Exhibit B
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Stock Purchase Agreement
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of November 19, 1996 (the "Stock
Purchase Agreement") between Suncom Communications L.L.C., a Delaware limited
liability company ("Buyer") and X.X. XXXXXX ("Seller").
WITNESSETH:
WHEREAS, Seller is the beneficial and record holder of 572,986
shares of common stock, par value $0.25 per share ("Common Stock") of Audio
Communications Network, Inc., a Florida corporation ("ACN") and upon the
exercise of certain options, will be the beneficial and record holder of 2S,000
additional shares of Common Stock (such shares, together with the 572,986
shares, are collectively referred to herein as the "Shares"); and
WHEREAS, Seller wishes to sell and Buyer wishes to purchase the
Shares upon the terms of this Stock Purchase Agreement;
NOW, THEREFORE, in reliance upon the representations and
warranties made herein and in consideration of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1
SALE AND PURCHASE OF SHARES
1.1 Sale of Shares. At the Closing provided for in Section 2.1,
Seller shall sell the Shares to Buyer and Buyer shall purchase the Shares for
the purchase price provided in Section 1.2.
1.2 Purchase Price; Delivery of Purchase Price and Share
Certificates.
(a) Purchase Price. The purchase price for the Shares is
$3,750,000 (the "Purchase Price").
(b) Payment of Purchase Price. The Purchase Price shall be paid by
Buyer in immediately available funds by wire transfer to an account designated
by Seller at least one business day prior to Closing (as hereinafter defined).
(c) Delivery of Share Certificates. At the Closing, Seller will
deliver to Buyer stock certificate(s), in form suitable for transfer, registered
in the name of Seller, evidencing the Shares, endorsed in blank or with an
executed blank stock transfer power attached.
ARTICLE 2
CLOSING
2.1 Closing. The closing of the transactions provided for herein
(the "Closing") will take place at the offices of Xxxxxxx, Baetjer and Xxxxxx,
LLP, Suite 1800, Two Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 at 10:00 A.M.
(local time) on January 30, 1997 (the "Closing Date") or at such other place,
time and date as may be agreed upon by Buyer and Seller. It shall be a condition
precedent to the obligations of each party to this Stock Purchase Agreement that
the Closing shall occur simultaneously with the closing of the transactions
contemplated by the Asset Purchase Agreement dated as of even date herewith by
and between Buyer and ACN. In the event that the Asset Purchase Agreement
terminates, this Stock Purchase Agreement shall terminate.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that:
3.1 Due Execution; Enforceability. This Stock Purchase Agreement
has been duly executed and delivered by Seller and (assuming due execution and
delivery by Buyer) this Stock Purchase Agreement constitutes a valid and binding
obligation of Seller, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable
principles.
3.2 Ownership of Shares. Seller is the lawful record and
beneficial owner of 572,986 of the Shares and of options to purchase 25,000
shares of Common Stock, and at the Closing will be the lawful record and
beneficial owner of all of the Shares, all of which will be validly issued,
fully paid, and non-assessable. Seller shall exercise such options at or prior
to the Closing. Seller owns 572,986 of the Shares and said options, and at the
Closing will own all of the Shares, free and clear of all encumbrances, except
for restrictions on transfer under federal and state securities laws. Other than
the Shares, at the Closing, Seller will own or control, directly or indirectly,
no other equity securities of ACN except for (a) options to purchase 30,000
shares of Common Stock, and (b) shares of Common Stock which may be issued to
Seller in December 1996 which will represent $1,000 worth of Common Stock for
each Meeting of the Board of Directors of ACN attended by Seller since January
1, 1996.
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3.3 No Violation. Seller is not subject to or bound by any
provision of:
(a) any law, statute, rule, regulation or judicial or
administrative decision,
(b) any mortgage, deed of trust, lease, note, shareholders'
agreement, bond, indenture, other instrument or agreement, license, permit,
trust, custodianship, other restriction, or
(c) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator,
that would prevent or be violated by, or under which there would be a default as
a result of, the execution, delivery and performance by Seller of this Stock
Purchase Agreement and the consummation of the transactions contemplated hereby.
No consent, approval or authorization of or declaration or filing with any
person is required for the valid execution, delivery and performance by Seller
of this Stock Purchase Agreement and the consummation of the transactions
contemplated hereby.
3.4 Title. Upon delivery at the Closing of one or more
certificates evidencing the Shares either in the name of the Buyer or with duly
endorsed stock powers (signature guaranteed), such delivery shall be sufficient
to convey good title to all of the Shares, free and clear of all liens, claims
and encumbrances, except for restrictions on transfer under federal and state
securities laws. Seller hereby warrants and defends the sale of the Shares
against each and every person(s) whomsoever claim or may claim an interest in
any or all of the Shares.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that:
4.1 Organization. Buyer is a limited liability company duly
organized and validly existing and in good standing under the laws of the State
of Delaware.
4.2 Corporate Authority. Buyer has full corporate power and
authority to enter into this Stock Purchase Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
Buyer of this Stock Purchase Agreement have been duly authorized pursuant to the
Seller LLC Agreement and the Delaware Limited Liability Company Act. This Stock
Purchase Agreement has been duly executed and delivered by Buyer, and (assuming
due execution and delivery by Seller) this Stock Purchase Agreement constitutes
a valid and binding obligation of
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Buyer, enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally or by general equitable principles.
4.3 No Violation. Buyer is not subject to or bound by any
provision of:
(a) any law, statute, rule, regulation or judicial or
administrative decision,
(b) any articles of incorporation or by-laws,
(c) any mortgage, deed of trust, lease, note, shareholders'
agreement, bond, indenture, other instrument or agreement, license, permit,
trust, custodianship, other restriction, or
(d) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator,
that would prevent or be violated by, or under which there would be a default as
a result of, the execution, delivery and performance by Buyer of this Stock
Purchase Agreement and the consummation of the transactions contemplated hereby.
No consent, approval or authorization of or declaration or filing with any
person is required for the valid execution, delivery and performance by Buyer of
this Stock Purchase Agreement and the consummation of the transactions
contemplated hereby.
4.4 Investment Intent. Buyer is acquiring the Shares for its own
account for investment and not with a view to any distribution thereof. Buyer
agrees that the Shares may not be sold, transferred, offered for sale, pledged,
hypothecated or otherwise disposed of without registration under the Securities
Act of 1933, as amended (the "Act"), and under applicable state securities laws,
or except pursuant to an exemption from registration available under such laws.
(a) Buyer represents and warrants that it is an "accredited
investor" as such term is defined in Rule 501(a)(1),(2),(3), or (7) of
Regulation D under the Act.
(b) Buyer understands that the Shares are being offered and sold
to it in reliance on specific exemptions from or non-application of the
registration requirements of federal and state securities laws and that Seller
is relying upon the truth and accuracy of the representations, warranties,
agreement, acknowledgements and understandings of the Buyer set forth herein in
order to determine the applicability of such exemptions and the suitability of
the Buyer to acquire the Shares.
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ARTICLE 5
MISCELLANEOUS
5.1 Cooperation. Each of the parties hereto shall use its
reasonable efforts to take or cause to be taken all actions, to cooperate with
the other party hereto, with respect to all actions, and to do or cause to be
done all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Stock Purchase Agreement. Without limiting
the generality of the foregoing, Seller will cause the delivery at or
immediately prior to Closing of an appropriate opinion of counsel to its
transfer agent, if necessary or desirable, in order to more fully give effect to
the sale and transfer of the Shares contemplated hereby. So long as this Stock
Purchase Agreement is in effect, Buyer and Seller agree with each other to
provide each other with drafts within a reasonable amount of time prior to
filing for review and discussion thereof, of any filings with the Security and
Exchange Commission or any other Governmental Authority (as such term is defined
in the Asset Purchase Agreement) to be made by either of them at or prior to
Closing with respect to the transactions contemplated by this Stock Purchase
Agreement.
5.2 Waiver. Any failure of Seller to comply with any of its
obligations or agreements herein contained may be waived only in writing by
Buyer. Any failure of Buyer to comply with any of its obligations or agreements
herein contained may be waived only in writing by Seller.
5.3 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given upon receipt of: hand
delivery; certified or registered mail, return receipt requested; overnight mail
or telecopy transmission with confirmation of receipt:
(i) If to Seller, to:
X.X. Xxxxxx
0000 Xxxxxxxxx Xxx
Xxxxxx Xxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
(ii) If to Buyer, to
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxx and Xxxxxxxx Xxxxxxxxxxxx
Telecopier No.: (000) 000-0000
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With a copy to:
Xxxx, Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Such names and addresses may be changed by written notice to each person listed
above.
5.4 Governing Law. This Stock Purchase Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware, without
giving effect to its principles or rules regarding conflicts of laws.
5.5 Counterparts. This Stock Purchase Agreement may be executed in
two counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5.6 Amendment and Modification. This Stock Purchase Agreement may
be amended or modified only by written agreement of the parties hereto.
5.7 Binding Effect: Benefits. This Stock Purchase Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns; nothing in this Stock Purchase Agreement,
express or implied, is intended to confer on any Person other than the parties
hereto and their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Stock Purchase Agreement.
5.8 Assignability. This Stock Purchase Agreement shall not be
assignable by any party hereto without the prior written consent of the other
party hereto, provided that Seller may assign his rights to receive payment
under this Stock Purchase Agreement without restriction and provided further
that Buyer may assign its rights hereunder to an affiliate of Buyer upon prior
written notice to Seller; provided further, that in the event of such assignment
by Buyer, such affiliate of Buyer shall agree in writing to be bound by all
terms and conditions of this Stock Purchase Agreement, including, without
limiting the generality of the foregoing, the representations and warranties
contained in Section 4.4 hereof. Any purported assignment in violation of this
Section 5.8 shall be void.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Stock Purchase Agreement as of the date first above written.
SUNCOM COMMUNICATIONS L.L.C.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chairman
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X.X. Xxxxxx
IN WITNESS WHEREOF, the parties hereto have duly executed this
Stock Purchase Agreement as of the date first above written.
SUNCOM COMMUNICATIONS L.L.C.
By:
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Name:
Title:
/s/ X.X. XXXXXX
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X.X. Xxxxxx
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