ADDENDUM TO STOCK PURCHASE AGREEMENT
AUGUST 31, 1996
The parties hereto agree that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is the current holder
of several F.C.C. licenses which Communitronics, Inc. wishes to acquire.
These licenses are identified in the attached Exhibit "A".
The parties additionally agree that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is the
holder/owner of several additional licenses which Communitronics, Inc. wishes
to acquire, which said licenses are identified in the attached Exhibit "B"
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees to enter into a management contract with
Communitronics, Inc., wherein Communitronics, Inc. will manage the aforesaid
licenses as identified in Exhibit "A" for and in further consideration of the
terms and conditions contained within the Stock Purchase Agreement, executed
this date, between Communitronics, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Commununitronics, Inc., further agree that upon
the occurrence of either of the following:
1) The sale by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of all of
their stock in Communitronics, Inc. or its successor in
interest; or,
2) The expiration of 72 hours following the time upon which the
shares of Communitronics, Inc. may be traded pursuant to IRS
Rule 144 and/or such other IRS and/or SEC rules and regulation
as may be applicable,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will execute any and all documents required to legitimately
transfer the aforesaid licenses to Communitronics or to any other entity that
Communitronics, Inc., may so direct.
The Parties hereto additionally agree that upon the payment by
Communitronics, Inc. of $28,500.00 in cash and an additional 15,000.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees to enter into a management contract with
Communitronics, Inc., wherein Communitronics, Jnc. will manage the aforesaid
licenses as identified in Exhibit "A" for and in further consideration of the
terms and conditions contained within the Stock Purchase Agreement, executed
this date, between Communitronics, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Communitronics, Inc., further agree that upon the
occurrence of either of the following:
1) The sale by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of all of
their stock in Communitronics, Inc. or its successor in
interest; or,
2) the expiration of 72 hours following the time upon which the
shares of Communitronics, Inc. may be traded pursuant to IRS
Rule 144 and/or such other IRS and/or SEC rules and regulation
as may be applicable,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will execute any and all documents required to
legitimately transfer the aforesaid licenses to Communitronics or to any other
entity that Communitronics, Inc., may so direct.
The Parties hereto additionally agree that upon the payment by
Communitronics, Inc. of $28,500.00 in cash and an additional 15,000 shares of
Communitronics, Inc. stock to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually and/or to any other
party he may so identify, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will transfer and/or cause to be
transferred to Communitronics, Inc., the licenses identified in Exhibit "B".
This addendum supersedes entirely any provision of the Stock Purchase
Agreement, executed this date, in contravention thereof.
WITNESSES:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------ ------------------------
COMMUNITRONICS, INC.
BY:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Commission expires
---------------
STATE OF
---------------
COUNTY OF
--------------
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, whose name is signed to the
foregoing Stock Exchange Agreement and who is known to me, acknowledged
before me on this day that, being informed of the contents of said Stock
Exchange Agreement, he executed the same voluntarily on the day the same
bears date.
Given under any hand this the ____ day of ____________ 1998.
---------------------------------
Notary Public
Commission expires
---------------
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name is signed to the
foregoing Stock Exchange Agreement and who is known to me, acknowledged
before me on this day that, being informed of the contents of said Stock
Exchange Agreement, he executed the same voluntarily on the day the Same
bears date.
Given under my hand this the ____ day of ____________ 1998.
-----------------------------------
Notary Public
Commission expires
-----------------
STATE OF
----------------
COUNTY OF
---------------
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name is signed to the
foregoing Stock Exchange Agreement and who is known to me, acknowledged
before me on this day that, being informed of the contents of said Stock
Exchange Agreement, he executed the same voluntarily on the day the same
bears date.
Given under my hand this the ____ day of ____________ 1998.
----------------------------------
Notary Public
Commission expires
----------------
STATE OF
----------------
COUNTY OF
---------------
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, whose name is signed to the foregoing
Stock Exchange Agreement and who is known to me, acknowledged before me on this
day that, being informed of the contents of said Stock Exchange Agreement, he
executed the same voluntarily on the day the same bears date.
Given under my hand this the ____ day of ____________ 1998.
----------------------------------
Notary Public
STOCK EXCHANGE AGREEMENT
This agreement is made and entered into this 27th Day of August,
1998 between Communitronics, Inc. an Alabama Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(60%), and H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (40%) owners respectively of Crescent Paging,
Inc. (Shareholders) a Louisiana Corporation ("Licensee").
WITNESSETH
WHEREAS. Shareholders owns all of the issued and outstanding stock
of Licensee ("the Licensee Shares"); and,
WHEREAS, Licensee holds numerous licenses authorized by the FCC for
the provision of communication services ("The System") which are more fully
described on Exhibit A attached hereto; and,
WHEREAS. Communitronics, Inc., is developing various types of
communication systems located in major markets through the United States; and,
WHEREAS. Shareholders desires to assign to Communitronics, Inc. and,
Communitronics, Inc. desires to acquire from Shareholder the Licensee shares,
on the terms and conditions as set forth herein; and,
WHEREAS, Communitronics and Shareholders intend that such
transaction shall qualify for treatment under Section 368(a)(1B) of the
Internal Revenue Code; and now therefore in consideration of these premises
and mutual promises and covenants contained herein, Communitronics, Inc. and
Licensees and Shareholders agree as follows:
1
ARTICLE I
Exchange of stock (a) in accordance with terms set forth in the
"Definitive Agreement" executed between the parties, dated March 28, 1998 and
as set forth herein, Communitronics, Inc., agrees to acquire from
Shareholders.
The Shareholders agree to assign to Communitronics, Inc. 100% of all
issued and outstanding voting stock of Crescent Paging, Inc. in exchange for
418,000 shares of Communitronics 144 Restricted Stock at $3.00 per share for
an agreed value of $1,254,000.00
1.1. DISTRIBUTION OF COMMUNITRONICS, INC., SHARES: The distribution
of Communitronics, Inc. shares in this transaction will be as follows: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (60%) owner of Crescent Paging, Inc., will receive Two Hundred Fifty
Thousand Eight Hundred shares (250,800), R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (40%) owner of
Crescent Paging, Inc., will receive One Hundred Sixty Seven Thousand Two
Hundred shares (167,200).
1.2 SHARES: Shares will be in compliance with Rule 144. After 1 year
required by regulation, the stock will cease to be restricted and will be
free trading shares.
1.3 COMMUNITRONICS, INC.: Communitronics, Inc. hereby guarantees
that its shares provided in payment for shares of stock in Crescent Paging
will be worth no less than $3.00 per share in price up to an including 72
hours following the time at which the Communitronics shares transferred
herein
2
may be traded pursuant to IRS Rule 144 and/or such other IRS and/or SEC rules
and regulations as may be applicable.
1.4 CRESCENT PAGING, INC.: Crescent Paging, Inc. is to become a
wholly owned subsidiary of Communitronics, Inc. subject to a mortgage on all
shares of Crescent Paging, Inc. stock, transferred to Communitronics, Inc.
herein, in favor of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, until such time as
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ sell all of their said shares of stock
in Communitronics, Inc or up to and including 72 hours following the time
upon which the shares of Communitronics, Inc. transferred herein may be
traded pursuant to IRS Rule 144 and/or such other IRS and/or SEC rules and
regulations as may be applicable, whichever occurs first.
Should the Communitronics shares transferred to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ be worth less than $3.00 per share during the time period described
above, Communitronics does hereby agree to pay ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ the difference between the $3.00 guaranteed price and the sale
price of the stock or return the "System" to Cresent Paging, Inc. along with
all issued shares of stock in Crescent Paging, Inc.
1.5 PAYMENT FOR SALE AND TRANSFER: The agreement for sale and transfer
of Crescent Paging, Inc., shall be completed within ten (10) days of a grant by
FCC final order (as defined in Section 5.7 herein) and any other necessary
governmental authorities of an application for consent to the transfer of
contract of the system from Crescent Paging, Inc. to Communitronics, Inc.
3
1.6 EMPLOYMENT CONTRACT: Upon Crescent Paging, Inc. becoming a
wholly owned subsidiary of Communitronics, Inc., Communitronics, Inc., and
Shareholders ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ will enter into a five
year employment contract whereby ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will serve as President of
Cresent Paging, Inc. and R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ will serve as Director of
Operations of Crescent Paging, Inc. and each will receive remuneration
according to each party's employment agreement. Both will be members of the
Communitronics Advisory Board, representing the Louisiana's interests of
Communitronics, Inc.
Both will commence their employment immediately upon execution of
this agreement. Their employment contracts will go into effect 30 days or
sooner at the rate of pay as agreed to in their personal employment
agreements. This period will be treated as a transitional period.
1.7 CLOSING: The closing transaction provided for in this agreement
("closing") shall take place at the corporate offices of Communitronics, Inc.
in Daphne, Alabama, within 5 business days of the receipt by Communitronics of
all government consents to transfer of control of The System by final order
(as defined in Section 5.7 herein) or such other place and time as mutually
agreed to by both parties.
ARTICLE II
2.1 Representations and Warranties of Shareholder: Shareholders
hereby represent and warrant to Communitronics, Inc. the following material
representations as set forth in the following paragraphs of this Article II.
4
2.2 INSTRUMENTS OF CONVENIENCE TRANSFER AND CANCELLATION: Subject to
the other terms and provision herein, Shareholders will at closing execute or
cause to be executed and delivered to Communitronics, Inc.;
(a) A Stock Certificate ("certificate") representing a total of
100% of the issued and outstanding shares of common voting stock of Crescent
Paging, Inc. which certificate or certificates (or accompanying assignment
separate from Certificate) shall be in negotiable form, duly endorsed for
transfer to Communitronics, Inc., subject to the mortgage established herein
in Section 1.4
(b) Copies of minute books, stock books and all other corporate
and business records or documents of Crescent Paging, Inc.;
(c) At least ten (10) business days prior to the closing date
the Shareholders will cause to be delivered to Communitronics, Inc. an
opinion of counsel for the Licensee that
(1) the Licensee is duly incorporated and legally existing
in good standing under the laws in Louisiana, and has full corporate power
and authority to carry on its present business;
(2) The transfer documents to be delivered to
Communitronics, Inc. at the closing are fully authorized, executed and
delivered by Shareholders and are valid and binding in accordance with their
terms;
(3) The execution and deliverv 0f this Stock Purchase
Agreement and the consummation of the transactions contemplated herein and
permissible under the Articles of Incorporation and By Laws of Crescent
Paging, Inc.
5
(4) This Stock Purchasing Agreement is a valid and legal
obligation of Shareholders, enforceable by its terms.
(5) Any and all requisite fees and state regulatory
approvals of the consummation of the transactions contemplated herein are
granted by final order (as defined in the Section 5.7 herein) and are in full
force and effect and have not been suspended, modified or revoked;
(6) Unless otherwise disclosed herein, the Shareholders
represent that neither they or Cresent Paging, Inc. is a party to or affected
by any pending or threatened proceedings, claims or investigations relating
to the stock being transferred to Communitronics, Inc.; and,
(7) The Shareholders represent that Cresent Paging, Inc.,
is not subject to any restrictions in it's Article of Incorporation or By
Laws which materially and adversely affect its business, property prospects,
assets or condition, financial or otherwise which adversely affects its
ability to carry out its obligations under this agreement.
(d) Shareholders shall attach as schedules to this agreement
copies of all contracts, either in force or executory, pertaining to the
Licensee's business, and all other documents called for in this agreement.
2.3 STATUS OF STOCK WITH RESPECT TO THE SHARES OF STOCKS BEING
TRANSFERRED TO COMMUNITRONICS, INC.:
(a) Such shares of stock have been lawfully issued, and are
fully paid and not assessable;
6
(b) Such shares represent a total of 100% of the issued common
voting stock in Licensee.
(c) Such shares are owned free and clear of any pledges, liens,
encumbrances and claims, and are not subject to any restrictions or
limitations prohibiting or restricting transfer to Communitronics, Inc.
except as maybe disclosed in this agreement
(d) Shareholders have full right, power and authority to sell
and transfer such shares pursuant to this agreement.
(e) The certificates for the shares to be transferred to
Communitronics, Inc. will be genuine and together with any supporting papers
shall be in such form as to enable the shares of stocks represented thereby
to be immediately transferred to Communitronics, Inc. on the stock transfer
books of the Licensee.
2.4 AVAILABILITY: Shareholders hereby agree that, from time to time
after the closing at Communitronics, Inc.'s request and without flarther
consideration, Shareholders will executed and deliver such other instruments
of conveyance assignment and transfer, and take such action as Communitronics
Inc. may reasonable require, to more effectively convey or transfer to in
Communitronics, Inc. possession of the stock purchased hereunder; and,
2.5 COMPLETE TRANSFER: MI assets and properties, if any of every
nature in connection with the business of Licensee are owned by Licensee and
are hereinafter referred to as the "Assets".
7
2.6 CORPORATE EXISTENCE, ORGANIZATION AND QUALIFICATION OF LICENSEE:
Licensee is a corporation duly incorporated, legally existing and in good
standing under the laws of the State of Louisiana; and, it has no state or
local fees or penalties outstanding; and it has full corporate power and
authority to carry on the business as now being conducted by it. The
authorized stock of Licensee consists sole of: 1000 Shares of voting common
stock, of which these are issued 1000; issued shares issued and outstanding,
which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Shareholder owns 600 shares and R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ owns
400 shares. There are on this date no outstanding warrants, options or rights
of any kind to acquire from Licensee shares of stock in Licensee, other than
as contained in this agreement.
2.7 LICENSE'S SUBSIDIARIES AND AFFILIATES: Licensee has no
investments of any kind in any corporation, joint venture or partnership. The
Licenses is not subject to any mortgage, debt or other encumbrance, which
materially or adversely affects it business, properties, assets, or condition.
2.8 LITIGATION: Shareholders have no knowledge of litigation
threatened against or relating to Licensee's business or properties which
might individually or in the aggregate have a material adverse effect on such
business or properties or the financial condition of Licensee, nor has
Shareholder or Licensee received any notice that any basis is known to exist
for any such action or for any governmental investigation relative to
Licensee's business or properties.
8
2.9 COURT ORDERS AND DECREES: Shareholders assert that there is no
validly served and effective outstanding order, writ, injunction or decree of
any court, governmental agency or arbitration tribunal against or which
could, either individually or in the aggregate, have a material adverse
effect upon Licensee's business, property, assets or financial condition.
2.10 COMPLIANCE WITH LAWS: Except as specifically disclosed in
writing to Communitronics, Inc.'s counsel prior to execution of this
agreement, Licensees are in compliance with all provisions of all applicable
laws (including environmental laws) regulations and administrative orders of
the United States, all States and each municipality, county, or subdivision
of any thereof, to which its business or any properties may be subjected
which if not complied with either individually or in the aggregate may have a
material adverse effect upon Licensee's business, properties, assets or
financial condition.
2.11 NO ADVERSE CONTRACTS: Except for contracts specifically
identified and of which complete copies thereof specifically identified and
in Exhibit "B" hereto previously delivered to Communitronics, Inc. counsel,
Licensee is not obligated under any contract or agreement or any law which
materially and adversely affects its business, properties, prospects, assets
or condition, financially or otherwise.
2.12 EXECUTION AND PERFORMANCE OF AGREEMENT: The parties hereto
represent and agree that execution and performance by Shareholders of this
agreement and the transactions contemplated hereby by the Shareholders
9
will not violate any provision of, or resort in the breach of, or constitute
a default under, any law, order, writ, injunction, decree or regulation of
any court, state or federal government agency or arbitration, tribunal, or
any contract, agreement, license, permit or instrument by which any of the
stock or licensees, businesses or property is bound.
2.13 STATUS OF LEASE AND AGREEMENT: Licensees are not a party, by
transfer or otherwise, to any lease or agreement not specifically identified
in Exhibit "C", hereto and disclosed to Communitronics, Inc. Said leases and
agreements, if any, are not suspended, modified or revoked and Licensee and
its transferors are operating and will continue to operate without
modification of its agreement rights until closing, in compliance with all of
the terms of said agreement.
2.14 STATEMENT AND RECORDS: All books, statements, documents,
records and financial, statements including but not limited to, yearly and
monthly profit and loss statements of Licensee furnished or given to
Communitronics, Inc. or it agents during the negotiation of and preparatory
to the execution or consummation of the transactions contemplated herein,
including Licensee's audited due diligence acceptable financial statement
dated November 30, 1997, are true and correct are to be provided to
Communitronics are genuine and as accurately contain no material
misrepresentations or omissions of material facts, and all such statements
represent fairly the financial position of Licensee as of the date thereof,
and the results of its operation for the periods designated therein, and
10
were in prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as otherwise previously disclosed in
writing to Communitronics' counsel) throughout the period involved as of the
date of Licensee's latest audited financial statements it had no liabilities,
contingent or otherwise, except in those financial statements, income
statements and other financial documents.
2.15 NO UNDISCLOSED LIABILITY: At closing the Licensee will have no
material liabilities contingent on otherwise except these liabilities
referred to and attached as Exhibit "D" hereto, and those audited liabilities
incurred since that date in the ordinary course of business, but only to the
extent permitted under Article IV.
2.16 TAX RETURNS: Licensees has timely filed all Federal, State and
Local tax returns required to be filed by it by the laws of the United States
and each state which it does business in, including, but not limited to all
taxes with respect to income, property withholding, ▇▇▇▇▇▇▇'▇ compensation,
social security and unemployment taxes. To the best of Licensees' knowledge
and belief, all such returns are correct as filed and all taxes due and all
additional assessments and penalties and interest thereon received prior to
the date hereof and at closing have been paid. All filed returns were
prepared in accordance with the applicable state's laws and generally
accepted accounting principles relating to taxation. The reserves for any
taxes in licensee's financial statements are sufficient for the payment of
all accrued and unpaid taxes of Licensee, if any.
11
2.17 Taxes and all personal income excise, conveyance or other taxes
directly related to the transaction contemplated herein which were incurred
prior to the closing of this transaction or concurrent therewith which may
become payable by reason of the sale and purchase of the stock at closing
will be borne by the Shareholders.
2.18 NO UNDISCLOSED CONTRACTS: Licensee has no contracts not
previously disclosed in writing and delivered to Communitronics, Inc.; nor has
Licensee caused any contracts for the purchase or sale of products on
services, nor continuing contracts for the future purchase or lease of
materials, supplies, services or equipment or other property except as
previously disclosed in writing to Communitronics, Inc.
2.19 STATUS OF ASSETS: After due inquiry, Shareholders know of no
material adverse condition regarding the business of Licensee not disclosed
herein, exception generally applicable to the Paging industry.
2.20 NEW DIRECTORS AND OFFICERS: At closing the purchase of
Licensee's stock, any election of a new board of directors and officers of
Licensee will not cause the cancellation, beach, acceleration, or any other
material adverse change in terms of any contract or agreement to which
Licensee is bound.
2.21 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND OTHERS:
Licensee is not indebted to any director, officer, employer or agent of
Licensee except as indicated on the financial statement provided to
Communitronics or in the ordinary course of business.
12
2.22 GOVERNMENTAL CONSENT: No consent, approval, order or
authorization or regulation, qualification, designation, declaration or
filing with any governmental authority is required on part of Shareholder in
connection with the acceptance of this agreement and delivery of the stock of
Licensee as contemplated by the agreement, except any approval or filing as
may be required under requirements of the FCC and applicable state
authorities ("PUC").
2.23 FCC AUTHORIZATION: Licensee has been granted FCC
authorization to construct and operate the system by FCC action, which has
become a Final Order (as defined in Section 5.7). Such authorization
has not been suspended, modified, or revoked, and the Licensee has complied
with and will continue without modification with terms with closing
Shareholder knows of no event or condition which would materially endanger
the continued effectiveness of the Authorization.
2.24 DURING THE PERIOD FROM APRIL 22,1998 UNTIL CLOSING DATE:
Shareholder shall not discuss with, accept offers from or negotiate with any
other party regarding the sale, transfer, or management of Shareholders'
interests in Cresent Paging, Inc. but will instead deal exclusively and good
faith with Communitronics, Inc. regarding the transfer of control of the
Licensee. During this period, Shareholders shall be restricted from
encumbering, agreeing to transfer or convey, or, transferring or conveying
any portion of their interests except with the express written consent of
Communitronics, Inc.
13
2.25 SURVIVAL OF REPRESENTATIONS AND WARRANTIES: The representation
and warranties contained in this agreement shall survive the closing date and
shall bind Shareholders and Shareholders' transfer's heirs and assigns.
ARTICLE III
3.1 REPRESENTATIONS AND WARRANTIES OF COMMUNICATIONS, INC.:
Communitronics, Inc. represents and warrants as set forth in this Article III.
3.2 QUALIFICATIONS OF COMMUNITRONICS, INC.: Communitronics, Inc. is
an Alabama corporation duly qualified to do business in all the jurisdictions
in which it is legally required to be so qualified. Communitronics, Inc. is
legally, financially, technically, and otherwise qualified to acquire
Licensee's stock as contemplated herein.
3.3 AUTHORITY ACTION OF COMMUNITRONICS, INC.: The execution and
delivery of this agreement by Communitronics, Inc. has been duly authorized
by all necessary corporate action. The consummation of the transaction
contemplated by this agreement will not violate any provision in
Communitronics, Inc.'s Articles of Incorporation, bylaws, or result in any
breech or default under any applicable State or Federal law, nor any rule,
regulation, order, writ, injunction or decree of any court, state or federal
governmental agency or arbitration tribunal having jurisdiction over
Communitronics, Inc. or any contract, agreement or instrument by which
Communicatronics, Inc. may be bound. All action required of
14
the Shareholders and directors of Communitronics, Inc. in connection with the
execution, delivery and performance of this agreement has been taken.
3.4 LITIGATION: There is not any undisclosed litigation pending or
threatened against Communitronics, Inc. which would have a material adverse
effect on the business of Communitronics, Inc. or prevent Communitronics,
Inc. from fulfilling all its obligation hereunder.
ARTICLE IV
4.1 CONDUCT OF BUSINESS FROM EXECUTION OF THIS AGREEMENT PENDING
CLOSING: From April 22, 1998 until the closing date, Shareholders warrant and
covenant that, pending and as a condition precedent to closing, except as
otherwise consented to in advance in writing by Communitronics, Inc. with
respect to Licensee the following, to wit:
(a) Licensee's business will be conducted only in the ordinary and
usual course business;
(b) No contract or commitment will be entered into by Licensee
except in the ordinary course of business;
(c) No indebtedness for borrowed money will be created, assumed
or incurred by Licensee;
(d) No sale, transfer or other disposition, directly or
indirectly, and no mortgage, pledge or other encumbrance, of its assets will
be made or entered into by or on behalf of Licensee (even if made in the
ordinary course of business);
15
(e) Licensee will use its best efforts to keep the
organizations of its business intact to preserve and maintain its assets and
properties;
(f) Licensee will not directly or indirectly do, or agree to
do any of the following acts:
(1) Grant any increase in salaries payable or to become
payable or grant any bonus to any officer, employee,
agent, or representative, except with the consent of
Communitronics, Inc.;
(2) Increase benefits payable to any officer, employee,
agent or representative under any pension plan or
other contract or commitment;
(3) Enter into any collective bargaining agreement to
which it is a party or by which it may be bound;
(4) Enter into any employment agreement or other such
agreement;
(5) Pay any obligation or liability, fixed or contingent,
other than current audited liabilities payable to
persons other then Shareholder, or other related or
affiliated entities or to their employees, agents,
shareholders, partners assigns;
(6) Waive or compromise any right or claim;
(7) Cancel, without full payment any note loan or other
obligation owing to it;
(8) Take any other action, which would materially diminish
the value of its business to Communitronics, Inc.;
16
(9) Licensee will not directly or indirectly:
a. Declare, set aside or pay any dividend or make
any distribution in respect of its capital stock;
b. Purchase, redeem, or otherwise acquire any shares
of its capital stock;
c. Change its accounting method or treatment of any
material item; or
d. Enter into any agreement obligation to do any of
the foregoing prohibited acts;
(10) Licensee will not directly or indirectly enter into
any contract or other agreement of any nature with
Shareholders or other related or affiliated persons or
entities or their employees, agents or assigns; or
(11) Licensee will not directly terminate any of its
existing of these acts.
4.2 ACCESS AND INFORMATION: To the extent reasonably required for
the purpose of this agreement Shareholders will permit Communitronics, Inc.,
its counsel, accountants and other representatives to have full access
during normal business hours throughout the period prior to closing, to its
properties, books and records of Licensee, and will cause to be furnished to
Communitronics, Inc. and its representative during such all such information
concerning the affairs of Licensee
17
as Communitronics, Inc. or its representatives may reasonably request, including
but not limited to, subscriber customer data.
ARTICLE V
5.1 CONDITIONS PRESIDENT TO CLOSING: Closing shall occur only
upon the occurrence of all the conditions set forth in this Article V and
elsewhere in this agreement (unless expressly waiving in writing by the party
to whose favor the representation or condition runs at any time prior to
closing). Each party shall have performed its obligations due to be performed
hereunder on or before the closing date.
5.2 REPRESENTATION AND WARRANTIES TRUE WHEN MADE: No
representations or warranty of Shareholders or Communitronics, Inc. contained
in this agreement shall be inaccurate or incomplete, nor have Shareholders
knowingly or negligently omitted to disclose any material fact pertinent to
this transaction.
5.3 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING: The
representations and warranties of Shareholders and Communitronics, Inc.
contained in this agreement shall be deemed to have been made again at the
time of closing, and shall have caused all covenants, agreements and conditions
required by this agreement to be performed or complied with prior to or at
closing to be so performed and complied with; and, The parties hereto will
furnish to each other a certificate signed by each respectively, dated on the
date of closing date, certifying
18
to the truth of such representations and to the fulfillment of all such
covenants, agreements and conditions.
5.4 OCCURRENCE OF EVENTS: All of the following events shall occur
at or prior to closing:
(a) The receipt by Communitronics of all government approvals by
final order (as defined in Section 5.9), if any are necessary, and all other
necessary approvals, if any, for the assignment and transfer of the stock of
Licensee to Communitronics, Inc. with respect to the rights, agreements,
privilege, licenses and franchises referred to in this agreement, including
but not limited to the agreements, if any, referred to in Section 2.13.
Communitronics, Inc. and Shareholders agree to cooperate in obtaining all
necessary governmental and third party consents and approvals required to
complete this agreement.
(b) The receipt by Communitronics, Inc.'s attorneys of the
documents if any, referred to in Section 2.2.
(c) The mortgage referred to within Section 1.4 herein
5.5 ABSENCE OF ADVERSE CHANGES: Subsequent to the execution of this
agreement and prior to closing Shareholders and Licensee agree that there
shall not be any adverse change in the business or prospects of Licensee's
properties or business and on the closing date, there shall be delivered to
Communitronics, Inc. a certificate to such effect, dated the date of closing
and signed by the Shareholders. It is understood that Shareholders assume all
risks of destruction, loss or damage
19
due to fire or other causes of destruction to the Licensee's properties and
business up to and including the date of closing.
5.6 TERMINATION AS OF RIGHT: If this agreement is terminated
pursuant to Section 8.11 of this agreement, Communitronics, Inc. agrees to
return to Shareholders any and all information, documents or assets received
from Shareholders, and Shareholders agree to return to Communitronics, Inc.,
the funds held by escrow agent pursuant to the Escrow Agreement and this
agreement shall have no effect whatsoever and the transactions contemplated
herein shall terminate and be null and void.
5.7 FINAL ORDER: For purposes of this agreement, a grant by
governmental authority shall be considered a Final Order ("Final Order")
when it is no longer subject to regulatory or administrative reconsideration,
review or appeal, with said times have lapsed with no petition, appeal,
objection or other like adverse pleading having been filed with the FCC or
other authority having jurisdiction over the matter.
ARTICLE VI
6.1 INDEMNIFICATION BY SHAREHOLDERS: Shareholders agree to defend
and hold Communitronics, Inc. harmless from any and all losses,
liabilities, expenses, damages or costs (including reasonable attorney's
fees, penalties and interest), payable to or for the benefit of or asserted
by any party, resulting from or arising out of or incurred as a result of the
falsify of any
20
representation or breach of any warranty or covenant made by Communitronics,
Inc. herein or in accordance herewith.
6.3 SURVIVAL OF COVENANTS AND WARRANTIES: The representative,
warranties and agreements made by Shareholders, except as they may be fully
performed prior to or contemporaneously with closing, shall survive closing
and shall be fully enforceable at law or in equity against Shareholders,
Licensee and their successors and assigns by Communitronics, Inc. and its
successors and assigns. The representations, warranties and agreements made
by Communitronics, Inc. herein, except as they may be fully performed prior
to or contemporaneously with closing shall survive closing and shall be
enforceable at law or in equity against Communitronics, Inc. and its
successors and assigns. Any investigation at any time made by or on behalf of
(or disclosure to) any party hereto shall not diminish in any respect
whatsoever all parties hereto right to rely on such representation and
warranties.
ARTICLE VII
-----------
7.1 Notices, all notices, request, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given and
effective upon receipt if delivered in person or by prepaid overnight express
service delivered to the parties hereto at the following addresses:
If to Shareholders:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
21
(Facsimile (▇▇▇) ▇▇▇-▇▇▇▇)
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Facsimile (▇▇▇) ▇▇▇-▇▇▇▇)
with copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attorney at Law
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
TELE: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
If to Communitronics, Inc.:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Magnolia Shopping Center
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇▇,▇▇ ▇▇▇▇▇
(Facsimile (▇▇▇) ▇▇▇-▇▇▇▇)
with copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Ulmer, Hillman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Facsimile (▇▇▇)-▇▇▇-▇▇▇▇)
or such other address as specified by the parties from time to time.
ARTICLE VIII
------------
8.1 NOTICE OF CLAIMS: Shareholder and Communitronics, Inc. each agree
to give prompt written notice to the other and to all affected parties of any
claim against the party giving notice which might give rise to a claim
against the
22
party, to include information detailing the nature and basis of the claim
and the actual or estimated amount thereof. In the event action, suit or
proceeding is brought against the Shareholders, Licensee and/or
Communitronics, Inc. with respect to which any party hereto may have
liability under the indemnity previsions herein, the indemnifying party
shall have the right, but not the responsibility, at its sole cost and
expense, to defend such action in the name of and on behalf of the
indemnified party or corporation, and in connection with any such action,
suit or proceeding and in connection with any such assistance as may
reasonably be required, in order to insure proper and adequate defense of any
such action, suit or proceeding. No party hereto shall make any settlement of
any claim which might give rise to liability of the other parties hereto
under the indemnity provisions contained herein without the written consent
of such other party(s), of which said consent such party covenants shall not
be unreasonably withheld
8.2 AMENDMENTS: This agreement may be amended or modified only by a
written instrument executed by Communitronics, Inc. and Shareholders.
8.3 EXPENSES: Communitronics, Inc. agrees to reimburse Shareholders
for out-of-pocket expenses (including capital contribution) incurred during
normal course of operation and construction of the system between August 27,
1998 and the closing date, provided that said expenses have been approved in
writing by Communitronics, Inc. In addition, Communitronics, Inc. shall
assume the continuing obligation of the systems, if any reasonable incurred
in the normal course of operation and construction of the system through such
closing
23
date. Communitronics, Inc. shall not reimburse Shareholders for Shareholder's
legal expenses attributable to the sale of their interests. Communitronics,
Inc. shall not be reimbursed for reasonable and necessary out-of-pocket
expenses or construction costs incurred by Communitronics, Inc. not paid by
System Financing if the FCC or other governmental authority does not approve
contemplated transfer of control of the system without first obtaining
written consent from Shareholders.
8.4 BROKERS: Shareholders agree to indemnity Communitronics, Inc.
against any third person for any commission, brokerage fee, finder fee or
other payment alleged to be due as a result of this transaction based upon
any alleged agreement or understanding between such third person and
shareholders whether expressed or implied from actions of Shareholders or
their agents.
8.5 COUNTER PARTS: This agreement may be executed in any number of
counter parts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.6 PARTIES IN INTEREST: This agreement shall inure to the benefit
of and be binding upon Communitronics, Inc. and Shareholders (Crescent
Paging, Inc.) and their respective successors, heirs and assigns. Nothing in
this agreement, either expressed or implied, is intended to confer upon any
other person any rights or remedies under or by reason of this agreement.
8.7 APPLICABLE LAW: The rights and obligations of the parties shall
be construed under and governed by the laws of the State of Alabama. Personal
24
jurisdiction over all parties hereto and venue over any legal action shall be
in the Federal or State courts of general jurisdiction, which are Daphne,
Alabama.
8.8 WAIVERS: No provision in this agreement shall be deemed waived
by course of conduct, including the act of closing under Article V unless
such waiver is in writing signed by all parties and stating specifically that
it was intended to modify this agreement.
8.9 SCHEDULES AND EXHIBITS: The exhibits attached hereto shall be
deemed to be incorporated by referenced in this agreement as if fully set
forth herein.
8.10 CAPTIONS: Section headings are descriptive only, and shall
have no legal effects.
8.11 TERMINATION OF RIGHTS: Shareholders (Crescent Paging, Inc.) and
Communitronics, Inc. may terminate this agreement if counsel for Shareholders
and counsel for Communitronics, Inc. determine in good faith that any
provision of this agreement or the performance of any obligation will
adversely affect Shareholders or Licensee's application for, or their
qualification to hold or transfer the FCC authorization or PVC Certificate
for the System. If an irreconcilable difference of opinion develops between
counsel for Shareholders and counsel for Communitronics regarding a claim of
such adverse condition, then both counsel shall agree upon a independent
counsel whose opinion shall be determinative in this matter. However, in the
event that a determination is made that such adverse conditions exists, the
parties agree to use their best efforts to cure
25
the adverse or disqualifying condition, provided that the cure does not
substantially diminish the benefits of this agreement to either party.
8.12 SERERABLITY: In the event that any item or provision of this
agreement is determines to be void, unenforceable, or contrary to law, the
remainder of this agreement shall continue in full force and effect, provided
that such continuation would not materially diminish the benefits of this
agreement for either party.
8.13 ASSIGNMENT: No right or obligation herein may be assigned or
delegated by a party, either directly or indirectly, by transfer of control
without the written consent of the other party, where whose consent shall not
be unreasonably withheld.
8.14 ARBITRATION AGREEMENT: Shareholders, Licensee and/or
Communitronics, Inc. agree that any material dispute arise out of this
agreement between Shareholders, Licensee and/or Communitronics, Inc., said
dispute will be submitted for resolution by arbitration in accordance with
the rules of the American Arbitration Association. Such arbitration shall be
binding and final. In agreeing to arbitration, all parties acknowledge that in
the event of a dispute, each party is giving up the right to have the dispute
decided in a court of law before a judge of jury, and instead are accepting
the use of arbitration for resolution. The non prevailing party(s) as a
result of the arbitration process also agrees to pay all costs, including
reasonable attorney's fees, incurred in said arbitration process including
such initial fees as may be required to initiate a claim in arbitration.
26
8.15 ENTIRE AGREEMENT: This agreement and letter agreement entered
into between Shareholders (Crescent Paging, Inc.) and Communitronics Inc.
constitute the entire agreement between the parties governing the matters
addressed. No prior agreement or representation, whether verbal or written,
shall have any force or effect upon this agreement.
08/31/1998 /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------- -----------------------------------------
Dated ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
President of Communitronics, Inc.
-------------- -----------------------------------------
Dated ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Business Consultant and Financial Adviser
08/31/98 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------- -----------------------------------------
Dated ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Owner of Crescent Paging, Inc.
Aug 31, 1998 /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------- -----------------------------------------
Dated R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Owner of Crescent Paging, Inc.
STATE OF ALABAMA
COUNTY OF MOBILE
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name is signed to the
foregoing Stock Exchange Agreement and who is known to me, acknowledged
before me on this day
27
that, being informed of the contents of said Stock Exchange Ageeement, he
executed the same voluntarily on the day the same bears date.
Given under my hand this the ____ day of _______________ 1998.
----------------------------------
Notary Public
Commission expires
----------------
STATE OF
-------------
COUNTY OF
------------
I, the undersigned, a Notary Public in and FOR said County in said
State, hereby certify that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name is signed to the
foregoing Stock Exchange Agreement and who is known to me, acknowledged
before me on this day that, being informed of the contents of said Stock
Exchange Agreement, he executed the same voluntarily on the day the same
bears date.
Given under my hand this the ____ day of _______________ 1998.
-----------------------------------
Notary Public
Commission expires
-----------------
STATE OF
-------------
COUNTY OF
------------
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, whose name is signed to the
foregoing Stock Exchange Agreement and who is known to me, acknowledged
before me on this day
28
that, being informed of the contents of said Stock Exchange Agreement, he
executed the same voluntarily on the day the same bears date.
Given under my hand this the ____ day of _______________ 1998.
------------------------------------
Notary Public
Commission expires
------------------
STATE OF
-----------------
COUNTY OF
----------------
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, whose name is signed to the
foregoing Stock Exchange Agreement and who is known to me, acknowledged
before me on this day that, being informed of the contents of said Stock
Exchange Agreement, he executed the same voluntarily on the day the same
bears date.
Given under my hand this the ____ day of _______________ 1998.
------------------------------------
Notary Public
Commission expires
------------------
29
