Exhibit 10.1
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COMMON STOCK PURCHASE AGREEMENT
By and Between
WOLFPACK CORPORATION
(the "Purchaser")
and
JETCO COMMUNICATIONS CORPORATION
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Dated as of January 13, 2000
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TABLE OF CONTENTS
Page
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Article I Certain Definitions..................................... 1
Article II Purchase of Common Stock................................ 3
Article III Representations and Warranties.......................... 3
Article IV Other Agreements of the Parties......................... 8
Article V Defaults and Remedies................................... 10
Article VI Conditions Precedent to Closing......................... 11
Article VII Conditions Subsequent to Closing........................ 12
Article VIII Termination............................................. 12
Article IX Legal Fees.............................................. 13
Article X Miscellaneous........................................... 13
Schedule 3.1(a) Subsidiaries
Schedule 3.1(c) Capitalization
Schedule 3.1(f) Required Consents and Approvals
Schedule 3.1(g) Litigation
Appendix A Notice of Exercise
i
PURCHASE AGREEMENT, dated as of January 13, 2000 (this "Agreement"),
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by and between JetCo Communications Corporation, a Texas corporation (the
"Company"), with its principal office at 0000 XXX Xxxxxxx, Xxxxx 0000, Xxxxxx
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Xxxxx 00000, and Wolfpack Corporation, a Delaware corporation, with its
principal office at 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000 (the
"Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser and
the Purchaser desires to acquire One Hundred Fifty Thousand (150,000) shares
(the "Shares") of the authorized but unissued common stock, $.001 par value per
share (the "Common Stock") of the Company.
IN CONSIDERATION of the mutual covenants, promises and agreements set
forth herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
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Section 1.1. Certain Definitions. As used in this Agreement, and unless the
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context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means, with respect to any Person, any Person that,
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directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
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with") shall mean the possession, directly or indirectly, of the power to direct
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or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities by contract or otherwise.
"Business Day" means any day except Saturday, Sunday and any day which
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is a legal holiday or a day on which banking institutions in the state of New
York are authorized or required by law or other government actions to close,
between the hours of 9:30 a.m. and 6:00 p.m. New York Time.
"Closing" shall have the meaning set forth in Section 2.1(b).
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"Closing Date" shall mean the date of Closing, as set forth in
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Section 2.1(b).
"Code" means the Internal Revenue Code of 1986, as amended, and the
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rules and regulations thereunder as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means shares now or hereafter authorized of the class
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of Common Stock, $.001 par value, of the Company and stock of any other class
into which such shares may thereafter have been classified or changed.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
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encumbrance, charge or security interest of any kind in or on such asset or the
revenues or income thereon or therefrom.
"Material" shall mean having a financial consequence in excess of
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$100,000.
"Material Adverse Effect" shall have the meaning set forth in Section
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3.1(a).
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"NASD" means the National Association of Securities Dealers, Inc.
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"Per Share Consideration" shall have the meaning set forth in Section
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2.1(a).
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"Person" means an individual or a corporation, partnership, trust,
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incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Purchase Price" shall have the meaning set forth in Section 2.1(a).
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"Required Approvals" shall have the meaning set forth in Section
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3.1(f).
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"Securities Act" means the Securities Act of 1933, as amended.
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"Subsidiaries" shall have the meaning set forth in Section 3.1(a).
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ARTICLE II
PURCHASE OF COMMON STOCK
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Section 2.1. Purchase of Common Stock; Closing
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(a) Subject to the terms and conditions herein set forth, the Company
shall issue and sell to the Purchaser, and the Purchaser shall purchase from the
Company on the Closing Date, One Hundred Fifty Thousand (150,000) Shares of
Common Stock, at a price per Share of US$1.00 (the "Per Share Consideration").
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The Per Share Consideration multiplied by the number of Shares to be purchased
by the Purchasers hereunder is hereinafter referred to as the "Purchase Price. "
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The total Purchase Price is $150,000.
(b) The closing of the purchase and sale of the Shares of Common
Stock (the "Closing") shall take place at the offices of the Company on or
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before January 14, 2000. The date of the Closing is hereinafter referred to as
the "Closing Date".
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(c) At the Closing, (i) the Purchaser shall deliver to the Company
(A) US$150,000 of the Purchase Price as determined pursuant to this Article I in
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immediately available funds by wire transfer to an account designated in writing
by the Company prior to the Closing and (B) all documents, instruments and
writings required to have been delivered at or prior to Closing by the Purchaser
pursuant to this Agreement, and (ii) immediately upon receipt of the Purchase
Price, the Company shall deliver to the Purchaser Agent (A) certificates for One
Hundred Fifty Thousand (150,000) shares of Common Stock registered in the name
of the Purchaser (B) all documents, instruments and writings required to have
been delivered at or prior to Closing by the Company pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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3.1. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Purchaser as follows:
(a) Organization and Qualification. The Company is a corporation,
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duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. The Company has no subsidiaries other than as set forth
in Schedule 3.1(a) (collectively, the "Subsidiaries"). Each of the Subsidiaries
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is a corporation, duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, with the full corporate power
and authority to own and use its
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properties and assets and to carry on its business as currently conducted. Each
of the Company and the Subsidiaries is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on (a) the results of operations,
assets, prospects, or financial condition of the Company and the Subsidiaries,
or (b) the Purchaser's rights under this Agreement (a "Material Adverse
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Effect").
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(b) Authorization; Enforcement. The Company has the requisite
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corporate power and authority to enter into and to consummate the transactions
contemplated hereby and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by other equitable principles of general application.
(c) Capitalization. The authorized, issued and outstanding capital
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stock of the Company and each of the Subsidiaries is set forth in Schedule
3.1(c). No shares of Common Stock are entitled to preemptive or similar rights.
Except as specifically disclosed in Schedule 3.1(c), there are no outstanding
options, warrants, script rights to subscribe to, calls or commitments of any
character whatsoever relating to, or, securities, rights or obligations
convertible into or exchangeable for, or giving any person any right to
subscribe for or acquire any shares of Common Stock, or contracts, commitments,
understandings, or arrangements by which the Company or any Subsidiary is or may
become bound to issue additional shares of Common Stock, or securities or rights
convertible or exchangeable into shares of Common Stock. Neither the Company nor
any Subsidiary is in violation of any of the provisions of its respective
certificate of incorporation, bylaws or other charter documents.
(d) Issuance of the Common Stock. The Shares of Common Stock have
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been duly and validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued and delivered as provided hereunder against payment
in accordance with the terms hereof, shall be valid and binding obligations of
the Company enforceable in accordance with their terms. When issued in
accordance with the terms hereof, the Shares of Common Stock will be duly
authorized, validly issued, fully paid and nonassessable.
(e) No Conflicts. The execution, delivery and performance of this
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Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby do not and will not (i) conflict with or violate
any provision of its certificate of incorporation or bylaws or (ii) subject to
obtaining the consents referred to in Section 3.1(f), conflict with, or
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constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party, or (iii) to the knowledge of the
Company result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company is subject (including Federal and state securities laws and
regulations), or by which any property or asset of the Company is bound or
affected, except in the case of each of clauses (ii) and (iii), such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a Material Adverse Effect.
The business of the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental authority, except for violations
which, individually or in the aggregate, do not have a Material Adverse Effect.
(f) Consents and Approvals. Except as specifically set forth in
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Schedule 3.1(f), neither the Company nor any Subsidiary is required to obtain
any consent, waiver, authorization or order of, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of this Agreement, other than the making
of the applicable blue-sky filings under state securities laws, and other than,
in all cases, where the failure to obtain such consent, waiver, authorization or
order, or to give or make such notice or filing, would not materially impair or
delay the ability of the Company to effect the Closing and deliver to the
Purchaser the Shares of Common Stock free and clear of all Liens (collectively,
the "Required Approvals").
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(g) Litigation; Proceedings. Except as specifically disclosed in
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Schedule 3.1(g), there is no action, suit, notice of violation, proceeding or
investigation pending or, to the best knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries or any of their
respective properties before or by any court, governmental or administrative
agency or regulatory authority (Federal, State, county, local or foreign) which
(i) relates to or challenges the legality, validity or enforceability of this
Agreement or the Shares of Common Stock (ii) could, individually or in the
aggregate, have a Material Adverse Effect or (iii) could, individually or in the
aggregate, materially impair the ability of the Company to perform fully on a
timely basis its obligations under this Agreement.
(h) No Default or Violation. Neither the Company nor any Subsidiary
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(i) is in default under or in violation of any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound, except such conflicts or defaults as
do not have a Material Adverse Effect, (ii) is in violation of any order of any
court, arbitrator or governmental body, except for such violations as do not
have a Material Adverse Effect, or (iii) is in violation of any statute, rule or
regulation of any governmental authority which could (individually or in the
aggregate) (x) adversely affect the legality, validity or enforceability of this
Agreement, (y) have a Material Adverse Effect or (z) adversely impair the
Company's ability or obligation to perform fully on a timely basis its
obligations under this Agreement.
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(i) Certain Fees. No fees or commission will be payable by the
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Company to any investment banker or bank with respect to the consummation of the
transactions contemplated hereby.
(j) Non-Registered Offering. Neither the Company nor any Person
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acting on its behalf has taken or will take any action (including, without
limitation, any offering of any securities of the Company under circumstances
which would require the integration of such offering with the offering of the
Shares of Common Stock under the Securities Act) which might subject the
offering, issuance or sale of the Shares of Common Stock to the registration
requirements of Section 5 of the Securities Act.
(k) Non-Reporting Company; Eligibility to use Exemption under Rule
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506 of Regulation D. The Company is not subject to the reporting requirements of
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Section 13 or Section 15(d) of the Exchange Act. The Company is eligible to
issue securities exempt from the registration requirements of Section 5 of the
Securities Act pursuant to Rule 506 of Regulation D promulgated under the
Securities Act.
Section 3.2. Representations and Warranties of the Purchasers. The
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Purchasers hereby represents and warrants to the Company as follows:
(a) Organization; Authority. The Purchaser is a corporation duly and
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validly existing and in good standing under the laws of the jurisdiction of its
incorporation. The Purchaser has the requisite power and authority to enter into
and to consummate the transactions contemplated hereby and otherwise to carry
out its obligations hereunder and thereunder. The purchase of the shares of
Common Stock by the Purchaser hereunder has been duly authorized by all
necessary action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser or on its behalf and constitutes the
valid and legally binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity.
(b) Investment Intent. The Purchaser is acquiring the Shares of
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Common Stock for its own account for investment purposes only and not with a
view to or for distributing or reselling such Shares or any part thereof or
interest therein, without prejudice, however, to the Purchaser's right, subject
to the provisions of this Agreement, at all times to sell or otherwise dispose
of all or any part of such Shares in compliance with applicable federal and
State securities laws.
(c) Purchaser's Status. At the time the Purchaser was offered the
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Shares, it was not, and at the date hereof, is not, and at the Closing Date,
will not be "accredited investor" as defined in Rule 501(a) under the Securities
Act. The Purchaser was not organized for the specific purpose of acquiring the
shares of Common Stock of the Company. The Purchaser is purchasing the Shares
for its own account.
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(d) Experience of Purchaser. The Purchaser, either alone or
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together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Shares, and has so
evaluated the merits and risks of such investment.
(e) Ability of Purchasers to Bear Risk of Investment. The Purchaser
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is able to bear the economic risk of an investment in the Shares and, at the
present time, is able to afford a complete loss of such investment.
(f) Prohibited Transactions. The Shares to be purchased by the
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Purchaser are not being acquired, directly or indirectly, with the assets of any
"employee benefit plan", within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended.
(g) Access to Information. The Purchaser acknowledges that it has
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been afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares and the merits
and risks of investing in the Shares; (ii) access to information about the
Company and the Company's financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its
investment in the Common Stock; and (iii) the opportunity to obtain such
additional information which the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the Shares.
(h) Reliance. The Purchaser understands and acknowledges that (i) the
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Shares are being offered and sold, to them without registration under the
Securities Act in a transaction that is exempt from the registration provisions
of the Securities Act, (ii) the availability of such exemption, depends in part
on, and that the Company will rely upon the accuracy and truthfulness of, the
foregoing representations and the Purchaser hereby consents to such reliance,
and (iii) that the certificates representing the shares will bear the
appropriate legend stating the restrictions on the resale and transfer of the
shares.
The Company acknowledges and agrees that the Purchaser makes no
representation or warranty with respect to the transactions contemplated hereby
other than those specifically set forth in Article III herein.
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ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
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Section 4.1. Manner of Offering. The Shares of Common Stock and the Option
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Shares are being issued pursuant to Rule 506 of Regulation D promulgated under
Section 4(2) of the Securities Act. The Shares of Common Stock will not be
exempt from restrictions on transfer, and certificates for the shares of Common
Stock will carry a restrictive legend with respect to the restrictions on the
resale and transfer of the Shares.
Section 4.2. Furnishing of Information. As long as the Purchaser owns the
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Shares, the Company will promptly furnish to it all annual and quarterly reports
comparable to those required by Section 13(a) or 15(d) of the Exchange Act.
Section 4.3. Notice of Certain Events. The Company shall (i) advise the
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Purchaser promptly after obtaining knowledge thereof, and, if requested by the
Purchaser, confirm such advice in writing, of (A) the issuance by any state
securities commission of any stop order suspending the qualification or
exemption from qualification of the Common Stock for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority, or (B) any event that makes
any statement of a material fact made by the Company in Section III untrue or
that requires the making of any additions to or changes in the Company's
representations or warranties in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, (ii) use
its best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption from qualification of the Common Stock under any
state securities or Blue Sky laws, and (iii) if at any time any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Common Stock under any such
laws, use its best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
Section 4.4. Blue Sky Laws. The Company shall cooperate with the Purchaser
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in connection with the exemption from registration of the Shares under the
securities or Blue Sky laws of such jurisdictions as the Purchaser may request
and to continue such exemption at all times through the fourth anniversary of
the Closing Date; provided, however, that neither the Company nor its
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Subsidiaries shall be required in connection therewith to qualify as a foreign
corporation where they are not now so qualified. The Company agrees that it will
execute all necessary documents and pay all necessary state filing or notice
fees to enable the Company to sell the Shares and the Option Shares under
Section 4.9 to the Purchaser.
Section 4.5 Integration. The Company shall not and shall use its best
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efforts to ensure that no Affiliate shall sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the
Shares in a manner that would require the registration under the Securities Act
of the sale of the Shares to the Purchaser.
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Section 4.6 Solicitation Materials. The Company shall not (i) distribute
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any offering materials in connection with the offering and sale of the Shares
other than the information previously supplied to the Purchaser or (ii) solicit
any offer to buy or sell the Shares by means of any form of general solicitation
or advertising.
Section 4.7. Prohibition on Certain Actions. From the date hereof through
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the Closing Date, the Company shall not and shall cause the Subsidiaries not to,
without the consent of the Purchaser, (i) amend its Certificate of
Incorporation, bylaws or other charter documents so as to adversely affect any
rights of the Purchaser; (ii) split, combine or reclassify its outstanding
capital stock; (iii) declare, authorize, set aside or pay any dividend or other
distribution with respect to the Common Stock; (iv) redeem, repurchase or offer
to repurchase or otherwise acquire shares of its Common Stock; or (v) enter into
any agreement with respect to any of the foregoing.
Section 4.8. Use of Purchase Price. The Company shall apply the Purchase
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Price exclusively for the use in the acquisition of FaithNet (the "FaithNet
Acquisition"), in order that FaithNet become a wholly-owned subsidiary of the
Company and the acquisition of the customer base of one of the following
companies; Trinity, USA Telco, OPM or Home Phone (the "Customer Base
Acquisition").
Section 4.9 Stock Option. The Company hereby grants to the Purchaser the
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option (the "Option") to purchase up to 550,000 Shares of the Common Stock of
the Company for a period of 18 months from the date of this Agreement, subject
to the following conditions:
(a) Exercise Price. The exercise price per share shall be $1.00.
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The Shares issued by the Company under the Option shall not be
registered pursuant to Section 5 of the Securities Act and the
certificates representing such shares will bear the
appropriate legend restricting the transfer and sales of such
shares.
(b) Notice of Exercise. The Purchaser shall exercise the Option by
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giving written notice ("the Exercise Notice") to the Company
in the form attached hereto as APPENDIX A and delivery of the
exercise price. Delivery of the Exercise Notice shall be made
by facsimile and payment of the exercise price shall be made
in immediately available funds by wire transfer to the account
designated by the Company in Section 2.1(c).
(c) Delivery of Option Shares. Within two (2) Business Days of
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receipt of the exercise price, the Company shall deliver the
Option Shares to the Purchaser within two (2) Business Days.
(d) Additional Consideration. In the event that the Company
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closes the FaithNet Acquisition and the Customer Base
Acquisition within ninety (90) days from the date of this
Agreement, then the Company shall have the right to require
additional consideration in order for the Option to continue.
Within thirty
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(30) Business Days of the closing of the FaithNet Acquisition
and the Customer Base Acquisition, the Company shall send
written notice by facsimile to the Purchaser of the closing
date of the FaithNet Acquisition and the Customer Base
Acquisition, and the required additional consideration. The
Purchaser shall have up to sixty (60) Business Days from its
receipt of the notice from the Company to send written notice
by facsimile of whether it agrees to pay the additional
consideration or rejects the payment of the additional
consideration. If the Purchaser agrees to the payment of the
additional consideration, then the Purchaser shall pay such
additional consideration within five (5) Business Days. If the
Purchaser does not agree to pay the additional consideration,
then the Option will terminate immediately upon the Company's
receipt of the notice of rejection from the Purchaser.
ARTICLE V
DEFAULT AND REMEDIES
In the event the Company desires to change the use of the Purchase Price
for some purpose other than the FaithNet Acquisition and the Customer Base
Acquisition (the "Original Use"), the Company shall send a written notice by
facsimile to the Purchaser explaining the change in the use of the Purchase
Price (the "Change Notice"). The Change Notice shall include all information
necessary to the satisfaction of the Purchaser to understand the change in the
use of the Purchase Price. The Purchaser shall have four (4) Business Days from
the receipt of the Change Notice to consent in writing to the change in the use
of the Purchase Price or notify the Company in writing that such consent is not
granted. In the event that the Purchaser does not grant such consent, the
Company shall have two (2) Business Days to give written notice (the "Decision
Notice") to the Purchaser if the Company will change the use of the Purchase
Price from the Original Use. If the Company notifies the Purchaser that it will
change the use of the Purchase Price from the Original Use, then this Agreement
shall be voidable at the sole option of the Purchaser. In order to declare this
Agreement void, the Purchaser shall send written notice within five (5) Business
Days of Purchaser's receipt of the Decision Notice that the Purchaser is
electing to void this Agreement (the "Voiding Notice"). Upon the Purchaser
sending the Voiding Notice, this Agreement shall become void, and within five
(5) Business Days of receipt of the Voiding Notice, the Company shall return the
full amount of the Purchase Price to the Purchaser. Upon receipt of the Purchase
Price, the Purchaser shall return the certificates representing the Shares of
Common Stock to the Company.
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ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
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Section 6.1. Conditions Precedent to Obligations of the Purchaser. The
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obligation of the Purchaser to purchase the shares of Common Stock is subject to
the satisfaction or waiver by the Purchaser, at or prior to the Closing, of each
of the following conditions:
(a) Legal Opinion. The Purchaser shall have received the legal
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opinion, addressed to it and dated the Closing Date from the legal counsel for
the Company. Such legal opinion shall address the Company's authority to enter
into this Agreement, the availability of Rule 506 of Regulation D for the offer
and sale of the Shares and that upon issuance, the shares of Common Stock and
the Option Shares shall be fully paid, validly issued and non-assessable;
(b) Accuracy of the Company's Representations and Warranties. The
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representations and warranties of the Company contained herein shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except that representations and warranties
that are made as of a specific date need be true in all material respects only
as of such date);
(c) Performance by the Company. The Company shall have performed,
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satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing;
(d) No Material Adverse Effect. There has been no event which had
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a Material Adverse Effect on the Company which has not been disclosed to the
Purchaser;
(e) No Prohibitions. The purchase of and payment for the shares of
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Common Stock hereunder (i) shall not be prohibited or enjoined (temporarily or
permanently) by any applicable law or governmental regulation and (ii) shall not
subject the Purchaser to any penalty, or in its reasonable judgment, other
onerous condition under or pursuant to any applicable law or governmental
regulation that would materially reduce the benefits to the Purchaser of the
purchase of the shares (provided, however, that such regulation, law or onerous
condition was not in effect in such form at the date of this Agreement);
(f) Company Certificates. The Purchaser shall have received a
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certificate, dated the Closing Date, signed by the Secretary or an Assistant
Secretary of the Company and certifying (i) that attached thereto is a true,
correct and complete copy of (A) the Company's Certificate of Incorporation, as
amended to the date thereof, (B) the Company's By-Laws, as amended to the date
thereof, and (C) resolutions duly adopted by the Board of Directors of the
Company authorizing the execution and delivery of this Agreement, the issuance
and sale of the Shares and (ii) the incumbency of officers executing this
Agreement;
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Section 6.2. Conditions Precedent to Obligations of the Company. The
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obligation of the Company to issue and sell the Shares of Common Stock hereunder
is subject to the satisfaction or waiver by the Company, at or to the Closing,
of each of the following conditions:
(a) Accuracy of the Purchaser's Representations and Warranties.
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The representations and warranties of the Purchasers shall be true and correct
in all material respects as of the date when made and as of the Closing Date as
though made at that time (except that representations and warranties that are
made as of a specific date need be true in all material respects only as of such
date);
(b) Performance by the Purchaser. The Purchaser shall have
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performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by it at or prior to the Closing; and
(c) No Prohibitions. The sale of the Shares of Common Stock
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hereunder (i) shall not be prohibited or enjoined (temporarily or permanently)
by any applicable law or governmental regulation and (ii) shall not subject the
Company to any penalty, or in its reasonable judgment, any other onerous
condition under or pursuant to any applicable law or governmental regulation
that would materially reduce the benefits to the Company of the sale of Shares
to the Purchaser (provided, however, that such regulation, law or onerous
condition was not in effect in such form at the date of this Agreement).
ARTICLE VII
CONDITIONS SUBSEQUENT TO CLOSING
--------------------------------
The Company shall deliver to the Purchaser a certificate of good standing
from the Secretary of State of Texas within seven (7) Business Days from the
Closing Date.
ARTICLE VIII
TERMINATION
-----------
Section 8.1. Termination by Mutual Consent. This Agreement may be
-----------------------------
terminated at any time prior to Closing by the mutual consent of the Company and
the Purchaser.
Section 8.2. Termination by the Company or the Purchaser. This Agreement
-------------------------------------------
may be terminated prior to Closing by either the Company or the Purchaser, by
giving written notice of such termination to the other party, if:
Page 12 of 17
(a) the Closing shall not have occurred by January 14, 2000;
provided that the terminating party is not then in material breach of its
-------- ----
obligations under this Agreement in any manner that shall have caused the
failure referred to in this paragraph (a); or
(b) there shall be in effect any statute, rule, law or regulation
that prohibits the consummation of the Closing or if the consummation of the
Closing would violate any non-appealable final judgment, order, decree, ruling
or injunction of any court of or governmental authority having competent
jurisdiction; or
Section 8.3. Termination by the Company. This Agreement may be terminated
--------------------------
prior to Closing by the Company, by giving written notice of such termination to
the Purchaser, if the Purchaser has materially breached any representation,
warranty, covenant or agreement contained in this Agreement and such breach is
not cured within five (5) Business Days following receipt by the Purchaser of
notice of such breach.
Section 8.4. Termination by the Purchaser. This Agreement may be
----------------------------
terminated prior to Closing by the Purchaser, by giving written notice of such
termination to the Company, if:
(a) the Company has breached any representation, warranty,
covenant or agreement contained in this Agreement and such breach is not cured
within five (5) Business Days following receipt by the Company of notice of such
breach; or
(b) there has occurred an event which could reasonably be
expected to have a Material Adverse Effect and which is not disclosed in this
Agreement; or
ARTICLE IX
LEGAL FEES
----------
In the event any Party commences a legal action to enforce its rights under
this Agreement, the non-prevailing party shall pay all reasonable costs and
expenses (including reasonable attorney's fees, accountant's fees, appraiser's
fees, and investigative fees) incurred in enforcing such rights.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1. Fees and Expenses. Except as set forth above, each party
-----------------
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all stamp and other taxes and duties levied in connection
with the issuance of the Shares pursuant hereto. The Purchaser shall be
responsible for its own tax
Page 13 of 17
liability that may arise as a result of the investment hereunder or the
transactions contemplated by this Agreement. Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company shall pay all costs, expenses, fees and all taxes incident to and in
connection with: (A) all preliminary and final Blue Sky memoranda and all other
agreements, memoranda, correspondence and other documents prepared and delivered
in connection herewith (B) the issuance and delivery of the Shares, (C) the
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states (including, without limitation, the fees and
disbursements of the Purchaser's counsel relating to such registration or
qualification), and (D) the preparation of certificates for the Shares
(including, without limitation, printing and engraving thereof).
Section 10.2. Entire Agreement; Amendments. This Agreement, together with
----------------------------
the Exhibits, Annexes and Schedules hereto, contain the entire understanding of
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters.
This agreement shall be deemed to have been drafted and negotiated by both
parties hereto and no prescriptions as to interpretation, construction or
enforceability shall be made by or against either party in such regard.
Section 10.3. Notices. Any notice or other communication required or
-------
permitted to be given hereunder shall be in writing and shall be deemed to have
been made upon facsimile (with transmission confirmation report) at the number
designated below (if delivered on a Business Day during normal business hours
where such notice is to be received), or the first Business Day following such
delivery (if delivered other than on a Business Day during normal business hours
where such notice is to be received) whichever shall first occur. The addresses
for such communications shall be:
If to the Company: Xxxxxxx Xxxxx, President and Chairman
JetCo Communications Corporation
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: __________________
__________________
__________________
Tel:
Fax:
Page 14 of 17
If to the Purchaser: Xxxxx X. Xxxxx, Xx., President
Wolfpack Corporation
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: Xxxx X. Xxxxxxxxxx
Xxxxxx Gottbetter & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
or such other address as may be designated in writing hereafter, in the same
manner, by such person.
Section 10.4 Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by both the Company and the Purchaser, or, in the case of a waiver,
by the party against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
Section 10.5. Headings. The headings herein are for convenience only, do
--------
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
Section 10.6. Successors and Assigns. This Agreement may not be assigned by
----------------------
any party without the prior written consent of all the parties hereto. This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The assignment by a party of this
Agreement or any rights hereunder shall not affect the obligations of such party
under this Agreement.
Section 10.7. No Third Party Beneficiaries. This Agreement is intended for
----------------------------
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
Section 10.8. Governing Law: Service of Process. This Agreement shall be
---------------------------------
governed by and construed and enforced in accordance with the internal laws of
the State of New York without regard to the principles of conflicts of law
thereof. Any action to enforce the terms of this Agreement or any of its
exhibits shall be exclusively brought in the state and/or federal courts in the
State and County of New York. Service of process in any action by Purchasers to
enforce the terms
Page 15 of 17
of this Agreement may be made by serving a copy of the summons and complaint, in
addition to any other relevant documents, by commercial overnight courier to the
Company at its principal address set forth in this Agreement.
Section 10.9. Survival. The representations and warranties of the Company
--------
and the Purchaser contained in Article III and the agreements and covenants of
-----------
the parties contained in Article IV, the default and remedies contained in
----------
Article V and this Article IX shall survive the Closing (or any earlier
--------- ----------
termination of this Agreement).
Section 10.10. Counterpart Signatures. This Agreement may be executed in
----------------------
two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
Section 10.11. Publicity. The Company and the Purchaser shall consult with
---------
each other in issuing any press releases or otherwise making public statements
with respect to the transactions contemplated hereby and neither party shall
issue any such press release or otherwise make any such public statement without
the prior written consent of the other, which consent shall not be unreasonably
withheld or delayed.
Section 10.12. Severability. In case any one or more of the provisions of
------------
this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
Section 10.13. Remedies. In addition to being entitled to exercise all
--------
rights provided herein or granted by law, including recovery of damages, the
Purchaser will be entitled to specific performance of the obligations of the
Company under this Agreement and the Company will be entitled to specific
performance of the obligations of the Purchaser hereunder with respect to the
subsequent transfer of Shares. Each of the Company and the Purchaser agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of any breach of its obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
Signature Page Follows
Page 16 of 17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first indicated above.
Company:
JETCO COMMUNICATIONS CORPORATION
By: /s/ XXXXXXX XXXXX
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
Purchaser:
WOLFPACK CORPORATION
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
Page 17 of 17
[Schedules omitted]
APPENDIX 1
NOTICE OF EXERCISE
------------------
1. The undersigned hereby elects to exercise the option to purchase
shares of the Common Stock $.001 par value per share of JetCo Communications
Corporation ( the "Company") at $1.00 per share for a total of $___________ and
pursuant to the terms of the Common Stock Purchase Agreement dated January __,
2000 between the Company and Wolfpack Corporation, and tenders herewith payment
of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
3. The undersigned represents it is acquiring the shares solely for
its own account and not with a view toward the resale or distribution thereof
except in compliance with applicable securities laws.
---------------------------
(Signature)
-------------
(Date)
