STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement (the "Agreement"), dated as of April 8, 2005,
is between GNB Sudameris Bank, S.A, a bank organized under the laws of Panama
with offices at Xxxxx Xxxxxx Xxxxx Xxxxx Xx. 00, Xxxxxx Xxxx, Xxxxxxxx of Panama
(the "Seller") and Hispanic Telecommunications Holding S.A., a corporation
organized under the laws of Luxembourg with offices at 00 xxx xx Xxxxxx des
Herbes, L-1728, Luxembourg, Grand Duchy of Luxembourg (the "Purchaser").
RECITALS
A. The Seller is the owner of 38,352,714 shares (the "PHGW Shares") of the
common stock, par value $.001 per share of Phone1Globalwide, 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 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 April 8, 2005 (the "Closing Date"), the PHGW Shares for a
price of US $26,846,900 (the "Purchase Price").
(b) The Purchaser shall deliver the Purchase Price to the Seller as
follows: (i) US$7,000,000 no later than thirty (30) days after the Closing Date
and (ii) US$19,846,900 (the "Balance") no later than December 31, 2005 together
with interest at the rate of Libor plus 2% per annum, calculated from the date
hereof until payment to Seller of the Balance. When paid, the Purchase Price
(and interest thereof) 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 Seller described in the
first paragraph of this Agreement.
(e) For purposes of this Agreement, "Libor" means (a) the offered rate for
deposits in Euros with a maturity of one (1) month appearing on the display
designated on page "LIBO" on the Xxxxxx Monitor Money Rates Service (or on any
successor or substitute page of such service, or any successor to such service,
providing rate quotations comparable to those currently provided on such page of
such service, as determined by the Seller (or its designee) from time to time,
for purposes of providing quotations of interest rates applicable to Euro
deposits in the London interbank market) as of approximately 11:00 a.m. (London
time) on the date two business days prior to the date of payment of the Balance
and the commencement of the applicable one-month period; (b) if such rate does
not appear on said "LIBO" page (or such successor or substitute), the offered
rate for deposits in Euros with a maturity comparable to a one-month period
appearing on Page 3750 of the Telerate Service of Bridge Information Services
(or on any successor or substitute page of such service, or any successor to
such service, providing rate quotations comparable to those currently provided
on such page of such service, as determined by the Seller (or its designee) from
time to time, for purposes of providing quotations of interest rates applicable
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to Euros in the London interbank market) as of approximately 11:00 a.m. (London
time), on the date two business days prior to the commencement of such one-month
period.
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."
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(i) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of 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 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
Luxembourg) and, to the extent necessary under the laws of Luxembourg 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 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
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
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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 Panama) and, to the extent
necessary under the laws of Panama 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,
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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 Seller:
Xxxxx Xxxxxx Xxxxx Xxxxx Xx. 00
Xxxxxxxxx No: 000 000 0000
If to the Purchaser:
00 xxx xx Xxxxxx des Herbes
L-1728, Luxembourg
Grand Duchy of Luxembourg
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
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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].
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IN WITNESS HEREOF, the parties have executed this Agreement as of the date
first above written.
SELLER:
GNB SUDAMERIS BANK, S.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
PURCHASER:
HISPANIC TELECOMMUNICATIONS HOLDING, S.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
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