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Exhibit 10.19
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT ("Agreement") dated as of March
4, 1997 among USFI Network K.K., a Japanese corporation ("USFI-Network), Nihon-
TelePassport K.K., a Japanese corporation ("NTP"), USFI-Japan, L.L.C., a
Delaware limited liability company ("USFI-Japan"), USFI, INC., a New York
corporation ("USFI"), Asahi Telecom Co., Ltd., a Japanese corporation ("Asahi")
and A.T. Net K.K., a Japanese corporation ("A.T. Net"):
WHEREAS, USFI-Japan and Asahi are the sole shareholders of
NTP, a corporation formed for the purposes of providing certain telephone
services in Japan, and are also parties to certain agreements related to the
operations of NTP and providing for certain rights and obligations of the
parties thereto, including but not limited to a Shareholders' Agreement dated as
of March 13, 1995 and an Omnibus Restructuring Agreement dated as of September
23, 1996 the (the "Omnibus Agreement");
WHEREAS, USFI-Japan, USFI-Network and Asahi have agreed to the
sale of USFI-Japan's interest in NTP to Asahi and the acquisition of certain
assets of NTP by USFI-Network pursuant to the terms of a NTP Purchase and Sale
(the "P&S Agreement") being entered into concurrently herewith; and
WHEREAS, in connection with the P&S Agreement the parties
hereto have agreed to enter into certain ancillary agreements and have agreed on
certain rights and obligations with respect to A.T. Net, a wholly-owned
subsidiary Asahi, as set forth herein,
NOW, THEREFORE, the parties agree as follows:
1. Grant of Option
In consideration of the termination of the Omnibus
Agreement in accordance with the P&S Agreement and in particular the provisions
of Sections 6.4 and 8.2 of the Omnibus Agreement, A.T. Net agrees to the terms
of this Agreement and A.T. Net hereby grants to USFI-Network an option (the
"Option") to acquire pursuant to the terms of Paragraph 2 hereof shares of the
common stock of A.T. Net, which shares when added to all issued and outstanding
shares and shares which are otherwise subject to outstanding subscriptions,
options, warrants or any other obligation of A.T. Net to issue shares of common
stock as well as A.T. Net's plans to issue shares to Banks as referred to in
Schedule 8.4 hereof shall represent 10% of the outstanding capital stock of A.T.
Net on a fully-diluted basis.
2. Terms of Option
2.1 The Option exercise price (the "Exercise Price")
shall equal 360,000,000 yen divided by the number of shares subject to the
Option (as computed pursuant to Paragraph 1 hereof).
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2.2 The Option may be exercised, in whole or part, at
any time by notice (the "Exercise Notice") in writing by USFI-Network to A.T.
Net on or before March 31, 1997. If the Option is exercised, A.T. Net and Asahi
will take all action necessary under the Japanese Commercial Code and A.T. Net's
Articles of Incorporation to issue to USFI-Network such number of A.T. Net
common shares as are specified in the Exercise Notice at the Exercise Price. The
Exercise Price shall be paid on or before May 31, 1997, provided that if the
presently contemplated initial public offering of stock of TelePassport Inc., a
Delaware corporation, is not closed by May 31, 1997, such payment date shall be
extended to a date which is 60 days after the closing of such public offering,
but in any event to not later than July 31, 1997. It is agreed that in the event
USFI-Network exercises the Option and then fails to make payment of the Exercise
Price the sole remedy of A.T. Net shall be the cancellation of any rights
USFI-Network may have to shares of A.T. Net that are subject to the Option.
USFI-Network shall keep A.T. Net advised of the progress of the public
offering.
2.3 Within ten days of receipt of payment of the
Exercise Price, A.T. Net shall issue to USFI-Network certificates representing
the shares of common stock attributable thereto.
2.4 If between the date hereof and the date of
issuance of shares pursuant to the Option, A.T. Net shall issue or authorize the
issuance of any additional shares of common stock or securities convertible into
common stock, the number of shares subject to the Option and the Exercise Price
shall be adjusted so that at all times the number of shares subject to the
Option shall equal 10% of the sum of all issued and outstanding shares and
shares which are otherwise subject to outstanding subscriptions, options,
warrants or other obligations of A.T. Net to issue shares, and the Exercise
Price shall be adjusted so that the aggregate Exercise Price for all shares
shall not exceed 360,000,000 yen.
3. Directorship
3.1 Effective on the execution of this Agreement,
USFI-Network shall be permitted to designate one director (the "USFI Director")
to the Board of Directors of A.T. Net for so long as the USFI Provider Reseller
Agreement dated the date hereof between USFI-Network, A.T. Net and Asahi (the
"USFI Provider Reseller Agreement") is in effect.
3.2 USFI-Network shall have the right to designate,
remove and designate the replacement of the USFI Director. Asahi agrees to vote
its shares of A.T. Net and to cause any holders under its control to vote in
favor of the election of the USFI Director and Asahi and A.T. Net agree to use
their best efforts to cause the other shareholders of A.T. Net to vote their
shares in favor of the USFI Director.
4. First Refusal
Until A.T. Net common stock is registered and
publicly traded in either the United States or Japan, prior to any sale by
USFI-Network, USFI-Network will give notice to Asahi of its intention to sell
its shares and the proposed sales price therefor. Asahi shall have
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the right (which it may assign to all or some of its shareholders) to elect, by
notice given to USFI-Network within five business days of receipt of the notice
from USFI-Network to purchase at the proposed sale price all of the shares (but
not less than all) that USFI-Network proposes to sell. If no notice to purchase
is received within said five business day period by USFI-Network it shall be
free for a period of 180 days to sell the shares it proposed to sell at a price
equal to 90% or higher of the proposed sales price. If a notice of purchase is
received a closing with respect to the sale shall take place at the offices of
Asahi five business days after receipt by USFI-Network of the notice to
purchase.
5. Minority Protection
5.1 From and after the date that USFI-Network has
exercised the Option and has contributed at least 180,000,000 yen to the capital
of A.T. Net, Asahi and A.T. Net agree that:
(a) except with the consent of USFI-Network:
(i) A.T. Net will not issue shares of
stock to any other party at a price per share of less than the product of (A)
5/3 and (B) the Exercise Price, rounded down to the nearest ten thousands,
except for (1) not more than an aggregate of 1% of the issued and outstanding
shares of A.T. Net issued to directors, officers and employees at such purchase
price as the Board of Directors of A.T. Net may determine and (2) shares issued
to persons who on the date hereof are the shareholders of Asahi which may be
issued at a purchase price of not less than the Exercise Price per share;
(ii) A.T. Net will not, directly or
indirectly, enter into any transaction with Asahi or any other affiliate, except
on terms that are no less favorable to A.T. Net than those A.T. Net would obtain
in a comparable arm's-length transaction with a third party that is not a
stockholder or affiliate;
(iii) A.T. Net will not, directly or
indirectly, redeem, purchase or otherwise acquire any of its equity securities
unless it has provided all shareholders on a pro rata basis among shareholders
an opportunity to have their shares of stock redeemed, purchased or otherwise
acquired on the same terms; and
(iv) A.T. Net will not, directly or
indirectly, make any distributions on its capital stock other than on a pro rata
basis.
(b) A.T. Net will:
(i) provide USFI-Network with such
information concerning its business or operations as USFI-Network shall
reasonably request provided that such information is in its possession or under
its control; and
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(ii) provide to USFI-Network within 45
days after the end of each fiscal quarter (other than the fourth fiscal
quarter), the unaudited consolidated balance sheet of A.T. Net as at the end of
such period and the related unaudited consolidated statements of income, surplus
and cash flows for such period and year-to-date and within 90 days after the end
of each fiscal year, the audited consolidated balance sheet of A.T. Net as at
the end of such year and the related audited consolidated statements of income,
surplus and cash flows for such year. Such statements may be prepared in
Japanese and in accordance with generally accepted Japanese accounting
practices.
5.2 No member of the A.T. Net Group (as defined
herein) shall conduct any local or domestic long distance voice and facsimile
telecommunication services including those permitted by a Special Type II
registration or a Type I license (or any similar or successor licenses to the
foregoing) other than through A.T. Net. The provisions of this Paragraph 5.2
shall terminate and be of no further force or effect as such time as the shares
of both Asahi and A.T. Net are registered and publicly traded either in the
United States or in Japan.
5.3 The provisions of Paragraph 5.1 shall terminate
and be of no further force or effect at such time as the shares of A.T. Net are
registered and publicly traded either in the United States or in Japan.
6. Tag Along Rights
In the event Asahi proposes to sell any of its shares in A.T.
Net, Asahi shall give written notice of the proposed sale to USFI-Network, which
notice shall include the name of the proposed purchaser, the number of shares
proposed to be sold, the sales price and any other material terms. Asahi agrees
that USFI-Network shall have the right to elect by notice in writing to Asahi
given within five business days of receipt of the notice from Asahi, to sell the
same percentage of the shares held by it as Asahi proposes to sell of the shares
held by it, at the same price and to the same purchaser on the same terms. In
the event of such election by USFI-Network, Asahi shall cause such purchaser to
effectuate such purchase concurrent with the purchase from Asahi. USFI-Network's
rights under this Paragraph 6 shall terminate on the earlier to occur of (i) the
date when A.T. Net common stock is registered and publicly traded in either the
United States or Japan, or (ii) the sale by USFI-Network of any of its shares of
A.T. Net other than pursuant to the provisions of this Paragraph 6.
7. Pre-Emptive Rights
7.1 If, at any time prior to the date when A.T. Net
common stock is registered and publicly traded in either the United States or
Japan, A.T. Net proposes to offer, issue, sell or otherwise dispose of shares of
any class or series of common stock or preferred stock, or options, rights,
warrants, conversion rights or appreciation rights relating thereto, or any
other type of equity security (collectively, "Equity Securities") to any entity,
company or person, (a) A.T. Net shall, prior to any such offer, issuance, sale
or other disposition, give written notice (a "Offer Notice") to USFI-Network
setting forth the purchase price of such Equity Securities, the type and
aggregate number of Equity Securities or rights to acquire Equity
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Securities to be so offered, issued, sold or otherwise disposed of, the terms
and conditions of such offer, issuance, sale or other disposition and the
rights, powers and duties inhering in such additional Equity Securities or
rights to acquire Equity Securities, and (b) USFI-Network shall have the right
(the "Purchase Right") to acquire the percentage of such Equity Securities or
rights to acquire Equity Securities proposed to be so offered, issued, sold or
otherwise disposed of equal to the number of shares of common stock then held by
USFI-Network, divided by the aggregate number of shares of A.T. Net common stock
outstanding immediately prior to such offer, issuance, sale or other disposition
of Equity Securities; provided, however, that the terms and conditions of this
Paragraph 7 shall not apply to any offer, issuance, sale or other disposition of
Equity Securities issued by A.T. Net in a public offering after which such
shares will be publicly traded in the United States or Japan.
7.2 USFI-Network may exercise such Purchase Right, in
whole or in part, on the terms and conditions and for the purchase price set
forth in the Offer Notice, by giving to A.T. Net notice to such effect, within
30 days after the giving of the Offer Notice. After the expiration of such 30
days period, A.T. Net shall have the right to offer, issue, sell and otherwise
dispose of any or all of the Equity Securities referred to in the applicable
Offer Notice as to which no Purchase Right has been exercised but only upon the
terms and conditions, and for a purchase price not lower than the purchase
price, set forth in the Offer Notice. If A.T. Net does not offer, issue, sell or
otherwise dispose of the Equity Securities referred to in the applicable Offer
Notice on the terms and conditions set forth in such Offer Notice within 120
days after the expiration of such 30-day period, then any subsequent proposal by
A.T. Net to offer, issue, sell or otherwise dispose of such Equity Securities
shall be subject to this Paragraph 7.
8. Representations and Warranties
Asahi and A.T. Net, jointly and severally, represent and
warrant that:
8.1 A.T. Net is a corporation duly organized and
validly existing under the laws of Japan and has all requisite corporate power
and authority to carry on its business as it is now being conducted.
8.2 A.T. Net has full corporate power and authority
to execute and deliver this Agreement and each other agreement, document,
instrument or certificate contemplated by this Agreement or to be executed by
A.T. Net in connection with the consummation of the transactions contemplated by
this Agreement (all such other agreements, documents, instruments, and
certificates required to be executed by A.T. Net being hereinafter referred to,
collectively, as the "Corporation Documents"), and to perform fully its
obligations hereunder and thereunder. The execution, delivery and performance by
A.T. Net of this Agreement and each of the Corporation Documents has been duly
authorized by all necessary corporate action on the part of A.T. Net. The
Agreement has been, and each of the Corporation Documents will be duly executed
and delivered by A.T. Net, and this Agreement constitutes, and the Corporation
Documents when so executed and delivered will constitute, legal, valid and
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binding obligations of A.T. Net, enforceable against A.T. Net in accordance with
their respective terms.
8.3 None of the execution and delivery by A.T. Net of
this Agreement and the Corporation Documents, or the consummation of the
transactions, contemplated hereby or thereby, or compliance by A.T. Net with any
of the provisions hereof and thereof will (a) conflict with, or result in the
breach of, any provision of the articles of incorporation of A.T. Net, (b)
conflict with, violate, result in the breach or termination of, or constitute a
default or give rise to any right of termination or acceleration or right to
increase the obligations or otherwise modify the terms under any contract,
license or order to which A.T. Net is a party or by which it or any of its
properties or assets is bound or subject, (c) constitute a violation of any law
applicable to A.T. Net, or (d) result in the creation of any lien upon the
assets of A.T. Net. No consent, waiver, approval, order, permit or authorization
of, or declaration or filing with, or notification to, any person, including,
without limitation, any governmental body, is required on the part of A.T. Net
in connection with the execution, delivery or performance of this Agreement or
the Corporation Documents, or the compliance by A.T. Net with any of the
provisions hereof or thereof.
8.4 The authorized capital stock of A.T. Net consists
of 4,000 shares of common stock, of which 4,000 shares are currently issued and
outstanding. All of the outstanding capital stock of A.T. Net has been validly
issued, is fully paid and non-assessable and is owned, beneficially and of
record, by Asahi. SCHEDULE 8.4 hereto sets forth the capitalization of A.T. Net
after giving effect to the additional issuances of shares referred to therein.
Prior to the payment of the Exercise Price, Asahi agrees to invest the
additional 100,000,000 yen referred to on Schedule 8.4. Except as otherwise
provided in this Agreement, no authorized but unissued shares, no treasury
shares and no other outstanding shares of capital stock of A.T. Net are subject
to any option, warrant, right of conversion or purchase or any similar right.
Except as otherwise provided in this Agreement, A.T. Net is not a party to or
bound by any agreements, or understandings with respect to the voting, issuance,
sale or transfer of any Equity Securities of A.T. Net, or, any agreement
restricting the transfer or hypothecation of any such Equity Securities.
8.5 The shares deliverable upon exercise of the
Option, when issued and paid for in accordance with the Option, will be duly and
validly issued, fully paid and nonassessable.
8.6 All information delivered by Asahi or A.T. Net to
USFI-Network or any of its affiliates with regard to the business, operations
and financial condition of A.T. Net is true and correct in all material respects
and all budgets and projections have been and will be based on good faith
estimates of management.
8.7 Asahi and A.T. Net each has the power and
authority, to the extent legally allowed, to permit USFI-Network and its
affiliates to obtain the benefits of the Special Type II registration and to
provide international and national telecommunications services in
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Japan as contemplated by this Agreement and the P&S Agreement entered into
concurrently herewith.
8.8 USFI-Network will not as a shareholder or
otherwise have any liability or obligations with respect to the debts,
liabilities and obligations of A.T. Net.
8.9 Set forth on SCHEDULE 8.9 is a list, as of the
date hereof, of all agreements, contracts, promissory notes and other
instruments, other than contracts with customers entered into in the ordinary
course of A.T. Net's business (collectively, "Contracts") binding on A.T. Net or
to which A.T. Net is a party: (a) that have been entered into with any affiliate
of A.T. Net or (b) pursuant to the terms of which A.T. Net is to make or receive
payments or incur liability in excess of 5,000,000 Yen per annum. All of such
Contracts are valid, subsisting, in full force and effect and no party thereto
has committed a default thereunder in any material respect nor, to the knowledge
of A.T. Net, does any condition exist that with notice or lapse of time or both
would constitute a default thereunder. A.T. Net has delivered to USFI-Network a
copy of all of such Contracts.
8.10 Except as set forth on SCHEDULE 8.10, A.T. Net
has no indebtedness to any person, firm, corporation, governmental body or any
other entity. Schedule 8.10 also sets forth a description of any such
indebtedness and the amount thereof.
9. Special Type II Registration
A.T. Net and Asahi agree to enter into arrangements with
USFI-Network, its affiliates and successors, and their customers for the
provision of services governed by their Special Type II registration to the
fullest extent permitted by law. Such arrangements will be at no cost to any
such person unless A.T. Net or Asahi is required to incur a cost in connection
with the provision of the service in which event such cost shall be reimbursed.
A.T. Net and Asahi agree to fully cooperate with USFI-Network, its affiliates,
successors and customers with respect to the provision of such services. Such
cooperation shall include but not be limited to the execution and filing with
the appropriate governmental authority of such documents or instruments as may
be required to evidence the arrangements referred to in this Paragraph 9.
Nothing herein contained shall prevent USFI or USFI-Network and its affiliates
and successors from applying for or obtaining a Special Type II registration or
any filing, registration or license covering similar services. Each member of
the A.T. Net Group agrees, upon the request of USFI-Network, to use its best
efforts to assist the USFI Group in applying for and obtaining such a
registration in the name of the applicable member of the USFI Group.
10. Private Lines
10.1 USFI-Network and A.T. Net agree, in compliance
with applicable law, to lease an international private line or lines
(individually or collectively "IPL") between the USFI-Network point of presence
("POP") in the New York metropolitan area (presently in New York City) (the
"NYPOP") and USFI's POP in Ebisu (the "TPOP"). The size of the IPL will be
determined by USFI-Network engineers after consultation with A.T. Net. A.T. Net
shall
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pay the cost of its portion of the IPL and the equipment needed therefor and
USFI-Network shall pay the cost of its portion of the IPL and the equipment
needed therefor. A.T. Net agrees to use its best efforts to meet the technical
specifications necessary for the interconnection of A.T. Net's equipment with
the IDNX equipment used by USFI-Network.
10.2 If USFI-Network or an affiliate, in conjunction
with a Category 1 provider in Japan, should gain indefeasible right of use
ownership in a fiber optic ocean cable during the term of the arrangements
described in paragraph 10.1, at the option of USFI-Network, the IPL shall be
rolled onto the indefeasible right of use. A.T. Net will pay an amount which is
not greater than what A. T. Net would be required to pay for the IPL and
USFI-Network will pay the balance. Cancellation charges of the lease will be
paid by USFI-Network.
10.3 A.T. Net and USFI-Network will further discuss
and agree upon details of the arrangements to implement the provisions of this
Paragraph 10.
11. No Impairment
Neither A.T. Net nor Asahi shall by any action including,
without limitation, amending its articles of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Agreement, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of USFI-Network hereunder. Without limiting the generality of the
foregoing, A.T. Net and Asahi will take all such action as may be necessary or
appropriate in order that A.T. Net may validly and legally issue fully paid and
nonassessable shares of common stock upon the exercise of the Option and use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable A.T. Net to perform its obligations hereunder.
12. Reseller Agreement
12.1 USFI-Network, Asahi and A.T. Net shall execute a
Reseller Agreement in the form of Exhibit B to the P&S Agreement entered into
concurrent herewith pursuant to which, among other things, Asahi and A.T. Net
shall be granted the right to resell the international long distances services
of USFI-Network. In consideration of the execution of this Agreement by USFI,
USFI-Japan and USFI-Network as well as such other agreements as may be entered
into by any of them concurrently with the execution of this Agreement, Asahi,
and A.T. Net agree on their own behalf, and on behalf of all of their
affiliates, that except in the circumstances hereinafter described in this
paragraph, USFI, USFI-Network and any successor thereto or affiliate thereof
(collectively the "USFI Group") shall be the provider to A.T. Net, Asahi and any
successor thereto or affiliate thereof (collectively, the "A.T. Group") of
international long distance services ("International Services") as provided in
such Reseller Agreement.
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12.2 Notwithstanding the provisions of Paragraph
12.1:
(a) if the USFI-Group is unable to process
calls due to the fact that no electricity passes through the USFI-Group's switch
("system failure"), the A.T. Net Group shall be entitled to switch customers to
some other carrier during the time the USFI-Group is unable to process calls.
Such switching shall cease (and the customers returned to the USFI-Group) at
such time as a member of the USFI-Group shall have given A.T. Net notice (which
need not be in writing) that the system failure has been corrected;
(b) in the event of a problem concerning the
quality of International Services, a member of the USFI-Group will discuss such
matter with A.T. Net with a view to resolving it promptly;
(c) if any of KDD, IDC, ITJ or other
Japanese Type I telecommunications carrier offer to A.T. Net or Asahi
international rates that are lower than those offered by the USFI-Group, the
USFI-Group shall have the right to either match those rates or decide to utilize
such other carrier itself and the parties will discuss and decide how the
savings gained shall be allocated.
(d) if any customer of the A.T. Net Group in
the domestic market demands that its international calls be carried by a
provider other than a member of the USFI-Group, the A.T. Net Group shall be
entitled, in its discretion, to route such customer to the international carrier
designated by such customer; provided, that, when the revenues from such "other"
carrier customers that would have accrued to the USFI-Group if such customers
had not designated an "other" carrier exceed 30% (or, from and after the date
A.T. Net closes a public offering of its shares, 50%) of the quarterly gross
revenues to the USFI-Group from the A.T. Net Group signed customers, the advance
consent of a member of the USFI-Group to the provision of an "other" carrier to
such customers exceeding 30% (or, from and after the date A.T. Net closes a
public offering of shares, 50%) shall be required. Such consent will be provided
or not provided in the good faith discretion of the USFI-Group. Upon request the
A.T. Group will provide a member of the USFI-Group access to the appropriate
records to verify the foregoing amounts.
12.3 Subject to the provisions of Paragraph 12.4,
paragraph 13 of the USFI Provider Reseller Agreement, entitled "Limitations of
Liability", shall apply to the provision of International Services as if
specifically set forth herein at length.
12.4 If, in accordance with the provisions of
Paragraph 12.2(a) above, the A.T. Net Group switches customers to other carriers
as a result of a system failure, the following provisions shall apply:
(a) The A.T. Net Group shall be required to
give written notice to USFI of the switching indicating the period thereof, the
name of the alternate carrier used and the rates charged by it.
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(b) The A.T. Net Group will be required to
use an alternate carrier that is the lowest cost provider available.
(c) USFI-Japan agrees to reimburse A.T. Net
for 70% of its incremental cost (that is, the difference between the rates
payable by the A.T. Net to USFI-Japan and the rates, if higher, paid by the A.T.
Net Group to the alternate carrier) in using the alternate carrier for as long
as the system failure continues except that USFI-Japan shall have no liability
(i) if the system failure is attributable to a force majeure event of a type
described in Paragraph 13.2 of the Reseller Agreement or (ii) if interruptions
in service, for maintenance, do not exceed six (6) hours per month. USFI-Japan
agrees to give A.T. Net advance notice of the periods during which the system
will be shut down for maintenance.
(d) USFI-Japan shall have the option, in its
sole discretion, to be released from the liability provisions set forth in
Paragraph 12.4(c) above by releasing the A.T. Net Group from the provisions of
Paragraph 12.1 above.
13. TelePassport Name and Logo
A.T. Net acknowledges and agrees that the "TelePassport" name
and logo is the property of USFI and its affiliates. A.T. Net agrees to use its
best efforts to cause (i) the TelePassport logo to be clearly displayed on its
invoices to customers and (ii) such invoices to clearly state that TelePassport
is the provider of international long distance service. Such display will be
submitted to USFI for prior approval.
14. Miscellaneous
The parties agree that:
14.1 The provisions of this Agreement may be amended
or waived if, and only if, such amendment or waiver is in writing and signed, in
the case of any amendment, by the parties thereto or, in the case of a waiver,
by the party against whom the waiver is to be effective. Any such waiver shall
be effective only to the extent specifically set forth in such writing.
14.2 The headings in this Agreement have been
inserted for convenience of reference only and shall not control or affect the
meaning or construction of this Agreement.
14.3 This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by the others.
14.4 In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality or
unenforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
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14.5 This Agreement shall be governed and construed
in accordance with the laws of New York. The parties hereby agree that all
disputes or controversies arising out of or in conjunction with this Agreement
shall be litigated in the courts of Japan. The prevailing party in any such
litigation shall be entitled to an award of reasonable attorneys' fees, costs
and disbursements.
14.6 This Agreement has been executed and delivered
in a text using the English language.
14.7 Any and all notices and other communications
required or provided herein (i) from a member of the USFI-Group to a member of
the A.T. Net Group shall be in Japanese and (ii) from a member of the A.T. Net
Group to a member of the USFI-Group shall be in English, and in each case shall
be deemed to have been duly given if in writing and delivered personally, or
given by reputable overnight delivery service, or by telecopier, addressed to
the respective parties as follows:
(a) If to USFI, USFI-Japan or USFI Network, to:
USFI Network X.X.
Xxxxxxx Building, Fifth Floor
0-00-00 Xxxxx,
Xxxxxxx-xx, Xxxxx 000
XXXXX
Attention: Xxxxxxx Xxxxxxx
Telecopier: (00) 0000-0000
with a copy to:
USFI, Inc.
1212 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
(b) If to Asahi or A.T. Net to:
Asahi Telecom Co., Ltd.
Asahi Telecom Building 0-0-00
Xxxxxxxxxx-Xxxxxxxxx
Xxxx-xx, Xxxxx 000
Xxxxx
Attention: Xxxxxx Xxxxxx
Telecopier: (00) 0000-0000
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(c) If to NTP, to each of the above parties.
Unless otherwise provided, the effective date of all notices shall be the date
of receipt thereof. The above addresses may be changed at any time hereafter by
the giving of 10 days' prior notice thereof as hereinabove provided.
14.8 Any rights granted hereunder to USFI-Network
may, at its sole election, be exercised by any affiliate designated by
USFI-Network. Subject to the foregoing, this Agreement shall not be assignable
by any party without the consent of the other parties, provided that no such
consent shall be required in connection with an assignment of this Agreement
together with the transfer of all or substantially all of the assets of the
assigning party or in connection with the assignment to an affiliate. No such
assignment shall relieve the assigning party from any obligation hereunder.
14.9 As used herein, the term "Business Day" means
days in which banks in New York and Tokyo are open for business.
14.10 This Agreement constitutes the entire agreement
among the parties concerning the subject matter hereof and supersedes any and
all prior and contemporaneous agreements among the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the undersigned have executed and
delivered this Securities Purchase Agreement as of the date set forth above.
USFI, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
USFI-JAPAN, L.L.C.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager
USFI NETWORK K.K.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
NIHON TELEPASSPORT K.K.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
ASAHI TELECOM CO., LTD.
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
A.T. NET K.K.
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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SCHEDULE 8.4
SHAREHOLDERS
(omitted)
Schedule 8.9
MATERIAL CONTRACTS
(omitted)
Schedule 8.10
INDEBTEDNESS AS OF JANUARY 31, 1997
(omitted)
