EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of March 28, 2001 by and between GOLD & XXXXX TRANSFER, S.A., a British
Virgin Islands corporation (the "SELLER"), and XXXXX X. XXXXX III, an individual
(the "PURCHASER").
RECITALS
WHEREAS, the Seller desires to sell and transfer to the Purchaser, and the
Purchaser desires to purchase, 15,471,301 shares (the "SHARES") of common stock,
par value $.001 per share, of Capsule Communications, Inc., a Delaware
corporation (the "COMPANY"), for an aggregate purchase price of $3,094,260.20
(the "PURCHASE PRICE") on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and obligations hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SECURITIES; CLOSING
Section 1.01 Purchase and Sale of the Shares. Subject to the terms and
-------------------------------
conditions set forth in this Agreement, the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller, the Shares.
Section 1.02 Closing. The closing of the sale of the Shares by the Seller
-------
and the purchase of the Shares by the Purchaser shall take place at 10:00 a.m.
local time on March 29, 2001 (the "CLOSING DATE") at the offices of Xxxxxxx
Berlin Shereff Xxxxxxxx, LLP, 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx D.C.,
or at such other time and place as may be agreed upon by the Seller and the
Purchaser (the "CLOSING").
Section 1.03 Purchaser's Closing Deliveries. On the Closing Date, the
------------------------------
Purchaser shall deliver (i) the Purchase Price to the Seller by wire transfer of
immediately available funds pursuant to written instructions provided by the
Seller to an account identified to the Purchaser in writing by the Seller on or
before the Closing Date (the "ACCOUNT") and (ii) a certificate executed by the
Purchaser certifying as to the accuracy of the representations and warranties
made in this Agreement as of the Closing Date.
Section 1.04 Seller's Closing Deliveries. On the Closing Date, the Seller
---------------------------
shall deliver to the Purchaser a certificate dated as of the Closing Date
executed by an authorized officer of the Seller certifying as to the accuracy of
the representations and warranties made in this Agreement as of the Closing
Date.
E-1
Section 1.05 Seller's Post-Closing Deliveries. Not later than 14 days
--------------------------------
after the Closing Date, Seller shall deliver to the Purchaser a certificate or
certificates representing the Shares, duly endorsed for transfer or accompanied
by duly executed blank stock powers; provided, however, that if the Seller is
-------- -------
unable to obtain all necessary and appropriate releases under the Amended and
Restated Pledge Agreement described in Schedule I attached hereto, by such date,
----------
Seller shall promptly deliver that portion of the Purchase Price relating to
such encumbered Shares to Purchaser by wire transfer of immediately available
funds pursuant to written instructions provided by the Purchaser to an account
identified to Seller in writing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as of the
date hereof and as of the Closing, except as set forth on Schedule I attached
----------
hereto, as follows:
Section 2.01 Authorization; Enforceability. The Seller has full
-----------------------------
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Seller and constitutes a legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with its
terms and conditions except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
Section 2.02 No Violation. The execution, delivery, and performance by
------------
the Seller of this Agreement will not (i) conflict with or result in any breach
of any provision of the certificate of incorporation or bylaws of the Seller;
(ii) result in a violation or breach of, or constitute a default (or give rise
to any right of termination, amendment, cancellation, or acceleration) under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which the Seller is a party or by with any of its assets or properties may be
bound; or (iii) violate any order, writ, injunction, decree, statute, rule
(excluding any rules of state regulatory commissions), or regulation (excluding
any regulations of state regulatory commissions) applicable to it or the
transfer of the Shares.
Section 2.03 Sole Owner. The Seller is the sole beneficial and legal
----------
owner of all right, title, and interest in and to the Shares.
Section 2.04 Transfer of Title. Upon the delivery of the Shares as
-----------------
specified in Section 1.05, the Seller will transfer good, valid, and marketable
title to the Shares to the Purchaser, free and clear of any security interests,
claims, liens, pledges, options, encumbrances, charges, agreements, voting
trusts, proxies, preemptive rights or rights of first refusal, or other
arrangements, restrictions, or legal or equitable limitations of any kind.
E-2
Section 2.05 No Other Representations or Warranties. The Seller is
--------------------------------------
not making any other representations, express or implied, with respect to any
other matter, except as otherwise set forth in this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the
Seller as of the date hereof and as of the Closing, as follows:
Section 3.01 Authorization; Enforceability. The Purchaser has full power
-----------------------------
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Purchaser and constitutes a legal, valid and binding obligation
of the Purchaser enforceable against the Purchaser in accordance with its terms
and conditions except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
Section 3.02 No Violation. The execution, delivery, and performance by the
------------
Purchaser of this Agreement will not (i) result in a violation or breach of, or
constitute a default (or give rise to any right of termination, amendment,
cancellation, or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which the Purchaser is a party or by with any
of its assets or properties may be bound; or (ii) violate any order, writ,
injunction, decree, statute, rule (excluding any rules of state regulatory
commissions), or regulation (excluding any regulations of state regulatory
commissions) applicable to the Purchaser.
Section 3.03 Investment Purpose; Accredited Investor.
---------------------------------------
(a) The Purchaser is acquiring the Shares solely for his own account for
investment and not with a view to, or for sale in connection with, any public
distribution thereof in violation of the Securities Act.
(b) The Purchaser is an Accredited Investor within the meaning ascribed to
such term under Regulation D of the rules and regulations promulgated under the
Securities Act.
Section 3.04 No Other Representations or Warranties. The Purchaser
--------------------------------------
is not making any other representations, express or implied, with respect to any
other matter, except as otherwise set forth in this Agreement.
ARTICLE IV
ADDITIONAL AGREEMENTS OF THE PARTIES.
Section 4.01 Confidentiality. The Seller and the Purchaser acknowledge
---------------
and agree that this Agreement and the matters addressed therein are confidential
until the Closing shall have
E-4
occurred and that all information provided to the Seller or the Purchaser or
their respective representatives or other recipients in accordance with this
Agreement shall be considered confidential information until such Closing.
Section 4.02 Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given when delivered
in person, received by facsimile transmission, or delivered by overnight courier
to the parties at the following addresses or facsimile numbers:
If to the Seller, addressed to it at:
------------------------------------
Gold & Xxxxx Transfer, S.A.
c/o Entree International Limited
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
If to the Purchaser, addressed to him at:
----------------------------------------
Xxxxx X. Xxxxx III
000 Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Either party from time to time may change its address or facsimile number
for the purpose of receipt of notices to that party by giving a similar notice
specifying a new address or facsimile number to the other notice parties listed
above in accordance with the provisions of this Section 4.02.
Section 4.03 Further Assurances. On and after the Closing, the Seller and
------------------
the Purchaser will take all appropriate action and execute all documents,
instruments or conveyances of any kind which may be reasonably necessary or
advisable to carry out any of the provisions hereof.
ARTICLE V
MISCELLANEOUS
Section 5.01 Expenses. The Purchaser hereby agrees that all fees and
--------
expenses incurred by the Purchaser in connection with this Agreement shall be
borne by the Purchaser, and the Seller hereby agrees that all fees and expenses
incurred by the Seller in connection with this Agreement shall be borne by the
Seller (including any and all amounts payable in respect of the Account.
E-4
Section 5.02 Entire Agreement. This Agreement constitutes the entire
----------------
agreement among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior or contemporaneous agreements (oral or written)
among the parties.
Section 5.03 No Third-Party Beneficiaries; Assignment. This Agreement is
----------------------------------------
for the sole benefit of and binding upon the parties hereto and their permitted
successors and assigns, and nothing herein, express or implied, is intended to
or shall confer upon any other person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns. Neither party may assign either this Agreement or any of his or its
rights, interests or obligations hereunder without the prior written consent of
the other party hereto.
Section 5.04 Amendment. This Agreement may be amended or modified only by
---------
an instrument in writing signed by both parties hereto.
Section 5.05 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which when executed shall be deemed to be an original, but
all of which taken together shall constitute one and the same agreement.
Section 5.06 Gender and Number; Headings. Whenever used in this
---------------------------
Agreement, the singular number shall include the plural, the plural the
singular, and the use of any gender shall be applicable to all genders. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement
Section 5.07 Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of Delaware without giving
effect to the principles of conflicts of laws thereof.
Section 5.08 Severability. In case any provision of this Agreement shall
------------
be invalid, illegal, or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
[SIGNATURE PAGE FOLLOWS]
E-5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
SELLER
GOLD & XXXXX TRANSFER, S.A.,
a British Virgin Islands corporation
By: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Its: Attorney in Fact
PURCHASER
/s/ Xxxxx X. Xxxxx, III
-----------------------
XXXXX X. XXXXX, III
SCHEDULE I
----------
5,671,300 shares of common stock, par value $.001 per share, of the Company
which constitute Shares are pledged pursuant to that certain Amended and
Restated Pledge Agreement between the Seller, Revision LLC, Foundation for the
International Non-governmental Development of Space, Entree International
Limited, Xxxxxx X. Xxxxxxxx (the "PLEDGORS") and Xxxxxx X. Xxxxx (the
"PLEDGEE"), dated as of March 1, 2001 (the "AMENDED AND RESTATED PLEDGE
AGREEMENT"), a copy of which has been made available to the Purchaser. The
Seller intends to seek the release of such encumbrance after the Closing Date.
