EXHIBIT 10.14
AMENDED AND RESTATED DEBT SATISFACTION AGREEMENT
THIS AMENDED AND RESTATED DEBT SATISFACTION AGREEMENT dated as of
December 5th, 2002 (this "AGREEMENT"), is entered into by and between Terremark
Worldwide, Inc., a Delaware corporation (the "COMPANY" or "TERREMARK") and CRG,
LLC, a Florida limited liability company (the "INVESTOR").
RECITALS
WHEREAS, Investor has entered into an agreement to purchase from
Cupertino Electric, Inc. ("CEI") $18.5 million in debt owed by the Company to
CEI (the "CEI DEBT") together with additional mortgage, liens and other related
rights and interests (the "CEI Rights" as defined on Schedule A attached
hereto);
WHEREAS, the Company desires to retire the CEI Debt and receive a
transfer of the Rights to the Company either by (i) paying Investor $1.5 million
over the amount that Investor paid to CEI for the CEI Debt (the "CEI CASH
PAYMENT") or (ii) issuing to the Investor that number of authorized but unissued
Common Stock, U.S. $0.001 par value, of the Company (the "COMMON STOCK")
calculated by dividing the dollar amount of the CEI Debt by a per share price of
U.S. $0.75 per share (the "CEI Shares"), at the Company's election; and
WHEREAS, Investor has entered into an agreement to purchase from
Kinetics Systems, Inc. ("KINETICS") $4,100,000 million in debt owed by the
Company to Kinetics (the "KINETICS DEBT") together with additional mortgage,
liens and other related rights and interests (the "Kinetics Rights" as defined
on Schedule A attached hereto);
WHEREAS, the Company desires to retire the Kinetics Debt and receive a
transfer of the Kinetics Rights to the Company either by (i) paying Investor
$500,000 thousand over the amount that Investor paid to Kinetics for the
Kinetics Debt (the "KINETICS CASH PAYMENT") or (ii) by issuing to the Investor
that number of authorized but unissued Common Stock calculated by dividing the
dollar amount of the Kinetics Debt by a per share price of U.S. $0.75 per share
(the "KINETICS SHARES"); and
WHEREAS, the Investor wishes to cancel the CEI Debt and Kinetics Debt
(collectively the "DEBT") and transfer the CEI Rights and the Kinetics Rights
(collectively the "RIGHTS") to the Company in exchange for either for the CEI
Cash Payment and the Kinetics Cash Payment (collectively the "CASH PAYMENTS") or
the CEI Shares and the Kinetics Shares (collectively the "SHARES") on the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties agree as follows:
ARTICLE 1
CANCELLATION OF DEBT
1.01 COMPANY'S OPTION TO SATISFY DEBT. Investor agrees that, in full
accord and satisfaction of the Debt and the transfer of the Rights to the
Company, the Company, at its sole discretion and subject to the terms and
conditions hereof and in reliance upon the representations, warranties,
covenants and agreements of Investor contained herein, may deliver to Investor
either the Cash Payments or the Shares.
1.02 CLOSINGS AND DELIVERY OF THE SHARES.
(a) The sale and purchase of the Shares shall take place at a
closing (the "CLOSING"), at the offices of the Company
concurrent with the closing on the acquisition of the Debt and
Rights above described (the "CLOSING DATE"). Within two day
prior to the Closing, the Company shall advise the Investor
which option it elects, either the Cash Payments or the
issuance of the Shares.
(b) At Closing:
(i) The Investor shall deliver to the Company all
evidence of the Investor's ownership of the Debt and
the Rights and all documents evidencing satisfaction
and cancellation of the Debt and an Assignment
sufficient to transfer the Rights to Company, in form
similar to that received by Investor from CEI and
Kinetics and in exchange and simultaneously
(ii) The Company shall deliver to the Investor either: (a)
the Cash Payments by wire transfer of immediately
available funds; or (b) a stock certificate or
certificates in definitive form, registered in the
name of the Investor, or its designee, representing
the number of Shares.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investor as of the
date hereof and as of the Closing Date as follows:
2.01 ISSUANCE OF SHARES. If the Company issues Shares to the Investor
pursuant to Article I hereof: (a) the Shares issued under this Agreement will
have been duly authorized by all necessary corporate action and shall be validly
issued and outstanding, fully paid and nonassessable, free and clear of all
liens, charges, and encumbrances of any nature whatsoever, including any
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preferential rights of other shareholders of any nature or third parties and the
Investor shall be entitled to all rights accorded to a holder of capital stock
of the same class in the Company; and (b) the Company will have complied with
all applicable federal and state securities laws in connection with the offer,
issuance and sale of the Shares.
2.02 BYLAWS AND CORPORATE AGREEMENTS. All the rights and obligations of
the stockholders of the Company in their capacity as such are included in the
Certificate of Incorporation and the Bylaws of the Company and there are no
other rights, obligations or undertakings of any kind including any rights
regarding the Shares. The Company is not and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result, with or without the
passage of time and the giving of notice, in a breach of the Certificate of
Incorporation or Bylaws of the Company, or any material agreement, indenture or
other instrument, judgment, order, writ or decree to which the Company is a
party or by which it is bound.
2.03 CORPORATE EXISTENCE AND QUALIFICATION. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with full power and authority (corporate and
other) to own, lease and operate its properties and assets and to conduct its
business as it is now being conducted. The Company is duly incorporated and
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction of the United States, or any other country, state province, or
political subdivision in which the character of the business conducted by it or
the nature of the properties owned or leased by it makes such qualification
necessary for the conduct of its business, except where the failure to be so
qualified would not have a material adverse effect on the assets, condition or
affairs of the Company.
2.04 CAPITALIZATION. The authorized capital stock of the Company
consists of (i) 300,000,000 shares of common stock, par value U.S. $0.001 per
share, of which 223,004,315 shares were issued and outstanding as of October 31,
2002 and (ii) 10,000,000 shares of preferred stock, par value U.S. $0.001 per
share, of which 20 shares are designated as Series G convertible preferred stock
and 5,882 shares are designated as Series H convertible preferred stock. As of
October 31, 2002, 20 shares of Series G convertible preferred stock were issued
and outstanding and convertible into 1,719,333 shares of common stock, and 294
shares of Series H convertible preferred stock were issued and outstanding and
convertible into 294,000 shares of common stock. As of the October 31,2002,
there were outstanding options, warrants and convertible debentures (of which
U.S. $30,655,000.00 were outstanding) currently exercisable for or convertible
into a total of 43,488,647 shares of common stock. The Company has all requisite
power and authority to issue, sell and deliver the Shares in accordance with and
upon the terms and conditions set forth in this Agreement, and all corporate
action required to be taken by the Company for the due and proper authorization,
issuance, sale and delivery of the Shares has been validly and sufficiently
taken. The Company has not violated any applicable federal or state securities
laws in connection with the offer, sale or issuance of any of its capital stock.
2.05 AUTHORITY. All corporate action on the part of the Company,
necessary for the authorization, execution and delivery of this Agreement, the
performance of all obligations of the Company hereunder, and the authorization,
issuance, sale and delivery of the Shares have been taken, and this Agreement
constitutes the legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
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reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought). The Company's entry
into and performance of this Agreement will violate no law, regulation or
governmental obligation to which the Company is subject. The Company and its
operations are in substantial compliance with all laws, regulations and
governmental obligations to which it is subject, and it has received no notice
that it is in violation of any of same.
2.06 ACTIONS PENDING. Other than as set forth in CEI agreement in
Schedule A, there is no action, suit, claim, investigation or proceeding pending
or, to the knowledge of the Company, threatened against the Company which
questions the validity of this Agreement or the transactions contemplated
hereby, or any action taken or to be taken pursuant hereto. There is no action,
suit, claim, investigation or proceeding pending or, to the knowledge of the
Company, threatened, against or involving the Company or any of its respective
properties or assets and which, if adversely determined, will result in a
Material Adverse Effect. (For purposes hereto, "Material Adverse Effect" means a
material adverse effect on (i) the business, assets, operations prospects or
financial or other condition of Terremark). There are no outstanding orders,
judgments, injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body against the Company or any subsidiary which will
result in a Material Adverse Effect.
2.07 BROKERS. No broker or finder has acted for the Company in
connection with the transactions contemplated by this Agreement, and no broker
or finder is entitled to any broker's or finder's fee or other commission in
respect thereof based in any way on agreements, understandings or arrangements
with the Company.
2.08 SUBSIDIARIES. All the representations and warranties made herein
shall also be deemed to be made with regard to each of the Company's
subsidiaries.
2.09 ACCURATE INFORMATION AND SOLVENCY. All financial and other
information of the Company furnished or made available to Investor is true,
complete and accurate.
2.10 SEC REPORTS AND FILINGS - Since April 2000, the Company has filed
with the Securities and Exchange Commission all material forms, statements and
other documents (including all exhibits, amendments and supplements thereto)
required to be filed by the Company under the Securities Exchange Act of 1934,
as amended ( the "Exchange Act Documents"), all of which complied in all
material respects to the applicable requirements of the Securities Exchange Act
of 1934, as amended. As of their respective dates, none of the Exchange Act
Documents contained any untrue statement of material fact or omitted to disclose
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. All financial statements included in the Exchange Act Document
were prepared in accordance with generally accepted accounting principals
consistently applied with prior periods and fairly present in all material
respects the Company's financial condition and the results of its operations at
the date and for the period specified in those statements.
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ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
3.01 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor
represents and warrants to the Company that:
(a) The Investor acknowledges that any offer, issuance and sale to
it of the Shares is intended to be exempt from the
registration requirements of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), pursuant to the provisions of
Regulation D and/or Regulation S promulgated by the Commission
under the Securities Act. The Investor represents and warrants
to the Company that it is not a "U.S. Person" as that term is
defined in Rule 902(k) of Regulation S.
(b) Without limiting or conditioning the representations and
warranties of the Company contained in Article II above, the
Investor acknowledges that during the course of the
transaction and prior to this Agreement that it has received
information relating to the Company and has been given a
reasonable opportunity to ask questions of and receive answers
from the Company and its representatives concerning the
Company. The Investor acknowledges that the Company's
representatives have answered all inquiries made on behalf of
the Investor to the satisfaction of the person or persons
making such inquiry.
(c) The Investor has had the opportunity to employ the services of
an investment advisor, attorney or accountant in connection
with making the investment contemplated by this Agreement, has
read and understands all of the documents furnished or made
available by the Company to the Investor, has evaluated the
merits and risks of such an investment, and recognizes the
highly speculative nature of this investment. Investor can
bear the risk of the total loss of the investment made hereby.
(d) The Investor understands that the offering of Shares has not
been reviewed by the Commission and no finding or
determination as to the fairness of this investment has been
made by the Commission. It is the Investor's present intention
that any Shares being purchased by the Investor are being
acquired for the Investor's own account and not with a present
view to or for sale in connection with any distribution
thereof.
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(e) No Person has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or valid
claim against or upon the Investor for any commission, fee or
other compensation as a finder or broker because of any act or
omission of the Investor or any agent for the Investor.
(f) The Investor understands that (i) the Shares currently have
not been registered under the Securities Act by reason of
their issuance in a transaction exempt from the registration
requirements of the Securities Act, (ii) the Shares must be
held until such time as they are registered under the
Securities Act pursuant to Article IV below or exempt from
such registration, and (iii) the Company will make a notation
on its transfer books to such effect.
(g) The Investor has full corporate or other power and authority
to enter into and to perform this Agreement in accordance with
its terms.
(h) The execution of, and performance of the transactions
contemplated by, this Agreement is not in conflict with or
will not result in any material breach of any terms,
conditions or provisions of, or constitute a material default
under, its corporate charter, limited partnership agreement,
or other organizational document, as applicable, or any
indenture, lease, agreement, order, judgment or other
instrument to which the Investor is a party or by which it is
bound.
(i) The Investor acknowledges that the Company is a reporting
company under the Exchange Act and is subject to the
disclosure requirements of Regulation FD under the Exchange
Act. The Investor acknowledges that certain of the information
furnished by the Company to the Investor or its advisers in
connection with this Agreement, is confidential and nonpublic
and agrees that all such information shall be kept in
confidence by the Investor and neither used by the Investor
for the Investor's personal benefit (other than in connection
with this Agreement), nor disclosed to any third party for any
reason (other than to its agents, advisors, attorneys,
consultants or other advisors in connection with the
transactions contemplated by this Agreement); provided,
however, that this obligation shall not apply to any such
information that (i) is part of the public knowledge or
literature and readily accessible at the date hereof, (ii)
becomes a part of the public knowledge or literature and
readily accessible by publication (except as a result of a
breach of this provision) or (iii) is received from third
parties (except third parties who disclose such information in
violation of any confidentiality agreements or obligations,
including, without limitation, any Agreement entered into with
the Company).
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(j) The investor acknowledges and agrees that, pursuant to the
provisions of Regulation S, the Shares cannot be sold,
assigned, transferred, conveyed, pledged or otherwise disposed
of to any U.S. Person or within the United States of America
or its territories without complying with the applicable
distribution compliance period as set forth in Rule 903 of
Regulation S. The Investor agrees not to engage in hedging
transactions with regard to the Shares unless in compliance
with the Securities Act.
(k) The Investor acknowledges and agrees that the certificates
representing the Shares shall bear the following legend
(unless subsequently registered under the Act):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR
TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS
CURRENT WITH RESPECT TOT HESE SECURITIES, OR (ii) PURSUANT TO
A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE
WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER
COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE
PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE
PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE
"BLUE SKY" OR SIMILAR SECURITIES LAWS."
The Investor also acknowledges that the Company may place a stop
transfer order against transfer of any of the Shares, if necessary
in the Company's reasonable judgment, in order to assure compliance
by the Investor with the terms of this Agreement.
3.02 COVENANTS OF THE INVESTOR. In order to enable the Company to
conduct the registration in compliance with applicable securities laws, the
Investor hereby agrees as follows:
(a) The Investor shall provide all information or other materials
and deliver such documents and undertakings and take all such
other actions as may be reasonably required by the Company in
order to permit the Company to comply with applicable
requirements of the Securities Act and the Commission and to
comply with the requirements of applicable state securities
laws and administrative agencies.
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(b) All information provided by the Investor to the Company in
connection with the registration statement shall be true and
correct in all material respects as of the date provided to
the Company and will not omit any material fact necessary to
make such information not misleading. The Investor shall
notify the Company in writing immediately of any changes in
any information provided to the Company in connection with the
registration statement at all times during which the
registration statement remains effective and the Investor has
any shares included therein.
3.03 The Investor further covenants and agrees with the Company that it
shall not sell or otherwise dispose of any of the Shares regardless of when
registered, other than to its beneficial owners who will assume all rights and
obligations of the Investor as set forth herein, for a period of 12 months from
the Closing Date, and the Shares will be legended to as follows:
"THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED FOR A PERIOD OF 12
MONTHS FROM [THE DATE OF CLOSING]"
ARTICLE 4
COVENANTS OF THE COMPANY
Provided that the Company issues Shares to the Investor pursuant to
Article I hereof, the Company covenants and agrees with the Investor as follows:
4.01 REGISTRATION AND LISTING.
(a) The Company shall prepare and file with the Commission a
registration statement with respect to all of the Shares and
any shares issued to the Investor as result of dividends or
stock splits (collectively, the "Registrable Shares") and
shall use commercially reasonable efforts to cause such
registration statement to become effective no later than
December 31, 2003. The Company shall keep such registration
statement effective until the earlier to occur of (i) the
expiration of the time period referred to in Rule 144(k) under
the Securities Act with respect to all beneficial holders of
the Registrable Shares other than affiliates of the Company
and (ii) such time as all of the Registrable Shares have been
sold or are otherwise freely tradable without registration
under the Securities Act.
(b) The Company shall prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all the
Registrable Shares.
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(c) The Company shall furnish to the Investor such numbers of
copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and
such other documents as it may reasonably request in order to
facilitate the disposition of the Registrable Shares.
(d) The Company shall use commercially reasonable efforts to
register and qualify the securities covered by such
registration statement under such other securities laws of
such jurisdictions in the United States as shall be reasonably
requested by the Investor; PROVIDED THAT the Company shall not
be required in connection therewith or as a condition thereto
to qualify to do business, to subject itself to taxation in
any such jurisdiction or to file a general consent to service
of process in any such states or jurisdictions, unless the
Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act.
(e) In the event of any underwritten public offering, the Company
shall enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the
managing underwriter of such offering. If the underwriter in
such offering requests the delivery of a "comfort letter" from
the Company's independent auditors or the delivery of an
opinion of counsel to the Company, the costs of such comfort
letter or opinion shall be borne by the Company. The Investor
shall also enter into and perform its obligations under such
an agreement.
(f) The Company shall notify the Investor when a prospectus
relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(g) The Company shall use commercially reasonable efforts to cause
all Registrable Shares to be listed on the American Stock
Exchange not later than December 31, 2003.
4.02 EXPENSES. All expenses incurred in complying with the foregoing,
other than underwriting fees or commissions relating to the Registrable Shares,
including, without limitation, all registration, filing and qualification fees
(including all expenses incident to filing with the American Stock Exchange),
printing and accounting expenses, fees and disbursements of counsel for the
Company, expenses of any special audits incident to or required by any such
registration and expenses of complying with the securities or blue sky laws or
any jurisdictions shall be paid by the Company.
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4.03 INDEMNIFICATION WITH RESPECT TO THE REGISTRABLE SHARES.
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Investor, any underwriter (as defined in the
Securities Act) for the Investor and each other person, if
any, who controls the Investor or such underwriter, within the
meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Securities Act, or the
Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a
"VIOLATION"): (i) any untrue statement or alleged untrue
statement of a material fact contained in the registration
statement under which the Registrable Shares were registered
under the Securities Act, including any preliminary prospectus
or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or
any rule or regulation promulgated under the Securities Act,
or the Exchange Act or any state securities law; and the
Company will pay to the Investor and each such underwriter or
controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement
contained in this Subsection 4.03(a) shall not apply to (x)
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Company (which consent shall not be
unreasonably withheld or delayed), or (y) any such loss,
claim, damage, liability or action in respect of the Investor
or an underwriter or controlling person to the extent that it
arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information
furnished expressly for use in connection with such
registration by the Investor or such underwriter or
controlling person.
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(b) To the extent permitted by law, the Investor will indemnify
and hold harmless the Company, each of its directors, each of
its officers who shall sign the registration statement, each
person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act, any underwriter, any
other person selling securities in such registration statement
and any controlling person of any such underwriter or other
person, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may
become subject, under the Securities Act, or the Exchange Act
or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with information furnished by
the Investor for use in preparation of the registration
statement, as approved by the Investor; and the Investor will
pay, as incurred, any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to
this Subsection 4.03(b), in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in
this Subsection 4.03(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of
the Investor (which consent shall not be unreasonably withheld
or delayed); provided, that, in no event shall any indemnity
under this Subsection 4.03(b) exceed the net proceeds from the
offering received by such Investor.
(c) Promptly after receipt by an indemnified party under this
Section 4.03 of notice of the commencement of any action
(including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 4.03, deliver to the
indemnifying party a written notice of the commencement
thereof. The indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties
which may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the
fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate (in
the written opinion of counsel for the indemnified party which
counsel shall be reasonably acceptable to the Company) due to
actual or potential differing interests between such
indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying
party of any liability to the indemnified party under this
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Section 4.03, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under
this Section 4.03.
(d) If the indemnification provided for in this Section 4.03 is
held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability,
claim, damage or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss,
liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the
other in connection with the statements or omissions that
resulted in such loss, liability, claim, damage, or expense as
well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or
by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct
or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in
the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting
agreement shall control.
4.04 SURVIVAL. The obligations of the Company and the Investor under
this Article IV shall survive the Closing and the completion of any offering of
the Shares in a registration statement under this Article IV, and otherwise.
ARTICLE 5
CONDITIONS OF INVESTOR'S OBLIGATIONS AT CLOSING
The obligations of the Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against the Investor if it does not
consent in writing thereto:
5.01 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in Article II shall be true on and as of the Closing
with the same effect as those such representations and warranties have been made
on and as of the date of Closing.
5.02 PERFORMANCE. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied by it on or before the Closing.
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5.03 CORPORATE PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings taken or required to be taken in connection with the transactions
contemplated at the Closing and all documents instant thereto (including but not
limited to Corporate Resolutions authorizing this Agreement and the Closing)
shall be reasonably satisfactory in form and substance to the Investor, and the
Investor shall have received all such counterpart original and certified or
other copies of such documents as it reasonably may request.
5.04 NO PROCEEDINGS. There shall not have been commenced or threatened
against the Investor, or against any person affiliated with the Investor, any
proceeding involving any challenge to, or seeking damages or other relief in
connection with, any of the transactions contemplated in this Agreement.
5.05 LEGAL OPINION. In the event the Company shall elect to issue
Common Stock pursuant to Section 1.2(b)(iii)(b), the Investor shall receive an
opinion of counsel, reasonably satisfactory to the Investor, with respect to
matters commonly covered in a legal opinion for transactions of this type.
ARTICLE 6
MUTUAL COVENANTS
If the Company issues Shares to the Investor pursuant to Article I
hereof, the Company will furnish to the Investor and the Investor will furnish
to the Company, such information and assistance as the other may reasonably
request in connection with the preparation of any regulatory filings or
submissions. The Company will provide the Investor and the Investor will provide
the Company, with copies of all correspondence, filings or communications (or
memoranda setting forth the substance thereof) between such party or any of its
representatives, on the one hand, and any governmental agency or authority or
member of their respective staffs, on the other hand, with respect to this
Agreement and the transactions contemplated hereby.
ARTICLE 7
INDEMNIFICATION
The Company agrees to indemnify and hold harmless the Investor and its
directors, officers, affiliates, agents, successors and assigns from and against
any and all actual losses, liabilities, deficiencies, costs, damages and
expenses (including, without limitation, reasonable attorney's fees, charges and
disbursements but excluding consequential damages) incurred as a result of any
misrepresentation or breach of the warranties and covenants made by the Company
herein, except where such misrepresentation or breach is caused by the Investor.
The Investor agrees to indemnify and hold harmless the Company and its
directors, officers, affiliates, agents, successors and assigns from and against
any and all actual losses, liabilities, deficiencies, costs, damages and
expenses (including, without limitation, reasonable attorneys fees, charges and
disbursements but excluding consequential damages) incurred by the Company as
result of any breach of the representations and covenants made by the Investor
herein, except where such misrepresentation or breach is caused by the Company.
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ARTICLE 8
MISCELLANEOUS
8.01 FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement,
including, without limitation, using all reasonable efforts to obtain all
necessary waivers, consents and approvals and to effect all necessary
registrations and filings.
8.02 EXPENSES. Except as otherwise provided herein, each party hereto
will pay its own expenses in connection with the transactions contemplated
hereby, whether or not such transactions shall be consummated.
8.03 SURVIVAL OF AGREEMENTS. All representations and warranties made
herein or in any agreement, certificate or instrument delivered to the Investor
pursuant to or in connection with this Agreement shall survive the execution and
delivery of this Agreement, the issuance, sale and delivery of the Shares.
8.04 BROKERAGE. Each party hereto will indemnify and hold harmless the
others against and in respect of any claim for brokerage or other commissions
relative to this Agreement or to the transactions contemplated hereby, based in
any way on agreements, arrangements or understandings made or claimed to have
been made by such party with any third party.
8.05 PARTIES IN INTEREST. All representations, covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not. Without limiting the generality of
the foregoing, all representations, covenants and agreements benefiting the
Investor, unless otherwise herein or therein provided, shall inure to the
benefit of any and all subsequent holders from time to time of Shares and all
such holders shall be bound by all of the obligations of the Investor hereunder.
8.06 NOTICES. All notices, requests, consents, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (i) on the date of service if served personally on the
party to whom notice is to be given, (ii) on the date of transmittal of services
via telecopy to the party to whom notice is to be given (with a confirming copy
delivered within 24 hours thereafter), (iii) on the third day after mailing if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, or (iv) on the date of delivery if
sent via a nationally recognized courier providing a receipt for delivery and
properly addressed as set forth on signature page hereto. Any notice or other
communication between the parties hereto shall be sent to: the Company,
addressed to it at 0000 X. Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention:
General Counsel; and to the Investor, ____________________________________. Any
party may change its address for purposes of this paragraph by giving notice of
the new address to each of the other parties in the manner set forth above.
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8.07 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Florida, United States of
America, without giving effect to any choice of law or conflicting provision or
rule (whether of the State of Florida or any other jurisdiction) that would
cause the laws of any jurisdiction other than the State of Florida to be
applied.
8.08 EXCLUSIVE JURISDICTION AND CONSENT TO SERVICE OF PROCESS. The
parties agree that any legal action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby shall be
instituted in a federal court sitting in Miami-Dade County, Florida which shall
be the exclusive jurisdiction and venue of said legal proceedings and each party
hereto waives any objection which such party may now or hereafter have to the
lay of venue of any such action, suit or proceeding, and irrevocably submits to
the jurisdiction of any such court in any such action, suit or proceeding. Any
and all service of process and any other notice in any such action, suit or
proceeding shall be effective against such party (or the subsidiary of such
party) when served in any manner permitted by law.
8.09 OTHER REMEDIES; SPECIFIC PERFORMANCE. Except as otherwise provided
in this Agreement, any and all remedies expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. The parties accordingly agree that they shall be
entitled to seek an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court having jurisdiction, this being in addition to any other remedy that they
are entitled at law or in equity.
8.10 ENTIRE AGREEMENT. This Agreement, including the exhibits,
constitutes the sole and entire agreement of the parties with respect to the
subject matter hereof. All exhibits and schedules hereto are hereby incorporated
herein by reference.
8.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.12 AMENDMENTS AND WAIVERS. This Agreement may be amended or modified,
and provisions hereof may be waived, only with the written consent of the party
against whom the waiver is sought to be enforced. Any such amendment,
modification or waiver shall be binding on all parties, including those not
signing such amendment, modification or waiver, and such consent may be given or
withheld for any reason or for no reason.
8.13 SEVERABILITY. If any provision of this Agreement shall be declared
void or unenforceable by any judicial or administrative authority, the validity
of any other provision and of the entire Agreement shall not be affected
thereby.
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8.14 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are for convenience only and are not to be considered in construing or
interpreting any term or provision of this Agreement.
8.15 DEFINITION OF "PERSON." As used in this Agreement, the term
"Person" shall mean an individual, corporation, trust, partnership, limited
liability company or partnership, joint venture, unincorporated organization,
governmental authority or any agency or political subdivision thereof, or other
entity.
IN WITNESS WHEREOF, the Company and the Investor have executed this
Stock Purchase Agreement as of the date first above written.
THE COMPANY: THE INVESTOR:
TERREMARK WORLDWIDE, INC. CRG, LLC
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXXXXXX XXXXXX
---------------------------------- -------------------------------
Name: XXXXX XXXXXXXX Name: XXXXXXXXX XXXXXX
--------------------------- ------------------------
Title: EXECUTIVE VICE PRESIDENT Title: MANAGING MEMBER
-------------------------- -----------------------
Address: 0000 X. Xxxxxxxx Xxxxx Xxxxxxx:
Xxxxx, Xxxxxxx 00000
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