Exhibit J
INDIVIDUAL STOCK PURCHASE AGREEMENT
THIS INDIVIDUAL STOCK PURCHASE AGREEMENT (the "Agreement") is entered
into as of February 7, 2001, by and between CONVERGENCE COMMUNICATIONS,
INC., a corporation organized under the laws of the State of Nevada (the
"Company") and TCW/CCI Holding II LLC, a Delaware limited liability company
(the "Investor"). The Company and the Investor are referred to collectively
herein as the "Parties" and singularly as a "Party." Capitalized terms used
and not otherwise defined herein shall have the meanings ascribed thereto
in that certain Umbrella Stock Purchase Agreement, dated as of February 7,
2001, among the Company, TCW/CCI Holding II LLC, TELEMATICA EDC, C.A.,
Xxxxxxxx Xxxx, Xxxxxx Xxxxxx Xxxxxx xx Xxxxx, Glacier Latin-America Ltd.,
and Xxxxxx Capital Management III, LLC (the "Purchase Agreement").
WHEREAS, the Company and the Investor are parties to the Purchase
Agreement, pursuant to which the Investor has agreed to invest in the
Company through the purchase of shares of the Company's Series D
Convertible Preferred Stock and other securities of the Company, as one of
a series of transactions set out in the Purchase Agreement; and
WHEREAS, the Company and the Investor desire to establish the terms
for the purchase by the Investor, at the Closing, of such shares by
entering into this Agreement and intend this Agreement to be the
"Individual Stock Purchase Agreement" referenced in the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants and the mutual promises contained herein and in the
Purchase Agreement, the Parties agree as follows:
1. Purchase and Sale of Securities.
(a) The Transaction. On and subject to the terms and conditions of
this Agreement and the Purchase Agreement, the Investor hereby purchases
from the Company, and the Company hereby sells to the Investor at the
Closing, a total of One Million Seventy-Five Thousand Two Hundred
Sixty-Eight (1,075,268) shares of the Company's Series D Convertible
Preferred Stock, par value $.001 per share, for a purchase price per share
of Nine and 30/100ths United States Dollars (US$9.30), for an aggregate of
Ten Million United States Dollars (US$10,000,000). The Series D Convertible
Preferred Stock acquired by the Investor at the Closing will be referred to
herein as the Investor's "Series D Shares." The Series D Shares shall have
the rights and preferences set out in Schedule 2 to the Purchase Agreement.
(b) Purchase Price. The Investor shall pay and contribute to the
Company, in exchange for its Series D Shares, at the Closing, the amount of
Ten Million United States Dollars (US$10,000,000) by delivery of cash
payable by wire transfer or delivery of other immediately available funds.
The amounts paid by the Investor under this Section 1(b) shall be referred
to as the "Purchase Price." If the Investor delivers to the Company
consideration for its purchase of the Series D Shares hereunder other than
cash or other immediately available funds, the Company may, at its
election, delay the delivery to the Investor of the certificates described
in Section 1(c) until such time as the Company receives good funds for the
Purchase Price.
(c) Delivery of Shares. At the Closing (subject to the provisions
of the last sentence of Section 1(b)), the Company shall deliver to the
Investor one or more certificates representing the Investor's Series D
Shares. The Series D Share certificates will be in the form attached hereto
as Exhibit A.
2. Rights and Obligations Part of Series of Transactions. The Parties
acknowledge and agree that the rights and obligations provided for in this
Agreement are part of a series of transactions which, pursuant to the
Purchase Agreement, are subject to certain conditions precedent as provided
therein, and are being entered into in reliance on certain representations
and warranties and covenants of indemnification set out in the Purchase
Agreement (which conditions precedent, representations and warranties,
covenants and indemnification obligations are deemed incorporated in this
Agreement).
3. No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their
respective successors.
4. Succession. This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors.
5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. For purposes of this
Agreement, the delivery of a counterpart signature by telephonic facsimile
transmission shall be deemed the equivalent of the delivery of an original
counterpart signature.
6. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
7. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be provided in the
manner, and shall be deemed effective, as set forth for providing notices
in the Purchase Agreement. Any Party may change the address to which
notices, requests, demands, claims, and other communications hereunder are
to be delivered by giving the other Parties notice in the manner herein set
forth.
8. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, United States of
America, without giving effect to any choice or conflict of law provision
or rule that would cause the application of the laws of any jurisdiction
other than the State of New York. All disputes arising under or in
relations to this Agreement shall be resolved in accordance with the
provisions of Section 11(n) of the Purchase Agreement.
9. Amendments and Waivers. This Agreement may not be amended,
extended or modified unless an amendment, extension or modification has
been expressly approved by a writing signed by all the parties to the
Purchase Agreement, and then only to the extent of such approval.
10. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction.
11. Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the date first above written.
COMPANY:
Convergence Communications, Inc.
By: /s/ Xxxx X'Xxxxxxxx
--------------------------------
Its: Sr. Vice President
INVESTOR:
TCW/CCI Holding II LLC
By: /s/ Xxxxxx Xxxxxxxxxxx
--------------------------------
Its: Authorized Person
Attachments
Exhibits
--------
Exhibit A - Form of Series D Share Certificates
