Exhibit 7.2
EXECUTION COPY
STOCK ACQUISITION AGREEMENT
This STOCK ACQUISITION AGREEMENT (this "Agreement"), entered
into as of November 26, 1997, is between US Wats, Inc., a New York corporation
(the "Corporation"), and Gold & Xxxxx Transfer, S.A., a British Virgin Islands
corporation (the "Purchaser").
RECITALS
WHEREAS, the Corporation desires to issue shares of US Wats,
Inc. Common Stock, par value $.001 per share, (the "Stock") to the Purchaser,
and the Purchaser desires to purchase shares of the Stock from the Corporation
pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
representations contained herein, the Purchaser and the Corporation hereby agree
as follows:
1. Issuance of Stock.
(a) Subject to the terms and conditions of this Agreement, the
Corporation agrees to issue to the Purchaser, and the Purchaser agrees to
purchase from the Corporation 1,590,000 shares of Stock (the "Shares") for
$2,385,000, or $1.50 per share ("Stock Consideration").
(b) The Corporation shall deliver to the Purchaser a
certificate evidencing the Shares, registered in the name of the Purchaser,
concurrently with full payment of the Stock Consideration in immediately
available funds (the "Closing"). The date on which the Closing occurs is
referred to herein as the "Closing Date."
2. Representations of Purchaser. As of the date hereof and the
Closing Date, the Purchaser represents and warrants to and covenants with the
Corporation as follows:
(a) The Purchaser is a corporation validly existing and in
good standing under the laws of the British Virgin Islands.
(b) The Purchaser has the requisite corporate power and
authority to execute and deliver this Agreement.
(c) This Agreement has been duly authorized by all necessary
corporate action on the part of the Purchaser. This Agreement constitutes the
legal, valid and binding obligations of the Purchaser, enforceable in accordance
with the terms hereof, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
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creditors' rights generally.
(d) Neither the execution or delivery of this Agreement, nor
fulfillment of or compliance with the terms and provisions hereof and thereof,
will conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any violation of, the Articles
of Incorporation or By-laws of the Purchaser, any award of any arbitrator or any
agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule of regulation to which the Purchaser is
subject.
(e) The Purchaser has obtained all consents, approvals and
authorizations, and made all necessary declarations and filings, and provided
all notices, required to consummate the transactions contemplated by this
Agreement in the manner contemplated hereby.
(f) The Purchaser is purchasing the Shares solely for
investment purposes, with no present intention of distributing or reselling any
of the Shares or any interest therein. The Purchaser acknowledges that the
Shares have not been registered under the Securities Act of 1933, as amended,
and the rules and regulations thereunder (collectively, the "Securities Act").
(g) The Purchaser is aware of the applicable limitations under
the Securities Act relating to a subsequent sale, transfer, pledge, mortgage,
hypothecation, gift, assignment or other encumbrance of the Shares. The
Purchaser further acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act and applicable state se
curities laws or an exemption from such registration is available.
(h) The Purchaser has received from the Corporation adequate
access to financial and other information concerning the Corporation and the
Stock, and the Purchaser has had the opportunity to ask questions of and receive
answers from the Corporation concerning the Stock and to obtain therefrom any
additional information necessary to make an informed decision regarding the
acquisition of the Shares.
(i) The Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the acquisition of the Shares. The investment in the Shares is suitable
for the Purchaser upon the basis of the facts regarding the Purchaser's other
security holdings, financial situation and needs.
(j) The Purchaser realizes that the Buyer is relying on the
validity of its representations and agreements contained herein in issuing the
Shares to him without registration under the Securities Act.
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3. Representations of the Corporation. As of the date hereof
and as of the Closing Date, the Corporation hereby represents and warrants to
and covenants with the Purchaser as follows:
(a) The Corporation and each of its Significant Subsidiaries
(as defined in Regulation S-X under the Securities Exchange Act of 1934, as
amended) is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, and has all
requisite power to own its respective property and to carry on its respective
business as now conducted. The Corporation and each of its Significant
Subsidiaries is duly qualified to do business and is in good standing in each
jurisdiction in which the character or location of the properties owned or
leased by the Corporation or such Significant Subsidiary, as the case may be, or
the nature of the business conducted by the Corporation or such Significant
Subsidiary, as the case may be, makes such qualification necessary, except where
the failure to be so qualified would not, individually or in the aggregate, have
a material adverse effect on the business, financial condition or results of
operations (a "Material Adverse Effect") of the Corporation and its
subsidiaries, taken as a whole.
(b) (i) The Corporation has all requisite power and authority,
corporate and otherwise, to execute, deliver and to perform its obligations
under this Agreement and under the Registration Rights Agreement dated as of the
date hereof between the Corporation and the Purchaser (the "Registration
Agreement"), including the consummation of the transactions contemplated hereby
and by the Registration Agreement (collectively, the "Transactions"), (ii) the
execution and delivery of this Agreement and the Registration Agreement
(collectively, the "Agreements") and the consummation of the Transactions have
been duly and validly authorized and approved by the Corporation's board of
directors and by all other required corporate action of the Corporation, and
(iii) the Agreements have been duly and validly executed and delivered by the
Corporation and constitute the Corporation's valid and binding obligation,
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally.
(c) The Corporation's execution and delivery of the Agreements
does not, and the Corporation's performance of the Agreements shall not, require
any consent, approval, authorization or permit, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except (i)
for applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the "Exchange
Act") as have been complied with and (ii) where failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not, individually or in the aggregate, have a Material Adverse Effect on
the
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Corporation and its subsidiaries, taken as a whole, or a material adverse effect
on the ability of the Corporation to perform its obligations hereunder and under
the Registration Agreement.
(d) (i) The Corporation has furnished the Purchaser with a
correct and complete copy of each report, schedule, registration statement and
definitive proxy statement heretofore filed by the Corporation with the
Securities and Exchange Commission (the "SEC") since December 31, 1996 (the "SEC
Documents"), which are all the documents (other than preliminary material) that
the Corporation was required to file with the SEC since December 31, 1996. As of
their respective dates, none of the SEC Documents (including all exhibits and
schedules thereto and documents incorporated by reference therein) contained any
untrue statements of a material fact or omissions of a material fact necessary
so as not to render the statements therein misleading and in the case of
documents other than a registration statement, in light of the circumstances
under which they were made, and the SEC Documents complied when filed in all
material respects with the then applicable requirements of the Securities Act or
the Exchange Act, as the case may be. The Corporation's financial statements
included in the SEC Documents complied in all material respects with the then
applicable accounting requirements and the published SEC rules and regulations
with respect thereto, were prepared in accordance with generally accepted
accounting principles during the periods involved (except as may have been
indicated in the notes thereto or, in the case of the unaudited statements, as
permitted by Form 10-Q promulgated by the SEC) and fairly present (subject, in
the case of the unaudited statements, to normal, recurring audit adjustments)
the consolidated financial position of the Corporation and its consolidated
subsidiaries as at the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended. The consolidated balance
sheet of the Corporation and its consolidated subsidiaries as at September 30 ,
1997 (the "Balance Sheet Date") is referred to herein as the "Balance Sheet."
(ii) Except as disclosed in the SEC Filings, since
the Balance Sheet Date, no event has occurred which has had or is reasonably
likely to have a Material Adverse Effect on the Corporation and its
subsidiaries, taken as a whole.
(iii) The Corporation has not provided the Purchaser
with any material nonpublic information regarding the Corporation.
(e) (i) On the date hereof, the Corporation has an authorized
capitalization consisting of 30,000,000 shares of Common Stock, par value $.001
per share , and 1,000,000 shares of Preferred Stock, par value $.01 per share,
of which 15,989,100 shares of Common Stock and 30,000 shares of Preferred Stock
are issued and outstanding. All of such shares have been duly authorized and
validly issued and are fully paid and nonassessable, and are not subject to any
preemptive rights of other stockholders. The Stock to be issued to the Purchaser
pursuant to this Agreement, when issued and delivered and paid for in accordance
with the terms hereof, will be validly issued, fully paid and nonassessable and
not subject to any preemptive rights of other stockholders, and the Purchaser
will not be subject to personal liability by reason of being a holder of such
shares. All other capital stock of
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the Corporation to be outstanding on the Closing Date shall have been duly
authorized and validly issued and shall be fully paid and nonassessable, and
shall not have been subject to any preemptive rights of other stockholders. The
Stock is currently traded on the SmallCap Segment of The Nasdaq Stock Market.
(ii) There are no outstanding options, warrants,
rights, calls, commitments, conversion rights, rights of exchange, plans or
other agreements of any character providing for the purchase, issuance or sale
of the capital stock of the Corporation, except as contemplated by this
Agreement, or as disclosed in Schedule 3(e) hereto.
(f) Neither the execution and delivery by the Corporation of
the Agreements nor the performance by the Corporation of the Transactions will
(i) violate or contravene any provision of the Certificate of Incorporation or
By-Laws of the Corporation or any of its subsidiaries, (ii) violate or
contravene any statute, rule, regulation, order or decree of any public body or
authority by which the Corporation or any of its subsidiaries or any of their
respective properties may be bound, (iii) result in a violation or breach of,
conflict with, constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, cancellation, payment or
acceleration) under, or result in the creation of any liens, pledges,
encumbrances, mortgages, charges, rights of others, claims, options, puts,
calls, transfer, restrictions, or security interests or other restrictions of
any kind or character (collectively, "Liens") upon any of the assets of the
Corporation or any of its subsidiaries pursuant to the terms of, any note, bond,
mortgage, indenture, license, franchise, permit, agreement or any other
instrument or obligation to which the Corporation or any of its subsidiaries is
a party or by which it or any of their respective properties may be bound.
(g) Neither the Corporation nor any of its subsidiaries is (i)
in violation or noncompliance with any statute, law, ordinance, regulation, rule
or order of any foreign, federal, state or local government or any other
governmental department or agency, or any judgment, decree or other decision of
any court, applicable to its respective business or operations or (ii) in
violation, breach or default (with or without due notice or lapse of time or
both) under any of the terms, conditions or provisions of any agreement to which
it is a party, or by which any of its respective properties are bound, except
where any such violations or failures to comply or breaches or defaults would
not be reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect on the Corporation and its subsidiaries, taken as a whole, or a
material adverse effect on the ability of the Corporation to perform its
obligations under the Agreements, or on the consummation of the Transactions.
The Corporation and its subsidiaries have all permits, licenses and franchises
from governmental agencies required to conduct their respective businesses as
now being conducted, except for such permits, licenses and franchises the
absence of which would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect on the Corporation and its
subsidiaries, taken as a whole.
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(h) The Corporation and each of its Significant Subsidiaries
has valid title and right to use all its material properties and assets (real
and personal, tangible and intangible), including all properties and assets
reflected on the Balance Sheet.
(i) Except as disclosed in the SEC Documents or as disclosed
on Schedule 3(i) hereto, there is no action, suit or proceeding at law or in
equity by any person or entity or any arbitration or any administrative or other
proceeding by or before any governmental or other instrumentality or agency
pending or, to the knowledge of the Corporation, threatened against the
Corporation or any of its subsidiaries which is reasonably likely to have a
Material Adverse Effect on the Corporation and its subsidiaries, taken as a
whole, or a material adverse effect on the ability of the Corporation to perform
its obligations under the Agreements or the consummation of the Transactions
contemplated hereby.
(j) No agent, broker, person or firm acting on behalf of the
Corporation is or will be entitled to any commission or broker's or finder's
fees from any of the parties hereto, or from any person or entity controlling,
controlled by or under common control with any of the parties hereto, in
connection with any of the Transactions.
(k) Neither the Corporation nor any of its affiliates have
engaged in any form of general solicitation or general advertising in connection
with the purchase and sale of Corporation securities hereunder, nor made any
other sales or solicited any other entities or persons to buy Company securities
that would require registration under the Securities Act of the Stock
contemplated to be sold and purchased hereunder.
(l) Upon consummation of the Closing, the Purchaser shall have
received from the Corporation good and marketable title to all of the Shares,
free and clear of all Liens.
(m) Prior to the Closing Date, the Corporation shall have made
all notice and other filings required by The Nasdaq Stock Market with regard to
the issuance of the Shares.
4. Termination.
(a) This Agreement may be terminated at any time prior to the
Closing (a) by mutual consent of the Corporation and the Purchaser; (b) if
Closing has not occurred by 5:00 p.m., New York City time, on December 12, 1997,
by either the Corporation or the Purchaser by notice to the other party;
provided that such right to terminate shall not be available to any party whose
breach of a representation or warranty or failure to fulfill any obligation
hereunder shall have been the cause of, or resulted in the failure of, the
Closing to occur; (c) by the Purchaser, if there has been a material violation
or breach by the Corporation of any of the covenants, representations or
warranties contained in this Agreement to be complied with or performed by the
Corporation at or prior to such date of termination, or which has prevented the
satisfaction of any condition to the obligations of the Purchaser
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at the Closing Date, or (d) by the Corporation, if there has been a material
violation or breach by the Purchaser of any of the covenants, representations or
warranties contained in this Agreement to be complied with or performed by the
Purchaser at or prior to such date of termination, or which has prevented the
satisfaction of any condition to the obligations of the Corporation at the
Closing Date.
(b) If this Agreement is terminated pursuant to Section 4(a),
no party shall have liability or further obligations to the other party
hereunder; provided, that such termination shall not relieve any party of any
liability for any breach hereunder.
(c) In the event of a breach by any party of its obligations
hereunder, the other party shall have the right, in addition to any other
remedies which may be available, to obtain specific performance of the terms of
this Agreement, and the breaching party hereby waives the defense that there may
be an adequate remedy at law. Should any party default in its performance, or
other remedy, the prevailing party shall be entitled to its reasonable
attorneys' fees.
5. Restrictive Legend
(a) The Shares issued to the Purchaser pursuant hereto shall
bear the following legends:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE SECURITIES LAW
AND MAY NOT BE TRANSFERRED EXCEPT UPON DELIVERY TO THE CORPORATION OF AN OPINION
OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO IT THAT SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW."
(b) Upon receipt of an opinion of legal counsel to the
corporation that the stock evidenced by this certificate no longer constitutes
"restricted securities" under Rule 144 of the Securities Act of 1933, as
amended, the above-provided legend is no longer required under applicable
securities laws, or the Stock is otherwise freely tradable without registration
under the Securities Act of 1933, as amended, the Corporation shall, upon the
request of the holder of this certificate and the submission of this
certificate, issue a substitute certificate without any restrictive legend
thereon.
6. Covenants
(a) Until the second anniversary of the Closing Date, the
Corporation shall use reasonable efforts to continue the listing for trading of
the Stock on The Nasdaq Stock Market or, in the Corporation's discretion, on
such other national securities exchange, and to comply with all applicable rules
of The Nasdaq Stock Market or, as the case may be, of such national securities
exchange.
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(b) Until the second anniversary of the Closing Date, the
Corporation covenants (a) to file timely (or obtain valid extensions in respect
thereof) all reports required to be filed by the Corporation after the date
hereof pursuant to Section 13(a) or 15(d) of the Exchange Act and (b) if the
Corporation is not at the time required to file reports pursuant to such
sections, to prepare and furnish to each such Purchaser annual and quarterly
financial statements, together with a discussion and analysis of such financial
statements in form and substance substantially similar to those that would
otherwise be required to be included in reports required by Section 13(a) or
15(d) of the Exchange Act in the time period that such filings would have been
required to have been made under the Exchange Act.
(c) Notwithstanding anything herein to the contrary, unless
required by applicable law or as a result of a change in the status of the
Purchaser, the Corporation will not instruct its transfer agent to place a
restrictive legend on the certificate (or certificates) representing the Stock
sold and purchased hereunder indicating that the Purchaser is a "control person"
or "affiliate" of the Corporation.
(d) The Corporation and the Purchaser shall pay all costs and
expenses incurred by it or on its behalf in connection with this Agreement and
the transactions contemplated hereby, including fees and expenses of its own
financial consultants, accountants and counsel.
7. Indemnification.
(a) The Corporation agrees to indemnify, defend and hold
harmless the Purchaser (collectively, including the Corporation as provided in
Section 7(b), the "Indemnified Parties") from and against any and all losses,
claims, damages or liabilities (or actions in respect thereof), including costs
of defense other than costs of counsel referred to in Section 7(c)
(collectively, "Liabilities") of the Indemnified Parties (as incurred) as a
result of (i) any breach or nonperformance of any of the representations,
warranties, covenants or agreements made by the Corporation in this Agreement,
or (ii) any pending or threatened action brought by the Corporation's
stockholders or creditors other than the Indemnified Parties or their officers,
employees, agents, advisors, directors, affiliates and creditors, arising out of
or in connection with the transactions contemplated by this Agreement; provided,
however, that the Corporation shall not be obligated to indemnify, defend or
hold harmless hereunder any of the Indemnified Parties for any claims based on
actions taken by any of the Indemnified Parties or their officers, employees,
agents, advisors, directors or affiliates, other than the performance of the
covenants and agreements to be undertaken by Purchasers pursuant to this
Agreement and any other action authorized in writing by the Corporation,
provided, further, that, if and to the extent such indemnification is
unenforceable for any reason, the Corporation shall make the maximum
contribution to the payment and satisfaction of such indemnified liability that
shall be permissible under applicable laws. In connection with the obligation of
the Corporation to indemnify for Liabilities as set forth above, the Corporation
further agrees to reimburse each Purchaser for all such expenses (including
reasonable fees, disbursements and other charges of counsel) as they are
incurred by the Purchaser.
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(b) The Purchaser agrees to indemnify, defend and hold
harmless the Corporation from and against any and all Liabilities as a result of
any breach or nonperformance of any of the representations, warranties,
covenants or agreements made by such Purchaser in this Agreement; provided,
however, that each Purchaser shall not be liable under this Section 7(b) to the
extent that it is finally judicially determined that such Liabilities resulted
primarily from a breach by the Corporation of any representation, warranty,
covenant or agreement of the Corporation contained in this Agreement; provided,
further, that, if and to the extent that such indemnification is unenforceable
for any reason, the Purchaser shall make the maximum contribution to the payment
and satisfaction of such indemnified liability that shall be permissible under
applicable laws. In connection with the obligation of the Purchaser to indemnify
for Liabilities as set forth above, the Purchaser further agrees to reimburse
the Corporation for all such expenses (including reasonable fees, disbursements
and other charges of counsel) as they are incurred by the Corporation.
(c) If any claim, demand or liability is asserted by any third
party against any Indemnified Party, the indemnifying party ("Indemnifying
Party") shall have the right, unless otherwise precluded by applicable law, to
conduct and control the defense, compromise or settlement of any action or
threatened action brought against the Indemnified Party in respect of matters
embraced by the indemnity set forth in this Section 7 using counsel subject to
the approval of the Indemnified Party, which consent shall not be unreasonably
withheld or delayed. The Indemnified Party shall have the right to employ
counsel separate from counsel employed by the indemnifying party hereunder
("Indemnifying Party") in connection with any such action or threatened action
and to participate in the defense thereof, but the fees and expenses of such
counsel employed by the Indemnified Party shall be at the sole expense of such
Indemnified Party unless (i) the Indemnifying Party shall have elected not, or,
after reasonable written notice of any such action or threatened action, shall
have failed, to assume or participate in the defense thereof, (ii) the
employment thereof has been specifically authorized by the Indemnifying Party in
writing, or (iii) the parties to any such action or threatened action (including
any impleaded parties) include both the Indemnifying Party and the Indemnified
Party and the Indemnified Party shall in good faith determine that there may be
one or more defenses available to the Indemnified Party that are not available
to the Indemnifying Party or legal conflicts of interest pursuant to applicable
rules of professional conduct between the Indemnifying Party and the Indemnified
Party (in any which case, the Indemnified Party shall not have the right to
assume the defense of such action on behalf of the Indemnified Party), in either
of which events referred to in clauses (i), (ii) and (iii) the reasonable fees
and expenses of such counsel employed by the Indemnified Party shall be at the
expense of the Indemnifying Party (as incurred). The Indemnifying Party shall
not, without the written consent of the Indemnified Party, settle or compromise
any such action or threatened action or consent to the entry of any judgment
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party a release from all liability
in respect of such action or threatened action. Unless the Indemnifying Party
shall have elected not, or shall have after reasonable written notice of any
such action or threatened action failed, to assume or participate in the defense
thereof, the Indemnified Party may not settle or compromise any action or
threatened action without the written consent of the Indemnifying Party, which
shall not be unreasonably withheld or delayed. If, after reasonable written
notice of any such action or threatened action, the Indemnifying Party neglects
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to defend the Indemnified Party, a recovery against the latter suffered by it in
good faith, is conclusive in its favor against the Indemnifying Party; provided,
however, that no such conclusive presumption shall be made if the Indemnified
Party has not received reasonable written notice of the action against the
Indemnified Party. All of any Indemnifying Party's obligations and all of the
rights and benefits of the Indemnified Parties set forth in this Section 5 shall
survive the Closing and termination of this Agreement and, but for then pending
claims, shall terminate and cease to be of further force and effect as of the
second anniversary of the Closing Date.
8. General Provisions.
(a) Assignment. The Purchaser shall not, prior to the Closing,
transfer, assign or encumber any of its rights, privileges, duties or
obligations under this Agreement without the prior written consent of the
Corporation, and any attempt to so transfer, assign or encumber shall be void.
(b) Notices. All notices and other communications which are
required or permitted to be given pursuant to the terms of this Agreement shall
be in writing and shall either be personally delivered or mailed first class,
postage prepaid, registered or certified mail (return receipt requested), to the
person for whom they are intended at the address shown on the signature page of
this Agreement for such party. Each notice or other communication shall for all
purposes of this Agreement be treated as being effective or having been given
when delivered, if delivered personally, or, if sent by mail, at the earlier of
actual receipt or five (5) days after the same has been deposited in the United
States mail, addressed and postage paid as aforesaid. The addresses, for the
purposes of this Section, may be changed by giving written notice to all parties
of such change in the manner provided herein for giving notice. Unless and until
such written notice is received, the addresses as provided herein shall be
deemed to continue in effect for all purposes hereunder.
(c) Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
(d) Severability. The parties hereto agree that the terms and
provisions in this Agreement are reasonable and shall be binding and enforceable
in accordance with the terms hereof and, in any event, that the terms and
provisions of this Agreement shall be enforced to the fullest extent permissible
under law. In the event that any term or provision of this Agreement shall for
any reason be adjudged to be unenforceable or invalid, then such unenforceable
or invalid term or provision shall not affect the enforceability or validity of
the remaining terms and provisions of this Agreement, and the parties hereto
hereby agree to replace such unenforceable or invalid term or provision with an
enforceable and valid arrangement which, in its economic effect, shall be as
close as possible to the unenforceable or invalid term or provision.
(e) Successors. All references in this Agreement to the
Corporation shall include any and all successors in interest to the Corporation
whether by merger, consolidation, sale of all or substantially all assets or
otherwise, and this Agreement shall inure to the benefit of the successors and
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assigns of the Corporation and, subject to the terms herein set forth, shall be
binding upon the Purchaser, its heirs, executors, administrators, successors and
permitted assigns.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by different parties in separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(g) Modification, Amendment and Waiver. No modification,
amendment or waiver of any provision of this Agreement shall be effective
against the Purchaser or the Corporation unless the same shall be in a written
instrument signed by the Purchaser and an officer of the Corporation on its
behalf. The failure at any time to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of either party thereafter to enforce each and every
provision hereof in accordance with its terms.
(h) Further Assurances. The parties agree to execute such
further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement, and the Purchaser
specifically agrees to cooperate affirmatively with the Corporation, to the
extent reasonably requested by the Corporation, to enforce the rights of the
Corporation and its assignees hereunder.
(i) Headings. The headings of the Sections and paragraphs of
this Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(j) Entire Agreement. The terms of this Agreement are intended
by the parties to be the final expression of their agreement with respect to the
purchase of the Shares by the Purchaser and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
(k) Survival Periods. All representations and warranties
contained in this Agreement shall survive until the second anniversary of the
Closing Date, and shall thereupon terminate and cease to be of further force and
effect, except with respect to any representation or warranty as to which notice
of a breach giving rise to a right of indemnification under Section 6 has been
given prior to such right of indemnification but which has not been finally
resolved. The covenants and agreements contained in this Agreement, other than
those which by their terms only apply until the Closing Date, shall survive the
Closing in accordance with their terms.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Address: GOLD & XXXXX TRANSFER, S.A.
Xxxx Xxxxxx Bldg.
Road Town, Tortula
British Virgin Islands By: /s/
Attention: Xxxx Xxxxxxxx _________________________________
Xxxx Xxxxxxxx as Attorney-in-Fact
Address: US WATS, INC.
000 Xxxxxxxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxxx, XX 00000 By: /s/
_________________________________
Name:
Attention: Xxxxx Xxxxx Title:
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