Exhibit 3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of
October 18, 1999, by and between CONVERGENCE COMMUNICATIONS, INC., a corporation
organized under the laws of the State of Nevada, United States of America (the
"Company") and TELEMATICA EDC, C.A., a Venezuelan compania anonima (the
"Investor"). The Company and the Investor are referred to collectively herein as
the "Parties" and singularly as a "Party". Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed thereto in that
certain Participation Agreement, dated as of October 15, 1999, among the
Company, Telematica EDC, C.A., TCW/CCI Holding LLC, International Finance
Corporation, Glacier Latin-America Ltd., Fondelec Essential Services Growth
Fund, L.P. and Internexus S.A. (the "Participation Agreement").
WHEREAS, the Company and the Investor are parties to the Participation
Agreement, pursuant to which the Investor has agreed to invest in the Company
through the purchase of shares of the Company's Series C Preferred Stock and
other securities of the Company, as one of a series of transactions set out in
the Participation Agreement; and
WHEREAS, the Company and the Investor desire to establish the terms for
the purchase by the Investor, at the Closing and/or Subsequent Closing as set
forth below, of such shares by entering into this Agreement and intend this
Agreement to be the "CCI Stock Purchase Agreement" referenced in the
Participation Agreement.
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants and the mutual promises contained herein and in the
Participation Agreement, the Parties agree as follows:
1. Purchase and Sale of Securities.
(a) The Transaction. On and subject to the terms and conditions of
this Agreement and the Participation Agreement, the Investor
hereby purchases from the Company, and the Company hereby
sells to the Investor: (i) at the Closing, a total of two
million (2,000,000) shares of the Company's Series C
Convertible Preferred Stock, par value $.001 per share, for a
purchase price per share of Seven and 50/100 United States
Dollars (U.S. $7.50), for the aggregate consideration
specified in Section 1(b)(i); and (ii) at the Subsequent
Closing, a total of one million three hundred and thirty three
thousand three hundred and thirty three (1,333,333) shares of
the Company's Series C Convertible Preferred Stock, par value
$.001 per share, for a purchase price per share of Seven and
50/100 United States Dollars (U.S. $7.50), for the aggregate
consideration specified in Section 1(b)(ii). The Series C
Convertible Preferred Stock acquired by the Investor at the
Closing and Subsequent Closing will be referred to herein as
the Investor's "Series C Shares." The Series C Shares shall
have the rights and preferences set out in Schedule 1 hereto.
(b) Purchase Price. The Investor shall pay and contribute to the
Company, in exchange for its Series C Shares, the following:
(i) at the Closing, the amount of Fifteen Million United
States Dollars (U.S. $15,000,000) by delivery of cash payable
by wire transfer or delivery of other immediately available
funds; and (ii) at the Subsequent Closing, the amount of Ten
Million United States Dollars (U.S. $10,000,000) by delivery
of cash payable by wire transfer or delivery of other
immediately available funds. The amounts paid by the Investor
under this Section 1(b) shall be referred to collectively as
the "Purchase Price."
(c) Delivery of Shares. At the Closing, the Company shall deliver
to the Investor one or more certificates representing the
Series C Shares described in Section 1(a)(i), and, at the
Subsequent Closing, the Company shall deliver to the Investor
one or more certificates representing the Series C Shares
described in Section 1(a)(ii). The Series C Share certificates
will be in the form attached hereto as Exhibit A.
2. Application of Purchase Price. The Purchase Price shall be applied by
the Company in the manner set out in Schedule 3 to the Participation
Agreement.
3. Rights and Obligations Part of Series of Transactions. The Parties
acknowledge and agree that the rights and obligations provided for in
this Agreement are part of a series of transactions which, pursuant to
the Participation Agreement, are subject to certain conditions
precedent as provided therein, and are being entered into in reliance
on certain representations and warranties and covenants of
indemnification set out in the Participation Agreement (which
indemnification obligations shall be deemed incorporated herein). Thus,
unless and until such conditions are satisfied or waived, and these
representations and warranties are made, all in the manner provided for
in the Participation Agreement, no Party shall have any rights or
obligations hereunder.
4. No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their
respective successors.
5. Succession. This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors.
6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument. For
purposes of this Agreement, the delivery of a counterpart signature by
telephonic facsimile transmission shall be deemed the equivalent of the
delivery of an original counterpart signature.
7. Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
8. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be provided in
the manner, and shall be deemed effective, as set forth for providing
notices in the Participation Agreement. Any Party may change the
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address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of
America, without giving effect to any choice or conflict of law
provision or rule that would cause the application of the laws of any
jurisdiction other than the State of New York. All disputes arising
under or in relations to this Agreement shall first be subject to
conciliation in accordance with the Rules of Conciliation of the
International Chamber of Commerce and, failing conciliation, be finally
settled under the Rules of Arbitration of the International Chamber of
Commerce by three arbitrators appointed in accordance with said Rules.
The place of arbitration shall be New York, New York. The language of
the arbitration shall be English. In the event any dispute under the
Participation Agreement relates in any way to the validity, performance
or interpretation of this Agreement and an arbitral is constituted
pursuant to Section 11(n) of the Participation Agreement, all Parties
to any dispute hereunder agree (i) to be joined to the procedures
initiated pursuant to Section 11(n) of the Participation Agreement;
(ii) to have any proceeding initiated hereunder consolidated with
proceedings initiated pursuant to Section 11(n) of the Participation
Agreement and (iii) to be bound by any ruling of the arbitral tribunal
constituted pursuant to Section 11(n) of the Participation Agreement or
any interim or final award thereof. Submission of disputes to
arbitration pursuant to the Rules of Arbitration of the International
Chamber of Commerce, in consolidation with any disputes submitted to
arbitration pursuant to Section 11(n) of the Participation Agreement as
provided above, shall be the sole method of resolving disputes between
the Parties hereto. Judgment upon an arbitration award may be entered
in any court having jurisdiction.
10. Amendments and Waivers. This Agreement may not be amended, extended or
modified unless an amendment, extension or modification has been
expressly approved by a writing signed by all the parties to the
Participation Agreement, and then only to the extent of such approval.
11. Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
12. Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
Convergence Communications, Inc.
By: ______________________________________
Its:______________________________________
INVESTOR:
Telematica EDC, C.A.
By: ______________________________________
Its:______________________________________
Attachments
Exhibits Schedules
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Exhibit A - Form of Series C Share Schedule 1 - Series C Shares Rights and
Certificates Preferences
