<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 14, 1998
REGISTRATION NUMBER 333-48371
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
PRE-EFFECTIVE AMENDMENT NO. 3 TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
FACILICOM INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 4813 52-1926328
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
INCORPORATION OR
ORGANIZATION)
1401 NEW YORK AVENUE, NW
WASHINGTON, D.C. 20005
(202) 496-1100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
WALTER J. BURMEISTER
CHIEF EXECUTIVE OFFICER AND PRESIDENT
1401 NEW YORK AVENUE, NW
WASHINGTON, D.C. 20005
(202) 496-1100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
MORRIS F. DEFEO, JR., ESQ.
SWIDLER & BERLIN, CHARTERED
3000 K STREET, N.W., SUITE 300
WASHINGTON, D.C. 20007
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE AGGREGATE OFFERING PRICE REGISTRATION
REGISTERED REGISTERED OFFERING PRICE PER NOTE(1) FEE(2)
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
10 1/2% Series B Senior
Notes due 2008........ 300,000 $300,000,000 $1,000 $88,500
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933, as amended.
(2) Previously paid.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-Laws provide, to the maximum extent provided by applicable
law, no director shall be personally liable to the Company or its stockholders
for monetary damages for any breach of fiduciary duty by such director as a
director. The foregoing sentence shall not eliminate or limit the liability of
a director, (i) for breach of the director's duty of loyalty of the Company or
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) pursuant
to Section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of the relevant Article of the By-Laws of the Company
shall apply to or have any effect on the liability or alleged liability of any
director or officer of the Company for or with respect to any acts or
omissions of such director or officer occurring prior to such amendment.
Directors and officers of the Company shall be indemnified as of right to
the fullest extent now or hereafter permitted by law in connection with any
actual or threatened civil, criminal, administrative or investigative action,
suit or proceeding (whether brought by or in the name of the Company or
otherwise) arising out of their service to the Company or to another
organization at the request of the Company. Persons who are not directors or
officers of the Company may be similarly indemnified in respect of such
service to the extent authorized at any time by the Board of Directors of the
Company. The Company may purchase and maintain insurance to protect itself and
any such director, officer or other person against any liability asserted
against him and incurred by him in respect of such service whether or not the
Company would have the power to indemnify him against such liability by law or
under the provisions of the Company's By-Laws. The provisions of the Company's
By-Laws shall be applicable to actions, suits or proceedings commenced after
the adoption hereof, whether arising from acts or omissions occurring before
or after the adoption hereof, and to directors, officers and other persons who
have ceased to render such service, and shall inure to the benefit of the
heirs, executors and administrators of the directors, officers and other
persons referred to in this Article.
II-1
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*1.1 Purchase Agreement between the Company, Lehman Brothers Inc. and BT
Alex. Brown Incorporated dated January 23, 1998
*2.1 Investment and Shareholders Agreement among Armstrong International
Telecommunications, Inc., FCI Management Group and FaciliCom
International, Inc. dated December 22, 1997 (together with all
exhibits thereto)
*3.1 Certificate of Incorporation of FaciliCom International, Inc.
*3.2 Certificate of Amendment of Certificate of Incorporation of
FaciliCom International, Inc.
*3.3 By-laws of FaciliCom International, Inc.
*4.1 Indenture between the Company and State Street Bank and Trust
Company dated January 28, 1998
4.2 Reference is made to Exhibits 3.1 and 3.2
*4.3 Form of Common Stock Certificate of FaciliCom International, Inc.
*5.1 Opinion of Swidler & Berlin, Chartered regarding legality
*10.1 Registration Rights Agreement between the Company, Lehman Brothers
Inc. and BT Alex. Brown Incorporated dated January 28, 1998
*10.2 FaciliCom International, Inc., 1997 Stock Option Plan No. 1
*10.3 FaciliCom International, Inc., 1997 Stock Option Plan No. 2
*10.4 FaciliCom International, Inc., 1997 Phantom Stock Rights Plan
*10.5 International Telecommunications Services Agreement between Fonetel
Global Communications AB and Telecom Finland International dated
December 15, 1994
+*10.6 Service Agreements between Fonetel Global Communications AB and
Nordnet OY dated January 26, 1995
*10.7 Services Agreements between Fonetel Global Communications AB and
Belgacom SA dated February 15, 1995
*10.8 Services Agreement between Telenor Carrier Services A/S and Nordiska
Tele8 AB dated November 14, 1995
*10.9 Operating Agreement between Nordiska Tele8 AB and Portugal Telecom
dated February 1, 1996
+*10.10 Operating Agreement between Deutsche Telekom AG and Tele8 Sweden
dated May 28, 1996
*10.11 Operating Agreement between Nordiska Tele8 AB and Eesti Telefon
dated August 12, 1996
*10.12 Memorandum of Understanding between Telekon Sloveniga and Nordiska
Tele8 AB dated October 30, 1996
+*10.13 Services Agreement between Telecom Italia SpA and Nordiska Tele8 AB
dated January 16, 1997
*10.14 Agreement to Operate International Telecommunications between CANTV
and FaciliCom International and Between FaciliCom International,
L.L.C. and Compania Anonima Nacional de Telefonos de Venezuela dated
June 2, 1997
*10.15 International Telecommunications Service Agreement between MATAV
Rt -- Hungary and Nordiska Tele8 AB -- Sweden
+*10.16 Agreement on Joint Traffic between TeleDanmark A/S and Nordiska
Tele8 AB dated December 18, 1997
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*10.17 Interconnect Agreement between Telia AB and Nordiska Tele8 AB
*10.18 Services Agreement between Armstrong Holdings, Inc. and FaciliCom
International, L.L.C. dated July 1, 1997
*10.19 FaciliCom International, Inc. 1998 Stock Option Plan
*10.20 Billing and MIS Services Agreement between Armstrong Holdings, Inc.
and FaciliCom International, L.L.C. dated July 1, 1997
10.21 Stock Purchase Agreement dated April 27, 1998 between FaciliCom
International, L.L.C. and Oy Teleykkonen AB
*12.1 Schedule of Earnings to Fixed Charges
*21.1 Subsidiaries of Registrant
*23.1 Consent of Deloitte & Touche llp
*23.2 Consent of Deloitte & Touche
*23.3 Consent of Swidler & Berlin, Chartered (to be included in Exhibit
5.1 to the Registration Statement)
*24.1 Power of Attorney (on signature page)
*25.1 Statement of eligibility of trustee
*27.1 Financial Data Schedule
*99.1 Form of Letter of Transmittal
*99.2 Form of Notice of Guaranteed Delivery
*99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
*99.4 Form of Letter to Clients
*99.5 Guides for Certification of Taxpayer Identification Number on Form
W-9
</TABLE>
- --------
* Previously filed.
** To be filed by amendment.
+ Confidential treatment is being requested for portions of this document.
The redacted material has been filed separately with the Commission.
(B) CONSOLIDATED FINANCIAL STATEMENT SCHEDULES:
All Schedules have been omitted because they are not applicable, not
required, or the required information is included in the Financial Statements
or the Notes thereto.
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
II-3
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b)(1) The undersigned Registrant hereby undertakes as follows: that prior
to any public reoffering of the securities registered hereunder through use of
a prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(2) The Registrant undertakes that every prospectus: (i) that is filed
pursuant paragraph (1) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(d) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it becomes effective.
(e) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE DISTRICT OF COLUMBIA, ON MAY 14,
1998.
Facilicom International, Inc.
/s/ Walter J. Burmeister
By: _________________________________
WALTER J. BURMEISTER
PRESIDENT AND CHIEF
EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED
ON MAY 14, 1998.
SIGNATURE TITLE
--------- -----
/s/ Walter J. Burmeister Chief Executive Officer,
- ------------------------------------- President and Director
WALTER J. BURMEISTER (Principal Executive
Officer)
/s/ Christopher S. King Vice President--Finance
- ------------------------------------- and Administration,
CHRISTOPHER S. KING Chief Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
* Treasurer, Vice
- ------------------------------------- President and Director
KIRBY J. CAMPBELL
* Secretary, Vice
- ------------------------------------- President and Director
DRU A. SEDWICK
II-5
<PAGE>
SIGNATURE TITLE
--------- -----
* Director
- ------------------------------------
BRYAN CIPOLETTI
Director
- ------------------------------------
ROBERT REED
Director
- ------------------------------------
JAY SEDWICK
* Director
- ------------------------------------
WILLIAM STEWART
- --------
* By signing his name hereto, Christopher S. King signs this document on
behalf of each of the persons so indicated above pursuant to powers of
attorney duly executed by such persons and filed with the Securities and
Exchange Commission.
II-6
<PAGE>
Exhibit 10.21
STOCK PURCHASE AGREEMENT
This Agreement is made April 27, 1998, between FACILICOM
INTERNATIONAL, L.L.C., a Delaware limited liability company ("Buyer"), OY
-----
TELEYKKONEN AB, a corporation formed under the laws of Finland (the "Company"),
-------
DAN ZWI LIEBKIND, an individual resident of Finland ("DZL"), and MIKA RUBEN
---
LIEBKIND, an individual resident of Finland ("MRL", and together with DZL, the
---
"Shareholders").
- -------------
PREAMBLE
The Shareholders desire to sell to the Buyer, and the Buyer desires to
purchase from the Shareholders, shares of the Company's capital stock
representing 100% of the issued and outstanding capital stock of the Company
(the "Shares"), all upon the terms and subject to the conditions set forth
------
herein. Therefore, the parties agree as follows with the intent to be legally
bound.
AGREEMENT
ARTICLE I
PURCHASE AND SALE OF SHARES
---------------------------
1.01. Purchase and Sale of Shares. On the Closing Date (defined below),
---------------------------
the Shareholders shall sell the Shares to the Buyer, and the Buyer shall
purchase the Shares from the Shareholders, all upon the terms and subject to the
conditions set forth herein.
1.02. Purchase Price. The purchase price for the Shares (the
--------------
"Purchase Price") shall be Four Million U.S. Dollars (US$4,000,000), which
- ---------------
amount shall be payable by the Buyer as follows:
(a) US$3,400,000 in immediately available funds shall be paid to
the Shareholders on the Closing Date;
(b) US$600,000 shall be deposited with an escrow agent (the "Escrow
------
Agent") subject to an Escrow Agreement, substantially in the form of Exhibit A
- ----- ---------
attached hereto, pending the determination of the Purchase Price Adjustment, if
any, to be made pursuant to Section 1.03 of this Agreement; and
(c) In addition to the Purchase Price, Buyer shall, consistent with
Finish tax law, deposit with the Shareholders on the Closing Date an amount
equal to 1.6% of the Purchase Price (US$ 64,000) to be used to pay the stamp-
duty accruing in Finland with respect to Buyer's purchase of the Shares (the
"Tax Payment"). The
- ------------
<PAGE>
Shareholders shall cause the Tax Payment to be remitted to the proper
authorities on or before date upon which such Tax Payment is due, which date
shall be prior to the date upon which the monies held in escrow pursuant to
Section 1.02(b) of this Agreement are distributed according to the Escrow
Agreement.
1.03. Adjustment to Purchase Price.
----------------------------
(a) The Purchase Price shall be subject to a downward adjustment
(the "Purchase Price Adjustment"), on a dollar for dollar basis, by the amount
-------------------------
the Company's Debt ( defined below) exceeds US$950,000 as of the Closing Date.
It is understood that US$200,000 of the US$950,000 Company Debt is comprised of
a debt owing to Nordiska Tele8 A.B. ("Tele8"), for certain Passport equipment
the Company purchased from Tele8 in April of 1998 (the "Tele8 Transaction").
-----------------
For the purposes of this Agreement, the term "Company's Debt" shall mean any
--------------
liability or obligation of the Company not reflected on the Company's March 31,
1998 interim balance sheet for: (i) money borrowed for any purpose, or (ii) the
acquisition or lease of any asset or equipment. The term "Company's Debt" shall
--------------
not include: (i) the amount owed by the Company under that certain Line of
Credit Agreement between the Company and AKTIA Bank attendant to the Company's
checking account number 405511-214133 (the "Credit Line"), or (ii) bandwidth or
-----------
other operational leases terminable within one year of the Closing Date, or
(iii) those leases listed on Schedule 1.03 and Schedule 2.22, or (iv) vehicle
------------- -------------
leases listed on Schedule 2.16.
-------------
(b) Within twenty one (21) days of the Closing Date, Shareholders
shall deliver to Buyer a balance sheet, prepared by the Company's independent
auditors, which provides a detailed listing of the Company's Debt as of the
Closing Date (the "Closing Balance Sheet"). Within sixty (60) days of the
Closing Date, Buyer shall provide Shareholders with a certificate (an
"Adjustment Certificate") setting forth the computation of the Purchase Price
- -----------------------
Adjustment, if any, and an explanation of any differences between the Company's
Debt reported on the Closing Balance Sheet and that used to compute the Purchase
Price Adjustment as reported on the Adjustment Certificate.
(c) Shareholders may object to the Adjustment Certificate by giving
written notice to Buyer to such effect (a "Disputed Items Notice") within five
---------------------
(5) business days after their receipt thereof. Failure to deliver a Disputed
Items Notice within 5 business days after delivery of the Adjustment Certificate
will render the amounts set forth in the Adjustment Certificate conclusively
presumed to be true and correct in all respects and will be binding upon the
parties. If Shareholders do not object to the Adjustment Certificate within the
time provided for in this subsection, Buyer and Shareholders shall notify the
Escrow Agent of the Shareholders' acceptance of the Adjustment Certificate and
direct the Escrow Agent to distribute the escrowed amount to the parties in
accordance with the computations set forth on the Adjustment
-2-
<PAGE>
Certificate. Any interest earned on the escrowed amount shall be distributed to
the parties in the same proportion as the amount distributed to a party bears to
the total escrowed amount.
(d) If the Shareholders deliver a Disputed Items Notice to the
Buyer within five (5) business days after delivery of the Adjustment
Certificate, stating that the Shareholders object to the calculations set forth
therein, specifying in detail the basis for such objection and setting forth
their computation of the Purchase Price Adjustment, Buyer and Shareholders will
attempt to resolve the dispute as promptly as practicable. If Buyer and
Shareholders are unable to resolve the dispute within ten (10) business days
after delivery of the Disputed Items Notice, Buyer and Shareholders will refer
the matter to Deloitte & Touche, LLP. in Pittsburgh, Pennsylvania ("D&T") for
resolution of the disputed items and determination of the Purchase Price
Adjustment. The determination by D&T shall be conclusive and binding upon the
parties. The fees, costs and expenses of such auditor will be shared equally by
Buyer and Shareholders.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES
-----------------------------------------------------
Buyer has engaged in due diligence with respect to the Company and the
Shareholders. Notwithstanding this due diligence, Buyer requires that the
Company and the Shareholders (collectively, the "Company Parties") jointly and
---------------
severally represent and warrant to the Buyer as follows:
2.01. Organization. The Company is a corporation duly organized,
------------
validly existing and in good standing under the laws of Finland.
2.02. Authority and Authorization. The Company has the power and
---------------------------
authority to own its assets, to conduct its business as presently conducted and
to execute, deliver and perform this Agreement and the other Transaction
Documents (defined below).
2.03. Execution and Binding Effect. This Agreement has been, and on
----------------------------
the Closing Date the other Transaction Documents will be, duly and validly
executed and delivered by the Company and the Shareholders and constitute (or
upon such execution and delivery will constitute) legal, valid and binding
obligations of the Company and the Shareholders enforceable against the Company
and the Shareholders in accordance with their respective terms.
2.04. No Breach, Default, Violation or Consent. The execution,
----------------------------------------
delivery and performance by the Company and the Shareholders of this Agreement
and the other Transaction Documents do not and will not:
-3-
<PAGE>
(a) violate the Company's charter or by-laws;
(b) breach or result in a default (or an event which, with the
giving of notice or the passage of time, or both, would constitute a default)
under, require any consent under or give to others any rights of termination,
acceleration, suspension, revocation, cancellation or amendment of any Company
Agreement (defined below) or Governmental Permit (defined below);
(c) breach or otherwise violate any order, writ, judgment,
injunction or decree issued by any governmental entity (each a "Governmental
------------
Order") which names the Company or the Shareholders, together or individually,
- -----
and is directed to the Company or the Shareholders, together or individually, or
any of their assets;
(d) violate any law, rule, regulation, ordinance or code of any
governmental entity (each a "Governmental Rule"); or
-----------------
(e) except as otherwise disclosed on Schedule 2.04, require any
-------------
consent, authorization, approval, exemption or other action by, or any filing,
registration or qualification with, any governmental entity or any other person
or entity (each a "Person").
------
2.05. Ownership and Control. Schedule 2.05 sets forth a correct and
--------------------- -------------
complete list of (a) the authorized capitalization of the Company, (b) the
number of shares of each class of capital stock of the Company issued and
outstanding and (c) the names of the record and beneficial owners of each share
of its capital stock and the number and percentage of shares of each class of
its capital stock owned by such Persons. The issued and outstanding shares of
its capital stock have been duly authorized and validly issued and are fully
paid and non-assessable. Except as otherwise disclosed on Schedule 2.05 there
-------------
are no outstanding (x) options, warrants, agreements or other rights for the
acquisition of shares of the Company's capital stock, (y) securities or other
obligations of the Company which are convertible into such shares, or (z)
options, sale agreements, shareholder agreements, pledges, proxies, voting
trusts, powers of attorney, restrictions on transfer or other agreements or
instruments which are binding on any of the Shareholders and which relate to the
ownership, voting or transfer of any of such shares.
2.06. Financial Statements. The Company has delivered to the Buyer
--------------------
correct and complete copies of the Company's (a) audited balance sheet and
statements of income, retained earnings and cash flow as of and for its fiscal
year ended June 30, 1997 (the "Financial Statement Date"), and (b) an unaudited
------------------------
interim monthly balance sheet and statement of income as of and for the month
ending March 31, 1998, the "Current Financial Statement" and, together with the
---------------------------
items described in clause (a) above, the "Financial Statements"). The Financial
--------------------
Statements present fairly the financial condition
-4-
<PAGE>
of the Company as at the end of the periods covered thereby and the results of
its operations and the changes in its financial position for the periods covered
thereby, and, except as required pursuant to Section 1.03, were prepared in
accordance with generally accepted accounting principles in Finland ("FGAAP")
-------
applied on a consistent basis throughout the periods covered thereby subject.
Except as and to the extent otherwise disclosed in the Current Financial
Statements, the Company has no material liabilities of any kind, other than
normal trade obligations incurred in the ordinary course of business since March
31, 1998.
2.07. Absence of Certain Changes and Events. Except as otherwise
-------------------------------------
disclosed on Schedule 2.07, since the Financial Statement Date:
-------------
(a) the Company has not incurred any material obligation or
liability except for normal trade obligations incurred in the ordinary course of
business;
(b) no casualty, loss or damage has occurred with respect to any of
the Company's assets, whether or not the same is covered by insurance;
(c) the Company has not sold, transferred or otherwise disposed of
any of its assets or any interest therein, or agreed to do any of the foregoing,
except for sales of inventory in the ordinary course of business;
(d) the Company has not written off as uncollectible any of its
accounts receivable or written down the value of any of its assets, except in
each case in the ordinary course of business and at a rate no greater than
during the 12-month period ending on the Financial Statement Date;
(e) the Company has not waived or released any of its rights with
respect to its business or assets or permitted any of such rights to lapse;
(f) no executive officer or other key employee of the Company has
left his or her employment with the Company;
(g) the Company has not granted, and is not committed to grant, any
salary or wage increases to any of its employees;
(h) the Company has not made, or committed to make, any capital
expenditures in excess of US$150,000 in the aggregate, exclusive of the Tele8
Transaction;
(i) there has been no payment, discharge or other satisfaction of
any liabilities of the Company, whether direct or indirect, fixed or contingent
or otherwise, other than the satisfaction, in the ordinary course of business,
of liabilities reflected on
-5-
<PAGE>
the Current Financial Statements or incurred in the ordinary course of business
since the Financial Statement Date;
(j) the Company has not declared or paid any dividend or other
distribution in respect of any of its capital stock or agreed to any of the
foregoing;
(k) the Company has not introduced any material change with respect
to its business, including without limitation with respect to the products or
services it sells, the areas in which such products or services are sold, its
methods of distributing its products, its marketing techniques or its accounting
methods; and
(l) no Material Adverse Change (as defined below), and no event
which is likely to result in a Material Adverse Change, has occurred. For the
purposes of this Agreement, the term "Material Adverse Change" shall mean a
-----------------------
material adverse change in the business, operations, financial condition or
prospects of the Company or in the value or utility of the Governmental Permits
(as defined below) between the date hereof and the Closing Date.
2.08. Accounting Practices. The Company's books, records and accounts
--------------------
accurately and fairly reflect, in reasonable detail, its financial position and
operations. The Company maintains a system of internal controls sufficient to
provide reasonable assurances that: (a) transactions are executed in accordance
with management's general or specific authorization, (b) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with FGAAP and to maintain accountability for assets, (c) access to
assets is permitted only in accordance with management's general or specific
authorization, and (d) the assets reflected on the Company's books are compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
2.09. Tax Matters. Except as otherwise disclosed on Schedule 2.09:
----------- -------------
(a) all tax returns and reports required to be filed by the Company
have been properly prepared and filed;
(b) the Company has paid or has made adequate reserves on its books
for the payment of all taxes, interest, penalties, assessments and deficiencies
shown to be due on such tax returns and reports or claimed to be due by any
governmental entity or which the Company is required to withhold on behalf of
any other Person;
(c) the reserves and provisions for taxes on the books of the
Company are adequate for all open years and for its current fiscal period and
properly classify such tax obligations as either current or deferred;
-6-
<PAGE>
(d) the Company Parties have no knowledge of any proposed
assessment of any additional taxes by any governmental entity or of any basis
for any such assessment (whether or not reserved against);
(e) the income tax liabilities of the Company for each year the
Company has been engaged in business have been finally determined by the
appropriate revenue authorities, but the time for audit has not expired;
(f) the Company is not currently being audited by any governmental
entity, and no such audit is pending or, to the best of the Company Parties'
knowledge, threatened;
(g) the Company has not made any tax elections which (i) were in
effect in any past year for which the time for audit has not expired, (ii) are
currently in effect or (iii) will be in effect at any future time; and
(h) the Company has not given any waiver or extension of any period
of limitation governing the time of assessment or collection of any tax.
2.10. Litigation. Except as otherwise disclosed on Schedule 2.10,
---------- -------------
there is no pending or, to the best of the Company Parties' knowledge,
threatened investigation, action or proceeding against the Company, and the
Company Parties have no knowledge of any basis for any such investigation,
action or proceeding. Except as otherwise disclosed on Schedule 2.10, there is
-------------
no pending or, to the best of the Company Parties' knowledge, threatened
investigation, action or proceeding against any Shareholder which, if determined
adversely to such Shareholder, would materially and adversely affect his, her or
its ability to consummate the transactions contemplated hereby, and the Company
Parties have no knowledge of any basis for any such investigation, action or
proceeding. Schedule 2.10 sets forth a correct and complete list of each
--------------
investigation, action and proceeding described in the preceding sentences, the
parties thereto, the alleged basis therefor, the relief sought therein and the
current status thereof.
2.11. Constituent Documents; Governmental Rules; Governmental Orders.
--------------------------------------------------------------
The Company is in compliance in all material respects with (a) its charter and
by-laws and (b) all Governmental Rules applicable to the Company. There are no
Governmental Orders which name the Company and are directed to the Company or
its assets. Schedule 2.11 provides true and correct copies of the Company's
-------------
charter and by-laws.
2.12. Governmental Permits. Schedule 2.12 sets forth a correct and
-------------------- -------------
complete list of all Governmental Permits. Such Governmental Permits have been
validly acquired, are in full force and effect and represent all Governmental
Permits necessary under applicable Governmental Rules for the Company to carry
on its business as now being
-7-
<PAGE>
conducted, including any Governmental Permits required to permit the Company to
provide the telecommunication services it now provides in the geographic regions
the Company now operates, and to own, occupy or use its properties and assets.
No violations have been recorded against any such Governmental Permit, no
citation, notice or warning has been issued by any Governmental Person with
respect to any such Governmental Permit, no investigation or hearing has been
held by or before any Governmental Person with respect to any such Governmental
Permit, the Company has not received any notice from any Governmental Person
that it intends to cancel, revoke, terminate, suspend or not renew any such
Governmental Permit and the Company has no knowledge of any basis for any of the
foregoing. The Company is in compliance with all such Governmental Permits.
Except as otherwise disclosed on Schedule 2.12, none of such Governmental
-------------
Permits will be affected by the sale of the Shares to the Buyer. For the purpose
of this Agreement, the term "Governmental Permit" shall mean any permit,
license, franchise, certificate, authorization, approval or consent obtained
from or issued by any Governmental Person.
2.13. Company Agreements. Schedule 2.13 sets forth a correct and
------------------ -------------
complete list of each contract and agreement to which the Company is a party or
by which the Company or its assets are bound (the "Company Agreements"). Each
------------------
Company Agreement is in full force and effect and is enforceable against the
Company, and, to the Company Parties' knowledge, the other parties thereto, in
accordance with its terms. To the best of the Company Parties' knowledge, all
other parties to the Company Agreements are in compliance with the terms
thereof in all material respects.
2.14. Brokers. The Company and the Shareholders have not employed or
-------
retained any broker, agent or finder on account of this Agreement or any of the
other Transaction Documents or the transactions contemplated hereby or thereby.
2.15. Bank Accounts. Schedule 2.15 sets forth a correct and complete
------------- -------------
list of the names and locations of all banks, trust companies, savings and loan
associations and other financial institutions at which the Company maintains
accounts of any nature, the type and number of all such accounts and the names
of all persons authorized to draw thereon or make withdrawals therefrom.
2.16. Personal Property.
-----------------
(a) Schedule 2.16 sets forth a correct and complete list of all
-------------
leases and other agreements pursuant to which the Company leases any equipment,
machinery, fixtures, vehicles, computer hardware or software or furniture
(collectively, the "Equipment").
---------
-8-
<PAGE>
(b) All Equipment owned or leased by the Company is in good repair
and operating condition, is suitable for the purposes for which it is used and
constitutes all Equipment necessary to conduct the Company's business as
currently conducted.
(c) All accounts receivable of the Company: (i) represent amounts
receivable for goods actually delivered or services actually provided (or, in
the case of non-trade receivables, represent amounts receivable in respect of
other bona fide business transactions), (ii) are not subject to any material
defenses, counterclaims or rights of setoff, (iii) have been billed and are
generally due and payable within 30 days after billing, and (iv) are fully
collectible in the ordinary course of business except, in the case of
receivables arising prior to the Financial Statement Date, to the extent of the
reserves set forth in the Current Financial Statements and, in the case of
receivables arising after such date, to the extent of a reasonable allowance for
bad debts.
2.17. Intellectual Property. Schedule 2.17 sets forth a correct and
--------------------- -------------
complete list of: (a) all patents, registered and unregistered trademarks,
service marks, logos, corporate and trade names and registered and common law
copyrights, and all applications therefor which are owned by or licensed to the
Company or are otherwise used by the Company in its business (the "Intellectual
Property"), (b) all licenses or other agreements pursuant to which any Person
has the right to use any Intellectual Property owned by the Company, (c) all
licenses or other agreements pursuant to which the Company has the right to use
any Intellectual Property owned by others, and (d) all consents which must be
obtained, all filings which must be made and all other actions which must be
taken in connection with the consummation of the transactions contemplated
hereby. The Company has the lawful right to use all of the Intellectual
Property, and no such use infringes upon the lawful rights of any other Person.
No Person is using any Intellectual Property in a manner which infringes upon
the lawful rights of the Company.
2.18. Title to Assets. The Company has (i) good and marketable title
---------------
to all assets purported to be owned by it and (ii) good leasehold title to all
assets purported to be leased by it, and the Shareholders have good and
marketable title to the Shares, in each case free and clear of all Liens. All
scheduled Liens will be removed on or prior to the Closing Date, other than
those marked as "Permitted Liens" on Schedule 2.18.
--------------- -------------
2.19. Personnel Matters.
-----------------
(a) Schedule 2.19 sets forth a correct and complete list of
-------------
employees employed by the Company as of the Closing Date
-9-
<PAGE>
(b) Except as otherwise disclosed on Schedule 2.19, the Company is
-------------
not a party to any employment, consulting or similar agreement, written or oral,
with any Person.
(c) Except as otherwise disclosed on Schedule 2.19, (i) no
--------------
employees of the Company are represented by any labor union or similar
organization, (ii) the Company is not party to any collective bargaining or
similar agreement covering any of its employees (each a "Labor Agreement"), and
(iii) no labor union or similar organization or group of employees has made a
demand for recognition, filed a petition seeking a representation proceeding or
given the Company notice of any intention to hold an election of a collective
bargaining representative at any time during the past three years.
(d) Except as otherwise disclosed on Schedule 2.19, (i) no strike,
-------------
work stoppage, contract dispute or other labor disturbance involving any
employees of the Company currently exists or, to the best of the Company
Parties' knowledge, is threatened and (ii) no investigation, action or
proceeding by or before any Governmental Person which relates to allegedly
unfair or discriminatory employment or labor practices or the violation of any
Governmental Rule relating to employment or labor practices is pending or, to
the best of the Company Parties' knowledge, threatened, and neither the Company
nor any Shareholder has any knowledge of any basis for any such investigation,
action or proceeding.
(e) Schedule 2.19 sets forth a true, correct and complete list of
-------------
all Pension Plans. For purposes of this Agreement, the term "Pension Plan" shall
------------
mean any plan maintained by the Company for the benefit of its employees, past
or present, to which the Seller has made, or was required to make, contributions
within the preceding five years, as any of the same may be amended. Except as
otherwise disclosed on Schedule 2.19:
-------------
(i) each Pension Plan has been established, maintained
and administered in all material respects in compliance with all applicable
Governmental Rules, including without limitation all minimum funding
requirements;
(ii) no Pension Plan has been terminated in whole or in
part, the Company does not intend to terminate any Pension Plan in whole or in
part, no proceeding has been commenced to terminate any Pension Plan in whole or
in part or to appoint a trustee to administer any Pension Plan, the Company has
received any notice of any such proceeding and the Company has no knowledge of
any basis for the commencement of any such proceeding;
2.20. Insurance. Schedule 2.20 sets forth a correct and complete
--------- -------------
list of all insurance policies of which the Company is the owner, insured, loss
payee or beneficiary and indicates for each such policy any pending claims
thereunder. Except
-10-
<PAGE>
as otherwise disclosed on Schedule 2.20: (a) there been no failure to give any
-------------
notice or present any material claim under any such policy in a timely fashion
or as otherwise required by such policy; (b) all premiums under such policies
which were due and payable on or prior to the date hereof have been paid in
full; (c) no such policy provides for retrospective or retroactive premium
adjustments; (d) the Company has not received notice of any material increase in
the premium under, cancellation or non-renewal of or disallowance of any claim
under any such policy; (e) the Company has not been refused any insurance, nor
has its coverage been limited by any carrier; and (f) since the Company has
maintained, or been the beneficiary of, general liability and product liability
policies reasonable, in both scope and amount, in light of the risks attendant
to its business and which provide coverage comparable to coverage customarily
maintained by others in similar lines of business, and such policies have been
"occurrence" policies and not "claims made" policies.
2.21 Intentionally Omitted
2.22. Real Property Leases. The Company owns no real property. Schedule
-------------------- --------
2.22 sets forth a correct and complete list of all leases, subleases, easements,
- ----
licenses and other agreements or rights pursuant to which the Company has the
right to occupy or use any real property owned by others (collectively, "Real
----
Property Leases"), together with the names of the lessors or other grantors
- ---------------
thereunder, the location of the property covered thereby, the annual rental or
other consideration payable thereunder and the duration thereof, including any
renewal options.
2.23. Transactions with Affiliates. Except as otherwise disclosed on
----------------------------
Schedule 2.23:
- -------------
(a) none of the customers, suppliers, distributors or sales
representatives of the Company are Affiliates of the Company;
(b) none of the properties or assets of the Company are owned or
used by or leased to any Affiliate of the Company;
(c) no Affiliate of the Company is a party to any agreement with the
Company; and
(d) no Affiliate of the Company provides any legal, accounting or
other services to the Company.
For purposes of this Agreement, the term "Affiliate" shall mean, with
---------
respect to any individual or entity (each being a "Person"), (a) any director,
------
officer, employee, partner or principal of such Person, (b) any other Person of
which such Person is a director, officer, employee, partner or principal, (c)
any Person who directly
-11-
<PAGE>
or indirectly controls or is controlled by, or is under common control with,
such Person and (d) with respect to any Person described above who is a natural
person, any blood relative of such person. (As used in this definition, the term
"control" shall mean, with respect to any Person, the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities, by
contract or otherwise.
2.24. Accurate Disclosure. None of the information furnished or to be
-------------------
furnished by the Company or any Shareholder to the Buyer or any of its
representatives in connection with this Agreement, and none of the
representations and warranties of the Company or the Shareholders set forth
herein, in any certificate or agreement delivered in connection herewith (a) is
or will be false or misleading, (b) contains or will contain any untrue
statement of a material fact or (c) omits or will omit any statement of material
fact necessary to make the same not misleading.
2.25. Termination of Liability. Buyer shall not make demand or bring suit
------------------------
for a breach of the representations and warranties in this Article after the
sixth anniversary of the Closing Date. This limitation shall in no way effect
the Company Parties' liability for any breach of a representation or warranty
for which the Company Parties had notice before the sixth anniversary of the
Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
-------------------------------------------
The Buyer hereby represents and warrants to the Company and the
Shareholders as follows:
3.01. Organization. The Buyer is a limited liability company duly
------------
organized and validly existing in the State of Delaware.
3.02. Authority and Authorization. The Buyer has the power and authority
---------------------------
to own its properties and assets, to conduct its business as presently conducted
and to execute, deliver and perform this Agreement and the other Transaction
Documents.
3.03. Execution and Binding Effect. This Agreement has been, and on
----------------------------
the Closing Date the other Transaction Documents will be, duly and validly
executed and delivered by the Buyer and constitute (or upon such execution and
delivery will constitute) legal, valid and binding obligations of the Buyer
enforceable against the Buyer in accordance with their respective terms.
-12-
<PAGE>
3.04. No Breach, Default, Violation or Consent. The execution,
----------------------------------------
delivery and performance by the Buyer of this Agreement and the other
Transaction Documents do not and will not:
(a) violate the Buyer's organizational documents;
(b) breach or result in a default (or an event which, with the giving
of notice or the passage of time, or both, would constitute a default) under,
require any consent under or give to others any rights of termination,
acceleration, suspension, revocation, cancellation or amendment of any contract,
agreement, instrument or document to which the Buyer is a party or by which the
Buyer or any of its properties or assets is bound;
(c) breach or otherwise violate any Governmental Order which names the
Buyer or is directed to the Buyer or any of its properties or assets;
(d) violate any Governmental Rule; or
(e) require any consent, authorization, approval, exemption or other
action by, or any filing, registration or qualification with, any Person.
3.05. Brokers. The Buyer has not employed or retained, and has no
-------
liability to, any broker, agent or finder on account of this Agreement or any of
the other Transaction Documents or the transactions contemplated hereby or
thereby.
3.04 Termination of Liability. In no event shall the Company or the
------------------------
Shareholders make a demand or bring suit in any court for any breach of the
representations and warranties in this Article after the fifth anniversary of
the Closing Date.
ARTICLE IV
TRANSACTIONS PRIOR TO CLOSING
-----------------------------
4.01. Conduct of Business Prior to Closing. At all times prior to
------------------------------------
the Closing Date, the Company shall:
(a) operate its business only in the ordinary course and consistent
with past practice;
(b) use its best efforts to preserve its business organization intact,
to keep available to the Buyer the services of its present officers and
employees and to preserve for the Buyer the good will of customers, suppliers
and others having business relations with the Company;
-13-
<PAGE>
(c) maintain its equipment and machinery in good repair and operating
condition, ordinary wear and tear excepted;
(d) maintain in full force and effect all Company's permits and
insurance policies;
(e) not enter into any contract or commitment except those made in the
ordinary course of business the terms of which are consistent with past practice
and reasonable in light of current conditions;
(f) not terminate, cause the termination of, amend, renew or extend
any Company Agreement unless in each case such action is in the best interest of
the Company;
(g) not waive or release any of its rights or permit any of its rights
to lapse;
(h) not sell, transfer or otherwise dispose of any of its assets or
any interest therein or agree to do any of the foregoing, except for sales of
inventory in the ordinary course of business;
(i) not incur, make, assume or suffer to exist any Lien, tenancy or
other matter affecting title to any of its assets;
(j) not make, change or revoke any tax election or make any agreement
or settlement with any taxing authority;
(k) not merge or consolidate the Company with or into any other entity
or agree to do any of the foregoing;
(l) not incur any indebtedness other than trade payables incurred in
the ordinary course of business, and not guarantee any indebtedness or other
obligations of any other Person;
(m) not grant or commit itself to grant any salary or wage increases
to any of its employees, and not pay bonuses other than in accordance with its
normal practice;
(n) not make or commit itself to make any capital expenditures in
excess of US$150,000, exclusive of the Tele8 Transaction;
-14-
<PAGE>
(o) not issue or sell any of its capital stock or other securities,
not declare or pay any dividends or other distributions in respect of any of its
capital stock and not agree to do any of the foregoing;
(p) comply with applicable Governmental Rules in all material
respects;
(q) take no action, and use its best efforts to prevent the occurrence
of any event or the existence of any condition, which would result in any of the
Company's representations and warranties herein not being true and correct; and
(r) promptly inform the Buyer of the occurrence of any event or the
existence of any condition which constitutes or, with the giving of notice or
the passage of time, or both, is likely to constitute, a Material Adverse
Change.
4.02. Conduct of the Shareholders Prior to Closing. At all times
--------------------------------------------
prior to the Closing Date, the Shareholders shall:
(a) not sell, transfer or otherwise dispose of any of the Stock or any
interest therein, and not agree to do any of the foregoing;
(b) not accept any dividend or other distribution in respect of any of
the Stock;
(c) not incur, make, assume or suffer to exist any Lien or other
matter affecting title to any of the Stock;
(d) not enter into any shareholder agreements, voting trusts,
restrictions on transfer or other agreements or instruments which would be
binding on the Buyer as the owner of the Stock; and
(e) take no action, and use their best efforts to prevent the
occurrence of any event or the existence of any condition, which could result in
any of the Company's or the Shareholders' representations and conditions herein
not being true and correct.
4.03. Access to Information. At all times prior to the Closing Date,
---------------------
the Company shall furnish to the Buyer and its employees, counsel, accountants
and other agents and consultants (a) full access during normal business hours to
the properties, books and records and personnel of the Company relating to the
Company's business or the assets and properties of the Company and (b) all such
information concerning the Company's business or the Assets as any of them may
reasonably request.
-15-
<PAGE>
4.04. Best Efforts. The parties agree to use their reasonable best
------------
efforts to take or cause to be taken and to do or cause to be done all such
actions and things as shall be necessary or advisable, or as shall be reasonably
requested by the other party, in order to consummate the transactions
contemplated hereby and by the other Transaction Documents. Without limiting
the generality of the foregoing, the parties agree to take all reasonable
actions necessary in order to obtain any consent or approval of any third party,
including without limitation any governmental entity, which is required in
connection with this Agreement or the other Transaction Documents or any of the
transactions contemplated hereby or thereby.
ARTICLE V
CLOSING AND CLOSING CONDITIONS
------------------------------
5.01. Closing. The closing of the transactions contemplated hereby
-------
(the "Closing") shall take place at 3:00pm, local time, on April 27, 1998 at the
-------
offices of FaciliCom International, L.L.C., or at such other time or place, or
on such other date mutually agreeable to the parties hereto. The date on which
the Closing occurs is referred to herein as the "Closing Date".
------------
5.02. Conditions Precedent to Obligations of the Buyer. The obligations
------------------------------------------------
of the Buyer hereunder to proceed with the Closing shall be subject to the
satisfaction by the Company Parties on or prior to the Closing Date of each of
the following conditions precedent:
(a) Accuracy of Representations and Warranties. The
------------------------------------------
representations and warranties of the Company Parties set forth herein shall be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of such date.
(b) Performance and Compliance. The Company Parties shall have
--------------------------
performed or complied in all material respects with each covenant and agreement
to be performed or complied with by them hereunder on or prior to the Closing
Date.
(c) Consents and Approvals. The Company shall have obtained or
----------------------
made each consent, authorization, approval, exemption, filing, registration or
qualification, if any, listed on any Schedule hereto.
(d) Litigation. There shall be no pending or threatened action
----------
by or before any governmental entity or arbitrator seeking to restrain, prohibit
or invalidate any of the transactions contemplated hereby or by any of the other
Transaction Documents or seeking monetary relief against the Buyer by reason of
the
-16-
<PAGE>
consummation of such transactions, and there shall not be in effect any
Governmental Order which has such effect.
(e) Material Adverse Change. No event shall have occurred and no
-----------------------
condition shall exist which constitutes or, with the giving of notice or the
passage of time, or both, is likely to constitute, a Material Adverse Change.
(f) Opinion of Counsel. The Company Parties shall have delivered
------------------
to the Buyer an opinion of their counsel dated the Closing Date and in form and
substance reasonably satisfactory to the Buyer and its counsel with respect to
the matters in Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.11, and 2.12 and such
other matters as the Buyer or its counsel may reasonably request.
(g) Other Transaction Documents. The Company and the Shareholders
---------------------------
shall have executed and delivered to the Buyer the Escrow Agreement and such
other documents and instruments, in form and substance satisfactory to the Buyer
and its counsel, as shall be necessary or desirable in order to consummate the
transactions contemplated hereby, each dated the Closing Date (together with
this Agreement the "Transaction Documents").
---------------------
(h) Share Certificates. The Shareholders shall have delivered to
------------------
the Buyer the certificates evidencing the Shares, duly endorsed for transfer in
blank.
5.03. Conditions Precedent to Obligations of the Company Parties. The
----------------------------------------------------------
obligations of the Company Parties hereunder to proceed with the Closing shall
be subject to the satisfaction by the Buyer on or prior to the Closing Date of
each of the following conditions precedent:
(a) Accuracy of Representations and Warranties. The representation
------------------------------------------
and warranties of the Buyer set forth herein shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though made on and as of such date.
(b) Performance and Compliance. The Buyer shall have performed or
--------------------------
complied in all material respects with each covenant and agreement to be
performed or complied with by it hereunder on or prior to the Closing Date.
(c) Consents and Approvals. The Buyer shall have obtained or made
----------------------
each consent, authorization, approval, exemption, filing, registration or
qualification, if any, listed on any Schedule hereto.
(d) Litigation. There shall be no pending or threatened action
----------
by or before any governmental entity or arbitrator seeking to restrain, prohibit
or invalidate
-17-
<PAGE>
any of the transactions contemplated hereby or by any of the other Transaction
Documents or seeking monetary relief against any Company Party by reason of the
consummation of such transactions, and there shall not be in effect any
Governmental Order which has such effect.
(e) Opinion of Counsel. The Buyer shall have delivered to the
------------------
Company Parties an opinion of the Buyer's counsel dated the Closing Date and in
form and substance reasonably satisfactory to the Company Parties and their
counsel with respect to the matters in Sections 3.01, 3.02, 3.03 and 3.04 and
such other matters as the Company Parties or their counsel may reasonably
request.
(f) Other Transaction Documents. The Buyer shall have executed and
---------------------------
delivered to the Company Parties the Escrow Agreement and such other documents
and instruments, in form and substance satisfactory to the Company Parties and
their counsel, as shall be necessary or desirable in order to consummate the
transactions contemplated hereby, each dated the Closing Date (together with
this Agreement the "Transaction Documents").
(g) Purchase Price. The Buyer shall have delivered to the
--------------
Shareholders the Purchase Price not subject to the Escrow Agreement.
ARTICLE VI
INDEMNIFICATION
---------------
6.01. Indemnification by the Company Parties. The Company (if the
--------------------------------------
Closing does not occur) or the Shareholders (if the Closing occurs) shall
defend, indemnify and hold harmless the Buyer and its directors, officers,
employees and agents (each a "Company Indemnitee") from and against any and all
------------------
claims, damages, losses, liabilities, costs and expenses (including without
limitation reasonable attorneys' fees and court costs) that constitute, or arise
out of or in connection with:
(a) any representation or warranty of the Company Parties set forth
herein, in any other Transaction Document or in any certificate delivered in
connection herewith or therewith having been false or misleading in any material
respect as of the time when made (including by omission of material information
necessary to make such representation or warranty not misleading);
(b) any default by the Company Parties in the performance or
observance of any of their covenants or agreements hereunder or under any other
Transaction Document;
-18-
<PAGE>
(c) any investigation by any governmental entity which arises out of
the conduct of the Company's business prior to the Closing Date; and
(d) the involvement by any Company Indemnitee in any investigation,
action or other proceeding incident to any of the other matters indemnified
against.
6.02. Indemnification by the Buyer. The Buyer shall defend, indemnify
----------------------------
and hold harmless the Company and its directors, officers, employees and agents
and the Shareholders (each a "Buyer Indemnitee") from and against any
----------------
and all claims, damages, losses, liabilities, costs and expenses (including
without limitation reasonable attorneys' fees and court costs) that constitute,
or arise out of or in connection with:
(a) any representation or warranty of the Buyer set forth herein,
in any other Transaction Document or in any certificate delivered in connection
herewith or therewith having been false or misleading in any material respect as
of the time when made (including by omission of material information necessary
to make such representation or warranty not misleading);
(b) any default by the Buyer in the performance or observance of
any of its covenants or agreements hereunder or under any other Transaction
Document;
(c) any investigation by any governmental entity which arises out
of the conduct of the Company's business after the Closing Date; or
(d) the involvement by any Buyer Indemnitee in any investigation,
action or other proceeding incident to any of the other matters indemnified
against.
6.03. Representation, Settlement and Cooperation. If any
------------------------------------------
investigation, action or other proceeding described in Section 6.01(d) or
6.02(d) (each a "Proceeding") is initiated against any the Company Indemnitee or
----------
Buyer Indemnitee (each an "Indemnitee") and such Indemnitee intends to seek
----------
indemnification from the Company or the Buyer (each an "Indemnitor"), as
----------
applicable, under this Article on account of its involvement in such Proceeding,
then such Indemnitee shall give prompt notice to the applicable Indemnitor of
such Proceeding; provided, that the failure to so notify such Indemnitor shall
not relieve such Indemnitor of its obligations under this Article, but shall
reduce such obligations by the amount of damages or increased costs and expenses
attributable to such failure to give notice. Upon receipt of such notice, such
Indemnitor shall diligently defend against such Proceeding on behalf of such
Indemnitee at its own expense using counsel reasonably acceptable to such
Indemnitee; provided, that if such Indemnitor shall fail or refuse to conduct
such defense, or such Indemnitee has been advised by counsel that it may have
defenses available to it which are different from or in addition to those
available to such Indemnitor, or that its interests in such Proceeding are
adverse to such Indemnitor's interests, then such
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<PAGE>
Indemnitee may defend against such Proceeding at such Indemnitor's expense. Such
Indemnitor or Indemnitee, as applicable, may participate in any Proceeding being
defended against by the other at its own expense, and shall not settle any
Proceeding without the prior consent of the other, which consent shall not be
unreasonably withheld. Such Indemnitor and Indemnitee shall cooperate with each
other in the conduct of any such Proceeding.
6.04. Notice and Satisfaction of Indemnification Claims. No indemnification
-------------------------------------------------
claim shall be deemed to have been asserted until the applicable Indemnitor has
been given notice by the Indemnitee of the amount of such claim and the facts on
which such claim is based. If a Company Indemnitee is not the Buyer, then such
notice shall be given on behalf of such Indemnitee by the Buyer. Indemnification
claims shall be paid within 30 days after the Indemnitor's receipt of such
notice and such evidence of the amount of such claim and the Indemnitor's
liability therefor as the Indemnitor may reasonably request.
6.05. Indemnification Threshold. Notwithstanding any other
--------------------------
provision hereof, no Indemnitor shall have any indemnification obligations under
this Article unless and until the claims asserted against such Indemnitor exceed
US$10,000 in the aggregate (the "Threshold Amount"); thereafter, such Indemnitor
----------------
shall be liable for all indemnification claims properly asserted against it,
including those comprising the Threshold Amount.
6.06. Other Limitations on Indemnification Provisions.
-----------------------------------------------
(a) Any payment made by an Indemnitor to an Indemnitee pursuant to
this Article VI in respect of any claim (i) shall be net of any insurance
proceeds realized by and paid to the Indemnitee in respect of such claim and
(ii) shall be reduced by an amount equal to any tax benefits realized by the
Indemnitee which are attributable to such claim.
(b) Each Person entitled to indemnification hereunder shall take all
reasonable steps to mitigate all losses, costs, expenses and damages after
becoming aware of any event which could reasonably be expected to give rise to
any losses, cost, expenses and damages that are indemnifiable or recoverable
hereunder or in connection herewith.
6.07. Buyer Indemnification of DZL.
----------------------------
(a) Notwithstanding the provisions of this Article VI, Buyer shall
indemnify DZL to the extent DZL is required to make any payment with respect to
the obligations of the Company guaranteed by DZL as identified on Schedule 6.07.
--------------
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<PAGE>
(b) Buyer shall, within sixty (60) days of the Closing Date, use its
best efforts to cause the Company's creditors on the contracts listed on
Schedule 6.07 to release DZL and/or DZL's property, as the case may be, from any
- -------------
obligation he may have thereunder; provided, however, Buyer shall not be
-------- -------
obligated to post any security or bond to secure such release of DZL or DZL's
property in excess of US$75,000 (the "Bond Limitation") The Bond Limitation
---------------
will not apply to the extent Buyer is required to post bond or provide security
in respect of the Credit Line.
ARTICLE VII
MISCELLANEOUS PROVISIONS
------------------------
7.01. Amendments. This Agreement may be amended only by a writing
----------
signed by each of the parties, and any such amendment shall be effective only to
the extent specifically set forth in such writing.
7.02. Assignment. Neither this Agreement nor any right, interest or
----------
obligation hereunder may be assigned, pledged or otherwise transferred by any
party, whether by operation of law or otherwise, without the prior consent of
the other party or parties.
7.03. Confidentiality.
---------------
(a) As used in this Section the "Confidential Information" of a party
------------------------
shall mean all information concerning or related to the business, operations,
financial condition or prospects of such party or any of its Affiliates,
regardless of the form in which such information appears and whether or not such
information has been reduced to a tangible form, and shall specifically include
(i) all information regarding the officers, directors, employees, equity
holders, customers, suppliers, distributors, sales representatives and licensees
of such party and its Affiliates, in each case whether present or prospective,
(ii) all inventions, discoveries, trade secrets, processes, techniques, methods,
formulae, ideas and know-how of such party and its Affiliates and (iii) all
financial statements, audit reports, budgets and business plans or forecasts of
such party and its Affiliates; provided, that the Confidential Information of a
party shall not include (A) information which is or becomes generally known to
the public through no act or omission of the other party and (B) information
which has been or hereafter is lawfully obtained by the other party from a
source other than the party to whom such Confidential Information belongs (or
any of its Affiliates or their respective officers, directors, employees, equity
holders or agents) so long as, in the case of information obtained from a third
party, such third party was or is not, directly or indirectly, subject to an
obligation of confidentiality owed to the party to whom such Confidential
Information belongs or any of its Affiliates at the time such Confidential
Information was or is disclosed to the other party.
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(b) Except as otherwise permitted by subsection (c) below, each
party agrees that it will not, without the prior written consent of the other
party, disclose or use for its own benefit any Confidential Information of the
other party.
(c) Notwithstanding subsection (b) above, each of the parties shall
be permitted to:
(i) disclose Confidential Information of the other party to
its officers, directors, employees, equity holders, lenders, agents and
Affiliates, but only to the extent reasonably necessary in order for such party
to perform its obligations and exercise its rights and remedies under this
Agreement, and such party shall take all such action as shall be necessary or
desirable in order to ensure that each of such Persons maintains the
confidentiality of any Confidential Information that is so disclosed;
(ii) make additional disclosures of or use for its own benefit
Confidential Information of the other party, but only if and to the extent that
such disclosures or use are specifically contemplated by this Agreement; and
(iii) disclose Confidential Information of the other party to
the extent, but only to the extent, required by Governmental Rules; provided,
that prior to making any disclosure pursuant to this subparagraph, the party
required to make such disclosure (the "Disclosing Party") shall notify the other
----------------
party (the "Affected Party") of the same, and the Affected Party shall have the
--------------
right to participate with the Disclosing Party in determining the amount and
type of Confidential Information of the Affected Party, if any, which must be
disclosed in order to comply with Governmental Rules.
7.04. Counterparts; Telefacsimile Execution. This Agreement may be
-------------------------------------
executed in any number of counterparts, and by each of the parties on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all of which shall constitute but one and the same instrument. Delivery of an
executed counterpart of this Agreement by telefacsimile shall be equally as
effective as delivery of a manually executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile also
shall deliver a manually executed counterpart of this Agreement, but the failure
to deliver a manually executed counterpart shall not affect the validity,
enforceability or binding effect of this Agreement.
7.05. Entire Agreement. This Agreement contains the entire agreement
----------------
of the parties with respect to the transactions contemplated hereby and
supersedes all prior written and oral agreements, and all contemporaneous oral
agreements, relating to such transactions.
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<PAGE>
7.06. Expenses. Except as otherwise specifically provided herein or
--------
in any other Transaction Document, each party shall be responsible for such
expenses as it may incur in connection with the negotiation, preparation,
execution, delivery, performance and enforcement of this Agreement and the other
Transaction Documents.
7.07. Further Assurances. The parties shall from time to time do and
------------------
perform such additional acts and execute and deliver such additional documents
and instruments as may be required by applicable Governmental Rules or
reasonably requested by any party to establish, maintain or protect its rights
and remedies or to effect the intents and purposes of this Agreement and the
other Transaction Documents. With limiting the generality of the foregoing,
each party agrees to endorse (if necessary) and deliver to the other, promptly
after its receipt thereof, any payment or document which it receives after the
Closing Date and which is the property of the other.
7.08. Governing Law. This Agreement shall be a contract under the
-------------
laws of the Commonwealth of Pennsylvania and for all purposes shall be governed
by and construed and enforced in accordance with said laws.
7.09. Notices. Unless otherwise specifically provided herein, all
-------
notices, consents, requests, demands and other communications required or
permitted hereunder:
(a) shall be in writing;
(b) shall be sent by messenger, certified or registered U.S. mail,
a reliable express delivery service or telecopier (with a copy sent by one of
the foregoing means), charges prepaid as applicable, to the appropriate
address(es) or number(s) set forth below; and
(c) shall be deemed to have been given on the date of receipt by
the addressee (or, if the date of receipt is not a business day, on the first
business day after the date of receipt), as evidenced by (i) a receipt executed
by the addressee (or a responsible person in his or her office), the records of
the Person delivering such communication or a notice to the effect that such
addressee refused to claim or accept such communication, if sent by messenger,
U.S. mail or express delivery service, or (ii) a receipt generated by the
sender's telecopier showing that such communication was sent to the appropriate
number on a specified date, if sent by telecopier.
All such communications shall be sent to the following addresses or numbers, or
to such other addresses or numbers as any party may inform the others by giving
five business days' prior notice:
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If to the Company Parties: With a copy to:
Oy Teleykkonen AB Petrik Obstbaum
Vilhonvuorenkatu 11 A Uudenmaank 25 A
00500 Helsinki, Finland 00120 Helsinki, Finland
Attn: Dan Zwi Liebkind and
Mika Ruben Liebkind Telecopier No.: 011-358-9-607686
Telecopier No.: 011-358-9-689-6766
If to the Buyer: With a copy to:
FaciliCom International, L.L.C. Cohen & Grigsby, P.C.
1401 New York Avenue, N.W. - 8th Floor 2900 CNG Tower
Washington, D.C. 20005 625 Liberty Avenue
Attn: Walter Burmeister Pittsburgh, PA 15222
Telecopier No.: (202) 496-1109 Attn: Henry C. Cohen
Telecopier No.: (412) 391-3382
7.10. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
7.11. Successors and Assigns. This Agreement shall be binding upon
----------------------
and shall inure to the benefit of each of the parties and their respective
heirs, successors and permitted assigns.
7.12. Termination.
-----------
(a) This Agreement may be terminated at any time prior to the
Closing:
(i) by mutual agreement of the Buyer and the Company Parties;
(ii) by the Buyer if there has been a material
misrepresentation by the Company Parties hereunder, a material breach by the
Company Parties of any of their warranties or covenants set forth herein or if
any of the conditions specified in Section 5.02 shall not have been fulfilled
within the time required and shall not have been waived by the Buyer; or
(iii) by the Company Parties if there has been a
misrepresentation by the Buyer hereunder, a material breach by the Buyer of any
of its
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<PAGE>
warranties or covenants set forth herein or if any of the conditions specified
in Section 5.03 shall not have been fulfilled within the time required and shall
not have been waived by the Company.
(b) If this Agreement is terminated by either the Company Parties
or the Buyer as provided above, then neither party shall have any further
obligations or liabilities hereunder except for obligations or liabilities
arising from a breach of this Agreement prior to such termination or which
survive such termination by their own terms.
7.13. Waivers. The due performance or observance by the parties of
-------
their respective obligations hereunder and under the other Transaction Documents
shall not be waived, and the rights and remedies of the parties hereunder and
under the other Transaction Documents shall not be affected, by any course of
dealing or performance or by any delay or failure of any party in exercising any
such right or remedy. The due performance or observance by a party of any of
its obligations hereunder or under any other Transaction Document may be waived
only by a writing signed by the party against whom enforcement of such waiver is
sought, and any such waiver shall be effective only to the extent specifically
set forth in such writing.
IN WITNESS WHEREOF, the parties, hereto, intending to be legally bound,
have executed this Agreement as of the date first hereinabove written.
FACILICOM INTERNATIONAL, L.L.C.
By:
---------------------------------
Title:
------------------------------
OY TELEYKKONEN AB
By:
---------------------------------
Title:
------------------------------
SHAREHOLDERS
-------------------------------------
Dan Zwi Liebkind
-------------------------------------
Mika Ruben Liebkind
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