Stock Purchase Agreement - Emergency Transportation Corp., Tel-Save.com Inc and Jimlew Capital LLC
PURCHASE AGREEMENT REGARDING THE STOCK
OF
EMERGENCY TRANSPORTATION CORPORATION
THIS PURCHASE AGREEMENT REGARDING THE STOCK OF EMERGENCY TRANSPORTATION
CORPORATION (this "Agreement") is entered into as of the 5th day of January,
1999, by and between Tel-Save.com, Inc., a Delaware corporation ("Tel-Save"),
and Jimlew Capital, L.L.C., a Delaware limited liability company ("Jimlew").
Tel-Save and Jimlew may sometimes be referred to herein individually as a
"Party" and collectively as the "Parties."
RECITALS
A. Tel-Save is the owner, of record and beneficially, of all of the
shares of the capital stock (the "ETC Shares") of Emergency
Transportation Corporation ("ETC").
B. Jimlew is the owner, of record and beneficially, of an aggregate of
12,050,000 shares of Common Stock of Tel-Save (the "Tel-Save Shares").
C. Tel-Save desires to sell the ETC Shares to Jimlew, and Jimlew desires
to purchase the ETC Shares from Tel-Save, on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, and other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the Parties hereby agree as follows:
1. Purchase and Sale of the ETC Shares.
1.1 Tel-Save hereby sells, transfers, and assigns the ETC Shares to
Jimlew.
1.2 Concurrently herewith, Tel-Save is delivering to Jimlew stock
certificates evidencing the ETC Shares. Jimlew acknowledges
receipt of such stock certificates.
2. Purchase Price and Payment.
2.1 The aggregate purchase price for the Shares (the "Purchase
Price") is $8,654,000, payable by delivery by Jimlew to Tel-Save
of Tel-Save Common Stock valued as provided in Section 2.2
hereof.
2.2 The value of each of the Tel-Save Shares is hereby determined to
be the greater of the most recent closing price per share of the
Tel-Save Shares on the NASDAQ national market system on the date
1
<PAGE>
of the closing of the transactions contemplated hereby, or the
closing price per share of the Tel-Save Shares on the NASDAQ
national market system on December 31, 1998.
2.3 The closing of the transactions contemplated hereby will occur
not later than January 7, 1999.
3. Representations and Warranties of Tel-Save. Tel-Save hereby represents
and warrants to Jimlew as follows:
3.1 The statements in Recital A are true and correct.
3.2 ETC is a limited liability company duly organized and validly
existing under the laws of the State of Delaware.
3.3 The Shares are not subject to any lien, claim, or encumbrance of
any nature, except for restrictions on transfer imposed by
applicable securities laws.
4. Representations and Warranties of Jimlew. Jimlew hereby represents and
warrants to Tel-Save as follows:
4.1 The statements in Recital B are true and correct.
4.2 The Tel-Save Shares are not subject to any lien, claim, or
encumbrance of any nature, except for restrictions on transfer
imposed by applicable securities laws.
4.3 Jimlew is intimately familiar with ETC, the ETC Shares, and the
financial condition, results of operations, liabilities, risks,
and prospects of ETC. Except for the representations and
warranties set forth in Section 3 hereof, Jimlew is purchasing
the Shares "as is" and without any other representation or
warranty.
4.4 The ETC Shares are being acquired by Jimlew for investment for
his own account, not as an agent or nominee, and not with a view
to the resale or distribution thereof. Jimlew understands that
none of the ETC Shares has been registered or qualified under any
applicable securities laws and that the transfer thereof is
restricted by such laws and that the stock certificates
representing the ETC Shares and being delivered to Jimlew
concurrently herewith bear a legend to that effect.
4.5 Jimlew represents that he is experienced in evaluating and
investing in companies such as ETC and has such knowledge and
experience in financial and business matters
2
<PAGE>
as to be capable of evaluating the merits and risks of such
investment, and that he has the ability to bear the economic
risks of such investment.
5. Management Agreement.
5.1 ETC is a party to those certain Management Agreements dated
January 28, 1997, and August 12, 1997, with Jet Solutions L.L.C.,
a Delaware limited liability company, those certain related
Exhibits A to Management Agreement, those certain related
Addendums to Management Agreement, and those certain related
Sideletter Agreements, all dated January 28, 1997, and August 12,
1997, respectively (collectively, the "Management Agreement").
5.2 Jimlew agrees that neither it nor any entity that succeeds him as
controller of ETC shall permit ETC to modify the Management
Agreement in any fashion that affects Tel-Save without the
express prior written consent of Tel-Save.
5.3 At the discretion of Jimlew, and upon at least 24 hours' advance
notice, Tel-Save shall have the right to charter the aircraft
that is the subject of the Management Agreement at a rate of
$5,000 per hour (as calculated in the Management Agreement) and
on the terms set forth in the Management Agreement.
6. Miscellaneous.
6.1 Representations and Warranties. The representations and
warranties set forth in this Agreement shall survive the closing
of the transactions contemplated hereby.
6.2 Costs and Expenses. Each Party shall pay its or his own costs and
expenses in connection with this Agreement and the transactions
contemplated hereby, including without limitation the costs and
expenses of its or his attorneys, accountants, advisors, finders,
brokers, and other agents and representatives.
6.3 Notices. All notices which are required or permitted to be given
pursuant to the terms of this Agreement shall be in writing and
shall be sufficient in all respects if given in writing and
delivered personally or by telegraph or by registered or
certified mail, postage prepaid, as follows:
If to Tel-Save:
Tel-Save.com, Inc.
6805 Route 202
New Hope, Pennsylvania 18938
3
<PAGE>
Attention: General Counsel
With a copy to:
Arnold & Porter
777 South Figueroa, 44th Floor
Los Angeles, California 90017
Attention: Theodore G. Johnsen
If to Jimlew:
Jimlew Capital
6805 Route 202
New Hope, PA 18938
With a copy to:
Daniel M. Borislow
8234 Horseshoe Bay Road
Boynton Beach, FL 33437
Notice shall be deemed to have been given upon receipt thereof as
to communications that are personally delivered or telegraphed
and five (5) days after deposit of the same in any United States
mail post office box in the state to which the notice is
addressed, or seven (7) days after deposit of same in any such
post office box other than in the state to which the notice is
addressed, postage prepaid, addressed as set forth above. Notice
shall not be deemed given under the preceding sentence unless and
until notice shall be given to all addressees above other than
the sender. The addresses and addressees for the purpose of this
Section may be changed by giving written notice of such change in
the manner provided herein for giving notice. Unless and until
such written notice is given, the addresses and addressees as
stated by prior written notice, or as provided herein if no
written notice of change has been given, shall be deemed to
continue in effect for all purposes hereunder.
6.4 Survival of Representations and Warranties. Notwithstanding any
investigation made by any Party, all representations and
warranties made herein shall survive the execution and delivery
of this Agreement.
6.5 Applicable Law. This Agreement and all documents executed and
delivered in connection herewith and the rights and obligations
of the parties hereto and thereto shall be governed by and
construed in accordance with the laws of the State of New York
other than
4
<PAGE>
and without giving effect to the laws of the State of New York
relating to choice of law.
6.6 Applicable Jurisdiction. The parties hereby agree that any
action, at law or in equity, arising under this Agreement or any
of the other documents executed and delivered in connection
herewith, shall be filed in and only in the state courts of the
State of New York or a United States District Court in the State
of New York. The parties hereby consent and submit to the in
personam jurisdiction of such courts for purposes of litigating
any such action.
6.7 Assignments. This Agreement and the other documents executed and
delivered in connection herewith shall be binding upon and inure
to the benefit of the parties hereto and their respective
personal and legal representatives, heirs, successors, and
assigns; provided, however, that no party hereto may assign or
transfer its or his rights in and to this Agreement or any other
document executed and delivered in connection herewith, without
the prior written consent of the other parties hereto.
6.8 Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement and the other agreements referred to in Section 7
hereof embody the complete agreement and understanding among the
Parties with respect to the subject matter hereof and supersede
and preempt any prior understandings, agreements, or
representations by or among the Parties, written or oral, which
may have related to the subject matter hereof in any way.
6.9 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
this Agreement.
6.10 Counterparts. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of
more than one Party, but all such counterparts taken together
will constitute one and the same Agreement.
6.11 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of
this Agreement.
5
<PAGE>
6.12 Terminology. As used in this Agreement, the masculine, feminine,
or neuter gender, and the singular or plural number, shall be
deemed to include the others whenever the context so indicates or
requires.
6.13 Legal Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of
this Agreement, or because of an alleged dispute, default,
misrepresentation, or breach in connection with any of the
provisions of this Agreement, the successful or prevailing party
or parties shall be entitled to recover reasonably attorneys'
fees, expenses, and other costs incurred in that action or
proceeding in addition to any other relief to which it or he may
be entitled. The right to such attorneys' fees, expenses, and
costs shall be deemed to have accrued upon the commencement of
such action and shall be enforceable whether or not such action
is prosecuted to judgment.
6.14 Broker's or Finder's Fees. Each of the Parties represents to each
of the others that it or he does not have any liability to any
broker or any representative, nor owe any fee or compensation to
any agent, finder, or broker, in connection with the subject
matter of this Agreement, and each of them hereby agrees to
indemnify and hold harmless the other Party against any
liability, damage, cost, or expense (including reasonable
attorneys' fees) incurred by reason of the breach of the
foregoing representation.
6.15 Advice of Counsel. Each Party has carefully reviewed this
Agreement, is familiar with the terms and conditions herein, and
was advised by legal counsel with respect thereto. Each Party
agrees that the terms and conditions set forth herein are fair
and not unconscionable.
6.16 Relationship of the Parties. Nothing in this Agreement shall
create a partnership, joint venture, employment relationship, or
any other relationship between the Parties other than the
relationship of independent contractors.
6.17 Further Cooperation. Each Party covenants and agrees to prepare,
execute, acknowledge, file, record, publish, and deliver to the
other Party such other instruments, documents, and statements
including, without limitation, instruments and documents of
assignment, transfer, and conveyance, and take such other action
as may be reasonably necessary or convenient in the discretion of
the requesting Party to carry out more effectively the purposes
of this Agreement.
6
<PAGE>
6.18 Modifications. This Agreement may not be altered, amended,
changed, waived, terminated, or modified in any manner unless the
same shall be in writing and signed by or on behalf of the Party
to be bound.
TEL-SAVE.COM, INC.
By:
-------------------------------
Its:
-------------------------------
JIMLEW CAPITAL
By:
-------------------------------
Its:
-------------------------------
7