Stock Purchase Agreement - Titan Wireless Inc., Titan Wireless Afripa Holding Inc., Ivoire Telecom SA Holding and M. Louis N'ki Diakite
EXECUTION COPY
STOCK PURCHASE AGREEMENT
BY AND AMONG
TITAN WIRELESS, INC.,
TITAN WIRELESS AFRIPA HOLDING, INC.,
IVOIRE TELECOM S.A. HOLDING
AND
M. LOUIS N'KI DIAKITE
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TABLE OF CONTENTS
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1. DEFINITIONS......................................................................2
2. SALE, PURCHASE AND SUBSCRIPTIONS FOR COMPANY SHARES
2.1. Sale and Purchase of Company Shares.....................................2
2.2. Sale and Purchase Price.................................................2
2.3. Ivoire Telecom Closing Loan Arrangements ...............................2
2.4. Payments at the Closing.................................................3
3. ADDITIONAL UNDERTAKINGS AND COVENANTS............................................3
3.1. Consents and Approvals..................................................3
3.2. Investigations by Titan Wireless and Buyer..............................4
3.3. Certain Corporate Actions At Closing....................................4
3.4. Use Of Proceeds.........................................................4
3.5. Certain Post-Closing Covenants..........................................5
3.6. Authorized Capital of Buyer.............................................5
4. REPRESENTATIONS AND WARRANTIES REGARDING COMPANY.................................5
4.1. Organization and Standing...............................................5
4.2. Company Subsidiaries....................................................6
4.3. Charter Documents.......................................................7
4.4. Company Capitalization..................................................7
4.5. Directors, Officers and Employees.......................................8
4.6. Financial Statements....................................................8
4.7. No Liabilities..........................................................8
4.8. Accounts Receivable; Bank Accounts......................................9
4.9. Taxes...................................................................9
4.10. Conduct of Business; Absence of Material Adverse Change.................10
4.11. Real Property...........................................................12
4.12. Assets..................................................................13
4.13. Insurance...............................................................14
4.14. Intellectual Property and Technology....................................14
4.15. Permits.................................................................16
4.16. Debt Instruments........................................................17
4.17. Leases..................................................................17
4.18. Other Agreements........................................................18
4.19. Books and Records.......................................................19
4.20. Litigation; Disputes....................................................19
4.21. Labor Relations.........................................................20
4.22. Pension and Benefit Plans...............................................20
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4.23. Environmental...........................................................21
4.24. Government Contracts and Other Commitments..............................21
4.25. Telecom Licenses........................................................21
4.26. Transactions with Related Parties.......................................22
4.27. Restrictions and Consents...............................................23
4.28. Authorization...........................................................23
4.29. Absence of Violation....................................................24
4.30. Copies of Documents.....................................................24
4.31. Binding Obligation......................................................24
4.32. Disclosure..............................................................25
5. REPRESENTATIONS AND WARRANTIES REGARDING STOCKHOLDER.............................25
5.1. Title to Company Shares.................................................25
5.2. Authority and Capacity..................................................25
5.3. Absence of Violation....................................................26
5.4. Restrictions and Consents...............................................26
5.5. Binding Obligation......................................................26
5.6. Transfer of Title.......................................................27
6. REPRESENTATIONS AND WARRANTIES OF TITAN WIRELESS AND BUYER.......................27
6.1. Organization and Standing...............................................27
6.2. Authorization...........................................................27
6.3. Binding Obligation......................................................27
6.4. Buyer Capitalization....................................................28
7. RESTRICTED SECURITIES............................................................28
7.1. Acquisition for Investment..............................................28
7.2. Evaluation of Merits and Risks of Investment............................28
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE STOCKHOLDER...........................29
8.1. Representations and Warranties..........................................29
8.2. Performance.............................................................29
8.3. Officer's Certificate...................................................29
8.4. Legal Proceedings.......................................................29
8.5. Deliveries at Closing...................................................30
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF TITAN WIRELESS AND BUYER..................30
9.1. Representations and Warranties..........................................30
9.2. Performance.............................................................30
9.3. Absence of Adverse Changes..............................................30
9.4. Legal Proceedings; Adverse Political Events.............................31
9.5. Officer's Certificate...................................................31
9.6. Stockholder's Certificate...............................................31
9.7. Opinion of Company's Counsels...........................................31
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9.8. Certain Corporate Actions At Closing....................................31
9.9. Authorization by Company's Independent Certified Public
Accountants.........................................................32
9.10. Deliveries at Closing...................................................32
9.11. Resignations of Directors...............................................32
9.12. [Intentionally Left Bank]...............................................32
9.13. Consents................................................................32
9.14. Confidentiality Letter..................................................32
9.15. Employment Agreements...................................................32
10. CLOSING..........................................................................33
10.1. Closing Location and Date...............................................33
10.2. Deliveries by the Stockholder...........................................33
10.3. Deliveries by Company...................................................33
10.4. Deliveries by Buyer and Titan Wireless..................................34
11. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION; REMEDIES...........................34
11.1. Survival of Representations.............................................34
11.2. Agreement of Stockholder to Indemnify...................................35
11.3. Conditions of Indemnification...........................................35
11.4. Remedies Cumulative.....................................................36
12. TERMINATION......................................................................36
12.1. Termination.............................................................36
12.2. Effect of Termination...................................................37
13. MISCELLANEOUS....................................................................38
13.1. Additional Actions and Documents........................................38
13.2. No Brokers..............................................................38
13.3. Expenses................................................................38
13.4. Assignment..............................................................39
13.5. Entire Agreement; Amendment.............................................39
13.6. Waiver..................................................................39
13.7. Governing Law; Consent to Jurisdiction..................................40
13.8. Severability............................................................40
13.9. Notices.................................................................40
13.10. Headings................................................................42
13.11. Execution in Counterparts...............................................42
13.12. Limitation on Benefits..................................................42
13.13. Binding Effect..........................................................42
13.14. Specific Performance....................................................43
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("PURCHASE AGREEMENT") is entered into as
of June 28, 2000, by and among Titan Wireless, Inc., a Delaware corporation with
its principal place of business at 3033 Science Park Rd. San Diego, California
92121, U.S.A. ("TITAN WIRELESS"), Titan Wireless Afripa Holding, Inc., a
Delaware corporation with its principal place of business at 3033 Science Park
Rd., San Diego, California 92121, U.S.A. ("BUYER"), Ivoire Telecom S.A. Holding,
a SOCIETE ANONYME organized under the laws of the Grand Duchy of Luxembourg with
its registered office in Luxembourg, 3B boulevard du Prince Henri ("COMPANY")
and M. Louis N'Ki Diakite, an individual citizen of the Republic of Cote
d'Ivoire and the sole stockholder of Company ("STOCKHOLDER").
WHEREAS, Buyer is a wholly-owned subsidiary of Titan Wireless
established for the purpose of making the investment and entering the
transactions contemplated by this Purchase Agreement;
WHEREAS, Buyer desires to acquire an eighty percent (80%) equity and
full controlling interest in Company and, though such interest, a minimum 50.1%
(fifty point one percent) equity and full controlling interest in each of the
companies identified in EXHIBIT A (each such company a "Subsidiary"), it being
understood that through said equity interest in the Company the Buyer will have
full control each Subsidiary (said equity and full controlling interest in the
Company being hereinafter referred to as the "EQUITY INTEREST");
WHEREAS, the Company has heretofore acquired from Stockholder all of
the Stockholder's equity interests in each Subsidiary;
WHEREAS, in anticipation of Buyer's acquisition of the Equity Interest
and the other transactions contemplated herein, Titan Wireless: (i) has loaned,
on behalf of Buyer, One Million, Three Hundred Thousand United States Dollars
(US$ 1,300,000) to Stockholder ("DIAKITE MAY LOAN"), and secured pursuant to a
Pledge Agreement ("DIAKITE MAY PLEDGE AGREEMENT"); and (ii) has loaned One
Million United States Dollars (US$ 1,000,000) to Company ("COMPANY MARCH LOAN")
as evidenced by a promissory note dated March 15, 2000 (the "COMPANY MARCH
PROMISSORY NOTE");
WHEREAS, at the Closing, Buyer desires to lend to the Company Five
Million Five Hundred Thousand United States Dollars (US$ 5,5000,000); and
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WHEREAS, the Stockholder desires to sell to Buyer, and Buyer desires to
purchase from Stockholder, the Equity Interest at the price and upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. DEFINITIONS
For all purposes of this Purchase Agreement, certain capitalized terms
specified in EXHIBIT 1 shall have the meanings set forth in that EXHIBIT 1
except as otherwise expressly provided.
2. SALE PURCHASE AND SUBSCRIPTION FOR COMPANY SHARES
2.1 SALE AND PURCHASE OF COMPANY SHARES
On the basis of representations, warranties and agreements
contained herein, and subject to the terms and conditions hereof, Stockholder
agrees to sell to Buyer, and Buyer agrees to purchase from Stockholder, Four
Hundred and Thirty Four (434) Company Shares (which the Stockholder represents
and warrants, as set forth herein, now constitutes, and will at Closing
constitute, 80% of all the outstanding equity and voting interests Company) at
the purchase price specified in Section 2.2.
2.2 SALE AND PURCHASE PRICE
The purchase price ("PURCHASE PRICE") equals Five Million
United States Dollars (US$ 5,000,000) consisting of Three Million Seven Hundred
Thousand United States Dollars (US$ 3,700,000) cash payment and forgiveness of
One Million Three Hundred Thousand United States Dollars (US$ 1,300,000)
outstanding under the Diakite May Loan.
2.3 IVOIRE TELECOM CLOSING LOAN ARRANGEMENTS
On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions hereof, Buyer shall
loan to the Company, and the Company shall borrow from Buyer, Five Million Five
Hundred Thousand United States Dollars (US$ 5,500,000) (the "COMPANY JUNE
LOAN"), pursuant to the Company closing loan arrangements (the "IVOIRE TELECOM
CLOSING LOAN ARRANGEMENTS") in the form attached as EXHIBIT 2.3. The proceeds
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of the Company June Loan shall be paid in accordance with the Section 2.4 (iii)
and 3.4.
2.4. PAYMENTS AT THE CLOSING
Subject to satisfaction or waiver of the applicable conditions
precedent to Buyer's obligations at Closing, Buyer shall deliver at Closing:
(i) to the Escrow Agent pursuant to certain escrow
letter, dated as of the date hereof, by and among Stockholder, Buyer and Titan
Wireless (the "DIAKITE ESCROW LETTER"), a wire transfer of immediately available
funds in the amount of Two Million Seven Hundred Thousand United States Dollars
(US $2,700,000);
(ii) to Diakite, One Million United States Dollars (US
$1,000,000); and
(iii) to the payees at Closing listed in EXHIBIT 3.4 wire
transfers of immediately available funds, aggregating Two Million Three Hundred
Fifty-nine Thousand Seven Hundred United States Dollars (US $2,359,700), as
funding pursuant to the Ivoire Telecom Closing Loan Arrangements.
3. ADDITIONAL UNDERTAKINGS AND COVENANTS
Titan Wireless and Buyer, jointly and severally, on the one hand,
and Company and the Stockholder, jointly and severally, on the other hand,
hereby covenant and agree with the other as follows:
3.1. CONSENTS AND APPROVALS
(a) Company and the Stockholder shall, and shall cause
the Company Subsidiaries to, secure such consents, authorizations and approvals
of governmental and supragovernmental authorities and of private persons or
entities with respect to the transactions contemplated by this Purchase
Agreement, and to the performance of all other obligations of such parties
hereunder, as may be required: (i) by any applicable Laws of the United States,
Luxembourg, Benin, Cote d'Ivoire, France, Ghana, Mali and South Africa, the
Central African Republic and any other country, state or jurisdiction, or (ii)
by any Agreement to which Buyer, Company or any Subsidiary or Stockholder is a
party or by which Buyer, Company or any Subsidiary or Stockholder is bound.
(b) Titan Wireless, Buyer, Company and the Stockholder
shall cooperate in the filing of all forms, notifications, reports and
information, if any, required or reasonably deemed advisable pursuant to
applicable Laws in connection with the transactions contemplated by this
Purchase Agreement.
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3.2 INVESTIGATIONS BY TITAN WIRELESS AND BUYER
The investigations heretofore undertaken by Titan Wireless and
Buyer of the financial and operating data, Assets, Real Property and other
information with respect to the businesses and Assets of Company and the Company
Subsidiaries shall in no way affect the obligations of Company and of the
Stockholder with respect to the agreements, representations, warranties,
covenants and indemnification provisions set forth in this Purchase Agreement.
3.3 CERTAIN CORPORATE ACTIONS AT CLOSING
(a) At Closing, Company and the Stockholder shall take
all actions (corporate and otherwise) necessary to duly:
(i) hold an extraordinary general meeting of the
shareholders of Company in Luxembourg to: (A) authorize, adopt, file and
otherwise make effective the amendments to the Charter Documents of Company in
form and substance required by Buyer, including without limitation making the
changes to the Company Charter Documents described in EXHIBIT 3.3A; and (B)
elect Eric DeMarco and Herbert Bradley as directors of the Company; and
(ii) hold an extraordinary general meeting of the
shareholders of Company to: (A) ratify and confirm the Ivoire Telecom Closing
Loan Arrangements; (B) ratify and confirm the Stockholders Agreements in the
form of EXHIBIT 3.3B, attached hereto; (C) ratify and confirm the Ivoire Telecom
Line of Credit Facility and Security Agreement, in substantially the form of
EXHIBIT 3.3C ("Line of Credit Agreement"); (D) ratify and confirm all other
actions the Company has taken in connection with the Company March Loan, the
Diakite May Loan, and this Purchase Agreement and the transactions contemplated
herein; and (E) appoint the firm of Bonn & Schmitt & Steichen as Luxembourg
counsel to the Company and move the Company's books and records (including
without limitation the shareholder ledger) to Bonn & Schmitt & Steichen.
(b) Immediately upon and after Closing the Board of
Directors of Buyer shall duly adopt the Stock Option Plan in the form of EXHIBIT
3.3D, attached hereto.
3.4 USE OF PROCEEDS
The Company shall use the proceeds of the Ivoire Telecom
Closing Loan Arrangements only for purposes and in amounts specifically set
forth in Sections 2.4 (iii) and as approved by Buyer and Titan Wireless, whose
approval will not be unreasonably withheld, it being understood that the
purposes and
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expenditures identified in EXHIBIT 3.4 have been so approved by Buyer and Titan
Wireless.
3.5. CERTAIN POST-CLOSING COVENANTS
Upon request of Buyer from time to time, the Stockholder shall
take, and shall use good faith efforts to cooperate with Company and Buyer in
taking, all actions (corporate and otherwise) necessary to duly hold meetings of
the shareholders of some or all Subsidiaries to (i) ratify and confirm the Line
of Credit Agreement; (ii) remove directors of a Subsidiary; and (iv) authorize,
adopt, file and otherwise make effective the amendments to the Charter Documents
of a Subsidiary.
3.6. AUTHORIZED CAPITAL OF BUYER
Following Closing, Titan Wireless shall cause the authorized
capital of Buyer to be increased to twenty million (20,000,000) shares of common
stock, U.S. $0.01 par value per share.
4. REPRESENTATIONS AND WARRANTIES REGARDING COMPANY
Except as specifically set forth in the Disclosure Schedule
(with each disclosure therein referring specifically to the Section of this
Purchase Agreement to which such disclosure applies), the Stockholder hereby
represents and warrants (which representation and warranty shall be deemed to
include the disclosure with respect thereto so specified in the Disclosure
Schedule) to Titan Wireless and Buyer, as follows:
4.1. ORGANIZATION AND STANDING
Company is a corporation duly organized, validly existing and
in good standing under the laws of Luxembourg, and has the full and unrestricted
corporate power and authority to own, operate and lease its Assets, to carry on
its business in the Ordinary Course of Business and as currently conducted, to
execute and deliver this Purchase Agreement and to carry out the transactions
contemplated hereby. Company is duly qualified to conduct business as a foreign
corporation and is in good standing in the states, countries and territories
listed on the Disclosure Schedule. Company is not qualified to conduct business
in any other jurisdiction, and neither the nature of the business conducted by
Company nor the character of the Assets owned, leased or otherwise held by it
makes any such qualification necessary. There is no state, country or territory
wherein the absence of licensing
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or qualification as a foreign corporation would have a material adverse effect
upon the business of Company as currently conducted.
4.2. COMPANY SUBSIDIARIES
(a) Company has no Company Subsidiaries and no equity
investment or other interest in, nor has Company made advances or loans to, any
corporation, company, association, partnership, joint venture or other entity,
except as set forth in the Disclosure Schedule.
(b) The Disclosure Schedule sets forth (i) the capital
stock of each direct and indirect Company Subsidiary of Company (including
without limitation every Subsidiary of a Company Subsidiary) and the percentage
of the outstanding capital stock of each Company Subsidiary directly or
indirectly held by Company; (ii) the nature and amount of any such equity
investment, other interest or advance; and (iii) the names and addresses of
every person who holds equity or other interests in each Subsidiary and the
amount of such interest in each Subsidiary and the amount of such interest held
by each such person; no other persons hold any direct or indirect interest in
any Subsidiary. Stockholder holds no direct or indirect interests in any Company
Subsidiary other than through his ownership of Company Shares.
(c) All of the interests in Company Subsidiaries directly
or indirectly held by Company have been duly authorized and validly issued and
are outstanding, fully paid and nonassessable. Company directly, or indirectly,
owns all such interests in such the direct or indirect Subsidiaries free and
clear of all Encumbrances.
(d) No shares of capital stock of any Subsidiary have
been reserved for any purpose. There are no outstanding securities convertible
into or exchangeable for capital stock of any Company Subsidiaries, and no
outstanding options, rights (preemptive or otherwise), or warrants to purchase
or to subscribe for any shares of such stock or other securities of Company
Subsidiaries. There are no Agreements affecting or relating to the voting,
issuance, purchase, redemption, repurchase or transfer of capital stock of any
Company Subsidiary, any other securities of any Company Subsidiary, except as
contemplated hereunder.
(e) Each Company Subsidiary is a corporation (or a
SOCIETE ANONYME) duly organized, validly existing and in good standing under the
laws of its nation or jurisdiction of incorporation (as listed in the Disclosure
Schedule), and has the full and unrestricted corporate power and authority to
own, operate and lease its Assets and to carry on its business as currently
conducted. Each Company Subsidiary is qualified to conduct business and is in
good standing in the states, countries and territories listed in the Disclosure
Schedule. The Company Subsidiaries are not qualified to conduct business in any
other jurisdiction, and
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neither the nature of their businesses nor the character of the Assets owned,
leased or otherwise held by them makes any such qualification necessary. There
is no state, country or territory wherein the absence of licensing or
qualification as a foreign corporation would have a material adverse effect upon
the business of the Company Subsidiaries as currently conducted.
(f) Stockholder has sold to the Company, and the Company
has purchased from Stockholder, a sufficient amount of the equity capital and
controlling interests in each of the Company Subsidiaries in order for the
Company to hold at least: (i) thirty percent (30%) of Centrafrique Telecom Plus
- CTP (Central African Republic); (ii) Seventy percent (70%) of Afripa Holding
Pty., Ltd., a corporation organized in the Republic of South Africa, and (iii)
Sixty-three percent (63%) of the equity interests and the controlling interest
in each of the other Company Subsidiaries.
4.3 CHARTER DOCUMENTS
(a) Company has Furnished to Buyer a true and complete
copies of the Charter Documents (in the English or French languages) of Company
and of each Company Subsidiary, as currently in effect, certified as of a recent
date by the Secretary of State, or Registry of Commerce and Companies (or
comparable authorities) of the respective jurisdictions of incorporation. Such
certified copies are attached as exhibits to, and part of, the Disclosure
Schedule.
(b) Other than as attached to the Disclosure Schedule,
there are no agreements or other arrangements with any other person restricting
or affecting the ability of the Company to exercise Control over the business,
operations or conduct of the Company or any Subsidiary.
4.4 COMPANY CAPITALIZATION
(a) The capital stock of Company consists of shares Five
Hundred Forty-Two (542) ordinary capital shares, par value One Hundred United
States Dollars (U.S. $100) per share, all of which are duly authorized and
validly issued and outstanding, fully paid and nonassessable. No shares of
capital stock of Company have been reserved for any purpose. There are no
outstanding securities convertible into or exchangeable for capital stock of the
Company, and no outstanding options, rights (preemptive or otherwise), or
warrants to purchase or to subscribe for any shares of such stock or other
securities of Company.
(b) There are no outstanding Agreements affecting or
relating to the voting, issuance, purchase, redemption, repurchase or transfer
of Company's Common Stock, any other securities of Company, or any securities of
any Subsidiary, except as contemplated hereunder.
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(c) The Company Shares issued to Buyer pursuant to
SECTION 2.3 shall, upon issuance, be duly authorized and validly issued and
outstanding, fully paid and nonassessable, and free of any Encumbrance or other
charge.
4.5 DIRECTORS, OFFICERS AND EMPLOYEES
The Disclosure Schedule lists all current directors, officers
and employees of Company and Company Subsidiaries, showing each such person's
name, position, and annual remuneration, bonuses and fringe benefits for the
current fiscal year and the most recently completed fiscal year.
4.6 FINANCIAL STATEMENTS
Company has caused to be prepared and Furnished to Buyer
certain financial statements of each Subsidiary, dated as of December 31, 1999,
copies of which are attached hereto as EXHIBIT 4.6 (the attached financial
statements, the "ATTACHED FINANCIAL STATEMENTS"). The Attached Financial
Statements are: (a) prepared in accordance with the books and records of the
companies to which they pertain, (b) present fairly the consolidated financial
position of the companies to which they pertain as of the respective dates and
the results of operations and changes in financial position for the respective
periods indicated and (c) the Attached Financial Statements for the French
subsidiary are prepared in accordance with French generally accepted accounting
principles applied on a basis consistent with prior accounting periods; and (d)
the other Attached Financial Statements are prepared in accordance with SYSCOA
generally accepted accounting principles applied on a basis consistent with
prior accounting periods.
4.7. NO LIABILITIES
(a) Except as reflected in the Attached Financial
Statements, there exist no liabilities (whether contingent or absolute, matured
or unmatured, known or unknown) of any Company Subsidiary.
(b) The Disclosure Schedule lists all liabilities of the
Company, as of the date hereof, of a nature that would require such liabilities
to be reflected as liabilities, and the amounts at which such liabilities would
be so listed, on an unconsolidated balance sheet of the Company (without
consolidation with Company Subsidiaries).
(c) Since December 31, 1999, neither Company nor any
Company Subsidiary has incurred any liabilities (whether contingent or absolute,
matured or unmatured, known or unknown) other than in the Ordinary Course of
Business. Neither Company nor any Company Subsidiary has engaged in any
transaction that could reasonably be expected to subject it to any actions,
causes of action or claims
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for recovery under any bankruptcy, receivership, insolvency, or corresponding
provision of Law.
4.8. ACCOUNTS RECEIVABLE; BANK ACCOUNTS
(a) The accounts receivable of the Company Subsidiaries
shown on the Attached Financial Statements or thereafter acquired by any of
them, have been collected or are collectible in amounts not less than the
amounts thereof carried on the books of the Company Subsidiaries, except to the
extent of the allowance for doubtful accounts shown on such balance sheets.
(b) The Disclosure Schedule sets forth the names of all
banks or other financial institutions with which Company or any of the Company
Subsidiaries has an account or safe deposit box and identifies each such account
and safe deposit box, together with the names of all persons authorized to draw
therefrom or to have access thereto.
4.9. TAXES
(a) Company and the Company Subsidiaries have (or, in the
case of returns becoming due after the date hereof and on or before the Closing
Date, will have prior to the Closing Date) duly filed all Company Tax Returns
required to be filed by Company and the Company Subsidiaries on or before the
Closing Date with respect to all applicable Taxes. No penalties or other charges
are or will become due with respect to such Company Tax Returns as the result of
the late filing thereof. All of the Company Tax Returns are (or, in the case of
returns becoming due after the date hereof and on or before the Closing Date,
will be) true and complete in all respects. Company has paid all Taxes due or
claimed to be due by any Taxing authority in connection with any of the Company
Tax Returns filed on behalf of the Company (without regard to whether or not
such Taxes are shown as due on such Company Tax Returns). The Company
Subsidiaries: (i) have paid all Taxes due or claimed to be due by any Taxing
authority in connection with any of the Company Tax Returns filed on behalf of
Company Subsidiaries (without regard to whether or not such Taxes are shown as
due on such Company Tax Returns); or (ii) have established (or, in the case of
amounts becoming due after the date hereof, prior to the Closing Date will have
paid or established) in the Attached Financial Statements adequate reserves (in
conformity with United States generally accepted accounting principles
consistently applied) for the payment of such Taxes. The amounts set up as
reserves for Taxes on the Attached Financial Statements are sufficient for the
payment of all unpaid taxes of the Company Subsidiaries, whether or not such
Taxes are disputed or are yet due and payable, for or with respect to any
periods prior to and including the Closing Date, and for which any Company
Subsidiary may be liable in its own right (including, without limitation,
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by reason of being a member of the same affiliated group) or as a transferee of
the Assets of, or successor to, any corporation, person, association,
partnership, joint venture or other entity.
(b) Neither Company nor any Company Subsidiary, either in
its own right (including, without limitation, by reason of being a member of the
same affiliated group) or as a transferee, has or on the Closing Date will have
any liability for Taxes payable for or with respect to any periods prior to and
including the Closing Date in excess of the amounts actually paid prior to the
Closing Date or reserved for in the Attached Financial Statements.
(c) There is no action, suit, proceeding, audit,
investigation or claim pending or, to the knowledge of Company or Stockholder,
threatened in respect of any Taxes for which Company or any Company Subsidiary
is or may become liable, nor has any deficiency or claim for any such Taxes been
proposed, asserted or, to the knowledge of Company or Stockholder, threatened.
Neither Company nor any Company Subsidiary has consented to any waivers or
extensions of any statute of limitations with respect to any taxable year of
Company or any Company Subsidiary. There is no Agreement, waiver or consent
providing for an extension of time with respect to the assessment or collection
of any Taxes against Company or any Company Subsidiary, and no power of attorney
granted by Company or any Company Subsidiary with respect to any tax matters is
currently in force.
(d) [Intentionally Left Blank]
(e) Neither the Company nor any Company Subsidiary has
made any elections or consents for purposes of foreign, state or local Taxes
that reasonably could be expected to affect or be binding upon Company or any of
the Company Subsidiaries or their respective Assets or operations after the
Closing. Neither the Company nor any Company Subsidiary has changed its
accounting methods for Tax purposes at any time.
(f) Neither Company nor any of the Company Subsidiaries
(i) is or has ever been a partner in a partnership or an owner of an interest in
an entity treated as a partnership or an owner of an interest in an entity
treated as a partnership for income tax purposes; or (ii) is a party to an
Agreement relating to the sharing, allocation or payment of or indemnity for,
Taxes (other than an Agreement the only parties to which are Company and the
Company Subsidiaries).
4.10. CONDUCT OF BUSINESS; ABSENCE OF MATERIAL ADVERSE CHANGE
Since December 31, 1999, there has been no material adverse
change and no adverse change except in the Ordinary Course of Business, in the
business, operations, prospects, condition (financial or otherwise), Assets or
liabilities of
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Company or any Company Subsidiary. Since December 31, 1999, Company and the
Company Subsidiaries have conducted their respective businesses diligently
and substantially in the manner theretofore conducted and only in the
Ordinary Course of Business, and neither Company nor any Company Subsidiary
has (a) incurred loss of, or significant injury to, any Assets of Company or
of any such Subsidiary as the result of any fire, explosion, flood,
windstorm, earthquake, labor trouble, riot, accident, act of God or public
enemy or armed forces, or other casualty; (b) issued any capital stock, bonds
or other rights calling for the issuance thereof, or borrowed any funds; (c)
declared, set aside or paid any dividend or made any distribution with
respect to their capital stock; (d) directly or indirectly redeemed,
purchased or otherwise acquired any of their capital stock (except as
contemplated by SECTION 4.2 (f)); (e) effected a split, reclassification or
other change in or of any of their capital stock; (f)amended any of their
Charter Documents; (g) incurred, or become subject to, any obligation or
liability (absolute or contingent, matured or unmatured, known or unknown),
except current liabilities incurred in the Ordinary Course of Business; (h)
discharged or satisfied any Encumbrance or paid any obligation or liability
(absolute or contingent, matured or unmatured, known or unknown) other than
current liabilities shown in the Attached Financial Statements, and current
liabilities incurred since December 31, 1999, in the Ordinary Course of
Business; (i) declared or made payment of, or set aside for payment, any
dividends or distributions of any Assets, or purchased, redeemed or otherwise
acquired any of its capital stock, any securities convertible into capital
stock, or any other securities: (j) mortgaged, pledged or subjected to any
Encumbrance any of its Assets; (k) sold, exchanged, transferred or otherwise
disposed of any of its Assets, or cancelled any debts or claims, except in
each case in the Ordinary Course of Business; (l) written down the value of
any Assets or written off as uncollectible any notes or accounts receivable,
except write-downs and write-offs in the Ordinary Course of Business, none of
which, individually or in the aggregate, are material; (m) entered into any
transactions other than in the Ordinary Course of Business; (n) increased the
rate of compensation payable, or to become payable, by it to any of its
officers, employees, agents or independent contractors over the rate being
paid to them on December 31, 1999; (o) made or permitted any amendment or
termination of any material Agreement to which it is a party or which it
owns; (p) through negotiation or otherwise made any commitment or incurred
any liability to any labor organization; (q) granted any increase in the
compensation payable or to become payable by Company or any Subsidiary to
officers or employees of Company or any Subsidiary, or entered into any Plan
or any Other Arrangement other than bonus, insurance, pension or other
benefit plans, payment or arrangement for or with any of such officers or
employees which the Company is obligated to provide as of the date of this
Purchase Agreement; (r) made any accrual or arrangement for or payment of
bonuses or special compensation of any kind to any director, officer or
employee; (s) borrowed
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or agreed to borrow any funds (other than the Company March Loan and the
proceeds to the Diakite May Loan), or directly or indirectly guaranteed or
agreed to guarantee the obligations of others; (t) directly or indirectly paid
any severance or termination pay to any officer or employee in excess of six (6)
months' salary; (u) made capital expenditures, or entered into commitments
therefor, aggregating more than US$ 100,000; (v) made any change in any method
of accounting or accounting practice; (w) entered into any transaction of the
type described in SECTION 4.27; (x) made any charitable contributions or pledges
exceeding (in the aggregate) US$ 500,000; (y) placed, allowed to be placed, or
suffered an Encumbrance on any of their respective Assets; (z) cancelled any
indebtedness owing to Company or any Subsidiary or any Claims which Company or
any Subsidiary may possess, or waived any rights of substantial value; (aa)
sold, assigned or transferred any Intellectual Property or Technology; (bb)
violated any Law; (cc) committed any act or failed to perform any act, or
engaged in any activity or transaction or incurred any obligation (by conduct or
otherwise), which (individually or in the aggregate) reasonably could be
expected to have a material adverse effect on their businesses or Assets; (dd)
make any loan or advance to any stockholder, officer or director of Company or
any Subsidiary or to any other person, firm, or corporation; or (ee) made any
Agreement to do any of the foregoing.
4.11. REAL PROPERTY
(a) Attached to the Disclosure Schedule are the documents
giving the Company or certain Subsidiaries the legal right to occupy and utilize
Real Property in France, Ghana and the Cote d'Ivoire. Each such document is
valid and binding on the owner or lessor of the Real Property, is in full force
and effect without modification or termination, and neither the Company nor the
relevant Subsidiary is in default thereunder and no event or circumstance has
occurred which, with the passing of time or the giving of notice would
constitute a default thereunder. In addition, with respect to the Real Property
in: (i) Cote d'Ivoire, all conditions for issuance of the 99-year lease
contemplated by the "Promise to Lease" have been fulfilled, including without
limitation the necessary investment by the Company and its Subsidiary; and (ii)
Ghana, preliminary site preparation work has commenced, the Company or its
Subsidiary has notified the Government that they would be late commencing
development of the site and the Government has not objected.
(b) Company and the Company Subsidiaries are the sole
owners of good, valid, fee simple, marketable and insurable (at standard rates)
title to the Real Property respectively owned by them, including, without
limitation, all buildings, structures, fixtures and improvements thereon and all
equipment, machinery and personal property therein, in each case free and clear
of all Encumbrances.
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(c) All buildings, structures, fixtures and other
improvements on the Real Property are in good repair, free of defects (latent or
patent), and fit for the uses to which they are currently devoted. All such
buildings, structures, fixtures and improvements on the Real Property conform to
all Laws. The buildings, structures, fixtures and improvements on each parcel of
the Real Property lie entirely within the boundaries of such parcel of the Real
Property as specified in the legal description set forth in the Disclosure
Schedule, and no structures of any kind encroach on the Real Property.
(d) None of the Real Property is subject to any Agreement
or other restriction of any nature whatsoever (recorded or unrecorded)
preventing or limiting Company's or any Subsidiary's right to convey or to use
it. Wherever practicable, Company, at least twenty (20) days prior to the
Closing, at its own expense, shall secure and Furnish to Buyer title insurance
policies covering the Real Property (owned by Company or any Subsidiary issued
by a title insurance company) acceptable to Buyer, showing title to the Real
Property in Company or such Subsidiary, with no exceptions as to survey matters
and otherwise in form and substance acceptable to Buyer.
(e) No portion of the Real Property or any building,
structure, fixture or improvement thereon is the subject of, or affected by, any
condemnation, eminent domain or inverse condemnation proceeding currently
instituted or pending, and Company has no knowledge that any of the foregoing
are, or will be, the subject of, or affected by, any such proceeding.
(f) The Real Property has direct and unobstructed access
to adequate electric, gas, water, sewer and telephone lines, all of which are
adequate for the uses to which the Real Property is currently devoted and
intended to be devoted.
4.12. ASSETS
(a) Company and the Company Subsidiaries have good, valid
and marketable title to all Assets respectively owned by them, including,
without limitation, all Assets reflected in the Attached Financial Statements
(except for Assets acquired since December 31, 1999, and Assets which have been
sold or otherwise disposed of in the Ordinary Course of Business for fair market
value to a person that is not an Affiliate of Stockholder, the Company, or any
Subsidiary), free and clear of all Encumbrances (other than Encumbrances
referred to in the Attached Financial Statements).
(b) The Disclosure Schedule lists all assets of the
Company, as of the date hereof, of a nature that would require such assets to be
reflected as assets,
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and the value at which such assets would be reflected, on an unconsolidated
balance sheet of the Company (without consolidation with Company Subsidiaries).
(c) All personal property of Company and the Company
Subsidiaries is in good operating condition and repair and is suitable and
adequate for the uses for which it is intended or is being used. All Inventories
of Company and the Company Subsidiaries consists of items which are good and
merchantable and of quality presently useable and salable in the Ordinary Course
of Business.
(d) The assets of the Company and the Subsidiaries in the
Republic of South Africa have an aggregate value of less than U.S. $100,000, and
during the last year the aggregate revenues the Company and the Company
Subsidiaries received from customers in the Republic of South Africa was less
than U.S. $100,000.
4.13. INSURANCE
The Disclosure Schedule lists and briefly describes all
policies of title, Asset, fire, hazard, casualty, liability, life, worker's
compensation and other forms of insurance of any kind owned or held by
Company and the Company Subsidiaries. All such policies: (a) are with
insurance companies reasonably believed by Company to be financially sound
and reputable; (b) are in full force and effect; (c) are sufficient for
compliance by Company and by each Company Subsidiary with all requirements of
Law and of all Agreements to which Company or any Company Subsidiary is a
party; (d) are valid and outstanding policies enforceable against the
insuror; (e) insure against risks of the kind customarily insured against and
in amounts customarily carried by companies similarly situated and by
companies engaged in similar businesses and owning similar properties, and
provide adequate insurance coverage for the businesses and Assets of Company
and the Company Subsidiaries; and (f) provide that they will remain in full
force and effect through the respective dates set forth in the Disclosure
Schedule.
4.14. INTELLECTUAL PROPERTY AND TECHNOLOGY
(a) The Disclosure Schedule sets forth a true, correct
and complete list of the Intellectual Property and the Technology owned by, or
with respect to which a right or license to use, sell or otherwise exploit such
Intellectual Property or Technology is held by, the Company or any Company
Subsidiary, including but not limited to; (A) each license or other contract
relating thereto and indicates, with respect to each item of Company or Company
Subsidiary Intellectual Property or Technology listed thereon, the owner thereof
and, if applicable, the name of the licensor and licensee thereof and the terms
of such license or other contract relating thereto; and (B) each patent,
copyright, trademark and service mark issued to the
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Company or any Company Subsidiary, including the country in which such patent,
copyright, trademark or service mark is issued, the date of issuance, and the
categories or classes in which such patent, copyright, trademark or service mark
is issued.
(b) Without limiting the generality of the foregoing,
Company and the Subsidiaries own, and have full and exclusive right to use,
commercialize and exploit, the names "Afripa" and "Afripa Telecom" in France,
Cote d'Ivoire, Ghana, Mali, Benin, the Central African Republic and South
Africa, without payment or other obligation to any other person. No other person
has an ownership interest in, or right to license to use, commercialize or
exploit, the names "Afripa" and "Afripa Telecom" elsewhere in the world.
(c) The rights of the Company and Company Subsidiaries to
Intellectual Property and Technology owned or licensed by them are valid and
enforceable, owned free and clear of any and all liens, mortgages, pledges,
security interest, levies, charges, options or any other encumbrances of any
kind whatsoever and neither the Company nor any Company Subsidiary has received
any notice to the effect that any other entity has any claim of ownership with
the respect thereto.
(d) With respect to each item of Intellectual Property or
Technology that is registered, or for which an application for registration has
been submitted, filed with or recorded by any Governmental Entity, the Company
or the relevant Company Subsidiary has paid all necessary registration,
maintenance and renewal fees, and all necessary documents, and certificates in
connection with the rights of the Company or any Company Subsidiary to such
Intellectual Property or Technology have been filed with the relevant patent,
copyright, trademark or other Governmental Entities in the countries in which
Company and any of the Company Subsidiaries operate for the purpose of
maintaining such registrations.
(e) In each case where the Company and Company
Subsidiaries has acquired ownership of any Technology or Intellectual Property
from any person, the Company or the relevant Company Subsidiary has obtained a
valid and enforceable assignment, as applicable, sufficient to irrevocably
transfer all rights in such Intellectual Property and Technology to the Company
or the Company Subsidiary, as applicable.
(f) No person who has licensed Technology or Intellectual
Property Rights to the Company or to any Company Subsidiary, has ownership
rights or license rights to improvements made by the Company or a Company
Subsidiary, as applicable, in such Technology or Intellectual Property Rights.
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(g) All Intellectual Property and Technology held by the
Company or a Company Subsidiary is fully transferable, usable or licensable
without restriction and without payment of any kind to any third party.
(h) The use by the Company or the Company Subsidiaries
of the Intellectual Property or Technology listed on the Disclosure Schedule
has been continuous and does not conflict with, infringe upon, violate or
interfere with or constitute an appropriation of any right, title, interest
or goodwill, including, without limitation, any intellectual property right,
patent, trademark, trade name, service mark, brand mark, brand name, computer
program, industrial design, copyright or any pending application therefor of
any other person or entity. No person is infringing or misappropriating any
such Intellectual Property or Technology. Neither the Company nor any of the
Company Subsidiaries has received any notice of any claims, or has reason to
believe, that any of the rights of the Company or any Company Subsidiary to,
or their use of, such Intellectual Property or Technology is invalid,
conflicts with the rights of other entities, or has been used or enforced (or
has failed to be used or enforced) in a manner that would result in the
abandonment, cancellation or unenforceability of the rights of Company or
Company Subsidiaries to such Intellectual Property or Technology.
(i) The Company and each of the Company Subsidiaries
possess all Company and Company Subsidiary Intellectual Property and Technology,
including, without limitation, all know-how, formulae and other proprietary and
trade rights and trade secrets, necessary for the conduct of their businesses as
now conducted. Neither the Company nor any Company Subsidiary has taken or
failed to take any action that would result in the forfeiture or relinquishment
of any such Company or Company Subsidiaries Intellectual Property or Technology
used in the conduct of its business as now conducted.
4.15. PERMITS
The Company, each Company Subsidiary and every officer,
employee and agent of the Company and of each Company Subsidiary hold all
licenses, permits, certificates, ratings, registrations, orders, authorizations,
approvals and franchises which are required by Law to permit the Company and the
Company Subsidiaries to conduct business as presently conducted, except where
the failure to hold such licenses, permits, certificates, ratings,
registrations, orders, authorizations, approvals or franchises would not,
individually or in the aggregate, have a material adverse effect on the business
or prospects of the Company or any Company Subsidiary. Neither the Company nor
any Company Subsidiary, nor any officer, employee or agent of the Company or of
a Company Subsidiary, has violated any of the requirements, terms or conditions
of such licenses, permits, certificates, ratings, registrations, orders,
authorizations, approvals or franchises. All such
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material licenses, permits, certificates, ratings, registrations, orders,
authorizations, approvals and franchises are valid and in full force and effect.
4.16. DEBT INSTRUMENTS
The Disclosure Schedule lists and briefly describes the
material terms, provisions and conditions of all mortgages, indentures, notes,
guarantees and other Agreements for or relating to borrowed money (including,
without limitation, conditional sales agreements and capital leases) to which
Company or any Company Subsidiary is a party or which have been assumed by
Company or Company Subsidiary or to which any Assets or any Company Subsidiary
are subject and, with respect to each arrangement so listed, briefly describes
the principal amount, interest rate, original and maturity dates and any sinking
fund installments, prepayment premiums, restrictive covenants and any other
material provisions. Company and the Company Subsidiaries have performed all the
obligations required to be performed by any of them to date and are not in
default in any respect under any of the foregoing, and there has not occurred
any event which (whether with or without notice, lapse of time or the happening
or occurrence of any other event) would constitute such a default.
4.17. LEASES
The Disclosure Schedule lists and briefly describes all leases
and other Agreements under which Company or any Company Subsidiary is lessee or
lessor of any Asset, or holds, manages or operates any Asset owned by any third
party, or under which any Asset owned by Company or by any Company Subsidiary is
held, operated or managed by a third party. Company and the Company
Subsidiaries
are the owners and holders of all the leasehold estates purported to be granted
by the Documents described in the Disclosure Schedule to them and are the owners
of all equipment, machinery and other Assets thereon or in buildings and
structures thereon, in each case free and clear of all Encumbrances. Each such
lease and other Agreement is in full force and effect and constitutes a legal,
valid and binding obligation of, and is legally enforceable against, the
respective parties thereto and grants the leasehold estate it purports to grant
free and clear of all Encumbrances. All necessary governmental approvals with
respect thereto have been obtained, all necessary filings or registrations
therefor have been made, and there have been no threatened cancellations thereof
and are no outstanding disputes thereunder. Company and the Company Subsidiaries
have in all respects performed all obligations thereunder required to be
performed by any of them to date. No party is in default in any respect under
any of the foregoing, and there has not occurred any event which (whether with
or without notice, lapse of time or the happening or occurrence of any other
event) would constitute such a default. All of the Assets subject to such leases
are in good operating condition and repair.
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4.18. OTHER AGREEMENTS
(a) The Disclosure Schedule lists and briefly describes
all Agreements to which Company or any Company Subsidiary is a party or by which
Company or any Company Subsidiary is bound at the date hereof. Each such
Agreement is in full force and effect and constitutes a legal, valid and binding
obligation of, and is legally enforceable against, the respective parties
thereto. All governmental or supragovernmental approvals required by Law with
respect thereto have been obtained, all filings or registrations therefore
required in order to be enforceable have been made and there have been no
threatened cancellations thereof and are no outstanding disputes thereunder.
Company and the Company Subsidiaries have in all respects performed all the
obligations thereunder required to be performed by any of them to date. No party
is in default in any respect under any of the Agreements described in the
Disclosure Schedule, and there has not occurred any event which (whether with or
without notice, lapse of time or the happening or occurrence of any other event)
would constitute such a default.
(b) Except as specified in the Disclosure Schedule (and
without limiting the foregoing), neither Company nor any Company Subsidiary is a
party to any oral or written (i) Agreement for the employment of any officer,
employee, consultant or independent contractor; (ii) license agreement or
distributor, dealer, manufacturer's representative, sales agency, advertising,
property management or brokerage agreement; (iii) Agreement with any labor
organization or other collective bargaining unit; (iv) Agreement for the future
purchase of materials, supplies, services, merchandise or equipment involving
payments of more than US$ 100,000 over its remaining term (including, without
limitation, periods covered by any option to renew by either party); (v)
Agreement for the purchase, sale or lease of any real estate or other Assets;
(vi) profit-sharing, bonus, incentive compensation, deferred compensation, stock
option, severance pay, stock purchase, employee benefit, insurance,
hospitalization, pension, retirement or other similar plan or Agreement; (vii)
Agreement for the sale of any of its Assets or the grant of any preferential
rights to purchase any of its Assets or rights, other than in the Ordinary
Course of Business; (viii) Agreement which contains any provisions requiring
Company or any Company Subsidiary to indemnify any other party thereto; (ix)
joint venture agreement or other Agreement involving the sharing of profits; (x)
outstanding loan to any person or entity or receivable due from any stockholder
of Company or persons or entities Controlling, Controlled by or under common
Control with Company; (xi) any Agreement (including, without limitation,
Agreements not to compete and exclusivity Agreements) that reasonably could be
interpreted to impose any restriction on any business operations of Company or
any Company Subsidiary; or (xii) other Agreement which by its terms does not
terminate or is not terminable by Company or by a Company Subsidiary within 30
days or upon 30 days' (or less) notice.
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(c) Stockholder and Company have duly performed their
obligations pursuant to, and neither Stockholder nor Company is in violation of
the "Share and Bond Purchase and Debt Settlement Agreement," dated 25 May 2000
(the "HSBC AGREEMENT") with (among other parties) HSBC Equator Africa Limited
and HSBC Equator Bank plc ("EQUATOR").
(d) Stockholder has duly performed his obligations
pursuant to, and Stockholder is not in violation of, the escrow letter dated
June 1, 2000 between Stockholder, Buyer and Titan Wireless.
(e) Stockholder loaned Four Hundred and Fifty Thousand
United States Dollars (US$ 450,000) to the Company from the proceeds of the
Diakite May Loan in order for the Company. The Company used to the proceeds of
such loan to pay certain creditors the amounts set forth beside their respective
names on EXHIBIT 4.18(e) to this Purchase Agreement.
4.19 BOOKS AND RECORDS
The books of account, stock records, minute books and other
records of Company and the Company Subsidiaries are true and complete and have
been maintained in accordance with good business practices, and the matters
contained in the books and records of the Company Subsidiaries are appropriately
and accurately reflected in the Financial Statements.
4.20 LITIGATION; DISPUTES
(a) There are no actions, suits, claims, arbitration,
proceedings or investigations pending, threatened or reasonably anticipated
against, affecting or involving Company or any Company Subsidiary or their
respective businesses or Assets, or the transactions contemplated by this
Purchase Agreement (including without limitation the Shareholders Agreement and
Stock Option Plan), at law or in equity or admiralty, or before or by any court,
arbitrator or Governmental Entity, domestic or foreign. Neither Company nor any
Company Subsidiary is operating under, subject to or in default with respect to
any order, award, writ, injunction, decree or judgement of any court, arbitrator
or other Governmental Entity.
(b) Neither Company nor any Company Subsidiary is
currently involved in or, to the knowledge of Company or the Company
Subsidiaries, reasonably anticipates any dispute with any of its current or
former employees, agents, brokers, distributors, vendors, customers, business
consultants, franchisees, franchisors, representatives or independent
contractors (or any current or former employees of any of the foregoing persons
or entities) affecting the businesses or Assets of Company or any Company
Subsidiary.
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4.21. LABOR RELATIONS
There are no strikes, work stoppages, grievance
proceedings, union organization efforts or other controversies pending,
threatened or reasonably anticipated between Company or any Company
Subsidiary and (i) any current or former employees of Company or of any
Company Subsidiary or (ii) any union or other collective bargaining unit
representing such employees. Company and the Company Subsidiaries have
complied and are in compliance with all Laws relating to employment or the
workplace, including, without limitation, provisions relating to wages,
hours, collective bargaining, safety and health, work authorization, equal
employment opportunity, immigration, withholding, unemployment compensation,
worker's compensation, employee privacy and right to know. Except as set
forth in the Disclosure Schedule, there are no collective bargaining
agreements (CONVENTION COLLECTIVE), employment agreements between Company or
any Company Subsidiary and any of their respective employees, or professional
service agreements not terminable at will relating to the businesses and
Assets of Company or of any Company Subsidiary. The consummation of the
transactions contemplated hereby will not cause Buyer, Company or any Company
Subsidiary to incur or suffer any liability relating to, or obligation to
pay, severance, termination or other payments to any person or entity.
4.22. PENSION AND BENEFIT PLANS
(a) Neither Company nor any Company Subsidiary (i)
maintains or ever has maintained any Plan or Other Arrangement, (ii) is or ever
has been a party to any Plan or Other Arrangement or (iii) has obligations under
any Plan or Other Arrangement.
(b) Company and the Company Subsidiaries have complied
with all applicable provisions of the Laws pertaining to employee or
employment related benefits. Company and the Company Subsidiaries have no
liability for any delinquent contributions (including, without limitation,
related attorneys' fees, costs, liquidated damages and interest) or for any
arrearages of wages. Company and the Company Subsidiaries have no pending
unfair labor practice charges, contract grievances under any collective
bargaining agreement, other administrative charges, claims, grievances or
lawsuits before any court, governmental agency, regulatory body, or arbiter
arising under any Law governing any Plan, and there exist no facts that could
give rise to such a claim.
(c) The Disclosure Schedule (i) identifies all
post-retirement medical, life insurance or other benefits promised, provided or
otherwise due now or in the future to current, former or retired employees of
Company or any Company Subsidiary, (ii) identifies the method of funding
(including, without limitation, any individual accounting) for all such
benefits, (iii) discloses the funded status of the
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Plans providing or promising such benefits and (iv) sets forth the method of
accounting for such benefits to any key employees of Company or any Company
Subsidiary.
(d) All fees, interest, penalties and assessments that
are payable by or for Company or any Company Subsidiary with respect to employee
salary and benefit arrangements have been timely reported, fully paid and
discharged. There are no unpaid fees, penalties, interest or assessments due
from Company or any Company Subsidiary or from any other person that are or
could become a lien on any Asset of Company or any Company Subsidiary or could
otherwise adversely affect the businesses or Assets of Company or any Company
Subsidiary. Company and the Company Subsidiaries have collected or withheld all
amounts that are required to be collected or withheld by them to discharge their
obligations, and all of those amounts have been paid to the appropriate
governmental agencies or set aside in appropriate accounts for future payment
when due.
4.23. ENVIRONMENTAL
(a) Company and each Company Subsidiary have complied and
are in compliance with, and the Real Property and all improvements thereon are
in compliance with, all applicable Environmental Laws.
(b) Neither Company nor any Company Subsidiary has any
liability under any Environmental Law. There are no pending or threatened
actions, suits, claims, legal proceedings or other proceedings based on, and
neither Company or any Company Subsidiary, nor any officer, director or
stockholder thereof has directly or indirectly received any formal or informal
notice of any complaint, order, directive, citation, notice of responsibility,
notice of potential responsibility, or information request from any Governmental
Entity or any other person or entity or knows or suspects any fact(s) which
might form the basis for any such actions or notices arising out of or
attributable to violation of any Environmental Law.
4.24. GOVERNMENT CONTRACTS AND OTHER COMMITMENTS
Neither the Company nor any Subsidiary is a party to any
contract or subcontracts (at any tier) with a Governmental Entity.
4.25 TELECOM LICENSES
(a) All licenses, permits or other authorizations from
any Governmental Entity to provide and/or operate telecommunications services
and/or equipment are attached hereto as EXHIBIT 4.25 (collectively, "TELECOM
LICENSES"), which describes with respect to each such Telecom License: the
nature and purpose of the Telecom License, the activities authorized thereunder,
any material restrictions or
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qualifications in the Telecom License, the Governmental Entity that issued the
Telecom License, the Company Subsidiary holding the Telecom License and
permitted to operate thereunder, and the expiration date of the Telecom License.
(b) The Telecom Licenses constitute all licenses, permits
or other authorizations from any Governmental Entity that are necessary or
appropriate for the Company and the Company Subsidiaries to operate in the
Ordinary Course of Business.
(c) To the best knowledge of Company and Stockholder,
neither this Purchase Agreement nor the change in Control over the Company and
the Company Subsidiaries contemplated hereby will violate the terms of any
Telecom License or permit its modification, amendment, termination or
revocation.
(d) All Telecom Licenses are in full force and effect for
the terms and uses set forth in EXHIBIT 4.25, and are suitable and adequate for
the business for which they are intended or are being used. None of the Telecom
Licenses have been modified, amended, revoked or terminated, and to the best
knowledge of Company and Stockholder, no action, suit or proceeding to modify,
amend, revoke or terminate a Telecom License is pending or overtly threatened.
(e) None of the Company Subsidiaries has taken or failed
to take any action that would result in the forfeiture or relinquishment of any
such Telecom License used in the conduct of its business as now conducted.
(f) To the best knowledge of Stockholder and Company, no
person is infringing or misappropriating any Telecom License. Neither the
Company nor any Company Subsidiary has received any notice, nor does the Company
or any Company Subsidiaries have any knowledge of any basis for any claims, that
any of the Telecom License is invalid, conflicts with the asserted rights of
other entities, or has been used or enforced (or has failed to be used or
enforced) in a manner that would result in the abandonment, cancellation or
unenforceability of any item of the Telecom License.
4.26 TRANSACTIONS WITH RELATED PARTIES
Except as may be described in EXHIBIT 3.4, neither any present
or former officer, director or stockholder of Company or any Company Subsidiary,
nor any Affiliate of such officer, director or stockholder, is a party to any
transaction with the Company or any Company Subsidiary, including, without
limitation, any Agreement providing for the employment of, Furnishing of
Services by, rental of Assets from or to, or otherwise requiring payments to,
any such officer, director, stockholder or Affiliate.
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4.27. RESTRICTIONS AND CONSENTS
(a) There are no Agreements, Laws or other restrictions
of any kind to which Company or any Company Subsidiary (or any asset thereof) is
party or subject that would prevent or restrict the execution, delivery or
performance of this Purchase Agreement and the transactions contemplated hereby
(including without limitation the Shareholders Agreement and the Stock Option
Plan), or result in any penalty, forfeiture, Agreement termination, or
restriction on business operations of Buyer, Company or any Company Subsidiary
as a result of the execution, delivery or performance of this Purchase Agreement
and the transactions contemplated hereby (including without limitation the
Shareholders Agreement and the Stock Option Plan).
(b) There are no Agreements or laws that reasonably could
be interpreted or expected to require the approval, consent or acquiescence of
any person or entity not party to this Purchase Agreement (including without
limitation any Governmental Entity) with respect to any aspect of the execution,
delivery or performance of this Purchase Agreement, and the transactions
contemplated hereby (including without limitation the Shareholders Agreement and
the Stock Option Plan), by Company or any Company Subsidiary.
4.28. AUTHORIZATION
The execution, delivery and performance by Company and the
Company Subsidiaries of this Purchase Agreement and all other Documents
contemplated hereby, the fulfillment of and compliance with the respective terms
and provisions hereof and thereof, and the consummation by Company and the
Company Subsidiaries of the transactions contemplated hereby and thereby
(including without limitation the Shareholders Agreement), do not and will not:
(a) require any consent or approval of any person other than the Stockholder;
(b) conflict with, or violate any provision of, any Law having applicability to
Company or any Company Subsidiary or any of their respective Assets, or any
provision of the certificate or Charter Documents or bylaws of Company or any
Company Subsidiary; (c) conflict with, or result in any breach of, or constitute
a default under any Agreement to which Company or any Company Subsidiary is a
party or by which it or any of its Assets may be bound; or (d) result in or
require the creation or imposition of or result in the acceleration of any
indebtedness, or of any Encumbrance of any nature upon, or with respect to,
Company or any Company Subsidiary or any of the Assets now owned or hereafter
acquired by Company or any Company Subsidiary.
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4.29. ABSENCE OF VIOLATION
(a) Neither Company nor any Company Subsidiary is in
violation of or default under, nor has it breached, any term or provision of its
Charter Documents or any Agreement or restriction to which Company or any
Company Subsidiary is a party or by which Company or any Company Subsidiary or
any Asset thereof is bound or affected. Company or any Company Subsidiaries have
complied and are in full compliance with all Laws.
(b) Neither Company, the Company Subsidiaries nor any of
their officers, directors, employees or agents (or stockholders, distributors,
representatives or other persons acting on the express, implied or apparent
authority of Company or of any Company Subsidiary) have paid, given or received
or have offered or promised to pay, give or receive, any bribe or other
unlawful, questionable or unusual payment of money or other thing of value, any
extraordinary discount, or any other unlawful or unusual inducement, to or from
any person, business association or official of a Governmental Entity or entity
in connection with or in furtherance of the business of Company or any Company
Subsidiary (including, without limitation, any offer, payment or promise to pay
money or other thing of value (i) to any official of a Governmental Entity or
political party (or official thereof) for the purposes of influencing any act,
decision or omission in order to assist Company or any Company Subsidiary in
obtaining business for or with, or directing business to, any person, or (ii) to
any person, while knowing that all or a portion of such money or other thing of
value will be offered, given or promised to any such official or party for such
purposes). The business of Company and the Company Subsidiaries is not in any
manner dependent upon the making or receipt of such payments, discounts or other
inducements.
4.30. COPIES OF DOCUMENTS
True and complete copies of all Documents listed in the
Disclosure Schedule have been Furnished to Buyer prior to or upon the execution
and delivery of this Purchase Agreement.
4.31. BINDING OBLIGATION
This Purchase Agreement constitutes a valid and binding
obligation of Company, enforceable in accordance with its terms; and each
Document to be executed by Company pursuant hereto, when executed and delivered
in accordance with the provisions hereof, shall be a valid and binding
obligation of Company, enforceable in accordance with its terms.
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4.32. DISCLOSURE
All facts of importance to the business, operations,
prospects, condition (financial or otherwise), Assets or liabilities of Company
and the Company Subsidiaries have been truthfully and completely disclosed to
Buyer in this Purchase Agreement. No representation or warranty by Company or
the Stockholder in this Purchase Agreement, and no Document Furnished or to be
Furnished to Buyer pursuant to this Purchase Agreement, or in connection
herewith or with the transactions contemplated hereby, contains or will contain
any untrue or misleading statement or omits or will omit any fact necessary to
make the statements contained herein or therein, in light of the circumstances
under which made, not misleading.
5. REPRESENTATIONS AND WARRANTIES REGARDING STOCKHOLDER
Stockholder hereby represents and warrants to Buyer and Titan
Wireless, as follows:
5.1 TITLE TO COMPANY SHARES
Stockholder is, and on the Closing Date will be, the lawful
owner of the number of shares of capital stock of Company and Company
Subsidiaries set forth opposite the name of Stockholder in EXHIBIT 5.1, and owns
or holds no other securities of, or equity or other participatory or voting
interest or rights in, the Company or any of the Company Subsidiaries, nor any
rights to acquire any of the foregoing. Since the date of the issuance or sale
of such shares of capital stock to Stockholder, there has been no event, or
action taken (or failure to take action) by or against Stockholder, which has
resulted or might result in the creation of any Encumbrance on such shares.
Stockholder has, and on the Closing Date Stockholder will have, good, valid and
marketable title, free and clear of all Encumbrances, to the number of shares of
capital stock so set forth in EXHIBIT 5.1, with full right and lawful authority
to sell and transfer the Company Shares to Buyer pursuant to this Purchase
Agreement.
5.2 AUTHORITY AND CAPACITY
Stockholder has full legal right, capacity, power and
authority (corporate or otherwise) to execute this Purchase Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder.
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5.3 ABSENCE OF VIOLATION
(a) The execution, delivery and performance by
Stockholder of this Purchase Agreement and all other Documents contemplated
hereby, the fulfillment of and the compliance with the respective terms and
provisions hereof and thereof, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) conflict with, or
violate any provision of, any Law having applicability to Company, any Company
Subsidiary or Stockholder; or (ii) conflict with, or result in any breach of, or
constitute a default under, any Agreement to which Company, any Company
Subsidiary or Stockholder is a party.
(b) The Stockholder has not paid, given or received or
have offered or promised to pay, give or receive, any bribe or other unlawful,
questionable or unusual payment of money or other thing of value, any
extraordinary discount, or any other unlawful or unusual inducement, to or from
any person, business association or official of a Government Entity or entity in
connection with or in furtherance of the business of Company or any Company
Subsidiary (including, without limitation, any offer, payment or promise to pay
money or other thing of value (i) to any official of a Governmental Entity or
political party (or official thereof) for the purposes of influencing any act,
decision or omission in order to assist Company or any Subsidiary in obtaining
business for or with, or directing business to, any person, or (ii) to any
person, while knowing that all or a portion of such money or other thing of
value will be offered, given or promised to any such official or party for such
purposes).
5.4. RESTRICTIONS AND CONSENTS
There are no Agreements, Laws or other restrictions of any
kind to which Stockholder is party or subject that would prevent or restrict the
execution, delivery or performance of this Purchase Agreement or result in any
penalty, forfeiture, Agreement termination, or restriction on business
operations of Buyer, Company or any Subsidiary as a result of the execution,
delivery or performance of this Purchase Agreement. The Disclosure Schedule
lists all such Agreements and Laws that reasonably could be interpreted or
expected to require the consent or acquiescence of any person or entity not
party to this Purchase Agreement with respect to any aspect of the execution,
delivery or performance of this Purchase Agreement by Company or any Subsidiary.
5.5 BINDING OBLIGATION
This Purchase Agreement constitutes a valid and binding
obligation of Stockholder, enforceable in accordance with its terms. Each
Document to be executed by Stockholder pursuant hereto, when executed and
delivered in
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accordance with the provisions hereof, will be a valid and binding obligation of
Stockholder, enforceable in accordance with its terms.
5.6 TRANSFER OF TITLE
Upon payment for the shares of capital stock to be purchased
from Stockholder pursuant to the terms of this Purchase Agreement. Buyer will
acquire good, valid and marketable title thereto, free and clear of all
Encumbrances.
6. REPRESENTATIONS AND WARRANTIES OF TITAN WIRELESS AND BUYER
Titan Wireless and Buyer hereby jointly and severally
represent and warrant to Stockholder as follows:
6.1. ORGANIZATION AND STANDING
Titan Wireless and Buyer are each corporations duly organized,
validly existing and in good standing under the laws of the State of Delaware
and each has the full and unrestricted corporate power and authority to carry on
its business as currently conducted, to enter into this Purchase Agreement and
to carry out the transactions contemplated hereby.
6.2. AUTHORIZATION
The execution, delivery and performance by Titan Wireless and
Buyer of this Purchase Agreement and all other Documents contemplated hereby,
the fulfillment of and the compliance with the respective terms and provisions
hereof and thereof, and the consummation by Buyer of the transactions
contemplated hereby and thereby have been duly authorized by their respective
Boards of Directors (which authorization has not been modified or rescinded and
is in full force and effect), and will not: (a) conflict with, or violate any
provision of, any term or provision of the certificate or articles of
incorporation or bylaws of Titan Wireless or Buyer or (b) conflict with, or
result in any breach of, or constitute a default under, any Agreement to which
Titan Wireless Buyer is a party or by which Buyer is bound. No other corporate
action is necessary for Titan Wireless or Buyer to enter into this Purchase
Agreement and all other Documents contemplated hereby and to consummate the
transactions contemplated hereby and thereby.
6.3. BINDING OBLIGATION
This Purchase Agreement constitutes a valid and binding
obligation of Titan Wireless and Buyer, enforceable against each of Titan
Wireless and Buyer in
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accordance with its terms. Each Document to be executed by Titan Wireless and
Buyer pursuant hereto, when executed and delivered in accordance with the
provisions hereof, shall be a valid and binding obligation of Titan Wireless and
Buyer, enforceable in accordance with its terms.
6.4. BUYER CAPITALIZATION
The authorized capital stock of Buyer consists of shares of
Ten Million (10,000,000) shares of common stock, U.S. $ 0.01 par value per
share, of which Eight Million (8,000,000) shares are duly authorized and validly
issued and outstanding, fully paid and nonassessable. All outstanding shares of
Buyer capital stock are held by Titan Wireless. No shares of capital stock of
Buyer have been reserved for any purpose other than the Stock Option Plan. Other
than the Stock Option Plan, there are no outstanding securities convertible into
or exchangeable for capital stock of the Buyer, and no outstanding options,
rights (preemptive or otherwise), or warrants to purchase or to subscribe for
any shares of such stock or other securities of Buyer.
7. RESTRICTED SECURITIES
Buyer hereby represents, warrants and covenants as follows:
7.1. ACQUISITION FOR INVESTMENT
The Buyer is acquiring Company Shares under this Purchase
Agreement in good faith solely for its own account, for investment and not with
a view toward resale or other distribution within the meaning of the Securities
Act. The Company Shares will not be offered for sale, sold or otherwise
transferred by Buyer without either registration or exemption from registration
under the Securities Act.
7.2. EVALUATION OF MERITS AND RISKS OF INVESTMENT
Titan Wireless and Buyer have such knowledge and experience in
financial and business matters that Titan Wireless and Buyer are capable of
evaluating the merits and risks of Buyer's investment in Company Shares being
acquired hereunder. Titan Wireless and Buyer understand and are able to bear any
economic risks associated with such investment (including, without limitation,
the necessity of holding such Company Shares for an indefinite period of time,
inasmuch as Company Shares not been registered under the Securities Act).
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8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE STOCKHOLDER
The obligations of the Stockholder to proceed with Closing are
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions, and failure to satisfy any such condition shall excuse and
discharge all obligations of the Stockholder to proceed with Closing, unless the
Stockholder agrees in writing to waive application of said condition:
8.1. REPRESENTATIONS AND WARRANTIES
The representations and warranties made by Titan Wireless and
Buyer in this Purchase Agreement or in any Document Furnished by Titan Wireless
or Buyer pursuant to this Purchase Agreement shall be true and complete when
made and on and as of the Closing Date as though such representations and
warranties were made on and as of such date, except for any changes expressly
consented to in writing by Stockholder or permitted by this Purchase Agreement.
8.2. PERFORMANCE
Titan Wireless and Buyer shall have performed and complied
with all Agreements and conditions required by this Purchase Agreement to be
performed or complied with by them prior to the Closing Date.
8.3 OFFICER'S CERTIFICATE
Titan Wireless and Buyer shall have delivered to Stockholder a
certificate, dated as of the Closing Date and executed by and authorized officer
of each of Titan Wireless and Buyer, in his capacity as such, certifying to the
fulfillment of the conditions specified in SECTIONS 8.1 and 8.2.
8.4 LEGAL PROCEEDINGS
No action or proceeding by or before any governmental
authority shall have been instituted or threatened (and not subsequently
dismissed, settled or otherwise terminated) which is reasonably expected to
restrain, prohibit or invalidate the transactions contemplated by this Purchase
Agreement, other than an action or proceeding instituted or threatened by
Company or Stockholder.
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8.5 DELIVERIES AT CLOSING
All deliveries required to be Furnished by Buyer and/Titan
Wireless to Company and/or the Stockholder prior to or at the Closing shall have
been so furnished.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF TITAN WIRELESS AND BUYER
The obligations of Titan Wireless and Buyer to proceed with
Closing are subject to the satisfaction, at or prior to the Closing, of each of
the following conditions, and failure to satisfy any such condition shall excuse
and discharge all obligations of Titan Wireless and Buyer to proceed with
Closing, unless Titan Wireless and Buyer agree in writing to waive application
of said condition:
9.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties made (jointly or
individually) by Company and the Stockholder in this Purchase Agreement and the
statements contained in the Disclosure Schedule and Exhibits attached hereto or
in any Document Furnished by Company or the Stockholder pursuant to this
Purchase Agreement shall be true an complete when made, and on and as of the
Closing Date as though such representations and warranties were made on and as
of such date, except for any changes expressly consented to in writing by Buyer
or permitted by this Purchase Agreement.
9.2 PERFORMANCE
Company and Stockholder shall have performed and compiled with
all Agreements and conditions required by this Purchase Agreement to be
performed or complied with prior to the Closing Date.
9.3 ABSENCE OF ADVERSE CHANGES
There shall have been no changes since December 31, 1999 in
the business, operations, prospects, condition (financial or otherwise), Assets
or liabilities or Company or any Subsidiary (regardless of whether or not such
events or changes are inconsistent with the representations and warranties given
herein by Company and the Stockholder), except changes contemplated by this
Purchase Agreement.
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9.4. LEGAL PROCEEDINGS; ADVERSE POLITICAL EVENTS
(a) No action or proceeding by or before any governmental
authority shall have been instituted or threatened (and not subsequently
settled, dismissed or otherwise terminated) which is reasonably expected to
restrain, prohibit or invalidate the transactions contemplated by this Purchase
Agreement other than an action or proceeding instituted or threatened by Titan
Wireless or Buyer.
(b) No political event or decision, such as, but not
limited to a "coup", riots, nationalization of foreign companies or major
changes in regulations affecting the commerce shall have occurred in Benin, Cote
d'Ivoire, France, Ghana, Mali and South Africa or the Central African Republic
which would have a material adverse effect on the business or prospects of the
Company and any of the Company Subsidiaries.
9.5. OFFICER'S CERTIFICATE
Company shall have delivered to Titan Wireless and Buyer a
certificate, dated as of the Closing Date and executed by Company's President,
in his capacity as such, certifying to the fulfillment of the conditions
specified in SECTIONS 9.1 through 9.4.
9.6 STOCKHOLDER'S CERTIFICATE
The Stockholder shall have delivered to Titan Wireless and
Buyer a certificate, dated as of the Closing Date and executed by the
Stockholder, certifying to the fulfillment of the conditions specified in
SECTIONS 9.1 and 9.4.
9.7 OPINION OF COMPANY'S COUNSELS
Buyer and Titan Wireless shall have received opinions of legal
counsel to Company and the Company Subsidiaries in Luxembourg, France, Cote
d'Ivoire, Benin, Mali, Ghana, Central African Republic an South Africa, all
dated as of the Closing Date, in form and substance reasonably satisfactory to
Titan Wireless and Buyer, to the effect and substantially in the form of EXHIBIT
9.7.
9.8. CERTAIN CORPORATE ACTIONS AT CLOSING
The Company shall have held two extraordinary general meetings
of the shareholders of the Company adopting such resolutions and taking such
actions as set forth in SECTION 3.3(a) of this Purchase Agreement.
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9.9 AUTHORIZATION BY COMPANY'S INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS
Buyer and Titan Wireless shall have received letters from
independent certified public accountants to Company and Subsidiaries in France,
Cote d'Ivoire, Benin , Mali, Ghana, Central African Republic and South Africa,
all dated as of the Closing Date, authorizing Buyer to rely upon their opinions
regarding the Financial Statements.
9.10. DELIVERIES AT CLOSING
All documents required to be Furnished by Company and/or by
the Stockholder to Buyer and Titan Wireless prior to or at the Closing shall
have been so Furnished.
9.11. RESIGNATIONS OF DIRECTORS
Buyer shall have received the written resignations of Mrs.
Andree Diakite and Mr. James Sheffield as Company directors, effective as of the
Closing.
9.12. [INTENTIONALLY LEFT BLANK]
9.13. CONSENTS
Buyer and Titan Wireless shall have received the consents,
authorizations and approvals of Governmental Entities and private parties which
are required to be obtained (if any) in order to consummate the transactions
contemplated hereby.
9.14. CONFIDENTIALITY LETTER
Stockholder shall have delivered to Buyer and Titan Wireless
the duly executed confidentiality letter in the form of EXHIBIT 9.14, attached
hereto.
9.15 EMPLOYMENT AGREEMENTS
Buyer and Titan Wireless shall have received the Employment
Agreement of Stockholder, in the form of EXHIBIT 9.15a.
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10. CLOSING
10.1 CLOSING LOCATION AND DATE
Subject to the terms and conditions of this Purchase
Agreement, the Closing shall take place at the offices of Hogan & Hartson
L.L.P., 555 Thirteenth Street, N.W., Washington, D.C. 20004, U.S.A., on the
Closing Date.
10.2 DELIVERIES BY THE STOCKHOLDER
At the Closing, the Stockholder shall deliver to Buyer and
Titan Wireless the following:
(a) the share register of the Company duly signed by the
Stockholder in which the transfer of Stockholder's Company Shares to Buyer
pursuant to SECTION 2.1 will have been duly transcribed;
(b) the Stockholders Agreement and the Employment
Agreement of Stockholder in the form of EXHIBIT 9.15a;
(c) the certificates require by SECTION 9.6;
(d) such other Documents as Buyer and Titan Wireless may
reasonably request; and
(e) evidence that Stockholder has purchased the equity
and bonds of the Company owned and held by Equator Africa Limited (including
copies of the Company share register entry recording such purchase), and
evidence that Equator Bank has duly released the Company from all claims and
liability.
10.3 DELIVERIES BY COMPANY
At the Closing, Company shall deliver to Buyer the following:
(a) the Line of Credit and Security Facility;
(b) documentation evidencing, to Buyer's satisfaction,
that Company fully owns the equity interest in the Company Subsidiaries, as
provided in SECTION 4.2(f);
(c) the written resignations of Mrs. Andree Diakite and
Mr. James Sheffield;
(d) the certificates required by SECTIONS 9.5 and
9.13(b);
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(e) the legal opinions required by SECTION 9.7;
(f) the consents from auditors required by SECTION 9.13;
(g) certificates of incumbency and specimen signatures of
the signatory officers of Company and the Subsidiaries;
(h) good standing certificates, EXTRAIT KBIS, or
comparable documents, dated as of a date not more than thirty (30) days prior to
the Closing Date issued by the Secretary of State, registry of Commerce or other
comparable and competent authority of the respective jurisdictions of
incorporation of Company and of each Subsidiary;
(i) the Charter, bylaws, minute books and stock bonds of
Company and the Company Subsidiaries and all other books and records reasonably
requested by Buyer; and
(j) such other Documents as Buyer may reasonably request.
10.4. DELIVERIES BY BUYER AND TITAN WIRELESS
At the Closing, Buyer shall deliver the following:
(a) to the Escrow Agent, payment in accordance with
SECTION 2.4(i);
(b) to the Escrow Agent, payment in accordance with
SECTION 2.4(ii);
(c) such other Documents as Company or the Stockholder
may reasonably request.
11. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION; REMEDIES
11.1 SURVIVAL OF REPRESENTATIONS
All representations, warranties, covenants, indemnities and
other Agreements made by any party to this Purchase Agreement herein or pursuant
hereto shall also be deemed made on and as of the Closing Date as though such
representations, warranties, covenants, indemnities and other Agreements were
made on and as of such date, and all such representations, warranties,
covenants, indemnities and other Agreements shall survive the Closing and any
investigation, audit or inspection at any time made by or on behalf of any party
hereto.
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11.2 AGREEMENT OF STOCKHOLDER TO INDEMNIFY
(a) Subject to the conditions and provisions of this
Section 11, Stockholder hereby agrees to indemnify, defend and hold harmless the
Buyer Indemnified Persons from and against and in respect of all Claims asserted
against, resulting to, imposed upon or incurred by the Buyer Indemnified Persons
(whether such Claims are by, against or relate to Company, the Stockholder or
any other party, including, without limitation, a governmental entity), directly
or indirectly, by reason of or resulting from any misrepresentation or breach of
any representation or warranty, or noncompliance with conditions or other
Agreements, given or made by Stockholder or Company in this Purchase Agreement
or in the Disclosure Schedule or Exhibits attached hereto or in any Document
Furnished by or on behalf of Stockholder or Company pursuant to this Purchase
Agreement. Such indemnification shall include Claims pursuant to Environmental
Laws resulting from any Release or other action or omission initiated or
occurring, or relating to any action or omission initiated or occurring, prior
to the Closing (including, without limitation, actions or omissions of
predecessors in interest of Company or the Company Subsidiaries).
(b) The Stockholder hereby irrevocably waives any and all
right to recourse against Company or any Subsidiary with respect to any
representation, warranty, indemnity or other Agreement or action made or taken
by or pursuant to this Purchase Agreement. The Stockholder shall not be entitled
to contribution from, subrogation to or recovery against Company or any
Subsidiary with respect to any liability of the Stockholder that may arise under
or pursuant to this Purchase Agreement or the transactions contemplated hereby.
11.3 CONDITIONS OF INDEMNIFICATION
The obligations and liabilities of the Stockholder hereunder
with respect to their respective indemnities pursuant to this Section 11,
resulting from any Claim shall be subject to the following terms and conditions:
(a) The Buyer Indemnified Person must assert a Claim for
indemnification within [two] years following the Closing. Notwithstanding the
foregoing, any Claim relating to any provision of SECTION 4.9 may be made
throughout the period ending one year following the latter of (i) the expiration
of all applicable statutes of limitation (including extensions), and (ii) the
final determination of (and the expiration of time to appeal) any audit,
examination, investigation or other proceeding relating to Taxes covered by, or
any Claim under, SECTION 4.9 hereof.
(b) The Buyer Indemnified Person shall give prompt
written notice to the indemnifying party of any Claim which is asserted against
resulting to,
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imposed upon or incurred by such indemnified party and which may give rise to
liability of the indemnifying party pursuant to this SECTION 11, stating (to the
extent known or reasonably anticipated) the nature and basis of such Claim and
the amount thereof.
(c) The Buyer Indemnified Person may engage counsel or
representatives of its own choosing with respect to any such Claim, such
representation (including the compromise or settlement of any Claim) to be
undertaken on behalf of and for the account and risk of the indemnifying party.
In the event the Buyer Indemnified Person elects not to undertake such defense
by its own representatives, the Buyer Indemnified Person shall give prompt
written notice of such election to the indemnifying party, and the indemnifying
party will undertake the defense thereof by counsel or other representatives
designated by it whom the Buyer Indemnified Person determines in writing to be
satisfactory for such purposes. The consent of the Buyer Indemnified Person to
the indemnifying party's choice of counsel or other representative shall not be
unreasonably withheld.
(d) In the event that any claim shall arise out of a
transaction or cover any period or periods in which the Stockholder, on the one
hand, and Titan Wireless and Buyer, on the other hand, shall each be liable
hereunder for part of the liability or obligation arising therefrom, then the
parties shall, each choosing its or his own counsel and bearing its or his own
expense, defend such Claim, and no settlement or compromise of such Claim may be
made without the joint consent or approval of Titan Wireless and the Stockholder
(which consent shall not be unreasonably withheld), except where the respective
liabilities and obligations of Buyer and Titan Wireless, on the one hand, and
the Stockholder, on the other hand, are clearly allocable or attributable on the
basis of objective facts.
11.4 REMEDIES CUMULATIVE
The remedies provided herein shall be cumulative and shall not
preclude the assertion by Company, Stockholder, Titan Wireless or Buyer of any
other rights or the seeking of any other remedies against the other, or their
respective successors or assigns.
12. TERMINATION
12.1 TERMINATION
This Purchase Agreement may be terminated at any time before
the Closing Date under any one or more of the following circumstances:
(a) by the mutual consent of the parties hereto;
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(b) by Titan Wireless and Buyer, by written notice of
termination delivered to Company and the Stockholder, if: (i) any of the
conditions set forth in SECTION 9 have not been fulfilled by Closing Date, and
such failure to fulfill conditions is not the result solely of the necessity of
obtaining government approvals or satisfying governmental requirements or the
result from Buyer's breach of one or more of its obligations under the
Agreement, or (ii) performance of this Purchase Agreement and the transactions
contemplated hereby by Stockholder, Company or any Company Subsidiaries would
have a material adverse effect on the continued full force and effect of any
Telecom License or on the ability of any Company Subsidiary to continue using it
for all its contemplated purposes.
(c) by Company or the Stockholder, by written notice of
termination delivered to Buyer, if any of the conditions set forth in SECTION 8
have not been fulfilled by Closing Date, and such failure to fulfill conditions
is not the result solely of the necessity of obtaining government approvals or
satisfying governmental requirements or the result from Company or the
Stockholder's breach of one or more of their obligations under the Agreement;
(d) by Titan Wireless and Buyer upon their determination,
at any time within 60 days following the execution of the Purchase Agreement, in
its sole discretion based on its investigation and review of the business,
operations, prospects, condition (financial or otherwise), assets or liabilities
of Company and the Company Subsidiaries that it is not in Buyer's best interest
to proceed with the transactions contemplated by this Purchase Agreement;
(e) by Buyer and Titan Wireless, on the one hand, or by
Company and the Stockholder, on the other hand, by written notice of termination
to the other parties hereto, if the Closing has not occurred by June 30, 2000;
(e) by Buyer and Titan Wireless if Company or Stockholder
breach their obligations under SECTION 3.5.
12.2 EFFECT OF TERMINATION
In the event this Purchase Agreement is terminated as provided
in this SECTION 12, this Purchase Agreement shall forthwith become wholly void
and of no effect, and the parties shall be released from all future obligations
hereunder; PROVIDED, HOWEVER, that the obligations of Buyer, Company and the
Stockholder as to confidentiality provided in SECTIONS 3.2, and the provisions
of SECTIONS 3.1(B), 3.5 and 13.3 relating to the payment of expenses, shall not
be extinguished but shall survive such termination. The parties hereto shall
have any and all remedies to enforce such obligations provided at law or in
equity (including, without limitation, specific performance).
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13. MISCELLANEOUS
13.1 ADDITIONAL ACTIONS AND DOCUMENTS
Each of the parties hereto hereby agrees to take or cause to
be taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further Documents, and will obtain such
consents, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of the Purchase Agreement.
13.2 NO BROKERS
Each of the parties hereto represents and warrants to the
other parties (and to each of them) that such party has not engaged any broker,
finder or agent in connection with the transactions contemplated by this
Purchase Agreement and has not incurred (and will not incur) any unpaid
liability to any broker, finder or agent for any brokerage fees, finders' fees
or commissions, with respect to the transactions contemplated by this Purchase
Agreement (such liability, "BROKER FEES"). Titan Wireless and Buyer, on the one
hand, and Stockholder, on the other hand, shall indemnify, defend and hold
harmless the other parties from and against any and all Broker Fees asserted
against such parties by any persons purporting to act or to have acted for or on
behalf of the indemnifying party. Stockholder shall indemnify and hold harmless
the Company against any Broker Fees asserted against Company by any persons
purporting to act or to have acted for or on behalf of Stockholder and/or
Company, other than Broker Fees of up to U.S. $100,000, claimed by African
Merchant Bank, the payment of which fees will be subject to negotiation between
the Company and Africa Merchant Bank.
13.3 EXPENSES
Subject to the provisions of SECTION 11 and SECTION 3.1(B),
Titan Wireless and Buyer, on the one hand, and Stockholder, on the other hand
shall pay its own expenses incident to this Purchase Agreement and the
transactions contemplated hereunder, including all legal and accounting fees and
disbursements. The Stockholder shall pay all expenses incurred by the Company
incident to this Purchase Agreement and the transactions contemplated hereunder
to the extent such expenses exceed, in the aggregate. One Hundred Thousand
United States Dollars (U.S. $100,000) in addition to the fees of African
Merchant Bank referred to in SECTION 13.2.
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13.4 ASSIGNMENT
Titan Wireless and Buyer shall have the right to freely assign their
respective rights and/or obligations under the Purchase Agreement, in whole or
in part, to an Affiliate or to designate any of its Affiliates 9to the extent
permitted by Law) to receive directly the Company Shares to be purchased and
subscribed for hereunder or to exercise any of the rights of Titan wireless or
Buyer, or to perform any of their respective obligations. Subject to the
preceding sentence, Company. Titan Wireless, Buyer, and Stockholder shall not
assign their respective rights and/or obligation of law or otherwise, without
prior written consent of the other parties hereto, and any such assignment
contrary to the terms hereof shall be null and void and of no force and effect.
In no event shall the assignment by Company, Titan Wireless, Buyer or
Stockholder of its respective rights or obligations under this Purchase
Agreement, whether before or after the Closing, release Company, Titan Wireless,
Buyer or such Stockholder from its respective liabilities and obligations
theretofore accrued hereunder.
13.5 ENTIRE AGREEMENT; AMENDMENT
This Purchase Agreement, including the Disclosure Schedule,
the Exhibits (including without limitation the Letter of Undertaking referred to
in SECTION 3.2 (b)) and other Documents referred to herein or Furnished pursuant
hereto, constitutes the entire Agreement among the parties hereto with respect
to the transactions contemplated herein, and it supersedes all prior oral and
written agreements. Commitments or understandings with respect to the matters
provided for herein. No amendment, modification or discharge of this Purchase
Agreement shall be valid or binding unless set forth in writing and duly
executed and delivered by the party against whom enforcement of the amendment,
modification, or discharge is sought.
13.6 WAIVER
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Purchase Agreement or under
any other Document Furnished in connection with or pursuant to this Purchase
Agreement shall impair any such right, power, or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial exercise
of any such right, power or privilege shall preclude the further exercise of
such right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom enforcement
of such waiver is sought and then only to the extent expressly specified
therein.
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<PAGE>
13.7 GOVERNING LAW; CONSENT TO JURISDICTION
This Purchase Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by the
laws of the State of new York (without regard to the choice of law rules
applicable in such jurisdiction other than Section 5-1401 of the New York
General Obligation Law).
Any legal action or proceeding against any party with respect
to this Purchase Agreement may be brought and enforced in a federal or state
court located in the County of New York, City of New York, State of New York,
and by the execution and delivery of this Purchase Agreement, each of the
parties hereby irrevocably accepts for itself generally, irrevocably and
unconditionally, the jurisdiction of the aforesaid courts, intending that all
provisions of Section 5-1401 of the New York General Obligations Law shall apply
with such respect to choices of venue. Each of the parties agrees that a
judgement, after exhaustion of all available appeals, in any such action or
proceeding shall be conclusive and binding upon them, and may be enforced in any
other jurisdiction by entry of an Order upon such judgement, a certified copy of
which shall be conclusive evidence of such judgement. Each of the parties
further 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
thereof by registered r certified mail, postage prepaid, to such party at its
address provided in or in accordance with SECTION 13.9, such service to become
effective ten (10) days after such mailing. Nothing herein shall affect the
right of any party to serve process or to commence legal proceedings or
otherwise proceed against the other parties hereby waives irrevocably, to the
fullest extent permitted by law, any objection to the laying of the venue in, r
any claim of inconvenient forum in respect of any such action in, County of New
York, City of New York, State of New York to which it might otherwise now or
hereafter be entitled in any actions arising out of or based on this Purchase
Agreement.
13.8 SEVERABILITY
If any part of any provision of this Purchase Agreement or any
other Agreement or document given pursuant to or in connection with this
Purchase Agreement shall be invalid or unenforceable in any respect, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provision or the
remaining provisions of this Purchase Agreement.
13.9 NOTICES
All notices, demands, requests, opinions or other
communications which may be or are required to be given, served, or sent by any
party to any other
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<PAGE>
party pursuant to this Investment Agreement shall be in writing in the English
language and shall be hand delivered, sent by DHL (or by comparable
international air courier) or transmitted by facsimile transmission, addressed
as follows:
(i) If to Titan Wireless or Buyer:
Titan Wireless
Attn. James T. Taylor, General Counsel
3033 Science park Rd.
San Diego, CA 92121
United States of America
Facsimile: +(1)(858) 552-9770
with a copy (which shall not constitute notice) to :
Nicholas J. Costanza
Senior Vice President, General Counsel and Secretary
The Titan Corporation
3033 Science Park Rd.
San Diego, CA 92121
United States of America
Facsimile: +(1)(858) 552-9759
(ii) If to stockholder or Company:
M. Louis N'ki Diakite
Ivoire Telecom
c/o Paul A. Koches, Esq.
Arent Fox Kitner Plotkin & Kahn PLLC
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5339
Facsimile: +(1)(202) 857-6395
with a copy (which shall not constitute notice) to :
M. Louis N'ki Diakite
President Directeur General
Afripa Telecom
38, rue des Jeuneurs
75002 Paris
France
Facsimile: +(33)(1) 55.34.73.74
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<PAGE>
13.10 HEADINGS
Section headings contained in this Purchase Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Purchase Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
13.11 EXECUTION IN COUNTERPARTS
To facilitate execution, this Purchase Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signatures of or on behalf of, each party, or the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
Agreement. It shall not be necessary in making proof of this Purchase Agreement
to produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
13.12 LIMITATION ON BENEFITS
The covenants, undertakings and agreements set forth in this
Purchase Agreement shall be solely for the benefit of, and shall be enforceable
only by, the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns, except that the
agreements set forth in SECTION 11 also shall be for the benefit of, and
enforceable by, Buyer Indemnified Persons and their respective successors,
heirs, executors, administrators, legal representatives or permitted assigns.
13.13 BINDING EFFECT
Subject to any provisions hereof restricting assignment, this
Purchase Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and assigns.
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<PAGE>
13.14 SPECIFIC PERFORMANCE
In addition to any other remedies which Buyer or Titan
Wireless may have at law or in equity, company and stockholder hereby
acknowledge that the Equity Interest in the Company and the Company Subsidiaries
are unique, and that the harm to Buyer and/or Titan Wireless resulting from
breaches by Company or Stockholder of their respective obligations cannot be
adequately compensated by damages. Accordingly, Company and Stockholder agree
that Buyer and Titan Wireless each shall have the right to have all obligations,
undertakings, Agreements, covenants and other provisions of this Purchase
Agreement specifically performed by Company or the Stockholder, as the case may
be, and that Buyer and Titan Wireless each shall have the right to obtain an
order or decree of such specific performance in any of the courts of the United
States of America or of any other state of other political subdivision thereof,
or, to the extent possible, in any of the courts having jurisdiction over the
Company, its Company subsidiaries and the Stockholder.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Purchase Agreement, or have caused this Purchase Agreement to be duly executed
on their behalf, as of the day and year first above written.
BUYER:
TITAN WIRELESS AFRIPAHOLDING INC.
Attest: /s/ J. Z. Baylor By: /s/ HERBER L. BRADLEY
----------------------------- -----------------------------------
Name: Herbert L. Bradley
Title: President
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<PAGE>
TITAN WIRELESS
TITAN WIRELESS INC.
Attest: BY: /s/ Herbert L. Bradley
-----------------------------------
Name: Herbert L. Bradley
Title: President
/s/ J. Z. Baylor
----------------------------
COMPANY:
IVOIRE TELECOM HOLDINGS S.A.
Attest: BY: /s/ Louis N'Ki Diakite
-----------------------------------
Name: Louis N'Ki Diakite
/s/ Pat [ILLEGIBLE] Title: President Directeur General
----------------------------
STOCKHOLER:
/s/ Louis N'ki Diakite
--------------------------------------
Louis N'ki Diakite
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<PAGE>
EXHIBIT LIST
STOCK PURCHASE AGREEMENT BY AND AMONG
TITAN WIRELESS, TITAN WIRELESS AFRIPA HOLDING, IVOIRE TELECOM,
AND M. LOUIS DIAKITE
<CAPTION>
------------------- ------------------------------------------------------------
EXHIBIT DESCRIPTION
------------------- ------------------------------------------------------------
General Disclosure Schedule
------------------- ------------------------------------------------------------
A List of Subsidiaries
------------------- ------------------------------------------------------------
2.3 Ivoire Telecom Closing Loan Arrangements
------------------- ------------------------------------------------------------
3.3a Stockholders Agreement
------------------- ------------------------------------------------------------
3.3b Changes to Company Charter Documents
------------------- ------------------------------------------------------------
3.3c Line of Credit and Security Facility
------------------- ------------------------------------------------------------
3.3d Buyer Stock Option Plan
------------------- ------------------------------------------------------------
3.4 Approved expenditures by Company after Closing
------------------- ------------------------------------------------------------
4.25 Telecom Licenses
------------------- ------------------------------------------------------------
5.1 Stockholder Ownership of Company and Company Subsidiaries
------------------- ------------------------------------------------------------
9.14 Confidentiality Letter
------------------- ------------------------------------------------------------
9.15a Stockholder Employment Agreement
------------------- ------------------------------------------------------------
EXHIBIT 1
TO STOCK PURCHASE AGREEMENT
DATED AS OF JUNE 28, 2000
DEFINITIONS
"AFFILIATE" means: (a) with respect to a natural person: any
member of such natural person's family; (b) with respect to a business or an
entity: (i) any officer, director, stockholder, partner of or investor or in
such business or entity or partner of or investor in any Affiliate of such
business or entity; and (ii) and any business or entity which directly or
indirectly, through one or more intermediaries, Controls, is Controlled by, or
is under common Control with such business or entity.
"AFRIPA" means the Company and each of the Subsidiaries, taken
as a whole.
"AGREEMENT" means any concurrence of understanding and
intention between two or more persons (or entities) with respect to their
relative rights and/or obligations or with respect to a thing done or to be done
(whether or not conditional, executory, express, implied, in writing or meeting
the requirements of contract), including, without limitation, contracts, leases,
promissory notes, covenants, easements, rights of way, covenants, commitments,
arrangements and understandings.
"ATTACHED FINANCIAL STATEMENTS" has the meaning set forth in
Section 4.6 of the Purchase Agreement.
"ASSETS" means assets of every kind and everything that is or
may be available for the payment of liabilities (whether inchoate, tangible or
intangible), including, without limitation, real and personal property.
"BROKER FEES" has the meaning set forth in SECTION 13.2 of
this Purchase Agreement.
"BUYER" has the meaning set forth in the opening paragraph of
this Purchase Agreement.
"BUYER INDEMNIFIED PERSONS" means Titan Wireless and Buyer,
their respective Affiliates (including, after Closing, the Company), and the
employees, representatives, agents, officers and directors of Titan Wireless,
buyer and their respective Affiliates.
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"CHARTER DOCUMENTS" of an entity shall mean its articles of
association, by0laws, partnership Agreement and/or other applicable constitutive
or organizational documents, without regard to whether such document is
notarized or publicly filed or registered.
"CLAIMS" means all demands, claims, actions or causes of
action, assessments, losses, damages (including, without limitation, diminution
in value in order of Company or any Subsidiary), liabilities, costs and
expenses, including, without limitation, interest, penalties and attorneys' fees
and disbursements, whether such Claims (i) arise from demands, claims, actions
or causes of action asserted or brought by third parties or (ii) are suffered or
incurred by the Buyer Indemnified Persons in the absence of any such third-party
claim.
"CLOSING" means the closing of the sale and purchase of shares
of Capital Stock pursuant to this Purchase Agreement.
"CLOSING DATE" means 1:00 p.m. Paris, France time on June 16,
2000, or such other time and date as shall be mutually agreed upon by Titan
Wireless, Buyer, Company and the Stockholder.
"COMPANY" has the meaning set forth in the opening paragraph
of this Purchase Agreement.
"COMPANY JUNE LOAN" has the meaning set forth in SECTION 2.3
of this Purchase Agreement.
"COMPANY MARCH LOAN" has the meaning set forth in the Fourth
Recital.
"COMPANY MARCH PROMISSORY NOTE" has the meaning set forth in
the Fourth Recital.
"COMPANY SHARES" has the meaning set forth in the Fifth
Recital.
"COMPANY SUBSIDIARY" means a corporation, company, general or
limited partnership, or other entity of which at least 20% of the outstanding
securities or other interests having rights to vote or otherwise exercise
Control are held, directly or indirectly, by Company.
"COMPANY TAX RETURNS" means all state, local, foreign and
other applicable tax returns, or other declarations, forms, filings or
declarations of estimated tax reports required to be filed by Company or any of
the Company Subsidiaries (without regard to extensions of time permitted by law
or otherwise).
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"CONTROL" means possession, directly or indirectly, of power
to direct or cause the direction of management or policies (whether through
ownership of voting securities, by Agreement or otherwise).
"DIAKITE ESCROW LETTER" has the meaning set forth in SECTION
2.2 of this Purchase Agreement.
"DIAKITE MAY PLEDGE AGREEMENT" has the meaning set forth in
the Fourth Recital.
"DIAKITE MAY PROMISSORY NOTE" has the meaning set forth in the
Fourth Recital.
"DIAKITE MAY LOAN" has the meaning set forth in the Fourth
Recital.
"DISCLOSURE SCHEDULE" means the disclosure schedule identified
as the Disclosure Schedule to this Purchase Agreement.
"DOCUMENTS" means any paper or other material (including,
without limitation, computer storage media) on which is recorded (by letters,
numbers or other marks) information that may be evidentially used, including,
without limitation, legal opinions, mortgages, indentures, notes, instruments,
leases, Agreements, insurance policies, reports, studies, financial statements
(including, without limitation, the notes thereto), other written financial
information, schedules, certificates, charts, maps, plans, photographs, letters,
memoranda and all similar materials.
"ESCROW AGENT" means Titan Wireless.
"EMPLOYMENT AGREEMENT" means the Employment Agreement in the
form of EXHIBIT 9.15A.
"ENCUMBRANCE" means any mortgage, lien, pledge, encumbrance,
security interest, deed of trust, option, encroachment, reservation, order,
decree, judgment, conditions, restriction, charge, Agreement, claim or equity of
any kind.
"ENVIRONMENTAL LAWS" means any Laws, including any plans,
other criteria, or guidelines promulgated pursuant to such Laws, now or
hereafter in effect relating to the generation, production, installation, use,
storage treatment, transportation, release, threatened release, or disposal of
Hazardous Materials, or noise control, or the protection of human health,
safety, natural resources, animal health or or welfare, or the environment.
"EQUITY INTEREST" has the meaning set forth in the Second
Recital.
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"EXHIBIT" means an exhibit attached to this Purchase
Agreement.
"FINANCIAL STATEMENTS" has the meaning set forth in SECTION
4.6 of this Purchase Agreement.
"FURNISH" means supply, delivery or provide, or cause to be
supplied, delivered or provided, in any way.
"GOVERNMENT ENTITIES" means any governmental,
supragovernmental, quasi-governmental or regulatory authority, whether domestic
or foreign, including without limitation regional and local governmental or
regulatory bodies.
"HAZARDOUS MATERIALS" means any wastes, substance, radiation,
or materials (whether solids, liquids or gases): (i) which are hazardous, toxic,
infectious, explosive, radioactive, carcinogenic, or mutagenic; (ii) which are
or become defined as "pollutants," "contaminants," "hazardous materials,"
"hazardous wastes," hazardous substances," "toxic substances," "radioactive
materials," "solid wastes," or other similar designations in, or otherwise
subject to regulation under, any Environment Laws; (iii) the presence of which
on the Real Property cause or threaten to cause a nuisance pursuant to
applicable statutory or common law upon the Real Property or to adjacent
properties; (iv) which contain without limitation polychlorinated biphenyls
(PCBs), asbestos or asbestos containing materials, lead-based paints,
urea-formaldehyde foam insulation, or petroleum or petroleum products
(including, without limitation, crude oil or any fraction thereof); or (v) which
pose a hazard to human health, safety, natural resources, industrial hygiene, or
the environment, or an impediment to working conditions.
"INTELLECTUAL PROPERTY" means any or all of the following an
all rights in, arising out of, or associated therewith: (A) all United States
and foreign patents and utility models and applications therefor and all
reissues, divisions, reexaminations, renewals, extensions, provisions,
continuation and continuations-in-part thereof, and equivalent or similar rights
anywhere in the world in inventions and discoveries including without limitation
invention disclosures: (B) all trade secrets and other rights in know-how and
confidential or proprietary information; (C) all copyrights, copyrights
registrations and applications there for and all other rights corresponding
thereto throughout the world; (D) all industrial designs and any registrations
and applications therefor throughout the world; (E) all rights in World Wide Web
addresses and domain names and applications and registrations therefor, all
trade names, logos, common law trademarks and service marks, trademark and
service mark registrations and applications therefor and all goodwill associated
therewith throughout the world; (F) any similar, corresponding or equivalent
rights to any of the foregoing anywhere in the world; and all rights to
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sue or recover and retain damages and costs and attorneys' fees for past,
present and future infringement or breach of any of the foregoing.
"INVENTORY" means all raw materials, work in process and
finished good and inventoriable supplies.
"IVOIRE TELECOM CLOSING LOAN ARRANGEMENTS" has the meaning set
forth in Section 2.3.
"IVOIRE TELECOM ESCROW LETTER" has the meaning set forth in
the Fifth Recital of this Purchase Agreement.
"LAWS" means all national, supranational, provincial,
departmental, state and local statutes, laws, ordinances, regulations, rules,
resolutions, orders, determination, writs, injunctions, awards (including,
without limitation, awards of any arbitrator), judgements and decrees applicable
to the specified persons or entities and/or to the businesses and Assets thereof
(including, without limitation, Laws relating to licensing and permitting of
telecommunication services and equipment; securities registration and
regulation; the sale, leasing, ownership or management of real property;
employment practice, terms and conditions, and wages and hours; building
standards, land use and zoning; safety, health and fire prevention; and
environmental protection, including Environmental Laws).
"OTHER ARRANGEMENT" means a benefit program or practice
providing for bonuses, incentive compensation, vacation pay, severance pay,
insurance, restricted stock, stock options, employee discounts, company cars,
tuition reimbursement or any other perquisite or benefit to employees, officers
or independent contractors that is not a Plan.
"ORDINARY COURSE OF BUSINESS" means ordinary course of
business consistent with past practices and prudent business operations.
"PLAN" means any plan, program or arrangement, whether or not
written, that is or was an "EMPLOYEE BENEFIT PLAN" as such term or notion is
defined by any Laws applicable to Company and any Subsidiary and (a) which was
or is established or maintained by Company or any Subsidiary; (b) to which
Company or any Subsidiary contributed or was obligated to contribute or to dun
or provide benefits; or (c) which provides or promises benefits to any person
who performs or who has performed service for Company or any Subsidiary and
because of those services is or has been (i) a participant therein or (ii)
entitled to benefits thereunder.
"PROPOSAL" means any proposal, offer or indication of interest
from any person, entity or group relating to any acquisition or purchase of all
or (other
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than in the Ordinary Course of Business) any portion of the Assets of, or any
equity in, Company or any Subsidiary or any business combination with Company or
any Subsidiary, other than the transactions contemplated by this Purchase
Agreement.
"PURCHASE AGREEMENT" means this Stock Purchase Agreement,
including the Disclosure Schedule and all Exhibits hereto.
"PURCHASE PRICE" shall have the meaning set forth in SECTION
2.2 of this Purchase Agreement.
"REAL PROPERTY" means the real property owned, operated, or
used by Company or the Company Subsidiaries as of the date of this Purchase
agreement, any additional real property so owned, operated, or used since that
date, and for purposes of Section 4.23, and real property formerly so owned,
operated or used.
"RELEASE" means any emission, spill, seepage, leak, escape,
leaching, discharge, injection, pumping, pouring, emptying, dumping, disposal,
or release of Hazardous Materials from any source (including without limitation
the Real Property) into or upon the environment, including the air, soil,
improvements, surface water, groundwater, the sewer, septic system, or waste
treatment, storage, or disposal systems at, on, above, or under the Real
Property.
"SECTION" means a Section (or a subsection) of this Purchase
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and all laws promulgated pursuant thereto or in connection therewith.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement in
the form of EXHIBIT 3.3.
"STOCKHOLDER" has the meaning set forth in the opening
paragraph of this Purchase Agreement.
"STOCK OPTION PLAN" means the Stock Option Plan of the Buyer
in the form of EXHIBIT 3.3C.
"SUBSIDIARY" has the meaning set forth in the Second Recital.
"TAXES" means all national, state, regional, and local and
taxes of any country (including, without limitation, income, profit, franchise,
sales, use, real property, personal property, ad valorem, excise, employment,
social security and wage withholding taxes) and installments of estimated taxes,
assessments, deficiencies, levies, imports, duties, license fees, registration
fees, withholdings, or other similar charges of every kind, charter or
description imposed by any
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governmental or quasi-governmental authorities, and any interest, penalties or
additions to tax imposed thereon or in connection therewith.
"TECHNOLOGY" means all (A) works of authorship including
without limitation computer programs, source code and object code, whether
embodied in software, firmware or otherwise, objects, comments, user screens,
user interface, report formats, templates, menus, buttons, and icons, and all
files, data materials manuals, design notes and other items and documentation
related there to or associated therewith; (B) inventions (whether or not
patentable), improvements, and technology; (C) proprietary and confidential
information, including technical data and customer and supplier lists, trade
secrets and know how; (D) databases, data compilations and collections and
technical data; (E) logos, trade names, trademarks, service marks, World Wide
Web addresses and domain names, tools, methods and processes; and all rights to
sue or recover and retain damages and costs and attorneys' fees for past,
present and future infringement or breach of any of the foregoing and all
derivations of the foregoing in any form and embodied in any media.
"TELECOM LICENSES" has the meaning set forth in SECTION 4.25
of this Purchase Agreement.
"TITAN WIRELESS" has the meaning set forth in the opening
paragraph of this Purchase Agreement.
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