STOCK PURCHASE AGREEMENT
BY AND BETWEEN
COMMUNICATION TELESYSTEMS INTERNATIONAL D.B.A. WORLDXCHANGE
COMMUNICATIONS
AND
ATOCHA, L.P.
FEBRUARY 3, 1999
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. PURCHASE AND SALE OF THE INITIAL SHARES . . . . . . . . . . . . . . . . . . .4
2.1 Purchase and Sale of the Initial Shares . . . . . . . . . . . . . . .4
2.2 Conditions Precedent to Sale of the Initial Shares . . . . . . . . . .4
3. SALE OF REMAINING SHARES. . . . . . . . . . . . . . . . . . . . . . . . . . .5
3.1 Sale of Remaining Shares . . . . . . . . . . . . . . . . . . . . . . .5
3.2 Conditions Precedent to Sale of Remaining Shares . . . . . . . . . . .5
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . . . . . . . . . .5
4.1 Organization and Corporate Power . . . . . . . . . . . . . . . . . . .5
4.2 Capital Stock and Related Matters . . . . . . . . . . . . . . . . . .6
4.3 Authorization; No Conflicts . . . . . . . . . . . . . . . . . . . . .6
4.4 Governmental Consent, etc. . . . . . . . . . . . . . . . . . . . . . .6
4.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . .6
4.6 No Brokers or Finders . . . . . . . . . . . . . . . . . . . . . . . .7
4.7 Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . .7
4.8 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . .7
4.9 Conformity with Law; Litigation . . . . . . . . . . . . . . . . . . .7
4.10 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
4.11 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . .7
4.12 Government Authorizations . . . . . . . . . . . . . . . . . . . . . .8
4.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
4.14 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER . . . . . . . . . . . . . . .8
5.1 Organization and Related Matters . . . . . . . . . . . . . . . . . . .8
5.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5.3 No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5.4 No Brokers or Finders . . . . . . . . . . . . . . . . . . . . . . . .8
5.5 Investment Representations . . . . . . . . . . . . . . . . . . . . . .8
6. TRANSFER OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
6.1 Restrictive Legends . . . . . . . . . . . . . . . . . . . . . . . . .10
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PAGE
6.2 Notice of Proposed Transfers . . . . . . . . . . . . . . . . . . . . 10
6.3 Permitted Transfers . . . . . . . . . . . . . . . . . . . . . . . . 10
7. CERTAIN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.1 Preemptive Rights . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.2 Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . 11
7.3 Board Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.4 Rule 144 Filing . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.5 HSR Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.1 Obligations of the Company . . . . . . . . . . . . . . . . . . . . . 12
8.2 Obligations of the Purchaser . . . . . . . . . . . . . . . . . . . . 12
8.3 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.4 Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.1 Amendments; Waivers . . . . . . . . . . . . . . . . . . . . . . . . 13
9.2 First Atocha Agreement . . . . . . . . . . . . . . . . . . . . . . . 13
9.3 Survival of Representations and Warranties . . . . . . . . . . . . . 13
9.4 Schedules; Exhibits; Integration . . . . . . . . . . . . . . . . . . 13
9.5 Best Efforts; Further Assurances . . . . . . . . . . . . . . . . . . 13
9.6 Governing Law and Forum Selection . . . . . . . . . . . . . . . . . 14
9.7 No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.10 Publicity and Reports . . . . . . . . . . . . . . . . . . . . . . . 14
9.11 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.12 Parties in Interest. . . . . . . . . . . . . . . . . . . . . . . . . 15
9.13 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.14 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.15 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.16 Representation By Counsel; Interpretation . . . . . . . . . . . . . 16
9.17 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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PAGE
9.18 No Consequential Damages . . . . . . . . . . . . . . . . . . . . . . 16
-iii-
SCHEDULES AND EXHIBITS
Schedule 4.2 Equity Securities
Schedule 4.14 Directors and Officers Liability Insurance
Exhibit A New Registration Rights Agreement
Exhibit B Form of Opinion of O'Melveny & Myers LLP - First Closing
Exhibit C Form of Opinion of O'Melveny & Myers LLP - Second Closing
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is dated February
3, 1999, by and between COMMUNICATION TELESYSTEMS INTERNATIONAL D.B.A.
WORLDXCHANGE COMMUNICATIONS, a California corporation (the "COMPANY"), and
ATOCHA, L.P., a Texas limited partnership (the "PURCHASER").
The parties hereby agree as follows:
1. DEFINITIONS.
1.1 Definitions.
1.1.1 For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires,
(a) the terms defined in this SECTION 1 have the
meanings assigned to them in this SECTION 1 and include the plural
as well as the singular,
(b) the words "herein," "hereof," "hereto" and
"hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, Subsection
or other subdivision, unless the context otherwise requires, and
(c) all accounting terms not otherwise defined
herein have the meanings assigned under generally accepted
accounting principles.
1.2 As used in this Agreement, the following definitions shall
apply.
"AFFILIATE" means a Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, a specified Person.
"AGREEMENT" means this Agreement by and between the Company and
the Purchaser as amended or supplemented together with the Exhibit and all
Schedules attached or incorporated by reference.
"APPROVAL" means any approval, authorization, consent,
qualification or registration, or any waiver of any of the foregoing, required
to be obtained from, or any notice, statement or other communication required to
be filed with or delivered to, any Governmental Entity or any other Person.
"AUDITORS" means Ernst & Young LLP, independent public accountants
to the Company.
"BALANCE SHEET DATE" means September 30, 1998.
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"COMPANY" means Communication TeleSystems International d.b.a.
WorldxChange Communications, a California corporation.
"CONTRACT" means any agreement, arrangement, bond, commitment,
franchise, indemnity, indenture, instrument, lease, license or understanding,
whether or not in writing.
"ENCUMBRANCE" means any claim, charge, easement, encumbrance,
lease, covenant, security interest, lien, option, pledge, rights of others, or
restriction (whether on voting, sale, transfer, disposition or otherwise),
whether imposed by agreement, understanding, law, equity or otherwise, except
for any restrictions on transfer generally arising under any applicable federal
or state securities law.
"EQUITY SECURITIES" means any capital stock of the Company
(including, without limitation, common stock and preferred stock) or other
equity interest in the Company or any securities convertible into or
exchangeable for capital stock of the Company or any other rights (statutory,
contractual or otherwise), warrants or options to acquire any of the foregoing
securities.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FIRST ATOCHA AGREEMENT" means that certain Stock Purchase
Agreement, dated September 30, 1998, by and among the Company, the Purchaser,
Roger B. Abbott, Rosalind Abbott and Edward S. Soren.
"GAAP" means generally accepted accounting principles in the
United States, as in effect from time to time.
"GOLD & APPEL" means Gold & Appel Transfer S.A., a British Virgin
Islands corporation.
"GOVERNMENTAL ENTITY" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the related regulations and published interpretations.
"HSR FILINGS" means the filing of a premerger notification and
report form by each of the Company and the Purchaser (with respect to the
transactions contemplated by this Agreement) and with the Federal Trade
Commission and the Antitrust Division of the Department of Justice.
"INDEMNIFIABLE CLAIM" means any Loss for or against which any
party is entitled to indemnification under this Agreement; "INDEMNIFIED PARTY"
means the party entitled to indemnity hereunder; and "INDEMNIFYING PARTY" means
the party obligated to provide indemnification hereunder.
"INITIAL CLOSING" has the meaning specified in SECTION 2.1.
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"INITIAL CLOSING DATE" has the meaning specified in SECTION 2.1.
"INITIAL SHARES" means 1,500,000 shares of Stock to be issued by
the Company pursuant to SECTION 2.
"LAW" means any constitutional provision, statute or other law,
rule, regulation, or interpretation of any Governmental Entity and any Order.
"LOSS" means any action, cost, damage, disbursement, expense,
liability, loss, deficiency, diminution in value, obligation, penalty or
settlement of any kind or nature, whether foreseeable or unforeseeable,
including but not limited to, interest or other carrying costs, penalties,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, that may be imposed on or otherwise incurred or suffered by the
specified person, but excluding any consequential damages.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
financial condition and business operations of the Company and its Subsidiaries
taken as a whole.
"MATERIAL CONTRACT" means any Contract material to the business of
the subject Person as of the date hereof.
"NEW REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement in the form attached as EXHIBIT A.
"OFFERING MEMORANDUM" means that certain preliminary offering
circular, prepared by the Company, dated May 4, 1998 (the "PRELIMINARY OFFERING
CIRCULAR") as supplemented by a supplement to the Preliminary Offering Circular,
prepared by the Company, dated December 31, 1998, in the form delivered to
Purchaser with this Agreement.
"ORDER" means any decree, injunction, judgment, order, ruling,
assessment or writ.
"PERSON" means an association, a corporation, an individual, a
partnership, a trust or any other entity or organization, including a
Governmental Entity.
"PROCEEDING" means any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative,
investigative, or informal) commenced, brought, conducted, or heard by or
before, any Governmental Entity or arbitrator.
"PURCHASER" means Atocha, L.P., a Texas limited partnership.
"REGISTRATION RIGHTS AGREEMENT" means that certain Registration
Rights Agreement, dated as of September 30, 1998, by and among the Company and
the investors set forth on the signature pages thereto.
"REMAINING SHARES" means 1,500,000 shares of Stock to be issued by
the Company at the Second Closing.
3
"SEC" means the Securities and Exchange Commission or any
successor entity.
"SECOND CLOSING" has the meaning specified in SECTION 3.1.
"SECOND CLOSING DATE" has the meaning specified in SECTION 3.1.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"STOCK" means the common stock of the Company, no par value.
"SUBSIDIARY" means any Person in which the Company has a direct or
indirect equity or ownership interest in excess of 50%.
"TAX" or "TAXES" means all federal, state, local or foreign net or
gross income, gross receipts, net proceeds, sales, use, AD VALOREM, value added,
franchise, bank shares, withholding, payroll, employment, excise, property,
deed, stamp, alternative or add-on minimum, environmental or other taxes,
assessments, duties, fees, levies or other governmental charges of any nature
whatsoever, whether disputed or not, together with any interest, penalties,
additions to tax or additional amounts with respect thereto.
2. PURCHASE AND SALE OF THE INITIAL SHARES.
2.1 PURCHASE AND SALE OF THE INITIAL SHARES. Subject to SECTION
2.2, on or before the later to occur of (i) February 5, 1999 or (ii) the first
business day after the date that all of the conditions set forth in SECTION 2.2
have been satisfied or waived by the parties, the Purchaser shall deliver by
wire transfer of immediately available funds the amount of $15,000,000 to the
Company against the delivery by the Company to the Purchaser of a certificate,
issued in the name of the Purchaser, evidencing the Initial Shares (the "INITIAL
CLOSING"). The date on which the Initial Closing occurs shall be the "INITIAL
CLOSING DATE."
2.2 CONDITIONS PRECEDENT TO SALE OF THE INITIAL SHARES. The
obligations of the Company and the Purchaser to sell and purchase the Initial
Shares, respectively, are subject to the satisfaction, at or prior to the
Initial Closing Date, of each of the following conditions (which shall be the
only conditions to the Initial Closing and any of which may be waived by the
agreement of both parties, in whole or in part):
2.2.1 NO PROHIBITION. Neither the consummation nor the
performance of any of the transactions contemplated by this
Agreement at the Initial Closing will, directly or indirectly
(with or without notice or lapse of time), materially contravene
or conflict with, or result in a material violation of, any
applicable Law or Order.
2.2.2 HSR APPROVAL. Any waiting period applicable to the
transactions contemplated by this Agreement under the HSR Act
shall have expired or been terminated.
2.2.3 BRING-DOWN OF SELECTED REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company set forth in the
following portions
4
of the indicated Sections of this Agreement shall be true and
correct as of the Initial Closing Date: (1) the first two
sentences of Section 4.1; (2) the last sentence of Section 4.2;
(3) the first sentence of Section 4.3; and (4) the second sentence
of Section 4.3, except as to clause (ii) thereof.
In addition to being subject to the satisfaction of the conditions
specified in Sections 2.2.1, 2.2.2 and 2.2.3, the Purchaser's obligations to
purchase the Initial Shares shall also be conditioned on Purchaser's receipt
from the Company of an opinion of O'Melveny & Myers LLP, dated the Initial
Closing Date, in the form attached hereto as EXHIBIT B.
3. SALE OF REMAINING SHARES
3.1 SALE OF REMAINING SHARES. Subject to Section 3.2, on or before
April 1, 1999 the Purchaser shall deliver by wire transfer of immediately
available funds the amount of $15,000,000 to the Company against the delivery by
the Company to the Purchaser of a certificate, issued in the name of the
Purchaser, evidencing the Remaining Shares (the "SECOND CLOSING"). The date on
which the Second Closing occurs shall be the "SECOND CLOSING DATE."
3.2 CONDITIONS PRECEDENT TO SALE OF REMAINING SHARES. The
obligations of the Company and the Purchaser to sell and purchase the Remaining
Shares, respectively, are subject to the satisfaction, at or prior to the Second
Closing, of each of the following conditions (any of which may be waived by the
agreement of both parties, in whole or part):
3.2.1 NO PROHIBITION. Neither the consummation nor the
performance of any of the transactions contemplated by this
Agreement at the Second Closing will, directly or indirectly (with
or without notice or lapse of time), materially contravene or
conflict with, or result in a material violation of, any
applicable Law or Order.
3.2.2 HSR APPROVAL. Any waiting period applicable to the
transactions contemplated by this Agreement under the HSR Act
shall have expired or been terminated.
3.2.3 BRING-DOWN OF SELECTED REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company set forth in the
following portions of the indicated Sections of this Agreement
shall be true and correct as of the Second Closing Date: (1) the
first two sentences of Section 4.1; (2) the last sentence of
Section 4.2; (3) the first sentence of Section 4.3; and (4) the
second sentence of Section 4.3, except as to clause (ii) thereof.
In addition to being subject to the satisfaction of the conditions
specified in Sections 3.2.1, 3.2.2 and 3.2.3, the Purchaser's obligations to
purchase the Remaining Shares shall also be conditioned on Purchaser's receipt
from the Company of an opinion of O'Melveny & Myers LLP, dated the Second
Closing Date, in the form attached hereto as EXHIBIT C.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
5
Except as otherwise disclosed in the Offering Memorandum or as set
forth in the attached Schedules, the Company represents and warrants that as of
the date hereof:
4.1 ORGANIZATION AND CORPORATE POWER. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California. The Company has all requisite corporate power and corporate
authority necessary to (i) execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby and (ii) own and operate its
properties and to carry on its business as now conducted and as presently
proposed to be conducted. The copies of the Company's charter documents and
bylaws furnished to the Purchaser's counsel reflect all amendments made thereto
at any time prior to the date of this Agreement and are correct and complete.
The Company is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each state or other jurisdiction in which either
the ownership or use of the properties owned or used by it, or the nature of the
activities conducted by it, requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect.
4.2 CAPITAL STOCK AND RELATED MATTERS. The authorized capital
stock of the Company is as set forth in its articles of incorporation and the
outstanding capital stock, options and other rights to acquire capital stock
and shares reserved for issuance as of December 31, 1998 are as set forth in
SCHEDULE 4.2. Except as set forth in SCHEDULE 4.2 and as contemplated by this
Agreement, as of December 31, 1998: (i) the Company does not have outstanding
any stock or securities convertible or exchangeable for any shares of capital
stock, nor are there outstanding any rights or options to subscribe for or to
purchase any capital stock or any stock or securities convertible into or
exchangeable for any capital stock of the Company, and (ii) the Company is
not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock. All of the
outstanding shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. The Initial Shares
and the Remaining Shares, when issued and sold in accordance with the terms
of this Agreement, will be duly authorized and validly issued, fully paid and
nonassessable.
4.3 AUTHORIZATION; NO CONFLICTS. The execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company. This Agreement constitutes the
legally valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms. The execution, delivery and performance
of this Agreement, and the consummation of the transactions contemplated
hereby, by the Company will not violate, or constitute a breach or default
whether upon lapse of time and/or the occurrence of any act or event or
otherwise under (i) the charter documents or bylaws of the Company, (ii) any
Material Contract to which the Company is a party, or (iii) any material Law
or Order to which the Company is subject.
4.4 GOVERNMENTAL CONSENT, ETC. Except for the HSR Filings, no
further permit, consent, Approval, authorization of, declaration to, or filing
with any Governmental Entity is required in connection with the execution,
delivery and performance of this Agreement by the Company or the consummation by
the Company of any transactions contemplated hereby, except as have already been
obtained or accomplished.
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4.5 FINANCIAL STATEMENTS.
4.5.1 AUDITED FINANCIAL STATEMENTS. The Company has delivered to
the Purchaser consolidated balance sheets for the Company and its
Subsidiaries at September 30, 1998, 1997 and 1996 and the related
consolidated statements of operations, changes in stockholder's
equity and changes in financial position or cash flow for the
periods then ended. All such financial statements have been
examined by the Auditors whose reports thereon are included with
such financial statements. All such financial statements have been
prepared in conformity with GAAP. Such statements of operations
and cash flow present fairly in all material respects the results
of operations and cash flows of the Company and its Subsidiaries
for the respective periods covered, and the balance sheets present
fairly in all material respects the financial condition of the
Company and its Subsidiaries as of their respective dates.
4.5.2 UNAUDITED INTERIM FINANCIAL STATEMENTS. The Company has
delivered to the Purchaser an unaudited consolidated balance sheet
for the Company and its Subsidiaries at October 31, 1998 and
November 30, 1998, and the related unaudited consolidated
statements of operations and cash flows and changes in
stockholder's equity for the periods then ended (the "INTERIM
STATEMENTS"). The Interim Statements have been prepared in
conformity with GAAP applied on a consistent basis except for (i)
changes, if any, disclosed therein (except for the absence of
notes and normal year-end adjustments consistent with past
practices) and (ii) information in the Interim Statements
concerning EBITDA, which is not determined in accordance with
GAAP. The statements of operations present fairly the results of
operations of the Company and its Subsidiaries for the period
covered, and the balance sheets present fairly in all material
respects the financial condition of the Company as of the
respective date of each balance sheet.
4.6 NO BROKERS OR FINDERS. No agent, broker, finder, or
investment or commercial banker, or other Person or firm engaged by or acting
on behalf of the Company or its Affiliates in connection with the
negotiation, execution or performance of this Agreement or the transactions
contemplated by this Agreement, is or will be entitled to any brokerage or
finder's or similar fee or other commission as a result of this Agreement or
such transactions.
4.7 ACCURACY OF INFORMATION. As of December 31, 1998, except as
to any information pertaining to general industry or regulatory matters,
including without limitation any information pertaining to general industry
or regulatory matters set forth in the risk factors and business sections of
the Offering Memorandum, the Offering Memorandum does not contain any untrue
statement of a material fact, or fail to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
4.8 NO MATERIAL ADVERSE CHANGE. Since the Balance Sheet Date,
there has not been any Material Adverse Effect.
7
4.9 CONFORMITY WITH LAW; LITIGATION. To the knowledge of the
Company, the Company has complied with all Laws applicable to it or to the
operation of its business and has not received any written notice of any
violation of, liability or potential responsibility under, any such Law which
has not heretofore been cured and for which there is no remaining liability,
other than, in each case, those not having a Material Adverse Effect.
4.10 ERISA. Each Company employee benefit plan that is subject
to ERISA has been administered in compliance with the applicable requirements of
ERISA, except for such noncompliance, if any, that in the aggregate, would not
have a Material Adverse Effect.
4.11 ENVIRONMENTAL MATTERS. To the knowledge of the Company, all
real property now or previously owned, operated or leased by the Company and
located in the United States has been operated by the Company in compliance with
all applicable Environmental Laws, except for such noncompliance, if any, that
would not have a Material Adverse Effect. As used herein, "ENVIRONMENTAL LAW"
means any federal, state, or local law, statute, rule or regulation governing or
relating to the environment or to occupational health and safety.
4.12 GOVERNMENT AUTHORIZATIONS. The Company has all federal,
state and local governmental licenses, permits and other authorizations,
including without limitation all licenses and authorizations required by the
United State Federal Communications Commission (the "FCC") and by state public
utilities commissions (collectively, "COMPANY PERMITS"), necessary to conduct
the Company's business as presently conducted, except where the failure to hold
any such licenses, permits and other authorizations would not result in a
Material Adverse Effect.
4.13 TAXES. To the knowledge of the Company, all Taxes owed by
the Company have been paid or accrued on the Company's financial statements,
except where the failure to pay or accrue such Taxes would not result in a
Material Adverse Effect.
4.14 INSURANCE. SCHEDULE 4.14 sets forth a true and correct
description of the directors and officers liability insurance policy currently
maintained by the Company. There have been no claims made against such insurance
policy.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants that:
5.1 ORGANIZATION AND RELATED MATTERS. The Purchaser is a limited
partnership duly organized, validly existing and in good standing under the laws
of Texas. The Purchaser has all requisite partnership power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
5.2 AUTHORIZATION. The execution, delivery and performance of this
Agreement by the Purchaser and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary partnership action on the part
of the Purchaser. This Agreement constitutes the legally valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
8
5.3 NO CONFLICTS. The execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby, by the
Purchaser will not violate, or constitute a breach or default whether upon lapse
of time and/or the occurrence of any act or event or otherwise under (i) the
Certificate of Limited Partnership or the partnership agreement of the
Purchaser, (ii) any Material Contract to which the Purchaser is a party, or
(iii) any material Law or Order to which the Purchaser is subject.
5.4 NO BROKERS OR FINDERS. No agent, broker, finder or investment
or commercial banker, or other Person or firm engaged by or acting on behalf of
the Purchaser or its Affiliates in connection with the negotiation, execution or
performance of this Agreement or the transactions contemplated by this
Agreement, is or will be entitled to any broker's or finder's or similar fee or
other commission as a result of this Agreement or such transactions.
5.5 INVESTMENT REPRESENTATIONS.
5.5.1 This Agreement is made with the Purchaser in reliance upon
the Purchaser's representation to the Company, which by the
Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that (i) the Initial Shares and the Remaining Shares are
being acquired for investment for the Purchaser's own account, not
as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that the Purchaser has no
present intention of selling, granting any participation in, or
otherwise distributing the same; and (ii) the Purchaser does not
have any Contract, undertaking, agreement or arrangement with any
Person to sell, transfer or grant participations to any Person
with respect to any of the Initial Shares or Remaining Shares.
5.5.2 The Purchaser has not been attracted to the purchase of the
Initial Shares or Remaining Shares by any publication or any
advertising, and the transactions contemplated by this Agreement
are not being effected by or through a broker-dealer.
5.5.3 The Purchaser is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated by the SEC, as
presently in effect.
5.5.4 The Purchaser understands that (i) neither the Initial
Shares nor the Remaining Shares nor the sale thereof to it have or
has been registered under the Securities Act, or under any state
securities law, (ii) no registration statement has been filed with
the SEC, nor with any other regulatory authority and that, as a
result, any benefit which might normally accrue to an investor
such as the Purchaser by an impartial review of such a
registration statement by the SEC or other regulatory commission
will not be forthcoming; and (iii) the Initial Shares and the
Remaining Shares are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public
offering and that under such laws and applicable regulations such
securities may be resold without registration under the Securities
Act only in certain limited circumstances. In this connection, the
Purchaser represents that it is familiar with the SEC's Rule 144,
as presently in
9
effect, and understands the resale limitations imposed thereby and
by the Securities Act.
5.5.5 The Purchaser acknowledges that (i) it is represented by
counsel, (ii) it has received and carefully reviewed a copy of the
Offering Memorandum and this Agreement; (iii) it has received all
information it considers necessary or appropriate for deciding
whether to purchase the Initial Shares and the Remaining Shares;
(iv) as a result of its knowledge of the telecommunications
industry, its study of the aforementioned documents and its prior
overall experience in financial matters, it is properly able to
evaluate the capital structure of the Company, the business of the
Company and its Subsidiaries and the risks inherent therein; and
(v) it has been given the opportunity to obtain any additional
information or documents from, and to ask questions and receive
answers of, the officers and representatives of the Company to the
extent necessary to evaluate the merits and risks related to its
investment in the Company.
6. TRANSFER OF SHARES. The Initial Shares and the Remaining Shares are not
transferable except upon the conditions specified in this SECTION 6, which
conditions are intended to assure compliance with the provisions of the
Securities Act and state securities laws in respect of the transfer of any of
the Initial Shares or Remaining Shares.
6.1 RESTRICTIVE LEGENDS. Unless and until otherwise permitted
by this Agreement, the Initial Shares and the Remaining Shares issued to the
Purchaser pursuant to this Agreement shall be stamped or otherwise imprinted
with legends in substantially the following forms:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS AND THUS MAY NOT BE TRANSFERRED UNLESS REGISTERED
OR QUALIFIED UNDER THAT ACT OR SUCH LAWS OR UNLESS AN EXEMPTION FROM
REGISTRATION OR QUALIFICATION IS AVAILABLE."
"SUCH SECURITIES ARE ALSO SUBJECT TO THE RESTRICTIONS ON
TRANSFER CONTAINED IN A STOCK PURCHASE AGREEMENT; DATED FEBRUARY 3,1999,
BY AND BETWEEN COMMUNICATION TELESYSTEMS INTERNATIONAL D.B.A.
WORLDXCHANGE COMMUNICATIONS AND ATOCHA, L.P., COPIES OF WHICH MAY BE
OBTAINED FROM THE SECRETARY OF THE COMPANY."
The Company may order its transfer agents to stop the transfer of any Initial
Shares or Remaining Shares bearing a legend required by this SECTION 6.1
until the conditions herein with respect to transfer of such securities have
been satisfied.
6.2 NOTICE OF PROPOSED TRANSFERS. Subject to SECTION 6.1, prior
to any transfer or attempted transfer of the Initial Shares or Remaining
Shares bearing the legend in SECTION 6.1, the Purchaser or its permitted
assignee, transferee or donee (the "HOLDER") shall give the Company written
notice of its intention to do so, describing briefly the nature of any such
10
proposed transfer. If, in the written opinion of counsel for Holder,
addressed to the Company and the Holder, in form and substance reasonably
acceptable to the Company, the proposed transfer may be effected without
registration of such Initial Shares or Remaining Shares, the Initial Shares
or Remaining Shares proposed to be transferred may be transferred in
accordance with the terms of said notice and in compliance with applicable
state securities laws and regulations. The Company shall not be required to
effect any such transfer prior to the receipt of such favorable opinion;
provided that if the proposed transfer is governed by Rule 144 promulgated by
the SEC, or any successor rule, such opinion shall not be required, but the
Company may prevent such transfer until it receives evidence satisfactory to
it and its counsel that the transfer complies with Rule 144. Each transfer
shall comply with all applicable SEC rules and applicable state securities
laws.
6.3 PERMITTED TRANSFERS. Notwithstanding anything to the
contrary in this Agreement, Purchaser may transfer Initial Shares or
Remaining Shares to any Affiliate of Purchaser in accordance with the
provisions of SECTIONS 6.1 and 6.2; provided that the transferee shall hold
such Initial Shares or Remaining Shares subject to the same restrictions
applicable to its transferor and shall agree in writing to be bound by the
terms of this Agreement.
7. CERTAIN COVENANTS.
7.1 PREEMPTIVE RIGHTS.
7.1.1 Purchaser shall have the right to subscribe to any
additional (i) issuances of shares of capital stock of the
Company, (ii) issuances of securities convertible into shares of
capital stock of the Company, or (iii) grants of options to
purchase shares of capital stock of the Company, other than grants
to employees, directors or consultants of the Company (and the
issuance of shares upon exercise of such options), for cash, on
the same terms of such offerings to the extent equal to the
proportion which the number of shares of Stock then held by
Purchaser bears to the Company's fully-diluted capitalization (on
an as-converted and as-exercised basis). Such right is exercisable
within ten (10) days after the receipt of written notice relating
to such issuances by the Purchaser. Such right extends to the same
proportion of the new issue of shares, convertible securities or
options as the Purchaser's proportion of the outstanding shares.
7.1.2 Purchaser's right to purchase new issues of shares or
convertible securities or options does not extend to (i) the
issuance of shares upon the conversion or exercise of options or
other convertible securities either (A) outstanding on the date
hereof, or (B) with respect to which options or other convertible
securities Purchaser had preemptive rights under this SECTION 7.1,
or (ii) securities issued solely in exchange for shares,
convertible securities or options issued in connection with any
merger, reorganization or acquisition (including, without
limitation, shares of Stock issued in connection with the pending
merger of WorldxChange Limited (New Zealand)).
7.1.3 The preemptive rights held by the Purchaser pursuant to
this SECTION 7.1 supersede and replace the preemptive rights held
by the Purchaser pursuant to the
11
First Atocha Agreement such that the preemptive rights held by the
Purchaser pursuant to the First Atocha Agreement shall terminate
as of the Initial Closing.
7.1.4 The preemptive rights held by the Purchaser pursuant to
this SECTION 7.1 shall terminate immediately prior to the closing
of an initial public offering of the Company's securities and
shall not apply to any issuance of securities in such offering.
7.2 REGISTRATION RIGHTS. The Company and Purchaser, concurrently
with the Initial Closing, shall execute and deliver the New Registration Rights
Agreement.
7.3 BOARD MATTERS. Beginning on and contingent upon the occurrence
of the Initial Closing Date and until the earlier to occur of (i) such time as
the Purchaser and Gold & Appel, collectively, do not own at least five percent
of the issued and outstanding Stock, or (ii) such time as the Company becomes
subject to the reporting requirements of Section 13 of the Exchange Act, the
Purchaser shall have the right to designate one (1) nominee to the Company's
Board of Directors. Notwithstanding the foregoing, (i) prior to such time as the
Company becomes subject to Section 13 of the Exchange Act, such nominee shall be
Thomas Ciritto, unless Thomas Ciritto is unable to serve due to a physical or
mental incapacity, in which case the Purchaser has the right to designate
another nominee, and (ii) the Purchaser shall have the right to designate one
(1) nominee to the Company's initial Board of Directors after the Company
becomes subject to Section 13 of the Exchange Act, provided that if such nominee
is not Thomas Ciritto, the nominee shall be subject to the approval of the
Company.
7.4 RULE 144 FILING. After the Company's Common Stock is
registered under the Exchange Act, and until the Initial Shares and the
Remaining Shares held by Purchaser have all been publicly sold or are eligible
for sale under Rule 144(k) under the Securities Act, the Company shall use best
efforts to file the reports required under Rule 144(c)(1) under the Securities
Act in order to permit sales of the Initial Shares and Remaining Shares by
Purchaser pursuant to Rule 144.
7.5 HSR FILINGS. The Company and the Purchaser each agree to use
best efforts to cause the HSR Filings to be made promptly after the execution
and delivery of this Agreement. The Company and the Purchaser each agree to
furnish each other with such necessary information and reasonable assistance as
the other may request in connection with the HSR Filings.
8. INDEMNIFICATION.
8.1 OBLIGATIONS OF THE COMPANY. The Company agrees to indemnify
and hold harmless the Purchaser from and against any and all Losses of the
Purchaser based upon or arising from any inaccuracy in or breach or
nonperformance of any of the representations, warranties, or covenants made or
obligations undertaken by the Company in this Agreement.
8.2 OBLIGATIONS OF THE PURCHASER. The Purchaser agrees to
indemnify and hold harmless the Company from and against any and all Losses of
the Company based upon or arising from, any inaccuracy in or breach or
nonperformance of any of the representations, warranties or covenants made by
the Purchaser in this Agreement.
12
8.3 PROCEDURE.
8.3.1 NOTICE. Any party seeking indemnification with respect to
any Loss shall give notice to the party required to provide
indemnity hereunder (the "INDEMNIFYING PARTY").
8.3.2 DEFENSE. If any claim, demand or liability is asserted by
any third party against any Indemnified Party, the Indemnifying
Party shall upon the written request of the Indemnified Party,
defend any actions or proceedings brought against the Indemnified
Party in respect of matters embraced by the indemnity. If, after a
request to defend any action or proceeding, the Indemnifying Party
does not defend the Indemnified Party, a recovery against the
latter suffered by it in good faith, is conclusive in its favor
against the Indemnifying Party, provided however that, if the
Indemnifying Party has not received reasonable notice of the
action or proceeding against the Indemnified Party, or is not
allowed to control its defense, judgment against the Indemnified
Party is only presumptive evidence against the Indemnifying Party.
The parties shall cooperate in the defense of all third party
claims which may give rise to Indemnifiable Claims hereunder. In
connection with the defense of any claim, each party shall make
available to the party controlling such defense, any books,
records or other documents within its control that are reasonably
requested in the course of such defense.
8.4 EXCLUSIVE REMEDY. This SECTION 8 shall be the exclusive remedy
of the parties for any Loss of such party based upon or arising from any
inaccuracy in or breach or nonperformance of any of the representations,
warranties, or covenants made by any other party to this Agreement.
Notwithstanding the foregoing, Purchaser shall have the right to the remedy of
specific performance with respect to SECTIONS 2.1, 3.1, 7.1, 7.3 AND 7.4.
9. GENERAL.
9.1 AMENDMENTS; WAIVERS. This Agreement and any schedule attached
hereto may be amended only by agreement in writing of all parties. No waiver of
any provision nor consent to any exception to the terms of this Agreement shall
be effective unless in writing and signed by the party to be bound and then only
to the specific purpose, extent and instance so provided.
9.2 FIRST ATOCHA AGREEMENT. Except as provided in SECTION 7.1 or
as otherwise expressly provided in this Agreement, the terms and provisions of
the First Atocha Agreement (i) are hereby ratified and confirmed, (ii) shall
continue in full force and effect, and (iii) shall be unaffected by any
provisions of this Agreement.
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as set
forth in the following sentence, all representations and warranties of the
Company and the Purchaser set forth in this Agreement or expressly incorporated
herein by reference shall, as of the first anniversary of the date of this
Agreement, expire and terminate and be of no further force or effect.
Notwithstanding the foregoing, (i) the representations and warranties set forth
in SECTION 4.7 (Accuracy of Information) shall survive until the thirtieth day
following delivery by the
13
Company to the Purchaser of audited financial statements for the fiscal year
ended September 30, 1999, and (ii) the representations and warranties set forth
in SECTION 4.2 (Capital Stock and Related Matters) shall survive indefinitely.
As of the termination of the respective representations, warranties and
covenants as provided in this Agreement, the Company and the Purchaser shall be
deemed to have irrevocably waived and released any and all rights and remedies
any of them may have with respect to any inaccuracy in or breach or
nonperformance of any of the representations, warranties, or covenants made by
any party to this Agreement.
9.4 SCHEDULES; EXHIBITS; INTEGRATION. Each schedule and exhibit
delivered pursuant to the terms of this Agreement shall be in writing and shall
constitute a part of this Agreement. This Agreement, together with such
schedules and exhibit, constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements and
understandings of the parties in connection therewith.
9.5 BEST EFFORTS; FURTHER ASSURANCES.
9.5.1 STANDARD. Each party will use its best efforts to fulfill
all obligations on its part to be performed and fulfilled under
this Agreement, to the end that the transactions contemplated by
this Agreement shall be effected substantially in accordance with
its terms as soon as reasonably practicable. The parties shall
cooperate with each other in such actions and in securing
requisite Approvals. Each party shall deliver such further
documents and take such other actions as the other party may
reasonably request to consummate or implement the transactions
contemplated hereby or to evidence such events or matters.
9.5.2 LIMITATION. As used in this Agreement, the term "best
efforts" shall not mean efforts which require the performing party
to do any act that is unreasonable under the circumstances, to
make any capital contribution or to expend any funds other than
reasonable out-of-pocket expenses incurred in satisfying its
obligations hereunder, including but not limited to the fees,
expenses and disbursements of its accountants, actuaries, counsel
and other professionals.
9.6 GOVERNING LAW AND FORUM SELECTION. This Agreement is to be
construed and enforced in accordance with the internal laws of the State of
California. The parties consent to the jurisdiction of all federal and state
courts in California. Any civil action or other legal proceeding arising out of
or relating to this Agreement shall be brought and heard only in a federal or
state court located in California, and all parties waive any right to have such
action or proceeding transferred to another location.
9.7 NO ASSIGNMENT. Neither this Agreement nor any rights or
obligations under it are assignable, except pursuant to a permitted transfer by
Purchaser in accordance with SECTION 6.3 above.
9.8 HEADINGS. The descriptive headings of the Sections and
Subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
9.9 COUNTERPARTS. This Agreement and any amendment hereto or any
other document delivered pursuant hereto may be executed in one or more
counterparts and by
14
different parties in separate counterparts. All of such counterparts shall
constitute one and the same agreement (or other document) and shall become
effective (unless otherwise provided therein) when one or more counterparts have
been signed by each party and delivered to the other party.
9.10 PUBLICITY AND REPORTS. The Company and the Purchaser shall
coordinate all publicity relating to the transactions contemplated by this
Agreement and no party shall issue any press release, publicity statement or
other public notice relating to this Agreement, or the transactions contemplated
by this Agreement, without obtaining the prior written consent of each of the
parties to this Agreement except to the extent that a particular action is
required by applicable Law.
9.11 CONFIDENTIALITY. All information disclosed by any party (or
its representatives) whether before or after the date hereof, in connection with
the transactions contemplated by, or the discussions and negotiations preceding,
this Agreement to any other party (or its representatives) shall be kept
confidential by such other party and its representatives and shall not be used
by any such Persons other than as contemplated by this Agreement, except to the
extent that such information (i) was known by the recipient when received, (ii)
it is or hereafter becomes lawfully obtainable from other sources, (iii) is
necessary or appropriate to disclose to a Governmental Entity having
jurisdiction over the parties, provided that the disclosing party give
reasonable notice to the other parties and the opportunity to protect any such
confidential information, (iv) as may otherwise be required by Law or (v) to the
extent such duty as to confidentiality is waived in writing by the other party.
9.12 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure to the benefit of each party, and nothing in this Agreement, express
or implied, is intended to confer upon any other Person any rights or remedies
of any nature whatsoever under or by reason of this Agreement. Nothing in this
Agreement is intended to relieve or discharge the obligation of any third person
to any party to this Agreement.
9.13 NOTICES. Any notice or other communication hereunder must
be given in writing and (i) delivered in person, (ii) transmitted by telex,
telefax or telecommunications mechanism or (iii) mailed by certified or
registered mail, postage prepaid), receipt requested as follows:
IF TO PURCHASER, ADDRESSED TO:
Atocha, L.P.
6429 Georgetown Pike
McLean, Virginia 22101
Attn: Thomas Ciritto
15
IF TO THE COMPANY, ADDRESSED TO:
WORLDxCHANGE
9999 Willow Creek Road
San Diego, California 92131
Attn: Roger B. Abbott
Facsimile No: (619) 625-0217
WITH A COPY TO:
O'Melveny & Myers LLP
610 Newport Center Drive
Newport Beach, California 92660
Attn: David A. Krinsky, Esq.
Facsimile No: (949) 823-6994
or to such other address or to such other person as either party shall have last
designated by such notice to the other party. Each such notice or other
communication shall be effective (A) if given by telecommunication, when
transmitted to the applicable number so specified in (or pursuant to) this
SECTION 9.13 and an appropriate answer back is received, (B) if given by mail,
three days after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (C) if given by any other means, when
actually received at such address.
9.14 EXPENSES. Each party shall pay its own expenses incident to
the negotiation, preparation and performance of this Agreement and the
transactions contemplated hereby, including but not limited to the fees,
expenses and disbursements of such party's respective investment bankers,
accountants and counsel. Purchaser shall pay one-half and the Company will pay
one-half of the HSR Act filing fee.
9.15 WAIVER. No failure on the part of any party to exercise or
delay in exercising any right hereunder shall be deemed a waiver thereof, nor
shall any single or partial exercise preclude any further or other exercise of
such or any other right.
9.16 REPRESENTATION BY COUNSEL; INTERPRETATION. The Company and
the Purchaser each acknowledge that each party to this Agreement has been
represented by counsel in connection with this Agreement and the transactions
contemplated by this Agreement. Accordingly, any rule of Law, including but not
limited to Section 1654 of the California Civil Code, or any legal decision that
would require interpretation of any claimed ambiguities in this Agreement
against the party that drafted it has no application and is expressly waived.
The provisions of this Agreement shall be interpreted in a reasonable manner to
effect the intent of the Purchaser and the Company.
9.17 SEVERABILITY. If any provision of this Agreement is
determined to be invalid, illegal or unenforceable by any Governmental Entity,
the remaining provisions of this Agreement to the extent permitted by Law shall
remain in full force and effect provided that the economic and legal substance
of the transactions contemplated is not affected in any manner materially
adverse to any party. In event of any such determination, the parties agree to
16
negotiate in good faith to modify this Agreement to fulfill as closely as
possible the original intents and purposes hereof.
9.18 NO CONSEQUENTIAL DAMAGES. Notwithstanding anything to the
contrary elsewhere in this Agreement, no party (or its Affiliates) shall, in any
event, be liable to any other party (or its Affiliates) for any consequential
damages, including, but not limited to, loss of revenue or income, or loss of
business reputation or opportunity relating to the breach or alleged breach of
this Agreement. The foregoing shall not be deemed to limit Purchaser's right to
specific performance with respect to SECTIONS 2.1, 3.1, 7.1, 7.3 and 7.4.
17
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and
year first above written.
COMPANY: PURCHASER:
COMMUNICATION TELESYSTEMS ATOCHA, L.P., a Texas limited partnership
INTERNATIONAL D.B.A.
WORLDXCHANGE
COMMUNICATIONS, a California
corporation By: /s/ [Illegible]
-----------------------------------
Its: General Partner
-----------------------------------
By: /s/ Roger B. Abbott
-------------------------
Its: CEO
-------------------------
18
LIST OF OMITTED SCHEDULES
The following Schedules and Attachment to the Stock Purchase Agreement
dated February 3, 1999 (Atocha L.P.) have been omitted from this Exhibit and
shall be furnished supplementally to the Commission upon request:
Schedule 4.2 - Equity Securities
Schedule 4.14 - Directors and Officers Liability Insurance
Exhibit A - New Registration Rights Agreement
Exhibit B - Form of Opinion of O'Melveny & Myers LLP - First Closing
Exhibit C - Form of Opinion of O'Melveny & Myers LLP - Second Closing