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EXHIBIT 10.2
SECURITIES PURCHASE AGREEMENT
dated as of
March 19, 1998
among
IMPSAT CORPORATION,
PRINCES GATE INVESTORS II, L.P.,
XXXXXX XXXXXXX GLOBAL EMERGING MARKETS PRIVATE INVESTMENT
FUND, L.P.,
XXXXXX XXXXXXX GLOBAL EMERGING MARKETS PRIVATE INVESTORS, L.P.,
PGI INVESTMENTS LIMITED,
GREGOR VON OPEL,
INVESTOR INVESTMENTS AB
and
JONESBORO FINANCIAL INC.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions............................................. 2
ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.01. Commitment to Purchase................................. 6
SECTION 2.02. The Closing............................................ 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
SECTION 3.01. Organization, Standing, Etc............................ 7
SECTION 3.02. Authorization; Non-Contravention....................... 7
SECTION 3.03. Binding Effect......................................... 8
SECTION 3.04. Capitalization and Voting Rights....................... 8
SECTION 3.05. Subsidiaries........................................... 9
SECTION 3.06. Related Party Transactions............................. 9
SECTION 3.07. Registration Rights.................................... 10
SECTION 3.08. Litigation, Proceedings; No Defaults................... 10
SECTION 3.09. Disclosure............................................. 10
SECTION 3.10. Offering............................................... 11
SECTION 3.11. Investment Company..................................... 11
SECTION 3.12. Governmental Regulation................................ 11
SECTION 3.13. Solicitation; Access to Information.................... 11
SECTION 3.14. Financial Information.................................. 11
SECTION 3.15. Compliance with ERISA.................................. 11
SECTION 3.16. Foreign Benefit Plans.................................. 13
SECTION 3.17. Taxes.................................................. 13
SECTION 3.18. Authorization to Do Business........................... 14
SECTION 3.19. Absence of Certain Changes............................. 14
SECTION 3.20. Properties............................................. 16
SECTION 3.21. Internal Controls...................................... 16
SECTION 3.22. Employees; Employee Compensation....................... 16
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SECTION 3.23. No Undisclosed Material Liabilities.................... 17
SECTION 3.24. Material Contracts..................................... 17
SECTION 3.25. Intellectual Property.................................. 17
SECTION 3.26. Environmental Compliance............................... 18
SECTION 3.27. Insurance.............................................. 19
SECTION 3.28. Termination of STET Shareholders' Agreement............ 19
SECTION 3.29. Payments Outside of the Ordinary Course................ 19
SECTION 3.30. Compliance Program..................................... 19
SECTION 3.31. Nature of Operations................................... 19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF NEWCO
SECTION 4.01. Organization........................................... 20
SECTION 4.02. Authority; No Other Action............................. 20
SECTION 4.03. No Contravention....................................... 20
SECTION 4.04. Binding Effect......................................... 20
SECTION 4.05. No Defaults............................................ 20
SECTION 4.06. Private Placement...................................... 21
SECTION 4.07. Title.................................................. 21
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
SECTION 5.01. Organization........................................... 21
SECTION 5.02. Authority; No Other Action............................. 21
SECTION 5.03. No Contravention....................................... 22
SECTION 5.04. Binding Effect......................................... 22
SECTION 5.05. No Defaults............................................ 22
SECTION 5.06. Private Placement...................................... 22
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
SECTION 6.01. Conditions to Newco's Obligations...................... 23
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SECTION 6.02. Conditions to the Issuer's Obligations................. 26
SECTION 6.03. Integration Services................................... 26
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices................................................ 26
SECTION 7.02. No Waivers; Amendments................................. 27
SECTION 7.03. Indemnification........................................ 28
SECTION 7.04. Survival of Provisions................................. 28
SECTION 7.05. Expenses; Documentary Taxes............................ 28
SECTION 7.06. Successors and Assigns................................. 29
SECTION 7.07. New York Law........................................... 29
SECTION 7.08. Counterparts; Effectiveness............................ 29
SECTION 7.09. Limitation on Issuance of Series A Stock............... 29
SECTION 7.10. Entire Agreement....................................... 29
SECTION 7.11. Remedies............................................... 29
SECTION 7.12. Jurisdiction........................................... 29
SCHEDULES
Schedule 3.02 Consents and Approvals
Schedule 3.04(a) Authorized and Outstanding Capital Stock
Schedule 3.04(b) Voting Agreements
Schedule 3.05 Subsidiaries
Schedule 3.06 Related Party Transactions
Schedule 3.08(a) Litigation and Proceedings
Schedule 3.19 Material Changes
Schedule 3.20 Liens
Schedule 3.21 Employees; Employee Compensation
Schedule 3.24 Material Contracts
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EXHIBITS
Exhibit A - Form of Securityholders Agreement
Exhibit B - Form of Opinion of United States Counsel to the Issuer and Newco
Exhibit C - Form of Opinion of United States Regulatory Counsel to the Issuer
and IMPSAT U.S.A., Inc.
Exhibit D - Form of Opinion of British Virgin Islands Counsel to Newco
Exhibit E - Form of Opinion of Irish Counsel to Nevasa Holdings Ltd.
Exhibit F - Form of Opinion of Argentine Counsel to the Issuer
Exhibit G - Form of Opinion of General Counsel to Corporacion IMPSA S.A.
Exhibit H - Form of Opinion of Colombian Counsel to the Issuer
Exhibit I - Form of Opinion of Ecuadorian Counsel to the Issuer
Exhibit J - Form of Opinion of Mexican Counsel to the Issuer
Exhibit K - Form of Opinion of Venezuelan Counsel to the Issuer
Exhibit L - Form of Opinion of Brazilian Counsel to the Issuer
Exhibit M - Charter
Exhibit N - Bylaws
Exhibit O - Certificate of Designations
Exhibit P - Form of Non-Competition and Non-Solicitation Agreement
Exhibit Q - Form of Letter Agreement
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SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of March 19, 1998 among IMPSAT Corporation, a
Delaware corporation (the "Issuer"), Jonesboro Financial Inc., a wholly-owned
subsidiary of Nevasa Holdings Ltd. and a corporation incorporated under the laws
of the British Virgin Islands ("Newco"), and Princes Gate Investors II, L.P., a
Delaware limited partnership ("Princes Gate"), Xxxxxx Xxxxxxx Global Emerging
Markets Private Investment Fund, L.P., a Delaware limited partnership ("MSGEM"),
and Xxxxxx Xxxxxxx Global Emerging Markets Private Investors, L.P. ("Private
Investors"), and the other purchasers listed on the signature pages hereof (such
purchasers, together with Princes Gate, Private Investors and MSGEM, the
"Purchasers").
WHEREAS, pursuant to a Note Purchase Agreement (the "Note Purchase
Agreement") dated the date hereof among Newco, Nevasa Holdings Ltd. and Princes
Gate, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. ("MSDWD"), PGI Investments
Limited, Gregor von Opel and Investor Investments AB (together, the "Note
Purchasers"), Newco has issued, and the Note Purchasers have purchased, notes
(the "Notes") for an aggregate purchase price of $125 million;
WHEREAS, pursuant to the Note Purchase Agreement, Newco has used the
funds received from the sale of the Notes to purchase all of the shares of
capital stock owned by STET International Netherlands NV of the Issuer (the
"IMPSAT Common Stock") and of IMPSAT S.A. (the "IMPSAT S.A. Common Stock" and,
together with the IMPSAT Common Stock, the "STET Common Stock");
WHEREAS, immediately following the acquisition of the STET Common
Stock Newco shall contribute the IMPSAT S.A. Common Stock to the Issuer and
shall exchange the IMPSAT Common Stock for the Securities (as defined below);
and
WHEREAS, on the Closing Date, Newco shall (i) transfer Securities
having an aggregate liquidation preference of $25 million to MSGEM and Private
Investors for an aggregate purchase price of $25 million, (ii) transfer
Securities having an aggregate liquidation preference of $100 million to Princes
Gate, PGI Investments Limited, Gregor von Opel and Investor Investments AB in
satisfaction of its obligations to such Note Purchasers under such Note
Purchasers' Notes and (iii) repay MSDWD the amount of $25 million in
satisfaction of its obligations to MSDWD under its Note.
The parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" and "Affiliated" have the meanings assigned to such
terms in the Securityholders Agreement.
"Balance Sheet" means the audited consolidated balance sheet of the
Issuer and its Combined Subsidiaries as of December 31, 1997.
"Balance Sheet Date" means December 31, 1997.
"Bylaws" means the Bylaws of the Issuer in the form attached as
Exhibit N hereto.
"Certificate of Designations" means the Certificate of Designations
in the form of Exhibit O hereto relating to the Securities and to be filed with
the Secretary of State of Delaware.
"Charter" means the Certificate of Incorporation of the Issuer, as
amended as of the Closing Date, in the form attached as Exhibit M hereto.
"Combined Subsidiary" means, at any applicable date, any subsidiary
or other entity the accounts of which would be consolidated with those of the
Issuer in its consolidated financial statements if such statements were prepared
as of such date in accordance with generally accepted accounting principles in
the United States.
"Common Stock" means the Class A Common Stock, par value $1.00 per
share, of the Issuer.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute.
"Existing Stockholders" means (i) Xx. Xxxxxxx Xxxxxxxxxx, Xx.
Xxxxxxx Vivo Chaneton and Xx. Xxxxxxx Xxxxxxxxx, (ii) any Person that owns an
equity interest in Nevasa Holdings Ltd. or the Issuer and of which a majority of
the equity interests are owned, directly or indirectly, by any one or more of
the Persons named in clause (i) or any of their Affiliates, (iii) Nevasa
Holdings Ltd., (iv) Corporacion IMPSA, S.A., (v) Xxxxxxxxx Limited and (vi)
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Rotling International Corporation.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or representing the
deferred and unpaid balance of the purchase price of any property (including,
without limitation, pursuant to capital leases, but excluding trade payables due
within the succeeding 90 days) or representing any hedging obligations, if and
to the extent any of the foregoing indebtedness (other than hedging obligations)
would appear as a liability upon a balance sheet of such Person prepared in
accordance with generally accepted accounting principles in the United States,
and also includes, to the extent not otherwise included, the guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner (including, without
limitation, through letters of credit and keep-well and reimbursement agreements
in respect thereof) of any obligations of any other Person.
"Lien" means any mortgage, lien, pledge, charge, security interest,
claim or encumbrance of any kind. For the purposes of this Agreement, any Person
shall be deemed to own subject to any Lien any asset that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Material Adverse Change" means a material adverse change, or any
event, occurrence, state of circumstances or facts or development involving a
prospective material adverse change, in the business, operations, assets,
condition (financial or otherwise), results of operations, properties, assets,
value or prospects of the Issuer and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect, or any
event, occurrence, state of circumstances or facts or development involving a
prospective material adverse effect, on the business, operations, assets,
condition (financial or otherwise), results of operations, properties, assets,
value or prospects of the Issuer and its Subsidiaries taken as a whole.
"Note Purchase Agreement" means the Note Purchase Agreement among
Newco, Nevasa Holdings Ltd. and the Note Purchasers dated the date hereof.
"Permitted Liens" means any Lien consisting of any one or more of
the following:
(i) Liens for current taxes not yet delinquent;
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(ii) Liens imposed by law and imposed in the ordinary course of
business for obligations not yet delinquent to carriers, warehousemen,
laborers, materialmen and the like;
(iii) Liens in respect of pledges or deposits made pursuant to
workers' compensation laws or similar legislation;
(iv) minor defects in title, none of which, individually or in
the aggregate, materially and adversely affects the Issuer's ability to
Transfer or use the subject asset or property;
(v) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business; or
(vi) any Lien that replaces any of the preceding Liens; provided
that the maximum commitment in case of a credit or revolving loan, or
maximum principal amount in case of a term loan, of Indebtedness secured
by the replacing Lien does not exceed the maximum commitment or principal
amount of Indebtedness secured by such existing Lien at the time of
replacement unless any excess amount (as new Indebtedness or otherwise)
would not otherwise require the consent of, or is approved by, the holders
of the Securities pursuant to the Certificate of Designations.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, limited liability company, unincorporated
association, joint venture or any other entity or organization, whether or not a
legal entity, including, without limitation, a government or political
subdivision or an agency or instrumentality thereof.
"Regulation D" means Regulation D under the Securities Act, as
amended.
"Securities" means the Series A Stock.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute.
"Securityholders Agreement" means the Securityholders Agreement,
dated as of March 19, 1998 among the Issuer, the Purchasers, PG Investors II,
Inc., as agent, and the other parties signatory thereto, substantially in the
form attached as Exhibit A hereto.
"Series A Stock" means the Issuer's Convertible Preferred Stock,
Series A, having the rights, preferences and privileges set forth in the
Certificate of Designations.
"Subsidiary" means, with respect to any Person, any other Person of
which
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more than fifty percent (50%) of (i) the economic interest in the assets,
earnings or cash flow or (ii) the total voting power of shares of capital stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof, is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person or a combination thereof.
"Transfer" means any transfer, in whole or in part, by sale, pledge
assignment, grant or other means.
(b) Each of the following terms is defined in the Section
opposite such term:
Term Section
---- -------
Benefit Arrangement 3.15
Closing 2.02
Closing Date 2.02
Code 3.15
Damages 7.03
ERISA 3.15
ERISA Group 3.15
Hazardous Substance 3.26
Indemnified Person 7.03
Intellectual Property 3.25
Rights
Multiemployer Plan 3.15
Plan 3.15
Pre-Closing Tax Period 3.17
Returns 3.17
Tax 3.17
Taxing Authority 3.17
Transactions 2.01
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ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.01. Commitment to Purchase. Subject to the terms and
conditions hereinafter stated, upon the basis of the representations and
warranties of Newco, the Purchasers and the Issuer herein contained and subject
to the issuance of Notes to the Note Purchasers, each of the following parties
agrees to perform the following transactions (such transactions, including the
issuance of the Notes to the Note Purchasers, collectively referred to herein as
the "Transactions"):
(i) Newco agrees to use the funds received from the sale of the
Notes to purchase the STET Common Stock from STET International
Netherlands NV;
(ii) Newco agrees to transfer the IMPSAT Common Stock and to
contribute the IMPSAT S.A. Common Stock to the Issuer;
(iii) the Issuer agrees to issue the Securities to Newco;
(iv) Newco agrees to transfer Securities having an aggregate
liquidation preference of $25 million to MSGEM and Private Investors in
consideration of a cash payment of $25 million by MSGEM and Private
Investors;
(v) Newco agrees to repay $25 million to MSDWD in satisfaction of
Newco's obligations to MSDWD under its Note; and
(vi) Newco agrees to transfer Securities having an aggregate
liquidation preference of $100 million to Princes Gate, PGI Investments
Limited, Gregor von Opel and Investor Investments AB in satisfaction of
its obligations to such Note Purchasers under such Note Purchasers' Notes.
SECTION 2.02. The Closing. (a) The consummation of the Transactions
(the "Closing") shall take place at the offices of Shearman & Sterling at 10:00
a.m. on the date hereof or on such other date and at such other location as the
Issuer, Newco and the Purchasers shall agree. The date and time of the Closing
are referred to herein as the "Closing Date."
(b) At the Closing, the Issuer shall deliver to Newco, against
the transfer of the IMPSAT Common Stock described in subsection (c)(i) below,
certificate(s) evidencing 25,000 shares of Series A Stock, in definitive form
and registered in the name of the Purchasers.
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(c) At the Closing, Newco shall deliver to (i) the Issuer,
certificates evidencing the IMPSAT Common Stock and the IMPSAT S.A Common Stock
duly endorsed for transfer, (ii) MSGEM, a certificate evidencing shares of
Series A Stock having an aggregate liquidation preference of $25 million against
payment therefor in immediately available funds of $25 million, (iii) Princes
Gate, PGI Investments Limited, Gregor von Opel and Investor Investments AB, in
satisfaction of its obligations to such Note Purchasers under their Notes,
shares of Series A Stock having an aggregate liquidation preference of $100
million against delivery of evidence of cancellation of such Note Purchasers'
Notes and (iv) MSDWD, the amount of $25 million against delivery of evidence of
cancellation of its Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
The Issuer represents and warrants to each of Newco and the
Purchasers as follows:
SECTION 3.01. Organization, Standing, Etc. (a) The Issuer is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as conducted to date and as currently proposed to be conducted.
The Charter and Bylaws are true and complete copies of the certificate of
incorporation and bylaws of the Issuer that will be in effect immediately
following the Closing.
(b) Except for those Subsidiaries designated as inactive on
Schedule 3.05, each of the Issuer's Subsidiaries is a corporation duly
incorporated, validly existing and, if applicable, in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted and as currently proposed to be
conducted. The Issuer has heretofore delivered to the Purchasers true and
complete copies of the certificate of incorporation and bylaws or similar
documents of each of its Subsidiaries designated as active on Schedule 3.05 as
in effect as of the Closing.
SECTION 3.02. Authorization; Non-Contravention. The execution,
delivery and performance by the Issuer of each of this Agreement, the
Certificate of Designations and the Securityholders Agreement, the issuance,
delivery and performance by the Issuer of the Securities and the amendment to
the Charter effected by the filing of the Certificate of Designations are within
the Issuer's corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
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governmental body, agency or official (other than the filing of the Certificate
of Designations with the Secretary of State of Delaware and as may be required
under federal or state securities laws in connection with the registration
obligations of the Issuer contained in the Securityholders Agreement) and do not
(i) contravene or constitute a default under any provision of applicable law or
regulation, judgment, injunction, order, decree, agreement or other instrument
binding upon or applicable to the Issuer or any of its Subsidiaries, (ii)
contravene or constitute a default under the Charter or Bylaws or the charter or
bylaws of any of the Issuer's Subsidiaries, (iii) except for such consent or
approval as has been obtained or as set forth on Schedule 3.02, require any
consent, approval or other action by any other Person (other than any securities
regulatory authority or securities exchange or inter-dealer quotation system in
connection with the registration obligations of the Issuer contained in the
Securityholder Agreement) or (iv) result in the creation or imposition of any
Lien on any asset of the Issuer or any of its Subsidiaries.
SECTION 3.03. Binding Effect. Except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally, each of this Agreement and the
Securityholders Agreement constitutes a valid and binding agreement of the
Issuer, enforceable against the Issuer in accordance with its terms, and each of
the Securities, when issued and delivered by the Issuer in accordance with this
Agreement, shall constitute a valid and binding obligation of the Issuer,
enforceable in accordance with its terms.
SECTION 3.04. Capitalization and Voting Rights. (a) As of the
Closing Date, the authorized capital stock and the issued and outstanding shares
of capital stock of the Issuer will each be as set forth on Schedule 3.04(a). As
of the Closing Date, all of such issued and outstanding shares of capital stock
of the Issuer (including the Series A Stock) will have been validly issued, will
be fully paid and nonassessable, and will be free of any Liens (other than such
Liens on the Series A Stock imposed as a result of any transaction entered into
by the Purchasers) or claims (contingent or otherwise) and are not the subject
of any pledge; the holders thereof will not be entitled to any preemptive or
other similar rights. As of the Closing Date, except as set forth on Schedule
3.05, all of the issued and outstanding shares of capital stock of each
Subsidiary of the Issuer will be owned by the Issuer free of any Liens. As of
the Closing Date, 68,000,000 shares of Common Stock will have been duly
authorized and reserved for issuance in connection with the conversion of the
Securities and no more than 4,000,000 shares of Common Stock will have been
reserved for issuance in connection with the exchange, conversion or exercise of
other securities of the Issuer. Correct and complete copies of the Issuer's
stock option or incentive plans, agreements or arrangements each of which has
been adopted by the Board of Directors of the Issuer prior to the date hereof,
and as in effect on the date hereof, have been delivered to the Purchasers prior
to the date hereof. All shares of Common Stock to be issued upon conversion of
the Securities will be duly authorized and validly issued, fully paid and
nonassessable and free of any Liens or encumbrances (other than any such Liens
imposed as a result of any transaction entered into
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by the Purchasers). Except as set forth on Schedule 3.05, upon the consummation
of the Closing, there will be outstanding no securities of the Issuer and no
securities convertible into or exchangeable for, or options or other rights to
acquire from the Issuer, or other obligations of the Issuer to issue, directly
or indirectly any shares of capital stock of the Issuer.
(b) Except as contemplated by the Transactions or as set forth on
Schedule 3.04(b) or any other schedule attached hereto, (y) neither the Issuer
nor any of its Subsidiaries is a party or subject to any agreement or
understanding that affects or relates to the voting or giving of consents with
respect to any security or the voting by any director of the Issuer or of its
Subsidiaries and (z) there are no agreements or other arrangements among any
persons or entities owning equity interests in the Issuer, Nevasa Holdings Ltd.
or Corporacion IMPSA S.A.
(c) The outstanding shares of Common Stock have been duly and
validly issued, and are fully paid and nonassessable and all outstanding
options, warrants, rights (including conversion or preemptive rights and rights
of first refusal) or agreements for the purchase or acquisition from the Issuer
or any of its Affiliates of any shares of its capital stock have been granted in
accordance with the registration provisions of the Securities Act and any
relevant state securities laws or pursuant to valid exemptions therefrom.
SECTION 3.05. Subsidiaries. Except as set forth on Schedule 3.05,
the Issuer does not own or control, directly or indirectly, any interest in any
other Person, and the Issuer is not a direct or indirect participant in any
joint venture, partnership or similar arrangement.
SECTION 3.06. Related Party Transactions. (i) Except as set forth on
Schedule 3.06, no officer or director of the Issuer or any Subsidiary or
relative of any such officer or director is indebted to the Issuer or any
Subsidiary, nor is the Issuer or any Subsidiary indebted (or committed to make
loans or extend or guarantee credit) to any of them and none of the Issuer or
any Subsidiary is indebted (or committed to make loans or extend or guarantee
credit) to any shareholder of the Issuer or any family member of any shareholder
or any Affiliate of such a shareholder or family member, nor is any such
shareholder, family member or Affiliate indebted (or committed to make loans or
extend or guarantee credit) to the Issuer or any Subsidiary; (ii) except as set
forth on Schedule 3.06, except for investments in publicly traded equity
securities of Persons purchased for investment purposes only and which
investments represent less than 5% of the outstanding equity securities of such
Persons or as contemplated by Section 3.06, to the Issuer's knowledge, none of
such persons has any direct or indirect ownership interest in, or is employed by
or a consultant to or director or officer of, any Person with which the Issuer
is Affiliated or with which the Issuer has a business relationship, or any
Person that competes with the Issuer; and (iii) except as set forth on any
Schedule hereto, no officer or director of the Issuer or any Subsidiary or any
relative of any such officer or director is, directly or indirectly, interested
in any transaction or series of related transactions, or contracts or series of
related contracts, with the Issuer or any of its
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Subsidiaries that relate to, or have an annual value of, $50,000 or more.
SECTION 3.07. Registration Rights. Except as may be required
pursuant to the Securityholders Agreement, neither the Issuer nor any of its
Subsidiaries is obligated to register under the Securities Act or the Exchange
Act any of its currently outstanding securities or any of its securities that
may subsequently be issued.
SECTION 3.08. Litigation, Proceedings; No Defaults. (a) Except as
specified on Schedule 3.08(a), there is no action, suit or proceeding pending
or, to the knowledge of the Issuer, threatened against or affecting the Issuer
or any of its Subsidiaries or any of their respective assets before any court or
arbitrator or any governmental body, agency or official in which there is a
possibility of an adverse decision that could (individually or in the aggregate)
result in a Material Adverse Effect or result in any material change in the
current equity ownership of the Issuer or any Subsidiary, or which in any manner
draws into question the validity or enforceability of any portion of this
Agreement, the Securityholders Agreement, the Certificate of Designations, the
Charter, the Securities or any of the transactions contemplated hereby or
thereby. The foregoing includes, without limitation, any such action, suit,
proceeding, or investigation pending or currently threatened involving the prior
employment of any of the Issuer's or any Subsidiary's employees, such employees'
use in connection with the Issuer's or any Subsidiary's business of any
information or techniques allegedly proprietary to any of such employees' former
employers, the obligations of any of the Issuer's employees under any agreements
with the prior employers of such employees, or negotiations by the Issuer with
potential investors in the Issuer or any Subsidiary or its proposed business.
(b) Neither the Issuer nor any of its Subsidiaries is in
violation of their respective charters or bylaws (or similar organizational
document) nor in violation or contravention of or in default under any provision
of applicable law or regulation or of any judgment, injunction, order or decree
or of any agreement or other instrument binding upon it that could reasonably be
expected to result in a liability in excess of $25,000.
SECTION 3.09. Disclosure. (a) The Issuer has provided the Purchasers
with all the information available to it that the Purchasers have requested for
determining whether to purchase the Securities. Neither this Agreement nor any
other written statements or certificates made or delivered by the Issuer to the
Purchasers in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements herein
and therein not misleading.
(b) The copy of the minute books of the Issuer provided to the
Purchasers' counsel prior to the Closing Date contains minutes of all meetings
of directors (and committees thereof) and stockholders minutes and all actions
by written consent without a meeting by the directors (and committees thereof)
and stockholders from January 1, 1996, to the date hereof and accurately
reflects in all material respects all actions by the directors (and any
committee
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of directors) and stockholders with respect to all transactions referred to in
such minutes and consents.
SECTION 3.10. Offerings. (a) Assuming the accuracy of the
representations set forth in Articles IV and V hereof, the offer, transfer and
issuance of the Securities to Newco as contemplated by this Agreement are exempt
from the registration requirements of the Securities Act.
(b) Assuming the accuracy of the representations set forth in
Articles IV and V hereof, (i) the offer and transfer of the Securities to the
Purchasers as contemplated by this Agreement and (ii) the issuance of the Common
Stock to the holders of the Securities upon the conversion of such Securities in
accordance with the terms thereof are, and would be, exempt from the
registration requirements of the Securities Act.
SECTION 3.11. Investment Company. The Issuer is not, and after
giving effect to the sale and issuance of the Securities will not be, required
to register as an "investment company" under the Investment Company Act of 1940,
as amended.
SECTION 3.12. Governmental Regulation. Except for the Securities
Act, the Exchange Act and state securities laws, the Issuer is not subject to
any federal or state or foreign law or regulation limiting its ability to issue
the Securities or perform its obligations under the terms of the Securities,
this Agreement or the Securityholders Agreement.
SECTION 3.13. Solicitation; Access to Information. No form of
general solicitation or general advertising was used by the Issuer or, to its
knowledge, any other Person acting on its behalf, in respect of the Securities
or in connection with the offer and sale of the Securities. Neither the Issuer
nor any Person acting on behalf of the Issuer has, either directly or
indirectly, sold or offered for sale to any Person any of the Securities or any
other similar security of the Issuer except as contemplated by this Agreement.
SECTION 3.14. Financial Information. The balance sheet and the
related consolidated statements of operations, of stockholders' equity and cash
flows, as of and for the year ended December 31, 1997, fairly present, in
conformity with generally accepted accounting principles in the United States,
the consolidated financial position of the Issuer and its Combined Subsidiaries
as of December 31, 1997 and their consolidated results of operations and cash
flows for such fiscal year.
SECTION 3.15. Compliance with ERISA and the Code. (a) For the
purposes of this Section 3.15, the following terms shall have the following
meanings:
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of the Employee Retirement Income
Security
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Act of 1974, as amended from time to time ("ERISA") which is not a Plan or
a Multiemployer Plan and which is maintained or otherwise contributed to
by any member of the ERISA Group.
"ERISA Group" means the Issuer, Nevasa Holdings Ltd. and Newco and
all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which,
together with any of them, are treated as a single employer under Section
414 of the Code.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which (a) any
member of the ERISA Group is making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions, or (b) any former member of the ERISA Group made or accrued
any obligation to make contributions during the preceding five plan years
while a member of the ERISA Group.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (i) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) has at any
time within the preceding five years been maintained, or contributed to,
by any Person which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of the ERISA
Group.
(b) Each member of the ERISA Group has fulfilled its obligations
under the minimum funding standards of ERISA and the Internal Revenue Code (the
"Code") with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Code in respect of any Plan, (ii)
failed to make any contribution or payment to any Plan or Multiemployer Plan or
in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could reasonably be expected to
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Code or (iii) incurred any liability under Title IV of ERISA
that has not been satisfied in full other than a liability to the Pension
Benefit Guaranty Corporation for premiums under Section 4007 of ERISA, and no
event or condition has occurred or exists that could reasonably be expected to
result in the incurrence of any liability under Title IV of ERISA by any member
of the ERISA Group other than liability for premiums under Section 4007 of
ERISA. Neither the Issuer nor any of its Subsidiaries has made any contributions
to a Multiemployer Plan or a Plan. No member or former member of the ERISA Group
has, while a member of the ERISA
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Group and within the last five years, engaged in, or, with respect to any
current members of the ERISA Group, is a successor or parent corporation to an
entity that has engaged in, a transaction described in Section 4069 of ERISA.
Each Benefit Arrangement has been maintained in substantial compliance with its
terms and with the requirements prescribed by any and all applicable statutes,
orders, rules and regulations, including, but not limited to, ERISA and the
Code.
SECTION 3.16. Foreign Benefit Plans. In addition to Section 3.15
above, with respect to each scheme or arrangement mandated by a government other
than the United States (a "Foreign Government Scheme or Arrangement") and with
respect to each employee benefit plan maintained or contributed to by the Issuer
or Subsidiary or Affiliate that is not subject to United States law (a "Foreign
Benefit Plan"):
(i) Any employer and employee contributions required by law or by
the terms of any Foreign Government Scheme or Arrangement or any Foreign
Benefit Plan have been made, or, if applicable, accrued, in accordance
with generally accepted accounting practices in the applicable
jurisdiction.
(ii) The fair market value of the assets of each funded Foreign
Benefit Plan, the liability of each insurer for any Foreign Benefit Plan
funded through insurance or the book reserve established for any Foreign
Benefit Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the date of
this Agreement, with respect to all current and former participants in
such plan according to the actuarial assumptions and valuations most
recently used to account for such obligations in accordance with
applicable generally accepted accounting principles.
(iii) Each Foreign Benefit Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities.
SECTION 3.17. Taxes. The Issuer and each of its Subsidiaries: (i)
has filed in accordance with all applicable laws, all Tax (as defined below)
returns, statements, reports and forms (collectively, the "Returns") required to
be filed with any Taxing Authority (as defined below) on or before the Closing
Date with respect to any Tax period ending on or before the Closing Date
("Pre-Closing Tax Period"); (ii) will file all other Returns required to be
filed when due (taking into account any extension of a required filing date);
(iii) has timely paid all material Taxes shown as due and payable on the Returns
that have been filed; (iv) has not been a member of any Affiliated,
consolidated, combined or unitary group other than one of which the Issuer was
the common parent; and (v) is not currently under any contractual obligation to
pay any amounts of the type described in clause (ii) or (iii) of the definition
of "Tax." The Issuer represents further that (x) the charges, accruals and
reserves for Taxes reflected on its Balance Sheet (excluding any provision for
deferred income taxes) are adequate
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to cover the Tax liabilities accruing through the date thereof; and (y) there is
no material action, suit, proceeding, investigation, audit or claim pending or,
to the knowledge of the Issuer, threatened against or with respect to it in
respect of any Tax. "Tax" (and with correlative meaning, "Taxes") means (i) any
net income, alternative or add-on minimum tax, gross income, gross receipts,
sales, use, ad valorem, value added, transfer, franchise, profits, license,
withholding on amounts paid to or by the Issuer or any of its Subsidiaries,
payroll, employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, duty or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest or any penalty, addition to tax or additional amount due from, or in
respect of the Issuer or any of its Subsidiaries, as the case may be, imposed by
any governmental authority (a "Taxing Authority") responsible for the imposition
of any such tax (domestic or foreign), (ii) liability of the Issuer or any of
its Subsidiaries for the payment of any amounts of the type described in (i) as
a result of being a member of an Affiliated, consolidated, combined or unitary
group, or being a party to any agreement or arrangement whereby liability of the
Issuer or any of its Subsidiaries for payment of such amounts was determined or
taken into account with reference to the liability of any other Person for any
Pre-Closing Tax Period, and (iii) liability of the Issuer or any of its
Subsidiaries for the payments of any amounts as a result of being party to any
tax sharing agreement or with respect to the payment of any amounts of the type
described in clause (i) or (ii) as a result of any express or implied obligation
to indemnify any other Person. The Issuer meets the 80-percent foreign business
requirement contained in Section 861(c) of the Internal Revenue Code of 1986, as
amended.
SECTION 3.18. Authorization to Do Business. The Issuer and its
Subsidiaries (i) possess all licenses, certificates, authorizations, approvals
and permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective businesses as
currently conducted, excepting any certificate, authorization, approval or
permit, the failure to possess which could not reasonably be expected to result
in a Material Adverse Change and (ii) have not received any notice of
proceedings relating to the revocation or modification of any such license,
certificate, authorization, approval or permit, nor is the Issuer or any of its
Subsidiaries in violation or contravention of, or in default under, any such
license, authorization, approval or permit or any decree, order or judgment
applicable to the Issuer or its Subsidiaries the effect of which, singly or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.19. Absence of Certain Changes. Except as set forth on
Schedule 3.19 or Schedule 3.20, since the Balance Sheet Date, the Issuer and its
Subsidiaries have conducted their businesses in the ordinary course consistent
with past practices and there has not been:
(a) any Material Adverse Change;
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(b) any declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock of the
Issuer, or, other than as contemplated by the Transactions or by the
Certificate of Designations, any repurchase, redemption or other
acquisition by the Issuer or any of its Subsidiaries of any outstanding
shares of capital stock or other securities of, or other ownership
interests in, the Issuer or any of its Subsidiaries;
(c) any amendment of any material term of any outstanding
security of the Issuer or any of its Subsidiaries, other than as set forth
in their respective charters;
(d) any incurrence, assumption or guarantee by the Issuer or any
of its Subsidiaries of any Indebtedness in excess of $5 million;
(e) any creation or assumption by the Issuer or any of its
Subsidiaries of any Lien on any material asset;
(f) other than temporary investments of cash in the ordinary
course of business, any making by the Issuer or any of its Subsidiaries of
any loan, advance or capital contributions to or investment in any Person
other than the Issuer or any of its wholly owned Subsidiaries, in excess
of $5 million;
(g) any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting the business or assets of the Issuer
or any of its Subsidiaries which, individually or in the aggregate, has
had or could reasonably be expected to have a Material Adverse Effect;
(h) any transaction or commitment made, or any contract or
agreement entered into, by the Issuer or any of its Subsidiaries relating
to its assets, business or operations (including, without limitation, the
acquisition or disposition of any assets) or any relinquishment by the
Issuer or any of its Subsidiaries of any contract or other right, in
either case, material to the Issuer and its Subsidiaries; or
(i) any change in any method of accounting or accounting practice
by the Issuer or any of its Subsidiaries, except for any such change
required by reason of a concurrent change in generally accepted accounting
principles in the United States.
SECTION 3.20. Properties. The Issuer and its Subsidiaries have good
and marketable title to, or in the case of leased property have valid leasehold
interests in, all
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material property and assets (whether real or personal, tangible or intangible).
None of such properties or assets is subject to any Liens, except (i) Liens
disclosed or provided for on the Balance Sheet, (ii) Liens in existence on the
date hereof and listed in Schedule 3.20 hereto, or (iii) Permitted Liens.
SECTION 3.21. Internal Controls. The Issuer and its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles in the United States and to maintain
asset accountability; (3) access to assets is permitted only in accordance with
management's general or specific authorization; and (4) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
SECTION 3.22. Employees; Employee Compensation. Except as set forth
on Schedule 3.22, to the Issuer's knowledge, (i) there is no strike or material
labor dispute or union organization activities pending or threatened between it
or its Subsidiaries and their respective employees; (ii) none of the Issuer's or
its Subsidiaries' employees belongs to any union or collective bargaining unit;
(iii) the Issuer and its Subsidiaries are in compliance with all applicable
equal opportunity and other laws related to employment (except where such
noncompliance with such laws would not result in a Material Adverse Effect);
(iv) no employee of the Issuer or its Subsidiaries is or will be in violation in
any material respect of any judgment, decree, or order, or any term of any
employment contract, patent disclosure agreement, or other contract or agreement
relating to the relationship of any such employee with the Issuer or its
Subsidiaries or any other party because of the nature of the business conducted
or to be conducted by the Issuer or its Subsidiaries or to the use by the
employee of his best efforts with respect to such business; and (v) no officer
or key employee intends to terminate their employment with the Issuer or its
Subsidiaries, nor does the Issuer or any of its Subsidiaries have a present
intention to terminate the employment of any of the foregoing. Except as set
forth in Schedule 3.22, the Issuer and its Subsidiaries are not parties to or
bound by any currently effective employment contract, deferred compensation
agreement, bonus plan, incentive plan, profit sharing plan, retirement
agreement, or other employee compensation agreement any of which could
reasonably be expected to result in a material liability or commitment. Subject
to general principles related to wrongful termination of employees and the
requirements of applicable law, the employment of each officer and employee of
the Issuer or its Subsidiaries not covered by an employment contract is
terminable at the will of the Issuer or its Subsidiaries.
SECTION 3.23. No Undisclosed Material Liabilities. Except as set
forth in the Balance Sheet or on any Schedule hereto, there are no material
liabilities or commitments of the Issuer or any of its Subsidiaries of any kind
whatsoever, whether accrued, contingent,
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absolute, determined, determinable or otherwise, and there is no existing
condition, situation or set of circumstances which could reasonably be expected
to result in such a material liability or commitment.
SECTION 3.24. Material Contracts. (a) Except for agreements,
contracts, plans, leases, arrangements or commitments set forth on Schedule 3.24
and that have been provided to Princes Gate and MSGEM, neither the Issuer nor
any of its Subsidiaries is a party to or subject to any agreements, contracts,
indentures, plans, leases, arrangements or commitments that (i) accounted for
the 10 largest (for purposes of this Section 3.24 based on revenues to the
Issuer and its Subsidiaries) customer contracts with customers in Argentina; the
ten largest customer contracts with customers in Colombia, the five largest
customer contracts with customers in every other country (other than the United
States) in which the Issuer or its Subsidiaries conducts business and the
largest customer contract with customers in the United States, (ii) provide for
the purchase of materials, supplies, goods, services, equipment or other assets
that have an annual value in excess of $250,000, (iii) involve any partnership,
joint venture or other similar arrangement or (iv) restrict the Issuer or any
Subsidiary from engaging in or competing in any line of business or with any
Person or in any geographic area.
(b) Each agreement, contract, indenture plan, lease, arrangement
and commitment disclosed or required to be disclosed pursuant to clause (a)
above is a valid and binding agreement of the Issuer or a Subsidiary of the
Issuer and is in full force and effect, and neither the Issuer, any of its
Subsidiaries nor, to the knowledge of the Issuer, any other party thereto is in
default in any material respect under the terms of any such agreement, contract,
indenture, plan, lease, arrangement or commitment.
SECTION 3.25. Intellectual Property. (a) The Issuer and its
Subsidiaries own or have the right to use all material trademarks, service
marks, trade names, inventions, patents, trade secrets, know-how, copyrights, or
any other similar type of proprietary intellectual property right, registration
thereof, or application for registration therefor ("Intellectual Property
Rights") necessary to conduct the business of the Issuer and its Subsidiaries as
currently conducted or as expected to be conducted.
(b) The consummation of the transactions contemplated hereby will
not alter or impair any of the Intellectual Property Rights or the Issuer's or
any Subsidiary's interests therein. Except as set forth in Schedule 3.25, there
are no pending claims against the Issuer or any Subsidiary by any Person
relating to the use of any such Intellectual Property Rights or challenging or
questioning the validity or effectiveness of any license or agreement relating
to Intellectual Property Rights to which the Issuer or any Subsidiary is a
party, and the Issuer does not know of any valid basis for any such claim; and
the use of such Intellectual Property Rights by the Issuer or any Subsidiary to
the Issuer's knowledge does not infringe on the rights of any Person.
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(c) To the knowledge of the Issuer, none of the Issuer's or
Subsidiary's key employees is obligated under any contract or other agreement
(including, without limitation, licenses, covenants, or commitments of any
nature) or subject to any judgment, decree, or order of any court or
administrative agency, that could interfere with the use of such employee's best
efforts to promote the interests of the Issuer or that would conflict with the
Issuer's business as proposed to be conducted. Neither the execution, delivery
or performance of this Agreement, the Certificate of Designations or the
Securityholders Agreement nor the carrying on of the Issuer's business by the
key employees of the Issuer, nor the conduct of the Issuer's business will
conflict with or result in a breach of the terms, conditions, or provisions of,
or constitute a default under, any contract, covenant, or instrument under which
any of such key employees is now obligated.
SECTION 3.26. Environmental Compliance. (a) No notice or request for
information has been issued by, no complaint has been filed, no penalty has been
assessed and no investigation or review is pending, or to the Issuer's
knowledge, threatened by any governmental or other entity with respect to (i)
any alleged violation by the Issuer or any of its Subsidiaries of any
environmental law, regulation or order of any governmental entity in connection
with the conduct of their businesses or (ii) any alleged failure by the Issuer
or any of its Subsidiaries to have any environmental permit, license or approval
in connection with the conduct of their businesses.
(b) Other than in compliance in all material respects with all
applicable environmental laws, regulations or orders, (i) neither the Issuer nor
any of its Subsidiaries has generated, processed, treated, sold or transported
any toxic, caustic or otherwise hazardous substance, including, without
limitation, petroleum, its derivatives, by-products and other hydrocarbons, or
any substance having any constituent elements displaying any of the foregoing
characteristics whether or not regulated under Federal, state, local or foreign
environmental laws, regulations or orders ("Hazardous Substance") and (ii) no
generation, treatment, storage, recycling, transportation, disposal or Release
(as defined in 42 U.S.C. Section 9601(22)) of any Hazardous Substance has
occurred at or on any property now or previously owned or leased by the Issuer
or any of its Subsidiaries.
(c) To the knowledge of the Issuer, (i) each of the Issuer and
its Subsidiaries is in compliance in all material respects with all Federal,
state and local and foreign environmental laws, regulations and orders and (ii)
there are no liabilities of the Issuer or any of its Subsidiaries, whether
vested or unvested, contingent or fixed, actual or potential, known or unknown,
which (1) arise under or relate to matters covered by Federal, state and local
and foreign environmental laws, regulations and orders, (2) relate to actions
occurring or conditions existing on or prior to the Closing Date and (3) have
had or could reasonably be expected to have a Material Adverse Effect.
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SECTION 3.27. Insurance. The Issuer has in full force and effect
fire and casualty insurance policies, sufficient in amount (subject to
reasonable deductibles) in the Issuer's opinion to allow it to replace any of
its properties that might be damaged or destroyed. The Issuer has in full force
and effect insurance (including with respect to workers' compensation and
personal injury) in amounts that to its knowledge are customary for companies
similarly situated.
SECTION 3.28. Termination of STET Shareholders' Agreement. The
Shareholders' Agreement among Nevasa Holdings Ltd., Corporacion IMPSA S.A.,
Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxx Vivo Chaneton and STET International
Netherlands NV dated December 16, 1994 has been terminated and is no longer of
any force or effect.
SECTION 3.29. Payments Outside of the Ordinary Course. (a) No
payments or inducements have been made or given, directly or indirectly, to any
federal or local officials in any jurisdiction by the Issuer or by any of its
Subsidiaries, to the best knowledge of the Issuer, by any of their officers,
directors, employees or agents or, by any other person in connection with any
opportunity, agreement, license, permit, certificate, consent, order, approval,
waiver or other authorization relating to the business of the Issuer or any of
its Subsidiaries, including without limitation, any telecommunications license,
except for such payments or inducements as were lawful under applicable written
laws, rules and regulations, and (b) neither the Issuer nor any of its
Subsidiaries, nor, to the best knowledge of the Issuer, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Issuer or any of its Subsidiaries, (i) has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, unlawful rebate, payoff, influence payment, kickback or other
unlawful payment in connection with the business of the Issuer or any of its
Subsidiaries.
SECTION 3.30. Compliance Program. The Issuer has taken the advice of
its counsel and has adopted an ethics code pursuant to which both the Issuer and
its employees are subject and is in the process of implementing a set of
procedures and a policy statement regarding compliance by the Issuer and its
employees with the Foreign Corrupt Practices Act of 1977.
SECTION 3.31. Nature of Operations. Except as set forth on Schedule
3.05(b), the Issuer owns more than 50% of (i) the economic interest in the
assets, earnings or cash flow and (ii) the total voting power of shares of
capital stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof, of each of the
entities in which it owns an equity interest. Each such entity is primarily
engaged in the production or sale of a product or service other than the
investment
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of capital, and the Issuer is primarily engaged through such entities in the
production or sale of a product or service other than the investment of capital.
The aggregate revenues generated by entities listed on Schedule 3.05(b)
constituted no more than 5% of the consolidated revenues of the Issuer for the
year ended December 31, 1997; since December 31, 1997, there has not been any
material change in the percentage of revenues generated by entities.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF NEWCO
Newco represents and warrants to the Issuer and to each of the
Purchasers as follows:
SECTION 4.01. Organization. Newco is duly organized and existing
under the laws of the British Virgin Islands.
SECTION 4.02. Authority; No Other Action. (a) The execution,
delivery and performance of this Agreement and the Note Purchase Agreement are
within Newco's powers and have been duly authorized on its part by all requisite
corporate action.
(b) No action by or in respect of, or filing with, any
governmental authority, agency or official is required for the execution,
delivery and performance by Newco of this Agreement.
SECTION 4.03. No Contravention. The execution, delivery and
performance by Newco of this Agreement and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) violate Newco's
Memorandum or Articles of Association or (ii) violate any applicable law, rule,
regulation, judgment, injunction, order or decree, which violation would (a)
affect the validity of this Agreement or (b) individually or in the aggregate
impair the ability of Newco to perform in any material respect its obligations
under this Agreement.
SECTION 4.04. Binding Effect. This Agreement has been duly executed
by Newco and except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors' rights generally, constitutes a valid and binding agreement of Newco.
SECTION 4.05. No Defaults. Newco is not in violation of its
Memorandum or Articles of Association or in default under any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree or other instrument binding upon it,
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which violation or default (i) would affect the validity of this Agreement or
(ii) would (individually or in the aggregate) impair the ability of Newco to
perform in any material respect its obligations under this Agreement.
SECTION 4.06. Private Placement. (a) Newco understands that (i) the
offering and sale of the Securities is intended to be exempt from registration
under the Securities Act pursuant to Section 4(2) of the Securities Act and (ii)
there is no existing public or other market for the Securities and there can be
no assurance that Newco will be able to sell or dispose of such Securities
purchased by Newco pursuant to this Agreement.
(b) Newco and its advisors and representatives have sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in the Securities and Newco
is capable of bearing the economic risks of such investment.
SECTION 4.07. Title. Newco will, on the Closing Date, have good and
marketable title to the Securities to be sold by Newco pursuant to this
Agreement, free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind; Newco has full right, power and authority to
sell, transfer and deliver such Securities pursuant to this Agreement; and upon
delivery of such Securities and payment of the purchase price therefor as
contemplated in this Agreement, the Purchasers will receive good and marketable
title to the Securities purchased by them from Newco, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers severally represents and warrants to the
Issuer as follows:
SECTION 5.01. Organization. Each of the Purchasers is duly organized
and existing under the laws of its jurisdiction of organization.
SECTION 5.02. Authority; No Other Action. (a) The execution,
delivery and performance of this Agreement and the Securityholders Agreement are
within each Purchaser's powers and have been duly authorized on such Purchaser's
parts by all requisite partnership or corporate action, as appropriate.
(b) No action by or in respect of, or filing with, any
governmental authority, agency or official is required for the execution,
delivery and performance by the
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Purchasers of this Agreement and the Securityholders Agreement.
SECTION 5.03. No Contravention. The execution, delivery and
performance by each of the Purchasers of this Agreement and the Securityholders
Agreement and the consummation of the transactions contemplated hereby and
thereby do not and will not (i) violate such Purchaser's charter, partnership
agreement, or similar document or (ii) violate any applicable law, rule,
regulation, judgment, injunction, order or decree, which violation would (a)
affect the validity of this Agreement or the Securityholders Agreement or (b)
individually or in the aggregate impair the ability of such Purchaser to perform
in any material respect the obligations which they have under this Agreement or
the Securityholders Agreement.
SECTION 5.04. Binding Effect. Except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally, this Agreement and the
Securityholders Agreement have been duly executed by each of the Purchasers and
constitute valid and binding agreements of each of the Purchasers.
SECTION 5.05. No Defaults. None of the Purchasers is in violation of
its charter or partnership agreement or in default under any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree or other instrument binding upon it, which violation or default (i) would
affect the validity of this Agreement or the Securityholders Agreement or (ii)
would (individually or in the aggregate) impair the ability of any of the
Purchasers to perform in any material respect the obligations which it has under
this Agreement or the Securityholders Agreement.
SECTION 5.06. Private Placement. (a) Each of the Purchasers
understands that (i) the offering and sale of the Securities is intended to be
exempt from registration under the Securities Act pursuant to Section 4(2) of
the Securities Act and (ii) there is no existing public or other market for the
Securities and there can be no assurance that any such Purchaser will be able to
sell or dispose of such Securities purchased by such Purchaser pursuant to this
Agreement.
(b) Each of the Purchasers is an "Accredited Investor" as such
term is defined in Regulation D.
(c) Each of the Purchasers has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investment in the Securities and each of the
Purchasers is capable of bearing the economic risks of such investment.
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ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
SECTION 6.01. Conditions to Newco's Obligations. The obligation of
Newco to purchase and sell the Securities is subject to the satisfaction, on or
prior to the Closing Date, of the following conditions:
(a) each of the representations and warranties of the Issuer
contained herein shall be true and correct on and as of the Closing Date;
(b) the Issuer shall have performed and complied with all
covenants and agreements required by this Agreement to be performed or
complied with by it on or prior to the Closing Date and shall not be in
default under or in violation of any provisions of the Securityholders
Agreement, the Charter or the Certificate of Designations;
(c) the Securityholders Agreement shall have been executed and
delivered by the parties thereto other than the Purchasers, the conditions
to effectiveness to the Securityholders Agreement of each of the parties
thereto other than the Purchasers shall have been satisfied and, assuming
due execution and delivery by the Purchasers, the Securityholders
Agreement shall be in full force and effect and all events required to
occur thereunder on the Closing Date shall have occurred;
(d) each of Newco and the Purchasers shall have received a
certificate dated such Closing Date signed by an executive officer of the
Issuer to the effect set forth in subsections (a), (b), (e), (g) and (v)
of this Section 6.01;
(e) the Issuer shall have obtained any and all material consents,
waivers or permits necessary for the consummation of the transactions
contemplated hereby;
(f) the Purchasers' acquisition of the Securities as provided
herein shall not be prohibited by any applicable law, court order or
governmental regulation or any contract, agreement, document or other
instrument by which any of the Purchasers is bound;
(g) there shall not have occurred a Change of Control (as defined
in the Certificate of Designations);
(h) Newco shall have received one or more duly executed
certificates representing the Securities being acquired by Newco pursuant
hereto;
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(i) the Purchasers shall have received from Newco duly executed
certificates representing the Securities subsequently acquired by the
Purchasers, and such certificates shall have been registered in the name
of the Purchasers;
(j) the Purchasers shall have received an opinion from Xxxxxx &
Xxxxxx, United States counsel to the Issuer and Newco, dated the Closing
Date substantially in the form of Exhibit B hereto;
(k) the Purchasers shall have received an opinion from Xxxxxx &
Xxxxxxx, United States regulatory counsel to the Issuer and IMPSAT U.S.A.,
Inc.;
(l) the Purchasers shall have received an opinion from Xxxxxx
Xxxx & Co., British Virgin Islands counsel to Newco, dated the Closing
Date substantially in the form of Exhibit D hereto;
(m) the Purchasers shall have received an opinion from A&L
Goodbody, Irish counsel to Newco Holdings Ltd., dated the Closing Date
substantially in the form of Exhibit E hereto;
(n) the Purchasers shall have received an opinion from Xxxxxxxxx
& Xxxx, Argentine counsel to the Issuer, dated the Closing Date
substantially in the form of Exhibit F hereto;
(o) the Purchasers shall have received an opinion of Xxxxxx
Xxxxxx Xxxxxxxx, General Counsel to Corporacion IMPSA S.A., dated the
Closing Date substantially in the form of Exhibit G hereto;
(p) the Purchasers shall have received an opinion from [Estudio
Xxxxxxxxxxxx & Xxxxxxxxx], Colombian counsel to the Issuer, dated the
Closing Date substantially in the form of Exhibit H hereto;
(q) the Purchasers shall have received an opinion from Estudio
Xxxxx Xxxxxxxxxx & Xxxxx, Ecuadorian counsel to the Issuer, dated the
Closing Date substantially in the form of Exhibit I hereto;
(r) the Purchasers shall have received an opinion from Estudio
Xxxxxx, Ringe & Xxxxxx, Mexican counsel to the Issuer, dated the Closing
Date substantially in the form of Exhibit J hereto;
(s) the Purchasers shall have received an opinion from Xxxxxxxxxx
& Xxxxxx, Venezuelan counsel to the Issuer, dated the Closing Date
substantially in the
30
25
form of Exhibit K hereto;
(t) the Purchasers shall have received an opinion from Xxxxxxxx
Neto Advogados, Brazilian counsel to the Issuer, dated the Closing Date
substantially in the form of Exhibit L hereto;
(u) the Charter, including the Certificate of Designations, shall
have been duly adopted and filed with the Secretary of State of Delaware
and shall be in full force and effect;
(v) the Purchasers shall have received all documents reasonably
requested by their counsel relating to the existence of the Issuer, the
corporate authority for entering into, and the validity of, this Agreement
and any other matters relevant hereto and thereto, all in form and
substance satisfactory to such counsel;
(w) the Purchasers shall have completed their financial,
business, operational, tax, accounting and legal due diligence relating to
the Issuer and its Subsidiaries, and the results thereof shall have been
satisfactory to Princes Gate and MSGEM;
(x) in the judgment of Princes Gate (after consultation with
MSGEM) there shall not have occurred any Material Adverse Change;
(y) a purchase and sale agreement relating to the purchase by
Newco of the IMPSAT Common Stock and the IMPSAT S.A. Common Stock in form
and substance satisfactory to Princes Gate and MSGEM shall have been duly
executed by the parties thereto and such purchase and sale shall have been
consummated;
(z) the Issuer shall have complied with all of its obligations
contained in Section 7.05 of this Agreement;
(aa) each Existing Stockholder shall have entered into a
non-competition and non-solicitation agreement with the Issuer in the form
of Exhibit P hereto (each such agreement, a "Non-Competition Agreement");
each Existing Stockholder, Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx and
Xxx. Xxxxxxx Xxxxxxxxxx xx Xxxx shall have entered into a letter agreement
in the form of Exhibit Q hereto; and
(bb) neither the Issuer nor any of its Subsidiaries shall be in
default, nor shall there have occurred any event that is, or after notice
or passage of time or both would be, an event of default, under this
Agreement or any agreement to which either the Issuer or any of its
Subsidiaries is a party that could reasonably be expected to result in a
liability in excess of $25,000 or that has a value in excess of $25,000.
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26
SECTION 6.02. Conditions to the Issuer's Obligations. The
obligations of the Issuer to issue and sell the Securities to Newco pursuant to
this Agreement are subject to the satisfaction, at or prior to the Closing Date,
of the following conditions:
(a) the representations and warranties of Newco and each of the
Purchasers contained herein shall be true and correct on and as of the
Closing Date;
(b) each of the Purchasers shall have performed and complied with
all agreements required by this Agreement to be performed or complied with
by each of the Purchasers on or prior to the Closing Date; and
(c) the Purchasers' acquisition of the Securities shall not be
prohibited by any applicable law, court order or governmental regulation
or any contract, agreement, document or other instrument by which any of
the Purchasers is bound.
SECTION 6.03. Integration Services. The Issuer shall cause all of
the properties, licenses, rights and other assets (collectively, the "ISI
Assets") of Integration Services International Ltd. ("ISI") to be acquired
(whether through the acquisition of all of the stock of ISI or otherwise) by
either the Issuer or IMPSAT U.S.A., Inc. within four months after the Closing
Date in exchange for payment by the Issuer to ISI of an amount not to exceed the
lesser of (x) the fair market value of the ISI Assets so acquired and (y) the
amount (based on book value) of capital, property and assets contributed to ISI
as an equity contribution or in exchange for stock of ISI prior to the time such
assets and properties are acquired. The ISI Assets shall be acquired by the
Issuer or IMPSAT U.S.A., Inc. free and clear of any Indebtedness, liabilities
(contingent or otherwise), liens, claims, charges or encumbrances.
SECTION 6.04. IMPSAT Comunicacoes Ltda. The Issuer shall cause
99.925% of the properties, licenses, rights and other assets (collectively, the
"Brazil Assets") of IMPSAT Comunicacoes Ltda. ("IMPSAT Brazil") to be acquired
(whether through the acquisition of 99.925% of the equity interests of IMPSAT
Brazil or otherwise) by the Issuer within nine months after the Closing Date in
exchange for a cash payment by the Issuer to the current stockholders of IMPSAT
Brazil of an aggregate of $5,121,500. The Brazil Assets shall be acquired by the
Issuer free and clear of any Indebtedness, liabilities (contingent or
otherwise), liens, claims, charges or encumbrances. The Brazil Assets acquired
must consist of all Brazil Assets existing on the Closing Date plus any
properties, licenses, rights and other assets acquired or received by IMPSAT
Brazil after the Closing Date.
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27
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including, without
limitation, telecopier or similar writing) and shall be given to such party by
certified first class mail at its address with a return receipt requested, by
Federal Express or similar overnight mail service with signature required for
receipt, or by telecopy at the telecopier number set forth below or such other
address or telecopier number as such party may hereinafter specify in writing
for the purpose to the party giving such notice. For so long as Princes Gate and
MSGEM in the aggregate own a majority of the Securities, all notices, requests
and other communications delivered in writing by the Issuer to Princes Gate and
MSGEM shall be deemed effective as having been given to all Purchasers and shall
be provided to all other Purchasers by Princes Gate and MSGEM. Each such notice,
request or other communication shall be effective (i) if given by telecopy, when
such telecopy is transmitted to the telecopy number specified in this Section
and the appropriate electronic confirmation is received and a copy of such
notice is sent by overnight mail service or (ii) if given by certified mail or
overnight courier, 72 hours after such communication is deposited in the mails
with first class postage prepaid or given to overnight courier service,
addressed as aforesaid.
Issuer: IMPSAT Corporation
Xxxxxxx Xxxxxx 000
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Chief Executive Officer
Fax: 000-000-000-0000
Newco: Jonesboro Financial Inc.
940 Xxxxxxx Xxxxxxx Xxxxxx
Xxxx 00
Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxxxxx/Xxxxxx Xxxxxxx
Fax: (000) 000-0000
Purchasers: Princes Gate Investors II, L.P.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
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28
Xxxxxx Xxxxxxx
Global Emerging Markets
Private Investment Fund, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SECTION 7.02. No Waivers; Amendments. (a) No failure or delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
(b) Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by all parties
hereto.
SECTION 7.03. Indemnification. The Issuer hereby agrees to indemnify
and hold harmless the Purchasers and their partners and Affiliates and each
other Person, if any, who controls any of the Purchasers within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, and
their respective directors, officers, agents and employees (each, an
"Indemnified Person") from and against and to pay any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) ("Damages") to which
such Indemnified Person may become subject as the result of any
misrepresentation, breach of representation, warranty or covenant made or to be
performed on the part of the Issuer under this Agreement, the Securityholders
Agreement or otherwise resulting from any third-party action, claim or
proceeding arising out of or relating to the matters or transactions which are
the subject of or contemplated by this Agreement or any instrument or agreement
referred to herein (including, without limitation, (i) the execution, delivery
and performance of this Agreement, the Securityholders Agreement, the
Certificate of Designations and the Securities and (ii) any use made or proposed
to be made by the Issuer of the proceeds from the sale of the Securities) and
will reimburse any Indemnified Person for all reasonable expenses (including,
without limitation, reasonable counsel and expert fees) as they are incurred by
any such Indemnified Person in connection with any such misrepresentation or
breach of representation, warranty or covenant or investigating, preparing or
defending any such action or proceeding, whether pending or threatened, and
whether or not such Indemnified Person is a party hereto. The Issuer will not be
responsible for any Damages or expenses to the extent that a court of competent
jurisdiction shall have finally determined that such Damages or expenses
resulted primarily from such Indemnified Person's bad faith or gross negligence
or material breach of this Agreement or the Securityholders Agreement. The
agreement of the
34
29
Issuer in this Section shall be in addition to any liability the Issuer may
otherwise have.
SECTION 7.04. Survival of Provisions. The representations and
warranties, covenants and agreements contained in this Agreement shall survive
so long as any of the Common Stock remains outstanding.
SECTION 7.05. Expenses; Documentary Taxes. The Issuer shall pay all
reasonable out-of-pocket expenses of the Purchasers of up to $600,000,
including, without limitation, fees and disbursements of Shearman & Sterling, in
connection with the preparation of this Agreement, the Securities, the
Securityholders Agreement, the Note Purchase Agreement, the Certificate of
Designations, any amendments thereto and the transactions contemplated hereby
and all matters (including due diligence) related thereto. In addition, the
Issuer shall pay (x) the fees and disbursements of U.S. and foreign counsel for
the Issuer, Newco and any Existing Stockholder and (y) any and all stamp,
transfer and other similar taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement, or the issuance of
the Securities or the shares of Common Stock issuable upon the conversion of the
Securities (other than any such taxes payable in connection with the transfer of
any outstanding securities and the issuance by the Issuer of new certificates
representing such securities in the name of the transferee at the request of the
transferor).
SECTION 7.06. Successors and Assigns. The Purchasers may assign
their rights and obligations hereunder with the prior written consent of the
Issuer. The Issuer may not delegate its obligations hereunder. This Agreement
shall be binding upon the Issuer and the Purchasers and their respective
successors and assigns.
SECTION 7.07. New York Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 7.08. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts each of which shall be an original with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other hereto.
SECTION 7.09. Limitation on Issuance of Series A Stock. No Series A
Stock shall be issued except as provided for in this Agreement and the
Securityholders Agreement.
SECTION 7.10. Entire Agreement. This Agreement, the Securityholders
Agreement, the Note Purchase Agreement and the Certificate of Designations,
taken as a whole, constitute the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein,
and there are no restrictions, promises, representations, warranties,
covenants, or undertakings with respect to the subject matter
35
30
hereof, other than those expressly set forth or referred to herein or therein.
This Agreement and the documents referred to in the preceding sentence
supersede all prior agreements and understandings between the parties hereto
with respect to the subject matter hereof.
SECTION 7.11. Remedies. The parties hereby acknowledge that money
damages would not be adequate compensation for the damages that a party would
suffer by reason of a failure of any other party to perform any of the
obligations under this Agreement. Therefore, each party hereto agrees that
specific performance is the only appropriate remedy under this Agreement and
hereby waives the claim or defense that any other party has an adequate remedy
at law. No party shall be liable for consequential damages as a result of any
breach hereof.
SECTION 7.12. Jurisdiction. Each of the parties hereto agrees that
any legal suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated herein may be instituted in any U.S.
federal or New York State court in the Borough of Manhattan in the City of New
York (each a "New York court") or in the court of the corporate domicile of each
of the parties hereto, with respect to actions brought against that party as a
defendant, and each of the parties hereto hereby waives any objection which it
may now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the jurisdiction of such courts and to the courts of its
corporate domicile, with respect to actions brought against it as defendant, in
any suit, action or proceeding.
The Issuer (i) irrevocably appoints CT Corporation (together with
any successor, the "Process Agent"), as its authorized agent in the Borough of
Manhattan in the City of New York upon which process may be served in any such
suit, action or proceeding described in the first sentence of this Section 7.12,
acknowledges that the Process Agent has accepted such designation and agrees
that service of process upon the Process Agent, and written notice of such
service to the Issuer, by the person serving the same to the address provided in
Section 7.01, shall be deemed in every respect effective service of process upon
the Issuer in any such suit, action or proceeding and (ii) agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments as may be necessary to continue such designation and appointment
of the Process Agent in full force and effect so long as any of the Series A
Stock shall be outstanding.
SECTION 7.13. Judgment Currency. If for purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder into any
currency other than United States dollars, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be the rate at which in accordance with normal banking procedures Princes
Gate or MSGEM could purchase United States dollars with such other currency in
the City of New York on the business day preceding that on which final judgment
is given. The obligation of Newco in respect of any sum due from it to any other
party hereunder (the "Recipient Party") shall, notwithstanding any judgment in a
currency other than
36
31
United States dollars, not be discharged until the first business day, following
receipt by such Recipient Party of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Recipient Party may in
accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Recipient Party hereunder, Newco agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Recipient Party against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Recipient Party hereunder, such
Recipient Party agrees to pay to Newco an aggregate amount equal to the excess
of the dollars so purchased and the sum originally due to such Recipient Party
hereunder.
37
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed, as of the day and year first above written.
IMPSAT CORPORATION
By:
---------------------------------------
Name:
Title:
JONESBORO FINANCIAL INC.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
PURCHASERS: PRINCES GATE INVESTORS II, L.P.
By: PG Investors II, Inc., General Partner
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By:
---------------------------------------
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice-President
38
XXXXXX XXXXXXX
GLOBAL EMERGING MARKETS PRIVATE INVESTMENT FUND, L.P.
By: Xxxxxx Xxxxxxx Global Emerging
Markets, Inc., General Partner
By:
---------------------------------------
Name:
Title:
XXXXXX XXXXXXX GLOBAL
EMERGING MARKETS PRIVATE
INVESTORS, L.P.
By: Xxxxxx Xxxxxxx Global Emerging
Markets Inc., General Partner
By:
---------------------------------------
Name:
Title:
PGI INVESTMENTS LIMITED
By: PG Investors II, Inc., as Attorney in Fact
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By:
---------------------------------------
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice-President
39
GREGOR VON OPEL
By: PG Investors II, Inc., as Attorney in Fact
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By:
---------------------------------------
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice-President
INVESTOR INVESTMENTS AB
By: PG Investors II, Inc., as Attorney in Fact
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By:
---------------------------------------
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice-President
40
SCHEDULE 3.02
Consents and Approvals
41
SCHEDULE 3.04(a)
Authorized and Outstanding Capital Stock
42
SCHEDULE 3.04(b)
Voting Agreements
43
SCHEDULE 3.05
Subsidiaries
44
SCHEDULE 3.06
Related Party Transactions
45
SCHEDULE 3.08(a)
Litigation and Proceedings
46
SCHEDULE 3.19
Material Changes
47
SCHEDULE 3.20
Liens
48
SCHEDULE 3.21
Employees; Employee Compensation
49
SCHEDULE 3.24
Material Contracts
50
EXHIBIT A
Form of Securityholders Agreement
00
XXXXXXX X
Xxxx xx Xxxxxxx xx Xxxxxx Xxxxxx Counsel to the Issuer and Newco
1. The Issuer is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as conducted to date and as currently proposed to be
conducted.
2. The execution, delivery and performance by the Issuer of each of the
Securities Purchase Agreement, the Certificate of Designations, the
Non-Competition Agreement and the Securityholders Agreement, the
issuance, delivery and performance by the Issuer of the Securities
and the amendment to the Charter effected by the filing of the
Certificate of Designations are within the Issuer's corporate powers,
have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body,
agency or official (other than the filing of the Certificate of
Designations with the Secretary of State of Delaware and as may be
required under federal or state securities laws in connection with
the registration obligations of the Issuer contained in the
Securityholders Agreement) and do not (i) contravene or constitute a
default under any provision of applicable law or regulation of
general application in the United States of America, the State of New
York or the State of Delaware or any judgment, injunction, order or
decree of any United States Federal court located in New York, New
York or Delaware or any state court located in New York, New York or
any Court of Chancery of Delaware, or any agreement listed on the
schedules attached to the Securities Purchase Agreement and that is
governed by U.S. law, (ii) contravene or constitute a default under
the Charter or Bylaws or the charter or bylaws of IMPSAT U.S.A., Inc.
or (iii) result in the creation or imposition of any Lien on any
asset of the Issuer.
3. The execution, delivery and performance by Newco of the Securities
Purchase Agreement requires no action by or in respect of, or filing
with, any governmental body, agency or official and does not (i)
contravene or constitute a default under any provision of applicable
law or regulation of general application in the United States of
America, the State of New York or the State of Delaware, or any
judgment, injunction, order or decree of any United States Federal
court located in New York, New York or Delaware or any state court
located in New York, New York or any Court of Chancery of Delaware,
or any agreement or other instrument binding upon or applicable to
Newco and that is governed by U.S. law or (ii) result in the creation
or imposition of any Lien on any asset of Newco.
B-1
52
4. Each of the Securities Purchase Agreement, the Non-Competition
Agreement and the Securityholders Agreement has been duly authorized,
executed and delivered by the Issuer and each of the Securities
Purchase Agreement and the Securityholders Agreement constitutes a
valid and binding agreement of the Issuer, enforceable against the
Issuer in accordance with its terms, and each of the Securities, when
issued and delivered by the Issuer in accordance with the Securities
Purchase Agreement, shall constitute a valid and binding obligation
of the Issuer, enforceable in accordance with its terms.
5. Assuming due authorization, execution and delivery thereof by Newco,
the Securities Purchase Agreement constitutes a valid and binding
agreement of Newco, enforceable against Newco in accordance with its
terms.
6. Assuming due authorization, execution and delivery thereof by each of
Nevasa Holdings Ltd. ("Nevasa"), Corporacion IMPSA S.A. ("CORIM"),
each other Existing Stockholder, Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx
Xxxxxxx, Xxx. Xxxxxxx Xxxxxxxxxx xx Xxxx, Xxxxxxxxx Limited
("Xxxxxxxxx") and Rotling International Corporation ("Rotling") of
the letter agreement dated the date hereof and addressed to the
Purchasers (the "Letter Agreement"), the Letter Agreement constitutes
a valid and binding agreement of each of Nevasa, CORIM, each other
Existing Stockholder, Xxxxxxxxx and Rotling, enforceable against each
of them in accordance with its terms.
8. All of the issued and outstanding shares of capital stock of the
Issuer (including the Securities) have been validly issued, are fully
paid and nonassessable; the holders thereof are not entitled to any
preemptive or other similar rights. All shares of Common Stock to be
issued upon conversion of the Securities will be duly authorized and
validly issued, fully paid and nonassessable, free of any Liens or
encumbrances and will not be subject to any preemptive or other
similar rights.
9. Newco has good and marketable title to the Securities to be sold by
Newco pursuant to the Securities Purchase Agreement, free and clear
of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; and upon delivery of such Securities and
payment of the purchase price therefor as contemplated in the
Securities Purchase Agreement, the Purchasers will receive good and
marketable title to the Securities purchased by them from Newco, free
and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
10. To the best of such counsel's knowledge and except as specified in
the Securities Purchase Agreement, there is no action, suit or
proceeding pending or threatened
B-2
53
against or affecting the Issuer or Newco or any of their respective
assets before any United States Federal or state court located in New
York, New York or arbitrator or any governmental body, agency or
official in which there is a possibility of an adverse decision that
could (individually or in the aggregate) result in a Material Adverse
Effect or result in any material change in the current equity
ownership of the Issuer or Newco, or which in any manner draws into
question the validity or enforceability of any portion of the
Securities Purchase Agreement, the Securityholders Agreement, the
Certificate of Designations, the Charter, the Securities or any of
the transactions contemplated thereby.
11. The certificates representing the Securities are in due and proper
form and have been duly and validly executed by the officers of the
Issuer named thereon. The Securities will be entitled to the benefits
provided for under the Certificate of Designations.
12. Assuming the accuracy of the representations set forth in the
Securities Purchase Agreement, (i) the offer, transfer and issuance
of the Securities to Newco and the initial resale of such Securities
to the Purchasers as contemplated by the Securities Purchase
Agreement and (ii) the issuance of the Common Stock to the holders
thereof upon conversion of the Securities in accordance with the
terms of the Securities are, and would be, exempt from the
registration requirements of the Securities Act.
13. Neither the Issuer nor Newco is, and after giving effect to the
issuance and sale, in the case of the Issuer, and the initial resale,
in the case of Newco, of the Securities, will not be, required to
register as an "investment company" under the Investment Company Act
of 1940, as amended.
B-3
00
XXXXXXX X
Xxxx xx Xxxxxxx xx Xxxxxx Xxxxxx Regulatory Counsel
to the Issuer and IMPSAT U.S.A., Inc.
1. Each of the Issuer and IMPSAT U.S.A., Inc. (i) possesses all
licenses, certificates, authorizations, approvals and permits issued
by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct its business, excepting any
certificate, authorization, approval or permit, the failure to
possess which could not reasonably be expected to result in a
Material Adverse Change and (ii) has not received any notice of
proceedings relating to the revocation or modification of any such
license, certificate, authorization, approval or permit, nor is
either the Issuer or IMPSAT U.S.A., Inc. in violation or
contravention of, or in default under, any such license,
authorization, approval or permit or any decree, order or judgment
applicable to the Issuer or IMPSAT U.S.A., Inc., the effect of which,
singly or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect.
C-1
55
EXHIBIT D
Form of Opinion of British Virgin Islands Counsel to Newco
1. Each of Newco, Xxxxxxxxx Limited ("Xxxxxxxxx") and Rotling
International Corporation ("Rotling") is a corporation duly
incorporated, validly existing and in good standing under the laws of
the British Virgin Islands.
2. The execution, delivery and performance (x) by Newco of the
Securities Purchase Agreement, (y) by each of Xxxxxxxxx and Rotling
of the Securityholders Agreement, the letter agreement dated the date
hereof and addressed to the Purchasers (the "Letter Agreement") and
the Non-Competition Agreement and (z) the consummation of the
transactions contemplated by the Securities Purchase Agreement are
within each of Newco's, Xxxxxxxxx'x and Rotling powers, have been
duly authorized on their respective parts by all requisite corporate
action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not (i) violate any of
Newco's, Xxxxxxxxx'x or Rotling articles of incorporation or other
constating documents, or (ii) violate any applicable law, rule,
regulation, judgment, injunction, order or decree, which violation
would (a) affect the validity of the Securities Purchase Agreement
or, in the case of Xxxxxxxxx or Rotling, the Securityholders
Agreement, the Non-Competition Agreement or the Letter Agreement or
(b) individually or in the aggregate impair the ability of Newco or
Xxxxxxxxx and Rotling to perform in any material respect their
respective obligations under the Securities Purchase Agreement (with
respect to Newco) and the Securityholders Agreement, the
Non-Competition Agreement and the Letter Agreement (with respect to
Xxxxxxxxx and Rotling), respectively.
3. The Securities Purchase Agreement has been duly authorized, executed
and delivered by Newco.
4. Each of the Securityholders Agreement, the Non-Competition Agreement
and the Letter Agreement has been duly authorized, executed and
delivered by each of Xxxxxxxxx and Rotling.
5. Newco has good and marketable title to the Securities to be sold by
Newco pursuant to the Securities Purchase Agreement, free and clear
of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; and upon delivery of such Securities and
payment of the purchase price therefor as contemplated in the
Securities Purchase Agreement, the Purchasers will receive good and
marketable title to the Securities
D-1
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purchased by them from Newco, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
6. The provisions in the Securities Purchase Agreement, the
Securityholders Agreement and the Letter Agreement as to the
submission of Newco (with respect to the Securities Purchase
Agreement) and Xxxxxxxxx and Rotling (with respect to the
Securityholders Agreement and the Letter Agreement) (x) to the
jurisdiction of any federal or state court in the State of New York
in any action under the Securities Purchase Agreement or
Securityholders Agreement and the Letter Agreement, respectively, and
(y) to the jurisdiction of any federal or state court in Buenos Aires
in any action under the Non-Competition Agreement are valid, binding
and enforceable under the laws of the British Virgin Islands, and
service of process effected personally on the Process Agent under the
Securities Purchase Agreement, the Securityholders Agreement, the
Non-Competition Agreement and the Letter Agreement will be effective
to confer jurisdiction with respect to Newco (with respect to the
Securities Purchase Agreement) and Xxxxxxxxx and Rotling (with
respect to the Securityholders Agreement, the Non-Competition
Agreement and the Letter Agreement); any judgment obtained against
Newco under the Securities Purchase Agreement or Xxxxxxxxx or Rotling
under the Securityholders Agreement, the Non-Competition Agreement or
the Letter Agreement in any such court would be enforceable against
Newco, Xxxxxxxxx and Rotling in the courts of the British Virgin
Islands without further review of the merits.
7. Each of the Securities Purchase Agreement, the Non-Competition
Agreement, the Securityholders Agreement and the Letter Agreement is
in proper legal form under the laws of the British Virgin Islands for
the enforcement thereof in the British Virgin Islands.
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EXHIBIT E
Form of Opinion of Irish Counsel to Nevasa Holdings Ltd.
1. Nevasa Holdings Ltd. ("Nevasa") is a corporation duly incorporated,
validly existing and in good standing under the laws of the Ireland.
2. The execution, delivery and performance by Nevasa of each of the
letter agreement addressed to the Purchasers and dated the date
hereof (the "Letter Agreement"), the Non-Competition Agreement and
the Securityholders Agreement are within Nevasa's powers, have been
duly authorized on its part by all requisite corporate action,
require no action by or in respect of, or filing with, any
governmental body, agency or official and do not (i) violate Nevasa's
articles of incorporation or other constating documents, or (ii)
violate any applicable law, rule, regulation, judgment, injunction,
order or decree, which violation would (a) affect the validity of
either of the Letter Agreement, the Non-Competition Agreement or the
Securityholders Agreement or (b) individually or in the aggregate
impair the ability of Nevasa to perform in any material respect the
obligations which it has under the Letter Agreement, the
Non-Competition Agreement or the Securityholders Agreement.
3. Each of the Letter Agreement, the Non-Competition Agreement and the
Securityholders Agreement has been duly authorized, executed and
delivered by Nevasa.
4. The provisions in each of the Letter Agreement, the Non-Competition
Agreement and the Securityholders Agreement as to the submission of
Nevasa (x) to the jurisdiction of any federal or state court in the
State of New York in any action under the Letter Agreement, the
Non-Competition Agreement or the Securityholders Agreement and (y) to
the jurisdiction of any federal or state court in Buenos Aires in any
action under the Non-Competition Agreement are valid, binding and
enforceable under the laws of Ireland, and service of process
effected personally on the Process Agent under the Letter Agreement,
the Non-Competition Agreement or the Securityholders Agreement will
be effective to confer jurisdiction with respect to Nevasa; any
judgment obtained against Nevasa under the Letter Agreement, the
Non-Competition Agreement or the Securityholders Agreement in any
such court would be enforceable against Nevasa in the courts of
Ireland without further review of the merits.
5. Each of the Letter Agreement, the Non-Competition Agreement and the
Securityholders Agreement is in proper legal form under the laws of
Ireland for the
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enforcement thereof in Ireland.
X-0
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XXXXXXX X
Form of Opinion of Argentine Counsel to the Issuer
1. IMPSAT S.A. (the "Company") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all
material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and as
currently proposed to be conducted and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company.
2. The Company has all necessary certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all governmental authorities,
courts and tribunals necessary to own, lease, license and use its
properties and assets and to conduct its business as now conducted
and as currently proposed to be conducted, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in
violation or contravention of, or in default under, any such
certificate, order, permit, license, authorization, consent or
approval or any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company the effect of which, singly or in the
aggregate, could reasonably be expected to have a material adverse
effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operation of the Company.
3. There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders except
for such restrictions as would not have a material adverse effect on
the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as
a whole.
4. The execution, delivery and performance by IMPSAT Corporation of each
of the Securities Purchase Agreement, the Non-Competition Agreement,
the Certificate of Designations and the Securityholders Agreement,
the issuance, delivery and performance by IMPSAT Corporation of the
Securities, and the consummation of the Transactions require no
action by or in respect of, or filing with, any governmental
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body, agency or official and do not (i) contravene or constitute a
default under any provision of applicable law or regulation,
judgment, injunction, order, decree, any agreement or other
instrument binding upon or applicable to the Company, (ii) contravene
or constitute a default under the charter or bylaws of any of the
Company, (iii) require any consent, approval or other action by any
Person or (iv) result in the creation or imposition of any Lien on
any asset of any of the Company.
5. Each of the Letter Agreement, the Non-Competition Agreement and the
Securityholders Agreement is in proper legal form under the laws of
Argentina for the enforcement thereof in Argentina.
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EXHIBIT G
Form of Opinion of General Counsel to Corporacion IMPSA S.A.
1. Corporacion IMPSA S.A. ("CORIM") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, has all corporate powers and all
material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and as
currently proposed to be conducted and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on CORIM.
2. The execution, delivery and performance (x) by each of CORIM, each
other Existing Stockholder (other than Nevasa Holdings Ltd.,
Xxxxxxxxx Limited and Rotling International Corporation), Xxx. Xxxxxx
Xxxxxx Xxxxxxxxxx xx Xxxxxxx and Xxx. Xxxxxxx Xxxxxxxxxx xx Xxxx of
the letter agreement dated the date hereof and addressed to the
Purchasers (the "Letter Agreement") (y) by each of Xx. Xxxxxxx
Xxxxxxxxxx, Mr. Roberto Vivo Chaneton, Xx. Xxxxxxx Xxxxxxxxx and
CORIM of the Non-Competition Agreement and (z) by CORIM of the
Securityholders Agreement, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not (i)
contravene or constitute a default under any provision of applicable
law or regulation, judgment, injunction, order, decree, any agreement
or other instrument binding upon or applicable to any of CORIM, Xx.
Xxxxxxx Xxxxxxxxxx, Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx or Xxx.
Xxxxxxx Xxxxxxxxxx xx Xxxx, (ii) contravene or constitute a default
under the charter or bylaws or any of CORIM, (iii) require any
consent, approval or other action by any Person or (iv) result in the
creation or imposition of any Lien on any asset of any of CORIM, Xx.
Xxxxxxx Xxxxxxxxxx, Mr. Roberto Vivo Chaneton, Xx. Xxxxxxx Xxxxxxxxx,
Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx or Xxx. Xxxxxxx Xxxxxxxxxx
xx Xxxx.
3. The Letter Agreement has been duly authorized (in the case of CORIM),
executed and delivered by each of CORIM, Xx. Xxxxxxx Xxxxxxxxxx, Xxx.
Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx and Xxx. Xxxxxxx Xxxxxxxxxx xx
Xxxx.
4. The Non-Competition Agreement has been duly authorized (in the case
of CORIM), executed and delivered by each of CORIM, Xx. Xxxxxxx
Xxxxxxxxxx, Mr. Roberto Vivo Chaneton and Xx. Xxxxxxx Xxxxxxxxx.
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62
5. The Securityholders Agreement has been duly authorized, executed and
delivered by CORIM.
6. The provisions in the Letter Agreement, the Non-Competition Agreement
and the Securityholders Agreement as to the submission of each of (x)
CORIM, Xx. Xxxxxxx Xxxxxxxxxx, Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx
Xxxxxxx and Xxx. Xxxxxxx Xxxxxxxxxx xx Xxxx to the jurisdiction of
any federal or state court in the state of New York, in any action
under the Letter Agreement, and to the jurisdiction of any federal or
Court of Chancery of Delaware, in any action under the
Securityholders Agreement, and (y) CORIM, Xx. Xxxxxxx Xxxxxxxxxx, Mr.
Roberto Vivo Chaneton and Xx. Xxxxxxx Xxxxxxxxx to the jurisdiction
of any federal or state court in Buenos Aires or the state of New
York are valid, binding and enforceable under the laws of Argentina,
and service of process effected personally on the Process Agent under
each of the Letter Agreement, the Non-Competition Agreement and the
Securityholders Agreement will be effective to confer jurisdiction
with respect to CORIM (in respect of the Letter Agreement, the
Non-Competition Agreement and the Securityholders Agreement), each of
Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx and Xxx. Xxxxxxx Xxxxxxxxxx
xx Xxxx (in respect of the Letter Agreement), Xx. Xxxxxxx Xxxxxxxxxx
(in respect of the Letter Agreement and the Non-Competition
Agreement) and each of Mr. Roberto Vivo Chaneton and Xx. Xxxxxxx
Xxxxxxxxx (in respect of the Non-Competition Agreement); any judgment
obtained against any of CORIM, Xx. Xxxxxxx Xxxxxxxxxx, Xxx. Xxxxxx
Xxxxxx Xxxxxxxxxx xx Xxxxxxx or Xxx. Xxxxxxx Xxxxxxxxxx xx Xxxx under
the Letter Agreement, against CORIM under the Securityholders
Agreement or against any of CORIM, Mr. Roberto Vivo Chaneton, Xx.
Xxxxxxx Xxxxxxxxx or Xx. Xxxxxxx Xxxxxxxxxx under the Non-Competition
Agreement in any such court would be enforceable against each of
CORIM, Xx. Xxxxxxx Xxxxxxxxxx, Mr. Roberto Vivo Chaneton, Xx. Xxxxxxx
Xxxxxxxxx, Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx and Xxx. Xxxxxxx
Xxxxxxxxxx xx Xxxx, as applicable, in the courts of Argentina without
further review of the merits.
7. Each of the Letter Agreement, the Non-Competition Agreement and the
Securityholders Agreement is in proper legal form under the laws of
Argentina for the enforcement thereof in Argentina.
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EXHIBIT H
Form of Opinion of Colombian Counsel to the Issuer
1. IMPSAT S.A. (the "Company") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all
material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and as
currently proposed to be conducted and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company.
2. The Company has all necessary certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all governmental authorities,
courts and tribunals necessary to own, lease, license and use its
properties and assets and to conduct its business as now conducted
and as currently proposed to be conducted, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in
violation or contravention of, or in default under, any such
certificate, order, permit, license, authorization, consent or
approval or any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company the effect of which, singly or in the
aggregate, could reasonably be expected to have a material adverse
effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operation of the Company.
3. There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders except
for such restrictions as would not have a material adverse effect on
the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as
a whole.
4. The execution, delivery and performance by IMPSAT Corporation of each
of the Securities Purchase Agreement, the Non-Competition Agreement,
the Certificate of Designations and the Securityholders Agreement,
the issuance, delivery and performance by IMPSAT Corporation of the
Securities, and the consummation of the Transactions require no
action by or in respect of, or filing with, any governmental
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64
body, agency or official and do not (i) contravene or constitute a
default under any provision of applicable law or regulation,
judgment, injunction, order, decree, any agreement or other
instrument binding upon or applicable to the Company, (ii) contravene
or constitute a default under the charter or bylaws of the Company,
(iii) require any consent, approval or other action by any Person or
(iv) result in the creation or imposition of any Lien on any asset of
the Company.
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EXHIBIT I
Form of Opinion of Ecuadorian Counsel to the Issuer
1. IMPSATEL del Ecuador S.A. (the "Company") has been duly incorporated,
is validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, has all corporate powers and
all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and as
currently proposed to be conducted and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company.
2. The Company has all necessary certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all governmental authorities,
courts and tribunals necessary to own, lease, license and use its
properties and assets and to conduct its business as now conducted
and as currently proposed to be conducted, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in
violation or contravention of, or in default under, any such
certificate, order, permit, license, authorization, consent or
approval or any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company the effect of which, singly or in the
aggregate, could reasonably be expected to have a material adverse
effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operation of the Company.
3. There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders except
for such restrictions as would not have a material adverse effect on
the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as
a whole.
4. The execution, delivery and performance by IMPSAT Corporation of each
of the Securities Purchase Agreement, the Non-Competition Agreement,
the Certificate of Designations and the Securityholders Agreement,
the issuance, delivery and performance by IMPSAT Corporation of the
Securities, and the consummation of the Transactions require no
action by or in respect of, or filing with, any governmental
I-1
66
body, agency or official and do not (i) contravene or constitute a
default under any provision of applicable law or regulation,
judgment, injunction, order, decree, any agreement or other
instrument binding upon or applicable to the Company, (ii) contravene
or constitute a default under the charter or bylaws of the Company,
(iii) require any consent, approval or other action by any Person or
(iv) result in the creation or imposition of any Lien on any asset of
the Company.
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EXHIBIT J
Form of Opinion of Mexican Counsel to the Issuer
1. IMPSAT, S.A. de C.V. (the "Company") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, has all corporate powers and all
material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and as
currently proposed to be conducted and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company.
2. The Company has all necessary certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all governmental authorities,
courts and tribunals necessary to own, lease, license and use its
properties and assets and to conduct its business as now conducted
and as currently proposed to be conducted, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in
violation or contravention of, or in default under, any such
certificate, order, permit, license, authorization, consent or
approval or any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company the effect of which, singly or in the
aggregate, could reasonably be expected to have a material adverse
effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operation of the Company.
3. There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders except
for such restrictions as would not have a material adverse effect on
the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as
a whole.
4. The execution, delivery and performance by IMPSAT Corporation of each
of the Securities Purchase Agreement, the Non-Competition Agreement,
the Certificate of Designations and the Securityholders Agreement,
the issuance, delivery and performance by IMPSAT Corporation of the
Securities, and the consummation of the Transactions require no
action by or in respect of, or filing with, any governmental
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body, agency or official and do not (i) contravene or constitute a
default under any provision of applicable law or regulation,
judgment, injunction, order, decree, any agreement or other
instrument binding upon or applicable to the Company, (ii) contravene
or constitute a default under the charter or bylaws of the Company,
(iii) require any consent, approval or other action by any Person or
(iv) result in the creation or imposition of any Lien on any asset of
the Company.
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EXHIBIT K
Form of Opinion of Venezuelan Counsel to the Issuer
1. Telecomunicaciones IMPSAT S.A. (the "Company") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted and as currently proposed to be conducted
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company.
2. The Company has all necessary certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all governmental authorities,
courts and tribunals necessary to own, lease, license and use its
properties and assets and to conduct its business as now conducted
and as currently proposed to be conducted, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in
violation or contravention of, or in default under, any such
certificate, order, permit, license, authorization, consent or
approval or any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company the effect of which, singly or in the
aggregate, could reasonably be expected to have a material adverse
effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operation of the Company.
3. There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders except
for such restrictions as would not have a material adverse effect on
the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as
a whole.
4. The execution, delivery and performance by IMPSAT Corporation of each
of the Securities Purchase Agreement, the Non-Competition Agreement,
the Certificate of Designations and the Securityholders Agreement,
the issuance, delivery and performance by IMPSAT Corporation of the
Securities, and the consummation of the Transactions require no
action by or in respect of, or filing with, any governmental
K-1
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body, agency or official and do not (i) contravene or constitute a
default under any provision of applicable law or regulation,
judgment, injunction, order, decree, any agreement or other
instrument binding upon or applicable to the Company, (ii) contravene
or constitute a default under the charter or bylaws of the Company,
(iii) require any consent, approval or other action by any Person or
(iv) result in the creation or imposition of any Lien on any asset of
the Company.
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EXHIBIT L
Form of Opinion of Brazilian Counsel to the Issuer
1. IMPSAT Comunicacoes Ltda. (the "Company") has been duly incorporated,
is validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, has all corporate powers and
all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and as
currently proposed to be conducted and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company.
2. The Company has all necessary certificates, orders, permits,
licenses, authorizations, consents and approvals of and from, and has
made all declarations and filings with, all governmental authorities,
courts and tribunals necessary to own, lease, license and use its
properties and assets and to conduct its business as now conducted
and as currently proposed to be conducted, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificates, orders, permits, licenses,
authorizations, consents or approvals, nor is the Company in
violation or contravention of, or in default under, any such
certificate, order, permit, license, authorization, consent or
approval or any federal, state, local, foreign supranational,
national or regional law, regulation, rule, decree, order or judgment
applicable to the Company the effect of which, singly or in the
aggregate, could reasonably be expected to have a material adverse
effect on the prospects, condition, financial or otherwise, or in the
earnings, business or operation of the Company.
3. There are no restrictions (legal, contractual or otherwise) on the
ability of the Company to declare and pay any dividends or make any
payment or transfer of property or assets to its stockholders except
for such restrictions as would not have a material adverse effect on
the prospects, condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as
a whole.
4. The execution, delivery and performance by IMPSAT Corporation of each
of the Securities Purchase Agreement, the Non-Competition Agreement,
the Certificate of Designations and the Securityholders Agreement,
the issuance, delivery and performance by IMPSAT Corporation of the
Securities, and the consummation of the Transactions require no
action by or in respect of, or filing with, any governmental
L-1
72
body, agency or official and do not (i) contravene or constitute a
default under any provision of applicable law or regulation,
judgment, injunction, order, decree, any agreement or other
instrument binding upon or applicable to the Company, (ii) contravene
or constitute a default under the charter or bylaws of the Company,
(iii) require any consent, approval or other action by any Person or
(iv) result in the creation or imposition of any Lien on any asset of
the Company.
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EXHIBIT M
Charter
M-1
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EXHIBIT N
Bylaws
N-1
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EXHIBIT O
Certificate of Designations
O-1
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EXHIBIT P
FORM OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT
AGREEMENT, dated as of March 19, 1998 (this "Agreement"), by and
between IMPSAT Corporation, a Delaware corporation ("IMPSAT"), and [ ]
(the "Stockholder").
W I T N E S S E T H:
WHEREAS, IMPSAT, as issuer, Jonesboro Financial Inc. ("Newco"),
Princes Gate Investors II, L.P., Xxxxxx Xxxxxxx Global Emerging Markets Private
Investment Fund, L.P. ("MSGEM"), Xxxxxx Xxxxxxx Global Emerging Markets Private
Investors, L.P. ("Private Investors") and certain other parties signatory
thereto (the "Purchasers"), will enter into a Securities Purchase Agreement (the
"Securities Purchase Agreement") pursuant to which Newco will acquire
Convertible Preferred Stock, Series A of IMPSAT (the "Securities") in exchange
for the contribution to IMPSAT of common stock of IMPSAT and common stock of
IMPSAT S.A.; and
WHEREAS, immediately following the execution of the Securities
Purchase Agreement Newco (i) shall transfer Securities having an aggregate
liquidation preference of $25 million to MSGEM and Private Investors for an
aggregate purchase price of $25 million, (ii) shall transfer Securities having
an aggregate liquidation preference of $100 million to Princes Gate, PGI
Investments Limited, Gregor von Opel and Investor Investments AB in satisfaction
of its obligations to such Note Purchasers (as defined in the Note Purchase
Agreement among Newco, Princes Gate and the other parties signatory thereto
dated March 19, 1998, the "Note Purchase Agreement") and (iii) shall repay
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. ("MSDWD") the amount of $25 million
in satisfaction of its obligations to MSDWD under its Note (as defined in the
Note Purchase Agreement) after Newco receives the purchase price described in
clause (i); and
WHEREAS, the Stockholder believes that it is in its best interests
that the transaction contemplated by the Securities Purchase Agreement be
consummated; and
WHEREAS, as a condition to entering into the Securities Purchase
Agreement, IMPSAT must execute this Agreement with the Stockholder;
NOW, THEREFORE, in consideration of the covenants and agreements
herein
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contained, the parties hereto agree as follows:
1. Non-Competition and Non-Solicitation. The Stockholder
covenants that, during the Restricted Period (as defined below), the Stockholder
shall not, directly or indirectly, individually or through any natural person,
trust, estate, partnership, corporation or other entity:
(a) manage, operate, own an interest in (other than up to 5% of
an outstanding class of securities that are publicly traded and that are
purchased for investment purposes only), join, control, lend money to or
render financial or other assistance to, participate in or be connected
with (as an officer, employee, partner, stockholder (except as described
above), principal, agent, consultant or otherwise) (other than on behalf
of IMPSAT or its affiliates), any partnership, firm, corporation or any
other business organization, person or other entity that directly or
indirectly competes with IMPSAT or in any similar, related or ancillary
business in which IMPSAT is engaged directly or indirectly anywhere in
North America, Central America or South America; provided, however, that
the management, operation and ownership of any partnership, firm,
corporation or other business organization that is engaged in the business
of Internet web page publishing (including the provision of Internet
advertising and marketing services) and/or Internet site design and
construction and maintenance of content on web sites will be deemed not to
be directly or indirectly competitive with IMPSAT or any similar, related
or ancillary business in which IMPSAT is engaged directly or indirectly
anywhere in North America, Central America or South America];
(b) solicit business from, entice business clients away from,
accept orders involving or otherwise interfere with the relationship of
IMPSAT with any client or prospective client (including any person or
entity who, at any time during the twelve-month period prior to the date
of this Agreement, was a client of IMPSAT); or
(c) solicit the services of any individual who is employed by
IMPSAT (or who was employed by IMPSAT at any time during the most recent
twelve-month period) or who is retained by IMPSAT as an independent
contractor or consultant (or who was retained by IMPSAT in such capacity
at any time during the twelve-month period prior to the date of this
Agreement), or take any action that results, or might reasonably result,
in any individual performing services for IMPSAT to cease performing such
services except that any such individual may serve on the Board of
Directors of, and any such individual (other than Xx. Xxxxxxx Xxxxxxxxx,
Mr. Roberto Vivo Chaneton, Xx. Xxxxxx Xxxxxx and Xx. Xxxxxxxxx Xxxxx) may
be employed by or perform services for, any entity controlled by
Corporacion IMPSA S.A.
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For purposes of this Section 1, except as otherwise provided herein,
the parties hereto expressly agree that the Stockholder shall be conclusively
presumed to be violating the restrictions contained herein if any of the
Stockholder's spouse, [{for Xxxxxxx Xxxxxxxxxx only siblings}] or children
engage in activities that would be prohibited by this Section 1 if conducted
directly by the Stockholder; provided, however, that [{for Xxxxx Xxxxxxx
Pescarmona and Xxxxx Xxxxxxxxxx only} commencing on the date two years after the
termination of such person's service as an employee, officer or director of
IMPSAT,] any child of the Stockholder may be employed by or may, with such
person's own resources and without any direct or indirect assistance, financial
or otherwise, by the Stockholder, manage, operate, own an interest in or join or
control any such partnership, firm, corporation or such other business
organization, person or other entity.
For purposes of this Section 1, "Restricted Period" means the period
beginning on the date of this Agreement and continuing until the earlier of (i)
the tenth anniversary thereof, (ii) a Change of Control (as defined in the
Certificate of Designations relating to the Securities) occurs, (iii) the
Purchasers and their affiliates collectively own less than 5% of the common
stock of IMPSAT (determined on a fully-diluted, as converted basis) [insert the
following for Mr. Roberto Vivo Chaneton and Xx. Xxxxxxx Xxxxxxxxx], (iv) with
respect to [Xx. Xxxxxxx Xxxxxxxxx and Rotling International Corporation] [Mr.
Roberto Vivo Chaneton and Xxxxxxxxx Limited], three years after such person is
no longer employed by IMPSAT if such person's employment was terminated by
IMPSAT for Cause (as defined below), (v) upon termination of such person's
employment by IMPSAT if such termination was made by IMPSAT without Cause and
(vi) if such person voluntarily terminates his employment by IMPSAT and IMPSAT
would not have been able to terminate such person's employment for Cause, three
years after such termination. "Cause" means (i) an act of dishonesty made by a
person in connection with such person's responsibilities as an employee and
intended to result in such person's substantial personal enrichment, (ii) a
person's conviction of a felony, (iii) a willful act by a person which
constitutes gross misconduct and which results in material injury to IMPSAT, or
(iv) a person's continued substantial violations of his employment duties which
are demonstrably willful and deliberate on such person's part after such person
has received one or more written demands for performance from IMPSAT which
specifically sets forth the factual basis for IMPSAT's claim that such person
has not substantially performed his duties, and such person has had a reasonable
time period in which to cure such defaults to the reasonable satisfaction of the
independent members of the Board of Directors of IMPSAT. The activities
described in this Section 1 shall be prohibited regardless of whether undertaken
by the Stockholder in an individual or representative capacity, and regardless
of whether performed for the Stockholder's own account or for the account of any
other individual, partnership, firm, corporation or other business organization
(other than IMPSAT).
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2. Reasonable Limitations. The parties hereto acknowledge and
agree that, given the important nature of the position held by the Stockholder
with respect to IMPSAT, and its strategic affiliation with entities involved in
the telecommunications business in Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx xxx Xxxxx
Xxxxxxx, the limitations set forth in Section 1 hereof, including but not
limited to, the scope of activities prohibited, the geographic area covered and
the time limitation, are reasonable.
3. Replacement of Invalid Terms. It is the desire and intent of
the parties that the provisions of this Agreement shall be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular term
or provision of this Agreement shall be adjudicated to be invalid or
unenforceable, the invalid or unenforceable term or provision shall be deemed
replaced by a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision. Any such replacement shall apply only with respect to the operation
of this Agreement in the particular jurisdiction in which such adjudication is
made. The remaining terms and provisions hereof shall remain unimpaired.
4. Relief. (a) Without limiting the remedies available to
IMPSAT, the Stockholder acknowledges that a breach of any of the covenants
contained in Section 1 hereof may result in material irreparable injury to
IMPSAT for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, IMPSAT shall be entitled to obtain a
temporary restraining order or a preliminary or permanent injunction restraining
the Stockholder from engaging in activities prohibited by Section 1 or such
other relief as may be required to specifically enforce any of the covenants in
Section 1.
(b) Jurisdiction and Venue for Injunctive Relief. With respect to
any action brought pursuant to Section 4(a) above, the parties each irrevocably
consents and submits to the personal jurisdiction of the State and Federal
courts sitting in New York City or Buenos Aires, and agrees that any action,
suit or proceeding shall be brought in such courts to the exclusion of all other
courts, other than actions to enforce judgments or orders entered in such courts
sitting in New York City or Buenos Aires.
(c) Liquidated Damages. In the event that it is determined that
the Stockholder or other person covered by Section 1 has breached any of the
covenants set forth in Section 1 hereof during the Restricted Period, the
Stockholder shall be liable to pay IMPSAT liquidated damages in the amount of
$10 million. The parties acknowledge and agree that such liquidated damage award
is a reasonable estimate of the actual negative economic impact any such breach
would have upon IMPSAT and that such amount is fair and
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just.
5. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, including, but not limited to, any claim relating to
the validity, interpretation, enforceability or breach of this Agreement, which
is not settled by agreement between the parties, shall be settled by arbitration
in Buenos Aires, Argentina, before a panel of three arbitrators, one to be
selected by the Purchasers, one by the Stockholder and the other by the two
persons so selected, all in accordance with the rules of the International
Chamber of Commerce then in effect. In consideration of the parties' agreement
to submit to arbitration disputes with regard to this Agreement, and in
consideration of the anticipated expedition and minimization of expense of this
arbitration remedy, each party agrees that the arbitration provisions of this
Agreement shall provide it with the exclusive remedy, except for the remedy of
injunctive relief provided in Section 4(a) above, and each party expressly
waives any right it might have to seek redress in any other form except as
provided herein. Any decision or order of the majority of arbitrators shall be
binding upon the parties hereto and judgment thereon may be entered in any court
having jurisdiction. The parties hereby agree that the arbitrators shall be
empowered to enter an equitable decree mandating specific enforcement of the
terms of this Agreement.
6. Successors. The rights and obligations of IMPSAT and the
Stockholder under this Agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of IMPSAT and the Stockholder (including
estates, trusts for the benefit of the Stockholder and heirs), respectively.
7. Entire Agreement. This instrument contains the entire
agreement of the parties with respect to the matters set forth herein, and may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
8. Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute a single agreement, and all
of which shall constitute an original for all purposes.
9. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts executed and fully performed in such state.
10. Acknowledgments. (a) The Stockholder understands that the
covenants contained herein are designed to protect IMPSAT's interests and will
prohibit the Stockholder from engaging in certain competitive activities. The
Stockholder acknowledges that it has
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carefully reviewed this Agreement and has been provided the opportunity to
consult with a legal or other advisor prior to signing this Agreement.
(b) The parties hereto acknowledge that this Agreement has been
entered into in part for the benefit of the Purchasers, and this Agreement can
therefore be enforced by Princes Gate or MSGEM on behalf of IMPSAT.
11. Judgment Currency. If for purposes of obtaining judgment in
any court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be the rate at
which in accordance with normal banking procedures Xxxxxx Xxxxxxx & Co.
Incorporated could purchase United States dollars with such other currency in
the City of New York on the business day preceding that on which final judgment
is given. The obligation of the Stockholder in respect of any sum due from it to
IMPSAT shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following
receipt by IMPSAT of any sum adjudged to be so due in such other currency, on
which (and only to the extent that) IMPSAT may in accordance with normal banking
procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to
IMPSAT hereunder, the Stockholder agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify IMPSAT against such loss. If the
United States dollars so purchased are greater than the sum originally due to
IMPSAT hereunder, IMPSAT agrees to pay to the Stockholder an aggregate amount
equal to the excess of the dollars so purchased and the sum originally due to
IMPSAT hereunder.
12. Service of Process. The Stockholder (i) irrevocably appoints
CT Corporation (together with any successor, the "Process Agent"), as its
authorized agent in the Borough of Manhattan in the City of New York upon which
process may be served in any such suit, action or proceeding described in
Section 4(a), acknowledges that the Process Agent has accepted such designation
and agrees that service of process upon the Process Agent, and written notice of
such service to such person, by the person serving the same to the address
provided for IMPSAT in the Securities Purchase Agreement, shall be deemed in
every respect effective service of process upon such person in any such suit,
action or proceeding and (ii) agrees to take any and all action, including the
execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of the Process Agent in
full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day first written above.
IMPSAT CORPORATION
By:
----------------------------
Name:
Title:
[ ]
By:
----------------------------
Name:
Title:
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EXHIBIT Q
Form of Letter Agreement
March 19, 1998
Princes Gate Investors II, X.X.
Xxxxxx Xxxxxxx Global Emerging Markets
Private Investment Fund, X.X.
Xxxxxx Xxxxxxx Global Emerging Markets Private
Investors, L.P.
PGI Investments Limited
Gregor von Opel
and
Investor Investments AB
c/o Princes Gate Investors II, L.P.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Nevasa Holdings Ltd. and Corporacion IMPSA S.A.
Ladies and Gentlemen:
This letter is being provided to you pursuant to Section 6.01(bb) of
a Securities Purchase Agreement among IMPSAT Corporation, Jonesboro Financial
Inc. and you dated the date hereof (the "Securities Purchase Agreement"). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Securities Purchase Agreement.
1. Representation and Warranty. Nevasa Holdings Ltd. ("Nevasa")
and Corporacion IMPSA S.A. ("CORIM") each represents and warrants to each of you
that all of the issued and outstanding shares of Nevasa and CORIM have been
validly issued, are fully paid and nonassessable and are free of any Liens
(contingent or otherwise) and that all of the equity interests (x) in Nevasa are
owned by CORIM, Xxxxxxxxx Limited ("Xxxxxxxxx") and Rotling International
Corporation ("Rotling") and (y) in CORIM are owned by Xx. Xxxxxxx Xxxxxxxxxx,
Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx, Xxx. Xxxxxxx Xxxxxxxxxx xx Xxxxx and Q
Overseas Participations Ltd.
2. Negative Covenant. During the term of this Agreement, none of
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Nevasa, CORIM, Xxxxxxxxx or Rotling shall, and each of them shall cause any
other person or entity owning equity interests in IMPSAT Corporation (other than
(i) any such person or entity that has acquired an equity interest in IMPSAT
Corporation in an Initial Public Offering (as defined in the Securityholders
Agreement) or through the facilities of the New York Stock Exchange, the
American Stock Exchange or NASDAQ National Market, (ii) any holder of Series A
Stock or Series A Common Shares (as each such term is defined in the
Securityholders Agreement) or (iii) any person or entity that together with the
affiliates of such person or entity own less than 10% of the capital stock of
IMPSAT Corporation) or Nevasa to agree not to, create, incur, assume or suffer
to exist (in one or more transactions) any Lien or Liens (contingent or
otherwise) that in the aggregate relate to more than 25% of the equity interests
of IMPSAT Corporation or Nevasa or any other persons or entities owning equity
interests in IMPSAT Corporation. For purposes of Sections 2 and 3 of this
Agreement, in determining whether more than 25% of the equity interests of
IMPSAT Corporation are subject to a Lien, any Lien on equity interests of Nevasa
or any other person or entity owning equity interests in IMPSAT Corporation
shall be treated as a Lien on the percentage of equity interests in IMPSAT
Corporation equal to the percentage of equity interests of Nevasa or such other
person or entity that are subject to such Lien multiplied by a fraction, the
numerator of which is the percentage of the equity interests of IMPSAT
Corporation owned by Nevasa or such other person or entity and the denominator
of which is 100%.
3. Notification. If during the term of this Agreement any
persons or entities that own equity interests in (x) CORIM (or any other person
or entity that owns equity interests in Nevasa) creates, incurs, assumes or
suffers to exist any Lien or Liens (contingent or otherwise) (in one or more
transactions) that in the aggregate relate to more than 25% of the equity
interests of CORIM (or any such other person or entity), such person or entity
shall within 30 days thereafter and within 30 days after the imposition of any
subsequent Lien (contingent or otherwise) give written notice thereof to the
Purchasers or (y) IMPSAT Corporation or Nevasa (or any other person or entity
that owns equity interests in IMPSAT Corporation), creates incurs, assumes or
suffers to exist any Lien or Liens (contingent or otherwise) (in one or more
transactions) that in the aggregate relate to more than 5% of the equity
interests of IMPSAT Corporation or Nevasa, such person or entity shall within 30
days thereafter and within 30 days after the imposition of any subsequent Lien
(contingent or otherwise) give written notice thereof to the Purchasers. This
paragraph 3 shall not apply to any person or entity that together with its
affiliates own less than 10% of the capital stock of IMPSAT Corporation.
4. Notices. Any notices given to any party hereunder shall be
delivered to such party at its address specified in the Securities Purchase
Agreement. Each such notice shall be effective (i) if given by telecopy, when
such telecopy is transmitted to such party's telecopy number and the appropriate
electronic confirmation is received and a copy of such
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notice is sent by overnight mail service or (ii) if given by certified prepaid
first class mail or overnight courier, 72 hours after such communication is
deposited in the mails with first class postage prepaid or given to overnight
courier service, addressed as aforesaid.
5. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
6. Jurisdiction. Each of the undersigned agrees that any legal
suit, action or proceeding arising out of or relating to this Agreement may be
instituted in any U.S. federal or New York State court in the Borough of
Manhattan in the City of New York (each a "New York court") or in the court of
its corporate domicile, with respect to actions brought against that party as a
defendant, and each of the undersigned hereby waives any objection which it may
now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the jurisdiction of such courts and to the courts of its
corporate domicile, with respect to actions brought against it as defendant, in
any suit, action or proceeding.
Each of the signatories hereto (i) irrevocably appoints CT
Corporation (together with any successor, the "Process Agent"), as its
authorized agent in the Borough of Manhattan in the City of New York upon which
process may be served in any such suit, action or proceeding described in the
first sentence of this Section 6, acknowledges that the Process Agent has
accepted such designation and agrees that service of process upon the Process
Agent, and written notice of such service to such person, by the person serving
the same to the address provided for [IMPSAT Corporation] in the Securities
Purchase Agreement, shall be deemed in every respect effective service of
process upon such person in any such suit, action or proceeding and (ii) agrees
to take any and all action, including the execution and filing of any and all
such documents and instruments as may be necessary to continue such designation
and appointment of the Process Agent in full force and effect.
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7. Term. This Agreement shall terminate and shall no longer be
of any force or effect at the earlier of (x) ten years following the Closing
Date and (y) such time as the Purchasers are not entitled to elect a director of
IMPSAT Corporation.
NEVASA HOLDINGS LTD.
By:
----------------------------------
CORPORACION IMPSA S.A.
By:
----------------------------------
XXXXXXXXX LIMITED
By:
----------------------------------
ROTLING INTERNATIONAL CORPORATION
By:
----------------------------------
-------------------------------------
Xx. Xxxxxxx Xxxxxxxxxx
-------------------------------------
Xxx. Xxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxxx
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-------------------------------------
Xxx. Xxxxxxx Xxxxxxxxxx xx Xxxxx
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-------------------------------------
Mr. Roberto Vivo Chaneton
-------------------------------------
Xx. Xxxxxxx Xxxxxxxxx
X-0
