STOCK PURCHASE AGREEMENT
BY AND BETWEEN
KPN TELECOM B.V.,
A LIMITED LIABILITY COMPANY
ORGANIZED UNDER THE LAWS OF THE NETHERLANDS,
AND
CORCYRA D.O.O.
A CROATIAN COMPANY
DATED AS OF JANUARY 28, 2005
CONTENTS
SECTION PAGE
1. DEFINITIONS 3
2. PURCHASE AND SALE OF SHARES 6
2.1 Purchase Price 6
2.2 Initial Closing 6
2.3 Premium Payments 8
2.4 Final Closing 8
3. REPRESENTATIONS AND WARRANTIES OF SELLER 9
3.1 Organization 9
3.2 Authority Relative to this Agreement 9
3.3 No Conflict; Required Filings and Consents 9
3.4 No Commissions 10
3.5 Title to Shares 10
3.6 Litigation 10
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER 10
4.1 Organization 10
4.2 Authority Relative to this Agreement 11
4.3 Restricted Securities 11
4.4 Securities Act 11
4.5 No Conflict; Required Filings and Consents 11
4.6 No Commissions 11
4.7 Due Diligence 12
4.8 Availability of Funds 12
4.9 Schedule 13D 12
4.10 Litigation 12
4.11 United States Margin Regulations 13
5. ADDITIONAL AGREEMENTS 13
5.1 Legal Conditions to Closing 13
5.2 Additional Actions 13
5.3 Press Releases 13
5.4 Board of Directors 13
5.5 Registration Rights 13
5.6 Other Proposals. 14
5.7 Voting by Seller. 14
6. COVENANTS 15
6.1 Purchaser Information 15
7. CONDITIONS TO CLOSING 15
7.1 Conditions to Purchaser's Obligation 15
7.2 Conditions to Seller's Obligation 16
7.3 No Rescission 16
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8. TERMINATION 17
8.1 Termination 17
8.2 Effect of Termination 17
9. INDEMNIFICATION 18
9.1 Survival of Representations and Warranties 18
9.2 Seller's Agreement to Indemnify 18
9.3 Purchaser's Agreement to Indemnify 18
9.4 Procedures for Resolution and Payment of
Claims for Indemnification 18
9.5 Materiality, Limitation of Liability 19
10. MISCELLANEOUS 20
10.1 Notices 20
10.2 Assignment; Binding Effect; No Third-Party Rights 21
10.3 Entire Agreement 21
10.4 Expenses 21
10.5 Waivers; Amendments 21
10.6 Reformation and Severability 21
10.7 Governing Law 22
10.8 Counterparts 22
10.9 Headings 22
10.10 Payments in U.S. Dollars 22
10.11 Confidentiality Obligations 22
10.12 No Partnership 22
EXHIBITS
Exhibit A Form of Escrow Agreement
Exhibit B Letter of Xxxxx Har Adir
Exhibit C Final Closing Purchase Price
Exhibit D Form of Seller Officer's Certificate
Exhibit E Form of Purchaser Officer's Certificate
SCHEDULES
Schedule 4.9 Schedule 13D
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into as of January 28, 2005,
by and between:
(1) KPN TELECOM B.V., a limited liability company organized under the laws of
The Netherlands (SELLER); and
(2) CORCYRA D.O.O., a company organized under the laws of Croatia (PURCHASER).
RECITALS:
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell
to Purchaser, 2,326,043 shares of common stock (the SHARES) of EuroWeb
International Corp., a Delaware corporation (the COMPANY), constituting
approximately 43.5% of the issued and outstanding shares of the Company (based
on 5,342,533 shares issued and outstanding as of January 27, 2005, according to
information provided by the Company's transfer agent), on the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of and subject to the premises and the mutual
agreements, terms and conditions herein contained, the benefits to be derived
therefrom and other good and valuable consideration, the receipt and the
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS
1.1 As used in this Agreement and the Schedules and Exhibits related hereto,
the terms used are defined as follows, except where the context of this
Agreement or a Schedule or Exhibit hereto clearly indicates otherwise:
AFFILIATE of a party means a corporation, limited liability company, or
other entity that (i) is controlled by a party; (ii) is controlled by
another corporation, limited liability company, or entity that also
controls the party; or (iii) controls the party, where the terms "control"
and "controlled" mean direct or indirect ownership of more than fifty
percent (50%) of the stock or interest having a right to vote for
directors or managers and the power to direct or cause the direction of
the management and policies of such person, whether through the ownership
of voting securities, by contract, or otherwise.
AGREEMENT means this Stock Purchase Agreement, dated as of January 28,
2005, by and between Seller and Purchaser, including the attached
Schedules and Exhibits, as the same may be modified, supplemented and
amended.
BUSINESS DAY means any day other than a Saturday, Sunday or other day on
which commercial banks in The Netherlands or New York are authorized or
required to be closed or on which The Nasdaq SmallCap Market is closed.
CLOSING means, as applicable, the Initial Closing or the Final Closing.
CLOSING DATE means a date on which the Initial Closing or the Final
Closing shall occur.
COMPANY has the meaning ascribed to it in the recital set forth above.
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CONSENT means any approval, consent, authorization, waiver, notice, filing
or exemption to, from, or with respect to a specified action.
DAMAGES has the meaning ascribed to it in Section 9.2.
ESCROW AGENT means JPMorgan Chase Bank N.A.
ESCROW AGREEMENT means the escrow agreement, dated as of January 28, 2005,
executed by Purchaser, Seller and the Escrow Agent, and substantially in
the form of Exhibit A.
EXHIBIT means an attachment referred to in this Agreement that is made a
part of this Agreement by its attachment hereto.
FINAL CLOSING means the closing of the sale of the Final Shares to
Purchaser as contemplated by this Agreement.
FINAL CLOSING DATE means the date on which the Final Closing shall occur.
FINAL CLOSING PURCHASE PRICE has the meaning ascribed to it in Section
2.4(c).
FINAL SHARES has the meaning ascribed to it in Section 2.4(a).
FINANCING has the meaning ascribed to it in Section 4.8.
GOVERNMENTAL AUTHORITY means any court, government or political
subdivision or department thereof, any governmental or regulatory body,
board, bureau, arbitrator or alternative dispute resolution body,
administrative agency or commission, securities exchange or other
governmental agency or instrumentality of competent jurisdiction.
GOVERNMENTAL CONSENT means a Consent of any Governmental Authority.
INDEMNITEE has the meaning ascribed to it in Section 9.4(a).
INDEMNITEE'S NOTICE has the meaning ascribed to it in Section 9.4(a).
INDEMNITOR has the meaning ascribed to it in Section 9.4(a).
INITIAL CLOSING means the closing of the sale of the Initial Shares to
Purchaser as contemplated by this Agreement.
INITIAL CLOSING PURCHASE PRICE has the meaning ascribed to it in Section
2.2(c).
INITIAL SHARES has the meaning ascribed to it in Section 2.2(a).
KNOWLEDGE in the phrase "to its knowledge", "to the best of its knowledge"
or "has knowledge of" or a similar phrase, when used to qualify a
statement of a party, shall be deemed to be that knowledge held and, in
the case of the phrase "to the best of its knowledge," knowledge which
would have been held, assuming commercially reasonable investigation and
inquiry, in each case by the officers, directors and managers of (i)
Seller, if Seller is making such statement, and (ii) Purchaser, if
Purchaser is making such statement, at the time such statement is made.
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LAW means any applicable international, foreign, national, provincial,
state or local (or other political subdivision) statute, law (including
common law), ordinance, order, rule, regulation or binding requirement of
a Governmental Authority.
LIABILITY means, with respect to any Person, any liability or obligation
of such Person of any kind, character or description, whether known or
unknown, absolute or contingent, direct or indirect, accrued or unaccrued,
assessed or non-assessed, liquidated or unliquidated, secured or
unsecured, joint or several, due under a guarantee of another Person's
Liability, due or to become due, vested or unvested, executory, determined
or determinable and whether or not the same is required to be accrued on
such Person's financial statements.
MATERIAL ADVERSE EFFECT means, with respect to any Person, a material
adverse effect on the financial condition, business, assets, Liabilities,
properties, prospects or results of operations of such Person and its
subsidiaries taken as a whole or a material adverse effect on its ability
to consummate the Transactions.
NOTICE has the meaning ascribed to it in Section 10.1.
PARTIES means, unless the context otherwise requires, Seller and
Purchaser.
PERSON means any individual, firm, corporation, partnership, trust, joint
venture, Governmental Authority or other entity, and shall include any
successor (by merger or otherwise) of such entity.
PROCEEDING means any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative,
investigative, or informal) commenced, brought, conducted, or heard by or
before, or otherwise involving, any Governmental Authority or arbitrator.
PURCHASE PRICE means the Initial Closing Purchase Price and the Final
Closing Purchase Price.
PURCHASER means CORCYRA d.o.o.
PURCHASER INDEMNITEE has the meaning ascribed to it in Section 9.2.
REPRESENTATIVES means, with respect to any Person, any of such Person's
officers, directors, employees, agents, attorneys, accountants,
consultants, equity partners or financial advisors or other Persons acting
on behalf of such Person.
SCHEDULE means an attachment referred to in this Agreement that is made a
part of this Agreement by its attachment hereto.
SECURITIES ACT means the United States Securities Act of 1933, as amended.
SELLER means KPN Telecom B.V., a limited liability company organized under
the laws of The Netherlands.
SELLER INDEMNITEE has the meaning ascribed to it in Section 9.3.
SHARES has the meaning ascribed to it in the recital set forth above. The
Initial Shares and the Final Shares together are the Shares.
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SUBSIDIARY of a specified person is an Affiliate controlled by such person
directly, or indirectly through one or more intermediaries.
THIRD PARTY CLAIM has the meaning ascribed to it in Section 9.4(a).
TRANSACTIONS means the sales of Shares to Purchaser at the Initial Closing
and the Final Closing.
U.S.$ or U.S. DOLLARS means United States dollars.
1.2 In this Agreement:
(a) words denoting persons shall include bodies corporate and
unincorporated associations of persons;
(b) subject to Section 10.2, references to a party to this Agreement
include references to the successors or assigns (immediate or
otherwise) of that party; and
(c) if any payment obligation set forth in Section 2 of this Agreement
falls due on a day that is not a Business Day, payment shall be due
on the next following Business Day.
2. PURCHASE AND SALE OF SHARES
2.1 PURCHASE PRICE
The aggregate consideration payable by Purchaser as the Purchase Price for
the Shares shall be:
(i) the Initial Closing Purchase Price (as defined in Section 2.2(c)) in
respect of the Initial Shares; and
(ii) the Final Closing Purchase Price (as defined in Section 2.4(c)) in
respect of the Final Shares.
2.2 INITIAL CLOSING
(a) Subject to the terms and conditions of this Agreement, at the Initial
Closing Seller shall sell and Purchaser shall purchase 289,855 Shares (the
INITIAL SHARES) for the Initial Closing Purchase Price (as defined below).
(b) The Initial Closing shall take place at 4:00 p.m., Central European Time,
on or about February 1, 2005 or, if earlier, on the first Business Day
occurring five days following satisfaction or waiver of all of the
conditions set forth in Section 7.1 and Section 7.2 (other than those
conditions that by their nature are to be satisfied at the Initial
Closing). The Initial Closing shall occur at such location as the parties
may mutually agree.
(c) At the Initial Closing:
(i) Purchaser shall deliver to Seller:
(A) payment, by wire transfer to the bank account designated in
writing by Seller, immediately available funds in U.S. dollars
in an amount equal to U.S.$1,000,000 (the INITIAL CLOSING
PURCHASE PRICE) as full consideration for the Initial Shares;
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(B) the officer's certificate referred to in Section 7.2(c);
(C) resignation letters of Xxxx Xxxxx and Xxxxx Xxxxx, which shall
only be effective in the event that (a) CORCYRA does not
timely satisfy the conditions contained in Section 7.2 of this
Agreement or (b) this Agreement is otherwise terminated
pursuant to Section 8.1 hereof, including if CORCYRA shall be
in default of its obligation to make any Premium Payment
specified in Section 2.3 of this Agreement; and
(D) the Escrow Agreement, dated as of the date of the Initial
Closing, executed by Purchaser and substantially in the form
of Exhibit A, and providing that Seller shall --------- retain
all voting and other rights associated with the Final Shares
(and Seller shall continue to be the beneficial owner of the
Final Shares) until the Final Closing Purchase Price is paid
in full; provided, however, that so long as Purchaser is not
in default in its obligations hereunder, and this Agreement
remains in effect, the Seller shall vote the Final Shares in
accordance with instructions from Purchaser, so long as such
instructions are received sufficiently in advance of the
applicable vote and such voting would not violate applicable
law or require amendments to any SEC filing of Seller or
Purchaser. Seller shall not be obligated to vote the Final
Shares in accordance with Purchaser's instructions in
connection with any matter (i) proposed by or on behalf of
Purchaser or any of its Affiliates that Purchaser did not
previously disclose to Seller in its Schedule 13D or (ii) as
to which Purchaser or any of its Affiliates would have an
interest that is different from the interests of the other
stockholders of the Company such as an interest that would be
of a nature that would have to be disclosed pursuant to Item
1005(d) of Regulation M-A or Item 404 of Regulation S-K, if
either of such provisions were applicable.
(ii) Seller shall deliver to Purchaser:
(A) one or more certificates representing the Initial Shares,
together with duly executed stock powers endorsed in blank;
(B) the officer's certificate referred to in Section 7.1(c); and
(C) the Escrow Agreement executed by Seller and JPMorgan Chase
Bank N.A. (the ESCROW Agent).
(iii) Seller shall deliver to Escrow Agent:
(A) the Escrow Agreement executed by Purchaser and Seller; and
(B) one or more certificates representing the Final Shares (as
defined in Section 2.4(a)) to be held in escrow in a
segregated escrow account in accordance with the terms of the
Escrow Agreement.
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(d) Attached hereto as Exhibit B, and effective upon the signing of this
Agreement, is a letter from Xxxxx Har Adir, the sole officer, director and
shareholder of Purchaser, pursuant to which Xxxxx Har Adir has committed
personally to fund the obligations of Purchaser under Article 2 of this
Agreement.
2.3 PREMIUM PAYMENTS
Purchaser shall deliver to Seller, by wire transfer to the bank account
listed in Section 2.2(c), in immediately available funds in U.S. dollars,
a premium payment of U.S.$105,609 on each of May 1, 2005, August 1, 2005,
November 1, 2005 and February 1, 2006 (together, the PREMIUM PAYMENTS).
Each Premium Payment when made shall be final and indefeasible. For the
avoidance of doubt, Premium Payments paid shall not be returned, and shall
not entitle Purchaser to receive any Shares, if this Agreement is
terminated prior to the Final Closing. The obligation to make each Premium
Payment shall be unconditional so long as this Agreement shall not have
been terminated or the Final Closing Purchase Price shall not have been
paid.
2.4 FINAL CLOSING
(a) Subject to the terms and conditions of this Agreement, at the Final
Closing Seller shall sell and Purchaser shall purchase 2,036,188 Shares
(the FINAL SHARES), the number of Final Shares being subject to
appropriate adjustment in the event of a stock dividend, recapitalization,
stock split, reverse stock split, subdivision, combination,
reclassification or similar change in the Company's capital structure, for
the Final Closing Purchase Price (as defined below).
(b) The Final Closing shall take place at 4:00 p.m., Central European Time on
April 30, 2006; provided, however, upon 14 days' prior written notice to
Seller, Purchaser may accelerate the Final Closing Date to an earlier
month-end date as specified in such notice; provided, further, that the
Final Closing is subject to the satisfaction or waiver of all of the
conditions set forth in Section 7.1 and Section 7.2 (other than those
conditions that by their nature are to be satisfied at the Final Closing).
The Final Closing shall occur at such location outside of the United
States as the parties may mutually agree.
(c) At the Final Closing:
(i) Purchaser shall deliver to Seller:
(A) payment, by wire transfer to the bank account designated in
writing by Seller, immediately available funds in U.S. dollars
in the amount equal to the sum of (x) the amount listed on
Exhibit C that corresponds to the date of the Final Closing as
determined in accordance with Section 2.4(b) plus (y) the
Additional Payment (as defined below) plus (z) in accordance
with Section 2.3, any Premium Payments due and payable prior
to the Final Closing but remaining unpaid (the FINAL CLOSING
PURCHASE PRICE); and
(B) the officer's certificate referred to in Section 7.2(c).
(ii) Seller shall cause the Escrow Agent to transfer to Purchaser one or
more certificates representing the Final Shares to be purchased at
the Final Closing.
(iii) Seller shall deliver to Purchaser the officer's certificate referred
to in Section 7.1(c).
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(d) As used herein, with respect to any Final Closing Date, the Additional
Payment shall mean, if positive, the product of (A) 2,036,188, (B) 0.5 and
(C) the difference between (I) the average closing price of a share of
Company common stock on The Nasdaq SmallCap Market (as reported by The
Wall Street Journal) for the 60 trading days ending on the second Business
Day prior to the applicable Final Closing Date minus (II) $3.45 (the
ADDITIONAL PAYMENT). The Additional Payment shall be subject to
appropriate adjustment in the event of a stock dividend, recapitalization,
stock split, reverse stock split, subdivision, combination,
reclassification or similar change in the Company's capital structure.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser that the
representations and warranties set forth in this Article 3 are true and
correct on the date hereof and on each Closing Date.
3.1 ORGANIZATION
Seller is a corporation duly organized, validly existing and in good
standing under the laws of The Netherlands, has the requisite corporate
power and authority to own, operate and lease its properties and to carry
on its business as it is now being conducted. Seller is duly qualified to
do business in each jurisdiction in which the nature of its business or
the properties owned, operated or leased by it makes such qualification
necessary.
3.2 AUTHORITY RELATIVE TO THIS AGREEMENT
Seller has all necessary corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and
delivery by Seller of this Agreement and the consummation of the
Transactions contemplated hereby have been duly authorized by Koninklijke
KPN N.V., its sole director, and all other corporate proceedings on the
part of Seller necessary to authorize this Agreement and the Transactions
have been taken. This Agreement has been duly executed and delivered by
Seller.
3.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS
(a) Assuming the accuracy of the Purchaser's representations made herein, the
execution, delivery and performance of this Agreement by Seller do not (i)
conflict with or violate the charter or other organizational document of
Seller, (ii) conflict with or violate any Law or order applicable to
Seller or (iii) breach or constitute a default (or an event which with
notice or lapse of time or both would become a default) under or give to
others any rights of termination, amendment, acceleration or cancellation
of, or result in any loss of any material benefit, or the creation of a
lien on any of Seller's assets pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, permit or other instrument or
obligation to which Seller is a party.
(b) Assuming the accuracy of the Purchaser's representations made herein, the
execution, delivery and performance by Seller of this Agreement do not
require any Governmental Consent to be obtained by Seller prior to the
Closing.
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3.4 NO COMMISSIONS
No Person has or will have, as a result of the Transactions, any right,
interest or valid claim against or upon any party hereto for any
commission, fee or other compensation as a finder or broker because of any
act or omission by Seller or any of its Representatives.
3.5 TITLE TO SHARES
As of the date hereof, Seller owns beneficially and of record all of the
Shares. No Person (other than Purchaser) has any written or oral agreement
or option or any right or privilege, whether by law, preemptive right or
contract, that is capable of becoming an agreement or option for the
purchase or acquisition from Seller of any of the Shares. The Shares will
not be transferred to Purchaser in violation of any preemptive,
preferential or first refusal rights. Upon delivery to Purchaser at the
Initial Closing of certificates representing the Initial Shares, duly
endorsed by Seller for transfer to Purchaser, and upon Seller's receipt of
the Initial Closing Purchase Price therefor, Purchaser will acquire all of
Seller's rights and interests in the Initial Shares to be sold at the
Initial Closing, free of all liens, encumbrances, mortgages, pledges,
security interests or charges of any kind (other than under the Securities
Act, and any other applicable securities law), or any other adverse claim,
assuming that Purchaser obtains control of the certificates and does not
have notice of any adverse claim. Upon delivery to Purchaser at the Final
Closing of certificates representing the Final Shares, duly endorsed by
Seller for transfer to Purchaser, and upon Seller's receipt of the Final
Closing Purchase Price therefor, Purchaser will acquire all of Seller's
rights and interests in the Final Shares to be sold at the Final Closing,
free of all liens, encumbrances, mortgages, pledges, security interests or
charges of any kind (other than under the Securities Act, and any other
applicable securities law), or any other adverse claim, assuming that
Purchaser obtains control of the certificates and does not have notice of
any adverse claim.
3.6 LITIGATION
There are not any (i) Proceedings pending or threatened against or
affecting Seller or any of its Affiliates or (ii) investigations by any
Governmental Authority that are pending or threatened against or affecting
Seller or any of its Affiliates that would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
Seller.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that the
representations and warranties set forth in this Article 4 are true and
correct on the date hereof and on each Closing Date.
4.1 ORGANIZATION
Purchaser is a company duly organized, validly existing and in good
standing under the laws of Croatia and has the requisite corporate power
and authority to own, operate and lease its properties and to carry on its
business as it is now being conducted. Purchaser is duly qualified to do
business in each jurisdiction in which the nature of its business or the
properties owned, operated or leased by it makes such qualification
necessary.
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4.2 AUTHORITY RELATIVE TO THIS AGREEMENT
Purchaser has all necessary corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder. The execution
and delivery by Purchaser of this Agreement and the consummation of the
Transactions contemplated hereby have been duly authorized and all other
corporate proceedings on the part of Purchaser necessary to authorize this
Agreement and the Transactions have been taken. This Agreement has been
duly executed and delivered by Purchaser.
4.3 RESTRICTED SECURITIES
Purchaser understands that:
(i) the Shares being delivered pursuant to this Agreement (A) are
"restricted securities" under the Federal securities laws of the
United States inasmuch as they have not been registered under the
Securities Act, and are being acquired from Seller in a transaction
exempt from registration under the Securities Act pursuant to
Section 4(1) thereof and/or Regulation S promulgated thereunder; (B)
must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from registration;
and (C) will bear a legend to such effect; and
(ii) the Company may make a notation on its transfer books in accordance
with Section 4.3(i).
4.4 SECURITIES ACT
The Shares to be purchased by Purchaser pursuant to this Agreement are
being acquired for investment only and not with a view to any public
distribution thereof, and Purchaser shall not offer to sell or otherwise
dispose of the Shares so acquired by it in violation of any of the
registration requirements of the Securities Act.
4.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS
(a) The execution, delivery and performance of this Agreement by Purchaser do
not (i) conflict with or violate the charter or other organizational
document of Purchaser, (ii) conflict with or violate any Law or order
applicable to Purchaser or (iii) breach or constitute a default (or an
event which with notice or lapse of time or both would become a default)
under or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in any loss of any material benefit, or the
creation of a lien on any of Purchaser's assets pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, permit or other
instrument or obligation to which Purchaser is a party.
(b) The execution, delivery and performance by Purchaser of this Agreement do
not require any Governmental Consent to be obtained by Purchaser prior to
the Closing.
4.6 NO COMMISSIONS
Any Person that has or will have, as a result of the Transactions, any
right, interest or valid claim against or upon any party hereto for any
commission, fee or other compensation as a finder or broker on behalf of
Purchaser shall be compensated by Purchaser and shall only make a claim
against Purchaser, and Seller shall have no liability therefor.
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4.7 DUE DILIGENCE
(a) Purchaser acknowledges that it and its Representatives have conducted
their own independent investigation, review and analysis of the business,
operations, assets, liabilities, results of operations, financial
condition and prospects of the Company based on available public
information, which Purchaser acknowledges is sufficient for its purposes,
which investigation, review and analysis was done by Purchaser and, to the
extent Purchaser deemed appropriate, by its Representatives. Purchaser is
a sophisticated investor with knowledge and experience in business and
financial matters and has received information from Seller concerning the
Company, and has had the opportunity to obtain additional information as
desired in order to evaluate the purchase contemplated hereby.
(b) Purchaser has no knowledge that any of the representations and warranties
of Seller made in this Agreement are not true and correct and Purchaser
has no knowledge of any material errors in, or material omissions from,
the Schedules to the Agreement.
(c) Purchaser acknowledges that, except as expressly set forth in this
Agreement, none of Seller, the Company or any other person has made any
representation or warranty, express or implied, to it as to any matter
relating to the Company or the Shares, including without limitation, as to
the accuracy or completeness of any information regarding Company
furnished or made available to Purchaser or its Representatives.
4.8 AVAILABILITY OF FUNDS
Purchaser has cash available or has existing borrowing facilities or firm
commitments that together are sufficient to enable it to pay the Purchase
Price and consummate the Transactions. True and correct copies of any such
facilities and commitments have been delivered to Seller. The financing
required to consummate the Transactions is collectively referred to as the
FINANCING. As of the date hereof, Purchaser has no reason to believe that
any of the conditions to the Financing will not be satisfied or that the
Financing will not be available on a timely basis for the Transactions.
4.9 SCHEDULE 13D
Attached hereto as Schedule 4.9 is a draft of the Schedule 13D that
Purchaser anticipates filing with the SEC in connection with the Initial
Closing. Purchaser has no current intention to take any material action
with respect to the Company that is not disclosed therein.
4.10 LITIGATION
There are not any (i) Proceedings pending or threatened against or
affecting Purchaser or any of its Affiliates or (ii) investigations by any
Governmental Authority that are pending or threatened against or affecting
Purchaser or any of its Affiliates that would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
Purchaser.
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4.11 UNITED STATES MARGIN REGULATIONS
Purchaser is not a United States person or foreign person controlled by or
acting on behalf of or in conjunction with a United States person within
the meaning of Regulation X of the Board of Governors of the United States
Federal Reserve System.
5. ADDITIONAL AGREEMENTS
5.1 LEGAL CONDITIONS TO CLOSING
Each of Seller and Purchaser shall use its respective reasonable efforts,
and take all reasonable actions necessary, to comply promptly with all
legal requirements that may be imposed on such party with respect to the
Transactions, and shall promptly cooperate with and furnish information to
such other party or parties in connection with any such requirements, as
may reasonably be imposed upon such other party or parties in connection
with the Transactions.
5.2 ADDITIONAL ACTIONS
Neither Seller nor Purchaser shall, prior to a Closing, directly or
indirectly, take any action or agree to take any action, without the prior
written consent of the other party, that would or is reasonably likely to
result in any of the representations or warranties set forth in this
Agreement being untrue in any material respect, or in any of the
conditions to the Closing not being satisfied.
5.3 PRESS RELEASES
Neither Seller nor Purchaser shall issue or cause the publication or
issuance of a press release or public announcement with respect to this
Agreement or the Transactions; provided, however that if the need shall
arise for a press release through no fault or action of either party, the
relevant party may prepare a press release with respect to its involvement
in the Transactions. Such press release shall be subject to the consent of
the other party hereto, which consent shall not be unreasonably withheld
or delayed. Notwithstanding the foregoing, nothing in this Agreement shall
restrict either party's ability to make required filings under the U.S.
Federal securities laws.
5.4 BOARD OF DIRECTORS
In connection with the Initial Closing, Seller shall (i) use its best
efforts to cause the resignation of Seller's sole two representatives on
the Board of Directors of the Company, and (ii) propose to the Company
that two representatives of Purchaser be designated to fill the vacancies
created by the action in (i) above. Notwithstanding anything herein
contained, it is hereby agreed that in the event that Seller is not able
to cause the resignations of both Seller representatives by delivering
signed resignations to Purchaser at the Initial Closing, then in such
event, this Agreement shall immediately terminate, and shall be null and
void.
5.5 REGISTRATION RIGHTS
Seller shall request that the Company grant Purchaser registration rights
over the Initial Shares at the Initial Closing. Seller agrees to transfer
to Purchaser at the Final Closing its registration rights that it acquired
pursuant to the Share Subscription Agreement dated as of November 19, 1999
(and amended and restated on December 13, 1999) between the Company,
Seller and certain directors of the Company (the SUBSCRIPTION AGREEMENT),
provided that, in accordance with the terms of the Subscription Agreement,
Purchaser has undertaken to each of the parties to the Subscription
Agreement in a form satisfactory to them to be bound by all the
obligations of Seller under the Subscription Agreement.
- 13 -
5.6 OTHER PROPOSALS.
Until the earlier of (i) the Initial Closing or (ii) rightful termination
of this Agreement before Initial Closing, the Seller shall not, nor shall
the Seller authorize or permit any Representative of Seller to, directly
or indirectly: (a) initiate contact with any person in an effort to
solicit any Purchase Proposal; (b) cooperate with, or furnish or cause to
be furnished any non-public information concerning the business,
properties, or assets of the Company to any person in connection with any
Purchase Proposal; (c) negotiate with any Person with respect to any
Purchase Proposal; or (d) enter into any agreement or understanding with
the intent to effect a Purchase Proposal. Seller will promptly give
written notice to Purchaser of the details of any Purchase Proposal of
which any of them becomes aware.
For the purposes of this Agreement, the term "PURCHASE PROPOSAL" shall
mean any proposal, other than one contemplated by this Agreement, (i) for
a merger, consolidation, reorganization, or other business combination
involving the Company, (ii) for the acquisition of any interest in the
equity of the Company, (iii) for the acquisition of the right to cast any
votes on any matter with respect to the Company or (iv) for the
acquisition of a substantial portion of the Company's assets other than in
the ordinary course of business.
Nothing in this Section 5.6 shall relate to or affect the rights,
obligations or activities of the Seller's representation on the Board of
Directors of the Company to the extent they are acting in that capacity.
5.7 VOTING BY SELLER.
(a) It is agreed and understood that until the earlier of Initial
Closing or rightful termination of this Agreement, the Seller shall
not vote its shares in the Company for:
(i) any merger, consolidation, reorganization, or other business
combination involving the Company, except as contemplated by
this Agreement;
(ii) any sale, lease, exchange or disposition of assets of the
Company, except as contemplated by this Agreement;
(iii) any issuance of any corporate interests of the Company or, any
option, warrant, or other right calling for the issuance of
any such interest, or any security convertible into or
exchangeable for any such interest (other than any such
interest, including stock options and executive compensation,
proposed in the ordinary course of business);
(iv) any authorization of any class of capital stock of the
Company;
(v) the amendment of the certificate of incorporation of the
Company; or
(vi) any proposition the effect of which is reasonably likely to
inhibit, restrict, or delay the consummation of the
Transactions contemplated by this Agreement or impair the
contemplated benefits to Purchaser, the Company or the Seller
of the Transactions contemplated by this Agreement.
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6. COVENANTS
6.1 PURCHASER INFORMATION
Until Final Closing, Purchaser shall deliver to Seller:
(i) promptly, all notices or other documents dispatched by Purchaser to
Purchaser's shareholders (or any class thereof) or its creditors
generally (or any class thereof);
(ii) promptly, such specific information in the possession or control of
Purchaser regarding the financial condition and operations of
Purchaser or any of its Subsidiaries that is material for evaluation
of Purchaser's ability to perform its obligations under this
Agreement; and
(iii) details of any litigation, arbitration or administrative proceedings
that affect Purchaser or any of its Subsidiaries and which, if
adversely determined, are reasonably likely to have a Material
Adverse Effect on the ability of Purchaser to perform its
obligations under this Agreement, as soon as practicable after the
same are instituted or, to the knowledge of Purchaser, threatened.
7. CONDITIONS TO CLOSING
7.1 CONDITIONS TO PURCHASER'S OBLIGATION
The obligation of Purchaser to purchase and pay for the Shares at any
Closing Date is subject to the satisfaction (or waiver by Purchaser), as
of the applicable Closing Date, of each of the following conditions:
(a) Accuracy of Representations and Warranties. There shall not have
occurred and be continuing on the Closing Date a material breach of
a representation or warranty of Seller made herein.
(b) Performance of Obligations. Seller shall have performed or complied
in all material respects with its covenants and agreements contained
in this Agreement required to be performed or complied with on or
prior to the Closing Date.
(c) Officer's Certificate. Seller shall have delivered to Purchaser a
certificate signed by an officer or officers with authority to bind
Seller (dated as of the Closing Date), in the form of Exhibit D.
(d) No Injunctions. No Law or injunction or other legal restraint or
prohibition preventing the consummation of the Transactions shall
have been enacted, entered, promulgated, enforced or issued by any
Governmental Authority.
(e) No Litigation. No Proceeding shall be pending before any court or
quasi-judicial or administrative agency of any Federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge
would (A) prevent consummation of the Transactions or impose damages
or (B) cause any of the material transactions contemplated by this
Agreement to be rescinded following consummation, and no law,
statute, ordinance, rule, regulation or order shall have been
enacted, enforced or entered which would cause any of the effects
under clause (A) or (B) of this Section 7.1(e) to occur.
- 15 -
7.2 CONDITIONS TO SELLER'S OBLIGATION
The obligation of Seller to sell the Shares to Purchaser at any Closing
Date is subject to the satisfaction (or waiver by Seller), as of the
applicable Closing Date, of each of the following conditions:
(a) Accuracy of Representations and Warranties. There shall not have
occurred and be continuing on the Closing Date a material breach of
a representation or warranty of Purchaser made or incorporated
herein.
(b) Performance of Obligations. Purchaser shall have performed or
complied in all material respects with its covenants and agreements
contained in this Agreement required to be performed or complied
with on or prior to the Closing Date.
(c) Officer's Certificate. Purchaser shall have delivered to Seller a
certificate signed by an officer or officers with authority to bind
Purchaser (dated as of the Closing Date), in the form of Exhibit E.
(d) No Injunctions. No Law or injunction or other legal restraint or
prohibition preventing the consummation of the Transactions shall
have been enacted, entered, promulgated, enforced or issued by any
Governmental Authority.
(e) No Litigation. No Proceeding shall be pending before any court or
quasi-judicial or administrative agency of any Federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge
would (A) prevent consummation of the Transactions or impose damages
or (B) cause any of the material transactions contemplated by this
Agreement to be rescinded following consummation, and no law,
statute, ordinance, rule, regulation or order shall have been
enacted, enforced or entered which would cause any of the effects
under clause (A) or (B) of this Section 7.2(e) to occur.
(f) Board Approval. The Board of Directors of the Company shall have
approved the Transactions for purposes of Section 203 of the
Delaware General Corporation Law (it being understood that this
condition shall be deemed satisfied for the Initial Closing and the
Final Closing if the Board approves the acquisition by Purchaser of
all the Shares prior to the Initial Closing).
7.3 NO RESCISSION
Purchaser shall not be entitled to rescind this Agreement before or after
the Initial Closing, except as set forth in Section 8.1 below.
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8. TERMINATION
8.1 TERMINATION
(a) This Agreement may be terminated at any time prior to the Initial Closing:
(i) by the mutual written consent of Seller and Purchaser;
(ii) by written notice from Purchaser to Seller if the conditions
specified in Section 7.1 with respect to the Initial Closing have
not been satisfied or waived prior to February 1, 2005, or shall
have become incapable of fulfillment;
(iii) by written notice from Seller to Purchaser if the conditions
specified in Section 7.2 with respect to the Initial Closing have
not been satisfied or waived prior to February 1, 2005, or shall
have become incapable of fulfillment; or
(iv) by either party if the other party is in material breach of its
obligations under this Agreement;
provided that a party shall not have the right to terminate this Agreement
if the non-occurrence of the Initial Closing is the result of such party's
breach of this Agreement.
(b) Following the Initial Closing, this Agreement may be terminated at any
time prior to the Final Closing:
(i) by the mutual written consent of Seller and Purchaser;
(ii) by written notice from Purchaser to Seller if the conditions
specified in Section 7.1 with respect to the Final Closing have not
been satisfied or waived prior to May 1, 2006, or shall have become
incapable of fulfillment;
(iii) by written notice from Seller to Purchaser if the conditions
specified in Section 7.2 with respect to the Final Closing have not
been satisfied or waived prior to May 1, 2006, or shall have become
incapable of fulfillment;
(iv) by Seller if Purchaser shall be in default of its obligation to make
any Premium Payment specified in Section 2.3 within five Business
Days after the due date for such Premium Payment; or
(v) by either party if the other party is in material breach of its
obligations under this Agreement;
provided that a party shall not have the right to terminate this Agreement
if the non-occurrence of the Final Closing is the result of such party's
breach of this Agreement.
8.2 EFFECT OF TERMINATION
In the event of termination of this Agreement pursuant to Section 8.1, all
obligations of the parties under this Agreement shall terminate, except
that Article 1, Article 8, Article 10 and Sections 3.3, 4.5 and 5.3 shall
continue in full force and effect. In the event of termination of this
Agreement pursuant to Section 8.1(b), the Escrow Agreement shall be deemed
to be terminated and the Final Shares shall be returned to Seller. Nothing
in this Section 8.2 shall be deemed to release any party from any
liability for any breach by such party of the terms and provisions of this
Agreement that occurred while such terms and provisions were in effect. No
party shall have liability for consequential or punitive damages arising
from a breach or alleged breach of this Agreement.
- 17 -
9. INDEMNIFICATION
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties made by any party pursuant to this
Agreement shall survive the Initial Closing for three years.
9.2 SELLER'S AGREEMENT TO INDEMNIFY
From and after the Initial Closing, subject to the terms and conditions of
this Agreement, Seller shall indemnify, defend and hold harmless Purchaser
and its Affiliates and their respective officers, directors, employees and
Representatives (each an PURCHASER INDEMNITEE) from and against any and
all claims, demands, losses, assessments, fines, penalties, interest,
liabilities, damages, reasonable expenses of investigations, reasonable
experts' fees, reasonable disbursements and other reasonable costs
(including reasonable attorneys' fees) (all of the foregoing hereinafter
referred to collectively as DAMAGES) asserted against, resulting to,
imposed upon or incurred by any Purchaser Indemnitee, that consist of,
arise from or are attributable to a breach of any representation or
warranty of Seller contained in Article 3 of this Agreement.
9.3 PURCHASER'S AGREEMENT TO INDEMNIFY
Effective as of the date hereof, Purchaser agrees to indemnify, defend and
hold harmless Seller and its Affiliates and their respective officers,
directors, employees and Representatives (each a SELLER INDEMNITEE) from
and against any and all Damages asserted against, resulting to, imposed
upon or incurred by any Seller Indemnitee, that consist of, arise from or
are attributable to (a) a breach of any representation or warranty
contained in Article 4 of this Agreement, or (b) any action taken by
Purchaser in its capacity as owner of any of the Shares or by Seller in
accordance with voting instructions delivered pursuant to Section
2.2(c)(i)(C).
9.4 PROCEDURES FOR RESOLUTION AND PAYMENT OF CLAIMS FOR INDEMNIFICATION
(a) Except as provided in Section 9.5, below, if a Person entitled to be
indemnified under this Article 9 (the INDEMNITEE) shall incur any Damages
or determine that it may incur any Damages, either pursuant to a claim or
demand asserted against or sought to be collected from it by a third party
(a THIRD PARTY CLAIM) or a claim or demand that does not involve a claim
or demand being asserted against or sought to be collected from it by a
third party and believes that it is entitled to be indemnified against
such Damages by a party hereunder (the INDEMNITOR), such Indemnitee shall
deliver to the Indemnitor a notice (an INDEMNITEE'S NOTICE) signed by the
Indemnitee, specifying in reasonable detail the nature of such Claim and
the amount estimated to be involved in each claim for Damages, which
amounts may be reasonably modified from time to time by Indemnitee;
provided that any failure to give such Indemnitee's Notice will not waive
any rights of the Indemnitee, except for a willful failure or to the
extent that the rights of the Indemnitor are actually prejudiced.
- 18 -
(b) If a Third Party Claim is made against an Indemnitee, the Indemnitor shall
be entitled to participate in the defense thereof and, if it so chooses,
to assume the defense thereof with counsel selected by the Indemnitor;
provided, however, that such counsel is not reasonably objected to by the
Indemnitee. Any Indemnitee shall have the right to employ separate legal
counsel in any Third Party Claim and to participate in the defense
thereto, but the fees and expenses of such counsel shall not be at the
expense of the Indemnitor unless (i) the Indemnitor shall have failed,
within 30 days after having received an Indemnitee Notice, to assume the
defense of such Claim with counsel reasonably acceptable to the
Indemnitee, (ii) the employment of such counsel has been specifically
authorized by the Indemnitor or (iii) the named parties to any such action
(including, without limitation, any impleaded parties) include both such
Indemnitee and the Indemnitor and, in the reasonable judgment of the
Indemnitee, joint representation of both would be inappropriate due to
actual or potential differing interests, and in that event the reasonable
fees and expense of such separate counsel shall be paid by the Indemnitor.
Except as otherwise herein provided, the Indemnitor shall not be liable to
indemnify an Indemnitee for any settlement of any such action or claim
effected without the consent of the Indemnitor (which consent shall not be
unreasonably withheld or delayed). If the Indemnitor assumes the defense
of a Third Party Claim, the Indemnitee shall agree to any settlement,
compromise or discharge of a Third Party Claim that the Indemnitor shall
recommend and that by its terms obligates the Indemnitor to pay the full
amount of the liability in connection with such claim.
(c) The Indemnitor shall provide the Indemnitee, or vice versa, as the case
may be, with copies of all complaints, motions, answers and other
pleadings filed or received in connection with any Third Party Claim
promptly after filing or receipt thereof.
9.5 MATERIALITY, LIMITATION OF LIABILITY
(a) Notwithstanding anything to the contrary herein, in no event shall any
indemnity pursuant to this Article 9 include any consequential or punitive
damages unless and to the extent that such damages have been asserted
against the Indemnitee in a Third Party Claim.
(b) Notwithstanding anything to the contrary herein, in no event shall Seller
be liable under Section 9.2 for Damages to the extent they exceed the
Purchase Price.
(c) Notwithstanding anything to the contrary herein, in no event shall Seller
be liable under Section 9.2 for Damages to the extent that it relates to
any fact, event, liability or obligation:
(i) that would not have arisen but for a change in legislation announced
after the Initial Closing; or
(ii) with respect to which Purchaser or any Affiliate had knowledge at
the time of the Initial Closing; or
(iii) resulting from any action taken or omitted to be taken by Purchaser
or any Affiliate of Purchaser (other than pursuant to instructions
from Seller).
(d) Notwithstanding anything to the contrary herein, in no event shall
Purchaser be liable under Section 9.3 for Damages to the extent they
exceed the Purchase Price.
(e) Notwithstanding anything to the contrary herein, in no event shall
Purchaser be liable under Section 9.3 for Damages to the extent that it
relates to any fact, event, liability or obligation:
- 19 -
(i) that would not have arisen but for a change in legislation announced
after the Initial Closing; or
(ii) with respect to which Seller or any Affiliate had knowledge at the
time of the Initial Closing; or
(iii) resulting from any action taken or omitted to be taken by Seller or
any Affiliate of Seller (other than pursuant to instructions from
Purchaser).
(f) Each of the parties further acknowledges and agrees that, should the
Initial Closing occur, its sole and exclusive remedy with respect to any
and all claims relating to this Agreement, the Company and the
Transactions (other than claims of, or causes of action arising from,
fraud and claims relating to breaches of Section 2.3 or 2.4 hereof) shall
be pursuant to the indemnification provisions set forth in this Article 9.
In furtherance of the foregoing, Purchaser hereby waives, from and after
the Initial Closing, any and all rights, claims and causes of action it,
the Company or any Affiliate may have against Seller and its Affiliates
arising under or based on any Federal, state or local Law or otherwise
(except pursuant to this Article 9).
10. MISCELLANEOUS
10.1 NOTICES
All reports, approvals, and notices required or permitted by this
Agreement to be given to a party (each a NOTICE) shall be given in
writing, by personal delivery, telecopy or overnight courier, to the party
concerned at its address as set forth below (or at such other address as a
party may specify by written notice pursuant to this Section 10.1 to the
other):
If to Purchaser:
XXXXXXX x.x.x.
Xxxxxxxx 00, Xxxx Xxxxxxx 00000
Fax: x000 00 000 000
Attn: Xxxxx Har Adir
With a copy to:
Xxxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: x0 000 000 0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to Seller:
KPN Telecom B.V.
Xxxxxxxxx 00
0000 XX Xxx Xxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 000 0000
Attn: Xxxx-Xxx Xxxxxxxxx
- 20 -
All Notices shall be deemed effective, delivered and received (a) if given
by personal delivery, or by overnight courier, when actually delivered and
signed for, or (b) if given by facsimile, when such facsimile is
transmitted to the facsimile number specified above and receipt therefor
is confirmed.
10.2 ASSIGNMENT; BINDING EFFECT; NO THIRD-PARTY RIGHTS
Except as otherwise provided in this Agreement, neither this Agreement nor
the rights granted hereunder may be assigned or transferred by Seller or
Purchaser and any attempted assignment, delegation or transfer in
violation hereof, shall be void and of no force and effect. Except as
expressly stated in this Agreement, this Agreement is for the sole benefit
of the parties hereto and is not intended to and shall not confer upon any
Person other than the parties hereto any rights or remedies hereunder.
Except as otherwise provided in this Agreement, this Agreement shall be
binding on the permitted successors and assigns of the parties, each such
permitted successor and assign being deemed to be a party hereunder in
substitution of its respective transferor.
10.3 ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement among the
parties with respect to the subject matter hereof and supersede all prior
oral and written understandings and agreements relating thereto.
10.4 EXPENSES
All expenses incurred by a party or on its behalf in connection with this
Agreement or related to the preparation, negotiation, execution and
performance of this Agreement, shall be borne by the party incurring such
expenses.
10.5 WAIVERS; AMENDMENTS
Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of
such provision or of any breach of any other provision of this Agreement.
The failure of a party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any waiver must be in a
writing signed by the waiving party. This Agreement may only be amended
with the written consent of Seller and Purchaser.
10.6 REFORMATION AND SEVERABILITY
Whenever possible, each provision of this Agreement will be interpreted in
such a manner as to be effective and valid under applicable Law, but if
any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future Laws effective during the term
hereof or would cause any party to violate any such Law, then (i) in lieu
of such illegal, invalid or unenforceable provision, the parties shall
endeavor in good faith negotiations to agree on a provision as similar to
such illegal, invalid or unenforceable provision as may be possible while
still being legal, valid and enforceable, provided that no party shall be
required to agree to any provision that would materially alter any of its
rights or obligations under this Agreement and (ii) the legality, validity
and enforceability of the remaining provisions of this Agreement shall not
in any way be affected or impaired thereby except where the fundamental
relationship among the parties has been materially altered.
- 21 -
10.7 GOVERNING LAW
This Agreement (and any claims or disputes arising out of or related
thereto or to the transactions contemplated thereby or to the inducement
of any party to enter therein, whether for breach of contract, tortious
conduct, or otherwise and whether predicated on common law, statute or
otherwise) shall in all respects be governed by and construed in
accordance with the laws of the State of New York, including all matters
of construction, validity and performance, in each case without reference
to any conflict of law rules that might lead to the application of the
laws of any other jurisdiction.
10.8 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
10.9 HEADINGS
The headings in this Agreement are solely for convenience of reference and
shall be given no effect in the construction or interpretation of this
Agreement.
10.10 PAYMENTS IN U.S. DOLLARS
Except as expressly set forth herein, all payments made hereunder shall be
calculated and made in U.S. Dollars and any payment calculated by
reference to or tendered in any other currency shall not be deemed to
discharge the underlying obligation.
10.11 CONFIDENTIALITY OBLIGATIONS
Each party hereto shall keep confidential, and shall cause its Affiliates
and Representatives to keep confidential, all information contained in or
relating to this Agreement, except as required by applicable law or
administrative process, except as specified in this Agreement and except
for information that is available to the public on the date hereof or
becomes available to the public after the date hereof other than as a
result of a breach of this Section 10.11. The covenant contained in this
Section 10.11 shall survive the Initial Closing for a period of five years
after the Closing Date.
10.12 NO PARTNERSHIP
Nothing in this Agreement shall be deemed to create a partnership, joint
venture or group within the meaning of Section 13(d)(3) under the
Securities Exchange Act of 1934, as amended, and to the extent that any
such partnership, joint venture or group would be deemed to have been
created, the Seller shall have the right to terminate this Agreement
pursuant to Section 8.1 hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
- 22 -
CORCYRA D.O.O.
By: /s/ XXXXX HAR ADIR
-------------------------------------
Name: Xxxxx Har Adir
Title: Sole Officer, Director and
Shareholder
KPN TELECOM B.V.
By: KONINKLIJKE KPN N.V.,
-------------------------------------
its sole Director
By: /s/ X.X. XXXXXXXXX
-------------------------------------
Name: X.X. Xxxxxxxxx
Title: Senior Vice President
- 23 -
