Exhibit 2.5b
PRIVATE AND CONFIDENTIAL
Dated 22 October 1999
________________________
(1) MARKET CONSULTANT LIMITED
AND
(2) CALLAWAY CONTINENTAL LIMITED
--------------------------------
SHARE PURCHASE AGREEMENT
FOR THE SALE AND PURCHASE OF
400,000 SHARES OF COMMON STOCK
OF TELEMONDE INC.
--------------------------------
Bird & Bird
00 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
DJC/ CXB/Telmo.004
THIS AGREEMENT is made on the 22 day of October, 1999
BETWEEN
(1) MARKET CONSULTANT LIMITED, a company incorporated in Gibraltar under
registration number 70633, the registered office of which is at Suite 0X,
Xxxxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxxxxx ("MCL");
(2) CALLAWAY CONTINENTAL LIMITED, a company incorporated in the British Virgin
Islands, the registered office of which is at the offices of Overseas
Management Company Trust Limited, X.X. Xxx 0000, Xxxx Xxxx, Xxxxxxx,
Xxxxxxx Xxxxxx Xxxxxxx ("CCL").
RECITAL
CCL has agreed to transfer 400,000 shares of Telemonde Common Stock to MCL in
consideration of a payment of $1,000,000 which shall be applied in the manner
described in this Agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement and the Schedules
"Agreed Form" means terms contained in a form which has been agreed and
initialed by or on behalf of CCL and MCL for the purpose of identification
prior to Completion;
"business day" means any day (excluding Saturdays) upon which banks in
London are open for normal banking business;
"Completion" means completion of the sale and purchase of the Transfer
Stock in accordance with Clause 5;
"Completion Date" means the date upon which Completion takes place;
"$ or Dollars" means the lawful currency from time to time of the United
States of America;
"Equitel" means Equitel Communications Limited of 5th Floor 7 - 00 Xxxxxxx
Xxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxx X0X 0XX;
"Equitel Term Loan" means the agreement for the provision of a term loan of
$1,000,000 to be entered into by Equitel, as lender, and the ITS
International as borrower,
on Completion in the Agreed Form;
"Parties" means the parties to this Agreement;
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"Telemonde" means Telemonde Inc, a company incorporated in Nevada and whose
principal office is located at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx,
XXX;
"Telemonde Common Stock" means shares of the Common Stock of Telemonde of
$0.001 each;
"Transfer Stock" means 400,000 shares of Telemonde Common Stock to be
transferred by CCL to MCL on Completion pursuant to this Agreement;
1.2 References in this Agreement to any statutory provisions shall be construed
as references to those provisions as respectively amended, consolidated or
re-enacted (whether before or after the date of this Agreement) from time
to time and shall include any provisions of which they are consolidations
or re-enactments (whether with or without amendment).
1.3 In this Agreement:-
(a) the masculine gender shall include the feminine and neuter and the singular
number shall include the plural and vice versa;
(b) references to persons shall include bodies corporate, unincorporated
associations and partnerships;
(c) any headings or side notes or, in the case of any legislation specifically
referred to, the inclusion in parentheses of the title to the relevant
Part, Section, Schedule or paragraph contained in such legislation are for
the sake of convenience only and shall not affect the construction of this
Agreement; and
(d) references to any party include a reference to the estate, personal
representative, successor, or permitted assigns of that party.
1.4 Except where the contrary is stated, any reference in this Agreement to a
Clause is to a Clause of this Agreement, and any reference within a Clause
to a sub-clause, paragraph or other sub-division is a reference to such
sub-clause, paragraph or other sub-division so numbered or lettered in that
Clause.
2. SALE OF SHARES
2.1 CCL shall sell the Transfer Stock and MCL, relying on the representations,
warranties, undertakings and indemnities set out in this Agreement shall
purchase the Transfer Stock on the terms of this Agreement free from all
claims, liens charges encumbrances and equities and together with all
rights attaching or accruing to them.
2.2 CCL covenants with MCL as follows:
(a) that it has the right to sell and transfer the full legal and
beneficial interest in the Transfer Stock to MCL on the terms set out
in this Agreement; and
(b) that on and following Completion, it shall at its own cost execute
such further documents and do all such acts and things as MCL may
reasonably require in
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order to effectively vest all of the Transfer Stock in MCL and
otherwise to give full effect to the terms of this Agreement.
2.3 MCL shall not be obliged to complete the purchase of any of the Transfer
unless the purchase of all the Transfer Stock is completed simultaneously
in accordance with this Agreement.
3. CONSIDERATION
3.1 The consideration for the sale of the Transfer Stock shall be $1,000,000
which shall be paid in cash in full in immediately available funds on
Completion in accordance with clause 5 (the "Consideration.
4. CONDITIONS TO COMPLETION
4.1 The obligations of the parties to complete the purchase of the Transfer
Stock are conditional on the agreement of the same date as this Agreement
between, inter alia the Parties, relating to the purchase of all of the
issued share capital of Carnival Enterprises Limited and certain
participations in the capital of ITS Europe SA ( the "ITS Agreement") being
completed in accordance with its terms.
4.2 If any of the Conditions set out in sub-Clause 4.1 shall not have been
fully satisfied, by 12.00am on 31 December 1999 then this Agreement shall
lapse and be deemed to be of no effect without any of the parties being
liable to any other party in any way whatsoever.
5. COMPLETION
5.1 Completion shall occur simultaneously with Completion of the ITS
5.2 Upon Completion CCL and MCL shall take, or procure to be taken, the
following actions in relation to the transfer of the Transfer Stock:
(a) CCL shall transfer the Transfer Stock to MCL free from all claims,
liens, charges, encumbrances and equities and together with all rights
attaching or accruing to them and MCL shall accept such transfer in
reliance on the representations, warranties and undertakings of CCL
set out in Clause 6;
(b) MCL shall pay the sum of $1,000,000 to CCL, being the Consideration,
as CCL shall direct in accordance with the following provisions of
this clause;
(c) CCL shall issue to MCL a written receipt in the Agreed Form in respect
of the Consideration acknowledging receipt of the same and requiring
that it be paid in accordance with written instructions issued by
Equitel;
(d) CCL shall deliver to MCL evidence in writing of an agreement between
CCL and Equitel that the Consideration shall be lent from Completion
by CCL to Equitel;
(e) ITS Europe SA shall draw down the full amount of the Equitel Term Loan
and Equitel shall issue a written direction to CCL that the
Consideration shall be paid
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by CCL to ITS Europe SA in satisfaction of the obligations of Equitel
to advance the Equitel Term Loan.
5.3 The parties shall not be obliged to complete this Agreement unless all of
the provisions of Clauses 5.2 and all actions to performed on Completion of
the ITS Agreement are complied with fully.
6. WARRANTIES BY CCL
6.1 CCL hereby warrants and undertakes to MCL that each of the following
statements is true and accurate:
(a) the Transfer Stock is duly authorised, validly issued, fully paid, and
non-assessable and ranks pari passu with all other issued Telemonde
Common Stock;
(b) there is not, nor is there any agreement or arrangement to create, any
mortgage, charge, lien, pledge, option, right of pre-emption, right to
acquire or other form of security or encumbrance affecting any of the
Transfer Stock and no claim has been made by any person to be entitled
to any of the foregoing;
(c) on Completion MCL will have transferred to itself good and
unencumbered title to the Transfer Stock which (subject to the
restrictions on transfer imposed by the US Securities Act 1993) are
freely transferable without the consent or permission of CCL,
Telemonde or any other third party;
(d) CCL has the necessary power and authority to enter into and perform
this Agreement and sell and transfer or procure the transfer of the
Transfer Stock and this Agreement constitutes valid and binding
obligations of CCL in accordance with its terms;
(e) neither CCL or any of its subsidiaries is insolvent within the
meanings of Section 123 of the Insolvency Xxx 0000;
6.2 The liability of CCL in respect of the Warranties contained in Clause 6.1
shall in the absence of fraud or dishonesty on the part of MCL:
(a) terminate on 31st December 2000;
(b) not exceed $1,000,000.
7. NOTICES AND RECEIPTS
7.1 Any notice or other document to be served under this Agreement may be
delivered or sent by registered post or facsimile process to the party to
be served at his address appearing in this Agreement or at such other
address as he may have notified to the other Parties in accordance with
this clause.
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7.2 Any notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 am on the second business day after it was put
into the post; or
(c) if sent by facsimile process, at the expiration of 2 hours after the
time of despatch, if despatched before 3.00 pm on any business day,
and in any other case at 10.00 am on the business day following the
date of despatch.
7.3 In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted as a prepaid registered post
letter or that the facsimile message was properly addressed and despatched
as the case may be.
8. RESOLUTIONS AND WAIVERS
8.1 For so long after Completion as CCL remains the registered holder of any of
the Transfer Stock CCL will hold them and any distributions, property and
rights deriving from them in trust for MCL and will deal with them and any
distributions, property and rights deriving from them as MCL directs and
will on request by MCL execute an instrument of proxy or other document
which enables MCL or its representative to attend and vote at any meeting
of Telemonde.
8.2 In relation to Telemonde Inc, CCL shall procure the convening of all
meetings, the giving of all waivers and consents and the passing of all
resolutions as are necessary to transfer the Transfer Stock to MCL free of
any mortgage, charge, lien, pledge or other encumbrance and to register MCL
as the registered owners of the Transfer Stock in the register of members
of Telemonde Inc and as are generally necessary to give effect to this
Agreement.
9. GENERAL
9.1 Each of the obligations, warranties and undertakings set out in this
Agreement which is not fully performed at Completion will continue in force
after Completion.
9.2 None of the rights or obligations under this Agreement may be assigned or
transferred without the prior written consent of all the Parties.
9.3 Time is of the essence in relation to this Agreement.
9.4 Each party shall pay the costs and expenses incurred by him or it in
connection with the entering into and completion of this Agreement.
9.5 This Agreement may be executed in any number of counterparts, all of which,
taken together shall constitute one and the same Agreement and any party
may enter into this Agreement by executing a counterpart.
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10. WHOLE AGREEMENT
10.1 This Agreement and the documents referred to in it contain the whole
agreement between the Parties relating to the transactions contemplated by
this Agreement and supersede all previous agreements, arrangements and
understandings between the Parties relating to these transactions.
10.2 Each of the Parties acknowledges that in agreeing to enter into this
Agreement he or it has not relied on any representation, warranty or other
assurance except those set out in this Agreement and waives all rights and
remedies, which, but for this Clause might be available to it in respect
of such representation, warranty or other assurance provided that nothing
in this Clause shall limit or exclude any liability for fraudulent
misrepresentation.
11. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with
English law. MCL submits to the non-exclusive jurisdiction of the English
Courts for all purposes relating to this Agreement and CCL hereby appoint
Xxxxxx Xxxxxxxx of Xxxxxxx Xxxxx, 00 Xxxxxxx, Xxxxxx as its agent for
service. CCL submits to the non exclusive jurisdiction of the English
Courts for all purposes of this Agreement and hereby irrevocably appoint
Bird & Bird of 00 Xxxxxx Xxxx Xxxxxx XX 0X 0XX their agents for service.
IN WITNESS of which this Agreement has been executed by the Parties or their
duly authorised representatives on the date which appears first on page 1.
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SIGNED by /s/ Jeus Nunea )
the duly authorised representative of )
MARKET CONSULTANT LIMITED )
in the presence of: )
SIGNED by /s/ X. Xxxxxx )
the duly authorised representative of )
CALLAWAY CONTINENTAL LIMITED )
in the presence of: )
/s/ X. Xxxxxxx
Solicitor
90 Xxxxxx Xxxx
London
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