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EXHIBIT 10.18
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made this 5th day of October, 1994, by
and between LET'S TALK CELLULAR OF AMERICA, INC., a Florida corporation (the
"Company"), and ALLAN C. SORENSEN, a Florida resident ("Purchaser").
WHEREAS, the Company desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Company, shares of the common stock of
the Company, par value $1.00 per share (the "Shares"), on the terms and
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the premises and agreements
contained herein, the parties hereto agree as follows:
Section 1. Transfer of the Shares.
(a) Upon the terms and subject to the conditions set forth herein, the
Company shall issue to the Purchaser, 100 Shares, free and clear of all
liens, encumbrances and limitations of any kind or nature (collectively,
"Liens"), 60 of which Shares shall be delivered to the Purchaser at the
Closing and 40 of which Shares shall be delivered to the Escrow Agent (as
defined in Section 8.2) at the Closing to be held pursuant to the terms of
the Escrow Agreement (as defined in Section 8.2).
(b) If the Company shall reorganize its capital, reclassify its
capital stock, consolidate or merge with another corporation, or sell or
otherwise consummate any transaction involving the issuance of the capital
stock of the Company ("Dilutive Event"), the Company shall issue to the
Purchaser additional Shares, free and clear of all Liens, such that, after
giving effect to all such transactions and the Purchaser's then current
holdings of Shares, the Purchaser shall own 10% of the issued and
outstanding capital stock of the Company. The obligation of the Company to
issue to the Purchaser additional Shares pursuant hereto shall terminate on
(the "Termination Date"): (i) the day prior to the consummation of the
Company's initial public offering which is registered with the Securities
and Exchange Commission (the "Registered Offering") or, if earlier, (ii) the
date on which Nick Molina and Brett Beveridge (collectively, the "Principal
Shareholders") shall
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cease to own in the aggregate at least 75% of the issued and outstanding
capital stock of the Company as a result of the issuance of capital stock
pursuant to Dilutive Events (thus, for purposes of determining pursuant to
this clause (b) whether the Principal Shareholders still own at least
seventy-five percent (75%) of the issued and outstanding capital stock of
the Company, they shall be deemed to still own all shares of capital stock
transferred by the Principal Shareholders and all capital stock issued by
the Company to family members and affiliates of the Principal
Shareholders.) The purpose of this Section 1(b) is to assure that the
Purchased Shares represent, at all times through and including the
Termination Date, ten percent (10%) of the issued and outstanding capital
stock of the Company on a fully-diluted basis. For purposes of this
Agreement, the phrase "on a fully-diluted basis" shall mean after giving
effect to the issuance of securities pursuant to any then outstanding
preemptive rights, subscriptions, options, warrants, puts, calls,
rights, exchangeable or convertible securities or other agreements or
commitments of any character obligating the Company to issue, transfer,
sell, purchase or redeem any of its securities. Promptly after the
consummation of each transaction giving rise to such issuance, the Company
shall deliver certificates representing 60% of all additional Shares
issued hereunder to the Purchaser and certificates representing the
remaining 40% of such additional shares to the Escrow Agent, or, if the
Escrow Agreement shall have terminated pursuant to the terms thereof, all
such certificates to the Purchaser, in each case bearing such legends as
the Company shall reasonably require.
The Shares described in clauses (a) and (b) above are hereinafter
referred to as the "Purchased Shares".
Section 2. Consideration.
In consideration and payment in full for the Purchased Shares, the
Purchaser shall pay $250,000 in cash to the Company on the Closing Date.
Section 3. Option to Repurchase.
The Company shall have the right, but not the obligation, to purchase
from the Purchaser, in each case free and clear of all Liens:
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(a) one-fourth of all Purchased Shares held in escrow by the Escrow
Agent, for an aggregate exercise price of $1.00, if, on or before the first
anniversary of the Closing Date, the Purchaser has not submitted to the
Board of Directors of the Company a Proposal for a Nationwide Distribution
Network. For purposes of this clause (a), "Proposal for a Nationwide
Distribution Network" shall mean a written proposal prepared by or on behalf
of the Purchaser setting forth in reasonable detail the comparative
material features, including, without limitation, geographic scope, time to
implement, costs, projected benefits, legal requirements and marketing
advantages, of three or more methods of distributing the Company's
products, including franchising and licensing, and containing the
Purchaser's recommendations and reasons therefor; and
(b) three-fourths of all Purchased Shares held in escrow by the Escrow
Agent, for an aggregate exercise price of $1.00, if, on or before the second
anniversary of the Closing Date, the Company has not received net proceeds
in the aggregate amount of $1,000,000 or more from any sale or sales of
securities of the Company (whether through a public offering, private
placement or otherwise), or from any institutional or other borrowing (other
than pursuant to any lines of credit which any of the Principal Shareholders
have guaranteed), or from any combination thereof.
The option granted pursuant to clause (a) above shall be exercisable by
delivery of notice to the Purchaser and payment of the exercise price at any
time after the first anniversary of the Closing Date, and the option granted
pursuant to clause (b) above shall be exercisable by delivery of notice and
payment of the exercise price to the Purchaser at any time after the second
anniversary of the Closing Date, Each option shall expire if notice of exercise
and payment are not received by the Purchaser on or before the thirtieth day
after such option first becomes exercisable. Upon exercise or expiration or an
option, as the case may be, the Company and the Purchaser shall give written
instructions to the Escrow Agent to release the Purchased Shares subject to
such option which are then held in escrow, to the Company in the event of an
exercise, or to the Purchaser in the event of expiration.
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Section 4. Representations and Warranties of the Company.
The Company represents and warrants to the Purchaser as of the date
hereof, as of the Closing Date and, with respect to Section 4.5 only, as of the
date of each issuance of Purchased Shares subsequent to the date hereof, as
follows:
4.1 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and has all
requisite corporate power and authority to own, lease and operate its properties
and carry on its business as now being conducted. The Company has heretofore
delivered to the Purchaser accurate and complete copies of its Articles of
Incorporation and By-Laws, as currently in effect.
4.2 Enforceable Obligation. This Agreement has been duly 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. Each of
the Consulting Agreement (as defined in Section 8.2) and the Escrow Agreement
shall, when it is executed and delivered by the Company, be duly executed and
delivered by the Company and shall constitute a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
4.3 No Violation. The execution, delivery and performance by the
Company of this Agreement, the Consulting Agreement and the Escrow Agreement
shall not constitute a violation of, or be in conflict with, or result in a
breach of, or constitute a default under, or contravene any provision of, any
contract, agreement or instrument, any law, statute, rule or regulation, or any
judgment, decree, order or award, by which the Company is bound or to which any
of its assets are subject, or any provision of the Articles of Incorporation or
By-Laws of the Company.
4.4 Capitalization. As of the Closing Date, the authorized capital
stock of the Company consists solely of 50,000,000 shares of common stock, par
value $1.00 per share. As of the Closing Date, there were 1,000 Shares issued
and outstanding, after giving effect to the issuance of the Shares to Purchaser
as described in Section l(a), the remaining 900 shares of which are owned
legally, beneficially and of record by the Principal Shareholders. All of the
Shares are validly issued, fully paid and nonassessable. As of the Closing
Date, there are no
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preemptive rights, subscriptions, options, warrants, puts, calls, rights,
exchangeable or convertible securities or other agreements or commitments of any
character obligating the Company to issue, transfer, sell, purchase or redeem
any of its securities. The Company has not issued any Shares or any other
securities exchangeable or exercisable for or convertible into shares of capital
stock of the Company.
4.5 Shares. The Purchased Shares to be issued pursuant to this
Agreement are duly authorized, and upon their issuance pursuant hereto, shall be
validly issued, fully paid and nonassessable and free and clear of all Liens.
The Purchased Shares delivered pursuant to Section l(a) constitute 10% of the
issued and outstanding capital stock of the Company on a fully diluted basis as
of the Closing Date.
4.6 Financial Statements. The Company has heretofore delivered to the
Purchaser true and complete copies of the financial statements of the Company
for and as of the fiscal year ended July 31, 1994 ("Financial Statements"),
including a balance sheet ("Balance Sheet") for the Company as of July 31, 1994.
The Financial Statements were prepared in accordance with generally accepted
accounting principles (applied on a consistent basis throughout the period
covered thereby, present fairly, in all material respects, the financial
condition and results of operations of the Company as of and for such period and
have been prepared from the books and records of the Company. Since the date of
the Balance Sheet, there has not been any material adverse change in the
Company's financial condition and assets.
4.7 Undisclosed Liabilities. Except as disclosed in the Balance Sheet,
since the date of the Balance Sheet, the Company has not incurred any
material liability (absolute, contingent or otherwise), except liabilities
incurred in the ordinary course of business consistent with past practice.
4.8 Taxes. The Company has filed all tax returns that it has been
required to file, and has paid all taxes shown thereon as arising, except
where the failure to file such returns or to pay such taxes would not have a
material adverse effect on the financial condition of the Company. There are
no audits of any tax returns of the Company currently in progress, and the
Company has not received any written notices of deficiency or assessment or
proposed deficiency or assessment from any taxing authority which has not
been paid.
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Section 5. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Company as of the date
hereof and as of the Closing Date as follows:
5.1 Enforceable Obligation. This Agreement has been duly executed
and delivered by the Purchaser and constitutes a valid and binding obligation of
the Purchaser enforceable against the Purchaser in accordance with its terms.
Each of the Consulting Agreement and the Escrow Agreement shall, when it is
executed and delivered by the Purchaser, be duly executed and delivered by the
Purchaser and shall constitute the valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
5.2 No Violation. The execution, delivery and performance by the
Purchaser of this Agreement, the Escrow Agreement and the Consulting Agreement
shall not constitute a violation of, or be in conflict with, or result in a
breach of, or constitute a default under, or contravene any provision of, any
contract, agreement or instrument, any law, statute, rule or regulation, or any
judgment, decree, order or award, by which the Purchaser is bound or to which
any of his assets are subject.
5.3 Securities Laws. The Purchaser is purchasing the Purchased Shares
for his own account and for investment and not with a view to, or for sale in
connection with, any distribution of securities.
Section 6. Covenants.
6.1 Conduct of the Business. Prior to the Closing, the Company and its
subsidiaries shall carry on their businesses in the ordinary course consistent
with past practice and shall use their best efforts to preserve intact their
present business organization and their relationships with customers.
6.2 Access to Information. During the period from the date hereof
to the Closing Date, upon reasonable notice, the Company shall afford to the
Purchaser access, during normal business hours, to the properties, books,
contracts, commitments and records of the Company and its subsidiaries; provided
however, that in conducting such activities, the Purchaser shall not, and shall
cause his representatives not to, unduly interfere with the business and
employees of the Company and its subsidiaries. The
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Purchaser shall use all non-public information disclosed by the Company or its
representatives solely for the purpose of evaluating the transactions
contemplated hereby and shall not disclose to any person or entity other than
his representatives or use such information for any other purpose, except as
required by applicable law or legal process, without the prior written consent
of the Company. The Purchaser shall inform his representatives of the
confidential nature of such information and shall obtain the agreement of each
such representative to maintain and use such non-public information in a manner
consistent with the provisions of this Section 6.2. If this Agreement is
terminated, the Purchaser shall, and shall cause his representatives to,
destroy or deliver to the Company all non-public documents, work papers and
other materials containing any non-public information, whether obtained before
or after the date of execution hereof.
6.3 Restrictions on Transfer.
(a) If the Purchaser shall desire to sell or otherwise dispose of,
grant any option with respect to, or create, incur, assume or suffer to
exist any Lien on the Purchased Shares (collectively, a "Transfer"), then
in his possession and not held by the Escrow Agent (the "Non-Escrow
Shares"), he shall first offer to sell such Shares to the Company by
delivering to the Company notice of the proposed Transfer. Such notice shall
state the number of Non-Escrow Shares offered and the price and terms upon
which such Shares are proposed to be Transferred. The Company shall have
the right to elect upon notice to the Purchaser within 30 days thereafter
to purchase all, but not less than all, of the Non-Escrow Shares at the
same price and upon the same terms and conditions as those contained in
such offer by giving notice to the Purchaser within the 30-day period.
Notwithstanding the foregoing, if the proposed Transfer is to occur
subsequent to the Registered Offering, the Purchaser may give Company
notice of the Transfer telephonically or by fax and the Company's right
to elect to purchase pursuant this Section 6.3 must be exercised within
forty-eight (48) hours after notice is given telephonically or by fax by
the Purchaser. If the Company does not elect to purchase all of the
Non-Escrow Shares within the aforesaid period or, if, after accepting such
offer, the Company fails to purchase all such Shares in accordance
herewith, then the Purchaser shall be free to Transfer all such Shares to
anyone at not less than the price and on the same terms and conditions
contained in the
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offer within 90 days following, as the case may be, (x) the default by the
Company to make such purchase of such Shares on the closing date, or (y) the
earlier of either (1) the expiration of the period within which the Company
may elect to purchase such Shares or (2) the giving of notice by the
Company to the Purchaser that it does not elect to purchase all of
Non-Escrow Shares. Promptly after the execution of any contract for the
Transfer of such Shares, the Purchaser shall deliver to the Company a true
and complete copy of such contract and all amendments thereto, and such
other information relating to the contract and the proposed purchaser as
the Company may request. Upon the consummation of the Transfer of such
Shares, the Purchaser shall notify the Company thereof and shall certify
the price and terms and conditions upon which such Transfer was made. Any
attempted Transfer of Purchased Shares by the Purchaser otherwise than in
full compliance herewith shall be null and void.
(b) In the event that either or both of the Principal Shareholders
propose to engage in one or more Transfers prior to the consummation of the
Registered Offering which would result in the Principal Shareholders owning
in the aggregate less than 51% of the voting capital stock of the Company,
the Transferors shall give written notice to the Purchaser setting forth
the material terms of the proposed Transfer. If the Purchaser so elects by
delivery of written notice to the Transferors, the Principal Shareholders
shall not Transfer their Shares unless the Transferee agrees to purchase
such number of Non-Escrow Shares as is specified in the notice, at the same
pries per share and upon the same terms and conditions, as such Transferee
proposes to purchase the Shares of the Transferors.
6.4 Incidental Registration.
(a) If, on any one or more occasions, the Company proposes to register
its Shares under the Securities Act of 1933, as amended (the "Securities
Act"), by registration on Forms S-1, S-2, S-3, SB-1 or SB-2, or any
successor, or similar form(s), whether or not for sale for its own account,
it will each such time give prompt written notice to the Purchaser of its
intention to do so. The Purchaser shall be entitled pursuant to the
provisions of this Section 6.4 to request the registration of up to 30% of
his Non-Escrow Shares. Upon the written request of the
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Purchaser made as promptly as practicable and in any event within 20 days
after the receipt of any such notice (which request shall specify the
Purchased Shares intended to be included by the Purchaser in such
registration), the Company will use its best efforts to effect the
registration under the Securities Act of a number of Purchased Shares not to
exceed 30% of the Non-Escrow Shares which the Company has been so requested
to register; provided, however, that if, at any time after giving written
notice of its intention to register any Non-Escrow Shares and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason to delay or not to
complete the registration of the Company's Shares in which Purchased Shares
were to be included pursuant to this Section 6.4(a). The Company may, at its
election, give written notice of such determination to the Purchaser and (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Non-Escrow Shares in connection with such
registration, without prejudice, however, to the rights of the Purchaser
hereunder, and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Non-Escrow Shares for the same
period as the delay in registering such other securities; and provided
further that, subsequent to the Registered Offering, the Company shall not
be required to register pursuant to this Section 6.4(a) Purchased Shares
that are then eligible for resale pursuant to Rule 144 under the Securities
Act. For purposes of this Section 6.4, the term "Non-Escrow Shares" will be
deemed to include all shares issued on or in respect of the Purchased Shares
as a result of a stock split, stock dividend or otherwise. The rights of the
Purchaser under this Section 6.4 shall be pari passu with, but not superior
to, any other registration rights outstanding in regard to the capital stock
of the Company. Any underwriters' discounts and commissions with respect to
the Purchased Shares shall be allocated to and paid by the Purchaser based
on the number of Non-Escrow Shares registered. The Purchaser shall pay for
all of the fees and expenses of counsel retained by him.
(b) If the managing underwriter of any underwritten offering shall
inform the Company by letter of its belief that the number of Shares
requested to be included in such registration would materially adversely
affect such offering, then the Company will include in such registration, to
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extent of the number which the Company is so advised can be sold in (or
during the time of) such offering, first, all Shares proposed by the
Company to be sold for its own account and second, such Shares requested to
be included in such registration pro rata among the requesting holders
according to the total number of Shares requested by such holders.
(c) If and whenever the Company is required to use its best efforts to
effect the registration of any Shares under the Securities Act as provided
in Section 6.4(a), the Company will as soon as practicable:
(i) prepare and (within 60 days after the end of the Company's
fiscal quarter within which requests for registration may be given to
the Company or 90 days in the case of the Company's fourth fiscal
quarter) file with the Securities and Exchange Commission the requisite
registration statement to effect such registration and thereafter use
its best efforts to cause such registration statement to become
effective;
(ii) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the
disposition of all Shares covered by such registration statement until
the earlier of such time as all of such Shares shall have been
disposed and 45 days after the effective date of the registration
statement;
(iii) furnish to the Purchaser such number of conformed copies of
such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, as the Purchaser may
reasonably request;
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(iv) use its best efforts (x) to register or qualify all of the
Shares covered by such registration statement under such other
securities or blue sky laws of the State of Florida and such other
States of the United States of America where an exemption is not
available and as a majority of the sellers of Shares covered by such
registration statement shall reasonably request, (y) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect, and (z) to take any other
action which may be reasonably necessary or advisable to enable such
sellers to consummate the disposition in such jurisdictions of the
securities to be sold by such sellers, except that the Company shall
not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subclause (iv) be obligated to be
so qualified, to consent to general service of process in any such
jurisdiction or to subject itself to taxation in any such jurisdiction;
and
(v) use its best efforts to cause all Shares covered by such
registration statement to be registered with or approved by such other
Federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to the
sellers of Shares to enable the sellers thereof to consummate the
disposition of such Shares.
The Company may require the Purchaser to furnish to the Company such
information regarding the Purchaser and the distribution of his Purchased Shares
as the Company may from time to time reasonably request in writing.
Section 7. Conditions Precedent.
7.1 Conditions to the Company's Obligations. The obligations of the
Company under this Agreement are subject to the satisfaction of all of the
following conditions at or prior to the Closing, unless waived by the Company:
(a) The representations and warranties of the Purchaser contained in
this Agreement shall be accurate in all material respects on and as of
the Closing Date with the same effect as though
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such representations and warranties had been made on and as of such date.
(b) Each and all of the obligations of the Purchaser to be performed
or complied with on or before the Closing pursuant to the terms hereof shall
have been performed or complied with in all material respects.
7.2 Conditions to the Purchaser's Obligations.
The obligations of the Purchaser under this Agreement are subject to the
satisfaction of all of the following conditions at or prior to the Closing,
unless waived by the Purchaser:
(a) The representations and warranties of the Company contained in
this Agreement shall be accurate in all material respects on and as of the
Closing Date with the same effect as though such representations and
warranties had been made on and as of such date.
(b) Each and all of the obligations of the Company to be performed or
complied with on or before the Closing pursuant to the terms hereof shall
have performed or complied with in all material respects.
Section 8. The Closing.
8.1 Closing. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of White & Case, 200
South Biscayne Boulevard, Miami, Florida, at such time and date as the parties
hereto shall agree, which, in any event, shall not be later than October 5,
1994, (such time and date on which the Closing takes place, the "Closing Date").
8.2 Obligations of the Company at the Closing. At the Closing, the
Company shall:
(a) Deliver to the Purchaser a counterpart of a Consulting Agreement,
substantially in the form attached hereto as Exhibit A (the "Consulting
Agreement"), duly executed by the Company;
(b) Deliver to the Purchaser a counterpart of an Escrow Agreement,
substantially in the form attached hereto as Exhibit B (the "Escrow
Agreement"), duly executed by the Company; and
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(c) Issue, execute and deliver to the Purchaser and to the escrow
agent under the Escrow Agreement (the "Escrow Agent"), stock certificates,
representing the Shares described in Section l(a), bearing such legends as
the Company shall reasonably require.
8.3 Obligations of the Purchaser at the Closing. At the Closing, the
Purchaser shall:
(a) Pay the amount set forth in Section 2 hereof to the Company;
(b) Deliver to the Company a counterpart of the Consulting Agreement,
duly executed by Purchaser;
(c) Deliver to the Company a counterpart of the Escrow Agreement,
duly executed by the Purchaser; and
(d) Deliver to the Escrow Agent stock powers executed in blank in
respect of Purchased Shares deposited by the Company with the Escrow Agent.
Section 9. Miscellaneous.
9.1 Survival of Representations and Warranties. The representations
and warranties of the parties contained in Sections 4 and 5 hereof shall survive
the Closing until the third anniversary thereof.
9.2 Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when delivered in person, or when sent by telex
or telecopy or other facsimile transmission (with receipt confirmed), or on the
fifth business day after posting thereof by registered or certified mail, return
receipt requested, prepaid and addressed as follows (or at such other addresses
as the parties may designate by written notice in the manner aforesaid):
If to the Company:
Let's Talk Cellular of America, Inc.
1912 N.W. 84th Avenue
Miami, Florida 33126
Telephone: (305) 477-8255
Facsimile: (305) 594-0498
Attention: President and
Executive Vice President
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With a copy to:
Emilio Alvarez-Farre
White & Case
First Union Financial Center
200 South Biscayne Blvd.
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
If to Purchaser:
Allan C. Sorensen
c/o Interim Services, Inc.
2050 Spectrum Boulevard
Ft. Lauderdale, Florida 33309-3008
Telephone: (305) 938-7705
Facsimile: (305) 351-8117
With a copy to:
Scott H. Margol, Esq.
Ruden, Barnett, McClosky, Smith,
Schuster & Russell, P.A.
200 East Broward Boulevard
Fort Lauderdale, Florida 33301
Telephone: (305) 527-2408
Facsimile: (305) 764-4996
9.3 Assignment. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof may be assigned or
delegated by either party hereto without the prior written consent of the other
party.
9.4 Severability. In the event any provision of this Agreement is held
to be invalid, illegal or unenforceable for any reason and in any respect, such
invalidity, illegality or unenforceability shall not affect, prejudice or
disturb the validity of any other provision contained herein and all such other
provisions shall remain in full force and effect.
9.5 Attorneys' Fees. In the event of any litigation between the
parties as to any matter arising under this Agreement or relating to the subject
matter hereof, the prevailing party in any such litigation shall be entitled to
recover from the other party his or its reasonable attorneys' fees, costs and
expenses incurred in such litigation (including appellate litigation).
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9.6 Benefit. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and permitted
assigns.
9.7 Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings of the parties with respect
to such subject matter.
9.8 Amendments and Waivers. Neither this Agreement nor any of the
terms hereof may be changed, waived or discharged, unless such change, waiver or
discharge is in a writing signed by all the parties hereto.
9.9 Captions. The captions contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Agreement or any provision hereof.
9.10 Construction. This Agreement shall be interpreted without regard
to any presumption or rule requiring construction against the party causing this
Agreement to be drafted.
9.11 Counterparts. This Agreement may be executed in two or more
counterparts, including facsimile counterparts, each and all of which shall be
deemed an original and all of which together shall constitute but one and the
same agreement.
9.12 Governing Law. This Agreement has been executed and delivered in,
and shall be interpreted, construed, and enforced in accordance with, the laws
of the State of Florida.
9.13 Confidentiality Agreement. Without prejudice to the Company's
rights under the Consulting Agreement, the Confidentiality Agreement dated as of
June 27, 1994, between the Company and the Purchaser is hereby terminated.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on the day and year first above written.
LET'S TALK CELLULAR OF
AMERICA, INC.
/s/ Nicolas Molina
-----------------------------------
Name: Nicolas Molina
-------------------------------
Title: President
------------------------------
/s/ Allan C. Sorensen
------------------------------------
Allan C. Sorensen
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FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This First Amendment to that certain Stock Purchase Agreement dated
October 5, 1994 ("Agreement"), by and between LET'S TALK CELLULAR OF AMERICA,
INC., a Florida corporation (the "Company") and ALLAN C. SORENSEN, a Florida
resident ("Purchaser"), is dated as of May 15 , 1996 and shall read as follows:
WITNESSETH:
WHEREAS, the Company and Purchaser wish to make certain revisions to
the Agreement, the terms and conditions of which are set forth herein;
NOW, THEREFORE, for and in consideration of the premises and agreements
contained herein, the parties hereto agree as follows:
1. Section 1. Transfer of the Shares. In Subparagraph (a), all of
the Purchased Shares shall be delivered to the Purchaser. With regard to same,
those of the Purchased Shares held by the Escrow Agent, pursuant to the terms
of the Escrow Agreement, shall be immediately distributed by the Escrow Agent
to the Purchaser In conjunction therewith, the parties hereto have executed a
Termination of Escrow Agreement, of even date herewith, pursuant to which the
Escrow Agent is authorized and instructed to release and distribute to the
Purchaser all of the Purchased Shares held by the Escrow Agent, upon which the
Escrow Agreement shall terminate and be of no further force and effect.
2. Section 1. Transfer of Shares. In Subsection (b), the second
sentence only shall be deleted in its entirety and shall be replaced with the
following:
"The obligation of the Company to issue to the Purchaser
additional Shares pursuant hereto shall terminate on (the
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Termination Date"): (i) the day prior to the consummation of the
Company's initial public offering which is registered with the
Securities and Exchange Commission (the "Registered Offering") or,
if earlier, (ii) the date on which Nick Molina and Brett Beveridge
(collectively, the "Principal Shareholders") shall cease to own in
the aggregate at least ninety (90%) percent of the issued and
outstanding capital stock of the Company, (inclusive of Shares
owned by Anne Gozlan, in an amount not to exceed three (3%)
percent of the issued and outstanding capital stock of the
Company), as a result of the issuance of capital stock pursuant to
Dilutive Events (thus, for purposes of determining pursuant to
this clause (b) whether the Principal Shareholders still own at
least ninety (90%) percent of the issued and outstanding capital
stock of the Company (inclusive of Shares owned by Anne Gozlan, in
an amount not to exceed three (3%) percent of the issued and
outstanding capital stock of the Company), they shall be deemed to
still own all shares of capital stock transferred by the Principal
Shareholders and all capital stock issued by the Company to family
members and affiliates of the Principal Shareholders.)"
3. Section 3. Option to Repurchase. This Section shall be deleted
in its entirety.
4. A new Section 9.14 entitled "Death or Disability of Purchaser,"
shall be included in the Agreement and shall read as follows:
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"(a) In the event of the death of the Purchaser, the Company shall
be required to purchase the Shares of the Purchaser owned by him
at the time of his death. The purchase price shall be determined
as of the last day of the month preceding Purchaser's death (the
"Determination Date").
(b) The purchase price to be paid by the Company to the estate or
personal representative of the Purchaser for the Shares of the
Purchaser shall be the highest of the following amounts, as
calculated;
(i) The sum of Two Hundred Fifty Thousand ($250,000.00)
Dollars;
(ii) Five (5x) times the After-Tax Earnings of the Company,
calculated for the immediately preceding twelve (12) month period,
ending on the Determination Date, multiplied by the Purchaser's
percentage ownership of the issued and outstanding Shares of the
Company; or
(iii) The Book Value of the Company, as of the Determination
Date, multiplied by the Purchaser's percentage ownership of the
issued and outstanding Shares of the Company.
(c) The payment of the Purchase Price for the Shares of the
Purchaser may be made in equal monthly installments of principal
and interest and shall be paid commencing on the first
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day of the fourth month following the Determination Date, with
payments to be made on the first day of each month (or next
business day thereafter) for a period of thirty-six (36) months.
The deferred portion of the Purchase Price shall bear interest on
the unpaid balance at the Wall Street Journal Prime Rate (plus
1%), as of the date the initial payment is due.
(d) for purposes hereof, the term "Book Value" shall mean, as of
any date, the total shareholder's equity (including capital stock,
additional paid in capital and retained earnings after deducting
treasury stock) which would appear on the audited balance sheet of
the Company as of such date, in accordance with generally accepted
accounting principles, consistently applied. For purposes hereof,
the term "After-Tax Earnings" shall mean, as of any date, the
After-Tax Earnings which would appear on the audited income
statement of the Company as of such date, in accordance with
generally accepted accounting principles, consistently applied.
The Book Value and After-Tax Earnings shall be determined by the
then existing independent certified public accountants of the
Company. The determination by such independent certified public
accountants of the Book Value and the After-Tax Earnings shall be
conclusive and binding on the Company and the Purchaser.
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5. Except for those changes set forth in this Amendment, the terms,
conditions and provisions contained in the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First
Addendum to the Stock Purchase Agreement on the day and year first above
written.
COMPANY:
LET'S TALK CELLULAR OF AMERICA, INC.,
a Florida corporation
/s/ Nicolas Molina By: /s/ Brett Beveridge
- -------------------------- --------------------------------
Witness Name: Brett Beveridge
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Title: Vice-President
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PURCHASER:
/s/ Allan C. Sorensen
------------------------------------
Allan C. Sorensen
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FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This FIRST AMENDMENT, date as of June ____, 1996 (the "Amendment") is
entered into by and between LET'S TALK CELLULAR OF AMERICA, INC., a Florida
Corporation (the "Company") and ALLAN C. SORENSEN (the "Consultant"), and amends
that certain Stock Purchase Agreement, dated as of October 5, 1994 (the
"Purchase Agreement," and together with this Amendment, the "Agreement")
RECITALS
WHEREAS, the Consultant currently provides various consulting services to
the Company which are more particularly described in the Agreement;
WHEREAS, the Consultant and the Company desire to amend the Agreement in
accordance with the terms hereof;
NOW THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency whereof are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. The above recitals are true and correct and are incorporated herein by
this reference. All capitalized terms used but not otherwise defined
herein shall have the respective meanings provided for them in the
Agreement.
2. The following sections of the Agreement are hereby amended to read as
follows:
a) Section 6.3(b) of the Agreement is amended by inserting as the
last sentence of that section the following:
Immediately prior to the consummation of a Registered Offering by
the Company, the right of the Consultant to cause the Company to
repurchase his shares under this Section 6.3(b) shall
automatically terminate and be of no further force and effect.
b) Section 6.4 of the Agreement is deleted in its entirety and
replaced with the "Registration Rights" set forth in Section 7.3
of that certain Series A Preferred Stock Purchase Agreement dated
as of the date hereof, by and among the Employer, HIG Fund V,
Inc., Nick Molina, and Brett Beveridge. For purposes of the
Employee's Piggy-back Registration Rights, the definition of
"Registrable Securities" under the Purchase Agreement shall be
deemed to include the shares owned by the Consultant. The
Consultant hereby agrees and acknowledges that his shares shall be
treated pro rata with the shares of the other Holders of
Registrable Securities.
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c. The Consultant hereby confirms that he will subordinate whatever
rights he may have to cause the Company to repurchase his shares
if the Company commits an "EBIT Default" (as such term is defined
in that certain Shareholders Agreement, dated as of the date
hereof, by and among the Company, the Consultant, HIG Fund V.
Inc., ("HIG"), Nick Molina, and Brett Beveridge and Anne Gozlan)
to the redemption rights of HIG under (I) the Redemption
Agreement, dated as of the date hereof, by and between HIG and the
Company and (II) the Description of Series A Preferred Stock
attached as Exhibit A to the Purchase Agreement. The Consultant
agrees that he will not require or receive payment for his shares
upon the occurrence of an EBIT Deficit until HIG has received all
payment for the number of shares that it requested the Company to
repurchase following the occurrence of such an event.
d. The Consultant hereby confirms that (I) he currently owns and is
in possession of 100 shares of the Company's Common Stock, par
value $1.00 per share, which is evidenced by a Certificate issued
in the name of Allan C. Sorensen (the "Certificate") and (II) upon
the effectiveness of the 650-for-1 forward stock split, he shall
return the Certificate to the Company in exchange for a
certificate evidencing 65,000 shares of the Company's Common
Stock, par value $.001 per share.
3. Except as modified by this Amendment, the parties hereto acknowledge that
the Agreement remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year first witness above.
COMPANY: LET'S TALK CELLULAR OF AMERICA, INC.:
By: /s/ Nicolas Molina
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Its: President
CONSULTANT: /s/Allan C. Sorensen
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Allan C. Sorensen