SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 8-K
CURRENT REPORT
Pursuant to Section 10 or 15(d) of the
Securities Exchange Act of 1934
MAY 8, 1997
------------------------------------------------
Date of Report (date of earliest event reported)
INTELICOM CORPORATION
(Formerly Three-L Enterprises, Inc.)
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE 33-853963 72-1265159
- --------------- ----------- -------------------
(State or Other (Commission (IRS Employer Iden-
Jurisdiction of File Number) tification Number)
Incorporation)
28050 U.S. HIGHWAY 19 NORTH
CLEARWATER, FLORIDA 34621
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(Address of Principal Executive Offices
Including Zip Code)
(813) 797-9000
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(Registrant's telephone number,
including area code)
Page 1 of 57.
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Item 1. Changes in Control of Registrant
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See Item 2 of this Report.
Item 2. Acquisition or Disposition of Assets
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Subsequent to fiscal year end, David A. Kanstoroom
("Kanstoroom") and David Spezza ("Spezza") officers and directors
of the Registrant (collectively referred to as the "Selling
Shareholders") entered into a Stock Purchase Agreement with
IntraTel Acquisition Company, Inc. ("IntraTel") pursuant to which
each of the Selling Shareholders agreed to sell 182,847 shares of
the Company's Common Stock to IntraTel in consideration of a
total of $1,200,000 in cash and secured promissory notes and
certain other Contingent Consideration. For purposes of the
Stock Purchase Agreement, Contingent Consideration provides that
Kanstoroom and Spezza together will be entitled to $750,000 if,
within the first 12 months of the close of any future public
equity offering, the Company has, in any one month period, direct
customer billings of $250,000; or within 24 months of the close
of any future public equity offering, they will be entitled to
$1,000,000 less any prior contingency payments if one month's
direct customer billings equals $500,000; or $1,250,000 less any
prior contingency payments if one month's direct customer
billings equals $750,000.
IntraTel paid $100,000 in cash to the Selling Shareholders
and delivered two promissory notes, each in the amount of
$550,000, payable June 30, 1997. The notes are secured by a
security interest in, and first priority lien on, IntraTel's
cash, accounts receivable, inventory, equipment, furniture and
fixtures, books and records, including computer programs,
tangible and intangible property.
IntraTel and the Selling Shareholders also entered into a
Pledge Agreement which granted the Selling Shareholders a
security interest and lien on the 365,694 shares of the Company's
Common Stock sold to IntraTel. IntraTel also granted the Selling
Shareholders an irrevocable proxy to vote the shares of the
Company's Common Stock in their sole and absolute discretion
until the remaining payment of $1,100,000 required by the Stock
Purchase Agreement has been made.
To facilitate the merger discussed below, Telecom Venture &
Acquisition Corp., a principal shareholder, for no consideration,
executed a letter of intent dated January 23, 1997 to return to
the Company's treasury 182,847 shares of the Company's Common
Stock.
Simultaneously with the execution of the Stock Pledge
Agreement and related documents between IntraTel and the Selling
Shareholders, IntraTel and the Company entered into an Agreement
of Merger (the "Merger Agreement") effective April 1, 1997,
providing for the merger of IntraTel with and into the
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Company, and the eventual change of the Company's name to
IntraTel Group, Ltd. The Merger Agreement provides that the
issued and outstanding shares of the Company as of the effective
date of the merger will not be affected, and the current
shareholders of IntraTel will surrender their shares of IntraTel
(a total of 2,000 shares) in exchange for 1,631,626 shares of the
Company less that number of shares which are required to satisfy
IntraTel's obligations to issue equity to certain investors of
IntraTel. The Merger Agreement was unanimously approved by the
Company's shareholders and the Certificate of Merger was filed
with the Delaware Secretary of State's office on April 1, 1997.
In the event IntraTel or the Company defaults under or breaches
any representation, warranty or covenant of the Merger Agreement,
the non-defaulting party is entitled to obtain from the
defaulting party costs and expenses, including reasonable
attorney's fees, incurred in enforcing its rights under the
Merger Agreement.
IntraTel entered into an employment agreements with
Kanstoroom and Spezza, which will become effective May 1, 1997.
The employment agreements, which are identical, have a term of
five years, provide for an annual salary of $100,000 ("Base
Salary"), with bonuses and salary increases in the discretion of
the Board of Directors. Each is to receive benefits provided to
other executives and employees of the Company, such as medical,
dental and disability insurance coverage, and in addition
thereto, a life insurance policy in the face amount of $1
million, payable to beneficiaries other than IntraTel. If
employment is terminated for any reason after May 1, 1997,
IntraTel is to provide each of Kanstoroom and Spezza with medical
and health benefits similar to that provided to other executives
of IntraTel for two years after termination of employment.
In the event of a merger or combination in which IntraTel is
not a surviving corporation, or the sale of all or substantially
all of the assets of IntraTel, Kanstoroom and Spezza have the
right to exercise any outstanding stock options, in whole or in
part, or the right to elect to have his stock options replaced
with new stock options of the successor or acquiring company at
the same exchange ratio as that used for the exchange of shares
held by shareholders of IntraTel, with such new options having
exercise rights and entitlements at least equivalent to those
available under the stock options with IntraTel. In the event of
any merger or combination in which IntraTel is not the survivor,
or the sale of substantially all of the assets of IntraTel, each
shall be entitled to receive new additional stock options for the
purchase of that number of such other corporation's shares which,
when multiplied by one times the book value per share of such
other corporation's shares immediately after the merger,
combination or sale, shall be equal to $2 million, the purchase
price per share upon exercise of such options shall be equal to
the book value per share of such other corporation's shares
immediately after the merger, combination or sale, and the other
terms and conditions of such option shall be reasonably
equivalent to those stock options for the purchase of the shares
held by Kanstoroom and Spezza on July 1,1997. If Kanstoroom and
Spezza's employment is terminated during the
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term of the employment agreement for death, disability or by
Kanstoroom or Spezza as provided for in the agreement, in
addition to the rights and options discussed above, each may
elect to exercise all options he then holds for the purchase of
shares, including options acquired pursuant to the provisions
discussed above or he may elect to require IntraTel to purchase
from him all or part of the shares then held by Kanstoroom or
Spezza, including shares received and shares to which he has
become entitled to receive through options at a price per share
equal to the greater of the book value or the market
capitalization of IntraTel determined on the last day of the last
month proceeding the termination event, divided by the number of
IntraTel shares then issued and outstanding.
Following any acquisition, merger or combination in which
IntraTel is not a surviving corporation or is thereafter
controlled by another corporation, or the sale of all or
substantially all of the assets of IntraTel, if Kanstoroom's or
Spezza's employment is terminated for any reason, and if
Kanstoroom or Spezza elects within sixty (60) days thereafter,
then IntraTel or its successor or acquiror shall purchase all of
Kanstoroom's or Spezza's shares in such entity, including all
shares for which he then has an option to purchase, at a price
per share equal to the greater of the market capitalization or
book value of IntraTel, divided by the number of IntraTel's
shares then issued and outstanding.
Kanstoroom's or Spezza's employment may be terminated
without breach of the employment agreement in the event of the
death, disability, or by the employee for "Good Reason" or if his
health becomes so impaired that his continued performance of his
duties would be hazardous to his physical or mental health or his
life, with such position supported by the written statement of a
qualified physician. For purposes of the agreement, "Good
Reason" means (i) a change in control of IntraTel (as defined);
or (ii) a failure by IntraTel to comply with any material
provision of the employment agreement which has not been cured
within twenty (20) days after notice of noncompliance provided to
IntraTel.
If Kanstoroom's or Spezza's employment is terminated either
by death or disability, each is to receive his Base Salary,
reduced in the case of termination due to disability by amounts
paid under a disability insurance policy, until the expiration of
the Severance Compensation Period. If IntraTel terminates the
employment for any reason other than death or disability, or if
Kanstoroom or Spezza terminates his employment for Good Reason or
impaired health then IntraTel shall pay the employee an amount
equal to the monthly salary payable to the employee pursuant to
his Base Salary multiplied by the number of months in the
Severance Compensation Period, with such payment to be made (i)
if resulting from a termination based on a change of control of
IntraTel, in one lump sum on or before the tenth day following
the date of termination, or (ii) if resulting from any other
cause, in substantially equal monthly installments continuing
until the expiration of the Severance Compensation Period. If
Kanstoroom or Spezza terminates his employment for any reason
other than
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pursuant to Good Reason or impaired health, then IntraTel is not
obligated to pay any amount of Base Salary for periods subsequent
to termination. The "Severance Compensation Period" is the greater
of (i) the remaining period of time, if any, in the initial five
(5) year term of the employment agreements or (ii) an initial
period of twenty-four (24) months which shall, on each anniversary
of the effective date of the employment agreement on which
Kanstoroom or Spezza is an employee of IntraTel, be increased by
two (2) additional months.
The employment agreements provide that neither Kanstoroom
nor Spezza will not, without the consent of IntraTel, acquire a
financial interest in any outside business which competes with
IntraTel, or which would give rise to a material interference
with Kanstoroom's or Spezza's allegiance to IntraTel or with the
employee's devotion of full time to IntraTel. In the event of
breach of this provision, or act or acts constituting proven
malfeasance involving dishonesty by Kanstoroom or Spezza which
has a material adverse impact upon IntraTel, IntraTel will be
relieved of its obligation to pay to Kanstoroom and Spezza any
amount of Base Salary for periods subsequent to the date of
termination.
The employment agreements also contain confidentiality and
trade secret provisions, and two year non-competition and
non-solicitation provisions.
By letter amendment to the Stock Purchase Agreement dated
March 12, 1997 between Kanstoroom, Spezza and IntraTel, the
parties agreed that:
(1) Notwithstanding any termination of Kanstoroom's
and/or Spezza's employment with Intelicom, each of them
will, in any and all events, be retained by Intelicom as
unpaid consultants in order to ensure their eligibility to
receive the Contingent Consideration (described above)
provided for in Section I.A.3 of the Stock Purchase
Agreement;
(2) Kanstoroom and Spezza shall each receive, with
respect to their shares of stock of Intelicom and any stock
options, warrants or other rights that they may receive in
connection with their employment with Intelicom, such
registration rights and other rights and benefits as the
other senior executives on a PRO RATA and PARI PASSU basis.
In addition, in no event shall Kanstoroom's and/or Spezza's
Intelicom stock be subject to lockup or other restrictions
or any greater duration or upon more disadvantageous terms
than are applicable to other stockholders of Intelicom; and
(3) IntraTel issued to each of Kanstoroom and Spezza 93
shares of IntraTel common stock (each representing 4.65% of
the total issued and outstanding shares of IntraTel), which,
upon closing under the Merger Agreement, were converted into
shares of Intelicom common stock.
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Item 3. Bankruptcy or Receivership
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N/A
Item 4. Changes in Registrant's Certifying Accountants
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N/A
Item 5. Other Events
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N/A
Item 6. Resignations of Registrant's Directors
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N/A
Item 7. Financial Statements and Exhibits
---------------------------------
(a) and (b) The pro forma financial information and audited
financial statements required by this Item will
be filed as an amendment to this Report no later
than sixty (60) days from the date of this
Report.
(c) Exhibits: Filed herewith pursuant to Reg. S-K
Item 601 is the following exhibit.
Exhibit No. Page Description
- ----------- ---- -----------
10.1 9 Stock Purchase Agreement between David Kanstoroom,
David Spezza and IntraTel Acquisition Company, Inc.
dated March 12, 1997.
10.2 14 Agreement of Merger between David Kanstoroom, David
Spezza and IntraTel Acquisition Company, Inc. dated
March 12, 1997.
10.3 25 Letter Agreement between David Kanstoroom, David Spezza
and IntraTel Acquisition Company, Inc. dated March 12,
1997.
10.4 30 Secured Promissory Noted between David Kanstoroom,
David Spezza and IntraTel Acquisition Company, Inc.
dated March 12, 1997.
10.5 37 Security Agreement between David Kanstoroom, David
Spezza and IntraTel Acquisition Company, Inc. dated
March 12, 1997.
10.6 46 Pledge Agreement between David Kanstoroom, David Spezza
and IntraTel Acquisition Company, Inc. dated March 12,
1997.
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10.7 51 Addendum/Amendment to Stock Purchase Agreement dated
May 7, 1997.
10.8 54 Addendum/Amendment to Employment Agreement (Kanstoroom)
dated May 7, 1997.
10.9 56 Addendum/Amendment to Employment Agreement (Spezza)
dated May 7, 1997.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTELICOM CORPORATION
Dated: May 8, 1997 By: /s/ DAVID A. KANSTOROOM
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David A. Kanstoroom
Acting Chief Executive Officer
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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT (hereinafter called the "Agreement") is
executed as of this 12th day of March, 1997, between and among David A.
Kanstoroom and David Spezza (hereinafter referred to as the "Selling
Stockholders") and IntraTel Acquisition Company, Inc., a corporation
organized and existing in accordance with the laws of the State of Delaware
(hereinafter referred to as "Purchaser").
RECITALS
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WHEREAS, Intelicom Corporation ("Intelicom") is an SEC-registered
corporation existing under the laws of the State of Delaware, having its
principal place of business located at 28050 U.S. 19 North, Suite 202,
Clearwater, Florida, 34621;
WHEREAS, the Selling Stockholders each own approximately 473,563
shares of the outstanding common stock of Intelicom (the "Intelicom Common
Stock");
WHEREAS, Purchaser is a corporation organized and existing under the
laws of the State of Delaware, having its principal place of business
located at The Oaks, 227 Saint James Park, Osprey, Florida, 34229;
WHEREAS, the parties hereto and others have previously entered into
that certain Letter of Intent, dated January 23, 1997 (the "Letter of
Intent"), whereby, among other things, Purchaser has offered to purchase
182,847 shares of Intelicom Common Stock (the "Shares") from each of the
Selling Stockholders in exchange for a total of $1,200,000 in cash and
secured promissory notes and certain other contingent consideration as
hereinafter described; and
WHEREAS, the Selling Stockholders are willing to sell the Shares
pursuant to the provisions of this Agreement.
NOW, THEREFORE, in consideration of the above premises and of the
respective representations, warranties and agreements herein contained, the
parties hereto agree as follows:
I. The Purchase
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A. AGREEMENT TO PURCHASE. Purchaser hereby agrees to purchase, and
Selling Stockholders hereby agree to sell to Purchaser the Shares in
exchange for the following consideration.
1. Cash in the full and true sum of $100,000 (to be divided by
the Selling Stockholders equally); and
2. Two (2) promissory notes (the "Promissory Notes") in the
amount of $550,000 each (one for each Selling Stockholder)
to be secured by the following:
<PAGE>
a. The Security Agreement between Purchaser and the
Selling Stockholders attached hereto and made a part
hereof as Exhibit A; and
b. The Pledge Agreement between Purchaser and the Selling
Stockholders attached hereto and made a part hereof as
Exhibit B.
3. Additional contingent purchase price consideration as
described in Section II.A.2 of the Letter of Intent (the "Contingent
Consideration").
The cash, Promissory Notes, Security Agreement, Pledge Agreement, the
Contingent Consideration and all documents, instruments and resolutions
authorizing same shall hereinafter be referred to collectively as the
"Purchase Consideration".
B. CLOSING. The completion of the purchase shall take place as may
be agreed between the parties, but no later than March 12, 1997 (the
"Closing Date"). The date of completion of the purchase shall be
hereinafter referred to as the "Effective Date". At Closing, Purchaser
shall cause its counsel, Foley and Lardner, to deliver a legal opinion to
the Selling Stockholders in form and content acceptable to the Selling
Stockholders and their counsel.
II. Actions on the Effective Date
-----------------------------
A. PURCHASER'S ACTIONS AT CLOSING. On the Effective Date, Purchaser
shall deliver to the Selling Stockholders the Purchase Consideration.
B. THE SELLING STOCKHOLDERS' ACTIONS AT CLOSING. On the Effective
Date, the Selling Stockholders shall deliver to Purchaser certificates
representing the Shares, properly endorsed and assigned to Purchaser.
III. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Selling Stockholders as follows (effective both as of the date
hereof and as of Closing):
A. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Purchaser has full power and authority, corporate and
otherwise, to carry on its business in the State of Delaware.
B. CORPORATE POWERS, GOVERNMENTAL CONSENTS AND LAW. Purchaser has
the unconditional right, power and authority to execute, pursue and
complete this Agreement. No consent, approval, authorization or order of
any court or governmental agency or body or union or other body is required
by Purchaser to complete the transactions contemplated herein. Purchaser's
execution of this Agreement and the other documents comprising the Purchase
Consideration does not conflict with, or constitute a breach or default
under (i) Purchaser's articles of incorporation or bylaws, (ii) any law,
rule, regulation or governmental or court order
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to which Purchaser is subject or (iii) any contract, agreement, lending or
other financing arrangement to which Purchaser is a party or by which any
of its assets or properties is bound.
C. DUE AUTHORIZATION; VALIDITY AND BINDING EFFECT. Purchaser's
execution and delivery of this Agreement and the completion of the
transactions contemplated hereby have been duly authorized by all required
corporate action, and this Agreement, the Promissory Notes, the Security
Agreement, the Pledge Agreement and any other documents comprising the
Purchase Consideration represent the legally valid and binding obligations
of Purchaser and are enforceable against Purchaser in accordance with their
respective terms.
D. NO INSOLVENCY. Purchaser is not insolvent (as such term is
defined in 11 U.S.C. Section 101(32)), nor will the performance of its
obligations under this Agreement or any other document comprising the
Purchase Consideration render Purchaser insolvent.
E. NO RELIANCE. Purchaser has made, and has had the opportunity to
make, such investigations and inquiries in connection with its acquisition
of the Shares as it deems appropriate or desirable, and Purchaser has not,
in any event, relied upon any representation, warranty or statement of the
Selling Stockholders except as expressly provided in Section 4 of this
Agreement.
IV. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. The
Selling Stockholders, and each of them, represent and warrant to Purchaser
as follows (effective both as of the date hereof and as of Closing):
A. The Selling Stockholders are the true and lawful owners of all of
the Shares and have the capacity to enter into, and to perform the
obligations required by, this Agreement.
B. No other person has any direct or indirect interest in the Shares
and the Selling Stockholders are the sole party in interest with respect to
the Shares.
V. Survival
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A. SURVIVAL OF REPRESENTATIONS, AND WARRANTIES. All of the
representations, warranties and covenants of Purchaser and the Selling
Stockholders contained in this Agreement shall survive the Closing for a
period of three (3) years.
VI. INDEMNIFICATION. Purchaser and the Selling Stockholders each hereby
covenants and agrees to indemnify and hold harmless the other from any
loss, claim, damage, cost and expense (including reasonable attorneys'
fees) incurred by them as the result of, or in connection with, any breach
or default by the other of any of their respective representations,
warranties and covenants contained in this Agreement or in any other
document comprising the Purchase Consideration.
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VII. Miscellaneous
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A. NOTICE. Any notice, request, instruction or other document to be
given hereunder shall be in writing and, except as otherwise provided for
herein, shall be delivered personally or sent by registered or certified
mail, return receipt requested, as follows:
If to Selling Stockholders:
DAVID A. KANSTOROOM
28050 U.S. 19 North, Suite 202
Clearwater, Florida 34621
DAVID SPEZZA
28050 U.S. 19 North, Suite 202
Clearwater, Florida 34621
If to Purchaser:
INTRATEL ACQUISITION COMPANY, INC.
The Oaks
227 Saint James Park
Osprey, Florida, 34229
ATTN: Robert E. Yaw II, Chairman
or to any subsequent address as to which the other party is advised in
accordance with the foregoing.
B. BENEFIT. This Agreement shall be binding upon and shall inure to
the benefit of Selling Stockholders and Purchaser and their respective
successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than Selling
Stockholders and Purchaser and their successors and permitted assigns, any
rights or remedies under or by reason thereof. No party hereto may assign
any of its rights or obligations hereunder without the prior written
consent of the other party.
C. FEES. Except as otherwise provided herein, Selling Stockholders
and Purchasers shall pay their own costs and expenses incident to the
negotiation, preparation and performance of this Agreement, and compliance
with all agreements and conditions contained herein, including all fees,
expenses and disbursements of their respective counsel, whether or not the
transactions contemplated hereby are completed.
D. MODIFICATION. This Agreement cannot be modified, changed,
discharged or terminated except by an instrument in writing, signed by the
party against whom the enforcement of any waiver, change, discharge or
termination is sought. This Agreement contains the entire understanding
between the parties with respect to the transactions covered hereby.
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E. APPLICABLE LAW. This Agreement will be construed and governed in
accordance with the laws of the State of Delaware.
F. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
G. LEGAL REPRESENTATION. Each party acknowledges that he or it has
obtained such legal, accounting, and investment representation as such
party has deemed necessary or appropriate, and no party is relying an
representation obtained by any other party with respect to this Agreement
or the actions contemplated hereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
DAVID A. KANSTOROOM
/s/ DAVID A. KANSTOROOM
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David A. Kanstoroom
DAVID SPEZZA
/s/ DAVID SPEZZA
- --------------------------------
David Spezza
INTRATEL ACQUISITION COMPANY, INC.
By: /s/ ROBERT E. YAW II
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Name: Robert E. Yaw II
Title: Chairman of the Board
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EXHIBIT 10.2
AGREEMENT OF MERGER
This AGREEMENT OF MERGER (the "Agreement"), dated as of March 12,
1997, is entered into by and between Intelicom Corporation, a corporation
organized and incorporated under the laws of the State of Delaware
(hereinafter referred to as "Intelicom"), and IntraTel Acquisition Company,
Inc, a corporation organized and incorporated under the laws of the State
of Florida (hereinafter referred to as "IntraTel").
WHEREAS, the parties hereto desire that IntraTel be merged with and
into Intelicom pursuant to this Agreement providing for such merger (the
"Merger") on the date and at the time provided for herein (the "Effective
Date"); and
WHEREAS, the Agreement provides for the issuance of shares of
Intelicom stock ("Stock") upon the merger being effective; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties, and covenants made by each to the other as an
inducement to the execution and delivery of this Agreement and certain
additional agreements related to the Merger;
Now, therefore, in consideration of the premises and of the mutual
representations, warranties, and covenants herein contained, the parties
hereby agree as follows:
ARTICLE I
THE MERGER
1.01 THE MERGER AND CLOSING. Upon the terms and subject to the
acceptance of this Agreement, the Merger shall be consummated (the
"Closing") as of the Effective Date and in accordance with all applicable
state and federal laws, on the date and at the time specified hereinafter.
At the Closing, upon the terms and subject to the conditions of this
Agreement, IntraTel shall be merged with and into Intelicom in accordance
with all applicable state and federal laws, and the separate existence of
IntraTel shall thereupon cease, and Intelicom shall continue its corporate
existence under the laws of the State of Delaware.
1.02 EFFECTIVE DATE. The Merger shall become effective upon the later
to occur of the date and time of filing of a certificate of merger with the
Secretary of State of the State of Delaware in accordance with the
provisions of the General Corporation Law of the State of Delaware (the
"Certificate of Merger") or the receipt of any and all necessary approvals
from the Securities Exchange Commission. The date and time when the Merger
shall become effective is herein referred to as the "Effective Date."
1
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1.03 CERTIFICATE OF INCORPORATION. The Articles of Incorporation of
Intelicom shall be the Articles of Incorporation of the surviving
corporation after completion of the merger contemplated herein.
1.04 DELIVERY OF SHARES. On the Effective Date, Intelicom shall issue
and deliver to the shareholders of IntraTel the number of shares in
accordance with Section 9.01 hereinbelow.
ARTICLE II
INTRATEL's
REPRESENTATIONS AND WARRANTIES
IntraTel represents and warrants to Intelicom as of the date hereof
and on the Effective Date as follows:
2.01 GOOD STANDING. IntraTel is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware,
and it is duly authorized, qualified, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to carry on
its business in the places and in the manner as now conducted. This
Agreement has been duly authorized by all necessary corporate action and
has been executed and delivered by an authorized officer of IntraTel, and
constitutes the valid and binding agreement of IntraTel enforceable in
accordance with its terms.
2.02 STOCKHOLDERS AND STOCK. The authorized capital stock of IntraTel
consists solely of shares of Common Stock, no par value, of which 2,000
shares are issued and outstanding. Each share of stock is duly and validly
authorized and issued, fully paid, and nonassessable. Except as described
in the Confidential Private Offering Memorandum dated December 8, 1996 (the
"CPOM") which has been previously provided to Intelicom's representatives,
no option, warrant, call, or commitment of any kind obligating IntraTel to
issue any of its capital stock exists.
2.03 FINANCIAL INFORMATION. IntraTel has fully and accurately
disclosed to Intelicom all financial information regarding IntraTel,
including accurate lists of its liabilities, accounts receivable, fixed
assets and other assets.
2.04 LITIGATION. There are no material legal actions, suits,
arbitrations, investigations or other legal, administrative or governmental
proceedings pending or, to the knowledge of IntraTel, threatened.
2.05 NO CONSENTS OR APPROVALS. IntraTel is not required to obtain the
consent, approval, authorization, or order of any court of governmental
instrumentality, agency or body to consummate the transactions contemplated
hereby or if any such consent, approval, authorization, or order is
required, IntraTel will obtain such prior to or
2
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as soon after the Closing as possible.
2.06 TITLE TO ASSETS. IntraTel, at the Closing, will have good and
marketable title to its assets free and clear of any and all liens,
mortgages, security interests, claims, charges, demands, options, rights or
otherwise, except as provided in the accompanying schedules.
2.07 FULL DISCLOSURE. No statement contained in any document,
certificate or other writing furnished or to be furnished by IntraTel to
Intelicom pursuant to the provisions of this Agreement contains or shall
contain any untrue statement of a material fact or shall omit to state any
material fact necessary, in the light of the circumstances under which it
was made, to make the statements therein not misleading.
2.08 DISCLOSURE OF CONTRACTS. IntraTel has disclosed all agent
contracts, sales contracts, franchise contracts and other contracts,
written and oral, between it and any person, firm or individual which
relate to its business. IntraTel has not failed to disclose any agent
contracts, sales contracts, franchise contracts or other contracts, written
or oral, that would impede or restrict the transaction contemplated by this
Agreement or that would result in Intelicom's commitment to pay
commissions, fees, or other monies, whether in cash or common stock.
ARTICLE III
INTELICOM's
REPRESENTATIONS AND WARRANTIES
Intelicom represents and warrants to Intelicom as of the date hereof
and on the Effective Date as follows:
3.01 GOOD STANDING. Intelicom is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware,
and it is duly authorized, qualified, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to carry on
its business in the places and in the manner as now conducted. This
Agreement has been duly authorized by all necessary corporate action and
has been executed and delivered by an authorized officer of the
Corporation, and constitutes the valid and binding agreement of Intelicom
enforceable in accordance with its terms.
3.02 STOCKHOLDERS AND STOCK. The authorized capital stock of
Intelicom consists of 100,000,000 shares of Common Stock, $0.001 par value,
of which 1,527,620 shares are issued and outstanding, and 25,000,000 of
Preferred Stock, $0.001 par value, of which zero (0) shares are issued and
outstanding. Each share of said stock is duly and validly authorized and
issued, fully paid, and nonassessable. There are currently outstanding
warrants to purchase an additional 3238 shares of
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Intelicom Common Stock exercisable at $6.30 per share for a period of four
(4) years commencing one (1) year from the date of the closing of
Intelicom's initial public offering which took place on or about April 27,
1995
3.03 FINANCIAL INFORMATION. Intelicom has fully and accurately
disclosed to IntraTel all financial information regarding Intelicom,
including accurate lists of its liabilities, accounts receivable, fixed
assets and other assets.
3.04 LITIGATION. There are no material legal actions, suits,
arbitrations, investigations or other legal, administrative or governmental
proceedings pending or, to the knowledge of Intelicom, threatened.
3.05 NO CONSENTS OR APPROVALS. Intelicom is not required to obtain
the consent, approval, authorization, or order of any court of governmental
instrumentality, agency or body to consummate the transactions contemplated
hereby or if any such consent, approval, authorization, or order is
required, Intelicom will obtain such prior to or as soon after the Closing
as possible.
3.06 TITLE TO ASSETS. Intelicom, at the Closing, will have good and
marketable title to its assets free and clear of any and all liens,
mortgages, security interests, claims, charges, demands, options, rights or
otherwise, except as provided in the accompanying schedules.
3.07 FULL DISCLOSURE. No statement contained in any document,
certificate or other writing furnished or to be furnished by Intelicom to
IntraTel pursuant to the provisions of this Agreement contains or shall
contain any untrue statement of a material fact or shall omit to state any
material fact necessary, in the light of the circumstances under which it
was made, to make the statements therein not misleading.
3.08 DISCLOSURE OF CONTRACTS. Intelicom has disclosed all agent
contracts, sales contracts, franchise contracts and other contracts,
written and oral, between it and any person, firm or individual which
relate to its business. Intelicom has not failed to disclose any agent
contracts, sales contracts, franchise contracts or other contracts, written
or oral, that would impede or restrict the transaction contemplated by this
Agreement or that would result in IntraTel's commitment to pay commissions,
fees, or other monies, whether in cash or common stock.
ARTICLE IV
INTRATEL's COVENANTS
IntraTel covenants and agrees as follows:
4.01 CONSENTS. If applicable, IntraTel shall use its best efforts to
obtain any
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consents as may be required of IntraTel herein to consummate the
transactions contemplated hereby.
4.02 NOTICE OF DEFAULT. Prior to the Closing, IntraTel shall give
prompt written notice to Intelicom of any notice of default, written threat
of default, lawsuit or arbitration claim received by IntraTel, subsequent
to the date hereof.
4.03 ACCESS. IntraTel shall afford (or shall cause to be afforded) to
the officers and authorized representatives of Intelicom access to the
books and records of IntraTel. IntraTel shall cooperate with Intelicom, its
representatives and counsel in the preparation of any documents or
materials required by any governmental agency or other party in connection
with or relating to the transactions contemplated herein.
4.04 CONFIDENTIAL INFORMATION. IntraTel shall cause all information
furnished by Intelicom in connection with the negotiation and performance
of this Agreement to be treated as confidential, except such information as
IntraTel may be required to disclose by law and except for any information
that is generally available to the public, previously known to IntraTel or
obtained from third parties owing no obligation of confidentiality to
Intelicom.
4.05 CAUSE CONDITIONS TO BE SATISFIED. IntraTel will use its best
efforts to cause the conditions to the obligations of IntraTel and
Intelicom under this Agreement to be satisfied.
ARTICLE V
INTELICOM's COVENANTS
Intelicom covenants and agrees as follows:
5.01 CONSENTS. If applicable, Intelicom shall use its best efforts to
obtain any consents as may be required of Intelicom herein to consummate
the transactions contemplated hereby.
5.02 NOTICE OF DEFAULT. Prior to the Closing, Intelicom shall give
prompt written notice to IntraTel of any notice of default, written threat
of default, lawsuit or arbitration claim received by Intelicom, subsequent
to the date hereof.
5.03 ACCESS. Intelicom shall afford (or shall cause to be afforded)
to the officers and authorized representatives of IntraTel access to the
books and records of Intelicom. Intelicom shall cooperate with IntraTel,
its representatives and counsel in the preparation of any documents or
materials required by any governmental agency or other party in connection
with or relating to the transactions contemplated herein.
5.04 CONFIDENTIAL INFORMATION. Intelicom shall cause all information
furnished
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by IntraTel in connection with the negotiation and performance of this
Agreement to be treated as confidential, except such information as
Intelicom may be required to disclose by law and except for any information
that is generally available to the public, previously known to Intelicom or
obtained from third parties owing no obligation of confidentiality to
IntraTel.
5.05 CAUSE CONDITIONS TO BE SATISFIED. Intelicom will use its best
efforts to cause the conditions to the obligations of IntraTel and
Intelicom under this Agreement to be satisfied.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS
OF INTRATEL
IntraTel's obligations shall be subject, to the extent not waived, to
the satisfaction of each of the following conditions at the Closing:
6.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the IntraTel contained in this Agreement shall be true and
correct in all material respects as of the date when made and as of the
date of the Closing as though such representations and warranties had been
made on and as of the date of the Closing.
6.02 PERFORMANCE OF THIS AGREEMENT. Intelicom shall have performed
and complied in all material respects with all covenants, conditions and
agreements required by this Agreement to be performed or complied with by
any and all of them prior to or on the date of the Closing.
6.03 PROCEEDINGS. All corporate and other proceedings to be taken by
Intelicom in connection with the transactions contemplated hereby shall
have been completed and all such proceedings and all documents incident
thereto shall be reasonably satisfactory in substance and form to IntraTel.
6.04 CONSENTS, REGULATORY FILINGS AND APPROVALS. All consents and
authorizations by third parties and all governmental consents, approvals,
licenses and permits, the granting of which are necessary for the
consummation of the transactions contemplated hereby or for preventing the
termination of any right privilege, license or agreement of Intelicom which
is material to IntraTel upon the consummation of the transactions
contemplated hereby, shall have been obtained or made prior to the Closing
or shall be obtained as soon thereafter as possible.
6.05 LITIGATION. No order of any court or administrative agency shall
be in effect which restrains or prohibits the transaction contemplated
hereby or which would limit or affect Intelicom and, there shall not have
been threatened, nor shall there be pending any action or proceeding by or
before any court or governmental agency or
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other regulatory or administrative agency or commission, challenging any of
the transactions contemplated by this Agreement.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS
OF INTELICOM
Intelicom's obligations shall be subject, to the extent not waived, to
inure the satisfaction of each of the following conditions at the Closing:
7.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Intelicom contained in this Agreement shall be true and
correct in all material respects as of the date when made and as of the
date of the Closing as though such representations and warranties had been
made on and as of the date of the Closing.
7.02 PERFORMANCE OF THIS AGREEMENT. IntraTel shall have performed and
complied in all material respects with all covenants, conditions and
agreements required by this Agreement to be performed or complied with by
any and all of them prior to or on the date of the Closing.
7.03 PROCEEDINGS. All corporate and other proceedings to be taken by
IntraTel in connection with the transactions contemplated hereby shall have
been completed and all such proceedings and all documents incident thereto
shall be reasonably satisfactory in substance and form to Intelicom.
7.04 CONSENTS, REGULATORY FILINGS AND APPROVALS. All consents and
authorizations by third parties and all governmental consents, approvals,
licenses and permits, the granting of which are necessary for the
consummation of the transactions contemplated hereby or for preventing the
termination of any right privilege, license or agreement of IntraTel which
is material to Intelicom upon the consummation of the transactions
contemplated hereby, shall have been obtained or made prior to the Closing
or shall be obtained as soon thereafter as possible.
7.05 LITIGATION. No order of any court or administrative agency shall
be in effect which restrains or prohibits the transaction contemplated
hereby or which would limit or affect Intelicom and, there shall not have
been threatened, nor shall there be pending any action or proceeding by or
before any court or governmental agency or other regulatory or
administrative agency or commission, challenging any of the transactions
contemplated by this Agreement.
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ARTICLE VIII
EFFECT OF MERGER
8.01 Upon the consummation of the Merger as hereinabove provided (the
"Effective Date"), the effect of the Merger shall be that established by
the corporation laws of the State of Delaware, and without limitation
thereof, shall include the following:
a. Intelicom and IntraTel shall be one corporation, which shall be
Intelicom, and which shall survive the merger for that purpose.
b. The separate existence of IntraTel shall cease.
c. Intelicom shall possess all the rights, privileges, and
franchises previously possessed by it, and those possessed by IntraTel.
d. All of the property and assets of whatsoever kind or description
of IntraTel, and all debts due on whatever account to it, shall be taken
and be deemed to be transferred to and vested in Intelicom without further
act or deed.
e. Intelicom shall be responsible for all the liabilities and
obligations of IntraTel, including but not limited to all liabilities
presently existing pursuant to the CPOM.
f. Intelicom shall change its name to "IntraTel Group, Ltd."
ARTICLE IX
MANNER OF CONVERSION OF SHARES
9.01 MANNER OF CONVERSION OF SHARES. The manner and basis of
converting the shares of IntraTel into shares of Intelicom shall be as
follows:
a. All shares of Common Stock of Intelicom now authorized and issued
and outstanding shall remain outstanding and shall not be affected by the
Merger.
b. The current shareholders of IntraTel will surrender their
existing shares of common stock of IntraTel in exchange for 1,631,626
shares of Intelicom Common Stock LESS the number of shares which are
required to satisfy the equity obligations to the investors in IntraTel's
private placement pursuant to the CPOM (the number of which to be
determined by dividing the total private placement investment money by the
price per share of the secondary offering to be consummated prior to June
30, 1997). The shares of Intelicom Common Stock to be received by
IntraTel's shareholders pursuant to this paragraph (excluding the private
placement investors) shall be distributed to said IntraTel shareholders on
a pro rata basis.
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ARTICLE X
ARTICLES OF INCORPORATION AND
BY-LAWS OF SURVIVING CORPORATION
10.01 The Articles of Incorporation and the Bylaws of Intelicom are
not altered or otherwise affected by virtue of the Merger.
ARTICLE XI
GENERAL
11.01 ADDITIONAL INSTRUMENTS. The parties hereto shall deliver or
cause to be delivered as of the Effective Date, and at such other times and
places as shall be reasonably agreed on, such additional instruments as any
party may reasonably request for the purpose of carrying out this
Agreement.
11.02 ASSIGNMENT. This Agreement may not be assigned (except by
operation of law) and shall be binding upon and shall to the benefit of the
parties hereto, and the successors of the heirs and legal representatives
of the parties hereto.
11.03 ENTIRE AGREEMENT. This Agreement and the documents delivered
pursuant hereto constitute the entire agreement and understanding between
the parties hereto and supersede any prior agreement and understanding
relating to the subject matter of this Agreement. This Agreement may be
modified or amended only by a duly authorized written instrument executed
by the parties hereto.
11.04 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original and all
of which together shall constitute but one and the same instrument.
11.05 SURVIVORSHIP. All warranties, covenants, representations, and
guarantees shall survive the closing and execution of the documents
contemplated by this Agreement.
ARTICLE XII
TERMINATION
12.01 MUTUAL CONSENT. This Agreement may be terminated at any time
prior to the Closing by mutual consent of IntraTel and Intelicom, expressed
by action of their respective Boards of Directors.
12.02 FINAL DATE. Anything contained in this Agreement to the
contrary notwithstanding, unless extended by mutual consent of IntraTel and
Intelicom, expressed by action of their respective Boards of Directors,
this Agreement shall terminate if the Closing shall not have occurred by
the close of business on June 30,
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1997.
12.03 REMEDIES ON TERMINATION. In the event that any party hereto,
without the right to do so under this Agreement, shall fail or refuse to
consummate the transactions contemplated by this Agreement, or if any
default under, or breach of, any representation, warranty, covenant or
condition of this Agreement on the part of any party shall have occurred
that results in the failure to consummate the transactions contemplated
hereby, then, in addition to any other remedies provided in this agreement
or by applicable law, the nondefaulting party shall be entitled to obtain
from the defaulting party costs and expenses, including reasonable
attorney's fees, incurred by it in enforcing its rights hereunder.
ARTICLE XIII
INDEMNIFICATION
13.01 Intelicom agrees to indemnify, defend and hold harmless IntraTel
from and against all losses, liabilities, damages, administrative or civil
penalties, fines, deficiencies, costs or expenses (including interest,
penalties and reasonable attorney's fees and disbursements) based upon,
arising out of or otherwise in respect of (i) any material breach by
Intelicom of any representation, warranty, covenant or agreement contained
in this Agreement; (ii) the conduct of Intelicom's business from the date
hereof through the date of Closing, whether or not asserted prior to the
date of Closing; and (iii) all obligations of Intelicom, of every kind or
nature whatsoever, which are not specifically disclosed to IntraTel prior
to the execution of this Agreement.
13.02 IntraTel agrees to indemnify, defend and hold harmless
Intelicom from and against all losses, liabilities, damages, administrative
or civil penalties, fines, deficiencies, costs or expenses (including
interest, penalties and reasonable attorney's fees and disbursements) based
upon, arising out of or otherwise in respect of (i) any material breach by
IntraTel of any representation, warranty, covenant or agreement contained
in this Agreement; (ii) the conduct of IntraTel's business from the date
hereof through the date of Closing, whether or not asserted prior to the
date of Closing; and (iii) all obligations of IntraTel, of every kind or
nature whatsoever, which are not specifically disclosed to Intelicom prior
to the execution of this Agreement.
ARTICLE XIV
MISCELLANEOUS
14.01 GOVERNING LAW. It is the intention of the parties hereto that
this Agreement be governed by and construed in accordance with the laws of
the State of Delaware.
14.02 NOTICES. Any notice permitted or required to be given herein
shall be deemed to have been given either upon personal delivery or three
days after deposit in
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the United States mails, certified mail, postage prepaid and addressed to
the intended recipient at the following address:
INTELICOM CORPORATION INTRATEL ACQUISITION COMPANY, INC.
28050 U.S. Highway 19 North The Oaks
Suite 202 227 Saint James Park
Clearwater, Florida 34621 Osprey, Florida, 34229
Attention: David Spezza, President Attention: Robert E. Yaw II,
Chairman
14.03 LITIGATION. In the event of litigation between the parties
arising out of any term or provision of this Agreement, the prevailing
party shall be entitled to recover its costs and attorney's fees from the
losing party.
14.04 EXPENSES. Each of the parties hereto shall pay its own
expenses incurred in connection with the preparation, negotiation,
execution, delivery and consummation of this Agreement.
14.05 CUMULATIVE REMEDIES. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any
other remedy, and each remedy shall be cumulative and shall be in addition
to all other remedies given hereunder or now or hereafter existing at law
or in equity or by statute or otherwise. The election of any one or more
remedies by Intelicom or IntraTel shall not constitute a waiver of the
right to pursue other available remedies.
14.06 WRITTEN DISCLOSURES INCORPORATED BY REFERENCE. All written
disclosures made by each party to the other shall be incorporated herein by
reference and each party hereby warrants and represents that such written
disclosures are true and accurate to the best of said party's knowledge and
belief.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written
INTELICOM CORPORATION INTRATEL ACQUISITION COMPANY, INC.
By: /s/ DAVID SPEZZA By: /s/ ROBERT E. YAW
------------------------- -------------------------
Name: David Spezza Name: Robert E. Yaw II
Title: President Title: Chairman
11
EXHIBIT 10.3
INTRATEL ACQUISITION COMPANY, INC.
The Oaks
227 Saint James Park
Osprey, Florida 34229
March 12, 1997
Mr. David A. Kanstoroom
Mr. David Spezza
28050 U.S. 19 North
Suite 202
Clearwater, Florida 34621
Re: Stock Purchase Transaction (the "Transaction") between IntraTe1
Acquisition Company, Inc., a Delaware corporation ("IntraTel"),
and David Kanstoroom ("Kanstoroom") and David Spezza ("Spezza")
(together, the "Selling Stockholders")
Gentlemen:
This letter is being delivered as a material inducement to you to
enter into that certain Stock Purchase Agreement of even date herewith (the
"Stock Purchase Agreement") between IntraTel and the Selling Stockholders
and the related documents comprising the "Purchase Consideration" (as
defined in the Stock Purchase Agreement). [The Stock Purchase Agreement
and such other documents are collectively referred to herein as the "Stock
Purchase Documents".] Reference is also made to that certain Letter of
Intent, dated January 23, 1997 (the "Letter of Intent"), between IntraTel,
the Selling Stockholders, Telcom Venture & Acquisition Corp., a Delaware
corporation ("TVAC"), and Intelicom Corporation, a Delaware corporation
("Intelicom").
IntraTel hereby covenants and agrees as follows:
1. The obligations of the Selling Stockholders under the Stock
Purchase Documents shall be subject to the following conditions precedent
(the "Conditions Precedent"):
a. Prior to the action of the Intelicom stockholders described
in paragraph 1b below, the "Outside Shareholders" (as defined in the Letter
of Intent) shall have been provided with complete copies of (i) the Stock
Purchase Documents, (ii) the Letter of Intent,
<PAGE>
Mr. David A. Kanstoroom
Mr. David Spezza
March 12, 1997
Page 2
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(iii) that certain Agreement of Merger between Intelicom and IntraTel,
dated March __, 1997 (the "Merger Agreement"), (iv) the Employment
Agreements to be entered into between each of Kanstoroom and Spezza, on the
one hand, and Intelicom, on the other hand, and (v) any other material
documents and instruments contemplated to be executed in connection with
the foregoing (collectively, the "Transaction Documents").
b. The transactions contemplated by the Merger Agreement shall
have been approved (either at a duly held meeting of the stockholders of
Intelicom or by written consent) by all (and not less than all) of the
record owners of the issued and outstanding capital stock of Intelicom,
without exception, after satisfaction of the condition precedent described
in paragraph 1a above.
c. In the event that the condition stated in paragraph 1b above
is not fully and completely satisfied, a nationally-recognized investment
banking firm shall deliver a "fairness opinion", in form and content
reasonably satisfactory to the Selling Stockholders, as to the adequacy of
consideration to all parties affected by the transactions contemplated
under the Merger Agreement.
d. IntraTel pays to Kanstoroom and Spezza the sum of Fifty
Thousand Dollars ($50,000) each by wire transfer or certified funds, in
accordance with Section I.A.1 of the Stock Purchase Agreement.
2. Unless and until the Conditions Precedent are fully and
completely satisfied, the executed originals of the Stock Purchase
Documents and the other Transaction Documents shall be held in escrow by
Nowalsky & Bronston, LLP (the "Escrow Agent") and shall be of no force or
effect. If the Conditions Precedent are not fully and completely satisfied
on or before June 30, 1997, then, at any time thereafter, Kanstoroom and
Spezza may require Escrow Agent to return the Shares (as defined in the
Stock Purchase Agreement) to them, in which case the Escrow Agent shall
promptly distribute the Certificates representing the Shares to Kanstoroom
and Spezza and the transactions contemplated by the Stock Purchase
Documents shall automatically terminate and be of no force or effect. All
representations, warranties and covenants of or by IntraTel under this
letter or any of the Transaction Documents shall be deemed restated as of
the date, if any, that Escrow Agent releases the Transaction Documents
pursuant to this paragraph 2.
3. Notwithstanding any termination of Kanstoroom's and/or Spezza's
employment with Intelicom, each of them will, in any and all events, be
retained by Intelicom as unpaid consultants in order to ensure their
eligibility to receive the contingent consideration provided
<PAGE>
Mr. David A. Kanstoroom
Mr. David Spezza
March 12, 1997
Page 3
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for in Section I.A.3 of the Stock Purchase Agreement and Section II.A.2 of
the Letter of Intent.
4. Kanstoroom and Spezza shall each receive, with respect to their
shares of stock of Intelicom and any stock options, warrants or other
rights that they may receive in connection with their employment with
Intelicom, such registration rights and other rights and benefits as the
other senior executives of Intelicom, IntraTel, PVCI (as defined in the
Letter of Intent), IntraSoft (as defined in the Letter of Intent) and any
other of the Combined Companies (as defined in the Letter of Intent), on a
PRO RATA and PARI PASSU basis. In addition, in no event shall Kanstoroom's
and/or Spezza's Intelicom stock be subject to lockup or other restrictions
of any greater duration or upon more disadvantageous terms than are
applicable to other stockholders of Intelicom (except for the Outside
Shareholders), whether before or after Closing (as defined in the Letter of
Intent).
5. Promptly following the date hereof but, in any event, before
Closing under the Merger Agreement, IntraTel shall issue to each of
Kanstoroom and Spezza 93 shares of IntraTel common stock (each representing
4.65% of the total issued and outstanding shares of IntraTel), which, upon
closing under the Merger Agreement, shall be converted into shares of
Intelicom common stock.
6. For purposes of its acquisition of shares of Intelicom common
stock under the Stock Purchase Agreement and under the Merger Agreement
(collectively, the "Intelicom Shares"), IntraTel hereby represents and
warrants as follows:
a. IntraTel and its representative(s), if any, understand and
have evaluated the merits and risks of an investment in the Intelicom
Shares and have been given the opportunity to obtain information and to
examine all documents relating to Intelicom, and have been given the
opportunity to obtain information and to examine all documents relating to
Intelicom and Intelicom's business and to ask questions of, and to receive
answers from, Intelicom or any person acting on its behalf concerning
Intelicom and the terms and conditions of this investment, and to obtain
any additional information, to the extent Intelicom possesses such
information or could acquire it without unreasonable effort or expense, to
verify the accuracy of any information previously furnished. All such
questions have been answered to IntraTel's full satisfaction and all books
and records pertaining to this investment that IntraTel has requested have
been made available to IntraTel.
b. IntraTel confirms that neither Intelicom nor any of its
affiliates or agents have made any representations or warranties concerning
the profitability resulting
<PAGE>
Mr. David A. Kanstoroom
Mr. David Spezza
March 12, 1997
Page 4
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from an investment in Intelicom, including, without limitation, any
representations or warranties concerning the anticipated financial results
of the operations of Intelicom.
c. IntraTel is acquiring the Intelicom Shares solely for its
own account, as principal, for investment and not for the interest of any
other person and not with a view to, or in connection with, any resale,
distribution, subdivision or fractionalization. IntraTel has no agreement
or other arrangement with any person to sell, transfer or pledge any part
of the Intelicom Shares subscribed for or which would guarantee IntraTel
any profit or against any loss with respect to such the Intelicom Shares,
and IntraTel has no plan to enter into any such agreement or arrangement.
d. IntraTel is an "accredited investor", as such term is
defined in Rule 501(a) of Regulation D, promulgated under the Securities
Act of 1933, as amended (the "Act").
e. IntraTel understands that no Federal or state agency has
passed on or made any recommendations or endorsements of an investment in
the Intelicom Shares, nor has it been reviewed by the Attorney General of
any state or jurisdiction, because of Intelicom's representations that this
is intended to be a non-public offering pursuant to Section 4(2) of the Act
or Rule 506 of Regulation D promulgated thereunder. IntraTel understands
that any offering literature used in connection with this offering has not
been prefiled with, or reviewed by, any Federal or state agency.
f. IntraTel covenants and agrees that the Intelicom Shares
shall not be sold, assigned, transferred or otherwise disposed of unless
(i) such sale, assignment, transfer or other disposition is exempt from
registration under the Act and the applicable state securities or
registration under the Act and the applicable state securities or "Blue
Sky" law or laws and, if Intelicom so requests, an opinion satisfactory to
the Intelicom to such effect has been rendered by counsel satisfactory to
Intelicom or (ii) a registration statement covering the Intelicom Shares is
effective under the Act.
7. To the extent that the terms of the Letter of Intent, on the one
hand, and the other Transaction Documents, on the other hand, are
inconsistent or in conflict with each other, such terms shall be construed
and enforced in order to provide Kanstoroom and Spezza with the maximum
rights and benefits available thereunder.
<PAGE>
Mr. David A. Kanstoroom
Mr. David Spezza
March 12, 1997
Page 5
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8. At Closing under the Merger Agreement, Intelicom shall enter into
those certain Employment Agreements with each of Kanstoroom and Spezza in
the forms attached hereto as Exhibit A.
This letter is legally binding upon IntraTel and its successors and
assigns and shall be construed and enforced in accordance with the laws of
the State of Florida.
Please indicate your agreement to the foregoing by executing the
enclosed copy of this letter in the space provided below.
Very truly yours,
INTRATEL ACQUISITION COMPANY,
INC.
By: /s/ ROBERT E. YAW
----------------------------
Robert E. Yaw, II,
Chairman
ACCEPTED AND AGREED:
/s/ DAVID KANSTOROOM
- ----------------------------
David Kanstoroom
Date:-----------------------
/s/ DAVID SPEZZA
- ----------------------------
David Spezza
Date:-----------------------
EXHIBIT 10.4
SECURED PROMISSORY NOTE
-----------------------
$550,000.00 Osprey, Florida
March 12, 1997
FOR VALUE RECEIVED, the undersigned, INTRATEL ACQUISITION COMPANY,
INC., a Delaware corporation ("Maker"), hereby promises to pay to the order
of DAVID A. KANSTOROOM, or any subsequent holder ("Holder") of this Secured
Promissory Note (this "Note"), at 28050 U.S. Highway 19 North, Suite 202,
Clearwater, Florida 34621, or at such other place as Holder may from time
to time designate in writing, the principal sum of Five Hundred Fifty
Thousand Dollars ($550,000.00) together with all accrued interest on the
unpaid balance of this Note and all other costs and expenses provided for
herein, in accordance with the terms and provisions hereof. The
indebtedness evidenced by this Note is referred to as the "Loan".
1. PRINCIPAL AND INTEREST. Interest on the unpaid principal balance
outstanding hereon from time to time shall accrue from and after the date
hereof at a rate equal to the applicable Federal rate (as such term is
defined under Section 1274(d) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder) for short-term instruments in
effect as of the date hereof. The entire unpaid balance hereof, together
with all accrued but unpaid interest thereon and all other charges provided
for herein, shall be due and payable in full on June 30, 1997 (the
"Maturity Date").
2. REPAYMENT. All payments by Maker hereunder shall be applied (i)
first to any amount due to Holder pursuant to Paragraphs 4 and 9 of this
Note, (ii) then to the interest due and unpaid under this Note and (iii)
thereafter to any principal owing under this Note.
3. PREPAYMENT. Maker shall have the right to prepay in part or in
full, without penalty, this Note (together with accrued interest to the
date of prepayment on the amount of principal thus prepaid) at any time or
times.
4. LATE PAYMENT CHARGE. If any payment due hereunder, including,
but not limited to, any final payment, is not received by Holder within ten
(10) calendar days after its due date, Maker shall pay a late payment
charge equal to five percent (5%) of the amount then due (including both
principal and interest).
5. DEFAULT INTEREST RATE. Upon a default in the payment of any sum
due hereunder, Holder, in Holder's sole and absolute discretion and without
notice or demand, may raise the rate of interest accruing on the unpaid
principal balance hereof by three (3)
<PAGE>
percentage points above the rate of interest otherwise applicable,
independent of whether Holder elects to accelerate the unpaid principal
balance as a result of such default. If judgment is entered against Maker
on this Note, the amount of the judgment entered (which may include
principal, interest, fees and costs) shall bear interest at the default
interest rate described in this paragraph, to be determined on the date of
the entry of the judgment.
6. WAIVER REGARDING NOTICE. Maker and any endorsers or guarantors
of this Note severally waive presentment, demand and presentation for
payment, notice of nonpayment and dishonor, protest and notice of protest,
or any other notices of whatever kind or nature, bringing of suit and
diligence in taking any action to collect any sum owing hereunder. From
time to time, without in any way affecting the obligation of Maker to pay
the outstanding principal balance of this Note and any interest accrued
thereon and fully to observe and perform the covenants and obligations of
Maker under this Note, without affecting the duties and obligations of any
endorser hereto, without affecting the duties and obligations of any
guarantor hereof, without giving notice to or obtaining the consent of
Maker or any endorsers hereto or guarantor hereof and without liability on
the part of Holder, the Holder may, at its option, (i) extend the time for
payment of interest hereon and/or principal hereof, (ii) reduce the
payments hereunder, (iii) release anyone liable on this Note, (iv) accept
a renewal of this Note, (v) modify the terms and/or time of payment of this
Note, (vi) join in any extension or subordination, (vii) exercise any right
or election hereunder, and/or (viii) modify the rate of interest or period
of amortization or principal due date of this Note. No one or more of such
actions shall constitute a novation or operate to release any party liable
for this Note, either as Maker, endorser, guarantor or otherwise.
7. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" hereunder:
(a) Maker's failure to make any required payment of principal
and/or interest under this Note on or before the date such payment is due
hereunder; or
(b) Maker's failure to pay or perform any other obligation (other
than that described in Paragraph 7(a) above) required under this Note, and
such failure continues for a period of ten (10) days after Maker's receipt
of written notice from Holder of such failure; or
(c) The occurrence of any event of default or default under
(i) that certain Stock Purchase Agreement between Maker, Holder and David
Spezza of even date herewith (the "Stock Purchase Agreement"), (ii) that
certain Security Agreement between Maker, Holder and David Spezza of even
date herewith (the "Security Agreement"), (iii) that certain Pledge
Agreement between Maker, Holder and David Spezza of even date herewith (the
"Pledge Agreement"), (iv) any other document evidencing or securing the
Loan or (v) that certain Promissory Note of even date herewith from Maker
to David Spezza or any other
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document relating to or securing the debt evidenced by such note
(collectively, the Security Documents").
8. REMEDIES. Upon the occurrence of an Event of Default, Holder
shall have the right to cause the entire unpaid principal balance hereof,
together with all accrued interest thereon, attorneys' fees and all fees,
charges, costs and expenses, if any, owed by Maker to Holder hereunder, to
become immediately due and payable in full by giving written notice to
Maker. Upon the occurrence of an Event of Default, Holder may avail itself
of any and all legal and equitable rights and remedies which Holder may
have at law or in equity or under this Note or any other document
evidencing and/or securing the debt evidenced hereby, including, but not
limited to, the right to accelerate the indebtedness due under this Note as
described in the preceding sentence. The remedies of Holder hereof as
provided herein shall be distinct and cumulative, and may be pursued
singly, successively or together, at the sole discretion of Holder, and may
be exercised as often as occasion therefor shall arise. Failure to exercise
any of the foregoing options upon the occurrence of an Event of Default
shall not constitute a waiver of the right to exercise the same or any
other option at any subsequent time in respect of the same or any other
Event of Default, and no single or partial exercise of any right or remedy
shall preclude other or further exercise of the same or any other right or
remedy. Holder shall have no duty to exercise any or all of the rights and
remedies herein provided or contemplated. The acceptance by Holder of any
payment hereunder that is less than payment in full of all amounts due and
payable at the time of such payment shall not constitute a waiver of the
right to exercise any of the foregoing rights or remedies at that time, or
nullify any prior exercise of any such rights or remedies without the
express written consent of Holder.
9. EXPENSES OF COLLECTION. Should this Note be referred to an
attorney for collection after an Event of Default, whether or not suit has
been filed or any other action instituted or taken to enforce or collect
under this Note, Maker shall pay all of Holder's costs, fees (including
attorneys' fees) and expenses in connection with such referral and
enforcement.
10. GOVERNING LAW. The provisions of this Note shall be governed and
construed according to the internal laws of the State of Florida (without
regard to its laws relating to choice or conflicts-of-law). Should any
provision of this Note require judicial interpretation, it is agreed that
the court interpreting or considering the same shall not apply the
presumption that the terms hereof shall be more strictly construed against
any party by reason of the rule or conclusion that a document should be
construed more strictly against the party who itself or through its agent
prepared the same, it being agreed that all parties hereto have
participated in the preparation of this Note and that legal counsel was
consulted by each party hereto before the execution of this Note.
11. CONSENT TO JURISDICTION. Maker irrevocably submits to the
jurisdiction and venue of any state or Federal court sitting in the State
of Florida over any suit, action or proceeding arising out of, or relating
to, this Note. Maker irrevocably waives, to the fullest
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extent permitted by law, any objection that Maker may now or hereafter have
to the venue of any such suit, action or proceeding brought in any such
jurisdiction. Maker agrees to stipulate in any future proceeding that this
Note is to be considered for all purposes to have been executed and
delivered within the geographical boundaries of the State of Maryland, even
if it was, in fact, executed and delivered elsewhere.
12. WAIVER. Neither any course of dealing by Holder nor any failure
or delay on its part to exercise any right, power or privilege hereunder
shall operate as a waiver hereof unless said waiver is in writing and
signed by Holder, and then only to the extent specifically set forth in
said writing. A waiver as to one event shall not be construed as a
continuing waiver or as a bar to, or waiver of, any right or remedy as to
any subsequent event. Maker hereby waives the benefit of the Homestead
exemption as to the debts, obligations and covenant imposed by this Note
and/or the Assignment.
13. MODIFICATION. This Note may not be changed orally, but only by
an agreement in writing, signed by the party against whom any change,
modification or discharge is sought.
14. NOTICES. All notices hereunder shall be in writing and shall
either be hand-delivered with receipt therefor or sent by Federal Express
or Express Mail or any similar delivery service with guaranteed overnight
delivery or by certified mail, postage prepaid, return receipt requested,
as follows:
(i) If to Maker:
IntraTel Acquisition Company, Inc.
The Oaks
227 Saint James Park
Osprey, Florida 34229
Attention: Robert E. Yaw, II, Chairman
(ii) If to Holder
David Kanstoroom
28050 U.S. Highway 19 North
Suite 202
Clearwater, Florida 34621
Notices shall be effective when received; provided, that if any notice sent
by certified mail is properly returned as undeliverable, said notice shall
be effective when mailed. Any party may change the address to which notices
are to be delivered hereunder by giving written notice to the other party
as provided in this Paragraph 15.
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<PAGE>
15. ASSIGNMENT. Holder may assign or otherwise transfer this Note and
any other document pertaining to the Loan at any time or from time to time.
16. SEVERABILITY. In the event any one or more of the provisions
contained in this Note shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall, at the option of Holder hereof, not affect any
other provision of this Note and this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
17. LIMITATIONS OF APPLICABLE LAW. In the event the operation of any
provision hereof results in an effective rate of interest transcending the
limit of the usury or any other law applicable to the loan evidenced
hereby, all sums in excess of those lawfully collectible as interest for
the period in question shall, without further agreement or notice between
or by any party to this Note, be applied to the unpaid principal balance of
this Note immediately upon receipt of such monies by Holder, with the same
force and effect as though Maker had specifically designated such extra
sums to be so applied to the unpaid principal balance and Holder hereof had
agreed to accept such extra payment(s) as a prepayment.
18. CAPTIONS. The captions herein are for convenience of reference
only and in no way defined or limit the scope or content of this Note or in
any way affect its provisions.
19. DEBTOR-CREDITOR RELATIONSHIP. Holder shall in no event be
construed for any purpose to be a partner, joint venturer or associate of
Maker, it being the sole intention of the parties to establish a
relationship of debtor and creditor.
20. TIME OF ESSENCE. It is expressly agreed that time is of the
essence in the performance of the obligations set forth in this Note.
21. SECURITY. Payment of this Note is secured by the "Security
Documents," as defined in the Assignment, the terms and provisions of which
are incorporated herein and made a part hereof.
22. GENDER AND NUMBER. Feminine or neuter pronouns shall be
substituted for those of the masculine form, and the plural shall be
substituted for the singular number, in any place or places in which the
context may require such substitution.
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<PAGE>
IN WITNESS WHEREOF, Maker has executed this Promissory Note
specifically intending this Note to constitute an instrument under seal as
of the date set forth above pursuant to due authority.
Maker:
-----
INTRATEL ACQUISITION COMPANY, INC.
a Delaware corporation
By: /s/ ROBERT E. YAW
---------------------------------
Name: Robert E. Yaw, II
Title: Chairman
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<PAGE>
) TO WIT:
I HEREBY CERTIFY that on this 12th day of March, 1997, before me, the
undersigned Notary Public of the aforesaid jurisdiction, personally
appeared Robert E. Yaw II, Chairman of IntraTel Acquisition Company, Inc.
(the "Corporation"), a Delaware corporation, who acknowledged that he
executed the foregoing instrument on behalf of the Corporation for the
purpose therein contained.
IN WITNESS MY Hand and Notarial Seal.
/s/ BROOKE PASSON
-----------------------------
Notary Public
My commission expires:__________________
[Notarial Seal]
EXHIBIT 10.5
SECURITY AGREEMENT
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This Security Agreement dated this 12th day of March, 1997, by
IntraTel Acquisition Company, Inc., a Delaware corporation (hereinafter
referred to as the "Debtor"), in favor of David Kanstoroom and David Spezza
(collectively referred to hereinafter as the "Secured Party").
WHEREAS, as of even date herewith, the parties have entered into that
certain Stock Purchase Agreement (the "Stock Purchase Agreement"), whereby
Secured Party has agreed to sell a total of 365,694 shares of common stock
of Intelicom Corporation to the Debtor in exchange for cash, two promissory
notes in the face amount of $550,000 each (the "Promissory Notes") and
certain other contingent consideration;
WHEREAS, pursuant to the Stock Purchase Agreement, Debtor has agreed
to grant to Secured Party a perfected first priority security interest in
the Collateral described herein; and
WHEREAS, the parties hereto desire to set forth herein the terms and
conditions of their understandings and agreements.
NOW, THEREFORE, in consideration of the premises and the agreements
herein, the Debtor and Secured Party agree as follows:
SECTION 1. DEFINITIONS. All terms used in this Agreement which are
defined in Article 9 of the Uniform Commercial Code (the "Code") currently
in effect in the State of Florida, and which are not otherwise defined
herein, shall have the same meanings herein as set forth therein.
SECTION 2. GRANT OF SECURITY INTEREST. As collateral security for
all of the Obligations (as defined in Section 3 hereof), the Debtor hereby
pledges and assigns to the Secured Party, and grants to the Secured Party
a continuing perfected security interest in, and first priority lien on,
the following (the "Collateral");
a. all presently existing, now owned, or hereafter acquired
cash, accounts, accounts receivable, contract rights, chattel paper,
documents, notes, drafts, instruments, reserves, accounts, general
intangibles, money, deposit accounts, and security agreements and debts
secured thereby;
b. all presently existing or hereafter acquired goods,
inventory and other personal property in all stages of manufacture,
process, or production;
c. all presently existing or hereafter acquired equipment,
machinery, furniture, furnishings, fixtures, tools, supplies and motor
vehicles of every kind and description;
<PAGE>
d. all trademarks, trade names, tradestyles, copyrights,
patents, patent rights, service marks, technical processes, plans,
drawings, diagrams, schematics, assembly and display materials;
e. all negotiable and non-negotiable documents of title now
owned or hereafter acquired;
f. all books and records, including but not limited to computer
tapes, disks, programs, and other things upon which or in which such books
or records are stored or maintained together with all equipment, machinery
and inventory containing or used in connection with the use, preparation or
maintenance of such books and records; and
g. all substitutions, replacements, additions, accessions,
proceeds and products of any of the foregoing, whether due to voluntary or
involuntary disposition, including but not limited to money, deposit
accounts, goods, tax refunds, other tangible and intangible property, and
insurance and the proceeds thereof covering any of the foregoing.
SECTION 3. THE OBLIGATIONS. The security interest created hereby in
the Collateral constitutes continuing collateral security for the prompt
payment by the Debtor, as and when due and payable, of all amounts from
time to time owing in respect of the Promissory Notes, whether for
principal, interest or otherwise, and for all other obligations owed to
Secured Party under the Stock Purchase Agreement (but not the Contingent
Consideration) or any other document comprising the Purchase Consideration
(as defined in the Stock Purchase Agreement) (collectively, the
"Obligations").
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Debtor represents and
warrants as follows:
a. Debtor has the unconditional right, power and authority to
execute, pursue and complete this Agreement. The execution and delivery of
this Agreement and the completion of the transactions contemplated hereby
have been duly authorized by all required corporate action, and this
Agreement represents the legally valid and binding obligation of Debtor and
is enforceable against Debtor in accordance with its terms.
b. Debtor is not insolvent (as such term is described in 11
U.S.C. Section 101(32)), nor will the performance of its obligations under
this Agreement render Debtor insolvent.
c. the Debtor's chief place of business and chief executive
office, and the place where the Debtor keeps its records concerning the
Collateral is The Oaks, 227 Saint James Park, Osprey, Florida, 34229.
d. the Debtor owns the Collateral free and clear of any lien,
security interest or other charge or encumbrance except for the security
interest created by
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this Agreement, No effective financing statement or other instrument
similar in effect covering all or any part of the Collateral is on file in
any recording office except such as may have been filed in favor of the
Secured Party relating to this Agreement.
e. the exercise by the Secured Party of its rights and remedies
hereunder will not contravene any law or governmental regulation or any
contractual restriction binding on or affecting the Debtor or any of its
properties and will not result in or require the creation of any lien,
security interest or other charge or encumbrance upon or with respect to
any of its properties.
f. no authorization or approval or other action by, and no
notice to or filing with any governmental authority or other regulatory
body is required either for the grant by the Debtor of the security
interest created hereby in the Collateral or for the exercise by the
Secured Party of its rights and remedies hereunder.
g. this Agreement creates a valid first priority lien and
security interest in favor of the Secured Party in the Collateral. The
filing by the Secured Party of the financing statement required to be filed
pursuant to Florida law will perfect, and establish the first lien and
priority of, the Secured Party's security interest hereunder in the
Collateral securing the Obligations. Except as set forth in this Section
4(g), no action is necessary or desirable to perfect or otherwise protect
such security interest.
SECTION 5. COVENANTS AS TO THE COLLATERAL. So long as any of the
Obligations shall remain outstanding, unless the Secured Party shall
otherwise consent in writing:
a. FURTHER ASSURANCES. The Debtor will at its expense, at any
time and from time to time, promptly execute and deliver all further
instruments and documents and take all further action that may be necessary
or desirable or that the Secured Party may request in order (i) to perfect
and protect the security interest created or purported to be created
hereby; (ii) to enable the Secured Party to exercise and enforce its rights
and remedies hereunder in respect of the Collateral; or (iii) to otherwise
effect the purposes of this Agreement, including, without limitation,
executing and filing such financing or continuation statements, or
amendments thereto, as may be necessary or desirable or that the Secured
Party may request in order to perfect and preserve the security interest
created or purported to be created hereby, and furnishing to the Secured
Party from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Secured Party may reasonably request, all in reasonable
detail.
b. The Debtor will keep its chief place of business and chief
executive office and all originals of all chattel paper which evidence
Receivables at the location specified therefor in Section 4(c) hereof, and
will hold and preserve its records concerning the Receivables and such
chattel paper and permit representatives of the Secured
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<PAGE>
Party at any time during normal business hours to inspect and make
abstracts from such reports and chattel paper.
c. TRANSFERS AND OTHER LIENS. The Debtor will not (i) sell
assign (by operation of law or otherwise), exchange or otherwise dispose of
any of the Collateral or (ii) create or suffer to exist any lien, security
interest or other charge or encumbrance upon or with respect to any of the
Collateral except for the security interest created by this Agreement.
d. OWNERSHIP OF DEBTOR. During the term hereof, Debtor will
not issue any additional shares of its stock.
e. CHANGE OF PLACE OF BUSINESS. Debtor will notify Secured
Party in writing as to any change in Debtor's place of business, or, if
Debtor has or acquires more than one place of business, prior to any change
in such Debtor's chief executive office or offices of such Debtor's books
and records are kept.
f. CHANGE IN NAME. Debtor will immediately notify Secured
Party in writing of any proposed or actual change of Debtor's name,
identify or corporate structure.
g. TAXES AND LIENS. Debtor shall immediately notify the
Secured Party in the event there ever arises against any of the Collateral
any lien, assessment or tax or other liability, whether or not entitled to
priority over the Secured Party's security interest hereunder. In any such
event, whether or not such notice is given, the Secured Party shall have
the right (but shall be under no obligation) to pay any tax or other
liability of Debtor deemed by the Secured Party to affect the Secured
party's interests hereunder. The Debtor shall repay to the Secured Party on
demand all sums which the Secured Party shall have paid under this Section
in respect of taxes or other liabilities of the Debtor, with interest
thereon at the rate set forth in the Promissory Notes, and the Debtor's
liability to the Secured Party or such repayment with interest shall be
added to the principal amount of the Promissory Notes (in equal shares).
The Secured Party shall be subrogated to the extent of any such payment by
it to all the rights and liens of the payee against the Debtor's assets.
h. GOVERNMENTAL REGULATION. The Debtor is not subject to any
regulation pursuant to any federal, state or other statute or regulation or
similar restriction limiting its ability to sell or assign a security
interest in the Collateral or otherwise to consummate the transactions
contemplated hereby. The Debtor has duly filed any applicable tariffs and
taken or instituted all related proceedings necessary or appropriate in
connection with this ability or right to make charges which are part of the
Customer Base.
i. PROTECTION OF OWNERSHIP INTEREST. Debtor has not filed with
the Secretary of State of Florida, or any other state, an effective
Financing Statement covering any of the Collateral which would adversely
affect Secured Party's interest therein. To the extent that Secured Party
has not already perfected a security interest, upon Secured Party's filing
with
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the office of the appropriate Secretary of State the Financing Statements,
Secured Party will have a valid and perfected security interest in and
first priority lien on the Collateral, free and clear of all liens.
j. NO CONFLICT. The execution, delivery and performance of
this Security Agreement by Debtor will not: (i) violate any provision of
its applicable Articles or Certificate of Incorporation or Bylaws, or any
order, judgment or decree of any court or other agency or government
binding on any such Debtor; or (ii) violate any provision of law applicable
to Debtor or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under or permit an acceleration
or increased amortization of any obligation of Debtor, which violation,
conflict, breach, default, acceleration or increased amortization would
materially and adversely affect the validity, enforceability or
collectibility of the Collateral or materially and adversely affect the
ability of Debtor to perform its obligations herein, or (iii) result in or
require the creation or imposition of any lien of any nature whatsoever
upon any of the properties or assets of the Debtor, except as permitted or
contemplated herein; or (iv) require any approval of stockholders or any
approval or consent of any person under any obligation or contract of
Debtor to which Debtor is a party other than approvals or consents that
have been obtained and disclosed in writing to the Secured Party.
SECTION 6. ADDITIONAL OPTIONAL REQUIREMENTS. The Secured Party may,
at its sole discretion, require the following subject to the duty to keep
any and all information regarding the Collateral confidential and not to
disclose it to any third party;
a. RECORDS AND SCHEDULES. The delivery, periodically, to
Secured Party of records and schedules which show the status and condition
of the Collateral.
b. VERIFICATION AND INSPECTION. Verify the Collateral and
inspect the books and records of any Debtor and make copies thereof or
extracts therefrom.
c. INSPECTION RIGHTS. The right to enter the property where
any Collateral is located at reasonable times, to examine the Collateral,
and use any equipment and facilities of Debtor if Secured Party deems such
use necessary or advisable in order to inspect the Collateral.
SECTION 7. EVENTS OF DEFAULT. The breach by Debtor of any
representation, warranty, term, covenant or condition of this Agreement,
the Promissory Notes, the Stock Purchase Agreement or any other document
comprising the "Purchase Consideration" (as defined in the Stock Purchase
Agreement) shall be a default or event of default.
SECTION 8. SECURED PARTY'S REMEDIES UPON DEFAULT. In the event of
any default as provided in Section 7 herein, Secured Party may do any one
or more of the following:
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a. THE OBLIGATIONS DUE AND PAYABLE. Declare any outstanding
principal and accrued interest under the Obligations secured hereby
immediately due and payable, without notice or demand.
b. RIGHTS UNDER LAW. Exercise the rights and remedies of a
secured party under the Uniform Commercial Code or any other law.
c. ASSEMBLE SECURITY. Require Debtor to assemble the
Collateral and any records pertaining thereto and make them available to
Secured Party at a place designated by Secured Party,
d. SETTLE CLAIMS. Grant extensions and compromise or settle
claims for less than face value relative to any Collateral proceeds, all
without prior notice to the Debtor.
e. SEGREGATION OF COLLECTIONS AND PROCEEDS. Following an Event
of Default, the segregation of all collections and proceeds of the
Collateral so that they are capable of identification and deliver daily
such collections and proceeds to Secured Party in kind.
f. COLLECTION OF PROCEEDS. Following an Event of Default,
demand and collect any proceeds of the Collateral. In connection
therewith, the Debtor irrevocably authorizes Secured Party to endorse or
sign the Debtor's name on all insurance checks or drafts, collections
receipts or other documents, take possession of and open the mail addressed
to Debtor and remove therefrom any payments for any proceeds of the
Collateral.
SECTION 9. INDEMNIFICATION.
a. RIGHT TO INDEMNIFICATION. Anything herein contained to the
contrary notwithstanding and without prejudice to any other rights that the
Secured Party may have hereunder or under applicable law, Debtor agrees, to
the maximum extent permitted by law, to indemnify, pay and hold the Secured
Party, its employees and agents (collectively called the "Indemnitees")
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs and expenses
(including without limitation the reasonable fees and disbursements of
counsel for such Indemnitees and costs of investigation and accountants),
which may be imposed on, incurred by, or asserted against that Indemnitee
(collectively "Damages") in connection with the collection of, liquidation
or other servicing by Debtor with respect to the Collateral.
b. NOTIFICATION OF POTENTIAL LIABILITY. Debtor will notify the
Secured Party within ten (10) days after Debtor receives actual notice of
situations involving a potential material liability under this Section 9
and to the extent Debtor knows the same, the amount, if any, of such
material liability.
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c. LITIGATION. Debtor agrees, at its expense, upon the Secured
Party's reasonable request, to cooperate with the Secured Party in any
action, suit or proceeding brought by or against Secured Party relating to
this Section 9. In addition, Debtor agrees to notify the Secured Party and
the Secured Party agrees to notify Debtor at Debtor's expense, within ten
(10) days of its actual receipt of notice of a pending or threatened
material action, suit or proceeding. The Debtor agrees to consult with the
Secured Party concerning the defense and settlement of any action, suit or
proceeding covered by this Section 9.
SECTION 10. DEBTOR'S DEFAULT. If Debtor is at any time in default
under the Obligations, under this Agreement, or under any other
indebtedness or agreement with Secured Party, or if Debtor becomes
insolvent or ceases doing business as a going concern, or if a receiver is
appointed for Debtor or its property, or if a petition or answer asking for
an arrangement under the Bankruptcy Code (11 U.S.C. Section 101 ET. SEQ.)
is approved, then, in any such event, Secured Party may declare the unpaid
balance of the Promissory Notes to be due and payable forthwith. If any
such event occurs, Secured Party and any subsequent holder shall have all
the rights and remedies provided in this Agreement, in the Promissory
Notes, in any other document comprising the Purchase Consideration and in
the Uniform Commercial Code in force in the State of Florida at the date of
this Agreement and any other remedies available at law or equity. To the
extent permitted by law, any sale of Collateral by virtue of Secured
Party's exercise of any such rights and remedies may be public or private,
at such place and on such terms as the Secured Party may deem best. Debtor
consents that Secured Party or the holder may purchase at any public sale.
The net proceeds of sale, after deducting the expenses thereof, shall be
applied to the payment of the above mentioned Promissory Notes and all
protest fees, damages, interest, costs, expenses, attorneys' fees and
charges incurred by Secured Party or the holder in the collection of the
Promissory Notes and the paper or incident to the enforcement of payment of
any of Debtor's Obligations to Secured Party by any action or participation
in, or in connection with, a case or proceeding under any chapter of the
Bankruptcy Code, or any successor statute thereto. The surplus shall be
applied to any other indebtedness owing by Debtor to Secured Party or the
holder, and any balance shall be payable to Debtor. Debtor will pay any
deficiency forthwith.
SECTION 11. PAYMENT IN FULL. Upon the full payment of the
Obligations, if Debtor is not then in default under the terms of any other
obligation to Secured Party, Secured Party shall reassign and return all
Collateral to Debtor, and shall repay to Debtor any funds received by
Secured Party under this Agreement in excess of the principal, interest and
other amounts under the Obligations.
SECTION 12. WAIVERS. Debtor exonerates Secured Party or any
subsequent holder of the Obligations from any liability for loss or
depreciation of the Collateral, unless caused by Secured Party or such
holder. Neither Secured Party nor any subsequent holder shall be liable for
failure to present the paper for payment or protest, or to protest or give
notice of non-payment or any other notice with respect to any paper. Waiver
by Secured Party of any
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default by Debtor under this Agreement shall not constitute waiver of any
other default, and no provision hereof shall be waived except in writing by
Secured Party.
SECTION 13. MISCELLANEOUS.
a. No amendment or waiver of any provision of this Agreement,
and no consent to any departure by the Debtor therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Secured
Party and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
b. No failure on the part of the Secured Party to exercise, and
no delay in exercising, any right hereunder or under any other agreement
between the parties shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The Secured Party's
rights and remedies provided herein are cumulative and are in addition to,
and not exclusive of, any rights or remedies provided by law.
c. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or invalidity without
invalidating the remaining portions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
d. This Agreement shall be binding on the Debtor and its
successors and permitted assigns and shall inure, together with all rights
and remedies of the Secured Party hereunder, to the benefit of the Secured
Party and its successors, transferees and assigns. Without limiting the
generality of the foregoing, the Secured Party may assign or otherwise
transfer any or all of the Obligations and its rights under any other
document to any other Person, and such other Person shall thereupon become
vested with all of the benefits in respect thereof granted to the Secured
Party herein or otherwise. None of the rights or obligations of the Debtor
hereunder may be assigned or otherwise transferred without the prior
written consent of the Secured Party.
e. Upon the satisfaction in full of the Obligations, this
Agreement and the security interest created hereby shall terminate and all
rights to the Collateral shall revert to the Debtor. The Secured Party
will, upon the Debtors request and at the Debtor's expense, (i) return to
the Debtor such of the collateral as shall not have been sold or otherwise
disposed of or applied pursuant to the terms hereof, and (ii) execute and
deliver to the Debtor such documents as the Debtor shall reasonably request
to evidence such termination.
f. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, except as required by
mandatory provisions of law and except to the extent that the validity or
perfection of the security interest created
-8-
<PAGE>
hereby, or remedies hereunder, in respect of any particular Collateral are
governed by the laws of a jurisdiction other than the State of Florida.
IN WITNESS WHEREOF, the Debtor has caused this Agreement to be
executed and delivered by its officer thereunto duly authorized, as of the
date first above written.
INTRATEL ACQUISITION COMPANY, INC.
By: /s/ ROBERT E. YAW, II
--------------------------------
Name: Robert E. Yaw II
Title: Chairman of the Board
DAVID A. KANSTOROOM
/s/ DAVID A. KANSTOROOM
-----------------------------------
David A. Kanstoroom
DAVID SPEZZA
/s/ DAVID SPEZZA
-----------------------------------
David Spezza
-9-
EXHIBIT 10.6
PLEDGE AGREEMENT
----------------
This Pledge Agreement (the "Agreement") dated this 12 day of March,
1997 by IntraTel Acquisition Company, Inc., a Delaware corporation
hereinafter referred to as the "Pledgor"), in favor of David Kanstoroom and
David Spezza (collectively referred to hereinafter as the "Pledgee").
WHEREAS, as of even date herewith, the parties have entered into that
certain Stock Purchase Agreement (the "Stock Purchase Agreement"), whereby
Pledgee has agreed to sell a total of 365,694 shares of common stock of
Intelicom Corporation to the Pledgor in exchange for cash, two promissory
notes in the face amount of $550,000 each (the "Promissory Notes") and
certain other contingent consideration;
WHEREAS, pursuant to the Stock Purchase Agreement, Pledgor has agreed
to grant to Pledgee a perfected first priority security interest in the
Collateral described herein; and
WHEREAS, the parties hereto desire to set forth herein the terms and
conditions of their understandings and agreements
NOW, THEREFORE, in consideration of the premises and the agreements
herein, the Pledgor and Pledgee agree as follows:
1. THE PLEDGE. Pledgor, for valuable consideration and in order to
secure the performance of Pledgor's obligations under the Promissory Notes
of even date as well as Pledgor's obligations under that certain Stock
Purchase Agreement between Pledgor and Pledgee of even date (but not the
Contingent Consideration under such Stock Purchase Agreement) (the
"Obligations"), does hereby pledge, transfer and deliver to Pledgee, and
does hereby grant Pledgee a perfected first priority lien and security
interest (the "Security Interest") in 365,694 shares of common stock of
Intelicom Corporation, an SEC-registered Delaware corporation with
principal offices located at 28050 U.S. Highway 19 North, Suite 202,
Clearwater, Florida, 34621 ("Intelicom"), represented by Certificate Nos.
___ and ___ (the "Shares"), as well as any and all distributions with
respect to the Shares and any proceeds, increases, substitutions,
replacements, additions, and accessions thereof and thereto (together, with
the Shares, the "Collateral"). The Shares, when delivered to Pledgee by
Pledgor pursuant hereto, shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer
or assignment in blank. Pledgor agrees (a) that Pledgor will not sell,
assign, pledge, give, transfer or otherwise dispose of the Collateral or
any interest therein, or make any offer of attempt to do any of the
foregoing; and (b) that Pledgee and any transfer agent for the Shares shall
not be required to give effect to any purported transfer of any of the
Shares except in compliance with the foregoing restrictions. Pledgor has
not offered or sold any portion of the Shares and has no present intention
of dividing such Shares with others or of reselling or otherwise disposing
of any portion of such Shares.
<PAGE>
2. VOTING AGREEMENT WITH RESPECT TO SHARES. Pledgor hereby agrees
that until the Obligations are satisfied in full and subject to Pledgee's
written acknowledgment of same (which period shall be referred to
hereinafter as the "Voting Term"), Pledgee shall have full power and
authority to vote the Shares in any manner as Pledgee, in its sole and
absolute discretion, chooses (without any duty whatsoever to Pledgor), and
Pledgor shall have no voting rights whatsoever with respect to the Shares.
A counterpart of this Agreement shall be deposited with Intelicom at its
principal offices and shall be subject to the same rights of examination of
any stockholder of Intelicom, in person or by agent or attorney, as are the
books and records of Intelicom. At all meetings of the stockholders of
Intelicom, or with regard to any action taken pursuant to consent, during
the Voting Term, the Shares held or owned by Pledgee shall be voted upon by
Pledgee in the manner designated by them. To the extent necessary for the
enforcement hereof, this Agreement shall be deemed to provide Pledgee an
irrevocable proxy for the Voting Term, which such proxy is expressly agreed
between the parties hereto coupled with an interest as contemplated by
applicable law. Any of the Shares subject to this Section 2 shall remain so
subject, regardless of any conveyance thereof to any party, during the
Voting Term, and any party proposing to transfer any of the Shares in a
transaction which is not permitted shall secure a written agreement from
the transferee that such party agrees to be bound by the teens of this
Section 2 in form and substance satisfactory to Pledgee. Pledgor shall not
permit the voting of the Shares in contravention of the terms hereof.
3. DEFAULT. The breach by Pledgor of any representation, warranty,
term, covenant or condition of this Agreement, the Promissory Notes, the
Stock Purchase Agreement or any other document comprising the "Purchase
Consideration" (as defined in the Stock Purchase Agreement) shall be a
default or event of default.
4. REMEDIES UPON EVENT OF DEFAULT. If Pledgor is at any time in
default under the Obligations, under this Agreement, or under any other
indebtedness or agreement with Pledgee, or if Pledgor becomes insolvent or
ceases doing business as a going concern, or if a receiver is appointed for
Pledgor or its property, or if a petition or answer asking for an
arrangement under the Bankruptcy Code (11 U.S.C. Section 101 ET. SEQ.) is
approved, then, in any such event, Pledgee may declare the unpaid balance
of the Promissory Notes to be due and payable forthwith. If any such event
occurs, Pledgee and any subsequent holder shall have all the rights and
remedies provided in this Agreement, in the Promissory Notes, in any other
document comprising the Purchase Consideration and in the Uniform
Commercial Code in force in the State of Florida at the date of this
Agreement and any other remedies available at law or equity. To the extent
permitted by law, any sale of Collateral by virtue of Pledgee's exercise of
any such rights and remedies may be public or private, at such place and on
such terms as Pledgee may deem best. Pledgor consents that Pledgee or the
holder may purchase at any public sale. The net proceeds of sale, after
deducting the expenses thereof, shall be applied to the payment of the
above mentioned Promissory Notes and all protest fees, damages, interest,
costs, expenses, attorneys' fees and charges incurred by Pledgee or the
holder in the collection of the Promissory Notes or incident to the
enforcement of payment of any of Pledgor's Obligations to Pledgee by any
action or participation in, or in connection
-2-
<PAGE>
with, a case or proceeding under any chapter of the Bankruptcy Code, or any
successor statute thereto. The surplus shall be applied to any other
indebtedness owing by Pledgor to Pledgee or the holder, and any balance
shall be payable to Pledgor. Pledgor will pay any deficiency forthwith.
5. TERMINATION OF SECURITY INTEREST; RELEASE OF SHARES. Upon the
performance in full of the Obligations, (a) the Security Interest shall
automatically terminate and all rights to the Shares shall revert to
Pledgor, and (b) Pledgee shall return the Shares to Pledgor. Upon any such
termination of the Security Interest or release of Shares, Pledgee will, at
Pledgor's expense, execute and deliver to Pledgor such documents as Pledgor
shall reasonably request to evidence the termination of the Security
Interest or the release of the Shares, as the case may be.
6. NOTICES. Any notice, request, instruction or other document to
be given hereunder shall be in writing and, except as otherwise provided
for herein, shall be delivered personally or sent by registered or
certified mail as follows:
If to Pledgee:
DAVID A. KANSTOROOM
28050 U.S. 19 North, Suite 202
Clearwater, Florida 34621
and
DAVID SPEZZA
28050 U.S. 19 North, Suite 202
Clearwater, Florida 34621
If to Pledgor:
INTRATEL ACQUISITION COMPANY, INC.
The Oaks
227 Saint James Park
Osprey, Florida, 34229
ATTN: Robert E. Yaw II, Chairman
or to any subsequent address as to which the other party is advised in
accordance with the foregoing.
7. WAIVERS. Waiver by Pledgee of any default by Pledgor under this
Agreement shall not constitute waiver of any other default, and no
provision hereof shall be waived except in writing by Pledgee.
-3-
<PAGE>
8. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
as follows:
a. Pledgor has the unconditional right, power and
authority to execute, pursue and complete this Agreement. The execution and
delivery of this Agreement and the completion of the transactions
contemplated hereby have been duly authorized by all required corporate
action, and this Agreement represents the legally valid and binding
obligation of Pledgor and is enforceable against Pledgor in accordance with
its terms.
b. Pledgor is not insolvent (as such term is described in
11 U.S.C. Section 101(32)), nor will the performance of its obligations
under this Agreement render Pledgor insolvent.
c. the Pledgor's chief place of business and chief
executive office, and the place where the Pledgor keeps its records
concerning the Collateral is The Oaks, 227 Saint James Park, Osprey,
Florida, 34229.
d. the Pledgor owns the Collateral free and clear of any
lien, security interest or other charge or encumbrance except for the
security interest created by this Agreement, No effective financing
statement or other instrument similar in effect covering all or any part of
the Collateral is on file in any recording office except such as may have
been filed in favor of the Pledgee relating to this Agreement.
e. the exercise by the Pledgee of its rights and remedies
hereunder will not contravene any law or governmental regulation or any
contractual restriction binding on or affecting the Pledgor or any of its
properties and will not result in or require the creation of any lien,
security interest or other charge or encumbrance upon or with respect to
any of its properties.
f. no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or other regulatory
body is required either for the grant by the Pledgor of the security
interest created hereby in the Collateral or for the exercise by Pledgee of
its rights and remedies hereunder.
9. MISCELLANEOUS.
(a) No amendment or waiver of any provision of this Agreement,
and no consent to any departure by the Pledgor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Pledgee and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) No failure on the part of the Pledgee to exercise, and no
delay in exercising, any right hereunder or under any other agreement
between the parties shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The Pledgee's rights
and remedies
-4-
<PAGE>
provided herein are cumulative and are in addition to, and not exclusive
of, any rights or remedies provided by law.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or invalidity without
invalidating the remaining portions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
(d) This Agreement shall be binding on the Pledgor and its
successors and permitted assigns and shall inure, together with all rights
and remedies of the Pledgee hereunder, to the benefit of the Pledgee and
its successors, transferees and assigns. None of the rights or obligations
of the Pledgor hereunder may be assigned or otherwise transferred without
the prior written consent of the Pledgee.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, except as required by
mandatory provisions of law and except to the extent that the validity or
perfection of the security interest created hereby, or remedies hereunder,
in respect of the Collateral are governed by the laws of a jurisdiction
other than the State of Florida; provided, however, that the voting
agreement and irrevocable proxy contained in Section 2 hereof shall be
governed by and construed in accordance with the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, Pledgor and Pledgee have caused this Agreement to
be executed as of the date first above written.
INTRATEL ACQUISITION COMPANY, INC.
By: /s/ ROBERT E. YAW
------------------------------
Name: Robert E. Yaw II
Title: Chairman of the Board
DAVID A. KANSTOROOM
/s/ DAVID A. KANSTOROOM
---------------------------------
David A. Kanstoroom
DAVID SPEZZA
/s/ DAVID SPEZZA
---------------------------------
David Spezza
-5-
EXHIBIT 10.7
ADDENDUM/AMENDMENT TO STOCK PURCHASE AGREEMENT
----------------------------------------------
This Addendum/ Amendment (the "Amendment") is made and entered into
this 7th day of May, 1997 by and between IntraTel Group, Ltd., formerly
known as Intelicom Corporation and successor-in-interest to IntraTel
Acquisition Company, Inc. ("IntraTel"), and David Kanstoroom ("Kanstoroom")
and David Spezza ("Spezza").
WHEREAS, the parties entered into that certain Stock Purchase
Agreement dated March 12, 1997 (the "Agreement").
WHEREAS, the parties desire to amend the Agreement in the manner
provided for herein.
NOW THEREFORE, the parties do hereby enter into this Amendment and
herein agree as follows:
FIRST: Unless otherwise specifically set forth herein, all terms and
conditions of the Agreement shall remain unchanged and in full force and
effect.
SECOND: The Agreement is hereby amended to reflect that the term
"Contingent Consideration" as used therein shall be defined as follows:
"Contingent Consideration" shall mean the cash consideration to be
paid to Kanstoroom and Spezza in exchange for the sale of the stock
they are disposing of pursuant hereto which is contingent upon the
achievement of various of monthly retail customer billings on a
private-label resale basis levels (including all business added
subsequent to 11/1/96) utilizing Intelicom's existing marketing
structure. The Contingent Consideration will be based on the
following sliding scale: (i) if monthly retail billings equals between
$250,000.00 and $499,999.99 by the first anniversary of the closing of
the first secondary offering of IntraTel's common stock subsequent to
the execution hereof ("the Offering"), Kanstoroom
1
<PAGE>
and Spezza will receive $750,000 in cash to be divided between them
equally; (ii) if monthly retail billings equals between $500,000.00
and $749,999.99 by the second anniversary of the closing of the
Offering, Kanstoroom and Spezza will receive $1,000,000 in cash to be
divided between them equally (less any Contingent Consideration they
may have received previously); and (iii) if monthly retail billings is
$750,000.00 or over by the second anniversary of the closing of the
Offering, Kanstoroom and Spezza will receive $1,250,000 in cash to be
divided between them equally (less any Contingent Consideration they
may have received previously).
2
<PAGE>
WHEREFORE, the parties have executed this Amendment as of the date
first mentioned above.
IntraTel Group, Ltd.
By:/s/ ROBERT E. YAW II
--------------------------
Name: Robert E. Yaw II
Title: Chairman and CEO
/s/ DAVID KANSTOROOM
- -----------------------------
David Kanstoroom
/s/ DAVID SPEZZA
- -----------------------------
David Spezza
3
EXHIBIT 10.8
ADDENDUM/AMENDMENT TO EMPLOYMENT AGREEMENT
------------------------------------------
This Addendum/Amendment (the "Amendment") is made and entered
into this 7th day of May, 1997 by and between IntraTel Group, Ltd.,
formerly known as Intelicom Corporation and successor-in-interest
to Intratel Acquisition Company, Inc. ("IntraTel"), and David
Kanstoroom ("Kanstoroom").
WHEREAS, the parties entered into an Employment Agreement
dated March 12, 1997 (the "Agreement").
WHEREAS, the parties desire to correct and amend the Agreement
in the manner provided for herein.
NOW THEREFORE, the parties hereby enter into this Amendment
and herein agree as follows:
FIRST: Unless otherwise specifically set forth herein, all
terms and conditions of the Agreement shall remain unchanged and in
full force and effect.
SECOND: Any reference in the Agreement to a position on
IntraTel's Board of Directors in favor of Kanstoroom is incorrect
and/or a typographical error and therefore the Agreement is hereby
amended to reflect that: (a) any such reference is deleted and
eliminated from the Agreement, (b) any obligation of IntraTel to
appoint Kanstoroom to its Board of Directors is also deleted and
eliminated, and (c) IntraTel shall in no way be in breach of the
Agreement for failure to appoint Kanstoroom to its Board of
Directors.
1
<PAGE>
WHEREFORE, the parties have executed this Amendment as of the
date first mentioned above.
IntraTel Group, Ltd.
By:/s/ ROBERT E. YAW /s/ DAVID KANSTOROOM
--------------------- -----------------------
Name: Robert E. Yaw II David Kanstoroom
Title : Chairman and CEO
2
EXHIBIT 10.9
ADDENDUM/AMENDMENT TO EMPLOYMENT AGREEMENT
------------------------------------------
This Addendum/Amendment (the "Amendment") is made and entered
into this 7th day of May, 1997 by and between IntraTel Group, Ltd.,
formerly known as Intelicom Corporation and successor-in-interest
to Intratel Acquisition Company, Inc. ("IntraTel"), and David
Spezza ("Spezza").
WHEREAS, the parties entered into an Employment Agreement
dated March 12, 1997 (the "Agreement").
WHEREAS, the parties desire to correct and amend the Agreement
in the manner provided for herein.
NOW THEREFORE, the parties hereby enter into this Amendment
and herein agree as follows:
FIRST: Unless otherwise specifically set forth herein, all
terms and conditions of the Agreement shall remain unchanged and in
full force and effect.
SECOND: Any reference in the Agreement to a position on
IntraTel's Board of Directors in favor of Spezza is incorrect
and/or a typographical error and therefore the Agreement is hereby
amended to reflect that: (a) any such reference is deleted and
eliminated from the Agreement, (b) any obligation of IntraTel to
appoint Spezza to its Board of Directors is also deleted and
eliminated, and (c) IntraTel shall in no way be in breach of the
Agreement for failure to appoint Spezza to its Board of Directors.
1
<PAGE>
WHEREFORE, the parties have executed this Amendment as of the
date first mentioned above.
IntraTel Group, Ltd.
By: /s/ ROBERT E. YAW /s/ DAVID SPEZZA
---------------------- -------------------
Name: Robert E. Yaw II David Spezza
Title : Chairman and CEO
2
