Exhibit 1
---------
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made effective as of
February 10, 2000 (the "Effective Date") by and between Enron North America
Corp., a Delaware corporation ("ENA") and ECT Merchant Investments Corp., a
Delaware corporation ("ECT," and together with ENA, the "Sellers") and TPG
Partners III, L.P., T3 Partners, L.P. and Colony Investors IV, L.P., each a
Delaware limited partnership (collectively the "Buyers").
RECITALS
WHEREAS, as of the Closing Date (as defined in Section 3, below) ENA will
own the following securities issued by FirstWorld Communications, Inc., a
Delaware corporation (the "Company"): 4,274,426 shares of Series A Common Stock
(the "Series A Common Shares"); 3,236,083 shares of Series B Common Stock (the
"Series B Common Shares"); and 5,000,000 warrants expiring December 30, 2004
(the "December Warrants") and 3,236,083 warrants expiring April 13, 2005 (the
"April Warrants"), each to purchase shares of Series B Common Shares of the
Company with an exercise price of three dollars ($3.00) per share; and
WHEREAS, ECT owns 725,574 Series A Common Shares; and
WHEREAS, the Company securities owned by Sellers are subject to the terms
of (i) a Securityholders Agreement dated December 30, 1997 among an affiliate of
the Sellers and various entities controlled by Xxxxxx Xxxxx (the "Xxxxx
Entities"), as amended, (the "Securityholders Agreement"), and (ii) an Amended
and Restated Investor Rights Agreement dated September 28, 1998 among an
affiliate of the Sellers, the Company and the Xxxxx Entities, as amended, (the
"Investor Rights Agreement");
WHEREAS, Buyers desire to purchase from Sellers, and Sellers desire to sell
to Buyers the following securities issued by the Company (the "FirstWorld
Securities"): (i) the 5,000,000 Series A Common Shares which will convert into
5,000,000 shares of Series B Common Stock upon transfer to Buyers, (ii) the
3,236,083 Series B Common Shares and (iii) the 5,000,000 December Warrants and
236,083 of the April Warrants, all upon the terms and conditions hereinafter set
forth;
WHEREAS, ENA is retaining 3,000,000 of the April Warrants; and
WHEREAS, concurrently herewith the Sellers, Buyers and other persons are
entering into letter agreements assigning certain rights under the Investor
Rights Agreement to Buyers and agreeing to terminate Sellers' rights thereunder;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF THE STOCK
Subject to the terms and conditions of this Agreement, the Sellers agree to
sell those FirstWorld Securities owned by each of them to the Buyers, free and
clear of all liens, claims, restrictions or encumbrances of any kind, except for
those imposed pursuant to any agreements entered into by Buyers, and the Buyers
agree to purchase and accept the FirstWorld Securities from the Sellers.
2. PURCHASE PRICE
The purchase price for the Series A Common Shares and Series B Common
Shares shall be Ten and 75/100 Dollars ($10.75) per share. The purchase price
for the December Warrants and April Warrants shall be Seven and 75/100 Dollars
($7.75) per warrant. The Buyers shall pay the Sellers an aggregate of One
Hundred Twenty-nine Million One Hundred Seventeen Thousand Five Hundred
Thirty-five and 50/100 Dollars ($129,117,535.50) (the "Purchase Price") by wire
transfer to Sellers. The individual FirstWorld Securities to be transferred by
each Seller and the Buyer to which they are to be transferred shall be
identified by the parties at least two (2) business days prior to Closing.
Buyers shall also pay any applicable transfer tax.
3. CLOSING
The closing (the "Closing") for the purchase and sale of the FirstWorld
Securities shall take place on a date (the "Closing Date") within five (5)
business days after the satisfaction or waiver of all conditions precedent in
Articles 6 and 7 at the offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers represent and warrant that all of the following representations
and warranties in this Section 4 are true as of the date hereof, and that such
representations and warranties shall survive until the first anniversary of the
Closing Date ("the Expiration Date").
4.1 Authorization. Each Seller is a corporation duly incorporated and
organized, validly existing and in good standing under the laws of the State of
Delaware. Each Seller has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
Each Seller has duly and validly executed and delivered this Agreement and any
documents required to be delivered pursuant hereto to which it is a party
(collectively with the Agreement, the "Sellers' Sale Agreements"). Assuming the
due authorization, execution and delivery of the Sellers' Sale Agreements by the
parties hereto and thereto other than the Sellers, the Sellers' Sale Agreements
constitute the legal, valid and binding obligations of the Sellers, enforceable
against each of the Sellers in accordance with their respective terms, except as
such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and general equitable principles.
4.2 Capitalization. The information included in Exhibit A hereto under the
heading "Capitalization" sets forth a complete and accurate statement of (i) all
of the authorized, issued and outstanding capital stock of the Company and (ii)
all outstanding warrants, options and other rights to acquire any shares of the
capital stock of the Company, (except for subsequent issuances pursuant to
reservations, agreements or employee benefit plans referred to in the
Registration Statement No. 333-0521976 filed by FirstWorld for its anticipated
offering of Series B Common Stock and except for the sale of stock by the
Company to Colorado Spectra 4, L.P., Lucent Technologies, Inc., SAIC Venture
Capital Corporation, Microsoft Corporation and the Buyers, or affiliates of the
foregoing). Sellers may revise such Exhibit at any time prior to Closing to
conform it to changes made in the Registration Statement filed by FirstWorld.
4.3 FirstWorld Securities. Except for (i) the Securityholders Agreement and
(ii) the Investor Rights Agreement, all of the FirstWorld Securities are free
and clear of all liens, claims, restrictions or encumbrances of any kind and the
shares of capital stock have been duly authorized and validly issued, are fully
paid and non-assessable and as of the closing date and prior to the transactions
contemplated herein shall be owned of record by the Sellers, as set forth in the
recitals.
4.4 No Violations; Filings. (a) The execution and delivery of this
Agreement by each Seller does not violate, conflict with or result in a breach
of any provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under: (1) either Seller's
charter documents or (ii) any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, permit or license of any court or
governmental authority applicable to either Seller or any of either Seller's
properties or assets. The consummation by each of the Sellers of the
transactions contemplated herein shall not result in any material violation,
conflict or breach of or default under the items described in clauses (i) and
(ii) of the preceding sentence.
(b) Other than appropriate filings and approvals under the Exchange Act of
1934 and the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the
"Xxxx-Xxxxx Act"), no declaration, filing or registration with, or notice to, or
authorization, consent or approval of, any governmental or regulatory body or
authority is necessary for the execution and delivery of this Agreement by the
Sellers or the consummation by the Sellers of the transactions contemplated
herein.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyers represent and warrant that all of the following representations
and warranties in this Section 5 are true as of the date hereof, and that such
representations and warranties shall survive until the Expiration Date.
5.1 Authorization. Each Buyer is a partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware. The
general partner of each Buyer is a limited partnership duly formed, validly
existing and in good standing under the laws of Delaware. The general partner of
each general partner is a corporation duly formed, validly existing and in good
standing under the laws of the State of Delaware. Each Buyer has all requisite
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Each Buyer has duly and validly executed and
delivered this Agreement and any documents required to be delivered pursuant
hereto to which it is a party (collectively with the Agreement, the "Buyers'
Sale Agreements"). Assuming the due authorization, execution and delivery of the
Buyers' Sale Agreements by the parties hereto and thereto other than the Buyers,
the Buyers' Sale Agreements constitute the legal, valid and binding obligations
of the Buyers, enforceable against the Buyers in accordance with their
respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general equitable principles. Notwithstanding
the foregoing, the Buyers do not make any representation regarding the
enforceability of the provisions of Section 5.5 below.
5.2 No Violations. (a) The execution and delivery of this Agreement by each
Buyer does not violate, conflict with or result in a breach of any provision of,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under (i) the Buyer's charter documents or
(ii) any statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any court or governmental authority
applicable to the Buyer or any of its properties or assets. The consummation by
each Buyer of the transactions contemplated herein shall not result in any
material violation, conflict or breach of or default under the items described
in clauses (i) and (ii) of the preceding sentence.
(b) Other than appropriate filings and approvals under the Exchange Act of
1934 and the Xxxx-Xxxxx Act, no declaration, filing or registration with, or
notice to, or authorization, consent or approval of, any governmental or
regulatory body or authority is necessary for the execution and delivery of this
Agreement by the Buyers or the consummation by the Buyers of the transactions
contemplated herein.
5.3 Investment Representations. (a) Each Buyer is an "accredited investor"
as defined in Regulation D, as promulgated by the United States Securities and
Exchange Commission.
(b) Each Buyer acknowledges that the FirstWorld Securities have not been
registered under the Securities Act and may not be offered or sold except
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act or pursuant to an effective registration
statement under the Securities Act. Each Buyer acknowledges that any certificate
representing any of the FirstWorld Securities issued to it will bear a
restrictive legend substantially in the same form as the current certificates.
Each Buyer represents and warrants that the offer to sell the FirstWorld
Securities was communicated personally to the Buyer and at no time was the Buyer
presented with or solicited by or through any public promotional meeting,
television advertisement or any other form of general or public advertising or
solicitation.
(c) Each Buyer further acknowledges that the FirstWorld Securities are
currently subject to the rights and restrictions contained in the
Securityholders Agreement and the Investor Rights Agreement. Concurrently
herewith the parties to the Securityholders Agreement have entered into an
agreement providing for the termination of such agreement, and the parties to
the Investor Rights Agreement have entered into an agreement assigning certain
rights from Sellers to Buyers and providing for the termination of Sellers'
rights and obligations under the Investor Rights Agreement upon the later of the
Closing or the consummation of a public offering of the Series B Common Stock.
(d) Each Buyer is acquiring the FirstWorld Securities for investment and
not with a view to the distribution thereof or dividing all or any part of its
interest therein with any other person.
(e) Each Buyer can bear the economic risks of the transaction which is
contemplated by this Agreement; none of the Buyers has relied upon the Sellers
to determine the suitability of the Buyers to acquire the FirstWorld Securities;
each Buyer has such knowledge and experience in financial and business matters
that the Buyer has not relied upon any opinion or expression of the Sellers or
their agents about the value of the FirstWorld Securities and each Buyer is
capable of evaluating for itself the risks, merits and suitability of the
acquisition of the FirstWorld Securities.
(f) Each Buyer acknowledges that each share of Series A Common Stock
transferred to the Buyer by the Sellers will automatically convert into one
share of Series B Common Stock upon the transfer.
(g) Each Buyer acknowledges that: (i) the Company has filed a registration
statement to sell shares of its Series B Common Stock in a public offering
pursuant to the Securities Act; (ii) there can be no assurances that such
offering will be consummated or, if consummated, will be consummated upon any
terms currently anticipated by the parties or the Company and (iii) none of the
Buyers' obligations hereunder are conditioned upon the consummation of the
offering or its consummation upon any certain terms or any other sale of
securities by the Company contemplated as of the Effective Date or thereafter.
5.4 No Other Representations or Warranties. Each Buyer acknowledges and
agrees that other than the representations and warranties of the Sellers
specifically contained in this Agreement, there are no representations or
warranties of either Seller, either express or implied, with respect to the
transactions contemplated by this Agreement, the Company or its assets,
liabilities or business.
6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS
All obligations of Sellers which are to be discharged under this Agreement
at the Closing are subject to the fulfillment at, or prior to, the Closing, of
each of the following conditions (unless expressly waived in writing by each
Seller at any time at or prior to the Closing):
6.1 Representations and Warranties True. All of the representations and
warranties made by the Buyers in this Agreement shall be true as of the Closing
Date. Each Buyer shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by the
Buyer prior to or at the Closing.
6.2 No Obstructive Proceeding. Any waiting periods under the Xxxx-Xxxxx
Act, if applicable, shall have expired or been terminated. No action or
proceedings shall have been instituted against, and no order, decree or judgment
of any court, agency, commission or governmental authority shall be subsisting
against either of the Sellers, Buyers, or the officers or directors of any of
the foregoing which seeks to, or would, render it unlawful as of the Closing to
effect the transactions contemplated hereby in accordance with the terms hereof.
Also, no substantive legal objection to the transactions contemplated by this
Agreement shall have been received from or threatened by any governmental
department or agency.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYERS
All obligations of the Buyers which are to be discharged under this
Agreement at the Closing are subject to the fulfillment at or prior to the
Closing of each of the following conditions (unless expressly waived in writing
by each Buyer at any time at or prior to the Closing):
7.1 Representations and Warranties True. All of the representations and
warranties of Sellers contained in this Agreement shall be true as of the
Closing Date. Sellers shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by them
prior to or at the Closing.
7.2 No Obstructive Proceeding. Any waiting periods under the Xxxx-Xxxxx
Act, if applicable, shall have expired or been terminated. No action or
proceedings shall have been instituted against, and no order, decree or judgment
of any court, agency, commission or governmental authority shall be subsisting
against either Seller, the Buyers or the officers or directors of any of the
foregoing, which seeks to, or would, render it unlawful as of the Closing to
effect the transactions contemplated hereby in accordance with the terms hereof.
Also, no substantive legal objection to the transactions contemplated by this
Agreement shall have been received from or threatened by any governmental
department or agency.
8. DELIVERIES BY BUYER
At Closing, the Buyers shall deliver the following:
8.1 Payment of Purchase Price. A wire transfer to the account designated in
writing by the Sellers in the amount of the Purchase Price. Sellers shall
designate such accounts at least two (2) business days prior to the Closing
Date.
8.2 Secretary's Certificates. A certificate or certificates, dated as of
the date hereof and signed on behalf of the Partnership by the secretary of the
general partner of the general partner of each Buyer, certifying the truth and
correctness of attached copies of the Buyer's constituent documents (including
amendments thereto), and resolutions or other appropriate evidence of
authorization of this Agreement and the consummation of the transactions
contemplated herein.
8.3 Officers' Certificate. A certificate dated as of the date hereof and
signed by an authorized officer of the general partner of the general partner of
each Buyer, certifying as to the satisfaction of the conditions to Closing set
forth in Section 6, hereof.
9. DELIVERIES BY SELLERS
At Closing, Sellers shall deliver the following:
9.1 Stock Certificates. Certificates for the Series A Common Shares and
Series B Common Shares, free and clear of all liens, claims, charges,
restrictions, equities or encumbrances of any kind, which certificates shall be
duly endorsed to the Buyers or accompanied by duly executed stock powers in form
satisfactory to the Buyers sufficient to convey to the designated Buyers good
title to such Shares.
9.2 Warrants. Warrant certificates or other documentation evidencing the
Warrants, free and clear of all liens, claims, charges, restrictions, equities
or encumbrances of any kind (other than those set forth in the Investment
Agreements) which shall be accompanied by duly executed, valid assignments in
form reasonably satisfactory to the Buyers sufficient to convey to the
designated Buyers good title to such warrants.
9.3 Secretary's Certificate. Certificates, dated as of the date hereof and
signed by the secretary of each of the Sellers, certifying the truth and
correctness of attached copies of the Seller's Certificate of Incorporation
(including amendments thereto), Bylaws (including amendments thereto), and
resolutions of their respective boards of directors approving this Agreement and
the consummation of the transactions contemplated herein.
9.4 Officers' Certificate. Certificate, dated as of the date hereof and
signed by the Chief Executive or Chief Financial Officer of each of the Sellers,
certifying as to the satisfaction of the conditions to Closing set forth in
Section 7, hereof.
10. INDEMNIFICATION
The Sellers and Buyer each make the following covenants that are applicable
to them, respectively:
10.1 Indemnification by the Sellers. Each Seller covenants and agrees that
it shall indemnify, defend, protect and hold harmless the Buyers and their
respective affiliates, their respective present and former directors, officers,
stockholders, employees and agents and their respective heirs, executors,
personal representatives, administrators, successors and assigns (the "Buyer
Indemnified Persons") at all times from and after the date of this Agreement
until the Expiration Date from and against all claims, damages (including
consequential, punitive or exemplary), actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including specifically, but
without limitation, reasonable attorneys' fees and consulting fees) incurred by
or asserted against any Buyer Indemnified Persons as a result of or arising from
directly or indirectly: (a) any breach of the representations and warranties of
the Sellers set forth herein; or (b) any breach of any agreement on the part of
the Sellers under this Agreement.
10.2 Indemnification by the Buyers. Each Buyer covenants and agrees that it
shall indemnify, defend, protect and hold harmless the Sellers and their
respective affiliates, their respective present and former directors, officers,
stockholders, employees and agents and their respective heirs, executors,
personal representatives, administrators, successors and assigns (the "Seller
Indemnified Persons") at all times from and after the date of this Agreement
until the Expiration Date from and against all claims, damages (including
consequential, punitive or exemplary), actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including specifically, but
without limitation, reasonable attorneys' fees and consulting fees) incurred by
the Seller Indemnified Persons as a result of or arising from directly or
indirectly (a) any breach of the representations and warranties of the Buyers
set forth herein, or (b) any breach of any agreement on the part of the Buyers
under this Agreement.
10.3 Third Person Claims. Promptly after any party hereto (hereinafter the
"Indemnified Party") has received notice of or has knowledge of any claim by a
person not a party to this Agreement ("Third Person"), or the commencement of
any action or proceeding by a Third Person, the Indemnified Party shall, as a
condition precedent to a claim with respect thereto being made against any party
obligated to provide indemnification pursuant to Section 8.1 or 8.2 hereof
(hereinafter the "Indemnifying Party"), give the Indemnifying Party written
notice of such claim or the commencement of such action or proceeding. Such
notice shall state the nature and the basis of such claim and a reasonable
estimate of the amount thereof. The Indemnifying Party shall have the right to
defend and settle, at its own expense and by its own counsel, any such matter so
long as the Indemnifying Party pursues the same in good faith and diligently;
provided that the Indemnifying Party shall not settle any such proceeding
without the written consent of the Indemnified Party. If the Indemnifying Party
undertakes to defend or settle, it shall promptly notify the Indemnified Party
of its intention to do so, and the Indemnified Party shall cooperate with the
Indemnifying Party and its counsel in the defense thereof and in any settlement
thereof. Such cooperation shall include, but shall not be limited to, furnishing
the Indemnifying Party with any books, records or information reasonably
requested by the Indemnifying Party that are in the Indemnified Party's
possession or control. All Indemnified Parties shall use the same counsel, which
shall be the counsel selected by Indemnifying Party, provided that if counsel to
the Indemnifying Party shall have a conflict of interest that prevents counsel
for the Indemnifying Party from representing Indemnified Party, Indemnified
Party shall have the right to participate in such matter through counsel of its
own choosing and the Indemnifying Party shall reimburse the Indemnified Party
for the reasonable expenses of its counsel.
After the Indemnifying Party has notified the Indemnified Party of its
intention to undertake to defend or settle any such asserted liability, and for
so long as the Indemnifying Party diligently pursues such defense, the
Indemnifying Party shall not be liable for any additional legal expenses
incurred by the Indemnified Party in connection with any defense or settlement
of such asserted liability, except (i) as set forth in the preceding sentence
and (ii) to the extent such participation is requested by the Indemnifying
Party, in which event the Indemnified Party shall be reimbursed by the
Indemnifying Party for reasonable additional legal expenses and out-of-pocket
expenses.
If the Indemnifying Party desires to accept a final and complete settlement
of any such Third Person claim involving only the payment of money and the
Indemnified Party refuses to consent to such settlement, then the Indemnifying
Party's liability under this Section with respect to such Third Person claim
shall be limited to the amount so offered in settlement by said Third Person.
Upon agreement as to such settlement between said Third Person and the
Indemnifying Party, the Indemnifying Party shall, in exchange for a complete
release from the Indemnified Party, promptly pay to the Indemnified Party the
amount agreed to in such settlement and the Indemnified Party shall, from that
moment on, bear full responsibility for any additional costs of defense which it
subsequently incurs with respect to such claim and all additional costs of
settlement or judgment. If the Indemnifying Party does not undertake to defend
such matter to which the Indemnified Party is entitled to indemnification
hereunder, or fails diligently to pursue such defense, the Indemnified Party may
undertake such defense through counsel of its choice, at the cost and expense of
the Indemnifying Party, and the Indemnified Party may settle such matter, and
the Indemnifying Party shall reimburse the Indemnified Party for the settlement
and any other liabilities or expenses incurred by the Indemnified Party in
connection therewith, provided, however, that under no circumstances shall the
Indemnified Party settle any Third Person claim without the written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld or
delayed. All settlements hereunder shall effect a complete release of the
Indemnified Party, unless the Indemnified Party otherwise agrees in writing.
10.4 Limitation on Indemnification. No party to this Agreement shall be
liable under this Section 10 for an amount which exceeds the Purchase Price.
11. GENERAL
11.1 Cooperation / Xxxx-Xxxxx Act. Each of the Sellers and the Buyers shall
deliver or cause to be delivered to the other, such additional instruments as
the other may reasonably request for the purpose of carrying out this Agreement.
Buyers and the Sellers recognize that one or more filings under the Xxxx-Xxxxx
Act may be required in connection with the transaction contemplated herein. If
Buyers and the Sellers determine that filings under the Xxxx-Xxxxx Act are
required, then: (i) each party agrees to cooperate and use its best efforts to
comply with the Xxxx-Xxxxx Act and (ii) the parties agree to cooperate and use
their best efforts to cause all filings required under the Xxxx-Xxxxx Act to be
made as promptly as reasonably possible. If filings under the Xxxx-Xxxxx Act are
required, each party shall pay its own costs and expenses thereof and one-half
of the filing fee.
11.2 Successors and Assigns. This Agreement and the rights of the parties
hereunder may not be assigned except by operation of law and, in the case of
each Buyer, to one or more of Buyers' affiliates identified on Exhibit B that
are accredited investors, and shall be binding upon and shall inure to the
benefit of the parties hereto, their permitted successors and assigns. Any
assignment of rights by a Buyer will be effected by delivery of written notice
to the Sellers, executed by the relevant Buyer and the assignee. Any assignee
shall agree in writing to become a party to this Agreement and the letter
agreement regarding assignment of rights under the Investors Rights Agreement
and to be bound by all the terms of such agreements. The assignee will
thereafter be deemed to be a "Buyer" for all purposes under this Agreement.
11.3 Limitation of Damages. Except in the case of fraud or claims asserted
under Section 10 hereof, no party shall have any liability for, and no party may
make any claim against or xxx any other party for, any punitive, consequential
or incidental damages in connection with this Agreement or the transactions
contemplated hereby, whether based on breach of contract, tort or any other
theory of liability; provided, however, damages and losses recoverable pursuant
to Section 10 shall include all punitive, consequential or incidental damages
that must be paid by a party to a third party.
11.4 Counterparts. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument. A telecopied
facsimile of an executed counterpart of this Agreement shall be sufficient to
evidence the binding agreement of each party to the terms hereof. However, each
party agrees to return to the other parties an original, duly executed
counterpart of this Agreement promptly after delivery of a telecopied facsimile
thereof.
11.5 Brokers and Agents. Each party represents and warrants that it has
employed no broker or agent in connection with this transaction, other than
Sellers' engagement of Bear, Xxxxxxx & Co. Inc. ("Bear, Xxxxxxx"), and agrees to
indemnify the other parties hereto against all loss, cost, damages or expense
arising out of claims for fees or commission of brokers employed or alleged to
have been employed by such indemnifying party. Sellers shall be solely
responsible for payment of all fees owed to Bear, Xxxxxxx as a result of the
sale of the FirstWorld Securities.
11.6 Notices. All notices of communication required or permitted hereunder
shall be in writing and may be given by depositing the same in United States
mail, addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, or by delivering the same in person to
an officer or agent of such party.
(a) If to the Sellers, addressed to:
Enron North America Corp.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn.: Xxxxx Xxxx
Phone: 000.000.0000
Fax: 000.000.0000
with copies to:
ECT Merchant Investments Corp.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxx
Phone: 000.000.0000
Fax: 000.000.0000
with copies to:
Xxxx Xxxxxxx, Esq.
Enron North America Corp., Legal Department
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone: 000.000.0000
Fax: 000.000.0000
(b) If to the Buyers, addressed to:
TPG Partners III, L.P.
T3 Partners, L.P.
Colony Investors IV, L.P.
c/o Texas Pacific Group
Attn: Xxxx Eklebery
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx XX 00000
Phone: (000) 000 0000
Fax: (000) 000 0000
with copies to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address or counsel as any party hereto shall specify pursuant
to this Section 11.6 from time to time.
11.7 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Texas, excluding any conflicts of law, rule or
principle that might refer same to the laws of another jurisdiction.
11.8 Exercise of Rights and Remedies. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy accruing
to any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
11.9 Time. Time is of the essence with respect to this Agreement.
11.10 Reformation and Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as to most
nearly retain the intent of the parties, and if such modification is not
possible, such provision shall be severed from this Agreement, and in either
case the validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby. No
provision of this Agreement shall be interpreted or construed against any party
solely because that party or its legal representative drafted such provision.
11.11 Remedies Cumulative. No right, remedy or election given by any term
of this Agreement shall be deemed exclusive but each shall be cumulative with
all other rights, remedies and elections available at law or in equity. The
exercise of any remedy shall not preclude the simultaneous or later exercise of
any other remedy.
11.12 Captions. The headings of this Agreement are inserted for convenience
only, shall not constitute a part of this Agreement or be used to construe or
interpret any provision hereof.
11.13 Amendments. Any term of this Agreement may be amended only with the
written consent of the Buyers and each of the Sellers. Any amendment effected in
accordance with this Section 11.13 shall be binding upon each of the parties
hereto.
11.14 Dispute Resolution. Any dispute arising out of or in connection with
this Agreement, including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by binding arbitration
governed by the Federal Arbitration Act and conducted in accordance with the
American Arbitration Association Commercial Arbitration Rules which Rules are
deemed to be incorporated by reference into this clause. The number of
arbitrators shall be three, the Buyers having the right to appoint one
arbitrator and the Sellers having the right to appoint another arbitrator, which
arbitrators shall together then appoint a third neutral arbitrator within thirty
(30) days in accordance with the Rules. The third arbitrator shall be a person
who has five years or more experience in the relevant industry. The place of
arbitration shall be Houston, Texas, USA, where all hearings and meetings shall
be held. The parties hereby expressly waive any right of appeal to any court
having jurisdiction on any question of fact or law.
11.15 Entire Agreement. This Agreement (including the schedules attached
hereto) and the documents delivered pursuant hereto constitute the entire
agreement and understanding among the Sellers and the Buyers and supersede any
prior agreement and understanding relating to the subject matter of this
Agreement.
(Signature pages to follow)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
"SELLERS"
ENRON NORTH AMERICA CORP., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------
Title: Vice President
---------------------------
ECT MERCHANT INVESTMENTS
CORP., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------
Title: Vice President
---------------------------
"BUYERS"
TPG PARTNERS III, L.P.,
By: TPG GenPar III, L.P.,
its General Partner
By: TPG Advisors III, Inc.,
Its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
T3 PARTNERS, L.P.
By: T3 GenPar, L.P.,
its General Partner
By: T3 Advisors, Inc.,
Its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
COLONY INVESTORS IV, L.P.
By: Colony Capital IV, L.P.,
its General Partner
By: ColonyGP IV, Inc.,
Its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
Exhibit A
CAPITALIZATION
[to be attached]
Exhibit B
PERMITTED ASSIGNEES
Name Address
TPG Partners III, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
TPG Parallel III, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
TPG Dutch Parallel III, C.V. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
TPG Investors III, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
T3 Partners, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
T3 Parallel, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
T3 Dutch Parallel, C.V. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
T3 Investors, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
FOF Partners III, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
FOF Partners III-B, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Colony Investors IV, L.P. 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
c/o Xxxxxxx X. Xxxxxxxxx
