Exhibit 10.7
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, executed as of the 8th day of May, 1997
(this "Agreement") by and among Erol's Internet, Inc. a Delaware corporation
(the "Company"), Erol Onaran (the "Seller") and Gold & Appel Transfer, S.A., a
British Virgin Islands corporation (the "Buyer").
WHEREAS, the Company previously sold 3,100,000 shares of Common Stock to
Buyer pursuant to that certain Stock Purchase Agreement made as of December 28,
1996 (amended on or about January 17, 1997) and various Exhibits thereto
including a Stockholders Agreement and Registration Rights Agreement by and
among the Company, the Seller, the Buyer and Dennis Spina (the "Prior
Agreements");
WHEREAS, the Seller owns 10,075,000 Common Shares of the Company;
WHEREAS, the Company's Board of Directors has authorized the issuance of
310,000 additional shares of Common Stock to Buyer at a price of $1.6129 per
share the ("Company Shares") for a total price of $500,000;
WHEREAS, the Seller desires to sell 310,000 shares of Common Stock directly
to Buyer for the same consideration (the "Seller Shares"; together with the
Company Shares herein called the "Shares") for a total price of $500,000;
WHEREAS, this Agreement contemplates a transaction in which the Buyer will
purchase from the Seller and the Company, and the Company and the Seller will
sell to the Buyer the aforesaid Shares of the Company on the terms and
conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, representations
and agreements herein contained, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, covenant and
agree as follows:
1. (a) Purchase and Sale of the Company Shares. On and subject to the
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terms and conditions of this Agreement, the Buyer agrees to purchase from the
Company, and the Company agrees to sell to the Buyer, 310,000 Common Shares of
the Company, $.001 par value per share (the "Company Shares"), for the
consideration specified below in Section 2 of this Agreement.
(b) Purchase and Sale of the Seller's Shares. On and subject to the
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terms and conditions of this Agreement, the Buyer agrees to purchase from the
Seller, and the Seller agrees to sell to the Buyer, 310,000 Common Shares of the
Company, $.001 par value, for the consideration specified below in Section 2 of
this Agreement.
2. Purchase Price. The purchase price has been negotiated by and among
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the Company, the Seller and the Buyer based upon a pre-money valuation of the
Company of $25 million as shown in Schedule 2. The purchase price for the
Company Shares and the Seller's
Shares shall total One Million Dollars ($1,000,000) in the aggregate. Five
Hundred Thousand Dollars ($500,000) shall be paid each to the Company and the
Seller by separate wire transfer, cashiers check or by other immediately
available funds at the Closing.
3. Closing. The purchase and sale of all of the Company Shares shall be
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consummated at a closing (the "Closing") to be held at the offices of the
Company at 9:00 a.m. on May 8, 1997 (the "Closing Date"). At Closing, the Buyer
shall make payment of the Purchase Price, as described in Section 2 hereof, and
the Company and the Seller shall each deliver to the Buyer (i) the original
stock certificates representing the Company Shares and the Seller Shares,
properly endorsed for transfer to the Buyer, free and clear of all liens,
encumbrances, claims, rights of third parties and other restrictions and (ii)
such other agreements and documents as may be required by Section 6 hereof.
After Closing, at the Buyer's request, the Company and the Seller shall take all
such other actions and execute all such other documents as the Buyer may
reasonably require to evidence or perfect the sale or transfer of the Shares and
the satisfaction of all other conditions to the purchase of the Shares.
4. Representations and Warranties of the Company and the Seller. The
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Company and the Seller, jointly and severally, hereby represent and warrant to
the Buyer as of the date hereof and as of the Closing, that, except as disclosed
to Buyer's representative on the Board of Directors, Walt Anderson, or as set
forth on the Disclosure Schedule (the "Disclosure Schedule") furnished the
Buyer, specifically identifying the relevant subparagraph hereof, which
disclosures shall be deemed to be representations and warranties as if made
hereunder:
4.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as presently proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure to so qualify would have a
material adverse effect on its assets, operations or financial condition or the
Company's ability to perform its obligations under this Agreement ("Material
Adverse Effect").
4.2 Capitalization and Voting Rights. The Company's authorized
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capital consists of:
(a) Voting Common Stock. 50,000,000 shares of Voting Common
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Stock, par value $.001 per share are authorized, of which 13,175,000 shares are
issued and outstanding. 10,075,000 of such issued and outstanding shares are
owned by the Seller, The Seller is the sole owner, beneficially and of record,
of these shares, free and clear of any liens, security interests, pledges,
options, claims or other encumbrances of any kind, except as set forth in the
Prior Agreements, in favor of Buyer, the Company and Spina. 3,100,000 of such
issued and outstanding shares are owned by the Buyer.
(b) Non-Voting Common Stock. 10,000,000 shares of Non-Voting
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Common Stock, par value $.001 per share, none of which are issued or
outstanding. The Voting Common Stock and the Non-Voting Common Stock are
together referred to herein as the "Common Stock."
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(c) Preferred Stock. 10,000,000 shares of a single class of
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preferred stock, par value $.001 per share, none of which are issued or
outstanding.
(d) The outstanding shares of Voting Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were issued in
accordance with the registration or qualification provisions of the Securities
Act of 1933, as amended (the "Act") and any relevant state securities laws or
pursuant to valid exemptions therefrom.
(e) Except as set forth in the Disclosure Schedule, there are not
outstanding any options, warrants, rights (including conversion or preemptive
rights) or agreements for the purchase or acquisition from the Company of any of
its capital stock. The Company has reserved 1,550,000 shares of its Voting
Common Stock for purchase upon exercise of options to be granted in the future
under the Company's 1996 Stock Plan (the "Plan") of which 1,256,875 have been
granted, and 775,000 additional options have been issued outside the Plan. The
Company is not a party or subject to any agreement or understanding, and, to the
best knowledge of the Company and the Seller, there is no agreement or
understanding between any persons and/or entities, which affects or relates to
the voting or giving of written consents with respect to any security or by a
director of the Company.
4.3 Authorization. All corporate action on the part of the Company,
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its officers, directors and the Seller necessary for the authorization,
execution and delivery of this Agreement and all other agreements and waivers
required to be executed by the Company or the Seller on or before the Closing
pursuant to Sections 6.4 through 6.7 (the "Related Documents") and waivers, the
performance of all obligations of the Company hereunder and thereunder, and the
authorization, issuance, sale and delivery of the Shares has been taken or will
be taken prior to the Closing, and this Agreement and the Related Documents
constitute valid and legally binding obligations of the Company and the Seller,
enforceable in accordance with their respective terms.
4.4 Valid Issuance of Shares. The Shares, when issued, sold and
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delivered in accordance with the terms of this Agreement for the consideration
expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and under applicable state and
federal securities laws.
4.5 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement.
4.6 Offering. Subject in part to the truth and accuracy of the
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Buyer's representations set forth in Section 5, the offer, sale and issuance of
the Shares as contemplated by this Agreement are exempt from the registration
requirements of the Act, and neither the
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Seller, the Company nor any authorized agent acting on its behalf will take any
action hereafter that would cause the loss of such exemption.
4.7 Compliance with Other Instruments.
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(a) The Company is not in violation or default in any material
respect of any provision of its Certificate of Incorporation or Bylaws
(collectively "Charter Documents"), or in any material respect of any
instrument, judgment, order, writ, decree or contract to which it is a party or
by which it is bound, or of any provision of any federal or state statute, rule
or regulation applicable to the Company. The execution, delivery and performance
of this Agreement and the Related Documents, and the consummation of the
Transactions will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event that results in the creation of any lien, charge or
encumbrance upon any assets or the Company or the suspension, revocation,
impairment, forfeiture or nonrenewal of any material permit, license,
authorization or approval applicable to the Company, its business or operations
or any of its assets or properties.
4.8 Draft Audited Financial Statements. The Company has delivered to
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the Buyer draft audited financial statements for the Company as of and for the
twelve-month period ended December 31, 1996 (the "Financial Statements") and
attached hereto as Schedule 4.8. The Company has also delivered to the Buyer
monthly "Executive Summaries" containing selected financial information
regarding the Company's results for the each of the months January, February and
March, 1997. While not yet final, the Company believes that the Financial
Statements have been prepared in accordance with the procedures described in the
accompanying notes, as applied on a materially consistent basis as of the date
and for the period indicated therein. The Financial Statements are materially
correct and accurate as determined in accordance with the procedures set forth
in the notes attached thereto and present fairly the results of operations and
the financial condition of the Company for such periods. As to the data
provided therein, the Executive Summaries are materially correct and accurate
and consistent with the books and records of the Company. Except as set forth
in the Financial Statements and the Executive Summaries, the Company has no
material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to December 31, 1996,
(ii) obligations under contracts and commitments incurred in the ordinary course
of business subsequent to December 31, 1996. Except as disclosed in the
Financial Statements or the Executive Summaries, the Company is not a guarantor
or indemnitor of any indebtedness of any other person, form or corporation.
4.9 Changes. Except as disclosed at the Board Meetings of the
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Company, the Financial Statements, or in Section (a) and (m) of the attached
Disclosure Schedule, since December 31, 1996 there has not been:
(a) any change in the assets, liabilities, financial condition or
operating results of the Company from that reflected in the Financial Statements
or the Executive
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Summaries, except changes in the ordinary course of business that do not, in the
aggregate, constitute a Material Adverse Effect;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is currently conducted and as it is proposed to be conducted);
(c) any waiver by the Company of a valuable right or of a material
debt owned to it;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, properties, financial
condition, operating results or business of the Company (as such business is
currently conducted and as it is proposed to be conducted);
(e) any material change or amendment to a material contract or
arrangement by which the Company or any of its assets or properties is bound or
subject;
(f) any material change in any compensation arrangement or
agreement with any executive officer;
(g) any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any executive
officer of the Company; and the Company, to the best of its knowledge, does not
know of the impending resignation or termination of employment of any such
officer;
(i) receipt of notice that there has been a loss of, or material
order cancellation by, any major customer of the Company;
(j) any mortgage, pledge, transfer of a security interest in, or
lien, created by the Company, with respect to any of its material properties or
assets, except liens for taxes not yet due or payable;
(k) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(l) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company;
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(m) the written notice of claim, or threatened litigation, against
the Company or any other event or condition of any character that might
constitute a Material Adverse Effect; or
(n) any agreement or commitment by the Company to do any of the
things described in this Section 4.9.
4.10 Disclosure. The Company has fully provided the Buyer with all the
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information that the Buyer has requested for deciding whether to purchase the
Shares.
5. Representations and Warranties of the Buyer. The Buyer hereby
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represents and warrants to the Company and the Seller that:
5.1 Authorization. The Buyer has full power and authority to enter
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into this Agreement and, to the extent applicable, the Related Documents and
such agreements constitute its valid and legally binding obligations,
enforceable in accordance with its terms.
5.2 Purchase Entirely for Own Account. This Agreement is made with the
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Buyer in reliance upon the Buyer's representation to the Company, which by the
Buyer's execution of this Agreement the Buyer hereby confirms, that the Shares
will be acquired for investment for the Buyer's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that the Buyer has no current intention of selling, granting any
participation in, or otherwise distributing the same. The Buyer does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Shares.
5.3 Disclosure of Information. The Buyer believes it has received all
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the information it considers necessary or appropriate for deciding whether to
purchase the Shares. The Buyer further represents that its member of the
Company's Board of Directors has attended all meetings of the Board, had regular
discussions with the Company's Executive Officers and that, in addition, it has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Shares and the
business, properties, prospects and financial condition of the Company. The
foregoing, however, does not limit or modify the representations and warranties
of the Company and the Seller in Section 4 or the right of the Buyer to rely
thereon.
5.4 Investment Experience. The Buyer acknowledges that it is able to
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fend for itself, can bear the economic risk of its investment, and has knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Shares. The Buyer also represents
it has not been organized for the purpose of acquiring the Shares.
5.5 Accredited Buyer. The Buyer is an "accredited investor" within the
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meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation D,
as currently in effect under the Securities Act of 1933, as amended (the
"Securities Act").
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5.6 Restricted Securities. The Buyer understands that the Shares are
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characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act,
only in certain limited circumstances. In this connection, the Buyer represents
that it is familiar with Rule 144 promulgated under the Securities Act, as
currently in effect, and understands the resale limitation imposed thereby and
by the Securities Act.
5.7 Legends. It is understood that the certificate evidencing the
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Shares may bear one or all of the following legends:
"The transfer of the stock represented by this certificate is restricted
under, and subject to the terms of, a Stockholders' Agreement dated
December 28, 1996, to which the Company is a party and a copy of which
is on file at the Company's office.
The shares of stock represented by this Certificate are also subject to
and may be transferred only in compliance with a right of co-sale made
by and among the holder hereof, the Company issuing this certificate and
the other stockholders to whom such right has been granted.
These securities have not been registered under the Securities Act of
1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or
unless sold pursuant to Rule 144 of such Act."
5.8 Compliance With Laws. Buyer has made all filings and obtained all
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corporate approvals as may be required by the laws of the British Virgin Islands
with respect to the consummation of the transactions contemplated by this
Agreement.
5.9 Involvement in Certain Legal Proceedings. Buyer, its shareholders
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(and to the best knowledge of Buyer, the natural person shareholders of its
shareholders) have not during the past five (5) years been involved in the
events listed in paragraphs (f)(1) through (f)(6) of Item 401, Regulation S-K
promulgated by the Securities and Exchange Commission.
6. Conditions to Obligations of the Parties to Close. The obligations of
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the Parties to consummate the transactions contemplated by this Agreement and to
perform their respective obligations hereunder shall be subject to the
fulfillment of the following conditions prior to Closing:
6.1 Company and Seller Representations and Warranties True as of
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Closing. The representations and warranties of the Company and Seller contained
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in this
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Agreement shall be true and correct at Closing with the same force and effect as
if such representations and warranties had been made on and as of the date of
Closing and the Company and Seller shall have performed all covenants and
obligations of the Seller required to be performed prior to or at Closing.
6.2 Buyer Representations and Warranties True and Correct. The
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representations and warranties of the Buyer contained in this Agreement shall be
true and correct as of Closing with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date.
6.3 All Agreements and Conditions Performed. The Seller shall have
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complied with and duly performed all of the other agreements and conditions
required on their part to be performed pursuant to this Agreement on or before
Closing.
6.4 Proceedings and Documents. All corporate and other proceedings in
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connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Buyer, and it shall have received all such counterpart original and certified or
other copies of such documents as it may reasonably request.
6.5 Amendment to Stockholders' Agreement. Each of the parties to the
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Stockholders Agreement (part of the Prior Agreements) shall have executed the
form of Amendment No. 2 thereto, attached as Exhibit 6.5 to this Agreement.
6.6 Amendment to Registration Rights Agreement. Each of the parties to
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the Registration Rights Agreement (part of the Prior Agreements) shall have
executed the form of Amendment No. 1 thereto attached as Exhibit 6.6 to this
Agreement.
6.7 Waivers of Rights. Each of the Company, the Seller, the Buyer and
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Dennis Spina shall have executed the waiver letters attached hereto as Exhibit
6.7 to this Agreement.
6.8 Payment of Purchase Price. The Buyer shall have delivered the
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purchase price to the Company and the purchase price to the Seller as specified
in Section 2.
6.9 Inspection and Due Diligence. The Company shall have allowed the
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Buyer and its representatives, at Buyer's expense, to visit and inspect the
Company's properties, to examine its books of account and records and to discuss
the Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by Buyer. The results of the Buyer's
ongoing due diligence investigation shall be satisfactory to Buyer in its sole
discretion.
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7. Miscellaneous.
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7.1 Survival of Warranties. The warranties, representations and
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covenants of the Company, the Seller and the Buyer contained in or made pursuant
to this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Buyer or the Company.
7.2 Successors and Assigns. Except as otherwise provided herein, the
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terms and conditions of this Agreement shall ensure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Shares). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.3 Governing Law. This agreement shall be governed by and construed
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under the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware. Each party
irrevocably consents and agrees to the exclusive jurisdiction of the Circuit
Court for Fairfax County or the United States District Court for the Eastern
District of Virginia and to service of process for it or him and on its or his
behalf by certified mail, for resolution of all matters involving this Agreement
or the transactions contemplated hereby.
7.4 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.5 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.6 Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be deemed given if delivered personally
(including by courier or nationally recognized overnight courier which tracks
receipts and deliveries), telecopied (which is confirmed) or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses or to such other addresses as may be furnished in writing by
one party to the others:
(a) if to the Company, Spina or the Seller:
Erol's Internet, Inc.
7921 Woodruff Court
Springfield, Virginia 22151
Attention: Dennis Spina
Telecopy: 703/321-9400
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(b) if to the Buyer:
Gold & Appel Transfer S.A.
c/o Esprit Telecom
2000 L Street, N.W., Suite 200
Washington, D.C. 20036
Attention: Mr. Walt Anderson
Telecopy: 202/736-5065
Any such notice or communication shall be presumed to have been received (i) in
the case of personal delivery or facsimile transmission, on the date of such
delivery, (ii) in the case of nationally recognized overnight courier, on the
next business day after the date sent and (iii) in the case of mailing, on the
third business day following the date of deposit in the United States mail.
7.7 Finder's Fee. Other than the fee payable by the Company to Ferris
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Baker Watts in the amount of $50,000, each party represents that it neither is
nor will be obligated for any finders' fee or commission in connection with this
transaction. The Buyer agrees to indemnify and to hold harmless the Company and
the Seller from any liability for any commission or compensation in the nature
of a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Buyer or any of its officers,
partners, employees, or representatives is responsible.
The Company and the Seller agree jointly and severally to indemnify and
hold harmless the Buyer from any liability for any commission or compensation in
the nature of a finders' fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives or the Seller is responsible.
7.8 Expenses. Irrespective of whether the Closing is effected, each
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party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement or any Exhibit hereto, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
7.9 Amendments and Waivers. Any term of this Agreement may be amended
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and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company, the Seller and the
Buyer. Any amendment or waiver effected in accordance with this paragraph shall
be binding upon each holder of any shares purchased under this Agreement at the
time outstanding, each future holder of all such shares, and the Company.
7.10 Severability. If one or more provisions of the Agreement are held
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to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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7.11 Entire Agreement. This Agreement and the documents referred to
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herein constitute the entire agreement among the parties with respect to the
sales of the Shares hereunder and no party shall be liable or bound to any other
party in any manner by any warranties, representations, or covenants except as
specifically set forth herein on therein. Except as the Prior Agreements may be
amended or provisions waived in writing as provided in this Agreement, such
Prior Agreements remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EROL'S INTERNET, INC.
By: /s/ Dennis Spina
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Dennis Spina, President
BUYER:
GOLD & APPEL TRANSFER, S.A.
By: /s/ Walt Anderson
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Walt Anderson, Attorney in Fact
SELLER:
/s/ Erol Onaran
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EROL ONARAN
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Exhibit 6.5
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Second Amendment to Stockholders' Agreement
See Exhibit 10.5
Exhibit 6.6
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Amendment to Registration Rights Agreement
See Exhibit 10.6
Exhibit 6.7
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WAIVER OF A RIGHT OF FIRST OFFER
THIS WAIVER OF A RIGHT OF FIRST OFFER, dated the 8th day of May, 1997, is
granted by Dennis Spina ("Spina"), and Erol Onaran ("Onaran") (Spina and Onaran
collectively referred to as the "Rights Holders").
1. Stock Purchase Agreement. This specific Waiver relates to a Right of
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First Offer granted in Section 6.4 of that certain Stock Purchase
Agreement, dated as of December 28, 1996 (the "Stock Purchase
Agreement"), by and among Erol's Internet, Inc. (the "Company"), Gold &
Appel Transfer, S.A. (the "Investor"), Spina and Onaran.
2. Right of First Offer. Pursuant to Section 6.4 of the Stock Purchase
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Agreement, at any time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class
of its capital stock (the "New Securities"), the Company shall first
make an offering of such New Securities to each of Onaran, Spina and
the Investor.
3. Sale of Securities. It has been proposed that Onaran and the Company
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each sell securities to the Investor pursuant to a new stock purchase
agreement dated as of May 8, 1997 (the "New Stock Purchase Agreement").
These securities, if offered by the Company, would constitute New
Securities, and would entitle Spina and Onaran to Rights of First
Offer.
4. Waiver of Right of First Offer. The undersigned Rights Holders hereby
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irrevocably waive any and all notice due them and rights to participate
in the stock transactions pursuant to the New Stock Purchase Agreement.
Rights of First Offer under Section 6.4 of the Stock Purchase Agreement
will apply to any future transactions unless waived in writing.
IN WITNESS WHEREOF, the parties have caused this specif Waiver of a Right
of First Offer to be duly executed on the day and year first above written.
/s/ Dennis Spina
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Dennis Spina
/s/ Erol Onaran
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Erol Onaran
Exhibit 6.7
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WAIVER OF A RIGHT OF FIRST REFUSAL
THIS WAIVER OF A RIGHT OF FIRST REFUSAL, dated the 8th day of May, 1997, is
granted by Erol's Internet, Inc. (the "Company"), Erol Onaran ("Onaran") and
Gold & Appel Transfer, S.A. ("Investor").
1. Stockholders' Agreement. This specific Waiver relates to a Right of
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First Refusal granted in Section 2 of that certain Stockholders'
Agreement, dated as of December 28, 1996 (the "Stockholders'
Agreement") by and among the Company, Onaran and the Investor.
2. Right of First Refusal. Pursuant to Section 2 of the Stockholders'
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Agreement, at any time Onaran or the Investor (collectively the
"Shareholders" and each of them a "Shareholder") proposes to dispose of
any of their stock in the Company, that Shareholder must provide the
Company with notice of their intended disposition, and the Company and
any Shareholder who is not offering his shares for sale will then have
Right of First Refusal to purchase the shares offered by the selling
Shareholder.
3. Sale of Securities. It has been proposed that Onaran and the Company
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each sell securities to the Investor pursuant to a new stock purchase
agreement dated as of May 8, 1997 (the "New Stock Purchase Agreement").
These securities, if offered by Onaran would entitle the Company and
the Investor to Rights of First Refusal.
4. Waiver of Right of First Refusal. The Rights Holders hereby
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irrevocably waive any and all notice due them and rights to participate
in the stock transactions pursuant to the New Stock Purchase Agreement.
Rights of First Refusal under Section 2 of the Stockholders' Agreement
will apply to any future transactions unless waived in writing.
IN WITNESS WHEREOF, the parties have caused this Waiver of a Right of First
Refusal to be duly executed on the day and year first above written.
EROL'S INTERNET, INC. GOLD & APPEL TRANSFER, S.A.
By: /s/ Dennis Spina By: /s/ Walt Anderson
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Dennis Spina Walt Anderson
/s/ Erol Onaran
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Erol Onaran
Exhibit 6.7
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WAIVER OF A BREACH OF A COVENANT TO DELIVER FINANCIAL STATEMENTS
THIS WAIVER OF A BREACH OF A COVENANT TO DELIVER FINANCIAL STATEMENTS, dated the
8th day of May, 1997, is granted by Gold & Appel Transfer, S.A. (the
"Investor").
1. Stock Purchase Agreement. This specific Waiver of a Breach of a
------------------------
Covenant to Deliver Financial Statements is granted in connection with
that certain Stock Purchase Agreement, dated as of December 28, 1996
(the "Stock Purchase Agreement"), by and among Erol's Internet, Inc.
(the "Company"), the Investor, Dennis Spina and Erol Onaran.
2. Covenant to Deliver Financial Statements. Pursuant to Section 6.1 of
----------------------------------------
the Stock Purchase Agreement, the Company covenanted and agreed to
deliver certain financial statements at certain intervals to the
Investor. The Company has or may have breached this covenant by failing
to deliver financial statements in either the proper form or at the
proper times as prescribed by the Stock Purchase Agreement.
3. Waiver of Breach of Covenant to Deliver Financial Statements. The
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Investor hereby irrevocably waives any and all notice due it and rights
and remedies against the Company for any damages caused by any Breach
of the Covenant to Deliver Financial Statements by the Company
committed up to and including the date first above written.
IN WITNESS WHEREOF, the party named below has caused this Waiver of a Breach of
Covenant to Deliver Financial Statements to be duly executed on the day and
year first above written.
GOLD & APPEL TRANSFER, S.A.
By: /s/ Walt Anderson
---------------------------
Walt Anderson
Exhibit 6.7
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WAIVER OF A CO-SALE RIGHT
THIS WAIVER OF A CO-SALE RIGHT, dated the 8th day of May, 1997, is granted
by Dennis Spina ("Spina"), Gold & Appel Transfer, S.A. (the "Investor") and Erol
Onaran ("Onaran") (Spina and Onaran collectively referred to as the "Rights
Holders").
1. Stock Purchase Agreement. This specific Waiver relates to a Co-Sale
------------------------
Right granted in Section 7 of that certain Stock Purchase Agreement,
dated as of December 28, 1996 (the "Stock Purchase Agreement"), by and
among Erol's Internet, Inc. (the "Company"), the Investor, Spina and
Onaran.
2. Co-Sale Rights. Pursuant to Section 7 of the Stock Purchase Agreement,
--------------
any time Onaran, Spina or the Investor proposes to offer any shares of
their capital stock for sale, the selling party shall so notify Spina,
Onaran, and the Investor (collectively the "Rightsholders"), as
appropriate, and shall give the Rightsholders the opportunity to sell a
prescribed portion of their shares along with those sold by the selling
party.
3. Sale of Securities. It has been proposed that Onaran and the Company
------------------
each sell securities to the Investor pursuant to a new stock purchase
agreement dated as of May 8, 1997 (the "New Stock Purchase Agreement").
These securities, if offered by Onaran, would entitle Spina and the
Investor to Co-Sale Rights.
4. Waiver of Co-Sale Rights. The Rights Holders hereby irrevocably waive
------------------------
any and all notice due them and rights to participate in the stock
transactions contemplated pursuant to the New Stock Purchase Agreement.
Rights of Co-Sale under Section 7 of the Stock Purchase Agreement will
apply to any future transactions unless waived in writing.
IN WITNESS WHEREOF, the parties have caused this Waiver of Co-Sale Rights
to be duly executed on the day and year first above written.
GOLD & APPEL TRANSFER, S.A.
By: /s/ Walt Anderson
------------------------------
Walt Anderson
/s/ Dennis Spina
---------------------------------
Dennis Spina
/s/ Erol Onaran
---------------------------------
Erol Onaran