STOCK PURCHASE AGREEMENT
------------------------
This Stock Purchase Agreement (the "Agreement"), dated as of September 30,
2004, is between GNB Sudameris Bank, S.A, a bank organized under the laws of
Panama with offices at Torre Banco Xxxxxxxxxxx, Xxxx 00, Xxxxxx Xxxx, Xxxxxxxx
of Panama (the "Purchaser") and Hispanic Telecommunications Holding S.A. (the
"Seller"), a corporation organized under the laws of Luxembourg with offices at
0 Xxx Xxxxxxxx X-0000, Xxxxxxxxxx.
RECITALS
A. The Seller is the owner of 99,414,661 shares of the common stock, par
value $.001 per share ("Common Stock") of Phone1 Globalwide, Inc. ("PHGW"), a
corporation existing under the laws of the State of Delaware, United States.
B. The Seller desires to sell and the Purchaser desires to purchase
38,352,714 shares of Common Stock (the "PHGW Shares") on the terms and
conditions set forth herein.
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 Payment.
-------------------------
(a) The Seller shall sell to the Purchaser, and the Purchaser purchases
from the Seller, on September 30, 2004 (the "Closing Date"), the PHGW Shares for
a price of US $26,846,899.80 (the "Purchase Price").
(b) The Purchaser shall deliver the Purchase Price to the Seller within
thirty (30) days after the Closing Date. When paid, the Purchase Price shall be
in the form of 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.
(c) The Seller shall deliver to the Purchaser on the Closing Date the stock
certificate(s) for the PHGW Shares, together with stock powers executed by one
of its authorized officers with a signature guarantee by a member of the New
York Stock Exchange or a United States commercial bank.
(d) 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 the Seller as follows:
(a) The PHGW Shares 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 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 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.
(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 none of them is responsible to provide any
information to the Purchaser in respect to PHGW or its subsidiaries or
affiliates of any of them.
(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
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."
(i) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws 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
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 (or such similar body under the laws of Panama)
and, to the extent necessary under the laws of Panama 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.
(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 organizational documents or By-Laws, each as
heretofore amended, of the Purchaser.
(l) There are no outstanding or threatened claims or proceedings of any
nature as against the Purchaser which could in any manner affect the delivery of
this Agreement, the consummation of the transactions contemplated herein or the
enforcement hereof.
(m) All of the representations, warranties and covenants and undertaking
made by the 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 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. 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 (or such similar
body under the laws of Luxembourg) and, to the extent necessary under the laws
of the Luxembourg 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.
(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 organizational documents or By-laws, each as
heretofore amended, of the Seller.
(d) There are no outstanding or threatened claims or proceedings of any
nature as against the Seller which could in any manner affect the delivery of
this Agreement, the consummation of the transactions contemplated herein or the
enforcement hereof.
(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 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.
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 hereto 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 FedEx or like courier to the address of the party as
set forth in this Agreement. Notwithstanding the foregoing, nothing herein shall
be deemed to constitute a general consent to the service of process or in the
personal 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 FedEx or like courier service or by confirmed
facsimile transmission and
If to the Purchaser:
Torre Banco Continental
Piso 00,
Xxxxxx Xxxx, Xxxxxxxx of Panama
Attention: Xx. Xxxxxx Xxxxxxxxxx
Facsimile No: 000 000 0000
If to the Seller:
0 Xxx Xxxxxxxx X-0000
Xxxxxxxxxx
Facsimile No. (000) 000-000-000
Attention: Xx. Xxxxxxx Xxxxxxxxxxx
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. An executed counterpart of this Agreement
transmitted by facsimile shall have the same force and effect as an original
executed copy of this Agreement and shall be effective upon receipt of the
confirmed facsimile.
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 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. 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.
14. 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.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK].
IN WITNESS HEREOF, the parties have executed this Agreement as of the date
first above written.
PURCHASER:
GNB SUDAMERIS BANK, S.A.
By:_________________________________
Name:_______________________________
Title:______________________________
SELLER:
HISPANIC TELECOMMUNICATIONS HOLDING, S.A.
By:_________________________________
Name:_______________________________
Title:______________________________
