liens, charges, claims, restrictions, and other
encumbrances, except liens for current taxes not yet due and payable and minor
imperfections of title, if any, not material in nature or amount and not
materially detracting from the value or impairing the use of the property
subject thereto or impairing the operations or proposed operations of the
Company. The Company owns or leases all tangible properties and assets necessary
to the operation of its business as now conducted.
2.8 Leasehold Interests. Each lease or agreement to which the Company is a
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party under which it is a lessee of any property, real or personal, is a valid
and subsisting agreement without any default of the Company thereunder and, to
the best of
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the Company's knowledge, without any default thereunder of any other party
thereto. No event has occurred and is continuing which, with due notice or lapse
of time or both, would constitute a default or event of default by the Company
under any such lease or agreement or, to the best of the Company's knowledge, by
any other party thereto. The Company's possession of such property has not been
disturbed and, to the best of the Company's knowledge, no claim has been
asserted against the Company adverse to its rights in such leasehold interests.
2.9 Loans and Advances. Except as reflected in the Financial Statements
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(as hereinafter defined), the Company does not have any outstanding loans or
advances to any person and is not obligated to make any such loans or advances,
except for advances to employees of the Company in respect of reimbursable
business expenses anticipated to be incurred by them in connection with
performance of services for the Company.
2.10 Governmental Approvals. Subject to the accuracy of the representations
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and warranties of the Purchasers set forth in Section 3 hereof, no registration,
qualification, or filing with, or consent or approval of or other action by, any
Federal, state, or other governmental agency or instrumentality is or will be
necessary for the valid execution, delivery, and performance by the Company of
this Agreement, the offer, issuance, sale, and delivery of the Series A Shares,
the issuance and delivery of the Conversion Shares, or the consummation of any
other transaction contemplated hereby, other than filings pursuant to state
securities laws (all of which filings have been made or will be made within the
applicable time frame for such filings) in connection with the offer and sale of
the Series A Shares, and the filing of a notice under Regulation D under the
Securities Act of 1933, as amended (the "Securities Act").
2.11 Financial Statements. The Company's financial statements (consisting
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of an unaudited balance sheet and unaudited statements of operations,
stockholders' deficiency, and cash flows) for the years ended December 31, 1989
and 1988 and the nine months ended September 30, 1990 (together the "Financial
Statements") have been furnished to Purchasers. The Financial Statements are
true, correct, and complete in all material respects and have been prepared in
accordance with generally accepted accounting principles consistently applied,
are in accordance with the books and records of the Company, and present fairly
the financial position of the Company as of the dates, and for the periods
indicated, with the unaudited financial statements being subject to normal year-
end audit adjustments.
2.12 Disclosure. Neither this Agreement nor the Disclosure Letter contains
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any untrue statement of a material fact or omits
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a material fact necessary to make the statements contained herein or therein not
misleading. None of the statements, documents, certificates, or other items
prepared or supplied by the Company with respect to the transactions
contemplated hereby contains an untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein not misleading.
There is no material fact which the Company has not disclosed to the Purchasers
and of which the Company is aware which materially and adversely affects or
could materially and adversely affect the business, prospects, financial
condition, operations, property, or affairs of the Company.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
3.1 Investment Regulations and Warranties. Each Purchaser acknowledges that
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the Series A Shares and the Conversion Shares (the "Purchased Securities") have
not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and are being offered and sold pursuant to an exemption from
registration contained in the Securities Act based in part upon the
representations of the Purchasers contained herein. Each Purchaser represents
and warrants to the Company, severally and not jointly, and only as to himself
that:
(a) The Purchased Securities are being acquired for Purchaser's own
account, for investment and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act or the securities laws of any other state applicable to
Purchaser.
(b) During the negotiation of the transactions contemplated hereby,
Purchaser and its representatives have been afforded full and free access to
corporate books, records, contracts, documents, and other information concerning
the Company and to offices and facilities of the Company, have been afforded an
opportunity to ask such questions of the Company's officers, employees, agents,
accountants, and representatives concerning the Company's business, operations,
financial condition, assets, liabilities, and other relevant matters as they
have deemed necessary or desirable, and have been given all such information as
has been requested, in order to evaluate the merits and risks of the prospective
investments contemplated herein.
(c) Purchaser and Purchaser's representatives have been solely
responsible for Purchaser's own "due diligence" investigation of the Company and
the Company's management and
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business, for Purchaser's own analysis of the merits and risks of this
investment, and for Purchaser's own analysis of the fairness and desirability of
the terms of the investment. In taking any action or performing any role
relative to the arranging of the proposed investment, Purchaser has acted solely
in Purchaser's own interest and not as an agent of the Company. Purchaser has
such knowledge and experience in financial and business matters that Purchaser
is capable of evaluating the merits and risks of the purchase of the Purchased
Securities pursuant to the terms of this Agreement and of protecting Purchaser's
interests in connection therewith.
(d) Purchaser is able to bear the economic risk of the purchase of the
Purchased Securities pursuant to the terms of this Agreement, including a
complete loss of Purchaser's investment in the Purchased Securities.
(e) Purchaser acknowledges that (i) the Purchased Securities have not
been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act,
(ii) the Purchased Securities must be held indefinitely unless a subsequent
disposition thereof is registered under the Securities Act or is exempt from
such registration, (iii) the Purchased Securities will bear legends to such
effect, (iv) the Company will make a notation on its transfer books to such
effect, and (v) the Company is under no obligation to register any of the
Purchased Securities under the Securities Act or any state securities laws.
(f) Purchaser has furnished the Company with an Investor Certification
in substantially the form of Schedule II hereto and the information set forth
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thereon with respect to Purchaser's organization and its principal office or its
principal residence, as the case may be, and Purchaser's status as an accredited
investor is true and correct.
(g) Purchaser has the full right, power, authority, and capacity to
enter into and perform Purchaser's obligations under this Agreement, and this
Agreement constitutes a valid and binding obligation of Purchaser enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other laws of general application
relating to or affecting enforcement of creditors' rights and rules or laws
concerning equitable remedies.
(h) Purchaser knows of no public solicitations or advertisements in
connection with the offer and sale of the Purchased Securities.
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3.2 Legends. Purchaser acknowledges that each certificate representing
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the Purchased Securities may be endorsed with the following legend and Purchaser
shall not make any transfer of the Purchased Securities without first complying
with the restrictions on transfer described in such legends:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION UNDER SUCH ACT OR SUCH APPLICABLE STATE SECURITIES LAWS
COVERING SUCH SECURITIES OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES, REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH APPLICABLE STATE SECURITIES LAWS.
Purchaser agrees that the Company may also endorse any other legends required by
applicable state securities laws.
The Company need not register a transfer of the Purchased Securities, and may
also instruct its transfer agent not to register the transfer of the Purchased
Securities, unless the conditions specified in the foregoing legends are
satisfied.
SECTION 4.
CONDITIONS TO THE OBLIGATIONS
OF THE PURCHASERS
The obligation of each Purchaser to purchase the Series A Shares being
purchased by it on the Closing Date is, at its option, subject to the
satisfaction or waiver on or before the Closing Date of the following
conditions:
4.1 Representations and Warranties to be True and Correct. The
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representations and warranties contained in Section 2 hereof shall be true,
complete, and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such date.
4.2 Performance. The Company shall have performed and complied with all
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covenants and agreements contained herein required to be performed or complied
with by it prior to or at the Closing Date.
4.3 Consents and Waivers. The Company shall have obtained any and all
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consents, permits, and waivers and made all filings
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necessary or appropriate for the consummation of the transactions contemplated
hereby.
4.4 Supporting Documents. The Purchasers shall have received copies of
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such supporting documents and other information with respect to the operations
and affairs of the Company as the Purchasers reasonably may request in writing.
4.5 Compliance Certificate. If required by the Purchasers or their counsel
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in writing, on the Closing Date, the Company shall have delivered to Purchasers
a certificate, executed by the President of the Company, dated the Closing Date,
certifying to the fulfillment of the conditions specified in Sections 4.1, 4.2
and 4.3 hereof.
4.6 All Proceedings to be Satisfactory. All corporate and other
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proceedings to be taken by the Company in connection with the transactions
contemplated hereby and all documents relating to such transactions shall be
satisfactory in form and substance to the Purchasers, and the Purchasers have
received all such counterpart originals or certified or other copies of such
documents as they reasonably may request.
SECTION 5.
CONDITIONS THE OBLIGATIONS
OF THE COMPANY
The obligation of the Company to issue and sell the Series A Shares to the
Purchasers on the Closing Date is, at its option, subject to the satisfaction or
waiver, on or before the Closing Date, of the following conditions:
5.1 Representations and Warranties to be True and Correct. All
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representations and warranties of the Purchasers, and each of them, contained in
Section 3 hereof shall be true and correct on the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date.
5.2 All Proceedings to be Satisfactory. All corporate and other
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proceedings to be taken by the Purchasers in connection with the transactions
contemplated hereby, and all documents incidental thereto, shall be satisfactory
in form and substance to the Company.
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SECTION 6.
RESERVATION OF CONVERSION SHARES
The Company covenants and agrees with each of the Purchasers that, unless
waived in accordance with Section 7.9 hereof, so long as any of the Series A
Shares or Conversion Shares is outstanding the Company shall at all times
reserve and keep available out of its authorized but unissued shares of Class A
Common Stock, for the purpose of effecting the conversion of the Series A Shares
and otherwise complying with the terms of this Agreement. If at any time the
number of authorized but unissued shares of Class A Common Stock shall not be
sufficient to effect the conversion of the Series A Shares or otherwise fail to
comply with the terms of this Agreement, the Company will forthwith take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes.
SECTION 7.
MISCELLANEOUS
7.1 Expenses. Each party hereto will pay its own expenses in connection
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with the transactions contemplated hereby, whether or not such transactions
shall be consummated.
7.2 Survival of Agreements. All covenants, agreements, representations,
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and warranties made herein or in any certificate or instrument delivered to the
Purchasers pursuant to or in connection with this Agreement shall survive the
execution and delivery of this Agreement, and the Closing of the transactions
contemplated hereby.
7.3 Finder's Fees.
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(a) The Company (i) represents and warrants that it has retained no
finder or broker, in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold Purchasers harmless of
and from any liability for any commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which the
Company, or any of its employees or representatives, is responsible.
(b) Each Purchaser (i) represents and warrants that it has retained
no finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby
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agrees to indemnify and hold the Company harmless of and from any liability for
any commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which Purchaser, or any of Purchaser's
employees or representatives, is responsible.
7.4 Parties in Interest. All representations, covenants, and agreements
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contained in this Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. Without limiting the generality of the foregoing, all representations,
covenants, and agreements benefiting the Purchasers shall inure to the benefit
of any and all subsequent holders from time to time of the Series A Shares or
Conversion Shares.
7.5 Notices. Every notice or other communication required or contemplated
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by this Agreement by any party shall be delivered either by (a) personal
delivery, (b) postage prepaid return receipt requested certified mail (airmail
if available), or the equivalent of certified mail under the laws of the country
where mailed, (c) facsimile transmission or (d) "tested" telex (a telex for
which the proper answer back has been received) addressed to the party for whom
intended as follows:
If to a Purchaser, at the address of such Purchaser set forth in
Schedule I hereof.
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If to the Company, at Satellink Paging Inc., 00 Xxxxxxxxx Xxxxxx Xxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx, Attn: Xxxx X. Xxxxxxx, President, Telecopier:
(000) 000-0000; with a copy (which shall not constitute notice) to: Xxxxxx X.
Xxxxxx, Esq., Powell, Goldstein, Xxxxxx & Xxxxxx, 000 Xxxxxxxxx Xxxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx, 00000, Telecopier: (000) 000-0000.
or at such other address as the intended recipient previously shall have
designated by written notice to the other parties. Notice by certified mail
shall be effective on the date it is officially recorded as delivered to the
intended recipient by return receipt or equivalent. All notices and other
communications required or contemplated by this Agreement delivered in person or
sent by facsimile transmission or "tested" telex shall be deemed to have been
delivered to and received by the addressee and shall be effective on the date of
personal delivery or on the date sent, respectively. Notice not given in writing
shall be effective only if acknowledged in writing by a duly authorized
representative of the party to whom it was given.
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7.6 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia.
7.7 Entire Agreement. This Agreement, including the Schedules and
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Exhibits hereto, and the other documents delivered pursuant hereto constitute
the full and entire agreement of the parties with respect to the subject matter
hereof and thereof. No representations or statements of any kind made be any
representative of either party which are not stated herein shall be binding. No
course of dealing or usage of trade or course of performance shall be relevant
to explain or supplement any term expressed in this Agreement.
7.8 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.9 Amendments and Waivers. Neither this Agreement nor any provision
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hereof may be changed, waived, discharged, or terminated orally, but only by a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
7.10 Severability. If any provision of this Agreement shall be declared
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void or unenforceable by any judicial or administrative authority, to the extent
possible, it shall be construed in such manner as to be valid, legal, and
enforceable but so as to most nearly retain the intent of the parties and, if
such construction is not possible, such provision shall be severed from this
Agreement, and in either case, the validity and enforceability of any other
provision and of the entire Agreement shall not be affected thereby.
7.11 Titles and Subtitles. The title and subtitles used in this Agreement
---------------------
are for convenience only and are not to be considered in construing or
interpreting any term or provision of this Agreement.
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IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
SATELLINK PAGING INC.
(Corporate Seal] By:
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Xxxx X. Xxxxxxx, President
Attest:
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Secretary
PURCHASERS:
------------------------------------------
Xxxx X. Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxx
------------------------------------------
E. Xxxx Xxxxxx, Xx.
------------------------------------------
Xxxxxx X. Xxxx, III
------------------------------------------
Xxxxxx X. Xxxx, XX
------------------------------------------
Xxx Xxxxxxxxx, Xx.
------------------------------------------
Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxx Xxxxx
------------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxx X Xxxxxx
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Xxxxx X. Xxxxxx
-13-
SCHEDULE I
TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
dated as of November 11, 1990
Schedule of Purchasers
----------------------
Purchaser Name Number of Shares Purchase
and Address Purchased Consideration
-------------- ---------------- -------------
Xxxx X. Xxxxxxx $
Satellink Paging Inc. ---------------- -------------
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx $
Satellink Paging Inc. ---------------- -------------
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx $
Port Xxxxxx Bank ---------------- -------------
P. O. Box 608
000 Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
E. Xxxx Xxxxxx, Xx. $
337 Xxxxxx Cresent ---------------- -------------
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxx, III $
Port Xxxxxx Bank ---------------- -------------
P. O. Box 608
000 Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Schedule I to Series A Preferred Stock Purchase Agreement
I-1
Purchaser Name Number of Shares Purchase
and Address Purchased Consideration
--------------- ---------------- -------------
Xxxxxx X. Xxxx, XX $
Port Xxxxxx Bank ---------------- -------------
P. O. Box 608
000 Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Xxx Xxxxxxxxx, Xx. $
Peoples Bank of Biloxi ---------------- -------------
Lameuse & Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx $
Port Xxxxxx Bank ---------------- -------------
P. O. Box 608
000 Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Xxxxxx Xxxxx $
Satellink Paging Inc. ---------------- -------------
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxxxxx Xxxxxxxxx $
Satellink Paging Inc. ---------------- -------------
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx $100,000
0000 Xxxxxx Xxxxx Xxxx ---------------- -------------
Xxxxxx, XX 00000
Totals $
---------------- -------------
$
================ =============
Schedule I to Series A Preferred Stock Purchase Agreement
I-2
SCHEDULE II
TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
dated as of November 28, 1990
Investor Certification
----------------------
ALL INFORMATION FURNISHED IS FOR THE SOLE USE OF SATELLINK PAGING INC. (THE
"COMPANY") AND ITS COUNSEL AND WILL BE HELD IN CONFIDENCE BY THE COMPANY AND ITS
COUNSEL, EXCEPT THAT THIS QUESTIONNAIRE MAY BE FURNISHED TO SUCH PARTIES AS THE
COMPANY AND COUNSEL DEEM NECESSARY TO ESTABLISH COMPLIANCE WITH FEDERAL OR STATE
SECURITIES LAWS OR TO THE EXTENT REQUIRED BY LAW. CAPITALIZED TERMS NOT DEFINED
HEREIN HAVE THE MEANINGS ASCRIBED IN THE SERIES A PREFERRED STOCK PURCHASE
AGREEMENT AND SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT DATED AS OF NOVEMBER
28, 1990.
The Series A Shares being offered by the Company are not registered under the
Securities Act of 1933, as amended (the "Act"), in reliance upon certain
exemptions from registration provided by the Act. One of the exemptions being
relied upon is provided by Regulation D of the Securities and Exchange
commission. Regulation D requires, among other things, that prior to making a
sale of any Series A Shares, the Company must have reasonable grounds to
believe, and shall believe after reasonable inquiry, that the offeree is an
"accredited investor" (as defined). The Company intends to limit the purchase of
the Series A Shares to accredited investors. In order to obtain the facts needed
to determine whether the Company may accept a purchaser's investment, it is
necessary for the purchaser (the "Purchaser") to complete this Investor
Certification. The form should be signed, dated, and forwarded to the Company.
* * * * * * * *
Schedule II to Series A Preferred Stock Purchase Agreement
II-1
Answer all questions. Write "INIA" if not applicable.
-----------------------------------------------------
* * * * * * * *
A. PLEASE PROVIDE THE FOLLOWING INFORMATION.
1. (a) Name of Purchaser: Xxxxx X. Xxxxxx
-----------------------------------------------------------------
(b) If Purchaser is a corporation, partnership, trust or other entity,
state the name of individual(s) making the investment decision on behalf of the
entity:
-----------------------------------------------------------------
-----------------------------------------------------------------
2. (a) Purchaser's Address:
0000 Xxxxxx Xxxxx Xxxx.
-----------------------------------------------------------------
Xxxxxx, XX 00000
-----------------------------------------------------------------
3. Telephone/Number:
Office: (000) 000-0000 Home: 322-7482
-----------------------------------------------------------------
4. Taxpayer Identification Number of Purchaser:
SS# ###-##-####
-----------------------------------------------------------------
5. Date of organization or incorporation:
------------------------------
B. THE FOLLOWING INFORMATION IS TO BE PROVIDED SO THAT THE COMPANY CAN
DETERMINE IF THE PURCHASER IS AN ACCREDITED INVESTOR.
Please indicate, by initialing, one or more of the following categories
which are applicable to you. If no category is applicable, please initial
Item 18.
Under Regulation D, an "accredited investor" is defined as any person who
comes within any of the following categories, or who the issuer reasonably
believes comes within any of the following
Schedule II to Series A Preferred Stock Purchase Agreement
II-2
categories, at the time of the sale of the securities to that person:
1. A bank as defined in Section 3 (a) (2) of the Act whether acting
----- in its individual or fiduciary capacity.
2. A savings and loan association or other institution as defined
----- in section 3 (a) (5) (A) of the Act whether acting in its
individual or fiduciary capacity.
3. A broker or dealer registered pursuant to Section 15 of the
----- Securities Exchange Act of 1934.
4. An insurance company as defined in Section 2(13) of the Act.
-----
5. An investment company registered under the Investment Company
----- Act of 1940.
6. A business development company as defined in Section 2(a)(48) of
----- the Investment Company Act of 1940 (a closed-end company,
operated for the purpose of investing in securities described in
Section 55(a)(l)-(3) of such Act and makes available
"significant managerial assistance" with respect to the issuers
of such securities and has elected to be regulated pursuant to
Sections 55-65 of such Act as a business development company].
7. A Small Business Investment Company licensed by the U.S. Small
----- Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
8. A plan established and maintained by a state, its political
----- subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if
such plan has total assets in excess of $5,000,000.
9. An employee benefit plan within the meaning of the Employee
----- Retirement Income Security Act of 1974 ("ERISA"), (a) if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which is either a bank, savings and loan
association, insurance company, or registered investment
adviser, or (b) if the employee benefit plan has total assets in
excess of $5,000,000, or
--
Schedule II to Series A Preferred Stock Purchase Agreement
II-3
(c) if a self-directed plan, with investment decisions made
solely by persons that are accredited investors.
10. A private business development company as defined in Section
----- 202(a)(22) of the Investment Advisers Act of 1940 (a company
which is a business development company but which need not be
closed-end and need not elect to be subject to regulation under
Sections 55-65 of the Investment Company Act of 19401.
11. An organization described in Section 501(c)(3) of the Internal
----- Revenue Code, with total assets in excess of $5,000,000 not
formed for the specific purpose of acquiring the securities
offered.
12. A corporation, Massachusetts or similar business trust, or
----- partnership, not formed for the specific purpose of acquiring
the securities offered, with total assets in excess of
$5,000,000.
13. A director or executive officer of the Company. (An "executive
----- officer" means the president, any vice president in charge of a
principal business unit, division or function (such as sales,
administration or finance), any other officer who performs a
policy making function, or any other person who performs similar
policy making functions for the Company.)
14. A natural person whose individual net worth, or joint net worth
----- with that person's spouse, at the time of his purchase exceeds
$1,000,000.
(For purposes of calculating net worth, any assets may be
considered including the fair market value of one's principal
residence and automobiles. The principal residence, owned by an
individual should be valued either at (A) cost, including the
cost of improvements, net of current encumbrances upon the
property, or (B) the appraised value of the property as
determined upon a recent written appraisal used by an
institutional lender making a loan secured by the property,
including the cost of subsequent improvements, net of current
encumbrances upon the property.]
Schedule II to Series A Preferred Stock Purchase Agreement
II-4
15. A natural person who had an individual income (not including
----- ----------
income of spouse) in excess of $200,000 in each of the two most
recent years (1988 and 1989) or joint income with that person's
spouse in excess of $300,000 in each of those years and who
reasonably expects to reach the same income level in the current
year (1990).
["Income" may include amounts normally excluded from "adjusted
gross income" such as any amounts attributable to tax exempt
income received, losses claimed as a limited partner in any
limited partnership, deductions claimed for depletion,
contributions to an XXX or Xxxxx retirement plan, alimony
payments, and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross income.
However, "income" is not necessarily synonymous with "revenue";
for example, a self-employed person should deduct operating
expenses to give an accurate indication of income.]
16. A trust, with total assets in excess of $5,000,000 not formed
----- for the specific purpose of acquiring the securities offered,
whose purchase is directed by a sophisticated person is
described in Rule 506(b)(2)(ii) under the Act.
17. An entity in which all of the equity owners meet the
----- ---
requirements of Items X0, X0, X0, X0, X0, X0, X0, X0, X0, X00,
B11, B12, B13 or B14 and/or B15 immediately above. (If this item
is checked, complete the "Accredited Investor Certificate"
below.)
18. DM Check here if none of the above are applicable.
-----
Schedule II to Series A Preferred Stock Purchase Agreement
II-5
C. THE FOLLOWING INFORMATION IS TO BE PROVIDED BY PURCHASERS WHO ARE
INDIVIDUALS, OR BY THE PERSON MAKING THE INVESTMENT DECISION ON BEHALF OF
CORPORATIONS, PARTNERSHIPS, TRUSTS, OR OTHER ENTITIES.
1. Are you aware of the fact that you have the opportunity to question a
representative of the Company about this investment, the Company, the
Company's properties, the Company's operations and the Company's methods
of doing business?
X
--- ---
Yes No
2. (a) Do you understand the merits and risks associated with investments in
closely-held companies?
X
--- ---
Yes No
(b) Do you understand the merits and risks associated with an investment
in the Company?
X
--- ---
Yes No
3. Do you understand that there is no guarantee of any financial return on
this investment and that you run the risk of losing your entire
investment?
X
--- ---
Yes No
4. Do you understand that this investment is illiquid?
X
--- ---
Yes No
5. Do you understand that you may purchase an interest in the Company for
investment only, and not with a view to the sale or other distribution
thereof?
X
--- ---
Yes No
Schedule II to Series A Preferred Stock Purchase Agreement
II-6
SIGNATURE
The undersigned hereby represents to the Company that (a) the information
contained herein is complete and accurate and may be relied upon by the Company,
(b) the Company will be notified by the undersigned of any material adverse
change in any of the information contained herein occurring prior to the
purchase of the Series A Shares, (c) the undersigned has received or had access
to all material information enabling the undersigned to make an informed
investment decision and that all information requested has been furnished to the
undersigned.
/s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
---------------------------------------
Name of Purchaser (please print)
By:
-------------------------------
Title:
----------------------------
Executed at
-------------------------------------------------
on this day of , 19 .
------- ----------------------- --
Schedule II to Series A Preferred Stock Purchase Agreement
II-7
