Exhibit 10.1
STOCK PURCHASE AGREEMENT
This Stock purchase Agreement (this "AGREEMENT") is made and entered
into as of the 26 day of July, 2001 by and among Xxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxx Xxxx, Jo & Co. and U.S. RealTel, Inc., a Delaware
corporation (the "COMPANY"), (each, a "BUYER" and collectively, "BUYERS") and
Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and the Xxxxxxxx Xxxxxxx Xxxxxxx
Foundation (each, a "SELLER" and collectively, "SELLERS").
RECITALS
WHEREAS, Sellers are the record and/or beneficial owners of 1,577,735
shares of common stock of the Company, par value $0.001 per share (the "COMMON
STOCK"), of which an aggregate of 767,735 shares of Common Stock (collectively,
the "SHARES") are available for sale under this Agreement as divided among
Sellers as set forth on SCHEDULE 6(D) attached hereto;
WHEREAS, Sellers have agreed to sell, and Buyers have agreed to buy,
the Shares in accordance with the terms and conditions set forth herein.
Now, Therefore, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. PURCHASE AND SALE OF SHARES. On the Closing Date (as defined below),
Sellers hereby agree to sell to Buyers, and Buyers agree to purchase from
Sellers, the Shares.
2. CONSIDERATION FOR SHARES. Excluding the Escrowed Amount and any
Pre-Closing Adjustments, on the Closing Date, Buyers agree to pay to Sellers for
the Shares an aggregate purchase price of One Million ONE HUNDRED FIFTY ONE
THOUSAND SIX HUNDRED AND TWO and 50/100 ($1,151,602.50), or $1.50 per share (the
"PURCHASE PRICE"), payable in cash by wire transfer in lawful money of the
United States on the Closing Date by the Buyers to the Sellers and creditors of
Sellers in accordance with SCHEDULE 2.
3. CLOSING. The closing of the transactions contemplated hereby (the
"CLOSING") shall take place on July 24, 2001 at the offices of Xxxxx & Starkopf
concurrent with the execution hereof (the "CLOSING DATE"). On the Closing Date,
the conditions set forth in Sections 8 and 9 shall have been satisfied.
4. ESCROWED AMOUNT. Buyers shall deliver on the Closing Date to LaSalle
Bank National Association ("ESCROW AGENT") $75,000.00 of the Purchase Price (the
"ESCROWED AMOUNT") to be held by Escrow Agent in escrow in accordance with the
terms of that certain Escrow Agreement of even date herewith and attached hereto
as EXHIBIT A (the "ESCROW AGREEMENT").
5. PRE-CLOSING ADJUSTMENTS TO THE PURCHASE PRICE. In the event any
Seller attends any official or unofficial meeting of or relating to the Company,
including, but not limited to, any shareholders' meetings, after the date on
which Xxxxx Xxxxxxx was removed as a Director of the Company but prior to the
Closing Date, the aggregate Purchase Price shall be reduced by fifty percent
(50%). In the event any Seller contacts any director, shareholder, officer,
employee, manager, agent or representative of the Company or spouse or family
member of any of the above (excluding any contact with Sellers' own family
members and those permitted contact persons listed in SCHEDULE 5; PROVIDED,
HOWEVER, that in no event may any Seller discuss any matter concerning either
the Company or the Shares with any such family member or any person listed on
SCHEDULE 5) for any reason prior to the Closing Date, the aggregate Purchase
Price shall be reduced by ninety percent (90%) after the date on which Xxxxx
Xxxxxxx was removed as a Director of the Company). Each adjustment to the
Purchase Price pursuant to this Section 5 shall be referred to as a "PRE-CLOSING
ADJUSTMENT."
6. REPRESENTATIONS OF SELLERS. Sellers, jointly and severally, hereby
represent and warrant:
(a) DUE INCORPORATION; AUTHORIZATION. If a Seller is an
entity, that each Seller is an entity duly organized, validly existing
and in good standing under the laws of its state of incorporation,
organization or formation, as the case may be, has full power and
lawful authority to own its Shares and is in good standing in each
jurisdiction in which the nature of its business or location of its
properties requires such qualification;
(b) AUTHORIZATION; ENFORCEABILITY. The execution and delivery
of this Agreement and the other Related Documents (as defined in
Section 10) by each Seller and compliance with all of its provisions:
(i) are within the corporate or trust powers of each
Seller (if that Seller is an entity);
(ii) will not violate any provisions of any law or
any order of any court or governmental authority or agency and
will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default
under that Seller's Articles of Incorporation, By-laws or
other formation documents (for those Sellers which are
entities) or any indenture, trust or other agreement or
instrument to which that Seller is a party or by which that
Seller may be bound or result in the imposition of any liens
on any property of that Seller or any statute or any
regulation, order, judgment or decree of any court or
governmental or regulatory body; and
(iii) have been duly authorized by proper corporate
action on the part of that Seller (if that Seller is an
entity), and this Agreement and the other Related Documents to
which that Seller is a party have been duly executed and
delivered by each Seller and constitute the legal, valid and
binding obligations of that Seller, enforceable in accordance
with their respective terms, except as may be limited by
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application of Bankruptcy or similar laws relating to
creditor's rights or general principles of equity.
(c) COMPLIANCE WITH LAWS. Each Seller has complied with all
federal, state, county, local and foreign laws, ordinances, regulations
and orders applicable to or relating in any way to the Shares, and no
action, suit, proceeding, hearing, investigation, charge, compliant,
claim, demand or notice has been filed or commenced against each Seller
alleging any failure to so comply.
(d) CAPITALIZATION. Each Seller is the owner of record and
beneficially of those Shares as set forth on SCHEDULE 6(D). The Shares
set forth on SCHEDULE 6(D) represent all the Securities that Sellers
own, beneficially or otherwise, directly or indirectly, have pledged or
encumbered or have the right to purchase, directly or indirectly
(collectively hereinafter referred to as, "OWN"), including, without
limitation, all options, warrants, convertible securities or other
right (contingent or otherwise) to purchase or acquire any Securities
of the Company. After the sale of the Shares contemplated hereby, none
of Sellers shall have any direct or indirect voting or ownership
control in or influence or power over any Securities issued by,
associated with or relating to the Company. Sellers understand and
acknowledge that the warrants described on SCHEDULE 6(D) shall be
assigned to Xxxxx Xxxxxxx'x former spouse, Xxxxx Xxxxxxx, and his two
children, Xxxx and Xxxxxxx, on or prior to the Closing. For purposes of
this Agreement, "SECURITIES" shall mean any note, stock certificate,
option, warrant, convertible security, bond, debenture, check, draft,
traveler's check, letter of credit, evidence of indebtedness,
certificate of interest or participation in any profit-sharing
agreement, collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting-trust
certificate, instrument or document or writing evidencing ownership or,
in general, any instrument commonly known as a "security", or the right
to subscribe for, own or purchase any of the foregoing. In the event it
is discovered after the Closing Date that any Seller Owns or has any
interest in any Security issued by, associated with or relating to the
Company that a Seller failed to disclose on SCHEDULE 6(D), that
Security shall be deemed void, invalid and canceled without further
action and Seller shall not receive any payment therefor.
(e) TITLE. Except as set forth on SCHEDULE 6(E), each Seller
has good, valid and marketable title to their Shares, free and clear of
all liens, claims, restrictions or encumbrances of any kind and no
financing statement covering all or any portion of the Shares and
naming any Seller as debtor has been filed in any public office, and no
Seller has signed any financing statement or security agreement as
debtor or borrower which financing statement or security agreement
covers all or any portion of the Shares. Upon conveyance and delivery
of the Shares and payment of the Purchase Price by Buyers as herein
provided, Buyers shall be the owners of such Shares free and clear of
all liens, claims, restrictions or encumbrances of any kind.
(f) CONSENTS. Except as set forth on SCHEDULE 6(F), no consent
or approval is required by any person pursuant to the terms of any
agreement or otherwise in order to
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permit the execution and delivery by each Seller of, and the
performance by each Seller of its obligations under, this Agreement and
the consummation of the transactions contemplated hereby. All consents
necessary to the performance of the transactions on the part of each
Seller herein contemplated have been or, prior to the Closing Date,
shall have been obtained and are in full force and effect.
(g) GOVERNMENTAL ORDERS. Except as set forth on SCHEDULE 6(G),
no Seller is a party or subject to or bound by any law, judgment,
order, writ, injunction, ruling, or decree of any jurisdiction, court
or governmental body that will or is likely to adversely affect in any
manner the performance by that Seller of this Agreement on or after the
Closing Date.
(h) LITIGATION. Except as set forth on SCHEDULE 6(H), there
have been no proceedings settled and there are no proceedings pending
or, to any Seller's knowledge, threatened against or affecting any
Seller in any court or before any governmental authority or arbitration
board or tribunal which has, had, or will have an effect on the Shares.
To Seller's knowledge, there are no unasserted claims, the assertion of
which is likely and, if asserted, would have an effect on any Shares.
(i) LIABILITIES AND OBLIGATIONS OF SELLER. Except as set forth
on SCHEDULE 6(I), each Seller will have on the Closing Date no debts,
liabilities, contracts, commitments or other obligations, direct or
indirect, absolute or contingent, determined or undetermined, relating
to or affecting their Shares.
(j) KNOWLEDGE. Each Seller has such knowledge and experience
in financial, tax and business matters so as to enable him/her or it to
utilize the information made available to him/her or it in connection
with the sale of the Shares in order to evaluate the merits and risks
of this sale and to make an informed decision with respect thereto,
including, but not limited to, knowledge of any future plans of the
Company or any potential transactions that may affect the value of the
Shares in the future (including, but not limited to, transactions with
Telefonica, Deutsche Bank and certain tower deals in South America).
(k) TAX ADVICE. Each Seller is not relying on the Company
and/or Buyers with respect to the tax and other economic considerations
relating to the sale of the Shares. In regard to such considerations,
each Seller has relied on the advice of, or has consulted with, only
his/her or its own advisors.
(l) SECURITIES LAWS. The sale of the Shares under this
Agreement are exempt from registration under the Securities Act of
1933, as amended (the "Securities Act").
(m) NO BROKER. No person or entity has acted for or on behalf
of any Seller in connection with this Agreement or the transactions
contemplated hereby, and no person or entity is entitled to a broker's
fee in connection therewith.
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(n) DISCLOSURE. No representation or warranty made herein by
any Seller and no written statement, certificate or Schedule given or
to be given to Buyers pursuant to this Agreement, or with respect to
the transactions contemplated hereunder, contains or will contain any
untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained herein or
therein under the circumstances under which they were made not
misleading, and each Seller has made, and will make in good faith
through the Closing Date, full disclosure of all material facts with
respect to each Seller and the Shares.
7. REPRESENTATIONS OF BUYERS. The Buyers hereby represent and
warrant that:
(a) DUE INCORPORATION. If a Buyer is an entity: (i) Buyer is a
corporation duly organized and existing under the laws of the State of
its state of incorporation or formation, as the case may be, (ii) it
has the power and ability to enter into the Agreement and to complete
the transactions contemplated hereby, and (iii) it is qualified to
transact business and is in good standing in each jurisdiction in which
the nature of its business or location of its properties requires such
qualification and in which the failure to so qualify would have a
material adverse effect on Buyer.
(b) AUTHORIZATION; ENFORCEABILITY. The execution and delivery
of this Agreement by Buyers and compliance with all of its provisions:
(i) are within the corporate powers of Buyers (if a
Buyer is an entity);
(ii) will not violate any provisions of any law or
any order of any court or governmental authority or agency and
will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default
under the Buyer's Articles of Incorporation, By-laws or other
corporate formation documents (if a Buyer is an entity) or any
indenture or other agreement or instrument to which Buyers are
a party or by which Buyers may be bound; and
(iii) have been duly authorized by proper corporate
action on the part of Buyers, and this Agreement has been duly
executed and delivered by the Buyer and constitutes the legal,
valid and binding obligation of Buyers, enforceable in
accordance with its terms.
(c) CONSENTS. No consent or approval is required by any person
or entity pursuant to the terms of any agreement or otherwise in order
to permit the execution and delivery by Buyers of, and the performance
by Buyers of their obligations under, this Agreement and the
consummation of the transactions contemplated hereby. All Consents
necessary to the performance of the transactions on the part of Buyers
herein contemplated have been or, prior to the Closing Date, shall have
been obtained.
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(d) NO BROKER. No person or entity has acted for or on behalf
of any Seller in connection with this Agreement or the transactions
contemplated hereby, and no person or entity is entitled to a broker's
fee in connection therewith.
(e) DISCLOSURE. No representation or warranty made herein by
Buyers and no written statement or certificate given or to be given to
each Seller pursuant to this Agreement, or with respect to the
transactions contemplated hereunder, contains or will contain any
untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained herein or
therein under the circumstances under which they were made not
misleading.
(f) SECURITIES LAW REPRESENTATIONS.
(i) None of the Shares are registered under the
Securities Act, or any state securities laws. The Buyers
understand that the sale of the Shares is intended to be
exempt from registration under the Securities Act, based, in
part, upon the representations, warranties and agreements of
Buyers contained in this Agreement.
(ii) Buyers understand that, the Shares will be
"restricted securities" as such terms is used in Rule 144
under the Securities Act.
(iii) Buyers and Buyers' attorneys, accountants,
and/or tax advisors, if any (collectively, the "Advisors"),
have had access to the same kind of information which would be
available in a registration statement filed by the Company
under the Securities Act.
(iv) Buyers, together with the Advisors, have such
knowledge and experience in financial, tax, and business
matters, and, in particular, investments in securities, so as
to enable them to utilize the information made available to
them in connection with the offering of the Shares to evaluate
the merits and risks of an investment in the Shares and the
Company and to make an informed investment decision with
respect thereto.
(v) Buyers are not relying on Sellers with respect to
the legal, tax, economic and related considerations of an
investment in the Shares, and Buyers have relied on the advice
of, or have consulted with, their own Advisors.
(vi) Buyers are acquiring the Shares solely for their
own account for investment and not with a view to resale or
distribution thereof, in whole or in part. Buyers have no
agreement or arrangement, formal or informal, with any person
to sell or transfer all or any part of the Shares, and Buyers
have no plans to enter into any such agreement or arrangement.
8. CONDITIONS TO BUYERS' OBLIGATION TO CLOSE. Buyers' obligation to
consummate the transactions contemplated hereby will be subject to the following
conditions to be satisfied on or prior to the Closing Date:
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(a) Each Seller will cause the original stock certificate(s)
representing the Shares owned, directly or indirectly, beneficially or
otherwise, by that Seller to be delivered;
(b) Each Seller will cause an executed Assignment Separate
From Certificate endorsed in blank in the form of EXHIBIT B, in proper
form to be delivered (collectively, the "ASSIGNMENTS") for the Shares;
(c) Delivery by Sellers of copies of all court orders and
rulings handed down since the date any Seller owned any capital stock
of the Company that in any way affect the Shares, a list and summary of
which are attached hereto as SCHEDULE 8(C) and made a part hereof;
(d) Sellers shall transfer the Shares to Buyers free and clear
of all liens, claims and encumbrances of any nature whatsoever and
shall deliver to Buyers UCC termination statements and other releases,
satisfactory to Buyers, to evidence the release of such liens on the
Shares;
(e) Delivery by Sellers of an Opinion of Counsel substantially
in the form as the one attached hereto as EXHIBIT C (the "OPINION OF
COUNSEL");
(f) Delivery by Sellers of a list containing the names of all
the persons or entities who have Owned any of the Shares, beginning
from the date any Seller Owned any Shares to the Closing Date,
including all sales, purchases, transfers, gifts, pledges and
encumbrances made on the Shares, a copy of which are attached hereto as
SCHEDULE 8(F) and made a part hereof;
(g) Delivery by Sellers of a Non-Competition Agreement,
Non-Solicitation and Confidentiality Agreement in the form attached
hereto as EXHIBIT D (collectively, the "NON-COMPETITION AGREEMENT");
(h) Delivery by Sellers of a Release in the form attached
hereto as EXHIBIT E (collectively, the "RELEASE");
(i) If Xxxxx Xxxxxxx desires to sell an aggregate of up to
250,000 shares of Common Stock of the Company (the "SPOUSAL SHARES")
held by her and by her children in trust (the "SPOUSAL PARTIES") at the
same price per share as the purchase price per share herein, the
closing of such sale by the Spousal Parties of the Spousal Shares to
Buyers or others pursuant to a purchase agreement (the "SPOUSAL
PURCHASE AGREEMENT") shall take place concurrently with the Closing
hereunder;
(j) Payment of the amounts the Sellers owe the Company as of
the Closing Date as set forth on SCHEDULE 8(J);
(k) Assignment of all original warrants issued to any Seller
to purchase shares of the Company to the Spousal Parties;
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(l) Delivery by LaSalle Bank of a letter to Buyers agreeing to
release the 142,840 shares pledged as security for Xxxxx Xxxxxxx'x
personal loan and file all necessary UCC-3 termination statements upon
receipt of $214,260;
(m) Xxxxxx Xxxxxxx will cause an executed assignment or
assignments separate from certificate endorsed in blank to be delivered
to (i) the Receiver on behalf of Xxxxx Xxxxxxx the trusts created for
Xxxxx Xxxxxxx'x children, Xxxx and Xxxxxxx, for the transfer of an
aggregate of 800,000 shares of USRT in satisfaction of the Marital
Settlement Agreement between Xxxxx Xxxxxxx and Xxxxx Xxxxxxx and (ii)
Xxxxxx Xxxxx for the transfer of 10,000 shares of USRT in satisfaction
of the purchase agreement between Xxxxx Xxxxxxx and Xxxxxx Xxxxx; and
(n) Delivery of such other certificates, instruments and
agreements as Buyers deem reasonably necessary to carry out the
purposes of this Agreement.
The Escrow Agreement, the Assignments, the Non-Competition Agreements, the
Release and the Xxxxxx Purchase Agreement shall hereinafter be referred to as
the "RELATED DOCUMENTS".
9. CONDITION TO SELLER'S OBLIGATIONS TO CLOSE. Seller's obligation to
consummate the transaction contemplated hereby will be subject to the delivery
by Buyers of the Purchase Price, excluding the Escrowed Amount and any
Pre-Closing Adjustments, on the Closing Date.
10. POST-CLOSING OBLIGATIONS.
(a) FURTHER ASSURANCES. If, at any time after the Closing
Date, Buyers are advised that any further assignments or assurances in
law or any other acts are necessary, desirable or proper to: (a) vest,
perfect or confirm title in the Shares to Buyers; (b) ensure proper and
complete compliance with Federal, state and local administrative or
regulatory laws; or (c) otherwise carry out the purposes of this
Agreement, Sellers agree to execute and deliver all such assignments
and assurances in law and do all acts reasonably necessary or proper to
vest, perfect and confirm title to the Shares in Buyers' names, ensure
proper and complete compliance with Federal, state and local
administrative or regulatory laws or otherwise carry out the purposes
of this Agreement.
(b) RESIGNATIONS. Those Sellers who have been appointed to
director and officer positions with the Company hereby resign from all
positions they heretofore have held with the Company and all of the
Company's affiliates as of the Closing Date without further action.
(c) TERMINATION OF BENEFITS. Each Seller acknowledges that all
benefits they receive from the Company (each, a "BENEFIT" and
collectively, "BENEFITS"), including but not limited to, health
insurance, life insurance, dental insurance, matching 401(k)
contributions, expense accounts, or use of Company vehicles, facilities
or equipment, shall terminate as of the Closing Date and no Seller
shall (i) seek reimbursement for any
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expense that was incurred on or after the Closing Date or (ii) use,
seek or apply for any Benefit on or after the Closing Date. The parties
acknowledge and understand that the Company is not required to, and
will not, provide health coverage under COBRA.
(d) CONFIDENTIALITY AND NONDISPARAGEMENT.
(i) Sellers agree, from the date hereof and for all
times hereafter, that (except in connection with tax
reporting, securities filings with the Securities and Exchange
Commission, or pursuant to legal process or any legal action
to enforce the terms of this Agreement) Sellers shall keep
confidential, to the full extent permitted by law, the
existence and terms of this Agreement, all performance
hereunder and all negotiations leading to this Agreement;
(ii) Sellers, from the date hereof and for all times
hereafter, agree not to publish, disseminate or make any
disparaging remarks to any third party or portray in a
negative light Buyers, the Company and any of their related
entities, trustees, shareholders, directors, officers,
employees, representatives, family members, or agents, past or
present. Sellers, if asked, will state they separated on
terms, which they are prohibited from disclosing by agreement.
(e) POST-CLOSING ADJUSTMENTS TO PURCHASE PRICE. In the event
any Seller attends any official or unofficial meeting of or relating to
the Company, including, but not limited to, any shareholders' meetings,
after to the Closing Date, the aggregate Purchase Price shall be
reduced by fifty percent (50%). In the event any Seller contacts any
director, shareholder, officer, employee, manager, agent or
representative of the Company or spouse or family member of any of the
above (excluding their own family members and the persons listed on
SCHEDULE 5) for any reason, after the Closing Date, the aggregate
Purchase Price shall be reduced by ninety percent (90%); PROVIDED,
HOWEVER, that in no event may any Seller discuss any matter concerning
either the Company or the Shares with any such family member or person
listed on SCHEDULE 5. Each adjustment to the Purchase Price shall be
referred to as a "POST-CLOSING ADJUSTMENT." Buyers, in addition to
seeking personal repayment from Sellers, jointly and severally, for
violation of this provision, shall also be permitted to seek an
injunction against Sellers to prevent Sellers from continuing to breach
this provision.
(f) SECURITIES FILINGS. To the extent required, each party
agrees to make all necessary filings with the Securities and Exchange
Commission to satisfy the reporting requirements of all federal and
state securities laws, including, but not limited to, Section 16 of the
Exchange Act of 1934, as amended.
(g) RESTRICTION ON HOLDING OR OWNING USRT SHARES. The Sellers,
jointly and severally, agree that for a period of ten (10) years,
commencing on the date hereof, no Seller, nor any of Sellers' family
members (other than the shares and warrants to be owned by or assigned
to Xxxxx Xxxxxxx and the children's trust after the date hereof), shall
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be permitted to purchase, receive as a gift, Own or otherwise hold, of
record or beneficially, directly or indirectly, any shares of capital
stock of the Company.
(h) SPECTRASITE NON-COMPETITION AGREEMENT. In addition to the
Non-Competition Agreements, Xxxxx Xxxxxxx understands and acknowledges
that the Non-Compete Agreement dated October, 2000 by and between Apex
Site Management, Inc. and the Company is still in effect and agrees to
abide by its terms.
11. INDEMNIFICATION BY SELLERS. Sellers, jointly and severally,
personally agree to indemnify and hold harmless Buyers, their affiliates and
each of their shareholders, owners, members, directors, officers, managers,
trustees, employees, trustees, representatives, agents, successors and assigns
(the "BUYERS' PARTIES") from and against all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, judgments,
orders, decrees, rulings, damages, penalties, fines, costs, settlement amounts,
liabilities, obligations, taxes, liens, losses, expenses and fees, including
court costs and reasonable attorneys' fees and expenses (collectively, the
"LOSSES"), suffered by the Buyers' Parties resulting from, arising out of,
relating to or caused by:
(a) any breach of, or any false or misleading statement
contained in, any of representations and warranties made by any Seller
in this Agreement, a Related Document or in any instrument, certificate
or other agreement delivered by a Seller or to which a Seller is
subject in connection with the transactions contemplated hereby; or
(b) any default or failure to comply with any covenant,
obligation or agreement or term under this Agreement, any Related
Document or in any instrument, certificate or other agreement to which
a Seller is subject and is contemplated hereby.
The parties shall take into account the time cost of money in
determining Losses for purposes of this Section 11. All indemnification
payments under this Section 11 shall be deemed adjustments to the
Purchase Price.
12. PERIOD OF INDEMNITY. The indemnities contained in Section 11 shall
expire twenty four (24) months from the Closing Date except with respect to
claims as to which notice has been given within said period, in which case the
indemnification period shall be extended until final resolution of such claim.
13. ADDITIONAL REMEDIES.
(a) In addition to the indemnification provisions set forth in
Section 11, Sellers understand and acknowledge that some violations of
this Agreement and Related Documents may cause irreparable damage to
Buyers, the amount of which may be impossible to quantify. It is
therefore agreed and understood that in the event monetary damages are
an insufficient remedy due to the nature of the violation, Buyers shall
be entitled to seek injunctive relief against Sellers for such
violation, including, but not limited to, specific performance. In the
event any Buyer files suit in equity for an
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injunction, Sellers agree that Buyer shall not be required to post a
bond in excess of $1,000 in the aggregate.
(b) In addition to the foregoing remedies, Buyers shall be
entitled to exercise any rights they may have under any Related
Document.
(c) No delay or omission on the part of any party in
exercising any power or right under this Agreement or any Related
Document shall impair such right or power or be construed to be a
waiver of any right or any acquiescence therein, nor shall any single
or partial exercise of any power or right hereunder preclude other or
further exercise thereof, or the exercise of any other power or right.
14. LEGAL FEES. Buyers shall be responsible for payment of the first
$3,500 of their attorneys' fees; Sellers shall be responsible for payment of the
next $26,500 of Buyers' attorneys' fees, costs and expenses in connection with
this Agreement, Related Documents and all matters referred to herein.
15. THE SPOUSAL SHARES. Sellers agree and acknowledge that all
representations, warranties and covenants that apply to the Shares in this
Agreement shall be deemed to have been made with respect to the Spousal Shares
as well and Sellers agree to indemnify Buyers with respect to the Spousal Shares
on behalf of Xx. Xxxxxxx and her children as if Sellers were selling the Spousal
Shares themselves directly to Buyers.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof, and no
representations, promises, agreements or understandings regarding the subject
matter hereof will be of any force or effect unless in writing, executed by the
parties to be bound and dated subsequent to the date hereof.
17. ASSIGNABILITY. Buyers on the one hand and Sellers on the other
hand, may not transfer or assign any of their rights and obligations under this
Agreement without the express written consent of the other.
18. NOTICES. Any and all notices, consents, waivers, requests, demands
or other communications required or desired to be given in connection with this
Agreement and any agreements contemplated hereby shall be in writing and shall
be effective (a) personal delivery, (b) five (5) days after deposit with the
United States Postal Service if mailed certified or registered mail, postage
prepaid, return receipt requested, (c) the next day after they are sent by
reputable overnight courier service, or (d) when sent by facsimile, between 9:00
A.M. and 5:00 P.M. central standard time or the next business day thereafter if
sent after 5:00 P.M. central standard time.
If to Sellers:
See attached SCHEDULE 6(D)
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If to Sellers' Counsel:
Much Shelist Freed Xxxxxxxxx
Xxxxx & Xxxxxxxxxx PC
000 X. XxXxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
If to Buyers:
See attached SCHEDULE 2
If to Buyers' Counsel:
Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Fax No.: (000) 000-0000
19. GOVERNING LAW. This Agreement will be governed and construed in
accordance with the internal laws of the State of Illinois, without regard to
conflict of law principles.
20. SURVIVAL. All the provisions of this Agreement and Related
Documents will survive the closing of the transactions contemplated herein.
21. SEVERABILITY. If any provision of this Agreement will be held
invalid or unenforceable, the remainder nevertheless will remain in full force
and effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it nevertheless will remain in full force and effect
in all other circumstances.
22. MODIFICATIONS AND WAIVERS. No change, modification or waiver of any
provision of this Agreement will be valid or binding unless it is in writing
dated subsequent to the date hereof and signed by the party intended to be
bound. No waiver of any breach, term or condition of this Agreement by either
party will constitute a subsequent waiver of the same or any other breach, term
or condition.
23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[signature pages attached]
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IN WITNESS WHEREOF, Sellers and Buyers have executed this Agreement as
of the date set forth above.
BUYERS:
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XXXX XXXXX
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XXXXXXX XXXXX
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XXXXXX XXXXXX
U.S. REALTEL, INC.,
a Delaware corporation
By:
------------------------------------
Its:
--------------------------------
JO & CO.
By:
------------------------------------
Its:
--------------------------------
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XXXXX XXXX
-13-
IN WITNESS WHEREOF, Sellers and Buyers have executed this Agreement as
of the date set forth above.
SELLERS:
---------------------------------------
XXXXX XXXXXXX
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XXXXXX XXXXXXX
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XXXXXXX XXXXXXX
XXXXXXXX XXXXXXX XXXXXXX FOUNDATION
By:
------------------------------------
Its:
--------------------------------
-14-
