BUSINESS OPPORTUNITY AGREEMENT
This Business Opportunity Agreement (this "Agreement"), dated as of
December 30, 1997, is entered into by and among Enron Capital & Trade Resources
Corp., a Delaware corporation ("ECT"), Colorado Spectra 1, L.L.C. ("Spectra 1"),
Colorado Spectra 2, L.L.C. ("Spectra 2"), and Colorado Spectra 3, L.L.C.
("Spectra 3"), each Colorado limited liability companies controlled directly or
indirectly by Xxxxxx X. Xxxxx (collectively the "Spectra Investors"), and
SpectraNet International, a California corporation ("SpectraNet").
W I T N E S S E T H:
WHEREAS, ECT, SpectraNet and the Spectra Investors are parties to certain
definitive agreements, dated effective the date hereof, providing for the
investment by ECT and the additional investment by one or more of the Spectra
Investors in SpectraNet in the aggregate of Thirty Million Dollars ($30,000,000)
in cash (collectively, the "Proposed Transaction");
WHEREAS, ECT and the Spectra Investors expect to derive significant
benefits from their ownership interest in SpectraNet following consummation of
the Proposed Transaction;
WHEREAS, SpectraNet expects to derive significant benefits from the
investment by ECT and the Spectra Investors upon consummation of the Proposed
Transaction;
WHEREAS, ECT is a wholly-owned subsidiary of Enron Corp., an Oregon
corporation ("Enron"), and Enron owns controlling and other interests in a
number of other entities (Enron, ECT and any other Affiliate of Enron other than
SpectraNet are referred to herein individually as an "Enron Entity" and
collectively as the "Enron Entities");
WHEREAS, the Spectra Investors are controlled by Xxxxxx X. Xxxxx, who owns
controlling and other interests in a number of other entities (the Spectra
Investors and any other Affiliate of the Spectra Investors or Xxxxxx X. Xxxxx
other than SpectraNet are referred to herein individually as a "Xxxxx Entity"
and collectively as the "Xxxxx Entities");
WHEREAS, as a condition to consummation of the Proposed Transaction, ECT
and the Spectra Investors will take certain actions, including representation by
ECT and the Spectra Investors on the Board of Directors of SpectraNet and
participation in the management thereof;
WHEREAS, the Enron Entities and the Xxxxx Entities own interests in a
number of corporations, partnerships and other entities engaged in energy and
telecommunications related businesses and may from time to time acquire
additional interests in such businesses or other businesses;
WHEREAS, ECT has advised SpectraNet and the Spectra Investors that
FirstPoint Communications, Inc. and its affiliates ("FirstPoint"), which are
Enron Entities, (a) are engaged in the business of providing telecommunication
services, and have or may from time to time develop, finance, acquire, or
acquire interests in, telecommunications and related service and product
companies that compete with SpectraNet (including, without limitation, those
that compete in SpectraNet's markets in California) and (b) are, concurrently
with the proposed investment by ECT in SpectraNet, pursuing a financing,
acquisition or investment opportunity in a competitor or potential competitor of
SpectraNet;
WHEREAS, the Enron Entities from time to time purchase properties or
entities and engage in trading, marketing, lending and other activities,
including, but not limited to, those related to gas, electricity, water, paper,
metals, plastics and telecommunications;
WHEREAS, ECT Securities Corp., an Enron Entity, is a registered
broker-dealer that arranges transactions in securities for others and may in the
future engage in securities underwriting activities, including, without
limitation, for Persons who are or may be in competition with SpectraNet;
WHEREAS, ECT and the Spectra Investors are unwilling to make an investment
in SpectraNet and consummate the Proposed Transaction without assurances from
SpectraNet and each other that the Enron Entities and the Xxxxx Entities will be
permitted to continue to conduct their business following the Proposed
Transaction without undue risk of liability or damage to business relationships
with customers; and but for this Agreement ECT and the Spectra Investors would
be unwilling to take such actions because of the unacceptable risk of liability
to ECT, other Enron Entities, the Spectra Investors and other Xxxxx Entities
resulting from uncertainties regarding their obligations;
WHEREAS, the parties hereto desire to provide for more certainty regarding
the circumstances in which SpectraNet will have an obligation to offer Business
Opportunities to ECT, to provide for other agreements intended to permit the
Enron Entities and the Xxxxx Entities to continue to conduct their business
activities without undue risk of liability to SpectraNet or its shareholders or
each other following consummation of the Proposed Transaction or undue risk of
damage to the Enron Entities' or the Xxxxx Entities' business relationships, and
to enter into other agreements aimed at providing, to the extent practicable,
more certainty regarding the obligations of the Enron Entities, the Xxxxx
Entities and SpectraNet;
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WHEREAS, ECT and the Spectra Investors have relied on the fact that this
Agreement would be executed and enforceable and in the future will rely on this
Agreement and the commitments herein made by SpectraNet, ECT and the Spectra
Investors; and ECT, other Enron Entities, the Spectra Investors and other Xxxxx
Entities that are beneficiaries of this Agreement will, in taking the steps
required of them to cause or permit the Proposed Transaction to occur and in
continuing to conduct their business following consummation of the Proposed
Transaction, rely on this Agreement and the commitments herein made by each
other as set forth herein and in the definitive agreements; and
WHEREAS, in order to induce ECT, other Enron Entities, the Spectra
Investors and other Xxxxx Entities to enter into, or to cause other Enron
Entities or Xxxxx Entities to enter into, definitive agreements relating to the
Proposed Transaction, to enable ECT, other Enron Entities, the Spectra Investors
and other Xxxxx Entities to take the other actions required to be taken by them
in order for the Proposed Transaction to be consummated, to provide more
certainty regarding the obligations of the parties to this Agreement to each
other following consummation of the Proposed Transaction, and to permit the
Enron Entities and the Xxxxx Entities to avoid undue risk of litigation, the
parties hereto desire to enter into this Agreement; and each party agrees that
this Agreement is a material inducement to the other parties hereto to enter
into the agreements relating to the Proposed Transaction and to consummate the
Proposed Transaction;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and obligations hereinafter set forth, and as a material inducement to ECT and
the Spectra Investors in entering into the Proposed Transaction, the parties
hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. When used in this Agreement, the
following terms shall have the meanings indicated:
"AFFILIATE" of a Person means any Person controlling, controlled by, or
under common control with such Person, with "control" and its correlative terms
meaning the possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of securities
or any partnership or other ownership interest, by contract or otherwise) of a
Person. For the purposes of this Agreement, control shall include the
possession, directly or indirectly, through one or more intermediaries, of
(a) in the case of a corporation, 50% or more of the outstanding voting
securities thereof; (b) in the case of a limited liability company, partnership,
limited partnership or venture, the right to 50% or more of the distributions
therefrom (including liquidating distributions); and (c) in the case of any
other Person, 50% or more of the economic or beneficial interest therein. For
the purposes of this Agreement, control shall also include serving as manager or
general partner of a Person or performing similar functions for a Person.
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"BUSINESS OPPORTUNITY" means any opportunity for a Person (a) to enter into
any transaction pursuant to which such Person would acquire (whether by
purchase, lease, or other transaction), own, invest in, finance, lend funds to,
contribute capital to, manage, operate or otherwise participate in any Person,
asset or transaction or (b) to act as a broker, finder, financial adviser or
investment banker with respect to any such transaction by any other Person.
"CLAIMS" has the meaning set forth in Section 6 hereof.
"COMPANY" means SpectraNet and all Affiliates of SpectraNet in which
SpectraNet owns an interest, directly or indirectly, unless the context
otherwise requires.
"ECT ELECTION NOTICE" has the meaning set forth in Section 2(a)(ii) hereof.
"ENRON" means Enron Corp., an Oregon corporation.
"EXCLUSIVITY PERIOD" has the meaning set forth in Section 2(a) hereof.
"JOINT APPLICATION OPPORTUNITY" has the meaning set forth in Section 2(a)
hereof.
"NOTICE" has the meaning set forth in Section 7(f) hereof.
"PARTLY-OWNED AFFILIATE" has the meaning set forth in Section 3(b) hereof.
"PERSON" means any natural person, corporation, limited partnership,
limited liability company, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any governmental
entity, public power authority, municipality or agency.
"TELECOMMUNICATIONS APPLICATIONS" means the provision of communication
services, including, but not limited to, the following: telecommunication
services, services over fiber optic communications networks, digital switched
networks, copper networks or any other communication media; the provision of
video and/or high speed data transmission; communications consulting services;
and wide-area and local-area network services.
"UTILITY APPLICATIONS" means the marketing of one or more of natural gas,
electricity or water and the provision of all related services and includes,
without limitation, the provision of the commodity, the provision of
transmission, transportation or distribution, the provision of financial and
risk management services and products, demand-side management services, the
provision of customer care functions (E.G., meter, billing and collection
functions) and the provision of all other utility services.
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SECTION 2. GRANT OF EXCLUSIVITY TO ECT FOR JOINT APPLICATION
OPPORTUNITIES.
(a) SpectraNet hereby grants to ECT and to its Affiliates, for the term
(the "Exclusivity Period") beginning on the date of this Agreement and
continuing until the EARLIER OF (i) the third anniversary of the date hereof or
(ii) the date upon which ECT and/or any of its Affiliates hold less than five
percent (5%) of the capital stock or warrants of SpectraNet (determined on a
fully-diluted basis as if all warrants or rights to acquire capital stock were
exercised, and determined without reference to any voting rights), the exclusive
right to pursue jointly with SpectraNet any Business Opportunity that includes
both Telecommunications Applications and Utility Applications (the "Joint
Application Opportunity"). The term Joint Application Opportunity shall
include, without limitation, any formal or informal invitation, request for
proposals, bids or expressions of interest from any Person for
Telecommunications Applications and Utility Applications, and whether or not
such invitation, request for proposals, bids or expressions of interest permits
the offered party to respond to all or any portion of the Telecommunications
Applications and Utility Applications. During the Exclusivity Period,
SpectraNet and ECT agree as follows:
(i) SpectraNet will agree to promptly provide written notice to ECT
of any Joint Application Opportunity anywhere in the United States for
which SpectraNet desires to pursue the Telecommunications Applications.
The Chairman of SpectraNet (or another officer of SpectraNet under his
direction) will promptly notify ECT of each Joint Application Opportunity
for which SpectraNet desires to pursue the Telecommunications Applications,
and in connection with such notice, SpectraNet will furnish to ECT all
information regarding the Joint Application Opportunity that is material to
ECT's decision regarding whether or not to participate in the Joint
Application Opportunity. Within thirty (30) days of receipt of such notice
and information, ECT will notify SpectraNet whether ECT desires to
participate in the Joint Application Opportunity.
(ii) If ECT notifies SpectraNet that it desires to participate in the
Joint Application Opportunity (the "ECT Election Notice"), SpectraNet will
as promptly as practicable furnish to ECT any additional information in
SpectraNet's possession regarding the Joint Application Opportunity and,
from and after the date of such notice (and except as otherwise provided in
this Section 2(a)(ii)), SpectraNet shall not pursue the Joint Application
Opportunity with any other Person or in any manner detrimental to the
rights of ECT as provided for in this Section 2, and shall keep ECT fully
informed with respect to SpectraNet's efforts in such regard. From and
after the date of the ECT Election Notice, ECT and SpectraNet shall work
together to develop the Joint Application Opportunity and shall, within
sixty (60) days following the ECT Election Notice, use commercially
reasonable efforts to negotiate and enter into a written agreement
respecting the rights and obligations of the parties with respect to such
Joint Application Opportunity. During such sixty (60) day period, ECT
agrees that it will not pursue the Joint Application
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Opportunity directly or with a competitor of SpectraNet. In the event that
ECT and SpectraNet fail to enter into a written agreement with respect to
such Joint Application Opportunity within such sixty (60) day period (or
such later period as may be mutually agreed by ECT and SpectraNet in
writing), then the provisions of Section 2(a)(iii) hereof shall apply and
such failure shall be treated as if ECT elected not to participate in the
Joint Application Opportunity.
(iii) In the event that ECT fails to provide the ECT Election Notice
within the time prescribed above or otherwise elects not to participate
in the Joint Application Opportunity, then SpectraNet shall be free to
pursue the Telecommunications Applications on a subcontract basis only
with respect to such Joint Application Opportunity, or independently on
its own with respect to the Telecommunications Applications, but not the
Utility Applications, and ECT or any other Enron Entity will be free to
pursue the Joint Application Opportunity (including the Utility
Applications and/or the Telecommunications Applications) on its own or
with any Person other than SpectraNet. In this regard, SpectraNet shall
be precluded from participating in the Joint Application Opportunity
with any other Person for the provision of Utility Applications.
(iv) ECT and SpectraNet acknowledge and agree that any confidential
information of a party furnished to the other party pursuant to Sections
2(a)(i) and (ii) hereof will only be utilized by the receiving party to
evaluate the Joint Application Opportunity in conjunction with the
receiving party's pursuit of the Joint Application Opportunity with the
furnishing party.
(b) SPECTRANET ACKNOWLEDGES AND AGREES THAT AT ANY TIME DURING THE
EXCLUSIVITY PERIOD OR THEREAFTER NEITHER ECT NOR ANY OTHER ENRON ENTITIES SHALL
HAVE ANY OBLIGATION TO NOTIFY SPECTRANET OF ANY BUSINESS OPPORTUNITY, WHETHER OR
NOT IT HAS UTILITY APPLICATIONS AND/OR TELECOMMUNICATIONS APPLICATIONS.
SECTION 3. NO REQUIREMENT THAT ENRON ENTITIES OR XXXXX ENTITIES OFFER
BUSINESS OPPORTUNITIES TO SPECTRANET.
SpectraNet, ECT and the Spectra Investors agree that any Business
Opportunity developed by an Enron Entity or a Xxxxx Entity is not required to be
offered to SpectraNet and may be pursued by such Enron Entity or Xxxxx Entity,
and hereby waive the right to claim that any such Business Opportunity should be
offered to SpectraNet. The foregoing Business Opportunities developed by an
Enron Entity or a Xxxxx Entity could include, without limitation, the following:
(a) the Business Opportunity consists of the acquisition of publicly
traded securities whether or not such acquisition is effected for the purpose of
investment, for
6
trading purposes or for the purpose of obtaining control of the issuer or of any
of its assets; or
(b) the Business Opportunity is developed by Enron Entities or Xxxxx
Entities which are not wholly-owned by Enron or Xxxxxx X. Xxxxx, respectively
("Partly-Owned Affiliates"), including, without limitation, Enron Oil & Gas
Company; or
(c) the Business Opportunity is developed by FirstPoint or any other Enron
Entity or any Xxxxx Entity without use of any confidential or proprietary
information of SpectraNet.
SECTION 4. PURSUIT OF BUSINESS OPPORTUNITIES BY ENRON ENTITIES AND
XXXXX ENTITIES.
ECT, other Enron Entities, the Spectra Investors and other Xxxxx Entities
and their respective affiliates own, have agreements with and otherwise
participate in, telecommunications and other businesses, and may develop,
finance, acquire, enter into agreements with or otherwise participate in, such
businesses in the future, including businesses that are or may become
competitive with the business of SpectraNet. SpectraNet agrees that the Enron
Entities and the Xxxxx Entities may continue to conduct their respective and
prospective businesses, even if doing so will have a competitive impact on
SpectraNet and/or would otherwise constitute a SpectraNet Business Opportunity.
In that connection, and except as otherwise expressly set forth in this
Agreement, SpectraNet agrees that (a) neither the Enron Entities, the Xxxxx
Entities nor any of their respective affiliates will have any obligation to
pursue any Business Opportunity jointly with SpectraNet or to offer any Business
Opportunity to SpectraNet, and any Enron Entity or Xxxxx Entity representative
on the Board of Directors of SpectraNet or otherwise participating in the
management of SpectraNet will have no obligation to offer any Business
Opportunity to SpectraNet; (b) the Enron Entities, the Xxxxx Entities and their
respective Affiliates will be free to pursue Business Opportunities jointly with
Persons other than SpectraNet, including opportunities that have
telecommunications applications; and (c) the Enron Entities, the Xxxxx Entities
and their respective Affiliates will be free to compete with SpectraNet and will
have no obligation to SpectraNet to refrain from engaging in any business.
SpectraNet, ECT and the Spectra Investors hereby consent to such activities,
even if they have a competitive impact on SpectraNet.
SECTION 5. CONSENT BY SPECTRANET.
At any time, ECT or the Spectra Investors may request that SpectraNet
furnish to ECT or the Spectra Investors, as the case may be, a consent in
writing to any action or inaction by any Enron Entity or Xxxxx Entity that ECT
or the Spectra Investors believes such Person is entitled under this Agreement
to take or refrain from taking. In the event that SpectraNet fails or refuses
to furnish such consent, ECT or the Spectra Investors, as the case may be, shall
have the right to submit the matter to arbitration. If SpectraNet furnishes
such consent, such consent will also contain an agreement by SpectraNet that, in
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the absence of a material misstatement or omission by ECT or the Spectra
Investors in connection with its request for such consent, SpectraNet will not
thereafter claim that the action or inaction covered by such consent is a breach
of this Agreement or any obligation owed by ECT or any other Enron Entity, or
the Spectra Investors or any other Xxxxx Entity, to SpectraNet or its Board of
Directors. Nothing herein shall be deemed to require ECT, the Spectra Investors
or SpectraNet to submit any matter to arbitration.
SECTION 6. ARBITRATION.
Any and all claims, demands, causes of action, disputes, controversies and
other matters in question arising out of or relating to this Agreement, the
alleged breach thereof, or in any way relating to the subject matter of this
Agreement ("Claims"), even though some or all of such Claims allegedly are
extra-contractual in nature, whether such Claims sound in contract, tort or
otherwise, at law or in equity, under state or federal law, whether provided by
statute or the common law, for damages or any other relief, shall be resolved
and decided exclusively by binding arbitration pursuant to the Federal
Arbitration Act in accordance with the Commercial Arbitration Rules then in
effect with the American Arbitration Association. The arbitration proceeding
shall be conducted in Wilmington, Delaware. The arbitration shall be before a
panel of (a) three arbitrators in the event that the Claim is between ECT and
SpectraNet or between the Spectra Investors and SpectraNet or (b) five
arbitrators (unless the parties otherwise agree to three arbitrators) in the
event that the Claim is among ECT, the Spectra Investors and SpectraNet. Each
party to such dispute shall select one arbitrator (with the Spectra Investors
being entitled to one arbitrator for all such companies), and the arbitrators
selected by the parties shall select the remaining arbitrator(s). The
arbitrators are authorized to issue subpoenas for depositions and other
discovery mechanisms, as well as trial subpoenas, in accordance with the Federal
Rules of Civil Procedure. Either party may initiate a proceeding in the
appropriate United States District Court to enforce this provision. This
agreement to arbitrate shall be enforceable in either federal or state court.
Judgment upon any award rendered in any such arbitration proceeding may be
entered by any federal or state court having jurisdiction. The enforcement of
this agreement to arbitrate and all procedural aspects of this agreement to
arbitrate, including the construction and interpretation of this agreement to
arbitrate, the scope of the arbitrable issues, allegations of waiver, delay or
defenses to arbitrability, and the rules governing the conduct of the
arbitration, shall be governed by and construed pursuant to the Federal
Arbitration Act. THE ARBITRATORS SHALL HAVE NO AUTHORITY TO AWARD PUNITIVE
(INCLUDING, WITHOUT LIMITATION, ANY EXEMPLARY DAMAGES, TREBLE DAMAGES OR ANY
OTHER PENALTY OR PUNITIVE TYPE OF DAMAGES), CONSEQUENTIAL, INCIDENTAL OR
INDIRECT DAMAGES (IN TORT, CONTRACT, BY STATUTE OR OTHERWISE) UNDER ANY
CIRCUMSTANCES, REGARDLESS OF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER
APPLICABLE LAW OR OTHERWISE, THE PARTIES HERETO HEREBY WAIVING THEIR RIGHT, IF
ANY, TO RECOVER SUCH DAMAGES IN CONNECTION WITH ANY CLAIMS. The arbitrators
shall be entitled to award costs of the arbitration and attorney's fees as they
deem appropriate. Prior to any Person instituting a Claim under this Agreement,
such Person shall provide to the other
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party hereto a written notice specifying the nature and basis of the Claim. The
Persons who are the subject of any Claim shall be given thirty (30) days to cure
any breach before any Claim is filed.
SECTION 7. MISCELLANEOUS
(a) CONTRACTS AND AGREEMENTS. SpectraNet agrees not to enter into any
contracts or agreements that will prevent it from performing its duties and
obligations hereunder or prevent the other parties to this Agreement from
realizing the benefits hereof.
(b) THIRD PARTY BENEFICIARIES. This Agreement is also intended for the
benefit of each member of the Board of Directors of SpectraNet and each Enron
Entity and each Xxxxx Entity, each of which will be considered a third party
beneficiary of this Agreement.
(c) CONFIDENTIALITY. The provisions of this Agreement and all information
regarding Business Opportunities and Joint Application Opportunities, and all
other information exchanged by the parties pursuant to this Agreement, shall not
be disclosed by any party to this Agreement unless otherwise publicly disclosed
and except as otherwise required by law. Each party will keep confidential any
information supplied to them by another party under this Agreement and will not
disclose such information to other Persons except that they may disclose it to
any officer, director or employee of their respective companies if in their
reasonable judgment such Person has the need to know such information in order
to discharge his or her duties.
(d) AMENDMENT; WAIVERS. This Agreement may only be altered, supplemented,
amended or waived by the written consent of each party hereto.
(e) ASSIGNMENT. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their permitted
successors and assigns; provided, however, that no party hereto shall have the
right to assign this Agreement without the consent of the other parties hereto.
SpectraNet agrees that SpectraNet will not issue any additional shares of
capital stock of SpectraNet (other than with respect to warrants or stock
options outstanding on the date hereof) to any Person unless it obtains from
such Person an agreement to be bound by this Agreement and an agreement that
such Person will not assign its shares of capital stock of SpectraNet or any
portion thereof to any other Person unless it obtains from such Person an
agreement to be bound by this Agreement.
(f) NOTICES. Any and all notices, designations, consents, offers,
acceptances, or other communications provided for herein (each a "Notice") shall
be given in writing by personal delivery, overnight courier, telegram, or
telecopy which shall be addressed, or sent, to the respective addresses or
telecopy numbers as follows (or such other address or telecopy number as any
party hereto may specify for itself by Notice given in accordance with this
Section 7(f)):
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ECT: Enron Capital & Trade Resources Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy No. 713/646-4043
Telephone No. 713/000-0000
WITH A COPY TO:
Enron Capital & Trade Resources Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy No. 713/646-3490
Telephone No. 713/000-0000
SpectraNet SpectraNet International
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No. 619/552-8006
Telephone No. 619/000-0000
Spectra 1 Colorado Spectra 1, L.L.C.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No. 303/321-4444
Telephone No. 303/000-0000
Spectra 2 Colorado Spectra 2, L.L.C.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No. 303/321-4444
Telephone No. 303/000-0000
Spectra 3 Colorado Spectra 3, L.L.C.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No. 303/321-4444
Telephone No. 303/000-0000
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All Notices shall be deemed effective, delivered and received (a) if given
by personal delivery, when such Notice is personally delivered at the address
specified above; (b) if given by telecopy, when such telecopy is transmitted to
the telecopy number specified above and receipt thereof is confirmed; (c) if
given by overnight courier, on the business day immediately following the day on
which such Notice is delivered to a reputable overnight courier service; or (d)
if given by telegram, when such Notice is delivered at the address specified
above.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which counterparts shall be deemed to be an original and
which counterparts together shall constitute one and the same agreement of the
parties hereto.
(h) CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(i) ENTIRE AGREEMENT; EXHIBITS. This Agreement contains the entire
understanding of the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, discussions and understandings with respect
thereto. Any and all Exhibits referred to in this Agreement are, by such
reference, incorporated herein and made a part hereof for all purposes.
(j) NO PARTNERSHIP. No term or provision of this Agreement shall be
construed to establish any relationship of partnership, agency or joint venture
among the parties hereto.
(k) INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement is, for any reason, held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
will not affect any other provision of this Agreement.
(l) CONTRACTUAL OBLIGATIONS. Nothing herein shall require any Enron
Entity, Xxxxx Entity or SpectraNet to fail to perform any contractual obligation
to which it is subject, including any obligation under any standstill agreement
or confidentiality agreement with any entity that may be the subject of a
Business Opportunity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first written above.
SPECTRANET INTERNATIONAL
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: C.O.O.
---------------------------------
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ENRON CAPITAL & TRADE RESOURCES CORP.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------------
Title: Vice President
---------------------------------
COLORADO SPECTRA 1, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COLORADO SPECTRA 2, L.L.C.
By: /s/ Xxxxxx. X. Xxxxx
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COLORADO SPECTRA 3, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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