EXHIBIT 4.7
[The Company has entered into agreements substantially similar in all
material respects to this agreement. A schedule of such similar agreements is
attached to this exhibit.]
SECURITIES PURCHASE AGREEMENT
Satellink Paging Inc.
Series C Convertible Preferred Stock
This Securities Purchase Agreement (this "Agreement") is made between Satellink
Paging Inc., a Georgia corporation (the "Seller"), and the undersigned
prospective purchaser (the "Purchaser") who is purchasing hereby shares (the
"Series C Shares") of the Seller's Series C Convertible Preferred Stock, which
has the rights, preferences and limitations set forth in the Designation of
Terms of Series C Convertible Preferred Stock attached hereto as Exhibit A. The
purchase price per share is $1,000.00. This Agreement is being entered into in
accordance with and subject to the terms and conditions described in this
Agreement.
In consideration of the premises and the mutual representations, warranties,
covenants and promises contained herein and other good and valuable
consideration, the parties hereto agree as follows:
A. SALE OF SERIES C SHARES AND CONSIDERATION
-----------------------------------------
The Purchaser hereby agrees to purchase the number of Series C Shares
indicated on the signature page hereto at a purchase price of $1,000.00
per Series C Share. Payment for the Series C Shares will be made by
wire transfer in accordance with the following instructions:
ABA#: Wachovia Bank of Georgia. ABA routing # 000000000
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ACCOUNT #: for credit to account # 00-000-000
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NAME: Wachovia Bank -- Satellink Paging Inc, Operating Account
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B. REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
The Seller hereby represents and warrants to the Purchaser that:
(1) The Seller is a corporation duly incorporated and validly
existing and in good standing under the laws of Georgia.
(2) The Seller is duly authorized to execute and deliver this
Agreement.
(3) This Agreement is a legal, valid and binding obligation of the
Seller, enforceable
against the Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors, rights generally
or general principles of equity (whether applied in an action at law or
in equity).
(4) The execution, delivery and performance of this Agreement will not
result in any violation of, be in conflict with, or constitute a
default under, with or without the passage of time or the giving of
notice; (i) any provision of the Articles of Incorporation, or By-laws
of the Seller, as amended, a copy of which By-laws are attached as
Exhibit C hereto (the "By-Laws"), or the articles of incorporation or
by-laws of any subsidiary of the Seller; (ii) any provision of any
judgment, decree or order to which the Seller or any of its
subsidiaries is a party or by which their respective property is bound;
(iii) any material contract, obligation or commitment to which the
Seller or any of its subsidiaries is a party or by which their
respective property is bound; or (iv) any statute, rule or governmental
regulation applicable to the Seller or any of its subsidiaries.
(5) No consent, approval, order or authorization of any court,
administrative agency, or other governmental entity or any other person
is required by or with respect to the Seller in connection with the
execution and delivery of this Agreement by the Seller; provided,
however, that the consent of the holders of the Series A Convertible
Preferred Stock is required in order to establish the senior priority
of the Series C Preferred Stock to such Series A Convertible Preferred
Stock, and such consent is a condition precedent to the consummation of
this Agreement.
(6) The authorized capital of the Seller consists of:
(a) Class A Common Stock. 5,000,000 shares of Common Stock (the
--------------------
"Class A Common Stock"). The Seller has reserved 10,860 shares
of Class A Common Stock for issuance upon conversion of the
Series A Preferred Stock and the Series C Convertible Preferred
Stock into Class A Common Stock;
(b) Class B Common Stock. 20,000 shares of Common Stock (the "Class
--------------------
B Common Stock");
(c) Series A Convertible Preferred Stock. 7,500 shares of Series A
------------------------------------
Convertible Preferred Stock. Each share of Series A Convertible
Preferred Stock is convertible into shares of Class A Common
Stock on the terms and conditions contained in the Seller's
Articles of Incorporation, a copy of which are attached as
Exhibit B hereto (the "Articles of Incorporation");
(d) Series B Convertible Preferred Stock. 30,000 shares of Series B
------------------------------------
Convertible Preferred Stock. Each share of Series B Convertible
Preferred Stock is convertible into shares of Common Stock on
the terms and conditions contained in the Seller's Articles of
Incorporation; and
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(e) Series C Convertible Preferred Stock. 3,500 shares of Series C
------------------------------------
Convertible Preferred Stock. Each share of Series C Convertible
Preferred Stock is convertible into shares of Class A Common
Stock or Series B Convertible Preferred Stock on the terms and
conditions contained in the Seller's Articles of Incorporation.
(7) Except for the conversion rights of the holders of the Series A
Preferred Stock, as set forth in the Articles of Incorporation and
except as set forth on Schedule I attached hereto, there are no
outstanding warrants, options, conversion privileges, preemptive rights
or other rights or agreements to purchase or otherwise acquire or issue
any equity securities of Seller.
(8) The Seller will not, as of the Closing, own or control or have any
investment in any corporations, associations or other business entities
other than those set forth in Schedule II hereto.
(9) The Series C Shares, when issued, sold and delivered in accordance with
the terms of and for the consideration expressed in this Agreement,
shall be duly and validly issued, fully-paid and non-assessable, and
neither the Seller nor the holder thereof shall be subject to any
preemptive or similar rights with respect thereto, except as set forth
in the Articles of Incorporation.
(10) Except for obligations under this Agreement, the contracts or
agreements listed on Schedule III, and except as disclosed in the
financial statements of the Seller, neither the Seller nor any of its
subsidiaries have any material debts, liabilities or obligations, fixed
or contingent, of whatever nature or character.
(11) Neither the Seller nor any of its subsidiaries is in violation of any
applicable local, state or federal law, ordinance, regulation, order,
injunction or decree, or any other requirement of any governmental
body, agency or authority or court binding on either of them, or
relating to their property or business, which violation would
materially adversely affect the assets or financial condition of the
Seller or any of its subsidiaries.
(12) There is no litigation, suit, action, proceeding, investigation or
indictment pending, or to the knowledge of the Seller, threatened,
before any court, public board or commission, against the Seller or any
of its subsidiaries. Further, there are no judgments, orders, writs,
injunctions, decrees, indictments or information, grand jury subpoenas
or civil investigative demands, plea agreements, stipulations or awards
(whether rendered by a court, commission, arbitration tribunal or
judicial, governmental or administrative department, body, agency
administrator or official, grand jury or any other form for the
resolution of grievances) against or relating to the Seller or
involving any of its property or business wherein an unfavorable
decision, ruling or finding would materially adversely affect the
assets or financial condition of the Seller or any of its subsidiaries.
(13) All federal and all material state, local and foreign tax returns and
reports
3
required to be filed by the Seller or any of its subsidiaries have been
filed, and all taxes, interest, assessments or deficiencies, fees and
other governmental charges upon the Seller or any of its subsidiaries,
or upon any of their properties, income or franchises, shown in such
returns and on assessments received by the Seller or any of its
subsidiaries to be due and payable or claimed to be due and payable by
any governmental authority, have been paid except where the failure to
so pay any such amount would not have a material adverse effect on the
assets or financial condition of Seller. Neither the Seller nor any of
its subsidiaries is a party to any pending action or proceeding, nor,
to the knowledge of the Seller, is any such action or proceeding
threatened by any governmental authority for the assessment or
collection of taxes, interest, penalties, assessments or deficiencies,
and no claim for assessment or collection of taxes, interest,
penalties, assessments or deficiencies has been asserted against the
Seller. No material issue has been raised by any federal, state, local
or foreign taxing authority as a result of an audit or examination of
the tax returns, reports, business or of the Seller or any of its
subsidiaries which has not been settled or resolved. Neither the Seller
nor any of its subsidiaries has agreed to extend the statute of
limitations with respect to any tax period or the review or audit of
any tax return. Neither the Seller nor any of its subsidiaries has made
or agreed (or been required) to make any adjustment or change in
accounting method, which adjustment or change has not been concurred in
by its independent certified public accountants. To the knowledge of
the Seller, no material special charges, penalties, fines, liens, or
similar encumbrances have been asserted against the Seller or any of
its subsidiaries with respect to the payment or failure to pay any
taxes which have not been paid or received without further liability to
the Seller. Proper and accurate amounts have been withheld by the
Seller and any of its subsidiaries from their respective employees for
all periods in material compliance with the withholding provisions of
applicable federal, state and local tax laws.
(14) Schedule III constitutes a full and complete list of each material
contract or agreement to which the Seller or any of its subsidiaries is
a party, by which the Seller or any of its subsidiaries is bound or
under which the Seller or any or its subsidiaries has any rights. To
the knowledge of the Seller, no third party has raised any claims,
dispute or controversy with respect to any of such contracts of the
Seller or any of its subsidiaries, and neither the Seller nor any of
its subsidiaries has received notice or warning of alleged material
nonperformance, delay or delivery or other noncompliance by the Seller
or any of its subsidiaries with respect to their obligations under any
of such contracts, which, in any case, would materially adversely
affect the business or financial condition of the Seller or any of its
subsidiaries.
(15) The Seller is not in violation of any term or provision of its Articles
of Incorporation or By-Laws, and, to the knowledge of the Seller,
neither the Seller nor any of its subsidiaries is in default under any
term or provision of any indebtedness, mortgage, indenture, contract,
agreement or judgment to which the Seller or any of its subsidiaries is
a party or by which the Seller or any of its subsidiaries is bound,
wherein a default would have a material adverse effect on
4
the assets or financial condition of the Seller and its subsidiaries
taken as a whole.
(16) Schedule IV constitutes a full and complete fist of all policies of
insurance to which the Seller is a party or is a beneficiary or named
insured, and the Seller has in full force and effect, with all premiums
due thereon paid, the policies of insurance set forth therein.
(17) Subject to the accuracy of each of the Purchaser's representations in
Section D of this Agreement, the offer, sale and issuance of the Shares
constitute transactions exempt from the registration requirements of
Section 5 of the Securities Act of 1933, as amended (the "Securities
Act"), Section 5 of the Georgia Securities Act of 1973, as amended
(O.C.G.A. Section 10-5-5) (the "Georgia Act"), Section 51:709(15) of
the Louisiana Securities Law, as amended (the "Louisiana Law") and
Section 705 of the Regulations adopted thereunder, and the securities
acts and laws of any other applicable jurisdictions.
(18) The Seller is under no contractual obligation to register under the
Securities Act any of its presently outstanding securities or any of
its securities that may subsequently be issued, except as set forth in
Schedule V hereto.
(19) There has been no declaration or payment by the Seller of any dividend,
nor any other distribution by the Seller of any assets of any kind, to
any of its stockholders except dividends on Series A Convertible
Preferred Stock.
(20) Except as set forth in Schedule VI hereto, neither the Seller nor any
of its subsidiaries is a party to or bound by any currently effective
employment contracts, deferred compensation agreements, bonus plans,
profit sharing plans, retirement agreements or other employee
compensation agreements.
(21) Neither the Seller's nor any of its subsidiaries's employees are
represented by any labor unions, and, to the Seller's knowledge, no
union organization campaign in progress. To the knowledge of the
Seller, none of the officers of the Seller or any of its subsidiaries
intend to terminate employment with the Seller or any of its
subsidiaries.
(22) The Seller has not incurred and will not incur, directly or indirectly,
any liability for any brokerage or finders' fees or agents commissions
or any similar charges in connection with this Agreement or any
transactions contemplated hereby.
(23) Except for (i) transactions entered into in the normal course of
business and (ii) the agreements listed on Schedule VII, none of the
officers or directors of the Seller is a party to any transactions with
the Seller or any of its subsidiaries.
(24) The Articles of Incorporation and By-Laws of the Seller are in the
forms set forth as Exhibits B and C, respectively. The minute books of
the Seller and any of its subsidiaries heretofore made available to the
Purchaser and its counsel for inspection contain accurate records in
all material respects of all meetings and
5
other corporation actions taken by the directors and stockholders of
the Seller or any of its subsidiaries, as the case may be.
(25) No statement by the Seller contained in this Agreement, or the attached
exhibits or schedules or any written certificate furnished or to be
furnished to any of the Purchasers pursuant to this Agreement when read
together contains any known untrue statement of a material fact or
omits to state any material fact necessary to make the statements
contained therein or herein, in view of the circumstances under which
they were made, not misleading.
(26) All representations and warranties made herein which are to the
"knowledge" of the Seller or words of similar import are made only to
the extent of the actual as opposed to constructive knowledge of the
officers of the Seller.
(27) If the Seller fails or refuses to comply with or otherwise breaches the
agreements or representations contained in this Agreement in any
material respect and does not correct such failure or breach within 60
days after written notice of such failure or breach is delivered to the
Seller, then in addition to all other remedies available to the
Purchaser, the Purchaser may demand that the Seller repurchase all
Series C Shares acquired by the Purchaser at a price equal to the
liquidation price plus accrued dividends.
C. AGREEMENTS OF THE SELLER
------------------------
The Seller hereby covenants and agrees with the Purchaser as follows:
(1) For purposes of this Agreement:
(a) "Affiliate" of any Person (which shall include an
individual, a partnership, a limited liability company, a
corporation, a trust, a joint venture, an incorporated organization
or a government or any department or agency thereof) means any
other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person. For
purposes of this definition, a Person shall be deemed to control
another Person if such first Person possesses directly or
indirectly the power to (i) vote 10% or more of the securities
having ordinary voting power for the selection of directors of such
Person or (ii) direct, or cause the direction of, the management
and policies of the second Person, whether through the ownership of
voting securities, by contract or otherwise. In addition, as to
Purchaser, "Affiliate" shall include any partnership a majority of
the partners of which are officers, directors, employees or
Affiliates of Purchaser, and as to the Seller, "Affiliate" shall
not include Purchaser or any Affiliate of Purchaser which is a
holder of any Securities of the Seller.
(b) "Closing" means the date, time and place of the purchase
and sale of the
6
Series C Shares.
(c) "Closing Date" means the earlier of (i) November 17, 1995 or (ii) a date
specified by the Purchaser by notice to the Seller no less than two business
days prior thereto or (iii) such other date as the Purchaser and Seller shall
mutually agree.
(d) "Equity" of the Seller means the total shareholders' equity of the
Seller, determined in accordance with generally accepted accounting principles.
The amount of Equity of the Seller represented by any Series C Shares shall be
determined by subtracting from total Equity of the Seller the aggregate amount
distributable as a preference upon dissolution of the Seller to the holders of
any then outstanding shares of any class or series of preferred stock (other
than the Series C Shares), dividing the balance obtained by the number of
shares of Class A Common Stock then outstanding or issuable upon conversion of
any convertible preferred stock then outstanding, and multiplying that per
share amount by the aggregate number of such Series C Shares.
(e) "Non-Attributable Stock" means shares of Class A Common Stock which have
been previously sold, or were issued pursuant to the exercise of warrants which
were previously sold, either (a) in a widely dispersed public offering; (b) in
a private placement in which no purchaser, individually or in concert with
others, acquired warrants, Class A Common Stock, Series A Convertible Preferred
Stock, Series B Preferred Stock or any combination thereof, representing (upon
conversion, in the case of any convertible preferred stock, and upon exercise
for Class A Common Stock, in the case of any warrants) more than 2 % of the
outstanding Class A Common Stock; (c) in compliance with Rule 144 (or any rule
which is a successor thereto) of the Securities Act or (d) into the secondary
market in a market transaction executed through a registered broker-dealer in
blocks of no more than 2.0% of the shares outstanding of the Seller in any six
month period.
(f) "Regulated Investor" means the Purchaser or any of its Affiliates or
holder of any Series C Shares that is (or that is a subsidiary of a bank
holding company) subject to the various provisions of the Bank Holding Company
Act of 1956, as amended, or any similar, related or successor laws and
regulations regulating banks or bank holding companies, and that holds any
Securities of the Seller, so long as such Regulated Investor holds such
Securities; and
(g) "Regulatory Problem" means (A) any set of facts or circumstances wherein
it has been asserted by any governmental regulatory agency (or the Purchaser
reasonably believes that such assertion will be made) that the Purchaser is not
entitled to hold, or exercise any material right with respect to, all or any
portion of the Securities or (B) when the Purchaser and its Affiliates would
own, control or have power (including voting rights) over a greater quantity of
Securities of any kind than are permitted under any applicable law or
regulation or any requirement of any governmental authority;
7
(h) "Securities" means, for purposes of this Agreement, the Seller's
capital stock or any options, warrants or other Securities which are
directly or indirectly convertible into, or exercisable or exchangeable
for, the Seller's capital stock (whether or not such derivative Securities
are issued by the Seller). Whenever a reference herein to Securities
refers to any derivative Securities, the rights of the Purchaser shall
apply to such derivative Securities and all underlying Securities directly
or indirectly issuable upon conversion, exchange or exercise of such
derivative Securities; and
(i) Capitalized terms used in this Agreement and not defined herein
shall have the meanings given to such terms in the Designation of Terms
of Series C Convertible Preferred Stock attached hereto as Exhibit A.
(2) The Seller shall furnish to each Purchaser:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Seller, either (A) a copy of the Seller's
Annual Report on Form 10-K (or any successor form) and any documents
incorporated by reference into such form for the prior fiscal year, as
filed with the Securities and Exchange Commission (the "Commission") under
the Securities Exchange Act of 1934 (the "Exchange Act"), or (B) a copy of
the consolidated balance sheet of the Seller and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statement of income and retained earnings and of cash flow for such year,
setting forth in each case in comparative form the figures for the
previous year certified by Xxxxxx Xxxxxxxx & Co., L.L.C. or by another
firm of nationally recognized independent certified public accountants,
and the consolidated balance sheet of the Seller and its consolidated
Subsidiaries as at the end of such fiscal year, showing inter-company
eliminations, and the related consolidating statements of income and
retained earnings and changes in financial position of the Seller and its
consolidated Subsidiaries for such year, showing inter-company
eliminations, setting forth in each case in comparative form the figures
for the previous fiscal year, certified by Xxxxxx Xxxxxxxx & Co., L.L.C.
or by another firm of nationally recognized independent certified public
accountants;
(b) as soon as available but in any event not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year
of the Seller, either (A) a copy of the Seller's Quarterly Report on Form
10-Q (or any successor form) for the preceding fiscal quarter, as filed
with the Commission under the: Exchange Act, or (B) the unaudited
consolidated balance sheet of the Seller and its consolidated Subsidiaries
as at the end of each such quarter and the related unaudited consolidated
statements of income and retained earnings and of cash flow of the Seller
and its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through such date setting forth in each case in comparative
form the figures for the same period of the previous fiscal year,
certified by the chief financial or accounting officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments);
8
(c) promptly after the sending or filing thereof, as the case may be,
copies of any reports, certificates, budgets, definitive proxy statements
or financial statements which Seller sends to its shareholders and copies
of any regular periodic and special reports or registration statements
which Seller files with the Commission (or any governmental agency
substituted therefor), including, but not limited to, any report or
registration statement which Seller files with any national securities
exchange;
(d) no later than April 30 of each year, a certificate of the chairman,
president or chief financial officer of the Seller setting forth the
number of shares of Class A Common Stock or Series B Preferred Stock
purchasable upon conversion of each share of Series C Shares as of the end
of the preceding fiscal year and a description in reasonable detail of any
adjustments in such number during the preceding fiscal year; and
(e) if such holder is a Regulated Investor, such financial statements
and other information as such Regulated Investor may from time to time
reasonably request for the purpose of assessing the Seller's financial
condition for purposes of complying with applicable laws or regulations;
all such financial statements to be prepared in reasonable detail and in
accordance with generally accepted accounting principles applied
consistently throughout the periods reflected therein (except as approved
by such accountants and officer and disclosed therein).
(3) The Purchaser shall have the right to require the Seller to convert the
Series C Shares into Class A Common Stock or Series B Preferred Stock of
the Seller (the "Conversion Right") as provided in the Designation of
Terms of Series C Convertible Preferred Stock attached hereto as Exhibit
A.
(4) In the event that a Regulated Investor determines that it has a Regulatory
Problem, the Seller agrees to use commercially reasonable efforts to take
all such actions as are reasonably requested by such Regulated Investor in
order (i) to effectuate and facilitate any transfer by such Regulated
Investor of any Securities of the Seller then held by such Regulated
Investor to any Person designated by such Regulated Investor, and (ii) to
permit such Regulated Investor (or any Affiliate of such Regulated
Investor) to exchange all or any portion of the voting Securities then
held by such Person on a share-for-share basis for shares of a class of
non-voting Securities of the Seller, which non-voting Securities shall be
identical in all respects to such voting Securities, except that such new
Securities shall be non-voting and shall be convertible into voting
Securities on such terms as are requested by such Regulated Investor in
light of regulatory considerations then prevailing, and (iii) to continue
and preserve, to the extent not prohibited by any other provision of this
Agreement or by applicable law, the voting interests with respect to the
Seller provided for by virtue of such Regulated Investor's ownership of
the Seller's voting Securities. Such actions may include, but shall not
necessarily be limited to:
9
(a) entering into such additional agreements as are requested
by such Regulated Investor to permit any Person(s) designated by
such Regulated Investor and reasonably acceptable to the Seller
to exercise any voting power which is relinquished by such
Regulated Investor upon any exchange of voting Securities for
non-voting Securities of the Seller; and
(b) entering into such additional agreements, adopting such
amendments to the certificate of incorporation and by-laws of the
Seller and taking such additional actions as are reasonably
requested by such Regulated Investor in order to effectuate the
intent of the foregoing.
In the event a Regulated Investor has the right to acquire any of
the Seller's Securities (as the result of a preemptive offer, pro
rata offer or otherwise), at such Regulated Investor's request the
Seller will offer to sell to such Regulated Investor non-voting
Securities on the same terms as would have existed had such
Regulated Investor acquired the Securities so offered and
immediately requested their exchange for non-voting Securities
pursuant to subsection C(4) above.
In the event that any Subsidiary of the Seller ever offers to sell
any of its Securities to a Regulated Investor, then the Seller will
cause such Subsidiary to enter into agreements with such Regulated
Investor substantially similar to those set forth in the above
provisions hereof.
D. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
-----------------------------------------------
The Purchaser hereby represents and warrants to the Seller that:
(1) The Purchaser has been furnished with and has carefully read this
Agreement and is familiar with and understands the terms of the
purchase of the Series C Shares. The Purchaser has carefully
considered and has, to the extent the Purchaser believes such
discussion necessary, discussed with the Purchaser's professional
legal, tax, accounting and financial advisors the suitability of an
investment in the Series C Shares for the Purchaser's particular tax
and financial situation and has determined that the Series C Shares
being subscribed for by the Purchaser are a suitable investment for
the Purchaser.
(2) The Purchaser acknowledges that (i) the Purchaser has had the right
to request copies of any documents, records, and books pertaining to
this investment and (ii) any such documents, records and books which
the Purchaser requested have been made available for inspection by
the Purchaser, the Purchaser's attorney, accountant or adviser(s).
(3) The Purchaser and/or the Purchaser's attorney, accountant or
adviser(s) has/have had a reasonable opportunity to ask questions of
and receive answers from a person or persons acting on behalf of the
Seller concerning the purchase of the Series C Shares and all such
questions have been answered to the full satisfaction
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of the Purchaser.
(4) The Purchaser is not subscribing for series C Shares as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, or similar media or broadcast over television
or radio or presented at any seminar or meeting.
(5) If the Purchaser is a natural person, the Purchaser has reached the age of
majority in the state in which the Purchaser resides, has adequate means
of providing for the Purchaser's current financial needs and
contingencies, is able to bear the substantial economic risks of an
investment in the Series C Shares for an indefinite period of time, has no
need for liquidity in such investment and, at the present time, could
afford a complete loss of such investment.
(6) The Purchaser or the Purchaser's purchaser representative, as the case may
be, has had such knowledge and experience in financial, tax and business
matters so as to enable the Purchaser to utilize the information made
available to the Purchaser in connection with the purchase of the Series C
Shares to evaluate the merits and risks of an investment in the Series C
Shares and to make an informed investment decision with respect thereto.
(7) The Purchaser will not sell or otherwise transfer the Series C Shares
without registration under the Securities Act or applicable state
securities laws or an exemption therefrom. None of the Series C Shares
have been registered under the Securities Act or under the securities laws
of any state. The Purchaser represents that the Purchaser is purchasing
the Series C Shares for the Purchaser's own account, for investment and
not with a view to resale or distribution except in compliance with the
Securities Act. The Purchaser is aware that there is currently no market
for the Series C Shares. The Purchaser is aware that an exemption from the
registration requirements of the Securities Act pursuant to Rule 144
promulgated thereunder is not presently available; and except as provided
in Section F hereof, the Seller has no obligation to register the Series
C Shares subscribed for hereunder, or any securities issuable upon
conversion of such Series C Shares, or to make available an exemption from
the Registration requirements pursuant to such Rule 144 or any successor
rule for resale of the Series C Shares or any such underlying securities.
(8) The Purchaser recognizes that investment in the Series C Shares involves
substantial risks, including the possible loss of the entire amount of
such investment.
(9) The Purchaser acknowledges that the certificate representing the Series C
Shares and any of the Class A Common Stock or Series B Preferred Stock
issued upon conversion thereof shall be stamped or otherwise imprinted
with a legend substantially in the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT
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BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), THE GEORGIA
SECURITIES ACT OF 1973, AS AMENDED (THE "GEORGIA ACT"), THE
LOUISIANA SECURITIES LAW, AS AMENDED (THE "LOUISIANA LAW"), OR
ANY OTHER STATE SECURITIES LAWS (COLLECTIVELY, THE "STATE
SECURITIES ACTS") AND HAVE BEEN OFFERED AND SOLD IN RELIANCE
UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACTS, INCLUDING, BUT NOT NECESSARILY LIMITED TO, THE
EXEMPTIONS CONTAINED IN SECTIONS 4(2) AND 4(6) OF THE
SECURITIES ACT AND RULE 505 OF REGULATION D THEREUNDER AND
SECTION 10-5-9(13) OF THE GEORGIA ACT AND SECTION 51:709(15)
OF THE LOUISIANA LAW AND SECTION 705 OF THE REGULATIONS
ADOPTED THEREUNDER. THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN
MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN ANY MANNER EXCEPT (I) PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER THE SECURITIES ACT AND ANY OTHER APPLICABLE
STATE SECURITIES ACTS; OR (II) UPON THE DELIVERY TO SATELLINK
PAGING INC. OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO
SATELLINK PAGING INC., IN ITS SOLE DISCRETION, THAT SUCH
PROPOSED SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION WILL NOT
BE IN VIOLATION OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES ACTS."
The restrictions referred to in such legend shall terminate and cease to
be effective with respect to any Series C Shares or Class A Common Stock
which are registered under the Securities Act or upon receipt by the
Seller of an opinion of counsel reasonable acceptable to the Seller in
form and substance reasonably satisfactory to the Seller to the effect
that the Series C Shares or Class A Common Stock may be freely resold
without registration under the Securities Act and without compliance
with volume, manner of sale or current information requirements imposed
by Rule 144 under the Securities Act. Whenever such restrictions shall
so terminate, the holders of such Series C Shares or Class A Common
Stock shall be entitled to receive from the Seller, at the Seller's
expense, certificates representing such Series C Shares or Class A
Common Stock not bearing the legend set forth above.
(10) The Purchaser is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D promulgated pursuant to the Act ("Regulation
D"), by virtue of
12
the fact that (xxxx applicable choice or choices):
(i) Individual accredited investors must initial at least one of the
----------------------------------------------------------------
following two statements:
------------------------
(A) The Purchaser had individual income of more than $200,000 (or
$300,000 including income attributable to spouse) in each of
the most recent two years and reasonably expects to have an
individual income in excess of $200,000 (or $300,000 including
income attributable to spouse) for the current year.
(B) The Purchaser has an individual net worth, or a combined net
worth with the Purchaser's spouse, in excess of $1,000,000. For
purposes of this Agreement, "individual net worth" means the
excess of total assets as fair market value, including homes
and personal property, over total liabilities.
(ii) Accredited partnerships, corporations, trusts or other equity
-------------------------------------------------------------
investors must initial one or more of the following three statements.
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(A) All of the individual equity owners of the Purchaser qualify as
accredited investors under statements (i)(A) or (i)(B) above.
(B) The Purchaser is a bank, savings and loan, or insurance company
as defined in the Act, or is a corporation, partnership, or
business trust with total assets in excess of $5,000,000.
(C) The Purchaser otherwise meets the definition of an accredited
investor set forth in Rule 501(a) of Regulation D, as follows
(explain briefly and contact the Seller prior to submission to
verify accredited investor status):
(11) If this Agreement is executed and delivered on behalf of a
partnership, corporation, trust or estate: (i) such partnership,
corporation, trust or estate has the full legal right and power and
all authority and approval required (a) to execute and deliver, or
authorize execution and delivery of, this Stock Purchase Agreement and
all other instruments executed and delivered by or on behalf of such
partnership, corporation, trust or estate in connection with the
purchase of its Series C Shares, (b) to delegate authority pursuant to
power of attorney and (c) to purchase and hold such Series C Shares,
(ii) the signature of the party signing on behalf of such partnership,
corporation, trust or estate is binding upon such partnership,
corporation, trust or estate; and (iii) such partnership, corporation
or trust has not been formed for the specific purpose of acquiring
such Series C Shares, unless each beneficial owner of such entity is
qualified as an accredited investor within the meaning of Rule 501(a)
of Regulation D
13
promulgated under the Securities Act and has submitted information
substantiating such individual qualification.
(12) If the Purchaser is a retirement plan or is investing on behalf of a
retirement plan, the Purchaser acknowledges that investment in the
Series C Shares poses risks including the inability to use losses
generated by an investment in the Series C Shares to offset taxable
income.
(13) This Agreement is a legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally or general principles of equity (whether
applied in an action at law or in equity).
(14) Neither the execution of this Agreement nor the consummation by it of
the transactions contemplated hereby will constitute a violation of or
default under, or conflict with, any material contract, commitment,
agreement, understanding or restriction of any kind to which it is a
party or by which it is bound.
(15) No consent, approval, order or authorization of any court,
administrative agency, or other governmental entity or any other
person is required by or with respect to the Purchaser in connection
with the execution and delivery of this Agreement by the Purchaser.
E. UNDERSTANDINGS.
---------------
The Purchaser understands, acknowledges and agrees with the Seller as
follows:
(1) Except as required by law, the Purchaser is not entitled to cancel,
terminate or revoke this Agreement or any agreements of the Purchaser
hereunder and that this Agreement and such other agreements shall
survive the death or disability of the Purchaser and shall be binding
upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and
permitted assigns. If the Purchaser is more than one person, the
obligations of the Purchaser hereunder shall be joint and several and
the agreements, representations, warranties and acknowledgements
herein contained shall be deemed to be made by and be binding upon
each such person and his/her heirs, executors, administrators,
successors, legal representatives and permitted assigns.
(2) No federal or state agency has made any finding or determination as to
the terms of this purchase of Series C Shares for investment nor any
recommendation or endorsement of the Series C Shares.
(3) The offer and sale of the Series C Shares hereby is intended to be
exempt from registration under the Securities Act by virtue of
Sections 4(2) and 4(6) of the Securities Act and the provisions of
Regulation D thereunder, which is in part
14
dependent upon the truth, completeness and accuracy of the statements
made by the Purchaser herein.
(4) There is no public or other market for the Series C Shares, and no
such public or other market may ever develop. There can be no
assurance that the Purchaser will be able to sell or dispose of the
Series C Shares. It is understood that in order not to jeopardize the
exempt status of the purchase of the Series C Shares under Section
4(2) of the Securities Act and Regulation D, any transferee may, at a
minimum, be required to fulfill the investor suitability requirements
thereunder.
(5) The Purchaser acknowledges that the Seller's Series B Preferred Stock,
into which the Series C Shares may be converted as provided herein,
ranks junior to all other classes of preferred stock of the Seller
and generally represents a common stock equivalent.
F. REGISTRATION RIGHTS
-------------------
(1) Upon the written demand of any Purchaser to the Seller (a "Demand") at
any time and from time to time after the earlier of (i) six months
following an initial public offering of securities by the Seller or
(ii) three years after the Closing Date requesting that the Seller
effect the registration under the Securities Act of Series C Shares or
of Class A Common Stock issued upon conversion thereof (hereinafter
collectively referred to as "Registrable Securities") of such
Purchaser, the Seller will promptly give written notice (a "Demand
Notice") of such Demand to all other Purchasers. Each other Purchaser
may request that the Seller effect the registration under the
Securities Act of additional Registrable Securities of such Purchaser
by delivering written notice to the Seller specifying such number of
Registrable Securities within 20 days of receipt of the Demand Notice.
In the event that the Seller receives requests for the registration
under the Securities Act of at least an aggregate of one-fifth of the
outstanding Registrable Securities, as adjusted pursuant to the
Designation of Terms of Series C Convertible Preferred Stock attached
hereto as Exhibit A (or if less than an aggregate of one-fifth of the
Registrable Securities are outstanding, the remainder of the
Registrable Securities then outstanding) within such 20-day period the
Seller shall give written notice (a "Registration Notice") to all
Purchasers that the Seller will be filing a registration statement
pursuant to this subsection F(1) and will thereupon use its
commercially reasonable efforts promptly to effect the registration
under the Securities Act of (i) the Registrable Securities which
Purchasers have requested to be registered within 20 days of the
Demand Notice, and (ii) additional Registrable Securities which
Purchasers have requested to be registered within 10 days of the
Registration Notice. Promptly within 20 days of the Registration
Notice, the Seller will notify all Purchasers whose Registrable
Securities are to be included in the registration of the number of
additional Registrable Securities requested to be included therein by
the other Purchasers. If the registration of which the Seller gives
notice pursuant to this subsection F(1) is for an
15
underwritten public offering, only Registrable Securities which are to
be included in the underwriting may be included in such registration,
and the selling Purchasers shall, after reasonable consultation with
the Seller, have the right to designate the managing underwriter(s) in
any such underwritten public offering with the consent of the Seller
(which consent shall not be unreasonably withheld). Holders who
include Registrable Securities in a registration pursuant to
subsection F(l) shall bear the cost of any underwriters' discounts and
commissions relating to their Registrable Securities which are sold.
Purchasers shall be limited to two (2) demand registrations under this
subsection F(l); provided, however, that if such demand registration
is made prior to an initial public offering by the Seller, the Seller
may, by written notice to Purchasers, convert such demand registration
into a primary offering by the Seller, and the Seller may include
Class A Common Stock to be issued by the Seller in a registration
pursuant to the provisions of subsection F(3) (provided that any
reduction in the number of securities shall be on a pro rata basis)
and such registration will not constitute a demand registration under
this subsection F(l).
(2) The Seller is obligated to effect not more than two (2) demand
registrations under subsection F(l) and, with respect to each such
registration, the Seller shall bear all expenses other than
underwriting discounts and commissions, if any, in connection with
registrations, filings or qualifications pursuant to subsection F(l),
including without limitation all registration, filing and
qualification fees, printers' and accounting fees, the fees and
disbursements of counsel for the Seller and the fees and disbursements
of one counsel for the selling Purchasers, provided that (i) a
registration will not constitute a demand registration under
subsection F(l) until it has been declared effective under the
Securities Act, (ii) no Person other than holders of Registrable
Securities shall have any right to have securities included in any
registration under subsection F(l); provided, however, that the
Purchaser acknowledges that the Seller has the right, as provided in
subsection F(l), to convert a demand registration that would be an
initial public offering by the Seller into a primary offering by the
Seller with the Purchaser having piggyback registration rights with
respect thereto.
(3) If, at any time after the date hereof, the Seller proposes to register
any of its securities under the Securities Act (except pursuant to a
registration statement filed on Form S-8 or Form S-4 or such other
form as shall be prescribed under the Act for substantially similar
purposes), it will at each such time give written notice (which notice
shall state the intended method of disposition thereof by the
prospective sellers) to all holders of outstanding Registrable
Securities of its intention to do so and the proposed minimum offering
price per Registrable Securities and upon the written request of any
holder thereof given within 10 days after the Seller's giving of such
notice, the Seller will use its reasonable best efforts to effect the
registration of the Registrable Securities which it shall have been so
requested to register by including the same in such registration
statement all to the extent required to permit the sale or other
disposition thereof in accordance with the intended method of sale or
other disposition given in each such request. If the registration of
which the Seller gives notice pursuant to this
16
subsection F(3) is for an underwritten public offering, only
Registrable Securities which are to be included in the underwriting
may be included in such registration, and the Seller shall have the
right to designate the managing underwriter(s) in any such
underwritten public offering; provided that (i) the Seller shall use
its commercially reasonable efforts to cause the managing
underwriter(s) to include the Registrable Securities requested to be
included in the registration in the underwriting; (ii) if the managing
underwriter(s) advises the holders of the Registrable Securities and
all other Persons seeking to include securities of the Seller held by
them in such registration statement ("Other Security Holders") in
writing that the total amount of securities which they and the Seller
intend to include in such offering is sufficiently large to materially
and adversely affect the success of such offering, the amount of
securities to be offered shall be reduced (A) in the case of an
exercise of the Seller's right to convert a demand registration to a
primary offering, pro rata among the Seller and the holders of
Registrable Securities, or (B) in any other case, pro rata among the
holders of the Registrable Securities and all Other Security Holders
(based upon the amount of securities each such Person, other than the
Seller, sought to include in the offering) to the extent necessary to
reduce the total amount of securities to be included in the offering
to the amount recommended by such managing underwriter(s) (which
amount may be zero, if so recommended by such managing underwriter(s).
Any registration statement filed pursuant to this subsection F(3) may
be withdrawn at any time at the discretion of the Seller.
(4) If a registration under subsection F(1) or F(3) shall be in connection
with an underwritten public offering, each holder of Registrable
Securities shall be deemed to have agreed by acquisition of such
Registrable Securities not to effect any sale or distribution,
including any sale pursuant to Rule 144 or Rule 144A, of any
Registrable Securities, and not to effect any such sale or
distribution of any other equity security of the Seller or of any
security convertible into or exchangeable or exercisable for any
equity security of the Seller (other than as part of such underwritten
public offering) within seven days before or 180 days after the
effective date of such registration statement (and the Seller hereby
also so agrees and agrees to cause each holder of any equity
security, or of any security convertible into or exchangeable or
exercisable for any equity security, of the Seller purchased from the
Seller at any time other than in a public offering, so to agree).
(5) As a condition to the inclusion of a holder's Registrable Securities
in any registration statements, each such holder of Registrable
Securities requesting registration thereof will furnish to the Seller
such information with respect to such holder as is required to be
disclosed in the registration statement (and the prospectus included
therein) by the applicable rules, regulations and guidelines of the
Commission. Failure of a holder to furnish such information or
agreement shall not affect the obligation of the Seller under this
Section F to the remaining holders who furnish such information.
(6) If and whenever the Seller is required under this Section F to use its
17
commercially reasonable efforts to effect the registration of Registrable
Securities under the Securities Act, the Seller shall:
(a) as expeditiously as possible and subject to the limitations set
forth in subsection F(3), prepare and file with the Commission a registration
statement on the appropriate form with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective as soon as practicable after such filing;
(b) as expeditiously as possible, prepare and file with the Commission
such amendments and supplements (including post-effective amendments and
supplements) to the registration statement covering such Registrable Securities
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective and usable for resale for a period
necessary to complete the distribution of such securities, but in no event in
excess of 24 months plus any period during which the holders of Registrable
Securities are obligated to refrain from selling because the Seller is required
to amend or supplement the prospectus under subsection F(6)(d), and to comply
with the provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such registration statement during such
period in accordance with the intended method of disposition of the sellers set
forth therein;
(c) as expeditiously as possible, furnish to each seller of such
Registrable Securities registered, or to be registered under the Securities
Act, and to each underwriter, if any, of such Registrable Securities such
number of copies of a prospectus and preliminary prospectus in conformity with
the requirements of the Securities Act, and such other documents as such seller
or underwriter may reasonably request in order to facilitate the public sale or
other disposition of such Registrable Securities
(d) as expeditiously as possible, notify each seller of such
Registrable Securities if, at any time when a prospectus relating to such
Registrable Securities, is required to be delivered under the Securities Act,
any event shall have occurred as a result of which the prospectus then in use
with respect to such Registrable Securities would include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or for any
other reason it shall be necessary to amend or supplement such prospectus in
order to comply with the Securities Act and prepare and furnish to all sellers
as promptly as possible, and in any event within ninety (90) days of such
notice, a reasonable number of copies of a supplement to or an amendment of
such prospectus which will correct such statement or omission or effect such
compliance;
(e) as expeditiously as possible, use its reasonable best efforts to
register or qualify such Registrable Securities under such other securities or
blue sky laws of such jurisdictions as such seller shall reasonably request and
do any and all other acts and things which may be reasonably necessary to
enable such seller to
18
consummate the public sale or other disposition in each such jurisdiction of
the Registrable Securities owned by such seller and included in such
registration statement, provided that the Seller shall not be required to
consent to the general service of process or to qualify to do business in any
jurisdiction where it is not then qualified;
(f) use its reasonable best efforts to keep the holders of such
Registrable Securities informed of the Seller's best estimate of the earliest
date on which such registration statement or any post-effective amendment or
supplement thereto will become effective and will promptly notify such holders
and the managing underwriters if any, participating in the distribution
pursuant to such registration statement of the following: (A) when such
registration statement or any post-effective amendment or supplement thereto
becomes effective or is approved; (B) of the issuance by any competent
authority of any stop order suspending the effectiveness or qualification of
such registration statement or the prospectus then in use or the initiation or
threat of any proceeding for that purpose; and (C) of the suspension of the
qualification of any Registrable Securities included in such registration
statement for sale in any jurisdiction;
(g) make available to its security holders, as soon as practicable, an
earnings statement covering a period of at least twelve months which satisfies
the provisions of Section II (a), of the Securities Act and Rule 158
thereunder;
(h) cooperate with the sellers of such Registrable Securities and the
underwriters, if any, of such Registrable Securities; give each seller of such
Registrable Securities, and the underwriters, if any, of such Registrable
Securities and their respective counsel and accountants, such access to its
books and records and such opportunities to discuss the business of the Seller
with its officers and independent public accountants as shall be necessary to
enable them to conduct a reasonable investigation within the meaning of the
Securities Act and, in the event that Registrable Securities are to be sold in
an underwritten offering, enter into an underwriting agreement containing
customary representations and warranties, covenants, conditions and
indemnification provisions, including without limitation the furnishing to the
underwriters of a customary opinion of independent counsel to the Seller and a
customary "comfort" letter from the Seller's independent public accountants;
(i) provide a CUSIP number for all Registrable Securities not later
than the effective date of the registration statement;
(j) as to the two (2) permitted demand registrations under subsection
F(1) and all registrations under subsection F(3), pay all costs and expenses
incident to the performance and compliance by the Seller of this Section F,
including without limitation (A) all registration and filing fees; (B) all
printing expenses; (C) all fees and disbursements of counsel and independent
public accountants for the Seller; (D) all blue sky fees and expenses
(including fees and expenses of counsel in connection with blue sky surveys);
(E) all transfer taxes; (F) the entire expense
19
of any special audits required by the rules and regulations of the
Commission; (G) the cost of distributing prospectuses in preliminary and
final form as well as any supplements thereto and (H) the fees and expenses
of one counsel for the holders of the Registrable Securities being
registered; and
(k) as to the first registration under subsection F(l) which is in
respect of an underwritten offering, as expeditiously as possible, take
such actions as the underwriters reasonably request in order to expedite or
facilitate the disposition of the Registrable Securities to be included in
such offering (including, without limitation, effecting a stock split,
stock dividend or a combination of shares of Common Stock).
(7) (i) The Seller will indemnify and hold harmless each seller of
Registrable Securities, each director, officer, employee and agent of each
seller, and each other person, if any, who controls such seller within the
meaning of the Securities Act or the Exchange Act from and against any and
all losses, claims, damages, liabilities and legal and other expenses
(including costs of investigation) caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any prospectus or preliminary prospectus contained therein
or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to such seller and furnished to
the Seller in writing by such seller expressly for use therein, and
provided that the Seller will not be liable to any Person who participates
as an underwriter in the offering or sale of Registrable Securities or any
other Person, if any, who controls such underwriter within the meaning of
the Securities Act under the indemnity agreement in this subsection F(7)
with respect to any preliminary prospectus or the final prospectus or the
final prospectus as amended or supplemented, as the case may be, to the
extent that any such loss, claim, damage or liability of such underwriter
or controlling Person results from the sale by such underwriter of
Registrable Securities to a Person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the final
prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Seller has previously furnished copies
thereof to such underwriter, or from a sale to a Person in a state where
the offering has not been registered or qualified, if the Seller has
notified the seller and any underwriter involved in such sale of the states
where the offering has been registered or qualified.
(ii) It shall be a condition to the obligation of the Seller to effect
a registration of Registrable Securities under the Securities Act pursuant
hereto that (X) each seller, severally and not jointly, indemnify and hold
harmless the Seller and each person, if any, who controls the Seller within
the meaning of the Securities Act or the Exchange Act to the same extent as
the indemnity from the
20
Seller in the foregoing paragraph, but only with reference to any breach by
such seller of any agreement between such seller, and the Seller with
respect to the offering and with reference to information relating to such
seller furnished to the Seller in writing by such seller expressly for use
in the registration statement, any prospectus or preliminary prospectus
contained therein or any amendment or supplement thereto and (Y) each
seller, in the event that Registrable Securities are to be sold in an
underwritten offering, enters into an underwriting agreement containing
customary representations and warranties, covenants, conditions and
indemnification provisions.
(iii) In case any claim shall be made or any proceeding (including any
governmental investigation) shall be instituted involving any indemnified
party in respect of which indemnity may be sought pursuant to this
subsection F(7), such indemnified party shall promptly notify the
indemnifying party in writing of the same, provided that failure to notify
the indemnifying party shall not relieve it from any liability it may have
to an indemnified party otherwise than under this subsection F(7). The
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party in such proceeding and shall pay the fees and
disbursements of such counsel. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
disbursements of such counsel shall be at the expense of such indemnified
party unless (A) the indemnifying party shall have failed to retain counsel
for the indemnified party as aforesaid, (B) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such
counsel or (C) representation of such indemnified party by the counsel
retained by the indemnifying party would, in the reasonable opinion of the
indemnified party, be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding, provided that the Seller shall not be
liable for the fees and disbursements of more than one additional counsel
for all indemnified parties. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(8) In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in subsection F(7) is due in
accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Seller or the applicable
sellers, as the case may be, shall contribute to the aggregate losses,
claims, damages and liabilities incurred (including legal or other expenses
reasonably incurred in connection with the investigating or defending of
same) by the other and for which such indemnification was sought. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each
party from the offering of the securities included in the registration
statement (taking into account the portion of the proceeds of the
21
offering realized by each), the parties' relative knowledge and access
to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate in the
circumstances; provided, however, that (i) in no case shall any seller
of Registrable Securities be required to contribute any amount in
excess of the total public offering price of the Registrable Securities
sold by him and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this subsection F(8),
each person who controls any seller of Registrable Securities or the
Seller shall have the same rights to contribution as such seller or the
Seller. Any party entitled to contribution shall, promptly after
receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be
made against the Seller or the seller of Registrable Securities under
this subsection F(8), notify the Seller or such seller, as the case may
be, but the omission to so notify the Seller or such seller, as the
case may be, shall not relieve it from any other obligation it may have
hereunder or otherwise.
(9) After the date hereof, the Seller shall not grant to any holder of
securities of the Seller any registration rights which have a priority
greater than or equal to those granted to holders of Registrable
Securities pursuant to this Section F without the prior written consent
of the holders of at least a majority of the aggregate outstanding
Registrable Securities, voting as a single group.
G. CONDITIONS OF PURCHASER'S OBLIGATIONS AT THE CLOSING
-------------------------------------------------
The obligations of each Purchaser under this Agreement to purchase Series C
Shares at the Closing are subject to the fulfillment at or before the
Closing of each of the following conditions, any of which may be waived in
writing by such Purchaser:
(1) The representations and warranties of the Seller contained in this
Agreement shall be true, correct and complete as of the Closing.
(2) The Seller shall have performed or fulfilled all agreements,
obligations and conditions contained herein required to be performed or
fulfilled by the Seller at the Closing.
(3) Such Purchaser shall be satisfied with its due diligence investigation
of the affairs of the Seller, including, without limitation, its review
of the interim unaudited financial statements of the Seller at and for
the two (2) months ended September 30, 1995. For purposes of this
subsection, a Purchaser shall be deemed to be satisfied with its due
diligence investigation unless, on or prior to November 14, 1995, such
Purchaser gives written notice to the Seller that such Purchaser is not
so satisfied and is electing not to consummate the transactions
contemplated
22
hereby, which notice shall specify, with reasonable particularity,
the basis of such election. No waiver of rights for breach of
representations arises from such due diligence investigation.
(4) All corporate and legal proceedings taken by the Seller in
connection with the transactions contemplated hereby and all
documents and papers relating to such transactions shall be
satisfactory to the Purchasers, in the reasonable exercise of the
judgment of the Purchasers.
(5) The Purchasers shall have received a legal opinion from counsel to
the Seller substantially in the form set forth in Exhibit D hereto.
(6) The Articles of Incorporation and Bylaws of the Seller shall read in
their entirety substantially as set forth in Exhibits B and C
hereto, respectively, and shall be in full force and effect.
(7) The Seller shall have obtained all necessary Blue Sky permits and
qualifications, or secured exemptions therefrom, required by any
state for the offer and sale of the Series C Shares.
(8) The Seller shall have delivered to the Purchaser on the date of
Closing:
(a) An Officer's Certificate dated the Closing Date, stating
that the conditions set forth in subsections (1), (2) and (6)
have been satisfied;
(b) Copies of the Articles of Incorporation and Bylaws of the
Seller, each certified by an officer of the Seller;
(c) Copies of the resolutions of the Seller's Board of
Directors, authorizing the transactions contemplated hereby; and
(d) Such other documents relating to the transactions
contemplated by this Agreement as such Purchaser or such
Purchaser's counsel may reasonably request.
(9) No Regulated Investor shall acquire any Series C Shares which, when
aggregated with all other Securities of the Seller then held by a
Regulated Investor or its Affiliates, would upon issuance represent
in excess of 24.99% of the Equity of the Seller unless such shares,
when issued, would constitute Non-Attributable Stock.
(10) An aggregate total of 3,500 shares of Series C Shares shall be sold
pursuant to this Agreement.
(11) The Articles of Incorporation and any other necessary documents
shall be amended to increase the number of authorized shares of
Series B Preferred Stock and to allow for issuance of the Series B
Preferred Stock upon conversion of the
23
Series C Shares.
(12) The consent of the holders of the Series A Convertible Preferred
Stock required in order to establish the senior priority of the
Series C Preferred Stock to such Series A Convertible Preferred
Stock shall have been obtained.
(13) The Seller shall purchase from Creditanstalt American Corporation
538 Warrant Shares. The term "Warrant Shares" means the shares of
Common Stock or Preferred Stock issued or issuable upon exercise of
the Warrants, or Common Stock issued or issuable upon conversion of
the Preferred Stock, in each case as the same may be adjusted from
time to time pursuant to Section 12 of a Warrant Agreement between
the Seller and Creditanstalt American Corporation dated as of
December 3, 1992 and amended and restated as of December 23, 1994
and further amended and restated as of the date hereof and the
provisions of the Seller's Articles of Incorporation. The purchase
price for such Warrant Shares shall be $175.00 per Warrant Share and
shall be paid in cash at the Closing.
H. MISCELLANEOUS
-------------
(1) All pronouns and any variations thereof used herein shall be deemed
to refer to the masculine, feminine, singular or plural, as the
identity of the person or persons may require.
(2) Neither this Agreement nor any provision hereof shall be waived,
modified, changed, discharged, terminated, revoked or canceled
except by an instrument in writing signed by the party effecting
the same against whom any change, discharge or termination is
sought.
(3) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally
delivered or sent by registered mail, return receipt requested,
addressed: (i) if to the Seller, to Satellink Paging Inc., 0000
Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxxxx with a copy (which shall not constitute notice)
to Xxxxxx & Bird, One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq., or (ii)
if to the Purchaser, to the address for correspondence set forth in
the Stock Purchase Agreement, or at such other address as may have
been specified by written notice given in accordance with this
Paragraph (3).
(4) Failure of the Seller or the Purchaser to exercise any right or
remedy under this Agreement or any other agreement between the
Seller and the Purchaser, or otherwise, or delay by the Seller or
the Purchaser in exercising such right or remedy, will not operate
as a waiver thereof. No waiver by the Seller or the Purchaser will
be effective unless and until it is in writing and signed by the
Seller or the Purchaser, as the case may be.
24
(5) This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Georgia, as
such laws are applied by the Georgia courts to agreements entered
into and to be performed in Georgia by and between residents of
Georgia, and shall inure to the benefit of and be binding upon the
Purchaser, the Purchaser's heirs, estate, legal representatives,
successors and assigns and shall inure to the benefit of and be
binding upon the Seller, its successors and assigns. If any
provision of this Stock Purchase Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such
provision shall be deemed modified to conform with such statute or
rule of law. Any provision hereof that may prove invalid or
unenforceable under any law shall not affect the validity or
enforceability of any other provisions hereof.
(6) The Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and may be amended
only by a writing executed by both parties hereto.
(7) Each party hereto has had the opportunity to review this Agreement
with its separate legal counsel.
(8) The representations, warranties and agreements contained in this
Agreement shall survive the execution and delivery of this
Agreement.
(9) All nonpublic information disclosed by any of the parties hereto to
the representatives of the other parties shall be kept strictly
confidential.
(10) This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument. Telecopy transmission
of signatures shall be deemed originals.
I. SIGNATURE
---------
The signature of this Agreement is contained as part of the applicable
subscription package, entitled "Signature Page".
25
SATELLINK PAGING INC.
SIGNATURE PAGE
The Purchaser hereby purchases for the number of Series C Shares as set forth
below.
1. Dated: November 17, 1995
2. Number of Series C Shares purchased : 1,000
-----------
3. Aggregate purchase price for number of Series C Shares purchased, at
$1,000.00 per Share:
$1,000,000.00
-------------
CREDITANSTALT AMERICAN
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Address: 000 Xxxx Xxxxxx
--------------------------
Xxx Xxxx, XX 00000-0000
------------------------------
------------------------------
Taxpayer I.D. No. 00-0000000
-----------------
SATELLINK PAGING INC.
Dated: By: /s/ Xxxxx X. Xxxxxxxx
-------------------- ------------------------------
Chief Executive Officer
The Company has entered into Series C Convertible Preferred Stock
Securities Purchase Agreements that are substantially similar in all material
respects except with respect to the purchaser and the number of shares
purchased. The material details in which such agreements differ From Exhibit 4.7
are as follows:
Purchaser: Number of Shares:
--------- ----------------
Xxxxxxxx Investment Group, Ltd. 500
Xxxxxxx Investment Corporation 2,000
