Exhibit 10.33
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
MTEL LATIN AMERICA, INC.
AND
MICROSOFT CORPORATION
dated as of January 28, 1999
TABLE OF CONTENTS
ARTICLE I
PURCHASE AND SALE OF PREFERRED SHARES
1.1 Agreement to Purchase and Sell 1
1.2 Closing 1
1.3 Delivery and Payment 1
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1 Incorporation and Organization 2
2.2 Authority 2
2.3 Capital Structure 3
2.4 Consents and Approvals 3
2.5 No Violations 4
2.6 Financial Statements 4
2.7 Absence of Certain Changes or Events 5
2.8 Exemption from Securities Act 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
3.1 Incorporation and Organization 6
3.2 Authority 6
3.3 Consents and Approvals 6
3.4 No Violations 7
3.5 Investment Representation 7
i
ARTICLE IV
CONDITIONS TO CLOSING
4.1 Conditions to Obligations of the Purchaser 8
4.2 Conditions to Obligations of the Company 9
ii
ARTICLE V
TERMINATION
5.1 Termination 9
ARTICLE VI
MISCELLANEOUS
6.1 Collateral Agreements, Amendments and
Waivers 10
6.2 Transfer of the Preferred Shares 10
6.3 Deferral of SkyTel Management Fee 10
6.4 Successors and Assigns 11
6.5 Survival of Representations, Warranties
and Agreements 11
6.6 Expenses 11
6.7 Invalid Provisions 11
6.8 Notices 11
6.9 Public Announcement 13
6.10 Certain Definitions 13
(a) "Business Day 13
(b) "person" 13
(c) "Transfer" 13
6.11 No Third-Party Beneficiaries 13
6.12 Governing Law 14
6.13 Counterparts. 14
iii
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of January 28,
---------
1999, by and between Mtel Latin America, Inc., a Delaware corporation (the
"Company"), and Microsoft Corporation, a Washington corporation (the
--------
"Purchaser").
---------
ARTICLE I
PURCHASE AND SALE OF PREFERRED SHARES
-------------------------------------
1.1 Agreement to Purchase and Sell. Upon the basis of the
------------------------------
representations and warranties, for the consideration, and subject to the terms
and conditions set forth in this Agreement, the Company agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Company, 10,000 shares
of preferred stock, par value $0.01 per share, of the Company (the "Preferred
---------
Stock"), designated as the Cumulative Accruing Pay-In-Kind Preferred Stock (the
-----
"Preferred Shares") and having the preferences and rights set forth in the form
----------------
of Certificate of Designation attached as Exhibit A hereto (the "Certificate of
--------- --------------
Designation"), in each case free and clear of all claims, liens, charges and
-----------
encumbrances of any nature whatsoever, at the Closing referred to in Section 1.2
hereof, and, in consideration of the sale of the Preferred Shares by the Company
to the Purchaser, the Purchaser agrees to pay in the aggregate to the Company
$10,000,000 (the "Purchase Price").
--------------
1.2 Closing. The closing of the transactions contemplated hereby (the
-------
"Closing") shall take place at the offices of Skadden, Arps, Slate,
-------
Xxxxxxx & Xxxx, LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on January 28, 1999, or at such other
place or time as the Purchaser and the Company shall mutually agree in writing.
The date on which the Closing occurs is hereinafter referred to as the
"Closing Date."
------------
1.3 Delivery and Payment. At the Closing, (a) the Company shall deliver or
--------------------
cause to be delivered to the Purchaser (i) a stock certificate evidencing the
Preferred Shares issued in the name of the Purchaser, and (ii) all other
documents, instruments and writings required to be delivered by the Company to
the Purchaser pursuant to this Agreement or otherwise required in connection
herewith, and (b) the Purchaser shall deliver or cause to be delivered to the
Company (i) the Purchase Price, by wire transfer of immediately available funds
to the account of the Company, and (ii) all other documents, instruments and
writings required to be delivered by the Purchaser to the Company pursuant to
this Agreement or otherwise required in connection herewith.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to the Purchaser as
follows:
2.1 Incorporation and Organization. The Company is a corporation duly
------------------------------
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has full corporate power and authority to own and operate its
assets and properties and carry on its businesses as presently
conducted and is duly qualified to do business and is in good standing in all
jurisdictions in which the ownership or occupancy of its properties or its
activities presently makes such qualification necessary, except where the
failure to so qualify or be in good standing would not have a material adverse
effect upon the businesses, properties or assets of the Company and its
subsidiaries taken as a whole.
2.2 Authority. The Company has all requisite corporate power and authority
---------
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action of the Company. The Board of
Directors of the Company has approved the issuance and sale of the Preferred
Shares and the other transactions contemplated by this Agreement. This Agreement
has been duly and validly executed and delivered by the Company and constitutes
a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
generally and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
2.3 Capital Structure. The authorized capital stock of the Company
-----------------
consists of 15,000,000 shares of common stock, par value $0.01 per
share, of the Company (the "Common Stock") and 200,000 shares of Preferred
------------
Stock. At the close of business on January 22, 1999, 8,347,437 shares
of Common Stock and no shares of Preferred Stock were issued and outstanding.
At the close of business on January 22, 1999, a total of 1,000,000 shares of
Common Stock were reserved for issuance upon the exercise of the options, stock
appreciation rights and other rights granted under the Company's Stock Option
Plan, and a total of 417,372 shares of Common Stock were reserved for issuance
upon the exercise of the Company's warrants, expiring December 31, 2002, to
purchase shares of Common Stock. Except as set forth in this Section 2.3, as
disclosed on Schedule 2.3 hereto or as contemplated by this Agreement, there are
no options, warrants, calls, rights, commitments or agreements of any character
to which the Company or any subsidiary of the Company is a party or by which it
is bound obligating the Company or any subsidiary of the Company to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock of the Company or obligating the Company to grant, extend or enter
into any such option, warrant, call, right, commitment or agreement.
2.4 Consents and Approvals. Assuming the accuracy of the representation of
----------------------
the Purchaser set forth in Section 3.5 hereof, all authorizations, approvals and
consents, if any, required to be obtained from, and all registrations,
declarations and filings, if any, required to be made with all governmental
authorities and regulatory bodies to permit the Company to execute and deliver,
and to perform its obligations under, this Agreement have been obtained or made,
as the case may be, and all such authorizations, approvals, consents,
registrations, declarations and filings are in full force and effect, except
where failure to obtain and/or maintain in full force and effect such
authorizations, approvals, consents, registrations, declarations and filings
would not have a material adverse effect upon the execution and delivery
of, and upon the performance of the Company's obligations under, this Agreement.
2.5 No Violations. Neither the execution or delivery by the Company, nor the
-------------
consummation by the Company of the transactions herein contemplated, nor the
fulfillment by the Company of the terms and provisions hereof (i) will conflict
with, violate or result in a breach of, any of the terms, conditions or
provisions of any law, regulation, order, writ, injunction, decree,
determination or award of any court, governmental department, board,
agency or instrumentality or any arbitrator, applicable to the Company
including, without limitation, the Communications Act of 1934, as amended, and
the rules and regulations promulgated thereunder (the "Communications Act"),
------------------
(ii) will conflict with, violate or result in a breach of, or constitute a
default under, any of the terms, conditions or provisions of the Company's
certificate of incorporation and by-laws, (iii) will conflict with, violate or
result in a breach of, or constitute a default under, any of the terms,
conditions or provisions of any loan agreement, indenture, trust, deed or other
agreement or instrument to which the Company is a party or by which it is bound
or (iv) result in the creation or imposition of any lien, charge, security
interest or encumbrance of any nature whatsoever upon any of the Company's
property or assets (including, without limitation, the Preferred Shares to be
acquired by the Purchaser pursuant to this Agreement). The Company is not in
default under any agreement to which it is a party which would have a material
adverse effect on the Company's ability to perform its obligation under this
Agreement.
2.6 Financial Statements. The Company has furnished or made available to the
--------------------
Purchaser copies of the following financial statements: (i) the audited
consolidated Financial Statements (as defined below) of the Company and its
subsidiaries as of and for the fiscal year ended December 31, 1997, together
with reports of Xxxxxx Xxxxxxxx LLP, the Company's independent public
accountants, on such consolidated Financial Statements, and (ii) the unaudited
consolidated Financial Statements of the Company and its subsidiaries as of and
for the nine-month period ended September 30, 1998. "Financial Statements"
--------------------
shall mean the balance sheet as of the date(s) indicated and the related
statements of operations, cash flows and changes in stockholder's equity
(including all related notes and schedules thereto) for the period(s) indicated.
The Financial Statements referred to in clauses (i) and (ii) above collectively
are referred to as the "Company Statements." All of the Company Statements have
------------------
been prepared in accordance with United States generally accepted accounting
principles, except as set forth in the notes thereto, and fairly present in all
material respects (subject, in the case of the unaudited statements, to normal,
recurring audit adjustments) the consolidated financial position of the Company
and its consolidated subsidiaries as of the date thereof and the consolidated
results of operations of the Company and its consolidated subsidiaries for the
respective periods covered thereby.
2.7 Absence of Certain Changes or Events. Except (i) as disclosed in the
------------------------------------
Company Statements or (ii) as contemplated by, permitted by or disclosed in
this Agreement, since December 31, 1997, the Company and its subsidiaries have
conducted their respective businesses in the ordinary course, and there has not
been any material adverse change in the financial condition, results of
operations, business,
properties, assets or liabilities of the Company and its subsidiaries taken as a
whole.
2.8 Exemption from Securities Act . Assuming that the representations,
-----------------------------
warranties and acknowledgments of the Purchaser provided for in Article III of
this Agreement or otherwise herein are true and correct, the sale of the
Preferred Shares pursuant to this Agreement will be exempt from the registration
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
---------------
and the registration provisions of any blue sky or other state securities law
or regulation (hereinafter collectively referred to as "blue sky laws") of any
applicable jurisdiction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
-----------------------------------------------
The Purchaser hereby represents and warrants to the Company as
follows:
3.1 Incorporation and Organization. The Purchaser is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the State of
Washington and has full corporate power and authority to own and operate its
assets and properties and carry on its businesses as presently conducted.
3.2 Authority. The Purchaser has all requisite power and authority
---------
(corporate, or otherwise) to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the Purchaser of
this Agreement and the consummation by the Purchaser of the transactions
contemplated hereby have been duly authorized by all necessary action of the
Purchaser. This Agreement has been duly and validly executed and delivered by
the Purchaser and constitutes a valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding therefor may be
brought.
3.3 Consents and Approvals. All authorizations, approvals and
----------------------
consents, if any, required to be obtained from, and all registrations,
declarations and filings, if any, required to be made with, all governmental
authorities and regulatory bodies to permit the Purchaser to execute and
deliver, and to perform its obligations under, this Agreement have been obtained
or made, as the case may be, and all such authorizations, approvals, consents,
registrations, declarations and filings are in full force and effect, except
where failure to obtain and/or maintain in full force and effect such
authorizations, approvals, consents, registrations, declarations and filings
would not have a material adverse effect upon the execution and delivery of, and
upon the performance of the Purchaser's obligations under, this Agreement.
3.4 No Violations. Neither the execution or delivery by the
-------------
Purchaser of this Agreement, nor the consummation by the Purchaser of the
transactions herein contemplated, nor the fulfillment by the Purchaser of the
terms and provisions hereof (i) will conflict with, violate or result in a
breach of, any of the terms, conditions or provisions of any law, regulation,
order, writ, injunction, decree, determination or award of any court,
governmental department, board, agency or instrumentality or any arbitrator,
applicable to the Purchaser including, without limitation, the Communications
Act, (ii) will conflict with, violate or result in a breach of, or constitute a
default under, any of the terms, conditions or provisions of the Purchaser's
certificate of incorporation (or other organizational documents) and by-laws, or
(iii) will conflict with, violate or result in a breach of, or constitute a
default under, any of the terms, conditions or provisions of any loan agreement,
indenture, trust, deed or other agreement or instrument to which the Purchaser
is a party or
by which it or he is bound, except where such conflict, violation or breach will
not have a material adverse effect on the Purchaser's execution, delivery,
consummation or fulfillment of this Agreement. The Purchaser is not in default
under any agreement to which it is a party which default could impair its
ability to perform its obligations under this Agreement.
(a) Investment Representation. The Purchaser represents that (i) the
-------------------------
Purchaser is acquiring the Preferred Shares for its own account, for
investment purposes only, and not with a view to the resale or offer for
sale thereof or with any present intention of distributing or selling or
offering for sale any of the Preferred Shares; (ii) the Purchaser is an
"accredited investor" within the meaning of Rule 501 of Regulation D of the
Securities Act or a similar institutional investor; (iii) the Purchaser
understands that the Preferred Shares have not been and will not be
registered under the Securities Act or any blue sky laws in reliance, in
part, upon the representations, warranties and covenants contained herein;
(iv) the Purchaser understands that it cannot make or cause to be made any
Transfer (as defined in Section 6.10 hereof) of the Preferred Shares except
in accordance with this Agreement; (v) the Purchaser and the Purchaser's
advisors have sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of an
investment in the Preferred Shares, have received all information deemed by
them to be necessary or appropriate to evaluate the risks and merits of an
investment in the Preferred Shares, have received all information requested
from the Company, and have had the opportunity to ask questions of and
receive answers from representatives of the Company concerning the
Company; (vi) the Purchaser is capable of bearing the economic risk of such
investment, including a complete loss of the investment in the Preferred
Shares; and (vii) the Purchaser has the authority to make the
representations contained in this Article III.
(b) The Purchaser agrees that the following restrictive legend shall be placed
on certificates representing the Preferred Shares and that Transfer of any
or all of the Preferred Shares, except in accordance with this Agreement,
shall be refused by the Company's transfer agent:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE OFFERED, SOLD, EXCHANGED, ASSIGNED, TRANSFERRED, PLEDGED, GIFTED,
HYPOTHECATED, ENCUMBERED OR OTHERWISE DISPOSED OF OR TRANSFERRED, EXCEPT IN
ACCORDANCE WITH THE TERMS OF THE STOCK PURCHASE AGREEMENT, DATED AS OF
JANUARY 28, 1999, BY AND BETWEEN MTEL LATIN AMERICA, INC. AND MICROSOFT
CORPORATION.
ARTICLE IV
CONDITIONS TO CLOSING
---------------------
4.1 Conditions to Obligations of the Purchaser. The obligations of the
------------------------------------------
Purchaser to consummate the transactions contemplated hereby are subject to the
fulfillment of each of the following conditions:
(a) the representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects at and as of
the Closing with the same effect as though such representations and
warranties had been made as of the Closing, and the Company shall have
performed and complied in all material respects with all other terms
required by this Agreement to be performed or complied with by the Company
at or prior to the Closing; and
(b) no action or proceeding shall have been instituted or threatened for the
purpose or with the probable or reasonably likely effect of enjoining or
preventing the consummation of this Agreement or seeking damages on account
thereof; and
4.2 Conditions to Obligations of the Company. The obligations of the
----------------------------------------
Company to consummate the transactions contemplated hereby are subject to
the fulfillment of the following conditions:
(a) the representations and warranties of the Purchaser contained in this
Agreement shall be true and correct in all material respects at and as of
the Closing with the same effect as though such representations and
warranties had been made as of the Closing, and the Purchaser shall have
performed and complied in all material respects with all other terms
required by this Agreement to
be performed or complied with by the Purchaser at or prior to the Closing;
and
(b) no action or proceeding shall have been instituted or threatened for the
purpose or with the probable or reasonably likely effect of enjoining or
preventing the consummation of this Agreement or seeking damages on account
thereof.
ARTICLE V
TERMINATION
-----------
5.1 Termination. This Agreement may be terminated prior to the Closing (a)
-----------
by the mutual consent of the Purchaser and the Company, (b) by the Company (i)
upon the failure of the Purchaser to perform or comply in all material respects
with any of its covenants or agreements contained herein prior to the Closing or
(ii) if any representation or warranty of the Purchaser hereunder shall not have
been true and correct in all material respects as of the time at which it was
made, or (c) by the Purchaser (i) upon the failure of the Company to perform or
comply in all material respects with any of its covenants or agreements
contained herein prior to the Closing, or (ii) if any representation or warranty
of the Company hereunder shall not have been true and correct in all material
respects as of the time at which such was made; provided, however, that no
-------- -------
party may terminate this Agreement pursuant to clauses (b)(i) or (ii) or (c)(i)
or (ii) above if such party is, at the time of any such attempted termination,
in breach of any term hereof. The termination by any party pursuant to this
Section 5.1 shall not be deemed a waiver of any claim such party may have
against the other party or parties hereunder.
ARTICLE VI
MISCELLANEOUS
-------------
6.1 Collateral Agreements, Amendments and Waivers. This Agreement (together
---------------------------------------------
with the documents delivered pursuant hereto) supersedes all prior documents,
understandings and agreements, oral or written, relating to this transaction
and, except for any confidentiality agreement currently existing between the
parties, constitutes the entire understanding between the parties with respect
to the subject matter hereof. Any modification or amendment to, or waiver of,
any provision of this Agreement may be made only by an instrument in writing
executed by the party against whom enforcement thereof is sought.
6.2 Transfer of the Preferred Shares. The Purchaser shall not make or cause
--------------------------------
to be made any Transfer of the Preferred Shares except with the prior written
consent of the Company, which consent shall not be unreasonably withheld.
6.3 Deferral of SkyTel Management Fee. So long as any Preferred Shares are
---------------------------------
outstanding, the "Management Fee" payable by the Company to SkyTel
Communications, Inc. ("SkyTel") pursuant to the Management Agreement, dated as
------
of September 19, 1996, by and between the Company, Mtel International, Inc. and
SkyTel, shall not be paid quarterly but shall accrue, with interest compounded
at a rate of eighteen percent (18%) per annum, and shall be paid immediately
following the redemption of all outstanding Preferred Shares or at such other
time as there are no longer any Preferred Shares outstanding.
6.4 Successors and Assigns. Neither the Purchaser's nor the Company's
----------------------
rights or obligations under this Agreement shall be assigned, except
for an assignment by the Purchaser of its rights and obligations under this
Agreement in connection with a Transfer of the Preferred Shares in accordance
with Section 6.2 of this Agreement with the prior written consent of the
Company, which consent shall not be unreasonably withheld. Any assignment in
violation of the foregoing shall be null and void. Subject to the preceding
sentences of this Section 6.4, the provisions of this Agreement (and, unless
otherwise expressly provided therein, of any document delivered pursuant to this
Agreement) shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
6.5 Survival of Representations, Warranties and Agreements. Except for
------------------------------------------------------
Sections 6.2 and 6.3 hereof, none of the representations, warranties and
covenants of the parties contained in this Agreement shall survive the Closing.
6.6 Expenses. Each party shall pay all costs and expenses incurred by it
--------
in connection with the negotiation, execution and delivery of this Agreement
and the transactions contemplated hereby.
6.7 Invalid Provisions. If any provision of this Agreement is held to be
------------------
illegal, invalid or unenforceable under present or future laws, then, if
possible, such illegal, invalid or unenforceable provision will be modified to
such extent as is necessary to comply with such present or future laws and such
modification shall not affect any other provision hereof, provided that if such
provision may not be so modified such illegality, invalidity or unenforceability
will not affect any
other provision, but this Agreement will be reformed, construed and enforced as
if such invalid, illegal or unenforceable provision had never been contained
herein.
6.8 Notices. In any case where any notice or other communication is
-------
required or permitted to be given hereunder (including, without limitation, any
change in the information set forth in this Section 6.8) such notice or
communication shall be in writing and (a) personally delivered, (b) sent by
registered United States mail, postage prepaid, return receipt requested, (c)
transmitted by telecopy (which is confirmed) or (d) sent by way of a recognized
overnight courier service, postage prepaid, return receipt requested with
instructions to deliver on the next Business Day, in each case as follows:
If to the Company, to:
SkyTel Communications, Inc.
000 Xxxxx Xxxxx Xxxxxx
Mtel Centre, South Building
Jackson, Mississippi 39201
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
SkyTel Communications, Inc.
000 Xxxxx Xxxxx Xxxxxx
Mtel Centre, South Building
Jackson, Mississippi 39201
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to the Purchaser, to:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
provided that in the event any of the parties referred to above desires to
--------
designate another address or telecopier number to which such notices should be
sent to such party, such party may designate such other address or telecopier
number by giving notice to the other party to this Agreement in writing as set
forth in this Section 6.8 (provided that any change of address or telecopier
number shall be effective only upon receipt thereof). Any person who becomes a
party to this Agreement shall provide its address and telecopier number to the
Company, which shall promptly provide such information to each other party to
this Agreement.
All such notices or other communications shall be deemed to have been
given or received (i) upon receipt if personally delivered, (ii) on the fifth
day following posting if sent by registered United States mail, (iii) when sent
if confirmed by telecopy or (iv) on the next Business Day following deposit with
an overnight courier.
6.9 Public Announcement. Until the termination of this Agreement, neither
-------------------
the Company nor the Purchaser shall issue or cause the publication of any press
release or other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other parties, which
consent shall not be unreasonably withheld, provided that each party may issue
such press releases or public announcements as shall be required by law in which
event such party shall give the other parties a reasonable opportunity to review
and comment thereon.
6.10 Certain Definitions. Unless the context otherwise requires, the
-------------------
following terms shall have the meanings ascribed to them below:
(a) "Business Day " shall mean any calendar day which is not a Saturday,
------------
Sunday or legal holiday or a day on which banking institutions in the State
of New York are permitted to be closed.
(b) "person" shall mean an individual, firm, trust, association, corporation,
------
partnership, limited partnership, government (whether federal, state, local
or other political subdivision, or any agency or bureau of any of them) or
other entity.
(c) "Transfer" shall mean any offer, transfer sale, exchange, assignment,
--------
pledge, hypothecation, gift, grant of security interest in or lien on,
placement in a trust (voting or otherwise) or any other disposition or
encumbrance.
6.11 No Third-Party Beneficiaries. No person or entity not a party to
----------------------------
this Agreement shall be deemed to be a third-party beneficiary hereunder or
entitled to any rights hereunder.
6.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OR CHOICE OF LAW. THE PARTIES HERETO AGREE THAT THE VENUE WITH
RESPECT TO ANY ACTION OR SUIT COMMENCED BY EITHER OF THEM IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE IN A FEDERAL OR XXXXX XXXXX
XX XXXXXXXXX XXXXXXXXXXXX XX XXX XXXXXX XXXXXX.
6.13 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which may be executed by one or more of the parties
hereto, but all of which, when taken together, shall constitute but one
agreement binding upon all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
MTEL LATIN AMERICA, INC.
By: /s/ Xxxx X. Xxxxx III
-----------------------------------
Name: Xxxx X. Xxxxx III
Title: Vice Chairman
MICROSOFT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
Schedule 2.3
Capital Structure
-----------------
None
