SECURITYHOLDERS' AGREEMENT
THIS SECURITYHOLDERS' AGREEMENT (the "Agreement"), entered into this
31st day of July, 1996 is made by and among Primus Telecommunications Group,
Incorporated, a Delaware corporation (the "Company"), K. Xxxx Xxxxx, a resident
of Virginia, Quantum Industrial Partners LDC, a Cayman Islands limited duration
company ("QIP"), S-C Phoenix Holdings, L.L.C., a Delaware limited liability
company ("S-C"), Winston Partners II LDC, a Cayman Islands limited duration
company ("WP LDC") and Winston Partners II LLC, a Delaware limited liability
company ("WP LLC"). QIP, S-C, NW LDC and WP LLC and their registered assigns
are collectively referred to as the "Investors".
WHEREAS, pursuant to a Securities Purchase Agreement, dated as of July
31, 1996 (the "Purchase Agreement"), among the Company and the Investors, the
Company shall issue on the date hereof to the Investors (i) 285,714 shares (the
"Purchased Shares") of the Company's common stock, par value $.01 per share (the
"Common Stock") and (ii) warrants (the "Purchase Warrants") exercisable for that
number of shares of Common Stock specified therein and has agreed to issue
additional Common Stock (the "Additional Purchase Agreement Shares") to the
Investors upon the occurrence of certain conditions specified in the Purchase
Agreement. In addition, the Company has issued to the Investors warrants (the
"Contingent Warrants") providing for the issuance of shares of Common Stock upon
the occurrence of certain conditions specified therein; and
WHEREAS, the parties desire to set forth more fully their agreements
regarding the investment of the Investors in the Company:
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
are acknowledged, the parties hereto, each intending to be legally bound hereby,
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
-----------
As used herein, the following terms shall have the respective meanings
set forth below:
"Affiliate" of any Person means any Person that directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As
used in this definition, "control" (including with its correlative meanings,
"controlled by" and "under common control with") shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person (whether through ownership
of securities or partnership or other ownership interests, by contract or
otherwise). With respect to the Investors, the term "Affiliate" shall include
one or more of Chatterjee Management Company, Xxxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxx
or Xxxxx Fund Management or affiliates thereof, and any Person or entity for
which any such Person or entity acts as investment advisor or investment
manager.
"Board of Directors" means the Board of Directors of the Company, as
constituted from time to time in accordance with this Agreement and the
Company's by-laws.
"Business Day" means any day other than a Saturday, Sunday or other
day on which banking institutions are authorized or required by law or executive
order to close in New York, New York.
"Capital Stock" means any class of capital stock of the Company.
"Change of Control" means any transaction or series of transactions in
which any person or group (within the meaning of Rule 13d-5 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Sections 13(d) and
14(d) of the Exchange Act) other than Singh (but including any person or group
that becomes an Affiliate of Singh as a result of, or in contemplation of, any
such transaction or series of transactions) becomes the direct or indirect
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), by way of
merger, consolidation, other business combination or otherwise, of greater than
30% of the total voting power (on a fully diluted basis as if all convertible
securities had been converted and all warrants and options had been exercised)
entitled to vote in the election of Directors of the Company or the surviving
Person of any such merger, consolidation or other business combination (if other
than the Company).
"Compelled Sale" means the sale by the Investors of Investor Shares
pursuant to Section 3.4.
"Director" means a member of the Board of Directors.
"Family Group" means a Person's parents, spouse, descendants (whether
or not adopted) and stepchildren and any trust solely for the benefit of such
Person and/or the Person's parents, spouse, stepchildren and/or descendants.
"First Year Compelled Sale Price" is that Compelled Sale Price
required to be received by an Investor on the date of the Compelled Sale so that
such Compelled Sale Price when added to all cash flows to each Investor from its
investments in the
-2-
Company (including, without limitation, dividends and sales of stock, etc.,
during the period from the date hereof to the date of the Compelled Sale)
provides a rate of return of at least 35% on all cash flows from such Investor
in connection with its investments in the Company (including, without
limitation, the initial purchase, the exercise price with respect to any
exercise of warrants or options, other than the Warrant B Alternative Exercise
Price (as defined in the Purchase Warrants) etc., during the period from the
date hereof to the date of the Compelled Sale). For purposes of this
definition, the 35% rate of return referred to above is the rate required as of
the date of the Compelled Sale and is not to be annualized. By way of example
only, on the date of the Compelled Sale, the aggregate of the Compelled Sale
Price and all other cash flows to such Investor from its investment in the
Company must be $1.35 for every $1.00 of cash flow from such Investor in
connection with its investment in the Company.
"Investor Shares" means (i) the Purchased Shares issued to the
Investors pursuant to the Purchase Agreement; (ii) the Purchase Warrants issued
to the Investors pursuant to the Purchase Agreement; (iii) the Contingent
Warrants issued to the Investors pursuant to the Purchase Agreement; (iv) any
shares of Common Stock issued or issuable upon exercise of the Purchase Warrants
referred to in clause (ii); (v) any shares of Common Stock issued or issuable
upon exercise of the Contingent Warrants referred to in clause (iii); (vi) the
Additional Purchase Agreement Shares; and (vii) any shares of Common Stock
issued or issuable directly or indirectly with respect to the securities
referred to in clauses (i) through (vi) by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular shares constituting
Investor Shares, such shares will cease to be Investor Shares when they have
been (x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
"Person" means any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization or
other entity.
"Priority Return" is the cash amount that the Company would have to
transfer to each Investor on the date of the Compelled Sale so that the internal
rate of return on (i) all the cash flows both to and from each Investor from its
investments in the Company (including, without limitation, the initial purchase,
the exercise price with respect to any exercise of warrants or options,
dividends, sale of stock (including the amount received pursuant to the
Compelled Sale, but excluding the Warrant B
-3-
Alternative Exercise Price as defined in the Purchase Warrants) etc., during the
period from the date hereof to and including the date of the Compelled Sale) and
(ii) the cash amount referred to above, would be 35%.
"Public Offering" means an underwritten public offering of shares of
Common Stock pursuant to an effective Registration Statement under the
Securities Act of 1933, as then in effect or any comparable statement under any
similar federal statute then in force or effect.
"Qualified Public Offering" means a Public Offering of at least
1,000,000 shares of Common Stock at a price per share of at least $35 (before
underwriting commissions).
"Singh" means K. Xxxx Xxxxx, a resident of Virginia, or in the event
he is not then alive or legally competent, his executor, the administrator of
his estate or his legal representative (including, without limitation, his
guardian, conservator or other similar fiduciary).
"Third Party" means any Person that is not an Affiliate or a member of
the Family Group, as appropriate, of the Company, Singh or the Investors.
"Underlying Shares" means (i) the Purchased Shares issued to the
Investors pursuant to the Purchase Agreement; (ii) any shares of Common Stock
issued or issuable upon exercise of the Purchase Warrants issued to the
Investors pursuant to the Purchase Agreement; (iii) any shares of Common Stock
issued or issuable upon exercise of the Contingent Warrants issued to the
Investors pursuant to the Purchase Agreement, (iv) the Additional Purchase
Agreement Shares, (v) any shares of Common Stock issued or issuable directly or
indirectly with respect to the securities referred to in clauses (i) through
(iv) by way of stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization and
(v) any other shares of Capital Stock held by the Investors; provided that
Underlying Shares will cease to be Underlying Shares when they cease to be
Investor Shares.
ARTICLE II
CORPORATE GOVERNANCE; VOTING AGREEMENTS
SECTION 2.1. Board of Directors.
------------------
(a) The parties hereto agree that the Investors shall collectively
be entitled to designate one (1) member of the Board of Directors (the
"Investors' Nominee") to be appointed immediately after the closing of the
issuance of the Purchased Shares and the Purchase Warrant.
-4-
(b) Singh agrees that he will vote all shares of Capital Stock
owned by him, controlled by him, or over which he has voting power to elect, and
will otherwise support the election of, the Investors' Nominee as a Director. No
transfer of shares of Capital Stock by Singh shall be permitted unless such
transferee agrees to be bound by the provisions of this Section 2.
(c) The Company agrees that it will take all actions necessary to
insure that the Investors' Nominee is nominated as a member of the Board of
Directors.
(d) In the event that any Investors Nominee vacates his seat on
the Board of Directors, whether by resignation, death, removal or otherwise, the
parties hereto agree to fill any such vacancy with a person designated by the
Investors.
SECTION 2.2. Approved Offerings. Each Investor hereby agrees to vote
------------------
its shares of Capital Stock and take all other necessary actions within its
control to approve a debt and/or equity offering (if such an offering is deemed
to be desirable by the Company) on substantially the same terms as have been
proposed as of the date hereof by Xxxxxx Brothers, financial advisor to the
Company (a draft, dated July 26, 1996, of the registration statement of which
has been delivered to the Investors); provided that the price per security
offered in such a debt and/or equity offering is at least $35. Each Investor
hereby agrees to waive its right to include any of its Underlying Shares in such
offering.
SECTION 2.3. Further Assurances. Each holder of Capital Stock
------------------
hereto, and the Company, as applicable, hereby consents and agrees to vote its
shares of Capital Stock and take all actions required under the Company's
certificate of incorporation and by-laws and otherwise use its best efforts to
cause the transactions contemplated by this Agreement and the provisions hereof
to be effectuated.
SECTION 2.4. Termination of Obligations. The obligations set forth
--------------------------
in Section 2.1 shall terminate upon the consummation of a Qualified Public
Offering.
ARTICLE III
PREEMPTIVE RIGHTS; TRANSFER RESTRICTIONS
AND OFFER PROCEDURES
SECTION 3.1. Preemptive Rights.
-----------------
(a) Except for the issuance of the Company's Capital Stock or
securities (i) pertaining to options or rights
-5-
to acquire shares of Capital Stock existing on the date hereof, (ii) pursuant to
a Public Offering if the managing underwriter of such Public Offering advises
the Company in writing that in its opinion it is necessary for the Investors to
waive their preemptive rights granted hereunder in order for the Public Offering
to achieve its maximum benefit, (iii) pursuant to the exercise of the Purchase
Warrants and/or the Contingent Warrants, (iv) as the Additional Purchase
Agreement Shares, or (v) additional stock or option issuances to directors or
employees of the Company pursuant to stock option plans existing on the date
hereof including the number of shares issuable thereunder as of the date hereof
(or amendments to such plans or new plans if agreed to by the Investors), if the
Company at any time after the date hereof authorizes the issuance or sale of any
Capital Stock or any securities containing options or rights to acquire any
shares of Capital Stock (other than as a dividend on the outstanding Capital
Stock), the Company shall first offer to sell to each Investor a portion of such
Capital Stock or other securities equal to the percentage of Underlying Shares
held by such Investor at the time of such issuance; provided that for purposes
of this Section 3.1, Underlying Shares shall not include (x) the Contingent
Warrants if the proposed issuance of Capital Stock or other securities by the
Company takes place prior to the time the Contingent Warrants are by their terms
exercisable or have by their terms become null and void or (y) the Additional
Purchase Agreement Shares if the right to receive them has not occurred.
(b) In order to exercise its purchase rights hereunder, each Investor
must within 20 days after receipt of written notice from the Company describing
in reasonable detail the Capital Stock or securities being offered, the purchase
price thereof, the payment terms and such Investor's pro rata percentage
allotment, deliver a written notice to the Company describing its election
hereunder. Any Capital Stock not elected to be purchased by the end of such 20-
day period shall be reoffered for an additional 10-day period by the Company on
a pro rata basis to the Investors who elected to purchase all shares of such
Capital Stock originally offered to such Investors.
(c) Upon the expiration of the offering periods described above, the
Company shall be entitled to sell such Capital Stock or securities which the
Investors have not elected to purchase during the 120 days following such
expiration on terms and conditions no more favorable to the purchasers thereof
than those offered to the Investors. Any Capital Stock or securities offered or
sold by the Company to any Person after such 120-day period must be reoffered to
the Investors pursuant to the terms of this Section 3.1.
-6-
SECTION 3.2. Transfer Restrictions.
---------------------
(a) No Investor shall transfer any interest in any Investor
Shares except pursuant to and in accordance with the provisions of this
Section 3.2.
(b) If, at any time, an Investor wishes to sell any of its
Investor Shares to a Third Party, such sale shall be made pursuant to the
following procedures:
(i) Each Investor shall deliver to the Company a written
notice of its intention (an "Offer Notice"), describing the material terms and
conditions of the proposed sale, including the number of Investor Shares offered
for sale (the "Offered Shares") and the proposed price. The Company shall have
30 calendar days from the date of receipt of the Offer Notice to give each such
Investor written notice that it intends to purchase (or to have its designee
purchase) the Offered Shares on the same terms and conditions set forth in the
Offer Notice (a "Purchase Notice"). If the Company delivers to any such Investor
a Purchase Notice within such time period, the closing for the purchase and sale
of the Offered Shares to be purchased by the Company (or its designee) must take
place within 60 calendar days from the date of such Purchase Notice (the
"Closing Period"). In the event the Company fails to deliver to any such
Investor a Purchase Notice within 30 calendar days from the date of its receipt
of the Offer Notice, delivers a notice indicating that it does not intend to
purchase the Offered Shares or fails to close the purchase and sale of the
Offered Shares prior to the expiration of the Closing Period, any such Investor
will have the right, for a period of 120 calendar days after the earlier of (i)
the date the Company delivers a notice indicating that it does not intend to
purchase the Offered Shares; (ii) the date that is 30 calendar days after the
date of delivery of the Offer Notice to the Company or (iii) the expiration of
the Closing Period to sell the Offered Shares to any Third Party, at a price per
share not less than 95 % of the price proposed in the Offer Notice.
(ii) The purchase price for any Investor Shares purchased
by the Company (or its designee) pursuant to this Section 3.2(b) will be paid in
cash by wire transfer in immediately available funds to a bank account
designated by each Investor not less than three Business Days prior to closing.
(iii) At any closing under this Section 3.2(b), each
Investor will deliver to the relevant purchaser good and valid title to the
Investor Shares being sold by each such Investor, free and clear of any taxes,
liens or charges.
(c) Permitted Transferees. The restrictions set forth in
Section 3.2(b) shall not apply to (i) any transfer of Investor Shares by any
Investor among its Affiliates or (ii) a
-7-
transfer of Investor Shares by any Investor pursuant to the laws of descent and
distribution or among such Investor's Family Group; provided that the provisions
of this Agreement will continue to be applicable to the Investor Shares after
any transfer pursuant to clauses (i) and (ii) above and the transferees of such
Investor Shares shall agree in writing to be bound by the provisions of this
Agreement.
(d) Transfers to Competitors. Notwithstanding paragraph (c) above,
without the prior written consent of the Company, no Investor shall transfer any
Investor Shares to any company that either directly or through an Affiliate
competes to a material extent with the Company or any of its subsidiaries in the
provision of international telecommunications services in the United States,
Australia, the Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx, Xxxxxx, Xxxx Xxxx, Xxxxx and
Canada. Each Investor agrees to notify the Company if, to its knowledge, it is
transferring any Investor Shares to any company that either directly or through
an Affiliate competes to a material extent with the Company or any of its
Subsidiaries in the provision of international telecommunications.
(e) Transfers to One Hundred Persons. Notwithstanding paragraph (c)
above, without the prior written consent of the Company, the Investors will not
transfer their Investor Shares to more than 100 transferees in the aggregate.
(f) Termination of Restrictions. The restrictions set forth in
Section 3.2(b) shall terminate upon the consummation of a Qualified Public
Offering. The restrictions set forth in Section 3.2(d) shall terminate upon the
earlier of (i) the consummation of a Qualified Public Offering or (ii) three
years from the date hereof. The restrictions in Section 3.2(e) shall terminate
upon the consummation of a Public Offering.
SECTION 3.3. Legends. Each certificate evidencing outstanding
-------
Investor Shares held by Investors shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE
SOLD OR OFFERED FOR SALE UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT IN EFFECT UNDER THE SAID ACT, OR UNLESS AN EXCEPTION FROM
REGISTRATION IS AVAILABLE.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER AS SET FORTH IN THE SECURITYHOLDERS' AGREEMENT DATED AS OF
JULY 31, 1996, COPIES OF WHICH WILL BE FURNISHED BY PRIMUS
TELECOMMUNICATION
-8-
GROUP, INCORPORATED AND ANY SUCCESSOR THERETO UPON REQUEST AND WITHOUT
CHARGE.
SECTION 3.4. Right to Compel Sale.
--------------------
(a) If at any time a Third Party offers to buy 80% or more of the
outstanding shares of Capital Stock and holders of a majority of the Capital
Stock, including Singh, (other than the Investor Shares held by the Investors)
agree to sell their shares of Capital Stock to such Third Party, Singh or the
Company shall have the right (but not the obligation) to compel Investors to
sell their Investor Shares to such Third Party if the following conditions are
met: (i) the terms and conditions for the purchase of the Investor Shares
(including the price (the "Compelled Sale Price") are identical to those
relating to the purchase of all other outstanding shares of Capital Stock, (ii)
the Third Party Investor must purchase all of the Investor Shares owned by
Investors, (iii) the consideration to be received by each Investor and every
other seller of shares of Capital Stock to such Third Party shall be cash or
liquid securities, (iv) during the period commencing on the date hereof and
ending on the first anniversary (the "First Anniversary") of the date hereof,
each Investor receives the First Year Compelled Sale Price and (v) following the
First Anniversary, the Compelled Sale Price must be an amount such that the
Priority Return shall be equal to or less than zero.
(b) In the event the Company or Singh elects to exercise its
right to cause a Compelled Sale, it will deliver written notice (a "Compelled
Sale Notice") to Investors, setting forth the consideration and describing the
other material terms and conditions of the Compelled Sale, including the
proposed closing date, which shall be not less than 15 Business Days from the
date the Compelled Sale Notice is delivered. At the closing for the Compelled
Sale, against payment of the purchase price for the Investor Shares to be sold
by Investors, Investors will deliver to the Third Party the certificate or
certificates representing the number of Investor Shares held by Investors, duly
endorsed, together with all other documents which are necessary in order to
effect such Compelled Sale.
(c) The rights and obligations set forth in this Section 3.4
shall terminate upon the consummation of a Qualified Public Offering.
SECTION 3.5. Tag Along.
---------
(a) If Singh proposes to sell, in one transaction or in a series
of related transactions (a "Tag Along Sale") any shares of Common Stock of the
Company to any Third Party, Investors shall have the right to participate in
such Tag Along Sale on the following terms:
-9-
(i) Singh shall give Investors not less than 20 Business Days'
written notice (a "Sale Notice") of its intention, describing the price offered,
all other material terms and conditions of the Tag Along Sale and, if the
consideration payable pursuant to the Tag Along Sale consists in whole or in
part of consideration other than cash, such information relating to such other
consideration as Investors may reasonably request and which is available to
Singh.
(ii) In connection with any Tag Along Sale, Investors shall
have the right, in their sole discretion, to sell, for the same price per share
being paid to, and otherwise on the same terms and conditions, as Singh,
Underlying Shares then held by it in such amount as determined pursuant to the
next sentence. If an Investor has elected to participate in such sale, it shall
be entitled to sell such amount of Underlying Shares equal to its pro rata
ownership of shares in comparison to Singh.
For example, if the sale contemplated a sale of 100 shares by Singh
and if Singh at such time owns 30% of all the shares of the corporation on a
fully-diluted basis and if an Investor elects to participate and owns 20% of all
shares of the corporation on a fully-diluted basis, Singh would be entitled to
sell 60 shares and the Investor Holder would be entitled to sell 40 Underlying
Shares.
An Investor may sell a Purchase Warrant or a Contingent Warrant (if
such Contingent Warrant is then exercisable) in the proposed transfer rather
than the Underlying Shares relating thereto. In such case, the price of such
warrant shall be equal to the price at which the Common Stock is to be
transferred times the number of shares of Common Stock into which such warrant
would be exercisable at that time minus the exercise price of such warrant.
With respect to a Purchase Warrant, any such Purchase Warrant will be treated as
if it were exercisable on such date.
(iii) Investors must exercise their tag along right by giving
written notice to Singh or the Company, as the case may be, within 15 Business
Days of the delivery of a Sale Notice, specifying the number of Investor Shares
that each Investor desires to include in the Tag Along Sale. At the closing for
the Tag Along Sale, against payment of purchase price for the Investor Shares to
be sold by Investors, Investors will deliver to the Third Party the certificate
or certificates representing such number of Investor Shares, duly endorsed,
together with all other documents which are necessary in order to effect such
Tag Along Sale.
-10-
(b) The provisions of this Section 3.5 shall not apply to any
sale or sales of up to 2.5% (in the aggregate) of the amount of Common Stock
owned by Singh on the date hereof.
(c) The rights and obligations set forth in this Section 3.5 shall
terminate upon the consummation of a Qualified Public Offering.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Share Certificates. Any shares of Capital Stock issued
------------------
to an Investor pursuant to the Purchase Agreement, Purchase Warrant, Contingent
Warrant, or pursuant to preemptive rights exercised hereunder will be
Permanently Unrestricted Share Certificates (as defined in the by-laws of the
Company). The Company shall not amend its by-laws with respect to Article IX
thereof or in any other way that adversely affects an Investor or the
transferability of shares owned by such Investor, without such Investor's prior
written consent.
SECTION 4.2. Transfers in Violation of Agreement. Any transfer or
-----------------------------------
attempted transfer of any Investor Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such transfer on its
books or treat any purported transferee of such Investor Shares as the owner of
such shares for any purpose.
SECTION 4.3. Amendment and Waiver. Except as otherwise provided
--------------------
herein, no modification, amendment or waiver of any provision of this Agreement
shall be effective against any party hereto unless such modification, amendment
or waiver is approved in writing by such party.
SECTION 4.4. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
SECTION 4.5. Entire Agreement. Except as otherwise expressly set
----------------
forth herein, this document, the Purchase Agreement, the Registration Rights
Agreement, the Purchase Warrant and the Contingent Warrant embody the complete
agreement and understanding among the parties hereto with respect to the
-11-
subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
SECTION 4.6. Successors and Assigns. The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and to the extent applicable heirs,
executors, administrators and legal representatives and any subsequent holders
of Investor Shares and the respective successors and assigns of each of them, so
long as they hold Investor Shares.
SECTION 4.7. Counterparts. This Agreement may be executed in
------------
separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 4.8. Remedies. The parties hereto agree and acknowledge that
--------
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that the parties hereto shall have the right to injunctive
relief, in addition to all of its rights and remedies at law or in equity, to
enforce the provisions of this Agreement. Nothing contained in this Agreement
shall be construed to confer upon any Person who is not a signatory hereto any
rights or benefits, as a third party beneficiary or otherwise.
SECTION 4.9. Notices. All notices, demands or other communications
-------
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or received by certified mail, return receipt requested, confirmed
telecopy or sent by guaranteed overnight courier service. Such notices, demands
and other communications will be sent to the parties as indicated in the
Purchase Agreement, and to Singh as indicated below, or to any party (including
any new party) at such address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
K. Xxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
with a copy to:
Pepper, Xxxxxxxx & Xxxxxxx
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxx and Arch Street
Philadelphia, Pennsylvania 19103-2799
Attention: Xxxxx X. Xxxxxxx
-12-
SECTION 4.10. Governing Law. The corporate law of Delaware will
-------------
govern all issues concerning the relative rights of the Company and its
stockholders. All other issues concerning this Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of New York.
SECTION 4.11. Descriptive Headings. The descriptive headings of this
--------------------
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
IN WITNESS WHEREOF, the parties, by their respective officers duly
authorized, have caused this Agreement to be duly executed and delivered as of
the date hereof.
PRIMUS TELECOMMUNICATIONS GROUP,
INCORPORATED
By: /s/ K. Xxxx Xxxxx
------------------------------
K. Xxxx Xxxxx
President, Chief Executive Officer
/s/ K. Xxxx Xxxxx
---------------------------------
K. XXXX XXXXX
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Attorney-in-fact
S-C PHOENIX HOLDINGS, L.L.C.
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Attorney-in-fact
[EXECUTIONS CONTINUED]
-13-
WINSTON PARTNERS II LLC
By: Chatterjee Advisors L.L.C., its manager
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Manager
WINSTON PARTNERS II LDC
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Attorney-in-fact
-14-
