EXHIBIT 4.3
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of November
8, 1996 among CELLULAR TECHNICAL SERVICES COMPANY, INC., 2401 Fourth Avenue,
Seattle, Washington 98121, a Delaware corporation (the "Company"), and the
persons whose names and addresses are set forth on the signature page hereof
(each a "Purchaser").
ARTICLE I
PURCHASE AND SALE OF COMMON STOCK
1.1 PURCHASE AND SALE. Upon the basis of the representations, warranties
and covenants, for the consideration, and subject to the terms and conditions
set forth in this Agreement, the Company agrees to sell to each Purchaser, and
each Purchaser agrees to severally purchase from the Company, the number of
shares of the Common Stock, $.001 par value of the Company set forth opposite
his name on the signature page hereof which shares total an aggregate of 400,000
shares (the "Shares") free and clear of all claims, liens, charges and
encumbrances of any nature whatsoever. In consideration of the sale of the
Shares by the Company to the Purchasers, each Purchaser shall, on or before
November 12, 1996, pay in cash or wire funds to the Company the amount set forth
opposite his name on the signature page hereof. The opinion of Parker Chapin
Flattau & Klimpl, LLP, counsel to the Company, concerning certain matters under
this Agreement shall be delivered to the Purchasers upon full payment of the
purchase price for the Shares.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company represents, warrants and covenants to each Purchaser as
follows:
2.1 INCORPORATION AND ORGANIZATION. The Company is a corporation duly
formed, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to own and operate its
assets and properties and carry on its business as presently conducted and is
duly qualified to do business and is in good standing in all jurisdictions in
which the ownership or occupancy of its properties or its activities presently
makes such qualification necessary, except where the failure to so qualify or be
in good standing would not have a material adverse effect upon the businesses,
properties or assets of the Company.
2.2 AUTHORITY AND VALIDITY. The Company has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby, including without limitation the sale and issuance of the
Shares. The execution and delivery by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action of the Company. This
Agreement has been duly and validly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought. The Shares when
issued in accordance with this Agreement will be, duly and validly issued, fully
paid and nonassessable and free of pre-emptive rights by any shareholders of the
Company.
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2.3 CONSENTS AND APPROVALS. Assuming the accuracy of the representation
of each Purchaser set forth in Section 3.5 hereof and except as may be required
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), in connection with the Company's registration obligation under Article IV
hereof, all authorizations, approvals and consents, if any, required to be
obtained from, and all registrations, declarations and filings, if any, required
to be made with all governmental authorities and regulatory bodies to permit the
Company to execute and deliver and to perform its obligations under, this
Agreement have been obtained or made, as the case may be, and all such
authorizations, approvals, consents, registrations, declarations and filings
(collectively, "Company consents and filings") are in full force and effect,
except where failure to obtain and/or maintain in full force and effect such
Company consents and filings would not have a material adverse effect upon the
execution and delivery of, and upon the performance of the Company's obligations
under, this Agreement.
2.4 NO VIOLATIONS. Neither the execution or delivery by the Company, nor
the consummation by the Company of the transactions herein contemplated, nor the
fulfillment by the Company of the terms and provisions hereof (i) will conflict
with, violate or result in a breach of, any of the terms, conditions or
provisions of any law, regulation, order, writ, injunction, decree,
determination or award of any court, governmental department, board, agency or
instrumentality or any arbitrator, applicable to the Company, (ii) will conflict
with, violate or result in a breach of, or constitute a default under, any of
the terms, conditions or provisions of the Company's certificate of
incorporation and by-laws, or (iii) will conflict with, violate or result in a
breach of, or constitute a default under, any of the terms, conditions or
provisions of any material loan agreement, indenture, trust, deed or other
agreement or instrument to which the Company is a party or by which it is bound,
except where such conflict, violation or breach will not have a material adverse
effect on the Company's execution, delivery, consummation or fulfillment of this
Agreement.
2.5 PUBLIC DOCUMENTS. As of the dates on which they were filed, none of
the Company's filings with the Securities and Exchange Commission (the "SEC")
since January 1, 1996 contained any untrue statements of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Company has registered its Common Stock pursuant to
Section 12 of the Exchange Act and the Common Stock is included for trading on
the NASDAQ Stock Market. The Company has filed in a timely manner all material
required to be filed pursuant to all applicable reporting obligations under
either Section 13(a) or 15(d) of the Exchange Act for a period of at least 12
months prior to the date hereof. As of November 11, 1996 the Company has issued
and outstanding 22,212,708 shares of Common Stock.
2.6 FULL DISCLOSURE. There is no fact known to the Company (other than
general economic conditions known to the public generally) that has not been
disclosed in the Company's filings with the SEC that (i) is likely to have a
material adverse effect on the condition (financial or otherwise) or in the
earnings, business affairs, business prospects, properties or assets of the
Company and its subsidiaries taken as a whole or (ii) is likely to materially
and adversely affect the ability of the Company to perform its obligations
pursuant to this Agreement.
2.7 EXEMPTION FROM SECURITIES ACT. Assuming that the representations,
warranties and acknowledgments of each Purchaser provided for in Article III
hereof are true and correct, the sale of the Shares to each such Purchaser
pursuant to this Agreement will be exempt from the registration provisions of
the Securities Act and the registration provisions of any blue sky or other
state referred to as "blue sky laws") of any applicable jurisdiction.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
Each Purchaser severally represents, warrants and covenants to the Company
solely with respect to himself as follows:
3.1 ORGANIZATION. Each Purchaser which is not an individual has been duly
organized and is subsisting and has full power and authority to own and operate
its assets and properties and carry on its businesses as presently conducted.
3.2 AUTHORITY. Such Purchaser has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by such Purchaser of this Agreement and the
consummation by such Purchaser of the transactions contemplated hereby have been
duly authorized by all necessary action of such Purchaser. This Agreement has
been duly and validly executed and delivered by such Purchaser and constitutes a
valid and binding obligation of such Purchaser enforceable against such
Purchaser in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
3.3 CONSENTS AND APPROVALS. Assuming the accuracy of the representations
of the Company set forth in Section 2.3 hereof, all authorizations, approvals
and consents, if any, required to be obtained from, and all registrations,
declarations and filings, if any, required to be made with, all governmental
authorities and regulatory bodies to permit such Purchaser to execute and
deliver, and to perform its obligations under this Agreement have been obtained
or made, as the case may be, and all such authorizations, approvals, consents,
registrations, declarations and filings (collectively, Purchaser consents and
filings") are in full force and effect, except where failure to obtain and/or
maintain in full force and effect the Purchaser consents and filings would not
have a material adverse effect upon the execution and delivery of, and upon the
performance of the Purchasers' obligations under, this Agreement.
3.4 NO VIOLATIONS. Neither the execution or delivery by such Purchaser of
this Agreement, nor the consummation by such Purchaser of the transactions
herein contemplated, nor the fulfillment by such Purchaser of the terms and
provisions hereof (i) will conflict with, violate or result in a breach of, any
of the terms, conditions or provisions of any law, regulation, order, writ,
injunction, decree, determination or award of any court, governmental
department, board, agency or instrumentality or any arbitrator, applicable to
such Purchaser, or (ii) will conflict with, violate or result in a breach of, or
constitute a default under, any of the terms, conditions or provisions of any
material loan agreement, indenture, trust, deed or other agreement or instrument
to which such Purchaser is a party or by which he is bound, except where such
conflict, violation or breach will not have a material adverse effect on such
Purchaser's execution, delivery, consummation or fulfillment of this Agreement.
3.5 INVESTMENT REPRESENTATION. Such Purchaser is an accredited investor
within the meaning of Regulation D promulgated under the Securities Act and is
acquiring the Shares for his own account for investment purposes, and not with a
view to, or for resale in connection with, any distribution thereof within the
meaning of the Securities Act and that the Shares will not be resold except in
compliance with the Securities Act. Such Purchaser understands that the Shares
have not been registered under the
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Securities Act or any blue sky laws in reliance, in part, upon the
representations, warranties and covenants contained herein. Such Purchaser
also understands that he cannot offer for sale, sell or transfer the Shares
except as provided below.
3.6 TRANSFER RESTRICTIONS. Such Purchaser agrees that the following
restrictive legend will be placed on certificates representing any or all of the
Shares and that transfer of any or all of the Shares may be refused by the
Company's transfer agent unless the Shares for which transfer is sought are
registered under the Securities Act and all other applicable federal securities
or blue sky laws or unless such Purchaser provide information satisfactory to
the Company that such registration is not required:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
OTHER THAN (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES."
Such Purchaser agrees that the Shares being delivered pursuant to this
Agreement shall not be transferred by such Purchaser except (i) pursuant to an
effective registration statement under the Securities Act, or (ii) pursuant to
an exemption from registration under the Securities Act. Each Purchaser
represents and warrants that he or it has (i) such knowledge and experience in
financial and business matters that he is capable of evaluating the merits and
risks of an investment in the Common Stock, (ii) all information deemed by him
or it to be necessary or appropriate to evaluate the risks and merits of an
investment in the Company Securities, (iii) received all information requested
from the Company and (iv) had the opportunity to ask questions of and receive
answers from representatives of the Company concerning the Company.
ARTICLE IV
4.1 REGISTRATION. The Company, at its cost and expense as provided in
Section 5.3 below, agrees to effect the registration under the Securities Act
and relevant blue sky laws of the Shares (the "Registration Shares") in order to
permit their resale by the Purchasers in the manner selected by the Purchasers.
The Company and the Purchaser shall cooperate in good faith in connection with
the furnishing of information required for such registration and the taking of
such other actions as may be legally or commercially necessary in order to
effect such registration. Within 60 days following the date hereof, the Company
shall file a registration statement on Form S-3 with respect to the resale of
the Registration Shares and shall use its best efforts to cause such
registration statement to become effective as soon as practicable thereafter.
Such best efforts shall include, but not be limited to, (i) promptly responding
to all comments received from the staff of the SEC, (ii) providing the
Purchaser's counsel with a contemporaneous copy of all written communications
from and to the staff of the SEC with respect to such registration statement,
(iii) promptly preparing and filing amendments to such registration statement
which are responsive to the comments received from the staff of the SEC, (iv)
furnishing to each Purchaser such number of copies of each prospectus included
in the registration statement for the Registration Shares, including each
preliminary prospectus, each of which shall be in conformity with the
requirements of the rules and regulations of the SEC, (v) notifying each
Purchaser at any time when a prospectus relating to such Registration Shares is
required to be delivered under rules and regulations of the SEC of the happening
of any event as a result of which the prospectus included in the registration
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statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of circumstances then
existing, and promptly preparing and furnishing to each Purchaser a reasonable
number of copies of a supplement to or amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registration Shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, (vi) using its reasonable commercial efforts to
cause all Registration Shares to be included for trading on the NASDAQ Stock
Market and (vii) in instances where an exemption from such qualification is not
available, using its reasonable best efforts to register or qualify the
Registration Shares under the securities or blue sky laws of such jurisdictions
as each Purchaser shall reasonably request; provided, that the Company shall not
be required to register or qualify under the blue sky laws in states where the
Company is already cleared. Once declared effective by the SEC, the Company
shall cause such registration statement to remain effective until the earlier of
(i) the sale by the Purchaser of all shares so registered or (ii) 360 days after
the effective date of such registration statement.
(b) In anticipation of the registration of the Registration Shares under
the Securities Act and the rules and regulations promulgated thereunder pursuant
to this Agreement, the Company will: (i) indemnify and hold harmless each
Purchaser and each other person, if any, who controls each Purchaser within the
meaning of the Securities Act (each such party, an "Indemnified Party"), to the
fullest extent permitted by law, against any losses, claims, damages or
liabilities, joint or several, to which any such Indemnified Party may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the registration statement under which the Registration Shares were
registered under the Securities Act and the rules and regulations promulgated
thereunder, any preliminary prospectus or final prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and (ii) promptly
reimburse each Indemnified Party on demand for any reasonable legal or any other
expenses reasonably incurred thereby in connection with investigating or
defending such loss, claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, said preliminary prospectus, said
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Indemnified Party
specifically for incorporation therein.
(c) Each Purchaser will severally (i) indemnify and hold harmless the
Company and each other person, if any, who controls the Company within the
meaning of the Securities Act, to the fullest extent permitted by law, against
any losses, claims, damages or liabilities, joint or several, to which the
Company or such controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement under which the Registration Shares were registered
under the Securities Act and the rules and regulations promulgated thereunder,
any preliminary prospectus or final prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (ii) promptly
reimburse the Company on demand and each other person, if any, who controls the
Company within the meaning of the Securities Act for any reasonable legal or any
other expenses reasonably incurred thereby in connection with investigating or
defending any such loss, claim,
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damage, liability or action, in each case under clause (i) or (ii) of this
paragraph (c) to the extent and only to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue
statement in said preliminary prospectus or said prospectus or said amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Purchaser specifically for incorporation
therein.
(d) In addition to the indemnification and remedies provided above, each
of the Company, on the one hand, and each Purchaser severally on the other hand,
agrees to indemnify the other and hold the other harmless from and against any
and all losses, damages, liabilities, costs and expenses (including reasonable
attorneys' fees) which the other party may sustain or incur in connection with
the breach by the indemnifying party of any representation, warranty or covenant
made by it or him in this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 COLLATERAL AGREEMENTS, AMENDMENTS AND WAIVERS. This Agreement
supersedes all prior documents, understandings and agreements, oral or written,
relating to this transaction and constitutes the entire understanding between
the parties with respect to the subject matter hereof. Any modification or
amendment to, or waiver of, any provision of this Agreement may be made only by
an instrument in writing executed by the party against whom enforcement thereof
is sought.
5.2 SUCCESSORS AND ASSIGNS. Neither the Purchasers' nor the Company's
rights or obligations under this Agreement may be assigned, except that each
Purchaser may assign his rights hereunder to an affiliate or other purchaser in
a private transaction provided that (i) such affiliate or purchaser is deemed an
"accredited investor" within the meaning of Regulation D of the Securities
Act,(ii) the affiliate or purchaser certifies to the Company that he or it is an
"accredited investor" and (iii) the affiliate or purchaser shall execute and
deliver such documentation as the Company deems necessary to be bound by the
terms of this Agreement. Any assignment in violation of the foregoing shall be
null and void. Subject to the preceding sentences of this Section 5.2, the
provisions of this Agreement (and, unless otherwise expressly provided therein,
of any document delivered pursuant to this Agreement) shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
5.3 EXPENSES. Each party shall pay all costs and expenses incurred by it
in connection with the negotiation, execution and delivery of this Agreement and
the transactions contemplated hereby. The Company shall pay all costs and
expenses incurred in connection with the registration of the Registration Shares
pursuant to Article IV hereof, except that the Company will not be responsible
for paying Purchasers' legal costs or brokerage commissions incurred in
connection therewith.
5.4 INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, then, if
possible such illegal, invalid or unenforceable provision will be modified to
such extent as is necessary to comply with such present or future laws and such
modification shall not affect any other provision hereof, provided that if such
provision may not be so modified such illegality, invalidity or unenforceability
will not affect any other provision, but this Agreement will be reformed,
construed and enforced as if such invalid, illegal or unenforceable provision
had never been contained herein.
5.5 NOTICES. In any case where any notice or other communication is
required or permitted to be given hereunder (including, without limitation, any
change in the information set forth in this
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Section 5.5) such notice or communication shall be in writing and (a)
personally delivered, (b) sent by registered United States mail, postage
prepaid, return receipt requested, (c) transmitted by telecopy or (d) sent by
way of a recognized overnight courier service, postage prepaid, return
receipt requested with instructions to deliver on the next business day, in
each case as follows:
If to the Company, to:
Mr. Stephen Katz, Chairman of the Board
Cellular Technical Services Company, Inc.
2401 Fourth Avenue
Seattle, Washington 98121
with a copy to:
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
Attention: Edward R. Mandell
If to a Purchaser to his or its address
set forth on the signature page hereof
with a copy to:
Lawrence N. Rosen, Esq.
2925 Aventura Boulevard, Suite 308
Aventura, Florida 33180
and
Jeffrey M. Levine, CPA
1050 Lee Wagener Boulevard, Suite 301
Ft. Lauderdale, Florida 33315
5.6 PUBLIC ANNOUNCEMENT. Neither the Company nor the Purchaser shall
issue or cause the publication of any press release or other public announcement
with respect to the transactions contemplated by this Agreement without the
consent of the other party, which consent shall not be unreasonably withheld,
provided that the Company may make such disclosure as it deems appropriate
pursuant to its reporting obligations under the Exchange Act and that each party
may issue such press releases or public announcements as shall be required by
law.
5.7 NO THIRD-PARTY BENEFICIARIES. No person or entity not a party to this
Agreement or referred to in 5.2 hereof shall be deemed to be a third-party
beneficiary hereunder or entitled to any rights hereunder.
5.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OR CHOICE OF LAW. EACH OF THE PARTIES CONSENTS TO THE JURISDICTION
OF THE FEDERAL COURTS WHOSE DISTRICTS ENCOMPASSES ANY PART OF THE CITY OF NEW
YORK OR THE STATE COURTS OF THE
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STATE OF NEW YORK LOCATED WITHIN THE CITY OF NEW YORK IN CONNECTION WITH ANY
DISPUTE ARISING UNDER THIS AGREEMENT AND HEREBY WAIVES, TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION BASED ON FORUM NON
CONVENIENS, TO THE BRINGING OF ANY SUCH PROCEEDING IN SUCH JURISDICTIONS.
5.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which may be executed by one or more of the parties
hereto, but all of which, when taken together, shall constitute but one
agreement binding upon each of the parties hereto.
5.10 HEADINGS. Headings contained in this Agreement are for convenience
only and shall in no manner be construed as part of this Agreement.
5.11 GENDER. Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
CELLULAR TECHNICAL SERVICES COMPANY, INC.
By: /s/ Stephen Katz
____________________________________________
Stephen Katz, Chairman of the Board
PURCHASERS NO. OF SHARES PURCHASE PRICE
---------- ------------- --------------
120,000 $1,950,000
/s/ Harvey Sandler
_____________________
Harvey Sandler
17663 Lake Estates Drive
Boca Raton, Florida 33496
###-##-####
--------------------------
Social Security No.
60,000 975,000
/s/ Phyllis Sandler
______________________
Phyllis Sandler
17663 Lake Estates Drive
Boca Raton, Florida 33496
###-##-####
--------------------------
Social Security No.
65,000 1,056,250
/s/ Ricky Sandler
______________________
Fusion Partners L.P.
c/o Ricky Sandler
237 Park Avenue, Suite 801
New York, New York l00l7
13-3796083
---------------------------
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Social Security No.
1,300 21,125
/s/ Ricky Sandler
_______________________
Rising Stars Off Shore
Fund, Ltd.*
c/o Ricky Sandler
237 Park Avenue, Suite 801
New York, New York 10017
3,700 60,125
/s/ Ricky Sandler
________________________
Ricky Sandler
237 Park Avenue, Suite 801
New York, New York 10017
###-##-####
---------------------------
Social Security No.
10,000 162,500
/s/ Andrew Sandler
_________________________
Andrew Sandler
422 East 72nd Street, Apt. 33E
New York, New York l0021
###-##-####
---------------------------
Social Security No.
120,000 1,950,000
/s/ Martin Tash
_________________________
Martin Tash
17049 Northway Circle
Boca Raton, Florida 33496
###-##-####
---------------------------
Social Security No.
/s/ Jeffrey M. Levine
_________________________ 10,000 162,500
Jeffrey M. Levine
3520 Magellen Circle, No. 737
North Miami Beach, Florida 33180
###-##-####
----------------------------
Social Security No.
10,000 162,500
/s/ David Ross
__________________________
David Ross
6860 Lions Head Lane
Boca Raton, Florida 33496
###-##-####
---------------------------
Social Security No.
*Off shore entity
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