EXHIBIT 10.15
DEBT SATISFACTION AGREEMENT
THIS DEBT SATISFACTION AGREEMENT dated as of November __, 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 "DEBT") together with additional mortgage, liens and other related
rights and interests (the "Rights" as defined on Schedule A attached hereto);
WHEREAS, the Company desires to retire the 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 Debt (the "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 Debt by a per share price of U.S. $0.75 per
share (the "Shares"), at the Company's election; and
WHEREAS, the Investor wishes to cancel the Debt and transfer the Rights
to the Company in exchange for either for the Cash Payment or 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 Payment 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 from CEI 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 Payment 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 in exchange and simultaneously
(ii) The Company shall deliver to the Investor
either: (a) the Cash Payment 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 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
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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,
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.
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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.
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
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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.
(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.
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(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).
(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
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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.
(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
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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.
(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
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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.
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
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conformity with written information furnished
expressly for use in connection with such
registration by the Investor or such underwriter or
controlling person.
(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
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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 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.
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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.
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
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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.
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,
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____________________________________________________________________. 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.
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.
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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.
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: By:
----------------------------------- ------------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
Address: 0000 X. Xxxxxxxx Xxxxx Xxxxxxx:
Xxxxx, Xxxxxxx 00000
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