EXHIBIT 10.1
AGREEMENT AMENDMENT
This Amendment (hereinafter the "Agreement") to those certain Share Purchase
Agreements referred to below as the "FT Share Purchase Agreement" and "Jarsi
Share Purchase Agreement" is made and entered into as of the date hereof, by and
among: (i) FirstCom Teleductos Holdings (B.V.I.) Inc., a company duly organized
and existing under the Laws of the British Virgin Islands (hereinafter "FirstCom
Teleductos Holdings") (hereinafter the "Buyer"), on one part ; and on the other
part : (i) Xxxxx International Limited, a company duly organized and existing
under the laws of the British Virgin Islands (hereinafter "Xxxxx") ; and (ii)
Zelbord Properties Limited, a company duly organized and existing under the laws
of the British Virgin Islands (hereinafter, "Zelbord", and Xxxxx and Zelbord
collectively referred to as the "Sellers").
PRELIMINARY STATEMENTS
1. On February 1, 1999 FirstCom Teleductos Holdings executed a Share Purchase
Agreement with Xxxxx (hereinafter the Jarsi Share Purchase Agreement")
pursuant to which FirstCom Teleductos Holdings acquired 100% of the equity
interests in Jarsi Finance Corp., a corporation organized and existing
under the laws of Panama, and an indirect equity participation of 15.55% in
a Colombian telecommunications Company formerly known as "Teleductos S.A."
and now known as "FirstCom Colombia S.A.".
2. On February 1, 1999 FirstCom Teleductos Holdings executed a Share Purchase
Agreement with Zelbord (hereinafter the "FT Share Purchase Agreement")
pursuant to which FirstCom Teleductos Holdings acquired 100% of the issued
and outstanding capital stock of FirstCom Teleductos B.V.I. Inc., a
corporation duly organized and existent under the Laws of the British
Virgin Islands, and an indirect equity interest of 35.45% in a Colombian
telecommunications company formerly known as "Teleductos S.A." and now
known as "FirstCom Colombia S.A.".
3. FirstCom Teleductos Holdings is a wholly owned subsidiary of FirstCom
Corporation.
4. FirstCom Teleductos Holdings has a total payable outstanding balance under
both the Jarsi Share Purchase Agreement and the FT Share Purchase Agreement
of Five Million Two Dollars (US$5,000,002), plus accrued interest
distributed as follows : (i) under the Jarsi Share Purchase Agreement, One
Million Five Hundred Twenty Four Thousand Eight Hundred Dollars (US$
1,524,800), plus accrued interest payable as follows : (a) Six Hundred Nine
Thousand Nine Hundred and Twenty Dollars (US$609,920), plus accrued
interest due on August 31, 1999 and (b) Nine Hundred Fourteen Thousand
Eight Hundred and Eighty Dollars (US$ 914,880), plus accrued interest which
shall be due on February 1, 2000 ; and (ii) under the FT Share Purchase
Agreement, Three Million Four Hundred Seventy Five Thousand Two Hundred and
Two Dollars (US$ 3,475,202), plus accrued interest, payable as follows :
(a) One Million Three Hundred and Ninety Thousand Seventy Eight Dollars
(US$ 1,390,078), plus accrued interest due
on August 31, 1999; and (b) Two Million Eighty Five Thousand One Hundred
and Twenty Four Dollars (US$ 2,085,124), plus accrued interest which shall
be due on February 1, 2000 (all of which shall be hereinafter referred to
as the "Outstanding Amounts").
5. The Buyer and the Sellers have entered into this Agreement for the purpose,
among others, of amending several provisions of both the Jarsi Purchase
Agreement and the FT Purchase Agreement, including that regarding payment
of Outstanding Amounts.
In consideration of the above, the Buyer and the Sellers have decided to enter
into this Agreement, which terms and conditions are as follows :
SECTION 1. PAYMENT
1.1. Subject to the terms and conditions of this Agreement, the Buyer
and the Sellers agree that Buyer shall satisfy the Outstanding
Amounts as follows. On or before August 31, 1999 at 6:00 p.m.
Colombian Time, time being of the essence in this Agreement,
Buyer shall deliver to Sellers Five Hundred Thousand (500,000)
shares of FirstCom Corporation (the "FirstCom Shares"). The
FirstCom Shares shall be held in escrow pursuant to the terms and
conditions of an Escrow Agreement of even date herewith among the
parties hereto and Xxxxx & XxXxxxxx, as escrow agent (the "Escrow
Agreement"). The FirstCom Shares shall be allocated among the
Sellers as follows: (a) Xxxxx shall receive One Hundred Fifty Two
Thousand Four Hundred Eighty (152,480) shares; and (b) Zelbord
shall receive Three Hundred Forty Seven Thousand Five Hundred
Twenty (347,520) shares. FirstCom Corporation shall file on or
before July 31, 1999, with respect to the FirstCom Shares, a
registration statement (a "Registration Statement") with the U.S.
Securities and Exchange Commission (the "SEC") on an appropriate
form and use its best efforts to cause and such Registration
Statement to have been declared effective by the SEC on or prior
to the date of delivery of the FirstCom Shares to the Sellers.
Notwithstanding the foregoing, in the event that the Registration
Statement has not been declared effective by the SEC on or before
August 31, 1999 despite the best efforts of Buyer to cause it to
become effective in a timely manner, as a result of the review
process undertaken by the SEC or because of a legal requirement
to revise the Registration Statement to reflect the occurrence of
any material event, the failure of which would cause the
Registration Statement to be false or misleading in any material
respect, then this entire Agreement, including any waivers
provided herein, shall terminate and be of no force and effect
and no party hereto shall have any liability to any other party
hereto hereunder, and the parties shall be restored to their
respective positions immediately preceding the date hereof. By
way of clarification, and not limitation, if this Agreement
Amendment shall terminate on or before August 31, 1999 for any
reason, the parties hereto shall have the same rights and
remedies as if this agreement had never existed.
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SECTION 2. NEGOTIABILITY OF SHARES
The Sellers agree that in no case will they sell more than two
hundred thousand (200,000) FirstCom Shares during any 30-day
period beginning on the date of delivery by the Buyer to the
Sellers of the FirstCom Shares and registration thereof. The
Escrow Agreement shall provide the terms and conditions upon
which the FirstCom Shares shall be released for resale upon
compliance with the foregoing restriction.
SECTION 3. WAIVER
3.1 In consideration of the parties entering into this Agreement, the
Buyer and Seller hereby jointly expressly and irrevocably waive
any and all right or remedy they may have to make any claim, or
initiate any litigation, claim of indemnification or any other
action whatsoever, including the exercise of any set-off rights,
to which they could be entitled under the Jarsi Share Purchase
Agreement, the FT Share Purchase Agreement or any other related
document including but not limited to the Teleductos Share
Purchase Agreement, based on any liability that could be
attributable to the Sellers or Buyers as a result of the breach
of any representations, warranties, covenants and mutual
agreements provided in any such agreements and documents.
3.2 As a result of the above, the Buyer and Sellers expressly
acknowledge and agree that there will be no survival of the
representations, warranties or covenants contained in the Jarsi
Share Purchase Agreement, FT Share Purchase Agreement, the
Teleductos Share Purchase Agreement or any other document related
thereto beyond the original dates of such agreements.
SECTION 4 GUARANTEES
4.1 Both the Sellers and the Buyer agree that the Share Pledge
Agreements over the Teleductos Shares dated February 1, 1998 and
executed and delivered by FirstCom Teleductos Holdings under the
Jarsi Share Purchase Agreement and the FT Share Purchase
Agreement will continue in full force and effect until delivery
of the FirstCom Shares, to the Sellers or to the Escrow Agent as
the case may be, and the effectiveness of the Registration
Statement. Once the aforementioned condition has occurred, the
Sellers will immediately release all of the Teleductos pledged
shares according to the procedure provided in each Share Pledge
Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer hereby jointly and severally represent to the Sellers
as follows:
5.1 The issuance of FirstCom Shares as provided in Section 1.1 has
been duly authorized by FirstCom Corporation, the parent company
of the Buyer and
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does not conflict with FirstCom Corporation articles of
incorporation or bylaws, or any contract or agreement by which
FirstCom is bound. The FirstCom Shares, when issued in accordance
with the terms hereof, will be validly issued, fully paid and
non-assessable. The execution and delivery of this Agreement and
the Escrow Agreement and the performance of all obligations
thereunder by Buyer and FirstCom Corporation when applicable have
been duly authorized by all necessary corporate action and
constitute valid and enforceable obligations of Buyer and
FirstCom Corporation when applicable..
5.2. Each report filed by FirstCom as required by the Securities
Exchange Act of 1934 (the "1934 Act Reports"), except to the
extent qualified by later 1934 Act Reports, does not contain an
untrue statement of a material fact or omit to state any material
fact required to be therein or necessary in order to make the
statements therein not misleading in light of the circumstances
in which they are made. The 1934 Act Filings comply in all
material respects with the requirements of the Securities
Exchange Act of 1934. FirstCom has timely filed all 1934 Act
Reports that it is required by law to file.
5.3 There has been no material adverse change in the business,
financial condition or prospects of FirstCom since the date of
FirstCom's most recent Annual Report on Form 10-KSB, except to
the extent disclosed on FirstCom's most recently filed Quarterly
Report on Form 10-Q or on any report filed on Form 8-K.
SECTION 6 REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers hereby jointly and severally represent to the
Buyer that :
6.1. This Agreement and the Escrow Agreement have been duly authorized
by all corporate authorizations in accordance with each of the
Sellers articles of incorporation or bylaws (or similar
organizational documents), and the execution of this Agreement
and the Escrow Agreement does not contravene the same.
SECTION 7. INDEMNIFICATION
7.1. The parties hereto, jointly and severally, agree to indemnify and
hold eachother harmless from any and all losses, claims, damages
or liabilities,
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costs and expenses (including reasonable attorney's fees) arising
out of or based upon the fact that any of the Buyer's or Sellers
representations and warranties that are untrue or upon the
failure of either of the parties to comply with any of the
convenants and agreements contained herein.
8. MISCELLANEOUS
8.1 The Buyer and the Sellers acknowledge that this Agreement,
together with all annexes attached hereto and all other documents
relating to the Outstanding Amounts, constitutes the entire
agreement in regards to the matters provided herein and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, including the Jarsi
Purchase Agreement and the FT Purchase Agreement.
9. NOTICE
9.1. All notices to be provided or delivered between the Buyer and the
Sellers under this Agreement shall be done according to that
provided in section 11.02 of both the Jarsi Share Purchase
Agreement and the FT Share Purchase Agreement.
In witness hereof, the Buyer and the Sellers have executed this Amendment
Agreement on the __ day of July, 1999.
BUYER SELLERS
FIRSTCOM TELEDUCTOS (B.V.I.) INC.
XXXXX INTERNATIONAL LIMITED
By :______________________ By :______________________
Name: Name :
Title: Title :
ZELBORD PROPERTIES LIMITED
By :______________________
Name :
Title :
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