Stock Purchase Agreement - Birch Telecom Inc., Dunn & Associates Inc. d/b/a Boulevard Phone Co. and Patricia A. Dunn
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made as of May 21, 1998, among BIRCH
TELECOM, INC., a Delaware corporation ("Buyer"), DUNN & ASSOCIATES, INC., a
Kansas corporation d/b/a Boulevard Phone Co. (the "Company"), and PATRICIA A.
DUNN ("Seller").
Seller owns all of the issued and outstanding shares of capital stock
of the Company (the "Shares"). Seller desires to sell, and Buyer desires to
purchase, the Shares for the consideration and on the terms set forth in this
Agreement.
The parties, intending to be legally bound, agree as follows:
1. SALE AND TRANSFER OF SHARES.
1.1 SHARES. Subject to the terms and conditions of this Agreement,
Seller hereby sells the Shares to Buyer, and Buyer hereby purchases the Shares
from Seller.
1.2 PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Shares shall be $300,000 in good funds payable contemporaneously with the
execution of this Agreement.
1.3 DELIVERIES. Contemporaneously with the execution of this
Agreement:
(iii) Seller shall deliver to Buyer: certificates representing
the Shares, duly endorsed (or accompanied by duly executed stock
powers), for transfer to Buyer; a release in the form of EXHIBIT
1.3(a)(ii) executed by Seller; a noncompetition agreement in the form
of EXHIBIT 1.3(a)(iii), executed by Seller; and (iv) Seller's
resignation as an officer and director of the Company.
(ii) Buyer shall deliver to Seller: the Purchase Price; a
stock option agreement in the form of EXHIBIT 1.3(b)(ii), executed by
Buyer; and (iii) the payment specified in Section 3.6.
2. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Buyer as follows:
2.1 ORGANIZATION AND GOOD STANDING. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Kansas, with full corporate power and authority to conduct its business as it is
now being conducted, to own or use the properties and assets that it purports to
own or use, and to conduct its business and operations as presently conducted by
it. The Company is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each state or other jurisdiction in which
either the ownership or use of the properties owned or used by it, or the nature
of the activities conducted by it, requires such qualification. Seller has
delivered to Buyer copies of the Articles of Incorporation and Bylaws of the
Company, as currently in effect (the "Organizational
<PAGE> 2
Documents").
2.2 AUTHORITY. Seller and the Company have full power and authority
to execute and deliver this Agreement and all other agreements, instruments and
certificates contemplated to be executed and delivered by any of them hereby and
thereby (collectively, the "Seller Related Agreements") and to carry out and
perform all of their obligations under the terms of this Agreement and the
Seller Related Agreements. All corporate action by the Company necessary for the
authorization, execution, delivery and performance by the Company of this
Agreement and the Seller Related Agreements has been taken. This Agreement has
been duly executed and delivered by Seller and the Company and this Agreement
and the Seller Related Agreements constitute or will, when executed and
delivered, constitute the valid and legally binding obligations of Seller and
the Company, enforceable against them in accordance with their respective terms.
2.3 NO CONFLICT. Neither the execution and delivery of this Agreement
and the Seller Related Agreements nor the consummation or performance of any of
the transactions contemplated thereby (the "Contemplated Transactions") will,
directly or indirectly (with or without notice or lapse of time): (i) violate in
any material respect any provision of law, rule or regulation to which the
Company is subject, (ii) conflict with or violate in any material respect the
Organizational Documents or any order, judgment, injunction, award, or decree
applicable to the Company, (iii) conflict with, result in a breach or
termination of, or constitute a default under, any written or oral contract,
agreement, arrangement, permit, license, qualification, franchise, or commitment
of any kind to which the Company is a party, by which it may be bound or under
which it is entitled to any rights or benefits, or (iv) result in the creation
or imposition of any lien, charge, tax, or encumbrance upon the Company or any
of its assets or properties.
2.4 CAPITALIZATION. The authorized securities of the Company consist
solely of 30,000 shares of common stock, par value $0.01 per share, of which
only 1,000 shares are issued and outstanding and constitute the Shares. Seller
is the record and beneficial owner and holder of all of the Shares, free and
clear of all liens, pledges, encumbrances, charges, assessments, or claims of
any kind whatsoever (collectively, "Encumbrances"). No legend or other reference
to any purported Encumbrance appears upon any certificate representing the
Shares. The Shares have been duly authorized and validly issued and are fully
paid and nonassessable. There are no agreements relating to the issuance, sale,
or transfer of any securities of the Company. None of the outstanding securities
of the Company was issued in violation of law. The Company does not own, and is
not obligated to acquire, any direct or indirect ownership interest in any other
business.
2.5 FINANCIAL STATEMENTS. Seller has delivered to Buyer the balance
sheet and income statements of the Company for each of the years in the
three-year period ending December 31, 1997, and the balance sheet and income
statement of the Company for the three months ending March 31, 1998 (the
"Financial Statements"), which fairly present the financial condition and the
results of operations, changes in stockholders' equity, and cash flow of the
Company as at the respective dates of and for the periods referred to, all in
accordance with GAAP. The Financial Statements reflect the consistent
application of such accounting principles
<PAGE> 3
throughout the periods involved.
2.6 TITLE TO PROPERTIES; ENCUMBRANCES. SCHEDULE 2.6 contains a
complete and accurate list of all leaseholds or other interests in real estate
owned or utilized by the Company. The Company owns all of the properties and
assets (whether real, personal, or mixed and whether tangible or intangible)
that it purports to own, including all of the properties and assets reflected in
the Financial Statements, free and clear of all Encumbrances, except for those
disclosed in the Financial Statements and any liens for current Taxes not yet
due and payable. The Company owns or leases all assets necessary to conduct its
business as now conducted.
2.7 ACCOUNTS RECEIVABLE. All accounts receivable of the Company that
are reflected on the Financial Statements or on the accounting records of the
Company as of the date hereof (collectively, the "Accounts Receivable")
represent valid obligations arising from sales actually made or services
actually performed in the ordinary course of business. There is no contest,
claim, or right of set-off with any obligor of an Accounts Receivable relating
to the amount or validity of such Accounts Receivable. SCHEDULE 2.7 contains a
complete and accurate list of all Accounts Receivable as of May 19, 1998, which
list sets forth the aging of such Accounts Receivable.
2.8 NO UNDISCLOSED LIABILITIES. The Company has no liabilities or
obligations of any nature (whether known or unknown and whether absolute,
accrued, contingent, or otherwise) except for liabilities or obligations
reflected or reserved against in the Financial Statements and current
liabilities incurred in the ordinary course of business since the date thereof.
2.9 TAXES.
(a) For purposes of this Agreement, the term " Tax" means
any federal, state, local, or foreign income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Section
59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property,
personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated or other tax of any kind
whatsoever, in effect on or at any time prior to the date hereof,
including any interest, penalty, or addition thereto, whether disputed
or not, other than taxes arising or imposed as a result of or in
respect of the transactions contemplated by this Agreement; and the
term " Tax Returns" means any return, declaration, report, claim for
refund, information return or other statement or filing related to or
required in connection with Taxes, including any schedule or attachment
thereto and any amendment thereof.
(b) The Company has timely filed all Tax Returns required to
be filed by it. All such Tax Returns are true, correct and complete and
present fairly and accurately the information required to be shown
therein. The Company has timely paid all taxes payable by it (whether
or not shown on any Tax Return). There are no liens, claims, or
<PAGE> 4
encumbrances on or against any of the assets or property of the Company
that arose in connection with or by reason of any failure or alleged
failure of the Company to pay any Tax. The Company has withheld and
paid all Taxes required to have been withheld and paid in connection
with amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party. No officer (or employee
responsible for Tax matters) of the Company expects any authority to
assess or assert any additional Taxes for any period for which Tax
Returns have been filed by the Company. There is no dispute or claim
concerning any Taxes of the Company either (i) claimed or raised by any
taxing or other authority or (ii) as to which any of the officers (or
employees responsible for Tax matters) of the Company has knowledge.
The Company has not waived any statute of limitations in respect of
Taxes or Tax Returns or agreed to any extension of time with respect to
an assessment or deficiency of Taxes. The consummation of the
transactions contemplated by this Agreement shall not cause the Company
to recognize income by reason of any deferred gains or excess loss
accounts. The Company has provided Buyer with true and correct copies
of the 1997 federal and Kansas corporate income tax returns for the
Company, as amended as of the date of this Agreement. As of December
31, 1997, the Company is entitled to tax refunds of at least $5,269.
2.10 NO MATERIAL ADVERSE CHANGE. Since January 1, 1998, up to and
including the date of this Agreement, the Company has caused its business to be
operated in the ordinary course of business. The Company has not, except in the
ordinary course of business, sold, transferred, mortgaged, pledged or subjected
to any lien, charge or encumbrance or any of the other material assets or
properties of the Company. In addition, except as reflected in the Financial
Statements, there has not been:
(a) any change or any development which has or is likely to
result in a material adverse change in the business, properties,
assets, financial condition, prospects or results of operations of the
Company;
(b) any change in accounting methods, principles or practices
by the Company affecting its assets, liabilities or business;
(c) any writing off or determination to write off as
uncollectible any material amounts of notes or accounts receivable;
(d) any material damage, destruction or loss by the Company,
whether covered by insurance or not;
(e) any declaration, setting aside or payment of dividends or
distributions in respect of the Shares or any redemption of any of the
securities of the Company;
(f) any cancellation or waiver of a right materially related
to the operation of the business of the Company or any modification or
amendment of any commitment or the incurrence of any material debt or
obligation other than in the ordinary course of
<PAGE> 5
business;
(g) any issuance by the Company of, or commitment of the
Company to issue, any shares of its capital stock or securities
convertible into or exchangeable for shares of its capital stock;
(h) any increase in salaries, bonuses or other benefits
payable to employees or independent contractors, including the increase
of, or an entry into, severance or termination arrangements by the
Company;
(i) any guarantee of any material debt or obligation of others
by the Company;
(j) any transaction, commitment, dispute or other event or
condition of any character (whether or not in the ordinary course of
business) individually or in the aggregate having or which in the
future is likely to have a material adverse effect on the Company; or
(k) any agreement (other than the transactions contemplated by
this Agreement) to do any of the foregoing.
2.11 EMPLOYEE BENEFITS. SCHEDULE 2.11 contains a true and complete
list of each employee benefit plan, program, arrangement or contract, including
pension, profit sharing, stock bonus, deferred compensation, incentive
compensation, stock option, stock purchase, supplemental retirement, severance
or termination pay, salary continuation, supplemental unemployment benefits,
hospitalization, medical, dental, disability, life insurance, vacation and other
plans, programs, arrangements, or contracts, maintained, contributed to, or
required to be contributed to, by the Company ("Benefit Plans"). None of the
Benefit Plans is a "multi-employer plan" within the meaning of Section 3(37) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The
Company has not (i) contributed to a multi-employer pension plan; or (ii)
incurred any liability under Title IV of ERISA to the Pension Benefit Guaranty
Corporation or to a multi-employer pension plan. All Benefit Plans have been
operated substantially in compliance with ERISA and all other applicable laws,
and all material reports have been filed with respect to the Benefit Plans in
accordance with ERISA, the Code, and other applicable laws.
2.12 COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS.
For purposes of this Agreement, the term " Law" shall mean any federal, state or
local law, statute, ordinance, legal requirement, rule, regulation, order, writ,
injunction or decree. To the Company's knowledge, the business of the Company is
operated in compliance with all applicable Laws, except for such breaches or
violations of Laws which individually or in the aggregate would not have a
material adverse effect on the business, operations, or financial condition of
the Company. All material licenses, approvals, authorizations, certificates and
<PAGE> 6
permits necessary for the legal conduct of the business of the Company have been
secured, are valid and in full force and effect, and no suspension or
cancellation of any of them is threatened. All reports, documents or notices
required to be filed, maintained or furnished with or to all governmental and
regulatory authorities by the Company have been so filed, maintained or
furnished, and the Company has not received any written notice from any
governmental or regulatory authority as to any infringement of, or
non-compliance with, any Laws. As of the date of this Agreement, to the
knowledge of the Company, no investigations by any governmental entity with
respect to the Company is pending or threatened.
2.13 LITIGATION. There are no claims, actions, suits, proceedings or
governmental investigations (collectively, " Actions") pending or, to the
Company's knowledge, threatened against the Company, nor is there to the
Company's knowledge any basis for such an Action. Neither Company nor any of its
properties or assets is subject to any order, judgment, writ, injunction or
decree.
2.14 CONTRACTS; NO DEFAULTS. SCHEDULE 2.14 contains a listing of every
(i) contract, agreement or other legally binding oral or written commitment of
the Company in existence on the date hereof that requires aggregate payments to
or from the Company of $20,000 or more, (ii) employment contract, contract for
personal services, or contract with an independent contractor; and (iii)
promissory note, loan or credit contract, or instrument or document related to
security for debt, including any security agreement, mortgage or pledge. All
items listed on SCHEDULE 2.14 are in full force with no material default
thereunder by the Company, and no facts or conditions exist which, if continued,
would result in a material default thereunder by the Company or, to the
Company's knowledge, the other party or parties. Except as otherwise described
on SCHEDULE 2.14, no item listed on that Schedule terminates, is terminable or
may be accelerated as a result of the Contemplated Transactions, the
Contemplated Transactions will not make the Company liable for any payments to
another person, and the contracts and other items listed on SCHEDULE 2.14
continue in effect after the date of this Agreement without the consent,
approval or act of any third party. Neither Seller nor the Company is a party to
any agreement containing non-competition provisions that would limit the
Seller's or the Company's ability after the date of this Agreement to engage in
business in any area or to compete against any person or entity.
2.15 INSURANCE. Each of the material insurance policies of the
Company is in full force and effect and is in a commercially reasonable amount,
and will continue in effect after the consummation of the Contemplated
Transactions without the consent, approval or act of any third party. The
Company has not received written notice since January 1, 1998, of any increase
in premiums or reduction in coverage from any insurer.
2.16 ENVIRONMENTAL MATTERS. The Company has not handled or disposed
of any hazardous or toxic substances, materials, or wastes as defined by any Law
("Hazardous Materials"). To the Company's knowledge, none of the properties
currently or formerly owned, leased or used by the Company (including soils and
surface, ground waters, and buildings) is contaminated with any Hazardous
Materials. There are no past, pending or, to the Company's
<PAGE> 7
knowledge, threatened environmental claims or circumstances that could
reasonably be anticipated to form the basis thereof against the Company. The
Company has delivered to Buyer true and correct copies and results of any
reports, studies, analyses, tests, or monitoring possessed or initiated by the
Company pertaining to any environmental Laws or Hazardous Materials in, on, or
under any of the properties currently or formerly owned, leased or used by the
Company. To the Company's knowledge, there are not now and never have been any
underground storage tanks located on any properties currently or formerly owned
or leased by the Company.
2.17 LABOR RELATIONS The Company is not a party to any collective
bargaining agreement and there are no collective bargaining agreements which
pertain to employees of the Company. The Company is not a contractor or
subcontractor with the government of the United States or any state such that it
has an obligation to maintain any affirmative action plans.
2.18 INTEREST IN SUPPLIERS AND COMPETITORS. Neither the Company nor
any officer or director of the Company, or any spouse or child of any of them,
has any direct or indirect material interest in any competitor of the Company or
in any person from whom or to whom the Company leases any real or personal
property, or in any person with whom the Company is currently doing any material
amount of business.
2.19 DISCLOSURE. No representation or warranty of Seller in this
Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
There is no fact known to Seller that has specific application to either Seller
or the Company (other than general economic or industry conditions) and that
materially adversely affects the assets, business, prospects, financial
condition, or results of operations of the Company that has not been set forth
in this Agreement or otherwise disclosed to Buyer.
2.20 EMPLOYEE STATUS. Contemporaneously with the execution of this
Agreement, Buyer is employing Seller as provided in Section 3.7. Seller
acknowledges that she will be an employee at will and that this Agreement shall
not entitle her to any specified term of employment.
2.21 BROKERS OR FINDERS. Seller, her agents, and the Company have
incurred no obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this Agreement.
3. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF BUYER. Buyer represents and
warrants to Seller and covenants, as applicable, as follows:
3.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware.
3.2 AUTHORITY. Buyer has full power and authority to execute and
deliver this Agreement and all other agreements, instruments and certificates
contemplated to be executed
<PAGE> 8
and delivered by it hereby and thereby (collectively, the "Buyer Related
Agreements") and to carry out and perform all of their obligations under the
terms of this Agreement and the Buyer Related Agreements. All corporate action
by Buyer necessary for the authorization, execution, delivery and performance by
Buyer of this Agreement and the Buyer Related Agreements has been taken. This
Agreement has been duly executed and delivered by Buyer and this Agreement and
the Buyer Related Agreements constitute or will, when executed and delivered,
constitute the valid and legally binding obligations of Buyer, enforceable
against it in accordance with their respective terms.
3.3 NO CONFLICT. Neither the execution and delivery of this Agreement
and the Buyer Related Agreements nor the consummation or performance of the
Contemplated Transactions will, directly or indirectly (with or without notice
or lapse of time), give any person the right to prevent, delay, or otherwise
interfere with any of the Contemplated Transactions pursuant to: (i) any
provision of law, rule or regulation to which Buyer is subject, (ii) the
Articles of Incorporation or Bylaws of Buyer or any order, judgment, injunction,
award, or decree applicable to Buyer, or (iii) any written or oral contract,
agreement, arrangement, permit, license, qualification, franchise, or commitment
of any kind to which Buyer is a party, by which it may be bound or under which
it is entitled to any rights or benefits.
3.4 BROKERS OR FINDERS. Buyer and its officers and agents have
incurred no obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this Agreement.
3.5 COMPANY EQUIPMENT. Buyer acknowledges that all equipment owned or
leased by the Company may need to be repaired or replaced, and that Buyer takes
such equipment "as is, where is, and with all faults."
3.6 REPAYMENT OF DEBT. Buyer acknowledges that the Company is
indebted to Seller pursuant to certain promissory notes in the aggregate amount
of $34,501, which amount will be repaid by the Company contemporaneously with
the execution of this Agreement.
3.7 EMPLOYMENT OF SELLER. Contemporaneously with the execution of
this Agreement, Buyer will hire Seller as Vice President of Shared Tenant
Services. Seller's base salary during the first twelve months of employment will
be $51,768, and thereafter would be $81,000 per year. In addition, (a) Seller
will be eligible to earn a discretionary bonus not to exceed $25,000 per year as
determined by the President of Buyer, and (b) Seller will be entitled to
participate in standard employee benefit plans provided to other similarly
situated employees of Buyer.
4. INDEMNIFICATION; REMEDIES.
4.1 SURVIVAL. All representations, warranties, covenants, and
obligations in this Agreement and any other certificate or document delivered
pursuant to this Agreement will
<PAGE> 9
survive the execution and delivery of this Agreement and the consummation of the
Contemplated Transactions, without regard to any investigation conducted with
respect to, or any knowledge acquired (or capable of being acquired) at any
time, with respect to the accuracy or inaccuracy thereof or compliance
therewith.
4.2 INDEMNIFICATION BY SELLER. Seller will indemnify and hold
harmless Buyer, the Company, and their respective representatives, stockholders,
controlling persons, and affiliates (collectively, the "Indemnified Persons")
for, and will pay to the Indemnified Persons the amount of, any loss, liability,
claim, damage (including incidental and consequential damages), expense
(including costs of investigation and defense and reasonable attorneys' fees) or
diminution of value, whether or not involving a third-party claim (collectively,
"Damages"), arising, directly or indirectly, from or in connection with: (a) any
breach of any representation or warranty made by Seller in this Agreement or any
other certificate or document delivered by Seller pursuant to this Agreement;
and (b) any breach by Seller of any covenant or obligation of Seller in this
Agreement. The remedies provided in this Section will not be exclusive of or
limit any other remedies that may be available to Buyer or the other Indemnified
Persons.
4.3 INDEMNIFICATION BY BUYER. Buyer will indemnify and hold harmless
Seller, and will pay to Seller the amount of any Damages arising, directly or
indirectly, from or in connection with any breach of any representation or
warranty made by Buyer in this Agreement, any breach by Buyer of any covenant or
obligation of Buyer in this Agreement. The remedies provided in this Section
will not be exclusive of or limit any other remedies that may be available to
Seller.
5. GENERAL PROVISIONS.
5.1 EXPENSES. Except as otherwise expressly provided in this
Agreement, each party to this Agreement will bear its respective expenses
incurred in connection with the preparation, execution, and performance of this
Agreement and the Contemplated Transactions, including all fees and expenses of
agents, representatives, counsel, and accountants in connection with this
Agreement and the Contemplated Transactions. Seller will cause the Company not
to incur any out-of-pocket expenses in connection with this Agreement.
5.2 PUBLIC ANNOUNCEMENTS. Any public announcement or similar
publicity with respect to this Agreement or the Contemplated Transactions will
be issued, if at all, at such time and in such manner as Buyer determines.
5.3 FURTHER ASSURANCES. The parties agree to furnish upon request to
each other such further information, to execute and deliver to each other such
other documents, and to do such other acts and things, all as the other party
may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
5.4 WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power,
<PAGE> 10
or privilege under this Agreement or the documents referred to in this Agreement
will operate as a waiver of such right, power, or privilege, and no single or
partial exercise of any such right, power, or privilege will preclude any other
or further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by applicable
law, no claim or right arising out of this Agreement or the documents referred
to in this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the
other party.
5.5 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter
(including the Letter of Intent between Buyer and Seller) and constitutes (along
with the documents referred to in this Agreement) a complete and exclusive
statement of the terms of the agreement between the parties with respect to its
subject matter. This Agreement may not be amended except by a written agreement
executed by the party to be charged with the amendment.
5.6 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. Neither party
may assign any of its rights under this Agreement without the prior consent of
the other parties, except that Buyer may assign any of its rights under this
Agreement to any subsidiary of Buyer. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any person
other than the parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement.
5.7 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
5.8 SECTION HEADINGS, CONSTRUCTION. The headings of sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding section or sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
5.9 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Kansas without regard to conflicts of laws principles.
5.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as
<PAGE> 11
of the date first written above.
BIRCH TELECOM, INC.
By: /s/Gregory C. Lawhon
Gregory C. Lawhon, Senior Vice President
DUNN & ASSOCIATES, INC.
By: /s/Patricia A. Dunn
Patricia A. Dunn, an individual Patricia A. Dunn, President
<PAGE> 12
SCHEDULE 2.6
PROPERTIES
Lease between the Company and F.P. Office, Inc. for the Company's office space,
providing for monthly rent of $1,400 and expiring on September 30, 1998.
SCHEDULE 2.7
ACCOUNTS RECEIVABLE
See Attached List of Accounts Receivable.
SCHEDULE 2.11
EMPLOYEE BENEFIT PLANS
None.
SCHEDULE 2.14
CONTRACTS
1. See Lease described on Schedule 2.6.
2. Bulk Service Agreement between the Company and Frontier Communications,
providing for a gross retail obligation of $6,000 per month and expiring on
December 31, 1998.
<PAGE> 13
EXHIBIT 1.3(a)(ii)
RELEASE
This Release is being executed and delivered in accordance with Section
1.3(a)(ii) of the Stock Purchase Agreement dated May 21, 1998 (the "Agreement"),
among Birch Telecom, Inc., a Delaware corporation ("Buyer"), Dunn & Associates,
Inc., a Kansas corporation (the "Company"), and Patricia A. Dunn ("Seller").
Capitalized terms used in this Release without definition have the respective
meanings given to them in the Agreement.
Seller acknowledges that execution and delivery of this Release is a
condition to Buyer's obligation to purchase the Shares pursuant to the Agreement
and that Buyer is relying on this Release in consummating such purchase.
Seller, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged and intending to be legally bound, in order to
induce Buyer to purchase the Shares pursuant to the Agreement, hereby agrees as
follows:
Seller hereby releases and forever discharges Buyer, the Company and
each of their respective individual, joint, or mutual, past, present, and future
directors, officers, employees, agents, affiliates, stockholders, controlling
persons, subsidiaries, successors, and assigns (individually, a "Releasee" and
collectively, "Releasees") from any and all claims, demands, proceedings, causes
of action, orders, obligations, contracts, agreements, debts, and liabilities
whatsoever, whether known or unknown, suspected or unsuspected, both at law and
in equity, which Seller now has, have ever had, or may hereafter have against
the respective Releasees arising contemporaneously with or prior to the date
hereof or on account of or arising out of any matter, cause, or event occurring
contemporaneously with or prior to the date hereof, including, but not limited
to, any rights to indemnification or reimbursement from the Company, whether
pursuant to their respective Organizational Documents, contract, or otherwise
and whether or not relating to claims pending on, or asserted after, the date
hereof; provided, however, that nothing contained herein shall operate to
release any obligations of Buyer arising under the Agreement.
Seller hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting, or
causing to be commenced, any proceeding of any kind against any Releasee, based
upon any matter purported to be released hereby.
Without in any way limiting any of the rights and remedies otherwise
available to any Releasee, Seller shall indemnify and hold harmless each
Releasee from and against all loss, liability, claim, damage (including
incidental and consequential damages), or expense (including costs of
investigation and defense and reasonable attorney's fees) whether or not
involving third party claims, arising directly or indirectly from or in
connection with (i) the assertion by or on behalf of Seller of any claim or
other matter purported to be released pursuant to this Release and
<PAGE> 14
EXHIBIT 1.3(a)(ii)
(ii) the assertion by any third party of any claim or demand against any
Releasee which claim or demand arises directly or indirectly from, or in
connection with, any assertion by or on behalf of Seller against such third
party of any claims or other matters purported to be released pursuant to this
Release.
If any provision of this Release is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Release will
remain in full force and effect. Any provision of this Release held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
This Release may not be changed except in a writing signed by the
person(s) against whose interest such change shall operate. This Release shall
be governed by and construed under the laws of the State of Kansas without
regard to principles of conflicts of law.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered
this Release as of this ___ day of May, 1998.
Patricia A. Dunn