EXHIBIT 10.18
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is entered into
as of this 9th day of April, 1999, by and among EGLOBE FINANCING CORPORATION, a
Delaware corporation (the "Company"), and EXECUTIVE TELECARD, LTD., a Delaware
corporation (the "Parent").
WHEREAS, the Parent is the sole stockholder of the Company;
and
WHEREAS, EXTL Investors, LLC, a limited liability company
organized under the laws of Nevada (the "Investor"), is making a loan (the
"Loan") to the Company, upon the terms and conditions set forth in a Loan and
Note Purchase Agreement dated as of April 9, 1999 (the "Loan and Note Purchase
Agreement");
WHEREAS, as an incentive for the Investor to make the Loan,
the Parent has agreed under the Loan and Note Purchase Agreement to enter into
this Agreement to provide the Company with the funds necessary to fund the
obligations under the Loan and under the Loan Note (as defined in the Loan and
Note Purchase Agreement) and to pay expenses of the Company.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
1. SUBSCRIPTION FOR SHARES. The Parent hereby irrevocably and
unconditionally agrees to subscribe for up to 378 shares of common stock of the
Company, upon demand by the Company from time to time, at a price of $20,000 per
share, payable in cash, for an aggregate subscription price for such shares
equal to $7,560,000. In the event the Company desires to cause the Parent to
purchase any shares under this Agreement, the Company shall deliver a notice to
the Parent specifying (a) the cash amount then due and owing under the Loan and
Note Purchase Agreement and the Loan Note or the cash amount required to pay
expenses of the Company, (b) the number of shares to be purchased by the Parent
(for an aggregate purchase price sufficient to cover the amount then due and
owing under the Loan and Note Purchase Agreement and the Loan Note or required
to pay expenses of the Company), and (c) the time and place for payment of the
purchase price for such shares, which shall not be earlier than 10 days after
the date of such notice. On or before the purchase date specified in such
notice, the Parent shall deliver to the Company (or if the Company owes funds to
the Investor, the Parent shall deliver to the Investor, which delivery shall be
deemed to have been sent to the Company and by the Company to the Investor) cash
(which shall be applied immediately to payment of the Loan Note) in an amount
equal to the purchase price for the shares to be purchased pursuant to such
notice and the
Company shall issue to the Parent the shares of the Company upon receipt of
payment therefor, effective as of the purchase date specified in such notice
and, as soon as is practicable after payment is made therefor, issue the
appropriate certificates in the name of the Parent.
2. BINDING AGREEMENT. This Agreement shall be binding upon the
Parent, its successors and assigns.
3. THIRD PARTY BENEFICIARIES. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, except that as set forth in the next sentence. During the
period in which the Loan Note is outstanding, the Investor shall be a third
party beneficiary of, and shall be entitled to enforce, directly against the
Parent, the Parent's obligations to fund under this Agreement. In such event it
shall not be a defense to the Parent's obligation to fund that shares of the
Company's stock have not been issued therefor, and such shares shall be deemed
to have been issued hereunder concurrently with such funding (and the Parent
shall be obligated to cause the Company to issue the certificates evidencing
such shares). This Agreement may not be amended, nor may any provision of this
Agreement be waived, except by an instrument in writing signed by the parties
hereto and consented to in writing by the Investor.
4. MISCELLANEOUS.
(a) The obligations of the Parent hereunder are not intended
to constitute indebtedness of the Parent. To the extent the obligations of the
Parent hereunder could be deemed to constitute indebtedness of the Parent, such
obligations are subordinate (and are hereby expressly made subordinate) and
subject in right of payment to the prior payment in full of all amounts owing to
holders of Senior Indebtedness. For purposes of this Agreement, "Senior
Indebtedness" means the principal of and interest on all indebtedness of the
Parent (including indebtedness of others guaranteed by the Parent) other than
the Loan Note, which indebtedness is outstanding on the date hereof and which by
its terms is senior or superior in right of payment of other indebtedness of the
Parent.
(b) All corporate law matters arising under this Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware, and all other matters arising under this Agreement shall be governed
by and construed in accordance with the laws of the State of Texas, in each case
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law. Each of the parties consents to the jurisdiction of the
federal courts whose districts encompass any part of the State of Texas or the
state courts of the State of Texas in connection with any dispute arising under
this Agreement and hereby
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waives, to the maximum extent permitted by law, any objection, including any
objection based on forum non conveniens, to the bringing of any such proceeding
in such jurisdictions.
(c) This Agreement may be executed and delivered in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed and delivered shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first written above.
EXECUTIVE TELECARD, LTD.
By:
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Chairman of the Board of
Directors and Chief
Executive Officer
EGLOBE FINANCING CORPORATION
By:
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Name:
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Title:
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