EXHIBIT 10.24
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STOCK PURCHASE AGREEMENT
BETWEEN
CHANGE TECHNOLOGY PARTNERS, INC.
AND
FRANKLIN CAPITAL CORPORATION
________________________
Dated as of December 4, 2001
TABLE OF CONTENTS
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SECTION PAGE
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Article I SALE AND PURCHASE OF SHARES..............................1
1.1 Sale and Purchase of Shares..................................1
Article II PURCHASE PRICE AND PAYMENT...............................2
2.1 Amount of Purchase Price.....................................2
2.2 Payment of Purchase Price....................................2
Article III REPRESENTATION AND WARRANTY OF THE SELLER................2
3.1 Ownership and Transfer of Shares.............................2
3.2 Binding Agreement............................................2
Article IV REPRESENTATIONS AND WARRANTIES OF PURCHASER..............2
4.1 Investment Intention.........................................2
4.2 Binding Agreement............................................3
Article V INDEMNIFICATION..........................................3
5.1 Indemnification by the Seller................................3
Article VI MISCELLANEOUS............................................4
6.1 Certain Definitions..........................................4
6.2 Survival of Representations and Warranties...................4
6.3 Expenses.....................................................4
6.4 Notices......................................................5
6.5 Further Assurances...........................................6
6.6 Governing Law................................................6
6.7 Table of Contents and Headings...............................6
6.8 Severability.................................................6
6.9 Binding Effect; Assignment...................................6
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of December 4, 2001 (the
"Agreement"), by and between CHANGE TECHNOLOGY PARTNERS, INC., a Delaware
corporation (the "PURCHASER"), and FRANKLIN CAPITAL CORPORATION, a Delaware
corporation (the "SELLER").
W I T N E S S E T H:
WHEREAS, the Seller and the Purchaser have agreed to enter into that
certain Agreement And Plan Of Merger to be entered into as of December 4, 2001,
(the "MERGER Agreement"); and
WHEREAS, the respective Boards of Directors of the Seller and the
Purchaser have each approved the transactions contemplated by this Agreement,
upon the terms and subject to the conditions set forth herein;
WHEREAS, the Seller owns an aggregate of 2,500,000 shares of common
stock, $0.01 par value (the "Common Stock"), of Excelsior Radio Networks, Inc.,
a Delaware corporation (the "COMPANY"); and
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, 250,000 shares of Common Stock (the
"Shares") for the purchase price and upon the terms and conditions hereinafter
set forth; and
WHEREAS, certain terms used in this Agreement are defined in Section
6.1;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 SALE AND PURCHASE OF SHARES. Upon the terms and subject to the
conditions contained herein, on the date hereof the Seller hereby sells,
assigns, transfers, conveys and delivers to the Purchaser, and the Purchaser
hereby purchases from the Seller, the Shares.
ARTICLE II
PURCHASE PRICE AND PAYMENT
2.1 AMOUNT OF PURCHASE PRICE. The purchase price for the Shares is
an amount equal to $250,000 (the "PURCHASE PRICE").
2.2 PAYMENT OF PURCHASE PRICE. The Purchaser shall pay the
Purchase Price to the Seller, which shall be paid by the delivery to Seller of a
certified or bank cashier's check in New York Clearing House Funds, payable to
the order of Seller or, at the Seller`s option, by wire transfer of immediately
available funds into an account designated by the Seller.
2.3 REPURCHASE. If the Merger Agreement is terminated by the
Purchaser or the Seller pursuant to the provisions thereof, then, not later than
60 days following such termination, the Seller shall be required to repurchase
the Shares from the Purchaser, and the Purchaser shall be obligated to sell the
Shares to the Seller, for an amount (the "Repurchase Price") equal to $250,000,
plus interest thereon at an annual rate of 10% from the date of this Agreement
to the date of such repurchase. The Repurchase Price shall be paid by the
delivery to Purchaser of a certified or bank cashier's check in New York
Clearing House Funds, payable to the order of Purchaser or, at the Purchaser`s
option, by wire transfer of immediately available funds into an account
designated by the Purchaser. In connection with such Repurchase transaction, the
Purchaser shall be required to represent and warrant to the Seller only that it
is the record and beneficial owner of the Shares, free and clear of any and all
Liens and that it has the corporate power and authority to sell, transfer,
assign and deliver such Shares as provided in this Agreement, and such delivery
will convey to the Seller good and marketable title to such Shares, free and
clear of any and all Liens.
ARTICLE III
REPRESENTATION AND WARRANTY OF THE SELLER
The Seller hereby represents and warrants to the Purchaser that:
3.1 OWNERSHIP AND TRANSFER OF SHARES. The Seller is the record and
beneficial owner of the Shares, free and clear of any and all Liens. The Seller
has the corporate power and authority to sell, transfer, assign and deliver such
Shares as provided in this Agreement, and such delivery will convey to the
Purchaser good and marketable title to such Shares, free and clear of any and
all Liens.
3.2 BINDING AGREEMENT. This Agreement has been duly and validly
authorized, executed and delivered by the Seller and is a valid and binding
agreement of the Seller enforceable against it in accordance with its terms,
subject to applicable
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bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally.
3.3 ORGANIZATION. Each of the Seller and the Company is duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
3.4 NO BREACH. The execution, delivery and performance by the
Seller of this Agreement and the consummation by the Seller of the transactions
contemplated hereby do not, with or without the giving of notice or the passage
of time or both, (a) violate the provisions of any law, rule or regulation
applicable to the Seller; (b) violate the Certificate of Incorporation or
by-laws of the Seller or any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to the Seller of the Shares; or (c)
conflict with or result in a material breach or termination of, or constitute a
material default under, any indenture, mortgage, deed of trust or other
instrument or agreement to which the Seller is a party or by which any of the
Shares being sold hereunder is or may be bound.
3.5 CAPITALIZATION. The Company is authorized to issue 10,000,000
shares of Common Stock, of which as of the date of this Agreement 2,500,000
shares are issued and outstanding, and 100,000 shares of preferred stock, 15,000
of which are outstanding on the date of this Agreement. All issued and
outstanding shares of Common Stock and Preferred Stock, have been duly
authorized and are validly issued, fully paid and nonassessable. Other than the
15,000 shares of preferred stock and 611,614 warrants to purchase Common Stock,
there are no outstanding or authorized options, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that would require the Company to issue, sell, or otherwise cause to become
outstanding any of its capital stock.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Seller that:
4.1 INVESTMENT INTENTION. (a) The Purchaser is acquiring the
Shares for its own account, for investment purposes only and not with a view to
the distribution (as such term is used in Section 2(11) of the Securities Act of
1933, as amended (the "SECURITIES ACT") thereof. The Purchaser understands that
the Shares have not been registered under the Securities Act and cannot be sold
unless subsequently registered under the Securities Act or an exemption from
such registration is available.
(b) The Purchaser is (i) an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act, (ii) experienced
in making
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investments of the kind contemplated by this Agreement, (iii) capable, by reason
of its business and financial experience, of evaluating the relative merits and
risks of an investment in the Shares, and (iv) able to afford the loss of is
investment in the Shares.
(c) The Purchaser understands that the Shares are being offered
and sold by Seller in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Seller is relying upon the accuracy of, and Buyer's
compliance with, Buyer's representations, warranties and covenants set forth in
this Agreement to determine the availability of such exemption and the
eligibility of Buyer to purchase the Shares;
(d) The Purchaser acknowledges that in making its decision to
purchase the Shares it has been given an opportunity to ask questions of and to
receive answers from the Company's executive officers, directors and management
personnel concerning the terms and conditions of the private placement of the
Shares by the Company.
(e) The Purchaser understands that the Shares have not been
approved or disapproved by the Commission or any state securities commission and
that the foregoing authorities have not reviewed any documents or instruments in
connection with the offer and sale to it of the Shares and have not confirmed or
determined the adequacy or accuracy of any such documents of instruments.
4.2 BINDING AGREEMENT. This Agreement has been duly and validly
authorized, executed and delivered by the Purchaser and is a valid and binding
agreement of the Purchaser enforceable against it in accordance with is terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally.
4.3 ORGANIZATION. The Purchaser is duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted.
4.4 NO BREACH. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby do not, with or without the giving of notice or
the passage of time or both, (a) violate the provisions of any law, rule or
regulation applicable to the Purchaser; (b) violate the Certificate of
Incorporation or by-laws of the Purchaser or any judgment, decree, order or
award of any court, governmental body or arbitrator applicable to the Purchaser
of the Shares; or (c) conflict with or result in a material breach or
termination of, or constitute a material default under, any indenture, mortgage,
deed of trust or other instrument or agreement to which the Purchaser is a party
or by which any of the Shares being sold hereunder is or may be bound.
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ARTICLE V
INDEMNIFICATION
5.1 INDEMNIFICATION BY THE SELLER.
The Seller hereby agrees to indemnify and hold the Purchaser and its
respective directors, officers, employees, Affiliates, agents, successors and
assigns harmless from and against any and all losses, liabilities, obligations,
damages, costs and expenses based upon, attributable to or resulting from the
failure of any representation or warranty of the Seller set forth in Article III
hereof, to be true and correct in all respects as of the date made.
5.2 INDEMNIFICATION BY THE PURCHASER
The Purchaser hereby agrees to indemnify and hold the Seller and its
Affiliates, agents, successors and assigns harmless from and against any and all
losses based upon, attributable to or resulting from the failure of any
representation or warranty of the Purchaser set forth in Article IV hereof, to
be true and correct as of the date made.
ARTICLE VI
MISCELLANEOUS
6.1 CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 6.1:
"AFFILIATE" means, with respect to any person, any other person
controlling, controlled by or under common control with such person.
"COMPANY" shall have the meaning ascribed thereto in the recitals
hereof.
"LIEN" means any lien, pledge, mortgage, deed of trust, security
interest, claim, lease, charge, option, right of first refusal, easement,
servitude, transfer restriction under any shareholder or similar agreement,
encumbrance or any other restriction or limitation whatsoever.
"PURCHASE PRICE" shall have the meaning ascribed thereto in Section 2.1
hereof.
"PURCHASER" means Change Technology Partners, Inc.
"SECURITIES ACT" shall have the meaning ascribed thereto in Section 4.1
hereof.
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"SELLER" means Franklin Capital Corporation.
6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The parties hereto
hereby agree that the representations and warranties contained in this Agreement
or in any certificate, document or instrument delivered in connection herewith,
shall survive the execution and delivery of this Agreement, and the sale of the
Shares hereunder, regardless of any investigation made by the parties hereto.
6.3 EXPENSES. Except as otherwise provided in this Agreement, the
Seller and the Purchaser shall each bear its own expenses incurred in connection
with the negotiation and execution of this Agreement and the consummation of the
transaction contemplated hereby, it being understood that in no event shall the
Company bear any of such costs and expenses.
6.4 NOTICES. All notices and other communications under this
Agreement must be in writing and will be deemed to have been duly given if
delivered, telecopied or mailed, by certified mail, return receipt requested,
first-class postage prepaid, to the parties at the following addresses:
If to Franklin, to:
Franklin Capital Corporation
450 Park Avenue
10th Floor
New York, New York 10022
Attention: Stephen L. Brown
Telephone: (212) 486-2323
Telecopy: (212) 755-5451
With copies to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Jeffrey J. Weinberg, Esq.
Telephone: (212) 310-8000
Telecopy: (212) 310-8007
If to CTPI, to:
Change Technology Partners, Inc.
537 Steamboat Road
Greenwich, Connecticut 06830
Attention: William Avery
Telephone: (203) 661-6942
Telecopy: (203) 661-1331
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With copies to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: James M. Dubin, Esq.
Telephone: (212) 373-3000
Telecopy: (212) 757-3990
All notices and other communications required or permitted under this
Agreement that are addressed as provided in this Section 6.4 will, if delivered
personally, be deemed given upon delivery, will, if delivered by telecopy, be
deemed delivered when confirmed and will, if delivered by mail in the manner
described above, be deemed given on the third business day after the day it is
deposited in a regular depository of the United States mail. Any party from time
to time may change its address for the purpose of notices to that party by
giving a similar notice specifying a new address, but no such notice will be
deemed to have been given until it is actually received by the party sought to
be charged with the contents thereof.
6.5 FURTHER ASSURANCES. The Seller and the Purchaser each agrees
to execute and deliver such other documents or agreements and to take such other
action as may be reasonably necessary or desirable for the implementation of
this Agreement and the consummation of the transaction contemplated hereby.
6.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of laws provisions thereof.
6.7 TABLE OF CONTENTS AND HEADINGS. The table of contents and
section headings of this Agreement are for reference purposes only and are to be
given no effect in the construction or interpretation of this Agreement.
6.8 SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
6.9 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity not a party to this
Agreement except as provided below. No assignment of this Agreement or of any
rights or obligations hereunder may be made by either the Seller or the
Purchaser (by operation of law or otherwise) without the prior written consent
of the other parties hereto and any attempted assignment without the required
consents shall be void; PROVIDED, HOWEVER, that the Purchaser may assign this
Agreement and any or all rights or obligations hereunder to any Affiliate of the
Purchaser. Upon any such permitted assignment, the references in this Agreement
to the Purchaser shall also apply to any such assignee unless the context
otherwise requires.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
CHANGE TECHNOLOGY PARTNERS, INC.
By: /s/ William B. Avery
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Name: William B. Avery
Title: President and CEO
FRANKLIN CAPITAL CORPORATION
By: /s/ Stephen L. Brown
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Name: Stephen L. Brown
Title: Chairman and CEO
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