EXHIBIT 10.13
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
This Series A Preferred Stock Purchase Agreement (this "Agreement"),
dated as of October 24, 1997, is entered into by and between VIP Calling, Inc.,
a Delaware corporation (the "Company"), and the persons who become party to this
Agreement by executing and delivering to the Company an Instrument of Adherence
(an "Instrument Of Adherence") in the form attached hereto as EXHIBIT A (the
"Purchasers").
WITNESSETH
WHEREAS, the parties hereto desire to provide for the purchase and sale
of shares of up to 1,250,000 shares (the "Shares") of the Company's Series A
Convertible Preferred Stock, par value $.001 per share (the "Series A Preferred
Stock"), the rights, designations and preferences of which are set forth on
Exhibit B hereto; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to sell and issue to
each Purchaser, and each Purchaser agrees to purchase from the Company, at a
purchase price of $3.00 per share, that number of shares of Series A Preferred
stock listed below such Purchaser's name on such Purchaser's Instrument of
Adherence, each such purchase and sale to occur at a Closing (as contemplated by
Section 2 hereof).
2. MULTIPLE CLOSINGS, THE CLOSINGS.
2.1 MULTIPLE CLOSINGS. The Company is conducting an offering
of up to 1,250,000 Shares (the "Offering"). The Company may, at its discretion,
have multiple closings (each a "Closing" and the date thereof a "Closing Date")
of the Offering. There is no minimum amount of the Offering required to be sold
in connection with any such Closing.
2.2 THE CLOSINGS. Each Closing of the purchase and sale of the
Shares shall occur the offices of Xxxxxxx Xxxx LLP in Boston, Massachusetts. At
each Closing the Company shall issue and deliver to each Purchaser participating
therein a stock certificate or certificates evidencing the Shares being issued
and sold to such Purchaser, against delivery by such Purchaser of the purchase
price therefor by certified or bank check payable to the order of the
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Company or wire transfer of immediately available funds to such account as
the Company shall indicate prior to such Closing.
3. REPRESENTATIONS OF THE COMPANY. Except as disclosed by the Company
in the Exhibits and Schedules attached hereto, the Company hereby represents and
warrants to the Purchasers as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to conduct
its business as now conducted and to enter into and perform the Series A
Agreements (as defined below) and the transactions contemplated thereby. The
Company is duly qualified to do business in and is in good standing in each
state in which a failure to be so qualified would have a material adverse effect
on the Company's financial condition or its ability to conduct its business in
the manner now conducted. The Company has furnished to the Purchasers true and
complete copies of its Certificate of Incorporation and By-laws, each as amended
to date.
3.2 CAPITALIZATION. The authorized capital stock of the
Company immediately prior to the date hereof consists of (i) 6,500,000 shares of
Class A Common Stock, par value $.001 per share (the "Class A Common Stock"), of
which 2,020,000 shares are issued and outstanding, (ii) 500,000 shares of Class
B Common Stock, par value $.001 per share (the "Class B Common Stock"), of which
500,000 shares are issued and outstanding and (iii) 1,256,875 shares of Series A
Preferred Stock, none of which are issued and outstanding. All of the issued and
outstanding shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable. Except as set forth in
SCHEDULE 3.2.1 hereto, (a) no subscription, warrant, option, convertible
security or other right (contingent or otherwise) to purchase or acquire any
shares of capital stock of the Company is authorized or outstanding, (b) there
is not any commitment of the Company to issue any subscription, warrant, option,
convertible security or other such right or to issue or distribute to holders of
any shares of its capital stock any evidences of indebtedness or assets of the
Company, and (c) the Company has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or make any other distribution in
respect hereof. Except as set forth on Schedule 3.2.2 hereto or as provided in
this Agreement and the Shareholders Agreement (as defined in Section 5.5), (A)
no person or entity is entitled to (i) any preemptive or similar right with
respect to the issuance or sale of any capital stock of the Company or (ii) any
rights with respect to the registration of any capital stock of the Company
under the Securities Act of 1933, as amended (the "Securities Act") and (B)
there exists no agreement, written or oral, between the Company and any
shareholders with respect to the voting, acquisition (including, without
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limitation, rights of first refusal or preemptive rights), or disposition of any
capital stock of the Company.
3.3 SUBSIDIARIES. Except as set forth on Schedule 3.3 hereto,
the Company has no subsidiaries and does not own or control, directly or
indirectly, any interest in any other corporation, association or business
entity.
3.4 STOCKHOLDER LIST. Schedule 3.4 contains a true and
complete list of the stockholders of the Company, showing the number of shares
of Common Stock or other securities of the Company held by each stockholder as
of the date of this Agreement.
3.5 ISSUANCE OF SHARES. The issuance, sale and delivery of the
Shares in accordance with this Agreement and the reservation, issuance, sale and
delivery of the shares issuable upon conversion of the Shares have been duly
authorized by all requisite corporate action on the part of the Company, and the
Shares, when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement, and the shares of Class A
Common Stock issuable upon conversion of the Shares, when issued upon such
conversion in accordance with the Company's Certificate of Incorporation, will
be duly and validly issued, fully paid and non-assessable.
3.6 AUTHORITY FOR AGREEMENT. The execution, delivery and
performance by the Company of this Agreement, the Shareholders' Agreement (as
defined in Section 5.5) and the Registration Rights Agreement (as defined in
Section 5.6) (collectively, the "Series A Agreements") have been duly authorized
by all requisite corporate action, and each of the Series A Agreements has been
duly executed and delivered by the Company. Each of the Series A Agreements
constitutes the valid and binding obligation of the Company enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting enforcement of creditor's rights
and the application of equitable principles in any action legal or equitable.
The execution and delivery of the Series A Agreements and performance of the
transactions contemplated thereby and compliance with their provisions by the
Company will not violate any provision of law 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 Company's Certificate of Incorporation or
By-laws, each as amended to date, or any indenture, lease, agreement or other
instrument to which the Company is a party or by which the Company or any of its
properties is bound, or any decree, judgment, order, statute, rule or regulation
applicable to the Company, except where any such violation, conflict, breach or
default would not have a material adverse effect on the condition (financial or
otherwise), business or properties of the Company.
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3.7 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority is required on the part of the Company
in connection with the execution and delivery of the Series A Agreements, the
offer, issue, sale and delivery of the Shares, or the other transactions to be
consummated at any Closing, except (i) the filing by the Company of a Form D
with the Securities and Exchange Commission, which the Company hereby covenants
to file within fifteen (15) days of the close of the Offering, (ii) requisite
filings with appropriate state securities authorities, if any, which the Company
hereby covenants to make on a timely basis, and (iii) such filings as shall have
been made prior to and shall be effective on and as of the first Closing.
3.8 LITIGATION. There is no action, suit, proceeding or
investigation pending, or, to the best of the Company's knowledge, threatened
against the Company, which might result, either individually or in the
aggregate, in any material adverse change in the assets, condition (financial or
otherwise), business or prospects of the Company or that would limit or impair
the power or authority of the Company to enter into the Series A Agreements and
consummate the transactions contemplated therein.
3.9 ABSENCE OF LIABILITIES. Except as set forth on Schedule
3.9 hereto, the Company does not have, as of the date hereof, any liabilities of
any type which in the aggregate exceeded $50,000, whether absolute or
contingent.
3.10 PROPERTY AND ASSETS. The Company has good title to all of
its material properties and assets as set forth on Schedule 3.10 hereto and,
except as set forth on such schedule, none of such properties or assets is
subject to any mortgage, pledge, lien, security interest, lease, charge or
encumbrance.
3.11 PATENTS AND TRADEMARKS. Schedule 3.11 hereto lists all
the material patents, patent applications, trademarks, registered service marks,
registered trademark and service xxxx applications, registered copyrights and
patent and trademark licenses now owned or held by the Company. To the best of
the Company's knowledge, the business proposed by the Company will not cause the
Company to infringe or violate any of the patents, trademarks, service marks,
trade names, copyrights, licenses, trade secrets or other proprietary rights of
any other person or entity. The Company is not aware that any employee is
obligated under any contract (including any license, covenant or commitment of
any nature), or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee's best
efforts to promote the interest of the Company or would conflict with the
Company's business as proposed to be conducted. There is no claim, suit, action
or proceeding pending, or to the Company's knowledge of threatened, against the
Company asserting that the Company's use of any of its intellectual property
infringes the rights of any other entity.
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3.12 INSURANCE. The Company maintains or will acquire within
sixty (60) days after the date hereof valid policies of workers' compensation
insurance and of insurance with respect to its properties and business of the
kinds and in the amounts not less than is customarily obtained by corporations
of established reputation engaged in the same or similar business and similarly
situated, including, without limitation, insurance against loss, damage, fire,
theft, public liability and other risks.
3.13 MATERIAL CONTRACTS AND OBLIGATIONS. Except as set forth
on Schedule 3.13 hereto, there are no (i) agreements which require future
expenditures by the Company in excess of $50,000, (ii) leases or rental
agreements for real property or office space, (iii) employment or consulting
agreements, employee benefit, bonus, pension, profit-sharing, stock option,
stock purchase or similar plans or arrangements, or (iv) any material agreements
between the Company and any stockholder, officer or director of the Company, or
any "Affiliate", OR "Associate" of such persons (as such terms are defined in
the rules and regulations promulgated under the Securities Act), is now a party,
including without limitation any agreement or other arrangement providing for
the furnishing of services by, rental of real or personal property from, or
otherwise requiring payments to, any such person or entity in excess of $50,000.
The Company has delivered to the Purchaser true and complete copies of the
foregoing agreements. All of such agreements and contracts are valid, binding
and in full force and effect.
3.14 ERISA. The Company maintains no employee benefit plans,
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974.
3.15 COMPLIANCE. The Company has, in all material respects,
complied with all laws, regulations and orders applicable to its present and
proposed business and has obtained all material permits and licenses required
thereby, except where the failure to obtain such permits or licenses would not
have a material adverse effect. There is no term or provision of any material
mortgage, indenture, contract, agreement or instrument to which the Company is a
party or by which it is bound or, to the knowledge of the Company, of any
provision of any state of Federal judgment, decree, order, statute, rule or
regulation applicable to or binding upon the Company, which, in the absence of a
breach or violation of any such provision, law or judgment, decree or
regulation, materially adversely affects the business, prospects, or operations
of the Company or its properties or assets. To the best of the Company's
knowledge, none of the employees of the Company is in violation of any term of
any employment contract, patent or other proprietary information disclosure
agreement or any other contract or agreement relating to the employment of such
employee by the Company.
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3.16 EMPLOYEES. Except as set forth on Schedule 3.16 hereto,
each employee of the Company whose activities require access to confidential or
proprietary information of the company has executed and delivered to the Company
a Proprietary Information and Inventions Agreement substantially in the form of
Exhibit C hereto, and each such agreement is in full force and effect. None of
the employees of the Company is represented by any labor union, and there is no
labor strike or other labor trouble pending with respect to the Company or, to
the best knowledge of the Company, threatened.
3.17 BROKERS OR FINDERS. The Company has not entered into any
arrangement that would cause any person to have any right, interest or valid
claim against or upon the Company for any commission, fee or other compensation
as a finder or broker as a result of the consummation of the transactions
contemplated by this Agreement.
3.18 DISCLOSURES. Neither this Agreement nor any Exhibit
hereto, nor any agreement or document delivered by the Company to the Purchasers
or their counsel in connection with the transactions contemplated by this
Agreement, when read together with the Company's Business Plan dated July 1997
(the "Business Plan"), contains or will contain any material misstatement of
fact or omits or will omit to state a material fact necessary to make the
statements continued herein or therein not misleading. Anything disclosed in any
Schedules or Exhibits hereto or in any other agreement or document (including
any schedule or exhibit thereto) delivered in connection with the transactions
contemplated by this Agreement shall be deemed disclosed in all other Schedule
or Exhibit hereto and in all other agreements or documents delivered in
connection with such transaction.
3.19 MINUTES BOOKS AND STOCK LEDGER. The minute books of the
Company contain materially complete and accurate records of all meetings and
other corporate action of the stockholders, Board of Directors, and committees
thereof. The stock ledger of the Company is complete and accurate and reflects
all issuances, transfers, repurchases, and cancellations of shares of the
Company's capital stock.
3.20. FINANCIAL STATEMENTS. The unaudited financial statements
of the Company at and for the six month period ending June 30, 1997 (the
"Company Financial Statements"), which are attached as Schedule 3.20 hereto, are
true, correct and complete in all material respects and present fairly, in
conformity with generally accepted accounting principles consistently applied
(except, that the unaudited financial statements do not contain all of the
required footnotes and are subject to normal, recurring non-material year-end
adjustments) the financial position of the Company at the dates indicated and
the results of its operations for each of the periods indicated, except as
otherwise
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set forth in the notes thereto. The books and records of the Company have
been kept, and will be kept to the date of the Closing, in reasonable detail,
and will fairly and accurately reflect in all material respects to the date
of the Closing, the transactions of the Company.
3.21 ABSENCE OF CERTAIN CHANGES. Since June 30, 1997 and
except as disclosed elsewhere in this Agreement, there has not been any change
in the condition (financial or otherwise), properties, assets, liabilities or
business prospects of the Company, which has been materially adverse or has
occurred outside of the ordinary course of business.
3.22 TAX RETURNS. The Company has filed in correct form all
tax returns and estimates (federal, state and local) required to be filed by it,
and has paid all taxes shown to be due and payable on the returns or on any
assessment received by the Company as well as all other taxes (federal, state
and local) due and payable by it on or before the date hereof, other than state
and local realty taxes which are payable but which are not yet due. The Internal
Revenue Service has not conducted an examination of any income tax returns of
the Company. The amount shown on the Company Financial Statements as provision
for taxes, if any, is sufficient in all material respects for payment of all
accrued and unpaid federal, state, county, local, and foreign taxes for the
period then ended and all prior periods.
3.23 ENVIRONMENTAL MATTERS. The Company, to the best of its
knowledge, is in compliance with all local, state and federal environmental
statutes, laws, rules, regulations and permits, including but not limited to
CERCLA. Except for acrylamide acrylic acid, caustic soda, methylene
bisacrylamide used in manufacturing and common chemicals used by the in cleaning
and materials processing, the Company has not, nor to the Company's knowledge
have other parties, used, stored, disposed of or permitted any "hazardous
substance" (as defined in CERCLA), petroleum hydrocarbon, polychlorinated
biphenyl, asbestos or radioactive material (collectively, "Hazardous
Substances") to remain at, on, in or under any of the property covered by any of
the real property leases to which the Company is a party. The Company has not
installed, used, or disposed of any asbestos or asbestos-containing material on,
in or under any of the property covered by any of the real property leases to
which it is a party.
4. REPRESENTATIONS OF EACH PURCHASER. Each Purchaser, as to itself,
represents and warrants to the Company as follows:
4.1 AUTHORITY. It has full power and authority to enter into
and to perform this Agreement and the Shareholders Agreement in accordance with
their terms. If not a natural person, it is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization.
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4.2 INVESTMENT PURPOSE. The Purchaser is acquiring Shares for
its own account for the purpose of investment and not with a view to
distribution or resale thereof.
4.3 NO REGISTRATION. The Purchaser understands and agrees that
the Shares have not been registered under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and therefore, cannot be offered, sold or transferred
unless they are registered under the Securities Act or an exemption from such
registration is available.
4.4 DEVELOPMENT-STAGE COMPANY. The Purchaser acknowledges and
understands that the Company is a development-stage company.
4.5 REQUISITE KNOWLEDGE. The Purchaser represents that it has
such knowledge and experience in business and financial matters with respect to
investments in securities of privately-held, development-stage companies so as
to enable it to understand and evaluate the risks of the Purchaser's investment
in the Shares and to form an investment decision with respect thereto.
4.6 SUFFICIENCY OF INFORMATION. The Purchaser has evaluated
the risks of investing in the Shares, as described in the "Risk Factors" section
of the Business Plan. The Purchaser has been afforded the opportunity during the
course of negotiating the transactions contemplated by this Agreement to ask
questions of, and to secure such information from, the Company and its officers
and directors as it deems necessary to evaluate the merits of entering into such
transactions, and all information requested has been given and all questions
asked were answered.
4.7 ADEQUATE NET WORTH. The Purchaser represents that it has
adequate net worth and means of providing for its current needs and personal
contingencies to sustain a complete loss of its investment in the Shares. In
particular, the Purchaser confirms that the amount of its investment in the
Shares does not exceed 25% of its net worth (including, if the Purchaser is a
natural person, the net worth of his or her spouse).
4.8 INVESTOR QUESTIONNAIRE. The Purchaser is, simultaneously
herewith, completing an Investor Questionnaire to establish that it is an
"accredited investor" within the meaning of Rule 501 under the Securities Act.
The Purchaser represents and warrants that it has completed this Questionnaire
accurately, and acknowledges and understands that the Company is relying upon
such Investor Questionnaire to establish that an exemption from registration of
the Shares under federal Securities Act is available.
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5. CONDITIONS TO THE OBLIGATIONS OF EACH PURCHASER. The obligation of
each Purchaser to purchase Shares at any Closing is subject to the fulfillment,
or the waiver by such Purchaser, of each of the following conditions on or
before the applicable Closing Date:
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Section 3 of this Agreement (except
for such representations and warranties as are limited by their terms to an
earlier specified date (which shall be true as of such date)) shall be true and
correct in all material respects on and as of such Closing Date with the same
effect as though such representations and warranties had been made on and as of
that date.
5.2 PERFORMANCE. The Company shall have performed and complied
in all material respects with all agreements and conditions contained in this
Agreement required to be performed or complied with by the Company prior to or
at such Closing.
5.3 OPINION OF COUNSEL. The Purchaser shall have received an
opinion from Xxxxxxx Xxxx LLP, counsel to the Company, dated as of the date
hereof, addressed to the Purchasers.
5.4 CERTIFICATES AND DOCUMENTS. The Company shall have
delivered to the Purchasers:
(i) A copy of the Certificate of Incorporation of Organization
of the Company, as amended and in effect as of the date hereof, certified by the
Secretary or Assistant Secretary of the Company;
(ii) A copy of the By-laws of the Company as amended and in
effect as of the date hereof, certified by the Secretary of Assistant Secretary
of the Company as of the date hereof;
(iii) A copy of resolutions of the Board of Directors
authorizing and approving all requisite matters in connection with this
Agreement and the transactions contemplated hereby, certified by the Secretary
or Assistant Secretary of the Company as of the date hereof;
(iv) A certificate, as of a date reasonably proximate to the
date hereof, as to the corporate good standing of the Company issued by the
Secretary of State of Delaware;
(v) A certificate, as of the applicable Closing Date, stating
that the conditions specified in Section 5.1 have been fulfilled.
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5.5 SHAREHOLDERS' AGREEMENT. The First Amended and Restated
Stockholders Agreement, substantially in the form of EXHIBIT D hereto (the
"Shareholders' Agreement") shall have been executed and delivered by the Company
and the holders of at least sixty percent (60%) of the aggregate issued and
outstanding shares of the Class A Common Stock and the Class B Common Stock.
5.6 REGISTRATION RIGHTS AGREEMENT. The Registration Rights
Agreement, substantially in the form of EXHIBIT E hereto (the "Registration
Rights Agreement") shall have been executed and delivered by the Company.
6. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation of the
Company to sell Shares to a Purchaser at any Closing is subject to the
fulfillment, or waiver by the Company, of each of the following conditions on or
before the applicable Closing Date:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Purchaser contained in Section 4 shall be
true and correct in all material respects on and as of the applicable Closing
Date with the same effect as though such representations and warranties had been
made on and as of that date.
6.2 ANCILLARY AGREEMENTS. The Purchaser shall become or shall
have become a party to the Shareholders' Agreement and the Registration Rights
Agreement.
6.3 BLUE SKY APPROVALS. The Company and the Purchaser shall
have received all requisite approvals and made any requisite filings with state
Blue Sky authorities and any such approvals shall be in full force and effect on
the applicable Closing Date (other than filings required to be made after the
applicable Closing Date).
7. LEGEND. Each Purchaser understands that the certificate or
certificates evidencing Shares purchased by such Purchaser shall bear the
following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES UNDER
THE SECURITIES ACT OR (ii) RECEIPT BY THE ISSUER OF AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, PLEDGE,
HYPOTHECATION OF OTHER TRANSFER MAY BE MADE PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHICH
SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
OF SUCH PREFERENCES AND/OR RIGHTS.
Each Purchaser further understand that the Company may place a
stop-transfer order on any of the Shares with the Company's transfer agent.
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8. MISCELLANEOUS.
8.1 NOTICES. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be deemed effectively
given and received upon delivery in person, or one business day after delivery
by national overnight courier service or by telecopier transmission with
acknowledgment of transmission receipt, or three business days after deposit via
certified or registered mail, return receipt requested, in each case addressed
as follows:
(a) if to the Company, to:
VIP Calling, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx Xxxxxx
President
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
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(b) if to a Purchaser, to the address of such Purchaser set forth on the
Instrument of Adherence executed and delivered to the Company by such
Purchaser;
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the other.
8.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts made and to be performed entirely within the state
without regard to principles of conflicts of law.
8.3 ENTIRE AGREEMENT. This Agreement, including the
Schedules and Exhibits hereto, constitutes the sole and entire agreement of
the parties with respect to the subject matter hereof and thereof. All
Schedules and Exhibits hereto are hereby incorporated herein by reference.
8.4 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 NO WAIVERS; AMENDMENTS.
(a) No failure or delay on the part of any party in exercising any
right, power, or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power, or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not exclusive of
any remedies that may be available to any party at law or in equity or
otherwise.
(b) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Company and
Purchasers who, at any given time, hold at least a majority of the then
outstanding shares of Series A Preferred Stock.
8.6 SEVERABILITY. If any provision of this Agreement shall be
declared void or unenforceable by a judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
8.7 GENDER. All pronouns and all variations thereof shall be
deemed to refer to the masculine, feminine, or neuter, singular or plural, as
the identity of the person or persons, thing or entity may require.
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8.8 HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.9 EXPENSES. Each party hereto shall be responsible for its
now legal costs incurred in connection with the preparation, review and
negotiation of the transactions contemplated by this Agreement.
8.10 SURVIVABILITY. Notwithstanding any investigation
conducted at any time with regards thereto by or on behalf of any Purchaser, all
representations and warranties of the parties hereto shall survive each Closing
and shall remain in full force and effect through and until March 31, 1999.
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IN WITNESS WHEREOF, the undersigned sets its hand under seal as of the
day and year first above written.
COMPANY:
VIP CALLING, INC.
By: /s/ Xxxxxx X. XxxxxxXxxx
------------------------
Xxxxxx XxxxxxXxxx
Vice President
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Seruus Telecom Fund, LP, in order to purchase an
aggregate of 33,333 shares (the "Shares") of Series A Convertible Preferred
Stock, par value $.001 per share, of VIP Calling, Inc., a Delaware corporation
(the "Company"), hereby agrees to become a "Purchaser" party to the Series A
Preferred Stock Purchase Agreement among the Company and the other Purchaser
parties thereto dated as of October 24, 1997 (the "Purchase Agreement"). This
Instrument of Adherence shall take effect and shall become a part of said
Purchase Agreement immediately upon execution.
Subject to the terms and conditions set forth in the Stock Purchase
Agreement, Seruus agrees to purchase (i) 166,667 of the Shares, for an aggregate
purchase price of $500,001, as of the date hereof, and (ii) the remaining
166,666 of the Shares for which Seruus hereby subscribes (the "Remaining
Shares"), for an aggregate purchase price of $499,998, which ten (10) days of
delivery by the Company to Seruus of evidence of the Company's receipt of
billing revenue from a carrier providing internet, telephony services over the
Company's VIP Calling Network; PROVIDED, HOWEVER, that Seruus shall not be
required to purchase the Remaining Shares prior to December 15, 1997.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 333,333
--------------------
Signature: /s/ Xxxxx X. Xxxxx
------------------------------
Address: Seruus Telecom Fund, LP
------------------------------
XX Xxx 0000
------------------------------
Xxxxxxxxxx, XX 00000-0000
------------------------------
Date: 24 Oct. 1997
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxxxx Trust u/a/d 12/18/91, in order to
purchase 200,000 shares of Series A Convertible Preferred Stock, par value $.001
per share, of VIP Calling, Inc., a Delaware corporation (the "Company"), hereby
agrees to become a "Purchaser" party to the Series A Preferred Stock Purchase
Agreement among the Company and the other Purchaser parties thereto dated as of
October 24, 1997 (the "Purchase Agreement"). This Instrument of Adherence shall
take effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 200,000
-------------------
Signature: /s/ C.N. Corfield (Hee)
------------------------------
Address: 000 Xxxx Xx.
------------------------------
Xxxx Xxxx, XX 00000
------------------------------
------------------------------
Date: 21 Oct. 1997
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxx X. Xxxxx, in order to purchase 21,666 shares
of Series A Convertible Preferred Stock, par value $.001 per share, of VIP
Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 21,666
--------------------
Signature: /s/ Xxxxxxx X. Xxxxx
------------------------------
Address: 000 X. 00xx Xxxxxx
------------------------------
Apartment #1607
------------------------------
Xxx Xxxx, XX 00000
------------------------------
Date: 10/29/97
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx X. Xxxxxx, in order to purchase 17,000 shares of
Series A Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 17,000
--------------------
Signature: /s/ Xxxx X. Xxxxxx
------------------------------
Address: 000 Xxxxxxxxx Xxxx
------------------------------
Xxxx Xxxx, XX 00000
------------------------------
Xxx Xxxxx, XX 00000
------------------------------
Date: 10/27/97
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Securities, Inc. ("Xxxx Securities"), in order to
purchase an aggregate of 556,168 shares (the "Shares") of Series A Convertible
Preferred Stock, par value $.001 per share, of VIP Calling, Inc., a Delaware
corporation (the "Company"), hereby agrees to become a "Purchaser" party to the
Series A Preferred Stock Purchase Agreement among the Company and the other
Purchaser parties thereto dated as of October 24, 1997 (the "Purchase
Agreement"). This Instrument of Adherence shall take effect and shall become a
part of said Purchase Agreement immediately upon execution.
Subject to the terms and conditions set forth in the Stock Purchase
Agreement, Xxxx Securities agrees to purchase (i) 278,084 of the Shares, for an
aggregate purchase price of $834,252, as of the date hereof, and (ii) the
remaining 278,084 of the Shares for which Xxxx Securities hereby subscribes (the
"Remaining Shares"), for an aggregate purchase price of $834,252, within ten
(10) days of delivery by the Company to Xxxx Securities of evidence of the
Company's receipt of billing revenue from a carrier providing Internet,
telephone and fax services over the Company's VIP Calling Network; PROVIDED,
HOWEVER, that Xxxx Securities shall not be required to purchase the Remaining
Shares prior to December 15, 1997.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 556,168*
--------------------
XXXX SECURITIES, INC.
By:/s/ Xxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxxx
Address: Two Xxxxxx Place
------------------------------
Boston, Mass 02116
------------------------------
Date: November 11, 1997
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Elka Ltd., in order to purchase 16,500 shares of
Series A Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 16,500
--------------------
Signature: /s/ Itamar Hatsor
------------------------------
Address: X.X. Xxx 00000
------------------------------
Tel-Aviv
------------------------------
00000 Xxxxxx
------------------------------
Date: Nov. 6, 1997
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx Xxxxxxxx, in order to purchase 11,666 shares of
Series A Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 11,666
--------------------
Signature: /s/ Xxxxx Xxxxxxxx
------------------------------
Address: 000 Xxxxxxxxxx Xxxx
------------------------------
Xxxx Xxxxxxxxx, XX 00000
------------------------------
Date: 11/3/97
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx X. Xxxx, in order to purchase 16,667 shares of
Series A Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 16,667
--------------------
Signature: /s/ Xxxxx X. Xxxx
------------------------------
Date:
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx X. Xxxxxxx, in order to purchase ________ shares
of Series A Convertible Preferred Stock, par value $.001 per share, of VIP
Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 17,000
--------------------
Signature: /s/ Xxxxx X. Xxxxxxx
------------------------------
Address: 42 Xxxxxxx Xxxxxx Road
------------------------------
Xxxxxxxxx, XX 00000
------------------------------
------------------------------
Date: 11/2/92
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxx Xxxxxx, in order to purchase 3,333 shares of
Series A Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 3,333
--------------------
Signature: /s/ Xxxx Xxxxxx
------------------------------
Address: 0 Xxxxxxxxxx Xx.
------------------------------
Xxxxxxxxxx, XX 00000
------------------------------
------------------------------
Date: 11/24/97
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxx Xxxxxxx, Xx., in order to purchase 25,000
shares of Series A Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series A Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of October
24, 1997 (the "Purchase Agreement"). This Instrument of Adherence shall take
effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 25,000
--------------------
Signature: /s/ Xxxxx Xxxxxxx, Xx.
------------------------------
Address: 5810 Antigua Dr.
------------------------------
San Xxxx, Cal
------------------------------
95120
------------------------------
Date:
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxx X. XxxxxxXxxx, in order to purchase 1,667
shares of Series A Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series A Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of October
24, 1997 (the "Purchase Agreement"). This Instrument of Adherence shall take
effect and shall become a part of said Purchase Agreement immediately upon
execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 1,667
--------------------
Signature: /s/ X.X. Xxxxxxxxxx
------------------------------
Address: 00 Xxxxxxxx Xxx.
------------------------------
Xxxxxxxxx, XX 00000
------------------------------
------------------------------
Date: 11/24/97
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, Xxxxxxxxx X. XxxxxxXxxx, in order to purchase 5,000
shares of Series A Convertible Preferred Stock, par value $.001 per share, of
VIP Calling, Inc., a Delaware corporation (the "Company"), hereby agrees to
become a "Purchaser" party to the Series A Preferred Stock Purchase Agreement
among the Company and the other Purchaser parties thereto dated as of October
24, 1997 (the "Purchase Agreement").
The undersigned, Xxxxxxxxx X. XxxxxxXxxx, hereby represents that she is
not an "accredited investor" within the meaning of Rule 501 of the Securities
Act and, therefore, does not make such representation pursuant to Section 4.8 of
the Purchase Agreement. however, the undersigned, Xxxxxxxxx X. XxxxxxXxxx,
represents and warrants that she has completed the Investor Questionnaire
accurately, and acknowledges and understands that the Company is relying on such
Investor. Questionnaire to establish that an exemption from the Federal
Securities Act is available.
This Instrument of Adherence shall take effect and shall become a part
of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 5,000
--------------------
Signature: /s/ X.X. Xxxxxxxxxx
------------------------------
Address: 000 X. Xxxxxx #0X
------------------------------
Chic IL
------------------------------
60610
------------------------------
Date: 11/21/97
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
EXHIBIT A TO
STOCK PURCHASE AGREEMENT
VIP CALLING, INC.
INSTRUMENT OF ADHERENCE
TO SERIES A PREFERRED STOCK PURCHASE AGREEMENT
The undersigned, X.X. XxxxxxXxxx, in order to purchase 25,000 shares of
Series A Convertible Preferred Stock, par value $.001 per share, of VIP Calling,
Inc., a Delaware corporation (the "Company"), hereby agrees to become a
"Purchaser" party to the Series A Preferred Stock Purchase Agreement among the
Company and the other Purchaser parties thereto dated as of October 24, 1997
(the "Purchase Agreement"). This Instrument of Adherence shall take effect and
shall become a part of said Purchase Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
The Commonwealth of Massachusetts:
No. of Shares Purchased: 25,000
--------------------
Signature: /s/ X.X. Xxxxxxxxxx-Trustee
------------------------------
Address: 0000 Xxxxxxx Xxxx
------------------------------
Bloomfield Twp.
------------------------------
XX 00000
------------------------------
Date: 11-19-97
------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------------
