Exhibit 2.2
PURCHASE AGREEMENT
This Purchase Agreement dated as of March 8, 1996 is entered
into by and among SA Telecommunications, Inc., a Delaware
corporation (the " Purchaser"), and Xxxxxx Xxxxxxx, Xxxxxxx X.
Xxxxxxx and Xxxxxxxx Xxxx (collectively the "Sellers").
WHEREAS, Sellers, Purchaser and NTS Communications, Inc.
("NTS") entered into that certain Stock Purchase Agreement dated
as of June 30, 1995, as amended through the date hereof (the
"Stock Purchase Agreement"), pursuant to which Sellers and NTS
sold to Purchaser all of the issued and outstanding capital stock
of U.S. Communications, Inc., a Texas corporation ("USC");
WHEREAS, Sellers and Purchaser entered into that certain
Note, Preferred Stock & Warrant Purchase Agreement dated as of
July 31, 1995, as amended through the date hereof, pursuant to
which Sellers purchased: (1) promissory notes of Purchaser in an
aggregate original principal amount of $2,750,000 (the "Purchase
Notes"), (2) promissory notes of Purchaser in an aggregate
original principal amount of $1,500,000 (the "Offset Notes"), (3)
an aggregate of 125,000 shares of Purchaser's Series B Cumulative
Convertible Preferred Stock (the "Preferred Shares"), and (4)
common stock purchase warrants exercisable into 1,050,000 shares
of Purchaser's Common Stock (the "Warrants"), in the amounts set
forth beside each of the Sellers' names on Exhibit A hereto;
WHEREAS, pursuant to that certain Agreement dated as of
September 21, 1995 between Sellers and Purchaser, (1) Sellers
waived their right to convert the Preferred Shares into Common
Stock of Purchaser, and (2) Purchaser made an aggregate
prepayment of principal of $1,100,000 plus aggregate accrued
interest of $17,813.83 on the Purchase Notes, reducing the
outstanding principal balance of the Purchase Notes to $1,650,000
on the date hereof;
WHEREAS, Purchaser has certain offset rights against the
Offset Notes pursuant to the Stock Purchase Agreement, not all of
which are known on the date hereof (the "Offset Rights");
WHEREAS, Sellers and Purchaser have entered into an
Agreement dated as of February 29, 1996 extending and modifying
the payment terms of the Offset Notes and the Purchase Notes (the
"Modification Agreement");
WHEREAS, Sellers desire to sell and transfer to Purchaser,
and Purchaser desires to purchase from the Sellers, the Purchase
Notes, the Offset Notes, the Preferred Shares and the Warrants
(collectively referred to as the "Instruments") subject to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Purchase Price. On the terms and subject to the
conditions herein expressed and based on the representations,
warranties, covenants and agreements contained herein, at the
Closing (as hereinafter defined), Seller agrees to sell, transfer
and assign the Instruments to Buyer and Buyer agrees to purchase
the Shares from Seller, for an aggregate consideration of
$3,085,000 (the "Purchase Price") allocated as follows: (a)
$1,650,000 for the Purchase Notes and the Offset Notes, (b)
$1,250,000 for the Preferred Shares and any accrued but unpaid
dividends thereon, (c) $1 for the Warrants, (d) $184,999 for
interest on the Purchase Notes and Offset Notes.
2. March 8 Payment. In accordance with the Modification
Agreement, simultaneously with the execution of this Agreement,
Buyer has delivered to Sellers checks for an aggregate of
$308,500 as a principal payment on the Offset Notes allocated
among Sellers as set forth on Exhibit B hereto (the "Deposit"),
and if the Closing occurs, the amount of the Deposit shall be
credited against the Purchase Price of the Instruments and the
remainder of the Purchase Price shall be payable at the Closing
as set forth on Exhibit C hereto. If the Closing does not occur
on or prior to the Anticipated Closing Date, in accordance with
the Modification Agreement: (a) the second principal payment as
set forth on Exhibit B hereto and the accrued but unpaid interest
on the unpaid principal amount of such Offset Notes will be due
on the Anticipated Closing Date, subject to the Offset Rights,
(b) the final payment of principal and accrued interest on the
Offset Notes shall continue to be due on July 30, 1996; (c) the
remaining scheduled due dates for payment of accrued but unpaid
interest on the unpaid principal amount of the Purchase Notes
shall be the Anticipated Closing Date, April 30, 1996, July 31,
1996 and October 31, 1996 (the "Maturity Date"); (d) the final
payment of principal and accrued interest on the Purchase Notes
shall continue to be the Maturity Date; and (e) such extension
and modification of the terms of the Purchase Notes and the
Offset Notes are hereby effected without any further action by
the parties hereto.
2. Closing. The Closing under this Agreement shall occur
at the offices of Seller at 3:00 p.m.. on April 1, 1996 or such
later date on or prior to April 15, 1996 (the "Anticipated
Closing Date") as shall be required for Purchaser to (a) complete
the financing of the purchase price set forth in Section 1 and 2
hereof (the "Financing"), and (b) obtain the consent of Norwest
Bank Minnesota, National Association to the transactions
contemplated hereby and the Financing thereof (the "Bank
Consent"); provided, however, in no event shall the Anticipated
Closing Date be later than April 15, 1996 even if the Bank
Consent is not obtained and the Financing is not complete. The
time and date on which the Closing hereunder occurs is herein
called the "Closing". At the Closing, Sellers will deliver to
Purchaser the documents referred to in Section 8 hereof against
delivery by Buyer to Sellers of the Purchase Price due at Closing
as set forth on Exhibit C hereto and the documents referred to in
Section 7 hereof.
3. Buyer Representations. Buyer represents and warrants
to Sellers (which representations and warranties shall survive
the Closing regardless of what investigations, if any, Sellers
shall have made thereof prior thereto) as follows: (a) Buyer is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware; and (b) this
Agreement has been duly authorized, executed and delivered by
Buyer and is a valid and
binding agreement of Buyer enforceable against Buyer in
accordance with its terms, subject to the Bank Consent.
4. Sellers Representations. Sellers jointly and severally
represent and warrant to Buyer (which representations and
warranties shall survive the Closing regardless of what
investigations, if any, Buyer shall have made thereof prior
thereto) that: (a) this Agreement has been executed and delivered
by each of Sellers and is a valid and binding agreement of each
of Sellers enforceable against each of Sellers in accordance with
its terms; (b) each of the Instruments is owned of record and
beneficially by Sellers as set forth on Exhibit A hereto, free
and clear of all liens, claims and encumbrances of any kind; (c)
each of Sellers possesses full authority and legal right to sell,
transfer and assign the entire legal and beneficial ownership of
each of the Instruments to Buyer, free and clear of all liens,
claims and encumbrances of any kind; and (d) none of Sellers has
transferred any interest in any of the Instruments to any person
or entity.
5. Buyer's Covenants. Buyer covenants and agrees that
between the date hereof and the Closing: (a) without the prior
written consent of Xxxxxx Xxxxxxx on behalf of all Sellers, Buyer
shall not take any action that would cause or tend to cause the
conditions upon the obligations of the parties hereto to effect
the transactions contemplated hereby not to be fulfilled;
including, without limitation, taking, or causing to be taken, or
permitting or suffering to be taken or to exist any action,
condition or thing that would cause the representations and
warranties made by Buyer herein not to be true, correct and
accurate as of the Closing; and (b) Buyer shall use commercially
reasonable efforts to obtain the Bank Consent and the Financing.
6. Sellers' Covenants. Sellers jointly and severally
covenant and agree that, between the date hereof and the Closing,
without the prior written consent of Buyer, none of Sellers shall
take any action which would cause or tend to cause the conditions
upon the obligations of the parties hereto to effect the
transactions contemplated hereby not to be fulfilled; including,
without limitation, taking, or causing to be taken, or permitting
or suffering to be taken or to exist any action, condition or
thing that would cause the representations and warranties made by
Sellers herein not to be true, correct and accurate as of the
Closing.
7. Conditions to Obligations of Sellers. The obligations
of Sellers under this Agreement are subject to the satisfaction
at or prior to the Closing of each of the following conditions,
but compliance with such conditions may be waived by Xxxxxx
Xxxxxxx on behalf of all Sellers: (a) the representations and
warranties of Buyer contained in this Agreement shall be true and
correct at and as of the Closing with the same effect as though
such representations and warranties were made at and as of the
Closing, (b) Buyer shall have obtained the Bank Consent, (c)
Buyer shall pay the remainder of the Purchase Price as set forth
on Exhibit C hereto, and (d) Buyer shall have executed the
releases in substantially the form of Xxxxxxxx X-0, X-0 and D-3
hereto.
8. Conditions to Obligations of Buyer. The obligations of
Buyer under this Agreement are subject to the satisfaction at or
prior to the Closing of each of the following
conditions, but compliance with any such conditions may be waived
by Buyer: (a) Buyer shall have obtained the Bank Consent, (b)
Buyer shall have completed the Financing; (c) Sellers shall have
delivered to Buyer the original Purchase Notes and Offset Notes,
stock certificates representing the Preferred Shares duly
endorsed in blank, or accompanied by stock powers duly endorsed
in blank, and the Warrants accompanied by the Assignment in the
form of Exhibit E hereto; and (d) Sellers shall have executed and
delivered the release in substantially the form of Exhibit F
hereto.
9. Notices. Any notice, request, instruction or other
document to be given under this Agreement after the date hereof
by any party hereto to any other party shall be in writing and
shall be delivered personally or sent by registered or certified
mail, postage prepaid, at the addresses shown on the signature
page of this Agreement, or to such other address or person as any
party may designate by written notice to the others.
10. Expenses. Each of the parties hereto shall bear its
expenses separately incurred in connection with this Agreement
and with the performance of its obligations hereunder.
11. Indemnification. In the event the transactions
contemplated hereby are consummated, each of Sellers hereby
jointly and severally agree to indemnify Buyer and to hold Buyer
harmless from and against all damages, losses and out-of-pocket
expenses caused by or arising out of (a) any breach of warranty
or inaccurate or erroneous representation of Sellers contained in
this Agreement or in any Exhibit or document delivered pursuant
hereto, (ii) any claim made against Buyer in respect of the
Instruments.
12. Entire Agreement. This Agreement, the documents
referred to herein and the exhibits hereto set forth all the
covenants, promises, agreements, conditions and understandings
among the parties hereto, and there are no other covenants,
promises, agreements, conditions or understandings, whether oral
or written, among the parties hereto.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas
without regard to conflicts of laws.
14. Attorney's Fees. In the event attorneys' fees or other
costs are incurred to secure performance of any of the
obligations herein provided for, or to establish damages for the
breach thereof, or to obtain any other appropriate relief,
whether by way of prosecution or defense, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs
incurred therein.
15. Finder's Fees. Each party to this Agreement represents
to the other party that it has not incurred and will not incur
any liability for brokerage fees or agents' commissions in
connection with this Agreement and the transactions contemplated
hereby.
16. Counterparts; Binding Effect. This Agreement may be
executed by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be an original, but
all such counterparts shall together constitute one and the same
instrument, and all
signatures need not appear on any one counterpart. The terms of
this Agreement shall be binding upon, and inure to the benefit
of, the parties and their respective successors and permitted
assigns whether so expressed or not.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date above written.
SA TELECOMMUNICATIONS, INC. /s/ Xxxxxx Xxxxxxx
INC. Xxxxxx Xxxxxxx
By: /s/ Xxxx X. Xxxx Xx. /s/ Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxx Xx. Xxxxxxx X. Xxxxxxx
Chairman and Chief
Executive Officer /s/ Xxxxxxxx Xxxx
Xxxxxxxx Xxxx
Address: 0000 Xxxxxx X, Xxxxx 000 Address for all Sellers:
Xxxxx, XX. 00000 c/o Xxxxxx Xxxxxxx
000 Xxxxxxxxx
Xxxxxxxxx, XX 00000
SPOUSAL CONSENTS
The undersigned, each in their individual capacity as the spouse
of the person listed opposite their respective name, does hereby
execute this Agreement below for the purposes of (i) indicating
his or her understanding of, and binding him or her to perform in
accordance with the provisions of this Agreement, (ii) binding
his or her community property interest, if any, in the property
which is the subject of this Agreement (the "Property") now or
hereafter owned by his or her spouse, and (iii) acknowledging
that if the Property owned by his or her spouse is community
property, it is the special community property of such spouse,
subject to the exclusive control and dominion of said spouse.
Spouse Seller Date
------ ------ ----
/s/ Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx March 7, 1996
Name: Xxxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx Xxxxxx Xxxxxxx March 7, 1996
Name: Xxxx Xxxxxxx
EXHIBIT A
Shares of
Series B
Name of Purchase Preferred
Seller Notes Offset Notes Stock Warrants
------- -------- ------------ --------- --------
Xxxxxx
Xxxxxxx $1,100,000 $600,000 50,000 420,000
Xxxxxxx X.
Xxxxxxx $1,100,000 $600,000 50,000 420,000
Xxxxxxxx
Xxxx $ 500,000 $300,000 25,000 210,000
EXHIBIT B
Name of Seller First Installment Second Installment
of Principal of Principal on
on 3/8/96 Anticipated Closing Date
-------------- ----------------- ------------------------
Xxxxxx Xxxxxxx $123,400 $176,600
Xxxxxxx X. Xxxxxxx $123,400 $176,600
Xxxxxxxx Xxxx $ 61,700 $ 88,300
-------- --------
TOTAL $308,500 $441,500
EXHIBIT C
Portion of Purchase Portion of Purchase
Name of Seller Price Payable Price Payable
On 3/8/96 At Closing
-------------- ------------------- -------------------
Xxxxxx Xxxxxxx $123,400 $1,110,600
Xxxxxxx X. Xxxxxxx $123,400 $1,110,600
Xxxxxxxx Xxxx $ 61,700 $ 555,300
________ __________
Total $308,500 $2,276,500
EXHIBIT E
FORM OF ASSIGNMENT
For value received, the undersigned registered holder of the
attached Common Stock Purchase Warrant (the "Warrant") hereby
sells, assigns and transfers unto SA Telecommunications, Inc. the
right represented by such Warrant to purchase ____________ shares
of Common Stock of SA Telecommunications, Inc. to which such
Warrant relates, and appoints Attorney to make such transfer on
the books of SA Telecommunications, Inc. maintained for such
purpose, with full power of substitution in the premises.
Dated: April __, 1996 ________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
Address:________________________________
________________________________________
