STOCK PURCHASE AGREEMENT
dated as of
July 23, 2003
among
HEWLETT-PACKARD COMPANY,
HPQ HOLDINGS, LLC
and
WORLDCOM, INC.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement"), dated as of July 23,
2003, is made and entered into by and among WorldCom, Inc., a Georgia
corporation ("MCI"), Hewlett-Packard Company, a Delaware corporation ("HPQ"),
and HPQ Holdings, LLC, a Delaware limited liability company and wholly owned
subsidiary of HPQ ("Holdings", and, collectively with HPQ, the "HP Entities").
R E C I T A L S
WHEREAS, Holdings owns 50,000 shares (the "Shares") of Series A
Convertible Preferred Stock, par value $.01 per share (the "Preferred Stock"),
of Digex, Incorporated, a Delaware corporation (the "Company"); and
WHEREAS, MCI desires to purchase, and the HP Entities desire to sell
to MCI, the Shares upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following meanings:
"Acquisition" means the acquisition by MCI or, as applicable, one of
its Affiliates, of a sufficient number of the outstanding shares of the Class
A Common Stock, par value $.01 per share, of the Company, by tender offer (or
otherwise), which when added to the shares of Class A Common Stock into which
the shares of Class B Common Stock, par value $0.01 per share of the Company
currently owned by MCI and its Affiliates, and the shares of Class A Common
Stock into which the Preferred Stock is convertible at such time would permit
the holder of such shares to cause a "short form" merger of the Company into
such holder under Section 253 of the Delaware General Corporation Law.
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person.
"Agreement" has the meaning ascribed thereto in the preamble hereto.
"Bankruptcy Code" means Title 11 of the United States Code, entitled
"Bankruptcy" (as now and hereafter in effect, or any successor statute, and
applicable federal rules of bankruptcy procedure thereunder).
"Bankruptcy Court" means the United States Bankruptcy Court for the
Southern District of New York or such other court having jurisdiction over the
cases, jointly administered as Case No. 02-13533 (AJG), of MCI and its
affiliated debtors pending under chapter 11 of the Bankruptcy Code.
"Business Day" means any day other than a Saturday, Sunday, or other
day on which banking institutions in New York, New York shall be permitted or
required by Law or executive order to be closed.
"Closing Date" means the date of consummation of the Acquisition.
"Closing" means the closing of the transactions contemplated by this
Agreement, to take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 a.m. local time on the Closing
Date, at which the parties will take the actions and deliver the documents and
instruments required to be delivered by them pursuant to the terms of this
Agreement.
"Commercially reasonable efforts" means, for purposes hereof for any
Person, efforts that are reasonable within the context of the events and/or
circumstances in respect of which such efforts are required and that do not
give rise to, or could not reasonably be expected to give rise to, for such
Person a material detriment, whether financial, operational or otherwise.
"Control" means, when used with respect to any Person, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have correlative meanings.
"Company" has the meaning ascribed thereto in the recitals hereto.
"Governmental Authority" means any: (a) nation, principality, state,
commonwealth, province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal, foreign or
other government; (c) governmental or quasi governmental authority of any
nature (including any governmental division, subdivision, department, agency,
bureau, branch, office, commission, council, board, instrumentality, officer,
official, representative, organization, unit, body or entity and any court or
other tribunal); (d) multinational organization or body; or (e) individual,
entity or body exercising, or entitled to exercise, any executive,
legislative, judicial, administrative, regulatory, police, military or taxing
authority or power of any nature.
"Holdings" has the meaning ascribed thereto in the preamble hereto.
"HP Entities" has the meaning ascribed thereto in the preamble
hereto.
"HPQ" has the meaning ascribed thereto in the preamble hereto.
2
"Infrastructure Commitments" has the meaning ascribed thereto in
Section 2.3.
"Law" means all laws, statutes, ordinances, regulations, orders,
writs, rulings, judgments, directives, injunctions and decrees of any
executive office, legislature, court, governmental agency, commission, or
administrative, regulatory or self-regulatory authority or instrumentality,
domestic or foreign.
"Lien" means any mortgage, pledge, assessment, security interest,
lease, sublease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sales contract, title retention contract, or other
contract to give any of the foregoing.
"MCI" has the meaning ascribed thereto in the preamble hereto.
"Non-Disclosure Agreement" means that certain Non-Disclosure
Agreement, dated as of April 11, 2003, by and between HPQ and MCI.
"Organizational Documents" means, as applicable, certificates of
incorporation, articles of incorporation, bylaws and other formation or
governing documents.
"Payee's Account" means an account of Holdings or HPQ designated by
HPQ to MCI in writing at least five Business Days prior to the Closing Date.
"Person" means any natural person, corporation, general partnership,
limited partnership, limited liability company, proprietorship, trust, union,
association, court, tribunal, agency, government, department, commission,
self-regulatory organization, arbitrator, board, bureau, instrumentality, or
other entity, enterprise, authority, or business organization.
"Preferred Stock" has the meaning ascribed thereto in the recitals
hereto.
"Purchase Price" means $11,000,000 plus interest at a rate of 7.5% per
year, compounded annually, measured from December 1, 2003.
"Shares" has the meaning ascribed thereto in the recitals hereto.
All references in this Agreement to an "Article", "Section",
"Exhibit" or "Schedule" are to an Article, Section, Exhibit or Schedule of
this Agreement, unless the context requires otherwise. Unless the context
requires otherwise, the words "this Agreement", "hereof", "hereunder",
"herein", "hereby" or words of similar import refer to this Agreement as a
whole and not to a particular Article, Section, subsection, clause or other
subdivision hereof. Whenever the context requires, the words used herein
include the masculine, feminine and neuter gender, and the singular and the
plural. The words "include", "includes" and "including" shall mean "include,
without limitation,", "includes, without limitation," and "including, without
limitation,", respectively. All references herein to "dollars" or "$" refer to
currency of the United States of America.
3
ARTICLE II
PURCHASE
Section 2.1 Sale and Purchase of the Shares. Subject to the terms and
conditions hereof, and in reliance upon the mutual representations, warranties
and covenants set forth in this Agreement, Holdings agrees to sell, assign,
transfer, convey, and deliver at the Closing to MCI (or, at MCI's direction,
to its designated Affiliate), free and clear of any Liens, duly endorsed for
transfer or accompanied by duly signed stock powers, and MCI agrees to
purchase, acquire and accept delivery from Holdings, the Shares.
Section 2.2 Payment of Purchase Price. At Closing, MCI shall pay to
Holdings the Purchase Price by wire transfer of immediately available funds to
the Payee's Account.
Section 2.3 Additional Rights Provided by MCI. MCI also agrees, for a
period of at least two years from the Closing Date, to use, and to cause its
applicable Affiliates to use, commercially reasonable efforts beginning on the
date hereof:
2.3.1 to create pre-defined bundles of managed hosting and
managed service offerings that incorporate HPQ computer servers and other HPQ
computer memory storage products as part of a standard product offering in
instances where computer hardware is being offered;
2.3.2 to develop and support at least one HPQ-sourced
infrastructure configuration for the SAP-hosted applications contemplated by
MCI to be marketed by MCI in conjunction with a prominent business systems
integrator; and
2.3.3 to meet periodically with representatives of HPQ to discuss
industry service requirements in connection with managed hosting and managed
service offerings and to evaluate, in good faith, appropriate HPQ products and
services relevant to such offerings.
Notwithstanding the foregoing commitments (collectively, the "Infrastructure
Commitments") of this Section 2.3, MCI's obligations thereunder are subject to
the following conditions: (i) MCI and its Affiliates retain the right to offer
alternatives to HPQ computer servers and other computer memory storage
products if requested by any customer or indicated by any customer's
infrastructure configuration and (ii) HPQ and its applicable Affiliates shall
offer their products and services to MCI and its applicable Affiliates on
terms and conditions (including, without limitation, pricing, lease financing
and discounts) no less favorable to MCI and its applicable Affiliates than
such terms and conditions offered by HPQ and its Affiliates to customers of
similar size and purchasing requirements.
Section 2.4 HPQ Undertakings. In respect of MCI's obligations
regarding the Infrastructure Commitments (and so long as such obligations
remain extant), HPQ agrees to use, and to cause its applicable Affiliates to
use, commercially reasonable efforts:
2.4.1 to include both MCI and MCI's Affiliates in HPQ's "Service
Provider Partnering Program" and any replacement or successor program thereto,
in each case subject to MCI maintaining the minimum requirements for inclusion
therein;
4
2.4.2 to provide MCI and its Affiliates with support and training
as may be necessary for MCI to meet its obligations under the Infrastructure
Commitments to HPQ and its Affiliates; and
2.4.3 to accommodate the business models of MCI and its
Affiliates wherein MCI and its Affiliates do not purchase or own HPQ equipment,
services, software or applications used by their customers.
Section 2.5 Confidential Information. None the parties shall be
required to disclose confidential information to any other party without an
effective confidentiality agreement between the respective parties which is
acceptable to the disclosing party.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 HPQ Representation and Warranties. The HP Entities hereby
represent and warrant to MCI as follows:
3.1.1 Title. Holdings has good and marketable title to the
Shares, free and clear of any and all Liens. Neither HPQ nor Holdings has
entered into or created any outstanding subscriptions, options or rights of
any kind issued, granted by or binding upon HPQ or Holdings or any of their
respective Affiliates to purchase or otherwise acquire the Shares or any
portion thereof.
3.1.2 Authorization. Each of HPQ and Holdings have all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its respective obligations under this Agreement. The execution and
delivery of this Agreement by each of HPQ and Holdings and the performance by
HPQ and Holdings of its respective obligations under this Agreement have been
duly and validly authorized by all necessary corporate action on the part of
each of HPQ and Holdings. This Agreement has been duly and validly executed
and delivered by each of HPQ and Holdings and constitutes a legal, valid and
binding obligation of each of them, enforceable against each of them in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar Laws affecting
creditors' rights and remedies generally, and subject, as to enforceability,
to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity).
3.1.3 No Conflicts or Violations. Neither the execution and
delivery of this Agreement by HPQ or Holdings nor the performance by HPQ or
Holdings of its obligations hereunder will conflict with, constitute a default
under (with or without notice or lapse of time, or both), violate or require
any consent under:
(a) any of the terms, conditions or provisions of the
Organizational Documents of HPQ or Holdings;
5
(b) any of the terms, conditions or provisions of any
document, agreement or other instrument to which HPQ or Holdings is a party or
by which it is bound; or
(c) any term or provision of any Law applicable to HPQ
or Holdings in a manner which would prevent or prohibit the consummation of the
transactions contemplated hereby.
3.1.4 Litigation. There are no actions, suits, claims,
arbitration proceedings or governmental investigations or inquiries that are
pending or, to the knowledge of HPQ or Holdings, threatened, against HPQ or
Holdings, or their respective officers, directors, employees or assets that
could reasonably be expected to prevent or prohibit the consummation of the
transactions contemplated by this Agreement.
3.1.5 Finder's Fee. Neither of the HP Entities has done anything
to cause MCI (or any of its Affiliates) to incur any liability to any Person
for any brokerage or finder's fee or agent's commission, or the like, in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the HP Entities, and the HP Entities
shall be solely responsible for any such fees and expenses attributable to the
HP Entities.
Section 3.2 MCI Representations and Warranties. MCI hereby represents
and warrants to the HP Entities as follows:
3.2.1 Authorization. Subject to the approval specified in
Schedule 3.2.2, (i) MCI has all necessary corporate power and authority to
execute and deliver this Agreement and to perform its obligations under this
Agreement, (ii) the execution and delivery of this Agreement by MCI and the
performance by MCI of its obligations under this Agreement have been duly and
validly authorized by all necessary corporate action on the part of MCI and
(iii) this Agreement has been duly and validly executed and delivered by MCI
and constitutes a legal, valid and binding obligation of MCI, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
3.2.2 No Conflicts or Violations. Neither the execution and
delivery of this Agreement by MCI nor the performance by MCI of its obligations
hereunder will conflict with, constitute a default under (with or without
notice or lapse of time, or both), violate or require any consent under:
(a) any of the terms, conditions or provisions of the
Organizational Documents of MCI;
(b) any of the terms, conditions or provisions of any
document, agreement or other instrument to which MCI is a party or by which it
is bound; or
(c) any term or provision of any Law applicable to MCI in a
manner which would prevent or prohibit the consummation of the transactions
contemplated hereby.
6
MCI acknowledges that the Shares are stamped with a legend concerning
restrictions on transfer thereof in violation of the Act and that the Shares
have not been registered under the Act.
3.2.3 Litigation. There are no actions, suits, claims,
arbitration proceedings or governmental investigations or inquiries that are
pending or, to the knowledge of MCI, threatened, against MCI, or its officers,
directors, employees or assets that could reasonably be expected to prevent or
prohibit the consummation of the transactions contemplated by this Agreement.
3.2.4 Finder's Fee. MCI has not done anything to cause the HP
Entities (or any of their respective Affiliates) to incur any liability to any
Person for any brokerage or finder's fee or agent's commission, or the like,
in connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of MCI, and MCI shall be solely responsible
for any such fees and expenses attributable to MCI.
ARTICLE IV
COVENANTS OF HP ENTITIES
Each of the HP Entities covenants and agrees with MCI that, from the
date of this Agreement until the earlier of the Closing or the termination of
this Agreement in accordance with Article VII hereof (except where such other
time period is specifically provided in the terms hereof), it will comply with
all covenants and provisions of this Article IV required to be performed by
it, except to the extent (i) MCI may otherwise consent in writing (which
consent may be withheld in the sole and absolute discretion of MCI), (ii)
otherwise required by applicable Law, or (iii) otherwise required or permitted
by this Agreement.
Section 4.1 No Disposition of the Shares. Except as specifically
permitted under Section 8.5 hereof, Holdings will not, and will not permit any
of its Affiliates owning any portion of the Shares to, sell, assign, transfer,
convey, deliver or dispose of, or agree to sell, assign, convey, transfer,
deliver or dispose of, the Shares to any Person other than pursuant to this
Agreement, and shall not, and shall not permit any of its Affiliates owning
any portion of the Shares to, issue or grant to any Person (other than
pursuant hereto) any option or right to purchase the Shares or any portion
thereof, or enter into any agreement, commitment or understanding to, or with
respect to, any of the foregoing. The HP Entities also agree that, between the
date of this Agreement through (and including) the earlier of (i) the Closing
Date and (ii) the termination of this Agreement under the terms of Article VII
hereof, neither of the HP Entities nor any of their respective Affiliates,
officers, directors, representatives or agents will solicit any offers from
any Person relating to any acquisition or purchase of all or any portion of
the Shares.
Section 4.2 All Reasonable Efforts; Cooperation. Subject to the terms
and conditions of this Agreement, each of the HP Entities agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done as promptly as practicable, all things necessary, proper and
advisable under applicable laws and regulations to consummate and make
effective as promptly as practicable the transactions contemplated by this
Agreement (including, without limitation, receipt of all applicable regulatory
approvals). Each of the HP Entities agrees
7
to cooperate in good faith and deal fairly with MCI and its Affiliates when
interpreting their respective obligations hereunder.
Section 4.3 Regulatory Approvals. Each of the HP Entities will, and
will cause, as applicable, its respective Affiliates to, (i) provide such
information and communications to such Governmental Authorities as such
authorities may reasonably request and (ii) reasonably cooperate with MCI in
obtaining, as promptly as practicable, all approvals, authorizations, and
clearances of Governmental Authorities required of MCI to consummate the
transactions contemplated hereby.
Section 4.4 Notices of Certain Events. Each of HPQ and Holdings
shall, and shall cause their respective Affiliates to, promptly notify MCI of:
(i) any notice or other communication from any Person received by it alleging
that the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement; (ii) any notice or other
communication from any Governmental Authority received by it in connection
with the transactions contemplated by this Agreement; and (iii) any actions,
suits, claims, investigations or proceedings that, to its actual knowledge,
have commenced or are threatened against, relating to, or involving or
otherwise affecting MCI that relate to the consummation of the transactions
contemplated by this Agreement.
ARTICLE V
COVENANTS OF MCI
MCI covenants and agrees with the HP Entities that, from the date of
this Agreement until the earlier of the Closing or the termination of this
Agreement in accordance with Article VII hereof (except where such other time
period is specifically provided in the terms hereof), it will comply with all
covenants and provisions of this Article V required to be performed by it
except to the extent (i) the HP Entities may otherwise consent in writing
(which consent may be withheld in the sole and absolute discretion of the HP
Entities), (ii) otherwise required by applicable Law, or (iii) otherwise
required or permitted by this Agreement.
Section 5.1 All Reasonable Efforts; Cooperation. Subject to the terms
and conditions of this Agreement, MCI agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done as
promptly as practicable, all things necessary, proper and advisable under
applicable laws and regulations to consummate and make effective as promptly
as practicable the transactions contemplated by this Agreement (including,
without limitation, receipt of all applicable regulatory approvals). MCI
agrees to cooperate in good faith and deal fairly with the HP Entities and
their respective Affiliates when interpreting its obligations hereunder.
Section 5.2 Regulatory Approvals. MCI will, and will cause, as
applicable, its Affiliates to, (i) provide such information and communications
to such Governmental Authorities as such authorities may reasonably request
and (ii) reasonably cooperate with the HP Entities in obtaining, as promptly
as practicable, all approvals, authorizations, and clearances of Governmental
Authorities required of the HP Entities to consummate the transactions
contemplated hereby.
8
Section 5.3 Notices of Certain Events. MCI shall, and shall cause its
Affiliates to, promptly notify the HP Entities of: (i) any notice or other
communication from any Person received by it alleging that the consent of such
Person is or may be required in connection with the transactions contemplated
by this Agreement; (ii) any notice or other communication from any
Governmental Authority received by it in connection with the transactions
contemplated by this Agreement; and (iii) any actions, suits, claims,
investigations or proceedings that, to its actual knowledge, have or are
threatened against, relating to, or involving or otherwise affecting the HP
Entities that relate to the consummation of the transactions contemplated by
this Agreement.
ARTICLE VI
CLOSING; CONDITIONS TO OBLIGATIONS
Section 6.1 Conditions to Obligations of the HP Entities. The
obligations of the HP Entities and of their respective Affiliates hereunder
are subject to the fulfillment, at or concurrent with the Closing, of each of
the following conditions (all or any of which, except for the condition
requiring the approval described in Schedule 3.2.2 to have been obtained and
be in full force and effect, may be waived in whole or in part by HPQ):
6.1.1 Representations and Warranties. The representations and
warranties made by MCI in this Agreement shall be true, complete and correct
in all material respects as of the Closing.
6.1.2 No Injunction or Proceeding. There shall not be in effect
on and as of the Closing Date any writ, judgment, injunction, decree or similar
order of any court or governmental or regulatory authority restraining,
enjoining, or otherwise preventing consummation of any of the transactions
contemplated by this Agreement, and there shall not be pending on and as of
the Closing Date any claim, action, suit or other proceeding brought by any
governmental or regulatory authority to restrain, enjoin, or otherwise prevent
consummation of any of the transactions contemplated by this Agreement.
6.1.3 Approvals and Consents. All approvals, authorizations and
clearances of any Governmental Authority (including, without limitation, the
consent and approval described in Schedule 3.2.2) and any third parties
necessary for the consummation of the transactions contemplated hereby and the
performance of the obligations of MCI hereunder shall have been obtained and
shall be in full force and effect.
Section 6.2 Conditions to Obligations of MCI. The obligations of MCI
hereunder are subject to the fulfillment, at or concurrent with the Closing,
of each of the following conditions (all or any of which, except for the
condition requiring the approval described in Schedule 3.2.2 to have been
obtained and be in full force and effect, may be waived in whole or in part by
MCI):
6.2.1 Representations and Warranties. The representations and
warranties made by the HP Entities in this Agreement shall be true, complete
and correct in all material respects as of the Closing.
9
6.2.2 No Injunction or Proceeding. There shall not be in effect
on and as of the Closing Date any writ, judgment, injunction, decree or similar
order of any court or governmental or regulatory authority restraining,
enjoining, or otherwise preventing consummation of any of the transactions
contemplated by this Agreement, and there shall not be pending on and as of
the Closing Date any claim, action, suit or other proceeding brought by any
governmental or regulatory authority to restrain, enjoin, or otherwise prevent
consummation of any of the transactions contemplated by this Agreement.
6.2.3 Approvals and Consents. All approvals, authorizations and
clearances of any Governmental Authority (including, without limitation, the
consent and approval described in Schedule 3.2.2) and any third parties
necessary for the consummation of the transactions contemplated hereby and the
performance of the obligations of each of the HP Entities hereunder shall have
been obtained and shall be in full force and effect.
6.2.4 Delivery of Shares and Documents. The share certificates
representing the Shares shall have been delivered to MCI (or its designated
Affiliate) duly endorsed for transfer or accompanied by duly signed stock
powers.
6.2.5 Consummation of the Acquisition. MCI shall have
successfully consummated the Acquisition.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
7.1.1 at any time before the Closing by mutual written agreement
of HPQ and MCI;
7.1.2 by the HP Entities or MCI at any time after December 31,
2003 if the transactions contemplated by Section 2.1 and Section 2.2 of this
Agreement have not been consummated on or before such date and such failure to
consummate is not caused by a breach of this Agreement by the party electing
to terminate pursuant to this Section 7.1.2; or
7.1.3 by the HP Entities or MCI at any time before the Closing in
the event there exists a final and non-appealable injunction or other court
order prohibiting the consummation of the transactions contemplated by Section
2.1 of this Agreement.
Section 7.2 No Termination if in Breach. The HP Entities may not
terminate this Agreement pursuant to Section 7.1.2 hereof due to a breach by
MCI of any representation or warranty provided in Section 3.2 or of any of its
covenants or agreements set forth herein, if either of them is, at the time of
such attempted termination, in material breach of any of its representations,
warranties, covenants, or agreements under this Agreement. MCI may not
terminate this Agreement pursuant to Section 7.1.2 hereof due to a breach by
the HP Entities of any representation or warranty provided in Section 3.1 or
of any of its covenants or agreements
10
set forth herein, if MCI is, at the time of such attempted termination, in
material breach of any of its representations, warranties, covenants or
agreements under this Agreement.
Section 7.3 Procedure and Effect of Termination. In the event of
termination of this Agreement pursuant to Section 7.1 hereof, and abandonment
of the transactions contemplated under Sections 2.1 and 2.2 hereof, written
notice thereof shall forthwith be given by the terminating party to the other
party and this Agreement shall terminate and the transactions contemplated
hereunder shall be abandoned without further action by any of the parties
hereto and all filings, applications and other submissions made pursuant to
this Agreement, to the extent practicable, shall be withdrawn from the agency
or other Governmental Authority or Person to which they were made. Such
termination shall not affect the rights of the parties hereto with respect to
breaches of any agreement, covenant, representation or warranty contained in
this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Confidentiality. This Agreement shall be subject to terms
of the Non-Disclosure Agreement.
Section 8.2 Notices. Any notice or other communication given pursuant
to this Agreement must be in writing and (a) delivered personally, (b) sent by
facsimile or other similar facsimile transmission, (c) delivered by overnight
express, or (d) sent by registered or certified mail, postage prepaid, as
follows:
8.2.1 if to HPQ or Holdings:
Hewlett-Packard Company
0000Xxxxxxx Xx.
Xxxx Xxxx, XX 00000
Attn: Vice President, Strategy and Corporate Development
with a copy to:
0000 Xxxxxxx Xx.
Xxxx Xxxx, XX 00000
Attn: Deputy General Counsel
and with a copy to (which shall not constitute notice):
Xxxxxx, Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx., Esq.
8.2.2 if to MCI:
11
WorldCom, Inc.
Attn: Xxxxxxxx Xxxxx
00000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Facsimile No.: 703-116-0114
and
WorldCom, Inc.
Attn: Xxxxxx X. Xxxx
0000 00xx Xx., X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No.: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx X. Xxxxx
c/o Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: 000-000-0000
All notices and other communications required or permitted under this
Agreement that are addressed as provided in this Section 8.2 will (A) if
delivered personally or by overnight express, be deemed given upon delivery;
(B) if delivered by facsimile or similar facsimile transmission, be deemed
given when electronically confirmed; and (C) if sent by registered or
certified mail, be deemed given when received. Any party from time to time may
change its address for the purpose of notices to that party by giving a
similar notice to all parties specifying a new address, but no such notice
will be deemed to have been given until it is actually received by the party
sought to be charged with the contents thereof.
Section 8.3 Entire Agreement. This Agreement, and the Schedules and
the Non-Disclosure Agreement constitute the entire agreement between the
parties with respect to the subject matter hereof and there are no agreements,
understandings, representations or warranties between the parties other than
those set forth or referred to herein.
Section 8.4 Expenses and Fees. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be borne by the party incurring such costs and expenses.
Section 8.5 Binding Effect; No Assignment. This Agreement is binding
upon and will inure to the benefit of the parties hereto and each of their
respective successors and permitted assigns. No party hereto may assign,
delegate or otherwise transfer, all or any part of its obligations hereunder
without the prior written consent of each of the other parties hereto (and any
attempt to do so will be void); provided, however, that any party may assign
its rights and obligations hereunder to any Affiliate of such party provided
that the original party shall remain liable for all of its obligations
hereunder notwithstanding such assignment. Holdings may assign
12
its rights and obligations, and/or transfer the Shares, to HPQ provided that
HPQ assumes the obligations of Holdings hereunder.
Section 8.6 Specific Performance. Each of the parties hereto
acknowledges and agrees that the other party hereto would be irreparably
damaged in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, each of the parties hereto agrees that the other parties hereto
will be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action, in addition to any other remedy
to which any party hereto may be entitled, at Law or in equity.
Section 8.7 Further Assurances. The HP Entities and MCI agree that,
from time to time after the Closing, upon the reasonable request of the other,
they will cooperate and will, execute and/or deliver such documents and
instruments as any other party hereto may reasonably request containing terms
and conditions mutually satisfactory to such parties to further effectuate the
terms hereof.
Section 8.8 Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed
by the party against whom enforcement of any such modification or amendment is
sought. Any term or condition of this Agreement may be waived at any time by
the party that is entitled to the benefit thereof. Such waiver must be in
writing and must be executed by an executive officer of such party. A waiver
on one occasion will not be deemed to be a waiver of the same or any other
breach or non-fulfillment on a future occasion. All remedies, either under
this Agreement, or by Law or otherwise afforded, will be cumulative and not
alternative.
Section 8.9 Agreement of the Parties' Benefit. The terms and
provisions of this Agreement are intended solely for the benefit of the HP
Entities and MCI and their respective successors and permitted assigns, and no
Person other than the parties hereto or the foregoing-described Persons is
entitled to rely on any representation, warranty or covenant contained herein.
Section 8.10 Governing Law. This Agreement, including, without
limitation, the interpretation, construction, validity and enforceability
thereof, shall be governed by the Bankruptcy Code and, to the extent not
inconsistent therewith, the internal Laws of the State of New York, including
Section 5-1401 of the General Obligations Law of the State of New York,
without regard to the principles of conflict of Laws thereof.
Section 8.11 Submission to Jurisdiction; Service of Process.
8.11.1 Any legal action or proceeding with respect to this
Agreement or any document related thereto shall be brought solely in the
Bankruptcy Court, and, by execution and delivery of this Agreement, each party
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including, without limitation, any
objection to the laying of
13
venue or based on the grounds of forum non conveniens, which any of them may
now or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
8.11.2 Each party hereto irrevocably consents to the service of
process of any of the aforesaid courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such party, respectively, at its address provided herein.
8.11.3 Nothing contained in this Section 8.11 shall affect the
right of any party hereto to serve process in any other manner permitted by
Law.
Section 8.12 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8.13 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, (a) such term or other provision shall be fully severable; (b) this
Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable term or other provision had never comprised a part hereof; and
(c) the remaining terms and provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid, or
unenforceable term or other provision or by its severance from this Agreement.
Section 8.14 Public Announcements. Each party agrees that it shall
not issue any press release or other public announcement concerning this
Agreement or the transactions contemplated hereby without providing prior
notice of the specific subject matter thereof to the other party hereto and
giving the other party hereto the opportunity to comment thereon.
Section 8.15 Headings. The headings of the Articles and Sections of
this Agreement have been inserted for convenience of reference only, are not
intended to be considered a part hereof, and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 8.16 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which will be deemed an
original, but all of which will constitute one and the same instrument. This
Agreement and
Section 8.17 Transfer Taxes. MCI shall be liable for and shall pay,
and shall indemnify and hold harmless HPQ and its Affiliates against, all
sales, use, stamp, documentary, filing, recording, transfer or similar fees or
taxes or governmental charges as levied by any taxing authority or
Governmental Authority by reason of the transfer of the Shares pursuant to
this Agreement (other than taxes measured by or with respect to income or
gains of HPQ or its Affiliates). Each of the HP Entities and MCI agree to use
commercially reasonable efforts to minimize any such fees or charges that may
applicable. Each of the HP Entities and MCI, as may be applicable, hereby
agree to file all necessary documents (including, but not limited to, all tax
returns) with respect to all such amounts in a timely manner.
14
Section 8.18 Survival of Representations and Warranties. The
representations and warranties of each of the HP Entities and MCI shall
survive the Closing.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective authorized officers as of
the date first written above.
HEWLETT-PACKARD COMPANY
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------------
Title: CTO
---------------------------------------
HPQ HOLDINGS, LLC
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------------
Title: CTO
---------------------------------------
WORLDCOM, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------------------
Title: Acting General Counsel and VP
---------------------------------------
Schedule 3.2.2
MCI and its applicable Affiliates will need to obtain the consent and approval
of the Bankruptcy Court necessary to authorize MCI to enter into, undertake
and consummate the transactions contemplated by the Agreement, including the
Acquisition.