EXHIBIT 10.2
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated as of March 10, 2000, is by and
between Intellicall, Inc., a Delaware corporation ("Seller") and Gotthardfin
Limited, Nassau, Bahamas, a wholly-owned subsidiary of Banca del Gottardo
("Purchaser").
W I T N E S S E T H
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, 11,836 shares of common stock and 58,772 shares of Series
A Preferred stock, par value $0.01 per share of ILD Telecommunications, Inc.
(the "Shares"), a Delaware corporation (the "Company");
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereto hereby agree as follows:
1. Purchase and Sale. Subject to the remainder of this Section 1, at the Closing
(as hereinafter defined), Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, the Shares. The closing of the purchase and sale
of the Shares (the "Closing") shall occur on the first business day following
the satisfaction of the condition precedent set forth in Section 2 below (the
"Closing Date"), at the offices of Seller. At the Closing, Seller shall deliver
to Purchaser original certificates representing the Shares, together with
executed stock powers relating thereto. At the Closing, Purchaser shall deliver
to Seller: (i) by wire transfer of immediately available funds, of the sum of
U.S. $15,533,760.00; and (ii) an Instrument of Accession, in the form of Exhibit
A attached hereto (the "Instrument of Accession).
2. Condition Precedent. The parties acknowledge and agree that the transfer of
the Shares from Seller to Purchaser is subject to the terms and provisions of
that certain Fourth Amended and Restated Shareholders' Agreement, dated as of
December 22, 1999, by and among the Company and certain of its Shareholders (the
"Shareholders Agreement"). The obligations of the parties hereto shall be
subject to the waiver of the parties to the Shareholders Agreement of Sections
2.02 and 2.03 of the Shareholders Agreement, or the failures of such parties to
exercise any of their rights under such Sections within the time periods
prescribed in such Sections. Upon satisfaction of the above condition precedent,
Seller shall give written notice to Purchaser thereof.
3. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller as follows: (a) this Agreement is a legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms; and (b) Purchaser has the right, power and authority to execute and
deliver this Agreement and to consummate the transactions set forth herein. In
addition, Purchaser acknowledges and agrees that, due to an officer of Seller
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being on the Board of Directors of the Company, Seller may have knowledge of
certain material information concerning the Company which Purchaser does not
have knowledge of, and that the purchase price for the Shares may not bear any
relevance to the actual value of the Shares or the Company. Purchaser further
represents and warrants that Purchaser has done its own due diligence on the
Company and is not relying upon Seller to furnish Purchaser with any
information.
4. Representations and Warranties of Seller. Seller represents and warrants to
Purchaser as follows: (a) this Agreement is a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms;
(b) Seller is the legal and beneficial owner of the Shares, and, subject to
compliance with the terms and provisions of the Shareholders Agreement, Seller
has no obligation to any person or entity to sell or vote the Shares; (c) Seller
has the right, power and authority to execute and deliver this Agreement and to
consummate the transactions set forth herein; (d) subject to compliance with the
terms and provisions of the Shareholders Agreement, the delivery of the Shares
to the Company pursuant to this Agreement will convey to the Company legal,
valid and marketable title to the Shares, free and clear of all liens, security
interests, or other encumbrances of any character whatsoever (other than those
imposed by federal or state securities laws or by the Shareholders Agreement).
5. Further Agreements.
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(a) Purchaser agrees that Seller shall use (i) approximately $2.6
million of the proceeds from the sale of Shares to pay-off the
promissory note, dated December 22, 1995, with Seller as "maker"
and Purchaser as "payee"; and (ii) the remaining proceeds from such
sale for general corporate purposes (including the repayment of a
$500,000 bridge loan made by Bank of America, N. A. to Seller).
Seller acknowledges that Seller owes an additional approximately
$2 million to a group of lenders pursuant to a series of
promissory notes, dated on or about June 10, 1999, and that Seller
shall offer to such lenders the opportunity to have such
indebtedness repaid, without premium or penalty. Seller further
acknowledges that Seller owes an additional approximately $5
million to a group of lenders pursuant to a series of promissory
notes, dated on or about November 22, 1996 (including Purchaser),
and that Seller shall offer to such lenders the opportunity to have
such indebtedness repaid, without premium or penalty.
(b) The parties hereto agree that the Deposit Agreement, dated June 8,
1999, by and between the parties, is hereby terminated in its entirety
and of no further force or effect, and Purchaser hereby agrees to
promptly deliver to Seller the certificate representing the shares of
Series A Preferred Stock of the Company which is being held by
Purchaser under the Deposit Agreement.
(c) During the period commencing on the Closing Date and ending on the
one-year anniversary of the Closing Date (the "Option Period"),
Purchaser hereby grants to Seller an option (the "Option") to
repurchase all or any part of the Shares for a
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purchase price of U.S.$250 per share (subject to appropriate
adjustment for any stock split, stock dividends or the like).
The Option may be exercised by Seller by delivery of written
notice to Purchaser indicating the number of Shares to be
repurchased and the date to be repurchased (which date may be no
later than thirty (30) days following the date of such
written notice). The repurchase price shall be paid in immediately
available funds, unless otherwise agreed to by Purchaser.
Purchaser agrees not to take any action which would impede or
hinder the ability of Seller to exercise the Option (including,
without limitation, selling, transferring or encumbering the
Shares). The Option shall be assignable by Seller upon written notice
to Purchaser.
6. Miscellaneous.
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(a) This Agreement may be amended, modified or supplemented only by an
instrument in writing executed by the party against which enforcement
of the amendment, modification or supplement is sought.
(b) Except as provided in Section 5(b) above, neither this Agreement nor
any right created hereby shall be assignable by any party hereto.
(c) This Agreement and the rights and obligations of the parties hereto
shall be governed, construed and enforced in accordance with the laws
of the State of Delaware.
(d) This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and
the same instrument.
EXECUTED as of the date first set forth above.
GOTTHARDFIN LIMITED
By:__________________________________
Title:_______________________________
INTELLICALL, INC.
By:__________________________________
Title:_______________________________
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