CYBERTEL CAPITAL CORP.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made as of the 14th day of
June, 2005, by and between Albert A. Gomez. M.D. (the "Purchaser"), the sellers
listed on the Seller Signature Page hereto (each a "Seller" and together the
"Sellers"), and Cybertel Capital Corp., a Nevada corporation (the "Company").
RECITALS
A. The Sellers collectively own 50,000,000 shares (the "Shares") of Series
B Preferred Stock, $0.001 par value per share (the "Series B Preferred Stock")
of the Company. The number of Shares held by each Seller is set forth on the
Seller Signature Page.
B. The Sellers desire to sell the Shares to the Purchaser, and the
Purchaser desires to purchase the Shares from the Sellers, on the terms and
subject to the conditions set forth herein.
AGREEMENT
It is agreed as follows:
1. PURCHASE AND SALE OF SHARES. In reliance upon the representations and
warranties of the Sellers and the Purchaser contained herein and subject to the
terms and conditions set forth herein, at Closing, the Purchaser shall purchase,
and the Sellers shall sell to the Purchaser, the Shares, at a purchase price of
$0.0003 per Share, or an aggregate of $15,000 (the "Purchase Price"), to be
divided among the Sellers as they have agreed and as set forth opposite their
respective signatures hereto. The number of Shares sold by each Seller and the
aggregate purchase price being paid to each Seller is set forth on the signature
page hereto. The Purchase Price shall be paid in cash.
2. CLOSING(S).
2.1 Date and Time. Subject to all of the terms and conditions set
forth in this Agreement being satisfied, the closing of the sale of Shares
contemplated by this Agreement (the "Closing") shall take place at such place as
the Sellers and the Purchaser shall agree in writing concurrently with the
execution of this Agreement (the "Closing Date").
2.2 Deliveries by Purchaser. The Purchaser shall deliver the
following to the Sellers:
2.2.1 A check or wire transfer to the Sellers in the amount of
the Purchase Price for each Share purchased.
2.3 Deliveries by Sellers. At the Closing, the Sellers will deliver
the following to the Purchaser:
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2.3.1 The certificates representing the Shares, duly endorsed
or delivered with blank stock powers appropriately executed, in the name of the
Purchaser, against delivery to the Seller by the Purchaser of the items set
forth in paragraph 2.2 above.
2.3.2 The complete original articles of incorporation, bylaws,
minutes, and other corporate books and records, all as amended to date, of the
Company.
2.3.3 A list of all SEC and EDGAR codes for the Company.
2.3.4 Resignations of Richard D. Mangiarelli as Chief
Executive Officer of the Company and Richard F. Schmidt as President of the
Company.
2.3.5 Resolutions of the board of directors appointing Albert
A. Gomez as President and Chief Executive Officer of the Company and Richard D.
Mangiarelli as Secretary and Chief Operating Officer of the Company.
2.3.6 Resignations of Richard F. Schmidt, Paul Ferandell, John
Jordan, Bruce Caldwell, and Joost H. van Adelsberg, Jr. from their respective
positions as directors of the Company.
2.3.7 Resolutions of the board of directors appointing Albert
A. Gomez, M.D., Rueben Gomez, and Andrew Mercer as directors of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
As a material inducement to the Purchaser to enter into this Agreement and
to purchase the Shares, the Sellers jointly and severally represent and warrant
that the following statements are true and correct in all material respects as
of the date hereof and will be true and correct in all material respects at
Closing, except as expressly qualified or modified herein.
3.1 Organization and Good Standing. The Company is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Nevada and has full corporate power and authority to enter into and
perform its obligations under this Agreement, and to own its properties and to
carry on its business as presently conducted and as proposed to be conducted.
The Company is duly qualified to do business as a foreign corporation in every
jurisdiction in which the failure to so qualify would have a material adverse
effect upon the Company.
3.2 Validity of Transactions. This Agreement, and each document
executed and delivered by the Sellers in connection with the transactions
contemplated by this Agreement, have been duly authorized, executed and
delivered by each Seller and is each the valid and legally binding obligation of
each Seller, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency reorganization and moratorium laws and other
laws affecting enforcement of creditor's rights generally and by general
principles of equity.
3.3 Valid Issuance of Shares. The Shares that are being sold to the
Purchaser hereunder are duly and validly issued, fully paid and nonassessable
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and free of restrictions on transfer, other than restrictions on transfer under
this Agreement and under applicable federal and state securities laws, will be
free of all other liens and adverse claims.
3.4 Title to Shares. The Sellers are the sole record and beneficial
owners of the Shares, in the amounts set for the on the Seller Signature Page,
free and clear of all liens, encumbrances, equities, assessments and claims,
and, upon delivery of the Shares by the Sellers and payment of the Purchase
Price in full by the Purchaser pursuant to this Agreement, the Sellers will
transfer to the Purchaser valid legal title to the Shares, free and clear of all
liens, encumbrances, equities, assessments and claims.
3.5 No Violation. The execution, delivery and performance of this
Agreement will not violate any law or any order of any court or government
agency applicable to the Company, as the case may be, or the Articles of
Incorporation or Bylaws of the Company, and will not result in any breach of or
default under, or, except as expressly provided herein, result in the creation
of any encumbrance upon any of the assets of the Company pursuant to the terms
of any agreement or instrument by which the Company or any of its assets may be
bound. No approval of or filing with any governmental authority is required for
the Company to enter into, execute or perform this Agreement.
3.6 SEC Reports and Financial Statements. The Company has delivered
or made available to the Purchaser accurate and complete copies (excluding
copies of exhibits) of each report, registration statement and definitive proxy
statement filed by the Company with the SEC since January 1, 2001 (collectively,
with all information incorporated by reference therein or deemed to be
incorporated by reference therein, the "SEC Reports"). The information in the
SEC Reports, taken as a whole, was true and correct in all material respects as
of the filing date and did not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.7 Securities Law Compliance. Assuming the accuracy of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement, the offer, sale and delivery of the Shares will constitute an
exempted transaction under the Securities Act of 1933, as amended and now in
effect ("Securities Act"), and registration of the Shares under the Securities
Act is not required. The Company shall make such filings as may be necessary to
comply with the Federal securities laws and the blue sky laws of any state,
which filings will be made in a timely manner.
3.8 Qualifications, Legal and Investment. All authorizations,
approvals, or permits, if any, of any governmental authority or regulatory body
of the United States including "blue sky" filings in any state that are required
in connection with the lawful sale of the Shares pursuant to this Agreement have
been or will be, on a timely basis, duly obtained and are effective. No stop
order or other order enjoining the sale of the Shares have been issued and no
proceedings for such purpose are pending or, to the knowledge of the Sellers,
threatened by the SEC, or any commissioner of corporations or similar officer of
any state having jurisdiction over this transaction. The sale of the Shares is
legally permitted by all laws and regulations to which the Purchaser, the
Sellers, and the Company are subject.
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4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents, warrants, and covenants with the Sellers
as follows:
4.1 Legal Power. The Purchaser has the requisite power to enter into
this Agreement, to purchase the Shares hereunder, and to carry out and perform
its obligations under the terms of this Agreement.
4.2 Due Execution. This Agreement has been duly executed and
delivered by Purchaser, and, upon due execution and delivery by the Seller, this
Agreement will be a valid and binding agreement of the Purchaser.
4.3 Receipt and Review of SEC Reports. The Purchaser represents that
it has received and reviewed the SEC Reports and have been given full and
complete access to the Company for the purpose of obtaining such information as
the Purchaser or its qualified representative have reasonably requested in
connection with the decision to purchase the Shares. The Purchaser represents
that it has been afforded the opportunity to ask questions of the officers of
the Company regarding its business prospects and the Shares, all as the
Purchaser or its qualified representative have found necessary to make an
informed investment decision to purchase the Shares.
4.4 Restricted Securities. The Purchaser has been advised that the
Shares have not been registered under the Securities Act or any other applicable
securities laws and that the Shares are being offered and sold pursuant to the
so-called "Section 4(1 1/2) exemption" of the Securities Act, and that the
Sellers' reliance upon the so-called "Section 4(1 1/2) exemption" is predicated
in part on the Purchaser's representations as contained herein.
4.4.1 The Purchaser is an "accredited investor" as defined
under Rule 501 under the Securities Act.
4.4.2 The Purchaser acknowledges that the Shares have not been
registered under the Securities Act or the securities laws of any state and are
being offered, and will be sold, pursuant to applicable exemptions from such
registration for nonpublic offerings and will be sold as "restricted securities"
as defined by Rule 144 promulgated pursuant to the Securities Act. The Shares
may not be resold in the absence of an effective registration thereof under the
Securities Act and applicable state securities laws unless, in the opinion of
the Company's counsel, an applicable exemption from registration is available.
4.4.3 The Purchaser is acquiring the Shares for its own
account, for investment purposes only and not with a view to, or for sale in
connection with, a distribution, as that term is used in Section 2(11) of the
Securities Act, in a manner which would require registration under the
Securities Act or any state securities laws.
4.4.4 The Purchaser understands and acknowledges that the
Shares will bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
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AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION THEREOF UNDER THE SECURITIES ACT
OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING
JURISDICTION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR ACTS.
4.4.5 The Purchaser acknowledges that an investment in the
Shares is not liquid and is transferable only under limited conditions. The
Purchaser acknowledges that such securities must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
such registration is available. The Purchaser is aware of the provisions of Rule
144 promulgated under the Securities Act, which permits limited resale of
securities purchased in a private placement subject to the satisfaction of
certain conditions and that such Rule is not now available and, in the future,
may not become available for resale of the Shares.
4.5 Purchaser Sophistication and Ability to Bear Risk of Loss. The
Purchaser acknowledges that it is able to protect its interests in connection
with the acquisition of the Shares and can bear the economic risk of investment
in such securities without producing a material adverse change in Purchaser's
financial condition. The Purchaser otherwise has such knowledge and experience
in financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Shares.
4.6 Purchases by Groups. The Purchaser represents, warrants, and
covenants that it is not acquiring the Shares as part of a group within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
5. COVENANTS.
5.1 Further Assurances; Cooperation. Each party hereto will, before,
at, and after the Closing, execute and deliver such instruments and take such
other actions as the other party or parties, as the case may be, may reasonably
require in order to carry out the intent of this Agreement. Without limiting the
generality of the foregoing, at any time after the Closing, at the request of
the Company or the Purchaser, and without further consideration, the Sellers (a)
will execute and deliver such instruments of sale, transfer, conveyance,
assignment and confirmation and take such action as the Company or the Purchaser
may reasonably deem necessary or desirable in order to more effectively
transfer, convey and assign to the Purchaser, and to confirm the Purchaser's
title to, the Shares, and (b) will execute such documents as and take such
action as the Company or the Purchaser may reasonably deem necessary or
desirable in order to prepare and file any future SEC Reports that the Company
seeks to file with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.
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5.2 Covenants of the Purchaser. Until the Restrictions set forth in
Section 5.4 have lapsed and the Shares have vested pursuant to Section 5.4, the
Purchaser shall not directly or indirectly, offer, issue, sell, contract to sell
(including, without limitation, any short sale), grant any option for the sale
of, pledge, or otherwise dispose of or transfer any of the Shares.
5.3 Covenants of the Company. Until the Restrictions set forth in
Section 5.4 have lapsed and the Shares have vested pursuant to Section 5.4, the
Company shall not do any of the following without the prior unanimous written
consent of the Sellers, and such action taken by the Company without the prior
unanimous written consent of the Sellers shall be void ab initio:
5.3.1 Amend any of the terms of the Company's Series B
Preferred Stock;
5.3.2 Issue any shares of any class or series of preferred
stock of the Company; or
5.4 Vesting Restrictions.
5.4.1 The Shares are subject to "Restrictions" and may not be
sold, assigned, transferred, pledged, hypothecated or otherwise disposed of,
alienated or encumbered until the Shares "vest" by the lapse of the Restrictions
as set forth in Section 5.4.2 and any additional requirements or restrictions
contained herein have been satisfied, terminated, or expressly waived by the
Sellers in writing. Any attempted transfer in violation of such Restrictions
will be void.
5.4.2 The Restrictions will lapse and the Shares will vest if,
on or before October 15, 2005, the Company has acquired Strategic Healthcare
Systems, Inc., a Nevada corporation (the "Target"), by means of a merger,
consolidation, acquisition, purchase of substantially all of the assets of
Target, or other form of corporate reorganization involving the Target, whether
in a single transaction or series of transactions (the "Acquisition"); provided,
however, that the Sellers, in their discretion, may from time to time accelerate
the vesting of any Shares at any time or forgive Restrictions and allow Shares
to vest notwithstanding that the conditions to vesting thereof may not have been
satisfied.
5.4.3 In the event that the Acquisition has not occurred on or
before October 15, 2005, the Sellers, or their assignees, may, in the Sellers'
discretion, at any time and from time to time until October 15, 2006, repurchase
from the Purchaser the Shares sold by such Seller at the price per Share that
the Purchaser paid to said Seller for such Shares, and the Purchaser will sell
to any such Seller any or all of the Shares that were eligible to vest but did
not vest in accordance with Section 5.4.2. Any Shares that do not vest in
accordance with Section 5.4.2 shall be subject to repurchase by the Sellers
regardless of any services performed, or other consideration given, by the
Purchaser to the Company or the Sellers. Shares not vested in accordance with
Section 5.4.2 but not repurchased by the Company during the applicable
repurchase periods described herein shall vest.
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5.4.4 The purchase price for any repurchase pursuant to this
Section 5.4 shall be paid in cash.
5.4.5 In order to enforce the terms of the vesting
requirements with respect to the Shares, the Purchaser shall deposit the
certificates representing the Shares in escrow with an escrow agent mutually
agreeable to the Purchaser and the Sellers, along with a stock assignment
separate from certificate endorsed in blank. Furthermore, the certificates
representing the Shares shall contain a restrictive legend setting forth that
the Shares are subject to restrictions and vesting requirements pursuant to the
terms of this Section 5.4.
5.4.6 The exercise of each Seller's right to repurchase Shares
or to accelerate vesting or forgive Restrictions pursuant to this Section 5.4
shall be within the discretion of each Seller. Any Seller may (but will not be
required to) exercise its right to repurchase, accelerate, or forgive
Restrictions with respect to any or all of the Shares without incurring any
obligation to repurchase, accelerate, or forgive Restrictions with respect to
any other Shares owned by the Purchaser.
6. MISCELLANEOUS.
6.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in the
County of Orange, State of California, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to it
under this Note and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
6.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto.
6.3 Entire Agreement. This Agreement and the Exhibits hereto and
thereto, and the other documents delivered pursuant hereto and thereto,
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants, or
agreements except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
6.4 Severability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, it shall to the extent practicable, be
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modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
6.5 Amendment and Waiver. Except as otherwise provided herein, any
term of this Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular instance, either
retroactively or prospectively, and either for a specified period of time or
indefinitely), with the written consent of the Sellers and the Purchaser. Any
amendment or waiver effected in accordance with this Section shall be binding
upon each future holder of any security purchased under this Agreement
(including securities into which such securities have been converted) and the
Seller.
6.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective when delivered
personally, or sent by telex or telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or when
received by the addressee, if sent by Express Mail, Federal Express or other
express delivery service (receipt requested) in each case to the appropriate
address set forth below:
If to the Seller: at the address set forth on the Seller
Signature Page
If to the Purchaser: Albert A. Gomez, M.D.
1644 Alum Rock Avenue
San Jose, California 95116
If to the Company: Cybertel Capital Corp.
9444 Waples Street, Suite 290
San Diego, CA 92121
6.7 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
PURCHASER: Albert A. Gomez, M.D.
/s/ Albert A. Gomez, M.D.
-------------------------------------
SELLER: See Seller Signature Page
COMPANY: Cybertel Capital Corp.
/s/ Richard D. Mangiarelli
-------------------------------------
By: Richard D. Mangiarelli
Chief Executive Officer
(Signature Page to Stock Purchase Agreement)
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SELLER SIGNATURE PAGE
SELLERS: Number of Shares Sold Purchase Price
/s/ Richard D. Mangiarelli 23,052,317 $6,916
- --------------------------
Name: Richard D. Mangiarelli
Address: 9444 Waples Street,
Suite 290
San Diego, CA 92121
Facsimile: (858) 646-7414
/s/ Richard F. Schmidt 15,261,537 $4,578
- -----------------------
Name: Richard F. Schmidt
Address: 9444 Waples Street,
Suite 290
San Diego, CA 92121
Facsimile: (858) 646-7414
/s/ Paul Ferandell 3,895,382 $1,169
- ------------------
Name: Paul Ferandell
Address: 2120 Jimmy Durante Boulevard,
Suite 102
Del Mar, CA 92014
Facsimile: (858) 350-3488
/s/ John Jordan 3,895,382 $1,169
- ---------------
Name: John Jordan
Address: PO Box 309
San Clemente, CA 92674
Facsimile: (949) 498-6877
/s/ Bruce Caldwell 3,895,382 $1,169
- ------------------
Name: Bruce Caldwell
Address:
Facsimile:
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