STOCK AND PROMISSORY NOTES PURCHASE AGREEMENT
Agreement, dated as of September 30, 2003, between GNB Bank
(Panama) S.A, a bank organized under the laws of Panama with offices at Torre
Banco Xxxxxxxxxxx, Xxxx 00, Xxxxxx Xxxx, Xxxxxxxx of Panama ("Seller") and
Hispanic Telecommunications Holding S.A. ("Purchaser"), a corporation organized
under the laws of Luxembourg with offices at 0 Xxx Xxxxxxxx X-0000, Xxxxxxxxxx.
RECITALS
A. Seller is the owner of 38,352,714 shares of the common stock, par
value $.001 per share ("PHGW Shares") of Phone1 Globalwide, Inc. ("PHGW"), a
corporation existing under the laws of the State of Delaware, United States.
B. Seller is the owner and payee of promissory notes (individually and
collectively, the "Notes") issued by Phone1 Inc., a Florida corporation, United
States (and a wholly owned subsidiary of PHGW) having an outstanding, in the
aggregate, principal amount of US$20,000,000 in accordance with loan agreements
( individually and collectively "L Agreements") signed between the Seller and
Phone1.
C. Seller wishes to sell the PHGW Shares and the Notes and the Purchaser
wishes to purchase the PHGW Shares and Notes, upon the terms and subject to the
conditions below set forth.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt of which is acknowledged, it is agreed as
follows:
1. Sale of Stock and Notes.
(a) Seller shall sell to the Purchaser, and the Purchaser purchases from
the Seller, on September 30, 2003 (the "Closing Date"), the PHGW Shares for a
price ("Purchase Price") of US$15,000,000. The Purchase Price shall be paid on
the Closing Date to the Seller in immediately available New York Clearing House
funds in United States dollars and shall be wire transferred to the account(s)
designated in a written notice from the Seller to the Purchaser prior to the
Closing Date.
(b) The Seller sells and assigns to the Purchaser, and the Purchaser
purchases from the Seller, on the Closing Date, the Notes and the L Agreements
for a price of US$20,000,000 plus interest accrued thereon to the Closing Date (
the "Note Purchase Price"). The Note Purchase Price shall be paid on the Closing
Date to the Seller in immediately available New York Clearing House funds in
United States dollars and shall be wire transferred to the account(s) designated
in a written notice from the Seller to the Purchaser prior to the Closing Date.
(c) The Seller shall deliver to the Purchaser on the Closing Date (i)
stock certificate(s) for the PHGW Shares, together with stock powers executed by
one of its authorized officers with a
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signature guarantee by a member of the New York Stock Exchange or a United
States commercial bank; and (ii) the Notes and the L Agreements and assignments
thereof.
(d) On the Closing Date, the Purchaser shall convert, effective as of
the Closing Date, the aggregate principal amount of the Notes (and take such
action and execute such documents and instruments to do so in accordance with
the L Agreements) into 50,000,000 shares of the common stock, par value $.001
per share of PHGW. Purchaser acknowledges that in connection with the issuance
to it of such 50,000,000 shares that substantially the same undertakings and
representations made by it in Section 2 (a) through (g) hereof need be made to
PHGW and the certificate for such 50,000,000 shares will contain the first
legend set forth in Section 2 (h) hereof.
(e) The Closing shall take place at the offices of Proskauer Rose, LLP,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10 A.M., United States East Coast
time.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser represents, warrants and covenants to Seller as follows:
(a) The PHGW Shares and the Notes are received by the Purchaser for
investment purposes for its own account, and not with the view to, or for resale
in connection with, any distribution thereof. The Purchaser understands that the
PHGW Shares and the Notes have not been registered under the United States
Securities Act of 1933, as amended (the "Securities Act"), or under the
securities laws of various states of the United States or any other
jurisdiction, and cannot be sold other than by reason of a specified exemption
from the registration provisions thereunder.
(b) The Purchaser acknowledges that the PHGW Shares and Notes must be
held indefinitely unless they are subsequently registered under the Securities
Act and under applicable state securities laws or an exemption from such
registrations is available. The Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act which permits
limited resale of the securities purchased in a private placement subject to
satisfaction of certain conditions including, among other things, the
availability of certain current public information about PHGW and compliance
with applicable requirements and the amount of securities to be sold and the
manner of sale.
(c) The Purchaser is a sophisticated investor with knowledge and
experience in business and financial matters and is able to bear the economic
risk and lack of liquidity inherent in owning PHGW Shares and the Notes.
(d) The Purchaser has carefully reviewed all information filed by PHGW
pursuant to the Securities Act or the United States Securities Exchange Act of
1934, as amended, and relies solely on such information and acknowledges that
neither the Seller nor its affiliates has provided any information to it
regarding PHGW or its subsidiaries or affiliates of any of them; is not relying
upon the Seller for the accuracy or completeness of any of the information
contained in such filings and is none of them is responsible to provide any
information to Purchaser in respect to PHGW or its subsidiaries or affiliates of
any of them.
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(e) The Purchaser is aware that no federal or state or other agency has
passed upon or made any finding or determination concerning the fairness of the
transactions contemplated by this Agreement.
(f) The Purchaser understands and acknowledges that neither the United
States Internal Revenue Service nor any other tax authority has been asked to
rule on nor has it ruled on the tax consequences of the transaction contemplated
hereby.
(g) The Purchaser is an "Accredited Investor" as the term is defined in
Rule 501(a) of Regulation D under the Securities Act.
(h) The Purchaser understands that all certificates for the PHGW Shares
and the Notes bear, respectively, a legend in substantially the following forms:
" THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT SUCH REGISTRATION OR
THE DELIVERY TO THE ISSUER OF AN OPINION OF COUNSEL, SATISFACTORY TO THE ISSUER,
THAT SUCH DISPOSITION WILL NOT REQUIRE REGISTRATION OF SUCH SECURITIES UNDER THE
SECURITIES ACT, OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS."
"THIS NOTE MAY NOT BE TRANSFERRED, SOLD, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
IN ACCORDANCE WILL ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS."
(i) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of Luxembourg and it has the full power and
authority to conduct its business as now being conducted and to own, operate or
lease the properties and assets it currently owns, operates or holds under
lease. Purchaser is duly licensed and qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the character of
its business or the nature of its properties or assets makes such qualification
or licensing necessary, except for those jurisdictions where the failure to be
so qualified, licensed or in good standing would not have a material adverse
effect on it.
(j) The Purchaser has full power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereunder. The execution and delivery of this
Agreement by the Purchaser of its obligations hereunder and the consummation of
the transactions contemplated hereunder have been duly authorized by the Board
of Directors of the Purchaser and, to the extent necessary under the laws of
Luxembourg or the organization documents of the Purchaser, by its stockholders.
This Agreement has been duly executed and delivered by the Purchaser and
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, and other laws of general
applicability affecting the rights and remedies of creditors.
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(k) The execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated herein do not
and will not: (i) conflict with, result in the breach, modification, termination
or violation of, or loss of any benefit under, constitute a default under,
accelerate the performance required by, result in or give right to a right to
amend or modify the terms of, result in the creation of any lien or encumbrance
upon any assets or properties, or in any manner release any party thereto from
any obligation under, any mortgage, note, bond, indenture, contract agreement,
lease, license or other instrument or obligations of any kind or nature by which
the Purchaser or any of its properties or assets, may be bound or affected; (ii)
conflict with, violate or result in any loss of benefit under, any order,
judgment, writ, injunction, regulation, statute or decree; (iii) conflict with,
violate or result in any loss of benefit under, any permit, concession or
franchise; or (iv) conflict with or violate any provision of the Certificate of
Incorporation, charter or organization documents or By-Laws, each as heretofore
amended, of the Purchaser.
(l) There are not outstanding or threatened any claims or proceedings of
any nature as against the Purchaser which could in any manner affect the
delivery of this Agreement or the consummation of the transactions contemplated
herein.
(m) All of the representations, warranties and covenants and undertaking
made by Purchaser shall survive the execution and delivery of this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER. The Seller
represents, warrants and covenants to the Purchaser as follows:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the Republic of Panama and it has the full power
and authority to conduct its business as now being conducted and to own, operate
or lease the properties and assets it currently owns, operates or holds under
lease. The Seller is duly licensed and qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the character of
its business or the nature of its properties or assets makes such qualification
or licensing necessary, except for those jurisdictions where the failure to be
so qualified, licensed or in good standing would not have a material adverse
effect on it.
(b) The Seller has full power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereunder. The execution and delivery of this
Agreement and the performance by the Seller of its obligations hereunder and the
consummation of the transactions contemplated hereunder and thereunder, have
been duly authorized by the Board of Directors of the Seller and, to the extent
necessary under the laws of the Republic of Panama or the organization documents
of the Seller, by its stockholders. This Agreement has been duly executed and
delivered by the Seller and constitute the legal, valid and binding obligations
of the Seller, enforceable against it in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, and
other laws of general applicability affecting the rights and remedies of
creditors.
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(c) The execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated herein do not
and will not: (i) conflict with, result in the breach, modification, termination
or violation of, or loss of any benefit under, constitute a default under,
accelerate the performance required by, result in or give right to a right to
amend or modify the terms of, result in the creation of any lien or encumbrance
upon any assets or properties, or in any manner release any party thereto from
any obligation under, any mortgage, note, bond, indenture, contract agreement,
lease, license or other instrument or obligations of any kind or nature by which
the seller or any of its properties or assets, may be bound or affected; (ii)
conflict with, violate or result in any loss of benefit under, any order,
judgment, writ, injunction, regulation, statute or decree; (iii) conflict with,
violate or result in any loss of benefit under, any permit, concession or
franchise; or (iv) conflict with or violate any provision of the Certificate of
Incorporation, charter or organization documents or By-laws, each as heretofore
amended, of the Seller.
(d) There are not outstanding or threatened any claims or proceedings of
any nature as against the Seller which could in any manner affect the delivery
of this Agreement or the consummation of the transactions contemplated herein.
(e) All of the representations, warranties and covenants made by the
Seller shall survive the execution and delivery of this Agreement.
(f) The PHGW Shares and Notes are owned by the Seller free and clear of
any liens, encumbrances or restrictions of any kind or nature, except in respect
to the legend referred to in Section 2(h) hereof.
4. INDEMNIFICATION, GENERALLY. From and after the date hereof, each of the
Seller and the Purchaser shall indemnify, defend and save harmless the other and
their respective officers, directors, employees, agents and representatives (
each an "Indemnified Party") from and against, and to promptly pay to an
Indemnified Party or reimburse an Indemnified Party for, any and all claims,
liabilities, losses, costs, expenses, interest and fines (including reasonable
attorneys fees and expenses of attorneys, accountants and other experts incurred
by any Indemnified Party) sustained or incurred by any Indemnified Party
relating to, resulting from, arising out of or otherwise by virtue of any breach
of any of the representations, warranties or covenants of the other herein or
the failure to perform any undertaking or obligation to be undertaken or
performed by it hereunder.
5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties regarding the subject matter thereof and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are
hereby merged herein.
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6. GOVERNING LAW, SERVICE OF PROCESS.
(a) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York, United States, without regard to
conflict of law principles. Any dispute with respect to the interpretation of
this Agreement or the rights and obligations of the parties shall exclusively be
brought in a proceeding in the United States District Court for the Southern
District of New York, or if such court does not have subject matter jurisdiction
then in the Supreme Court of the State of New York, County of New York. Each of
the parties accepts and consents for itself and its property, generally and
unconditionally to the exclusive jurisdiction of such courts and waives the
right to object to the jurisdiction or venue of either of such courts and waives
the right to claim that such courts are inconvenient forums. Each of the parties
specifically states that this Agreement and any disputes as to their meaning or
the rights and obligations of the parties shall not be subject to arbitration.
(b) Each of the parties hereby irrevocably designates, appoints and
empowers the party or entity set forth in Exhibit A ( the "Agent") hereto under
its name (who must have regular and principal offices in New York, New York,
United States) as its agent and designee to receive, accept and acknowledge for
and on its behalf , and in respect to its property, service of any and all legal
process, summons, notices and documents which may be served in any action or
proceeding. If for any reason such Agent shall cease to be available to act as
such, each party agrees to immediately designate a new Agent on the same terms
as set forth herein. Each of the parties further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies by Federal Express or like courier to the
address of the party as set forth in this Agreement. Notwithstanding the
foregoing (i) service of any such process on the Agent of a party shall be
deemed effective service on the party who designated and appointed such Agent;
and (ii) nothing herein shall be deemed to constitute a general consent to the
service of process or the in personam jurisdiction of the courts of the State of
New York for legal actions or proceedings not related to this Agreement or the
transactions contemplated by this Agreement.
7. NOTICES. Any notice, consent or other communication required or
permitted hereunder or which any party sends to the others shall be in writing
and delivered in person or by Federal Express or like courier service or by
confirmed facsimile transmission and
If to the Seller:
Torre Banco Continental
Piso 00,
Xxxxxx Xxxx, Xxxxxxxx of Panama
Attention: Xx. Xxxxxx Xxxxxxxxxx
Facsimile No: 000 000 0000
If to Purchaser: 0 Xxx Xxxxxxxx X-0000
Xxxxxxxxxx
Facsimile No. (000) 000-000-000
Attention: Xx. Xxxxxxx Xxxxxxxxxxx
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or to such other address or party as either party hereto give notice to the
other.
8. CONFIDENTIALITY. This Agreement and the terms thereof shall be kept
confidential and not disclosed to any person or party (except the respective
attorneys of the parties), except as may be required by law.
9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
10. AMENDMENTS OR MODIFICATIONS. This Agreement may not be amended or
modified in any manner except by a writing signed by each of the parties hereto.
The waiver by any party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other breach.
11. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, assigns and legal
representatives and heirs; provided, however, that (i) this Agreement and the
rights and obligations of the Purchaser may not be assigned; and (ii) the PHGW
Shares and Notes are subject to limitations on transfer and assignment as set
forth in this Agreement.
12. COOPERATION. Each of the parties shall cooperate with each other and
sign such other documents and instruments hereafter, without cost or expense, in
order to effectuate the provisions of this Agreement.
13. WAIVER OF JURY TRIAL. Each party hereby waives, to the fullest extent
permitted by law, any right it may have to a trial by jury in respect to any
proceeding directly or indirectly arising out of, under or in connection with
this Agreement.
14. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK].
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IN WITNESS HEREOF, the parties have executed this Agreement as of the
date first above written.
GNB BANK (PANAMA), S.A.
By:_____________________
Name:__________________
Title:___________________
HISPANIC TELECOMMUNICATIONS HOLDING, S.A.
By:_____________________
Name:__________________
Title:___________________
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EXHIBIT A
1. Agent for service of process on Seller in New York, New York, United
States:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
c/o Xxxxx X. Xxxxx
Facsimile No. (000) 000-0000
E-Mail: xxxxxx@xxxxxxxxx.xxx
2. Agent for service of process on Purchaser in New York, New York, United
States:
Name
Address
Attention
Facsimile No.
E-Mail:
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