THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 10th day of June, 1997, by and between Executive Telecard, Ltd., a
Delaware corporation (the "Company") and Ronald Jensen resident of the State of
Texas with a business address at 5215 North O'Connor, Suite 300, Irving, Texas
70539 (the "Purchaser").
In consideration of the premises and of the mutual representations,
warranties and covenants hereinafter set forth, the Company and the Purchaser
hereby agree as follows:
ARTICLE I
THE PURCHASE AND SALE
I.1 THE PURCHASE AND SALE. Subject to the terms and conditions set
forth herein, at the Closing described below, the Company will sell and the
Purchaser will purchase an aggregate of 1,425,000 shares (the "Shares") of the
Common Stock, $.001 par value per share, of the Company (the "Common Stock") for
an aggregate purchase price of $7,500,000 (the "Purchase Price"). The Purchase
Price shall be paid as provided in Section 1.2.
I.2 THE CLOSING. The closing of the transactions contemplated hereby
(the "Closing") shall take place at the principal offices of the Company at One
Blue Hill Plaza, Suite 1650, Pearl River, New York 10965 on June 6, 1997 at
10:00 A.M. or at such other place or time as the parties may agree (the "Closing
Date"). At the Closing, (i) the Purchase Price shall be payable by delivery of
immediately available funds by wire transfer to an account of the Company that
shall be specified in writing by the Company prior to the Closing, and (ii) the
Company shall deliver to the Purchaser a certificate representing the Shares.
I.3 TERMINATION OF THIS AGREEMENT. Anything contained in this
Agreement to the contrary notwithstanding, in the event that the Purchaser fails
to deliver immediately available funds representing the Purchase Price by the
close of business on the Closing Date, this Agreement shall terminate and be of
no force and effect without the requirement of any notice from, or any action
by, the Company.
ARTICLE II
Representations and Warranties
CONCERNING THE COMPANY
The Company hereby represents and warrants to the Purchaser as
follows:
II.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized and existing under the laws of the State of Delaware and is in good
standing under such laws.
II.2 CORPORATE POWER. The Company has all requisite corporate power
and authority to enter into this Agreement and the Company will have at the
Closing Date all requisite corporate power to sell the Shares and to carry out
and perform its obligations under the terms of this Agreement.
II.3 CAPITALIZATION. The authorized, issued and outstanding capital
stock of the Company consists of (i) 100,000,000 shares of Common Stock and (ii)
5,000,000 shares of preferred stock, par value $.001 per share. There are
approximately 15,860,407 shares of the Company's Common Stock and no shares of
Preferred Stock currently issued and outstanding.
II.4 SEC REPORTS AND FINANCIAL STATEMENTS. The Company has filed with
the Securities and Exchange Commission (the "SEC"), and has heretofore made
available to the Purchaser true and complete copies of all forms, reports,
schedules, statements and other documents required to be filed by it under the
Securities Act of 1933, as amended (the "Securities Act") and the Securities and
Exchange Act of 1934, as amended (the "Exchange Act") (as such documents have
been amended or supplemented since the time of their filing, collectively, the
"SEC Reports"). As of their respective dates, the SEC Reports have been prepared
in conformity with Generally Accepted Accounting Principles consistently applied
and as of the dates indicated, and for the periods then ended, present fairly
the financial position and results of operations of the Company as of the dates
and for the periods indicated.
II.5 ABSENCE OF UNDISCLOSED LIABILITIES. Except as described in the
SEC Reports, the Company has no material debts, liabilities or obligations of
any kind, whether accrued, absolute, contingent or other, whether due or to
become due, except as incurred in the ordinary course of business, that would
have a material adverse effect on the Company.
II.6 ABSENCE OF CHANGES. Since December 31, 1996, the Company has
operated in the ordinary course of business consistent with past practice. Since
December 31, 1996, there has not occurred any change in the financial condition,
results of operations, assets, liabilities or business of the Company which, in
the aggregate, would have a material adverse effect on the Company.
II.7 FULLY PAID SHARES. The Shares, when acquired by the Purchaser
will be fully paid and non-assessable, free of preemptive rights and
encumbrances, and will have the same rights under the Company's certificate of
incorporation and by-laws as all other shares of Common Stock.
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ARTICLE III
Representations and Warranties
OF THE PURCHASER
The Purchaser represents and warrants to the Company as follows:
III.1 INVESTMENT INTENT, ETC. The Purchaser is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act. The Purchaser has received, examined and reviewed copies of
the Company's most recent reports, as amended, filed under the Exchange Act and
other publicly available documents requested by him and recognizes that the
investment in the Shares involves a high degree of risk. The Purchaser has been
advised that it may not be possible to readily liquidate this investment. The
Purchaser's overall commitment to the Shares, which are not readily marketable,
is not disproportionate to his net worth, his investment in the Company will not
cause such overall commitment to become excessive, and he can afford to bear the
loss of his entire investment in the Company. The Purchaser has 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 of the
Company. The Purchaser confirms that the Company has made available to him the
opportunity to ask questions of, and receive answers from, the Company
concerning the Company and the activities of the Company and otherwise to obtain
any additional information, to the extent that the Company possesses such
information or could acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information conveyed to him. The
Purchaser hereby acknowledges that he has been advised that this offering of
Shares has not been registered with, or reviewed by, the Securities and Exchange
Commission because this offering is intended to be a non-public offering
pursuant to Section 4(2) of the Securities Act. The Purchaser represents that
the Shares are being purchased for his own account, for investment purposes only
and not with a view towards distribution or resale to others. The Purchaser
agrees that he will not attempt to sell, transfer, assign, pledge or otherwise
dispose the Shares unless they are registered under the Securities Act or unless
in the opinion of counsel satisfactory to the Company an exemption from such
registration is available. The Purchaser understands that no securities
administrator of any state has made any finding or determination relating to the
fairness of this investment and that no securities administrator of any state
has recommended or endorsed, or will recommend or endorse, the offering of the
Shares. The execution, delivery and performance by the Purchaser of this
Agreement will not constitute or result in a breach or default under, or
conflict with, any order, ruling or regulation of any court or other tribunal or
of any governmental commission or
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agency, or any agreement or other undertaking, to which the Purchaser is a party
or by which he is bound. The Purchaser has relied solely upon the advice of its
own tax and legal advisors with respect to the tax and other legal aspects of
this investment. The Purchaser is purchasing the Shares for his account, and not
in any agency, fiduciary or similar capacity. The source of the funds evidencing
the Purchase Price are from legally available funds of the Purchaser.
III.2 LEGENDS. The Purchaser understands that the certificates
evidencing the Shares will bear a legend substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED
UNTIL (I) A REGISTRATION STATEMENT UNDER THE ACT SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO AND THEY SHALL HAVE BEEN REGISTERED OR
QUALIFIED FOR SALE UNDER THE APPROPRIATE STATE SECURITIES LAWS OR
(II) IN THE OPINION OF COUNSEL TO THE CORPORATION, REGISTRATION AND
QUALIFICATION UNDER THE ACT AND THE SECURITIES LAWS OF THE
APPROPRIATE STATE IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED
TRANSFER."
The legend referred to above shall be removed by the Company from
any certificate at such time as the holder of the shares represented by the
certificate delivers an opinion of counsel reasonably satisfactory to the
Company to the effect that such legend is not required in order to establish
compliance with any provisions of the Securities Act, or at such time as the
holder of such shares satisfies the requirements of Rule 144(k) under the
Securities Act, as then in effect with respect to such shares.
III.3 RISK FACTORS. The Purchaser has conducted his own due diligence
with respect to all aspects of this transaction and is familiar with the risk
factors inherent in the purchase of the Shares, and has been fully apprised of
the facts and circumstances in connection with the (i) action commenced against
the Company in the United Stated District Court for the Southern District of New
York (Civil No. 94-CIV-7846 (CLB)), and (ii) that the Company is indebted to ING
Capital Corporation in an amount of approximately $10,000,000 which indebtedness
is currently due to be repaid on or before June 25, 1997. The Purchaser is aware
that all or a portion of the proceeds from this investment may be used to repay
such indebtedness.
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ARTICLE IV
COVENANTS OF THE COMPANY AND THE PURCHASER
IV.1 BOARD REPRESENTATIVE. The Company shall appoint the Purchaser
and one of his designees to its Board of Directors at the earliest practical
date following the Closing Date and shall nominate and recommend the re-election
of the Purchaser and such designee at its next Annual Meeting of Stockholders.
In the event that the Purchaser is elected to the Board of Directors at such
Annual Meeting, the Company shall appoint the Purchaser as its Chairman of the
Board at the earliest practical date following such Annual Meeting.
IV.2 LOCK-UP. In the event that the Company commences an offering of
its securities, the Purchaser agrees to enter into with the managing underwriter
of such offering, and perform its obligations under a lock-up agreement similar
in form and substance to lock-up agreements executed by other executive officers
and directors of the Company.
IV.3 FURTHER ACTS WITHOUT COMPANY CONSENT. So long as the Purchaser
is a member of the Company's Board of Directors and for a period of one (1) year
thereafter, without the express written consent of all members of the Company's
Board of Directors, the Purchaser will not directly or indirectly:
(a) make, or in any way participate in, any "solicitation" or
"proxies" (as such terms are defined or used in Regulation 14A under the
Exchange Act) or become a "participant" in any "election contest" (as such terms
are defined or used in Rule 14a-11 under the Exchange Act); or
(b) publicly oppose any duly authorized Board of Director
action or recommendation.
IV.4 TRANSFER RESTRICTIONS. (a) So long as the Purchaser is a member
of the Company's Board of Directors and for a period of one (1) year thereafter,
the Purchaser will not, directly or indirectly, transfer, assign, pledge, sell,
hypothecate or otherwise dispose (a "disposition") of any capital stock of the
Company owned by him without the express written consent of all other members of
the Company's Board of Directors, except (1) transfers to members of the
Purchaser's immediate family or charitable trusts set up for the benefit of such
family members provided that such family member or trust agrees to be bound to
the provisions of this Agreement including Sections 4.3 and 4.4 hereof, or (2)
if either the following conditions are satisfied with respect to such
disposition:
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(i) Such disposition is made pursuant to Rule 144
of the Securities Act and is in accordance with provisions (e), (f)
and (g) thereof; or
(ii) Such disposition is made pursuant to an effective
registration statement under the Securities Act.
(b) Any transfer of shares of the Common Stock in violation of this
Section 4.4 may be suspended on the books of the Company.
ARTICLE V
REGISTRATION OF SHARES
V.1 "PIGGYBACK REGISTRATION". (a) If the Company at any time or from
time to time during the three (3) year period commencing on the one year
anniversary of the Closing Date proposes to register any Common Stock under the
Securities Act (other than pursuant to a registration statement (including
pre-effective amendments thereto) (i) on Form S-8 or any successor form to such
form, (ii) on Form S-4 or any successor form to such form, (iii) filed in
connection with an exchange offer or an offering of Common Stock or of
securities convertible or exchangeable into Common Stock made solely to its
existing shareholders in connection with a rights offering or solely to
employees of the Buyer, or a post-effective amendment to any then effective
registration statement), it will give written notice to the Purchaser of its
intention at least twenty (20) days in advance of the filing of any Registration
Statement with respect thereto. Upon the written request of the Purchaser given
within fifteen (15) days after receipt of such notice, the Company, subject to
Section 5.1(b) below, will cause the Shares and/or the resale of the Shares
requested by the Purchaser to be registered, to be so registered.
(b) (i) In the case of an underwritten offering by the Company of
Common Stock, the Company shall, with respect to Shares that the Purchaser then
desires to sell, enter into an underwriting agreement with the same underwriters
engaged by the Company with respect to securities being offered by the Company
and cause such underwriters to include in any such underwriting all of the
Common Shares that the Purchaser then desires to sell; PROVIDED, HOWEVER, that
such underwriting agreement is in substantially the same form as the
underwriting agreement that the Buyer enters into in connection with the primary
offering it is making.
(ii) If the managing underwriter with respect to an offering
pursuant to this Section 5.1 requests in writing that the number of Shares of
the Purchaser that are entitled to be registered pursuant to this Section 5.1 be
reduced because in the judgment of the managing underwriter the offering would
be materially and adversely affected, then the Shares that the
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Purchaser wishes to register pursuant to this Section 5.1 shall be reduced by
such amount as the managing underwriter may determine in writing so as to not
materially and adversely affect the proposed offering, which reduced number of
Shares shall be included in such offering.
Notwithstanding the provisions of this Section 5.1, the Company
shall have the right at any time after it shall have given written notice
pursuant to this Section 5.1 (irrespective of whether a written request for
inclusion of any such securities shall have been made) to elect not to file any
such proposed registration statement, or to withdraw the same after the filing
but prior to the effective date thereof.
V.2 REGISTRATION PROCEDURES. Each Registration Statement filed
pursuant to this Article V shall be pursuant to the procedures set forth below:
(a) The Company shall notify the Purchaser promptly after it shall
receive notice thereof, of the date and time when such Registration Statement
and each post-effective amendment thereto has become effective or a supplement
to any prospectus forming a part of such Registration Statement has been filed;
(b) The Company shall furnish to the Purchaser such reasonable
number of copies of the Registration Statement and prospectus and such other
documents as Purchaser may reasonably request in order to facilitate the public
offering of the Shares;
(c) The Company shall use its best efforts to register or qualify
the Shares covered by such Registration Statement under such state securities or
blue sky laws of such jurisdictions as the Purchaser may reasonably request,
PROVIDED, HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
connection with any such registration or qualification of such securities;
(d) The Company shall notify the Purchaser participating in such
registration promptly of any request by the SEC for the amending or
supplementing of such Registration Statement or prospectus or for additional
information. The Purchaser agrees that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in this subsection
(d), the Purchaser will forthwith discontinue the offer and sale of Shares
pursuant to the Registration Statement covering such Shares until receipt by the
Purchaser and underwriters of the copies of such supplemented or amended
prospectus and, if so directed by the Company, the Purchaser will deliver to the
Company all copies, other than permanent file copies then in the Purchaser'
possession,
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of the most recent prospectus covering such Shares at the time of receipt of
such notice; and
(e) The Company shall advise the Purchaser participating in such
registration, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of such Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued.
V.3 EXPENSES OF REGISTRATION. All expenses of the Company incident
to the Company's performance of or compliance with the provisions of this
Article V shall be borne by the Company including without limitation:
(a) All registration and filing fees;
(b) Fees and expenses of compliance with all securities or blue sky
laws (including fees and disbursements of counsel for the Company in connection
with blue sky qualifications of the Shares; PROVIDED, HOWEVER, that the Company
shall not be required to consent to general service of process in any such
state); and
(c) Fees and disbursements of counsel for the Company
and its independent auditors.
Nothing in this Section 5.3 shall be deemed to require the Company
to pay or bear any expenses of the Purchaser's attorneys or accountants or any
other personal expenses or any underwriting discounts relating to the Common
Shares, selling commissions or similar fees attributable pro rata to the Common
Shares if such registration results in an Underwritten Offering of all or any
portion of the Common Shares.
ARTICLE VI
MISCELLANEOUS PROVISIONS
VI.1 AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified or supplemented only by written agreement of
Purchaser and the Company.
VI.2 WAIVER. Any breach of any obligation, covenant,
agreement or condition contained herein shall be deemed waived by
the non-breaching party, only by a writing, setting forth with
particularity the breach being waived and the scope of the waiver,
but such waiver shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other breach. No waiver shall be
implied from any conduct or action of the non-breaching party. No
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failure or delay by any party in exercising any right, power or privilege
hereunder or under the Documents and no course of dealing by any party shall
operate as a waiver and any right, power or privilege hereunder or under any
Document nor shall any single or partial exercise thereof or the exercise of any
other right, power or privilege.
VI.3 NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand:
(a) if to the Company, to:
Executive Telecard, Ltd.
One Blue Hill Plaza, Suite 1650
P.O. Box 1769
Pearl River, New York 10965
Attn: John Gitlin, Esq.
with a copy (which shall not constitute notice) to:
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
Attention: Ilan Reich, Esq.
(b) if to Purchaser, to:
Ronald Jensen
c/o UICI
5215 North O'Connor, Suite 300
Irving, Texas 70539
or to such other address as any party shall have specified by notice in writing
to the other in compliance with this Section 6.3.
VI.4 BINDING NATURE AGREEMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without prior written consent of the other parties.
VI.5 ACKNOWLEDGEMENT BY THE PURCHASER. The Purchaser has been
informed that the Company's Common Stock is publicly-traded on the Nasdaq
National Market and that the Purchase Price for the Shares may bear no relation
to the future market value or book value of the Common Stock. The Purchaser
further acknowledges that he has reviewed such information as he deems
appropriate to evaluate whether to enter into this Agreement. The Purchaser
further acknowledges that he is not relying on any oral information or
representations from the Company or any other person, including representatives
of the Company in connection with his decision to
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enter into this Agreement, including the Company's financial condition,
prospects, present or future results of operations, business plans or the
potential for future appreciation in the Company's Common Stock.
VI.6 GOVERNING LAW. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and performed therein.
VI.7 EXPENSES. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
VI.8 COUNTERPARTS. This Agreement may be signed in counterparts with
the same effect as if both parties had signed one and the same instrument.
VI.9 FORM OF SIGNATURE. The parties hereto agree to accept a
facsimile transmission copy of their respective signatures as evidence of their
respective actual signatures to this Agreement; PROVIDED HOWEVER, that each
party who produces a facsimile signature agrees, by the express terms hereof, to
place, immediately after transmission of its signature by fax, a true and
correct original copy of its signature in overnight mail to the address of the
other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed the day and year first above written.
EXECUTIVE TELECARD, LTD.
By: /s/ Anthony Balinger
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Name: Anthony Balinger
Title: Chief Executive Officer
/s/ Ronald Jensen
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RONALD JENSEN
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