U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
[X] Quarterly report under to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 30, 1999
[ ] Transition report under to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transitional period from to
Commission File Number 0-24622
TELSCAPE INTERNATIONAL, INC.
(Exact name of Small Business Issuer as specified in its charter)
TEXAS 75-2433637
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification number)
2700 POST OAK BLVD., SUITE 1000, HOUSTON, TEXAS 77056
(Address of principal executive offices) (Zip Code)
Issuer's telephone number including area code -- 713/968-0968
----------------------------------------------------------------
(Former name, former address and former fiscal year if changed since
last report)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for
such shorter period that the Registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
7,002,458 shares of Registrant's common stock ($.001 Par Value) were outstanding
as of August 12, 1999.
<PAGE>
Telscape International, Inc.
Table of Contents
Form 10-Q
June 30, 1999
PAGE
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets -
As of December 31, 1998 and June 30, 1999 (unaudited) ......... 1
Unaudited Condensed Consolidated Statements of Operations -
Three Months and Six Months Ended June 30, 1998 and 1999 ...... 2
Unaudited Condensed Consolidated Statements of Cash Flows -
Six Months Ended June 30, 1998 and 1999 ....................... 3
Notes to Unaudited Condensed Consolidated Financial Statements. 5
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations ................. 11
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K .............................. 25
(a) Exhibits .................................................
(b) Reports on Form 8-K ......................................
Signatures ............................................................ 26
<PAGE>
TELSCAPE INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1998 1999
------------ ------------
(unaudited)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents ....................................... $ 9,631,000 $ 5,044,000
Accounts receivable, less allowance for doubtful
accounts of $275,000 and $425,000 (unaudited), respectively ... 14,387,000 14,741,000
Inventories ..................................................... 4,581,000 4,534,000
Prepaid expenses and other ...................................... 3,519,000 5,796,000
Deferred income taxes ........................................... 628,000 571,000
------------ ------------
Total current assets ........................................ 32,746,000 30,686,000
PROPERTY AND EQUIPMENT, net of accumulated depreciation ........... 14,576,000 20,585,000
GOODWILL AND OTHER INTANGIBLES, net of accumulated amortization ... 31,416,000 30,221,000
OTHER ASSETS ...................................................... 1,593,000 3,117,000
------------ ------------
Total assets ........................................ $ 80,331,000 $ 84,609,000
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable ................................................ $ 22,090,000 $ 19,737,000
Accrued expenses ................................................ 10,182,000 10,729,000
Current portion of notes payable and capital lease obligations .. 2,714,000 10,544,000
Convertible debentures .......................................... 4,996,000 --
------------ ------------
Total current liabilities ................................... 39,982,000 41,010,000
NOTES PAYABLE AND CAPITAL LEASE OBLIGATIONS, net of current portion 1,488,000 8,647,000
CONVERTIBLE SUBORDINATED DEBENTURES ............................... 3,935,000 1,394,000
MINORITY INTERESTS ................................................ -- --
COMMITMENTS AND CONTINGENCIES ..................................... -- --
STOCKHOLDERS' EQUITY:
Preferred stock, $.001 par value, 5,000,000 shares
authorized; without defined preference rights ................. -- --
Series A preferred stock, $.001 par value, 1,000,000
shares authorized ............................................. -- --
Common stock, $.001 par value, 25,000,000 shares authorized;
6,048,909 and 6,802,811 issued, respectively .................. 6,000 7,000
Additional paid-in capital ...................................... 39,398,000 44,146,000
Accumulated deficit ............................................. (3,881,000) (9,823,000)
Treasury stock .................................................. (480,000) (480,000)
Capital subscriptions receivable ................................ (117,000) (292,000)
------------ ------------
Total stockholders' equity .......................... 34,926,000 33,558,000
------------ ------------
Total liabilities and stockholders' equity .......... $ 80,331,000 $ 84,609,000
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
1
<PAGE>
TELSCAPE INTERNATIONAL, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------------------ ------------------------------
1998 1999 1998 1999
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
REVENUES ................................................... $ 32,378,000 $ 29,709,000 $ 65,777,000 $ 56,728,000
COST OF REVENUES ........................................... 28,598,000 25,155,000 57,056,000 49,259,000
------------ ------------ ------------ ------------
GROSS PROFIT ............................................... 3,780,000 4,554,000 8,721,000 7,469,000
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES ............... 3,552,000 5,166,000 5,705,000 9,388,000
------------ ------------ ------------ ------------
OPERATING INCOME (LOSS) BEFORE DEPRECIATION AND
AMORTIZATION ............................................ 228,000 (612,000) 3,016,000 (1,919,000)
DEPRECIATION AND AMORTIZATION .............................. 689,000 1,659,000 1,258,000 3,037,000
------------ ------------ ------------ ------------
OPERATING INCOME (LOSS) .................................... (461,000) (2,271,000) 1,758,000 (4,956,000)
OTHER INCOME (EXPENSE):
Interest income .......................................... 54,000 51,000 91,000 122,000
Interest expense and amortization of deferred costs ...... (248,000) (1,835,000) (342,000) (2,787,000)
Foreign exchange loss .................................... (65,000) (45,000) (187,000) (105,000)
Other, net ............................................... 48,000 (253,000) 96,000 (467,000)
------------ ------------ ------------ ------------
Total other expense, net ........................ (211,000) (2,082,000) (342,000) (3,237,000)
------------ ------------ ------------ ------------
INCOME (LOSS) BEFORE INCOME TAXES AND
MINORITY INTERESTS ...................................... (672,000) (4,353,000) 1,416,000 (8,193,000)
INCOME TAX BENEFIT (EXPENSE) ............................... 68,000 1,275,000 (895,000) 2,251,000
------------ ------------ ------------ ------------
INCOME (LOSS) BEFORE MINORITY INTERESTS .................... (604,000) (3,078,000) 521,000 (5,942,000)
MINORITY INTERESTS IN SUBSIDIARIES ......................... (18,000) -- (29,000) --
============ ============ ============ ============
NET INCOME (LOSS) .......................................... $ (622,000) $ (3,078,000) $ 492,000 $ (5,942,000)
============ ============ ============ ============
EARNINGS (LOSS) PER SHARE:
Basic .................................................... $ (0.13) $ (0.47) $ 0.11 $ (0.93)
Diluted (1) .............................................. $ n/a n/a $ 0.06 $ n/a
WEIGHTED AVERAGE SHARES OUTSTANDING:
Basic .................................................... 4,692,984 6,568,848 4,534,568 6,370,975
Diluted(1) ............................................... n/a n/a 7,778,072 n/a
</TABLE>
(1) Inclusion of additional shares under a diluted analysis for the three
months ended June 30, 1998 and June 30, 1999 and the six months ended June
30, 1999 is inappropriate due to the anti-dilutive effect.
The accompanying notes are an integral part of these financial statements.
2
<PAGE>
TELSCAPE INTERNATIONAL, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
------------------------------
1998 1999
------------ ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) ........................................... $ 492,000 $ (5,942,000)
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Provision for doubtful accounts ............................. 556,000 150,000
Depreciation and amortization ............................... 1,258,000 3,037,000
Interest accrued on non-interest bearing notes payable
and amortization of debt offering costs ................... 142,000 467,000
Charges incurred on refinancing of operating lease .......... -- 327,000
Expenses incurred related to warrants issued to third parties -- 72,000
Deferred income taxes ....................................... 422,000 (1,501,000)
Minority interest in subsidiaries' income (loss) ............ 29,000 --
Equity in income from unconsolidated subsidiary ............. 49,000 67,000
Changes in assets and liabilities:
Accounts receivable ....................................... (4,957,000) (504,000)
Inventories ............................................... 1,292,000 47,000
Prepaid and other assets .................................. (3,210,000) (1,890,000)
Accounts payable .......................................... 4,007,000 2,353,000
Accrued expenses .......................................... 361,000 547,000
------------ ------------
Net cash provided by (used in) operating activities ........... 441,000 (2,770,000)
------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment ......................... (5,696,000) (5,089,000)
Acquisition of MSN, net of cash acquired .................... (2,325,000) --
Acquisition of INTERLINK, net of cash acquired .............. (8,250,000) --
------------ ------------
Net cash used in investing activities ......................... (16,271,000) (5,089,000)
============ ============
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on capital lease obligations ....................... (46,000) (88,000)
Payments on notes payable ................................... (444,000) (1,134,000)
Purchase of treasury shares ................................. (332,000) --
Payments/borrowings on line of credit, net .................. 1,948,000 (688,000)
Proceeds from exercise of options and warrants .............. 4,909,000 358,000
Proceeds from sales of common stock ......................... -- 1,974,000
Payments on convertible debt ................................ -- (6,000,000)
Proceeds from bridge loans .................................. -- 8,850,000
Proceeds from issuance of convertible debt .................. 10,000,000 --
------------ ------------
Net cash provided by financing activities ..................... 16,035,000 3,272,000
------------ ------------
Net increase (decrease) in cash and cash equivalents .......... 205,000 (4,587,000)
------------ ------------
Cash and cash equivalents at beginning of period .............. 4,734,000 9,631,000
------------ ------------
Cash and cash equivalents at end of period .................... $ 4,939,000 $ 5,044,000
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
TELSCAPE INTERNATIONAL, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
-------------------------
1998 1999
---------- ----------
<S> <C> <C>
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Interest paid ....................................... $ 105,000 $1,841,000
Income taxes paid ................................... 600,000 506,000
NON-CASH TRANSACTIONS:
Issuance of common stock and promissory notes in
connection with acquisition of MSN:
Promissory Notes ................................ 672,000 --
Common Stock .................................... 880,000 --
Issuance of warrants in connection with financings
and to other third parties ........................ 537,000 658,000
Issuance of common stock in connection with conversion
of convertible debentures .......................... -- 1,584,000
Financing of equipment purchased through notes payable -- 5,081,000
Refinancing of operating lease ...................... -- 2,554,000
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
TELSCAPE INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
NOTE 1 - FINANCIAL STATEMENTS
The accompanying unaudited condensed consolidated financial statements
include the accounts of Telscape International, Inc. and its subsidiaries
(collectively, the "Company"). The unaudited condensed consolidated financial
statements of the Company for the three and six months ended June 30, 1998 and
June 30, 1999 have been prepared without an audit pursuant to the rules and
regulations of the Securities and Exchange Commission. They do not include all
of the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, all
adjustments, which consist of normal recurring adjustments, considered necessary
to present fairly the financial position, results of operations and cash flows
for all periods presented have been made. Operating results for the three and
six months ended June 30, 1999 are not necessarily indicative of the results
that may be expected for the year ending December 31, 1999. For further
information, refer to the consolidated financial statements and footnotes
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1998.
MANAGEMENT'S ESTIMATES AND ASSUMPTIONS
The accompanying financial statements are prepared in conformity with
generally accepted accounting principles which require management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reported period. The Company reviews all significant estimates
affecting the financial statements on a recurring basis and records the effect
of any necessary adjustments prior to their issuance. The actual results could
differ from those estimates.
CONCENTRATION OF RISK - MEXICO
The devaluation of the Mexican peso in late 1994 caused Mexico to experience
an economic crisis characterized by exchange rate instability, increased
inflation, high domestic interest rates, reduced consumer purchasing power and
high unemployment. Consequently, the Mexican government has exercised, and
continues to exercise, significant influence over the Mexican economy.
Accordingly, Mexican governmental actions could have a significant effect on
Mexican companies, including the Company's customers, and overall market
conditions.
The Company's foreign currency risk is mitigated in Mexico due to the fact
that many of the Company's customers are multinational firms that pay in U.S.
dollars. In addition, most of the customers that do pay in pesos pay at the spot
exchange rate in effect at the time of payment as opposed to the exchange rate
at the time the receivable is created. Nevertheless, significant adverse effects
from any downturns in the Mexican economy could result in an adverse effect on
the Company's operations. The Company also has a significant amount of its
payables denominated in pesos, which exposes the Company to exchange rate risk.
During the first six months of 1999, the peso exchange rate to the U.S. dollar
strengthened, resulting in the Company incurring higher costs in its
international long distance segment.
5
<PAGE>
NEW ACCOUNTING STANDARDS
SFAS No. 133, "ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES,"
requires companies to recognize all derivatives contracts as either assets or
liabilities in the balance sheet and to measure them at fair value. If certain
conditions are met, a derivative may be specifically designated as a hedge, the
objective of which is to match the timing of gain or loss recognition on the
hedging derivative with the recognition of (i) the changes in the fair value of
the hedged asset or liability that are attributable to the hedged risk or (ii)
the earnings effect of the hedged forecasted transaction. For a derivative not
designated as a hedging instrument, the gain or loss is recognized in income in
the period of change. SFAS No. 133 is effective for all fiscal quarters of
fiscal years beginning after June 15, 1999.
Historically, the Company has not entered into derivatives contracts either
to hedge existing risks or for speculative purposes. The Company does not expect
adoption of the new standard to have a material effect on its financial
statements.
SOP 98-5, "REPORTING ON THE COSTS OF START-UP ACTIVITIES," requires all
start-up and organizational costs to be expensed as incurred. It also requires
all remaining historically capitalized amounts of these costs existing at the
date of adoption to be expensed and reported as the cumulative effect of a
change in accounting principles. SOP 98-5 is effective for all fiscal years
beginning after December 31, 1998. The adoption of SOP 98-5 did not have a
material effect on its financial statements.
SFAS No. 135, "RESCISSION OF FINANCIAL ACCOUNTING STANDARDS BOARD NO. 75
("SFAS NO. 75") AND TECHNICAL CORRECTIONS," rescinds SFAS No. 75 and amends
Statement of Financial Accounting Standards Board No. 35. SFAS No. 135 also
amends other existing authoritative literature to make various technical
corrections, clarify meanings, or describe applicability under changed
conditions. SFAS No. 135 is effective for financial statements issued for
fiscal years ending after February 15, 1999. The Company believes that the
adoption of SFAS No. 135 will not have a material effect on its financial
statements.
NOTE 2 - EARNINGS (LOSS) PER SHARE
Earnings (loss) per share is calculated as follows:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
--------------------------- --------------------------
1998 1999 1998 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
BASIC
Net income (loss) as reported ..................... $ (622,000) ($3,078,000) $ 492,000 ($5,942,000)
Weighted average common shares outstanding ........ 4,692,984 6,568,848 4,534,568 6,370,975
Basic earnings (loss) per share ................... $ (0.13) $ (0.47) $ 0.11 $(.0.93)
DILUTED
Net income (loss) as reported ..................... $ (622,000) ($3,078,000) $ 492,000 ($5,942,000)
Weighted average common shares outstanding ........ 4,692,984 6,568,848 4,534,568 6,370,975
Weighted average diluted potential common shares
outstanding .................................... 3,220,768 2,022,462 3,243,504 2,031,111
Weight average common and dilutive potential common
shares outstanding ............................. 7,913,752 8,591,310 7,778,072 8,402,086
Diluted earnings (loss) per share ................. $ (0.08) $ (0.36) $ 0.06 $ (0.70)
</TABLE>
6
<PAGE>
Diluted EPS for the three months ended June 30, 1998 and June 30, 1999 and
the six months ended June 30, 1999 was not disclosed on the Unaudited Condensed
Consolidated Statement of Operations as the effect is anti-dilutive. Certain
performance based warrants issued in connection with the Company's acquisitions
vested upon the achievement of certain operating performance measures. In
accordance with SFAS 128, these contingently issuable shares were included in
the calculation of diluted EPS when all the necessary conditions were met. If
all the necessary conditions have not been satisfied by the end of the period,
the number of contingently issuable shares that would have been issued if the
reporting period was the end of the contingency period are included in the
calculation as if those shares were issued at the beginning of that period. For
year-to-date calculations, contingent shares are weighted for the interim
periods in which they are included in the computation of diluted EPS. At June
30, 1998 and 1999, there were 500,000 and 0 performance based warrants,
respectively, which had not vested which were not included in the calculation of
diluted EPS. Additionally, for purposes of the diluted EPS calculations for the
three and six months ended June 30, 1999, there were 1,166,730 and 1,117,551
options and warrants outstanding, respectively, which were not included in the
calculation of diluted EPS as their exercise prices were greater than the
average market price of the Company's common stock during the period and
inclusion of these securities in the calculation would result in an
anti-dilutive effect.
NOTE 3 - NOTES PAYABLE AND CAPITAL LEASE OBLIGATIONS
The Company's notes payable and capital lease obligations consist of the
following:
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1998 1999
--------------- -------------
<S> <C> <C>
Deere Park Convertible Subordinated Debentures, bearing
interest at 8%, unamortized discount of $65,000 and
$ 22,000, respectively, convertible into Common Stock,
maturing three years from closing ............................... $ 3,935,000 $ 1,394,000
Gordon Brothers Convertible Debentures, bearing interest
at 8%, unamortized discount of $4,000 and $0, respectively,
convertible into Common Stock, maturing on May 29, 1999,
secured by substantially all assets of Interlink
Communications, Inc. and stock of Telereunion, Inc.,
repaid in May of 1999 ........................................... 4,996,000 --
Non-interest bearing promissory notes, imputed interest
at 10%, unamortized discount of $228,000 and $185,000,
respectively, issued in connection with Integracion
acquisition, maturing at various dates through January 1, 2001 .. 1,713,000 1,270,000
Promissory note issued to repurchase common stock,
payable in six semi-annual installments through May 20, 2000,
and bearing interest at 6% , secured by common shares repurchased 150,000 100,000
Capital lease obligation payable in monthly installments
of $5,413 including principal and interest, maturing
June 30, 2002, secured by equipment ............................. 177,000 157,000
Capital lease obligation payable in monthly installments
of $867 including principal and interest maturing
December 1, 2003, secured by furniture .......................... 44,000 40,000
Capital lease obligation payable in monthly installments
of $6,065 including principal and interest, maturing
April 1, 2003, secured by equipment ............................. -- 234,000
Capital lease obligation payable in monthly installments
of $913 including principal and interest, maturing
September 24, 2001 .............................................. -- 20,000
</TABLE>
7
<PAGE>
<TABLE>
<S> <C> <C>
Non-interest bearing promissory note, imputed interest
at 10%, unamortized discount of $49,000 and $0, respectively,
issued in connection with MSN acquisition, remaining amount
due paid in full on June 17, 1999 ............................... 430,000 --
Revolving credit facility maturing July 31, 1999 bearing
interest at prime plus 1%, secured by accounts receivable ....... 1,688,000 1,000,000
Promissory note, interest at 10.62%, payable in 36 equal
monthly installments of $52,234 including principal and
interest, maturing April 1, 2002, secured by equipment .......... -- 1,489,000
Promissory note, interest at 10.93%, payable in 36 equal
monthly installments of $14,700 including principal and
interest, maturing June 1, 2002, secured by equipment ........... -- 449,000
Promissory note, interest and payment terms described
below, maturing January 1, 2005, secured by equipment ........... -- 4,463,000
Promissory note, interest and payment terms described
below, maturing January 1, 2005, secured by equipment ........... -- 1,119,000
Senior notes, interest at 8%, maturing May 6, 2000 .............. -- 6,850,000
$2.0 million Senior notes, interest at 8%, maturing June 17, 2000 -- 2,000,000
----------- -----------
Total notes payable and capital leases .......................... 13,133,000 20,585,000
Current portion ................................................. 7,710,000 10,544,000
----------- -----------
Long term portion ............................................... $ 5,423,000 $10,041,000
=========== ===========
</TABLE>
The annual maturity of the debt indicated above for the five years following
June 30, 1999 are $1,422,000 in 1999, $11,278,000 in 2000, $4,172,000 in 2001,
$1,447,000 in 2002 and 2,266,000 in 2003 and following.
On January 11, 1999, the Company signed a financing arrangement with a
finance company which provides for funding of equipment purchases of up to $7.0
million through December 31, 1999. The financing is structured as loans maturing
January 1, 2005. The loans provide for payments of interest only through January
1, 2000. Thereafter, payments of principal and interest are due quarterly.
Interest is calculated on available basis during the interest only period at 425
basis points above the 90 day commercial paper rate. Interest thereafter is
calculated at 500 basis points above the five year Federal Reserve Treasury
Constant Maturity Rate. The Company has drawn approximately $5.6 million under
this facility through August 15, 1999, of which $2.5 million resulted in
refinancing equipment which was previously financed through an operating lease.
The Company has selected Lucent Technologies, Inc. ("Lucent") to engineer,
furnish and install the Mexican Network. In addition, the Company is currently
negotiating definitive loan documentation with Lucent. Upon execution, Lucent
will provide the Company with up to $40 million of long term financing, which
includes $34 million towards the purchase of Lucent products and services
(including construction of the Mexican Network) and $6 million for repayment of
the Company's current obligations (the "Lucent Facility). The Company will incur
commissions, commitment fees and other costs in connection with this facility.
In July 1999, the Company received a bridge loan of $3.0 million from Lucent.
The bridge loan is to be repaid upon the funding of the Lucent Facility. In
connection therewith, the Company issued to Lucent warrants to purchase an
aggregate of 85,000 shares of Common Stock at an exercise price of $8.50 per
share. The warrants have a term of three years.
8
<PAGE>
On May 7, 1999, the Company issued $6,850,000 in Senior Notes (the "Senior
Notes") maturing in May 2000. E. Scott Crist, CEO of the Company, is a holder of
$1.0 million of the Senior Notes. The Senior Notes are subject to optional
prepayment provisions allowing the Company to prepay a portion or all of the
outstanding principal amount without premium or penalty. The Senior Notes bear
interest at 8% from May through November 6, 1999. Thereafter, the interest rate
increases by 1 percent for each month after November 6, 1999. The Company also
issued to the holders of the Senior Notes a total of 256,315 warrants with an
exercise price of $6.68 per share and a term of three years. In the event that
the Senior Notes are not paid by August 30, 1999, then the holders will be
issued an additional 256,315 warrants. In the event that the Senior Notes are
not paid by February 5, 2000, then the holders will be issued an additional
256,315 warrants in which case the maturity date is extended to August 5, 2000.
The proceeds from the Senior Notes were utilized to repay the entire principal
amount of the Gordon Brothers Convertible Debentures plus $1.1 million in exit
fees. The Company estimated the fair value of the warrants by utilizing the
Black-Scholes option pricing model with the following assumptions: dividend
yield of 0%, expected volatility of 53.91%, risk free interest rate of 5% and
expected life of 3 months. The resulting cost of approximately $398,000 will be
amortized as interest expense over three months.
In May 1999, the Company also repaid $1.0 million of the Deere Park
Convertible Subordinated Debentures. In connection therewith, the Company paid
an exit fee of $120,000.
On June 18, 1999, the Company issued $2,000,000 in Senior Notes (the "$2
Million Senior Notes") maturing in June 2000. The $2 Million Senior Notes are
subject to optional prepayment provisions allowing the Company to prepay a
portion or all of the outstanding principal amount without premium or penalty.
The $2 Million Senior Notes bear interest at 8% from June through December 17,
1999. Thereafter, the interest rate increases by 1 percent for each month after
December 17, 1999. The Company also issued to the holders of the $2 Million
Senior Notes a total of 62,501 warrants with an exercise price of $8.00 per
share and a term of three years. In the event that the $2 Million Senior Notes
are not paid by December 18, 1999, then the holders will be issued an additional
62,501 warrants. In the event that the $2 Million Senior Notes are not paid by
June 18, 2000, then the holders will be issued an additional 62,501 warrants in
which case the maturity date is extended to December 18, 2000. The Company
estimated the fair value of the warrants by utilizing the Black-Scholes option
pricing model with the following assumptions: dividend yield of 0%, expected
volatility of 53.91%, risk free interest rate of 5% and expected life of 2
months. The resulting cost of approximately $116,000 will be amortized as
interest expense over two months.
In July 1999, the Company's Revolving Credit Facility expired and the Company
repaid all amounts outstanding at that time.
NOTE 4 - SEGMENT INFORMATION
The Company has two reportable segments: international long distance and
advanced services. Revenues in the international long distance segment are
generated on a retail and wholesale basis. Revenues in the advanced services
segment are generated from network solution services, customer relationship
management and broadband services and products. The Company provides
international long distance services to customers in the United States. Advanced
services are provided to customers in the United States, Mexico and Latin
America. The Company measures segment profit as earnings before interest,
depreciation, amortization of intangibles, other income and taxes (EBITDA).
9
<PAGE>
Revenues, operating information and identifiable assets by business segment
are as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
----------------------------- -----------------------------
1998 1999 1998 1999
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues
International long distance:
Retail ................................................. $ 14,289,000 $ 17,857,000 $ 32,427,000 $ 34,672,000
Wholesale .............................................. 9,221,000 3,345,000 16,802,000 7,739,000
Advanced services:
Network solutions ...................................... 6,939,000 4,689,000 14,398,000 7,299,000
Customer relationship management ....................... 723,000 1,726,000 944,000 3,026,000
Broadband services and products ........................ 1,206,000 2,092,000 1,206,000 3,992,000
------------ ------------ ------------ ------------
Total revenues ................................................. $ 32,378,000 $ 29,709,000 $ 65,777,000 $ 56,728,000
Operating income (loss) before interest, depreciation
and amortization
International long distance ............................... $ 199,000 $ (122,000) $ 2,574,000 $ (136,000)
Advanced services ......................................... 402,000 390,000 1,131,000 (243,000)
Corporate and other ....................................... (373,000) (880,000) (689,000) (1,540,000)
------------ ------------ ------------ ------------
Total operating income (loss) before interest,
depreciation and amortization ................................ $ 228,000 $ (612,000) $ 3,016,000 $ (1,919,000)
Depreciation .............................................. 230,000 1,033,000 381,000 1,785,000
Amortization of intangibles ............................... 459,000 626,000 877,000 1,252,000
------------ ------------ ------------ ------------
Operating income (loss) as reported on the Statements of
Operations ................................................... $ (461,000) $ (2,271,000) $ 1,758,000 $ (4,956,000)
Capital Expenditures
International long distance ............................... $ 1,781,000 $ 1,364,000 $ 5,291,000 $ 4,331,000
Advanced services ......................................... 272,000 463,000 404,000 723,000
Corporate and other ....................................... 1,000 12,000 1,000 35,000
------------ ------------ ------------ ------------
Total capital expenditures ..................... $ 2,054,000 $ 1,839,000 $ 5,696,000 $ 5,089,000
------------ ------------ ------------ ------------
</TABLE>
DECEMBER 31, JUNE 30,
1998 1999
------------- ------------
Identifiable assets ---
International long ................ $21,819,000 $29,183,000
Advanced services ................. 37,043,000 34,763,000
Corporate and other ............... 21,469,000 20,663,000
----------- -----------
Total .................. $80,331,000 $84,609,000
----------- -----------
Information concerning principal geographic areas is as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
---------------------------- -----------------------------
1998 1999 1998 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues
United States ................. $24,626,000 $22,668,000 $50,345,000 $45,274,000
Mexico ........................ 7,662,000 6,415,000 15,342,000 10,325,000
Latin America ................. 90,000 626,000 90,000 1,129,000
----------- ----------- ----------- -----------
Total revenues ..................... $32,378,000 $29,709,000 $65,777,000 $56,728,000
----------- ----------- ----------- -----------
</TABLE>
10
<PAGE>
December 31, June 30,
1998 1999
-------------- --------------
Fixed assets, net of accumulated
depreciation
United States ................. $ 7,297,000 $12,230,000
Mexico ........................ 5,174,000 6,311,000
Latin America ................. 2,105,000 1,954,000
----------- -----------
Total fixed assets ................. $14,576,000 $20,585,000
----------- -----------
11
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The statements contained in this Quarterly Report on Form 10-Q that are not
historical facts are "forward-looking statements" (as such term is defined in
the Private Securities Litigation Reform Act of 1995), which can be identified
by the use of forward-looking terminology such as "believes," "expects," "may,"
"estimates," "will," "should," "plans" or "anticipates" or the negative thereof
or other variations thereon or comparable terminology, or by discussions of
strategy. Such statements include, but are not limited to, statements under the
captions "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and elsewhere in this Quarterly Report on Form 10-Q as to
the Company's plans to implement its growth strategy, improve its financial
performance, expand its infrastructure, develop new products and services,
expand its sales force, expand its customer base and enter international
markets. In addition, from time to time, the Company or its representatives have
made or may make forward-looking statements, orally or in writing. Furthermore,
such forward-looking statements may be included in, but are not limited to,
various filings made by the Company with the Securities and Exchange Commission
(the "Commission"), or press releases or oral statements made by or with the
approval of an authorized executive officer of the Company.
Management wishes to caution the reader that the forward-looking statements
referred to above and contained in this Quarterly Report on Form 10-Q regarding
matters that are not historical facts involve and are based on numerous
assumptions and predictions about future conditions that could prove not to be
accurate. No assurance can be given that the future results will be achieved;
actual events, transactions or results may differ materially as a result of
risks facing the Company. Such risks include, but are not limited to, the
effectiveness of management's strategies and decisions, the ability to raise the
necessary capital to effectuate the Company's business plan, changes in business
conditions, changes in the telecommunications industry and the general economy,
competition, changes in service offerings and risks associated with the
Company's limited operating history, entry into developing markets, managing
rapid growth, international operations, dependence on effective information
systems, ability to consummate acquisitions or enter into joint ventures with
companies on terms acceptable to the Company and development of its network, as
well as regulatory developments any of which could cause actual results to vary
materially from the future results indicated, expressed or implied, in such
forward-looking statements. No assurance can be given that these are all of the
factors that could cause actual results to vary materially from the
forward-looking statements. Statements with respect to acquisitions and
continued trends are forward-looking and involve risks and uncertainties.
Furthermore, the Company has significant operations in Mexico, subjecting the
Company to certain political, economy and commercial risk. The Company
undertakes no obligation and does not intend to update, revise or otherwise
publicly release the result of any revisions to these forward-looking statements
that may be made to reflect future events or circumstances.
12
<PAGE>
OUTLOOK
The Company operates in mainly two business segments: International
Long Distance and Advanced Services.
Following is a summary of revenues in each segment by types of services
provided.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------------------ -----------------------------
1998 1999 1998 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
INTERNATIONAL LONG DISTANCE:
Retail .................................. $14,289,000 $17,857,000 $32,427,000 $34,672,000
Wholesale ............................... 9,221,000 3,345,000 16,802,000 7,739,000
ADVANCED SERVICES:
Network solutions ....................... 6,939,000 4,689,000 14,398,000 7,299,000
Customer relationship
management .......................... 723,000 1,726,000 944,000 3,026,000
Broadband services and
products ............................ 1,206,000 2,092,000 1,206,000 3,992,000
----------- ----------- ----------- -----------
Total revenues ................. $32,378,000 $29,709,000 $65,777,000 $56,728,000
=========== =========== =========== ===========
</TABLE>
In the International Long Distance Segment, the Company derives its
revenues from the sale of U.S. outbound international long distance services to
Latin America, principally Mexico. The Company provides these services on a
wholesale basis to other carriers and on a retail basis through the sale of
prepaid phone cards. The Company has been focusing on the expansion of its
retail prepaid calling card brand, TELEFIESTA(R), as the long distance business
has come under increasing competitive pressure and contracting margins. As
pricing pressures have affected the international long distance revenues,
management has elected to dedicate its network assets to supporting its retail
business due to management's belief that the retail business has greater long
term value. The Company intends to expand its retail offerings in the future as
it expands it network facilities. The Company believes that owning a long
distance network in Mexico will increase the percentage of minutes of traffic it
carries on-net, enable it to increase revenues, margins and profitability and
ensure quality of service on both international and domestic long distance
traffic.
In the Advanced Services Segment, the Company derives its revenues
principally from three areas: Network Solutions, Customer Relationship
Management and Broadband Services and Products.
The Company provides Network Solution services to private and public
sector customers in Mexico. Revenues from these services are expected to soften
due to the Company's efforts to restructure its product and services offerings
to concentrate on higher margin value-added services and away from lower margin
equipment-only sales and may soften as a result of weakening economic conditions
in Mexico. As traditional telecommunications services become more of a
commodity, the Company believes that Network Solution services will become an
increasingly important component of the Company's service offerings. The Company
has leveraged its systems integration expertise to provide outsourced network
management services to local and multi-national business customers in Mexico.
The Company believes that the buildout of the Mexican Network will enhance its
ability to provide these services by allowing it to provide a complete package
of network solutions and data, voice and video services under one umbrella to
its customers.
The Company provides Customer Relationship Management services through its
customer management call center in Mexico. This call center was established in
late 1997 with the signing of the
13
<PAGE>
contract with the U.S. Embassy. Revenues from these services have increased
significantly with the expansion of the facility and the addition of other
customers including the Mexican Ministry of Foreign Affairs. The Company expects
revenues from these services to continue to grow in the future.
The Company provides Broadband Services and Products through its INTERLINK
subsidiary. INTERLINK operates a satellite teleport facility in Mountain View,
California and provides voice, video and data transport services including
fractional and full T-1 data broadcast, dedicated circuits and private line
up-link and down-link services in the U.S., Latin America and other parts of the
world. INTERLINK has expanded its product offering to include
Bandwidth-on-Demand, Integrated Services Digital Network ("ISDN") video
conferencing and Internet-through-satellite services. INTERLINK serves as an
Internet backbone provider to Internet service providers ("ISPs") and
universities in remote areas where access to high speed fiber optics is limited,
such as the case in many Latin American countries.
In the second quarter of 1999, the Company began the construction of the
Mexican Network, a combined fiber-optic and microwave long distance network,
connecting the Gulf region of Mexico and with certain key Mexican cities. The
first stage of the Mexican Network consists of 650 km of fiber optic cable and
microwave, circuit switched type of transmission and switching facilities, in
the Gulf region of Mexico from Mexico City to Puebla, Puebla to Veracruz and
Veracruz to Poza Rica. The Company intends to lease and swap capacity from other
long distance providers to connect with the central (Mexico City, Guanajuato and
Guadalajara) and northeast (Monterrey) regions of Mexico, and to install
switching facilities in Mexico City and Monterrey. In May 1999, the Company
signed an agreement with Avantel S.A., which owns the second largest network in
Mexico, to exchange strands of fiber along 1100 kilometers of Avantel's network
from Poza Rica to Reynosa (providing the Company with a border crossing) to
Monterrey for strands of fiber along 650 kilometers of the Company's network.
The agreement is subject to regulatory approval. The Company believes that more
than half of the domestic long distance traffic and nearly half of the domestic
residential long distance traffic originates in the region that will be serviced
by the Mexican Network. The Company is currently negotiating interconnection
agreements with other concessionaires. The Company believes that the Mexican
Network, when complete, will link 47 cities and towns and cover, including
interconnection agreements, an estimated 90% of the population in Mexico.
GROSS PROFIT.
The Company has been experiencing pricing pressure on its international long
distance services resulting in lowering of gross profit percentage and
contribution. The Company has not been able to reduce its termination costs as
quickly as prices have declined in the international long distance business and
has relied partially on certain lower margin outsourcing arrangements to support
its prepaid calling cards. Upon the completion of its own long distance network
in Mexico, expected in early 2000, the Company believes that the percentage of
minutes of traffic it carries on-net will increase, effectively lowering
termination costs and increasing margins and profitability.
In its Advanced Services segment, the Company has been successful in
increasing the overall percentage of revenues derived from enhanced, value-added
services and as a result has seen a significant increase in gross profits as a
percentage of revenues from these services.
OPERATING EXPENSES. With the selection of Lucent Technologies, Inc. to
engineer, furnish and install the Company's long distance network in Mexico,
the Company is moving into a period of significant investment in facilities
and human resources. As a result, the Company expects operating expenses to
continue to increase.
14
<PAGE>
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1999 COMPARED TO THREE MONTHS ENDED JUNE 30, 1998
REVENUES decreased from $32,378,000 in 1998 to $29,709,000 in 1999. This
decrease of $2,669,000, or 8.2%, was due principally to the weakened economic
conditions in Mexico, the Company's decision to reduce sales to distributors of
low margin equipment in Mexico and a decline in the Company's international long
distance revenues. These declines were offset by an increase in revenues from
the Company's Customer Relationship Management services and the incremental
sales of the Company's INTERLINK subsidiary, which was acquired in May 1998.
Network Solutions services revenues in Mexico decreased $2,250,000 from
$6,939,000 in 1998 to $4,689,000 in 1999. Wholesale international long distance
revenues decreased $5,876,000 from $9,221,000 in 1998 to $3,345,000 in 1999.
Retail international long distance revenues increased $3,568,000 from
$14,289,000 in 1998 to $17,857,000 in 1999. Customer Relationship Management
services revenues increased $1,003,000 from $723,000 in 1998 to $1,726,000 in
1999. Broadband Services and Products revenues increased $886,000 from
$1,206,000 in 1998 to $2,092,000 in 1999.
COST OF REVENUES decreased from $28,598,000 in 1998 to $25,155,000 in 1999,
or $3,443,000. The 12.0% decrease in cost of revenues was due principally to the
decrease of revenues offset by the increased costs associated with the
international long distance services. This decrease in cost of revenues was also
offset by the incremental cost of revenues associated with the acquisition of
INTERLINK. The cost of revenues as a percentage of revenues decreased from 88.3%
to 84.7%, or 3.6%, due principally to the decrease in cost of revenues as a
percentage of revenues associated with the Advanced Services revenues, offset by
an increase in costs of revenues as a percentage of revenues associated with
international long distance revenues..
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES ("SG&A") increased from
$3,552,000 in 1998 to $5,166,000 in 1999, or $1,614,000. The 45.4% increase in
SG&A was due to the incremental SG&A related to the acquisition of INTERLINK,
the overhead necessary to support the growth in the Company's Customer
Relationship Management operations, increased staffing at existing operations to
meet the additional resource requirements associated with these operations and
the increased staffing associated with the Mexican network build out.
Overall SG&A as a percentage of revenues increased from 11.0% to 17.4%, or
6.4%, due to the factors stated above.
DEPRECIATION AND AMORTIZATION increased from $689,000 in 1998 to $1,659,000
in 1999, or $970,000. This increase is due to an increase in goodwill
amortization associated with the acquisitions of Telereunion and INTERLINK. In
addition, depreciation increased as a result of the Company's continuing
expansion of its communications network, which includes purchases of switches
and other telecommunications equipment and facilities. The Company expects
depreciation expense to increase as it continues to expand its
telecommunications network.
INTEREST INCOME (EXPENSE), NET increased from ($194,000) in 1998 to
($1,784,000) in 1999, or ($1,590,000). This increase was mainly due to an
increase in the Company's level of borrowings, including the Deere Park
Convertible Debentures and Gordon Brothers Convertible Debentures issued in
connection with the INTERLINK acquisition, the Senior Notes and the $2
million Senior Notes.
The Gordon Brothers Convertible Debentures provide for an "exit fee" which
was paid at the time of the repayment of the Gordon Brothers Convertible
Debentures in May 1999. The Company paid an "exit fee" of $1.1 million of which
$181,000 was accrued during the three months ended June 30, 1999. In addition,
the Company repaid $1.0 million of the Deere Park Convertible Subordinated
Debentures in May 1999. The Company paid an "exit fee" of $120,000 of which
$30,000 was accrued during the three months ended June 30, 1999.
15
<PAGE>
In addition, the Company issued warrants to the holders of the Deere Park
Convertible Debentures, Gordon Brothers Convertible Debentures, the Senior Notes
and the $2 million Senior Notes. These warrants were valued utilizing the
Black-Scholes pricing model and the resulting amount is amortized as
interest expense over the life of the notes.
OTHER INCOME (EXPENSE) increased from ($17,000) in 1998 to ($298,000) in
1999, or ($281,000). The Company recognized a foreign exchange loss of $45,000
in the second quarter of 1999 as compared to a foreign exchange loss of $65,000
in the second quarter of 1998.
INCOME TAX BENEFIT (EXPENSE) increased from $68,000 in 1998 to $1,275,000 in
1999. The Company's overall effective tax benefit for the three months ended
June 30, 1999, was 29% which reflect the tax benefits recognized on the losses
realized offset by permanent items, the most significant of which is the non
deductible nature of goodwill amortization.
NET INCOME (LOSS). The Company experienced a net loss of ($622,000) in 1998
as compared to ($3,078,000) in 1999 due to a combination of the factors
discussed above.
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30, 1998
REVENUES decreased from $65,777,000 in 1998 to $56,728,000 in 1999. This
decrease of $9,049,000, or 13.8%, was due principally to the weakened economic
conditions in Mexico, the Company's decision to reduce sales to distributors of
low margin equipment in Mexico and a decline in the Company's international long
distance revenues. These declines were offset by an increase in revenues from
the Company's Customer Relationship Management services and the incremental
sales of the Company's INTERLINK subsidiary, which was acquired in May 1998. As
a result, Network Solutions services revenues in Mexico decreased $7,099,000
from $14,398,000 in 1998 to $7,299,000 in 1999. Wholesale international long
distance revenues decreased $9,063,000 from $16,802,000 in 1998 to $7,739,000 in
1999. Retail international long distance revenues increased $2,245,000 from
$32,427,000 in 1998 to $34,672,000 in 1999. Customer Relationship Management
services revenues increased $2,082,000 from $944,000 in 1998 to $3,992,000 in
1999. Broadband Services and Products revenues $2,786,000 from $1,206,000 in
1998 to $3,992,000 in 1999.
COST OF REVENUES decreased from $57,056,000 in 1998 to $49,259,000 in 1999,
or $7,797,000. The 13.7% decrease in cost of revenues was due principally to the
decrease of revenues offset by the increased costs associated with the
international long distance services. This decrease in cost of revenues was also
offset by the incremental cost of revenues associated with the acquisition of
INTERLINK. The cost of revenues as a percentage of revenues increased from 86.7%
to 86.8%, or 0.1%, due principally to the higher cost of revenues as a
percentage of revenues associated with the Company's international long distance
services. This increase was offset partially by the decrease in cost of revenues
as a percentage of revenues associated with the Advanced Services revenues.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES ("SG&A") increased from
$5,705,000 in 1998 to $9,388,000 in 1999, or $3,683,000. The 64.5% increase in
SG&A was due to the incremental SG&A related to the acquisition of INTERLINK,
the overhead necessary to support the growth in the Company's Customer
Relationship Management operations, increased staffing at existing operations to
meet the additional resource requirements associated with these operations and
the increased staffing associated with the Mexican network build out.
Overall SG&A as a percentage of revenues increased from 8.7% to 16.5%, or
7.8%, due to the factors stated above.
DEPRECIATION AND AMORTIZATION increased from $1,258,000 in 1998 to $3,037,000
in 1999, or $1,779,000. This increase is due to an increase in goodwill
amortization associated with the acquisitions of Telereunion and
16
<PAGE>
INTERLINK. In addition, depreciation increased as a result of the Company's
continuing expansion of its communications network, which includes purchases of
switches and other telecommunications equipment and facilities. The Company
expects depreciation expense to increase as it continues to expand its
telecommunications network.
INTEREST INCOME (EXPENSE), NET increased from ($251,000) in 1998 to
($2,665,000) in 1999, or ($2,916,000). This increase was mainly due to an
increase in the Company's level of borrowings, including the Deere Park
Convertible Debentures and Gordon Brothers Convertible Debentures issued in
connection with the INTERLINK acquisition, the Senior Notes and the $2
Million Senior Notes.
The Gordon Brothers Convertible Debentures provide for an "exit fee" which
was paid at the time of the repayment of the Gordon Brothers Convertible
Debentures in May 1999. The Company paid an "exit fee" of $1.1 million of which
$648,000 was accrued during the six months ended June 30, 1999. In addition, the
Company repaid $1.0 million of the Deere Park Convertible Subordinated
Debentures in May 1999. The Company paid an "exit fee" of $120,000 which was
accrued during the six months ended June 30, 1999.
In addition, the Company issued warrants to the holders of the Deere Park
Convertible Debentures, Gordon Brothers Convertible Debentures, the Senior Notes
and the $2 Million Senior Notes. These warrants were valued utilizing the
Black-Scholes pricing model and the resulting amount is amortized as
interest expense over the life of the notes.
OTHER INCOME (EXPENSE) increased from ($91,000) in 1998 to ($572,000) in
1999, or ($481,000). The Company recognized a foreign exchange loss of $105,000
in the first six months of 1999 as compared to a foreign exchange loss of
$187,000 in the first six months of 1998.
INCOME TAX BENEFIT (EXPENSE) changed from an income tax expense of ($895,000)
in 1998 to an income tax benefit of $2,251,000 in 1999. The Company's overall
effective tax benefit for the six months ended June 30, 1999, was 27.5% which
reflect the tax benefits recognized on the losses realized offset by permanent
items, the most significant of which is the non deductible nature of goodwill
amortization.
NET INCOME (LOSS). The Company experienced net income of $492,000 in 1998
as compared to a net loss of $(5,942,000) in 1999 due to a combination of
the factors discussed above.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by (used in) operating activities was $441,000 and
$(2,770,000) for the six months ended June 30, 1998 and June 30, 1999,
respectively. The decrease in net cash provided by operations in 1999 as
compared to 1998 was due primarily to decreased revenues, decreased gross
profits and increased SG&A expenses.
Net cash used in investing activities was ($16,271,000) and ($5,089,000) for
the six months ended June 30, 1998 and June 30, 1999, respectively. For the six
months ended June 30, 1998, the Company expended approximately $5.7 million on
purchases of, or deposits on, property and equipment as part of the Company's
network expansion strategy. In addition, the Company acquired MSN for $2.3
million, net of cash acquired and INTERLINK for $8.3 million, net of cash
acquired. For the six months ended June 30, 1999, the Company expended
approximately $5.1 million on purchases of property and equipment as part of the
Company's network expansion strategy.
Net cash provided by financing activities was $16,035,000 and $3,272,000 for
the six months ended June 30, 1998 and June 30, 1999, respectively. During the
six months ended June 30, 1999, the Company realized approximately $2.3 million
(net of commissions) from sales of its common stock and exercise of options and
warrants. The Company also received $8,850,000 in bridge financing. The Company
also made payments of
17
<PAGE>
$1,134,000 on its notes payable, $6,000,000 on its convertible debt and $688,000
on the Revolving Line of Credit.
As of June 30, 1999, the Company had cash and cash equivalents of $5,044,000
and negative working capital of $10,324,000.
In the fourth quarter of 1998, the Company signed a financing arrangement
with a finance company, which provides for funding of equipment purchases of up
to $6.0 million through May 1999. The financing is structured as loans maturing
three years from funding at interest rates 550 basis points above the Federal
Reserve Treasury Constant Maturity Rate. The Company has drawn approximately
$2.0 million in the first siz months of 1999 under this facility.
On January 11, 1999, the Company signed a financing arrangement with a
finance company which provides for funding of equipment purchases of up to $7.0
million through December 31, 1999. The financing is structured as loans maturing
January 1, 2005. The loans provide for payments of interest only through January
1, 2000. Thereafter, payments of principal and interest are due quarterly.
Interest is calculated on available basis during the interest only period at 425
basis points above the 90 day commercial paper rate. Interest thereafter is
calculated at 500 basis points above the five year Federal Reserve Treasury
Constant Maturity Rate. The Company has drawn approximately $5.6 million under
this facility through August 15, 1999, of which $2.5 million resulted in
refinancing equipment which was previously financed through an operating lease.
In the fourth quarter of 1998, the Company entered into a stock purchase
agreement with third parties (the "Stock Purchase Commitment"), which allows the
Company to sell at the Company's option (subject to certain conditions
precedent), up to $5.0 million of the Company's Common Stock. The sale price of
the Common Stock is equal to the average of the previous 5 days closing prices
less a 20% discount. The Company sold 250,000 shares of Common Stock realizing
approximately $1.3 million (net commissions) in the fourth quarter of 1998.
These shares were sold on December 18, 1998, and may not be re-sold by the
purchasers for nine months from such date. In the first quarter of 1999, the
Company sold an additional 296,296 shares of Common Stock, realizing
approximately $1.9 million (net of commissions). These shares were sold on March
15, 1999, and may not be re-sold by the purchasers until July 31, 1999. In July
of 1999, the Company sold an additional 146,000 shares of Common Stock,
realizing approximately $924,000 in proceeds. In addition, the Company received
$576,000 in the form of a short term loan which is due on November 24, 1999.
The Company has selected Lucent Technologies, Inc. ("Lucent") to engineer,
furnish and install the Mexican Network. In addition, the Company is currently
negotiating definitive loan documentation with Lucent. Upon execution, Lucent
will provide the Company with up to $40 million of long term financing, which
includes $34 million towards the purchase of Lucent products and services
(including construction of the Mexican Network) and $6 million for repayment of
the Company's current obligations (the "Lucent Facility). The Company will incur
commissions, commitment fees and other costs in connection with this facility.
In July 1999, the Company received a bridge loan of $3.0 million from Lucent.
The bridge loan is to be repaid upon the funding of the Lucent Facility. In
connection therewith, the Company issued to Lucent warrants to purchase an
aggregate of 85,000 shares of Common Stock at an exercise price of $8.50 per
share. The warrants have a term of three years.
On May 7, 1999, the Company issued $6,850,000 in Senior Notes (the "Senior
Notes") maturing in May 2000. E. Scott Crist, CEO of the Company, is a holder of
$1.0 million of the Senior Notes. The Senior Notes are subject to optional
prepayment provisions allowing the Company to prepay a portion or all of the
outstanding principal amount without premium or penalty. The Senior Notes bear
interest at 8% from May through November
18
<PAGE>
6, 1999. Thereafter, the interest rate increases by 1 percent for each month
after November 6, 1999. The Company also issued to the holders of the Senior
Notes a total of 256,315 warrants with an exercise price of $6.68 per share and
a term of three years. In the event that the Senior Notes are not paid by August
30, 1999, then the holders will be issued an additional 256,315 warrants. In the
event that the Senior Notes are not paid by February 5, 2000, then the holders
will be issued an additional 256,315 warrants in which case the maturity date is
extended to August 5, 2000. The proceeds from the Senior Notes were utilized to
repay the entire principal amount of the Gordon Brothers Convertible Debentures
plus $1.1 million in exit fees. The Company estimated the fair value of the
warrants by utilizing the Black-Scholes option pricing model with the following
assumptions: dividend yield of 0%, expected volatility of 53.91%, risk free
interest rate of 5% and expected life of 3 months. The resulting cost of
approximately $398,000 will be amortized as interest expense over three months.
In May 1999, the Company also repaid $1.0 million of the Deere Park
Convertible Subordinated Debentures. In connection therewith, the Company paid
an exit fee of $120,000.
On June 18, 1999, the Company issued $2,000,000 in Senior Notes (the "$2
Million Senior Notes") maturing in June 2000. The $2 Million Senior Notes are
subject to optional prepayment provisions allowing the Company to prepay a
portion or all of the outstanding principal amount without premium or penalty.
The $2 Million Senior Notes bear interest at 8% from June through December 17,
1999. Thereafter, the interest rate increases by 1 percent for each month after
December 17, 1999. The Company also issued to the holders of the $2 Million
Senior Notes a total of 62,501 warrants with an exercise price of $8.00 per
share and a term of three years. In the event that the $2 Million Senior Notes
are not paid by December 18, 1999, then the holders will be issued an additional
62,501 warrants. In the event that the $2 Million Senior Notes are not paid by
June 18, 2000, then the holders will be issued an additional 62,501 warrants in
which case the maturity date is extended to December 18, 2000. The Company
estimated the fair value of the warrants by utilizing the Black-Scholes option
pricing model with the following assumptions: dividend yield of 0%, expected
volatility of 53.91%, risk free interest rate of 5% and expected life of 2
months. The resulting cost of approximately $116,000 will be amortized as
interest expense over two months.
In July 1999, the Company's Revolving Credit Facility expired and the Company
repaid all amounts outstanding at that time.
The Company's debt at June 30, 1999 totaled $20.6 million resulting in a debt
to equity ratio of 61% as compared to $13.1 million and 38%, respectively, as of
December 31, 1998 and $3.2 million and 14%, respectively, as of December 31,
1997. Upon closing, the Lucent Facility will result in long term financing
arrangements, which will significantly increase the Company's leverage. The
Company will need to generate substantial cash flow from operations to satisfy
its principal and interest obligations under these financing arrangements. If
the Company does not generate the cash flow from operations to meet its
principal and interest obligations under the financing arrangements described
above, then the Company's business and results of operations could be materially
adversely affected.
The Company estimates that there are an additional $10-$15 million in
expenditures related to the Mexican Network and its network expansion which will
not be funded through the Lucent Facility. The Lucent Facility provides for
funding of up to $6 million for repayment of debt obligations. The Company will
incur commissions, commitment fees and other costs in connection with this
facility. The Company does not expect that cash flow from operations will be
sufficient to meet these capital expenditure and debt repayment requirements
when they are due.
In the first six months of 1999, the Company incurred losses and had negative
cash flow from operations. The Company intends to finance its growth, principal
and interest obligations under existing debt obligations, and additional capital
investments required for its planned facility expansion through vendor financing
and the sale of debt or equity securities (or a combination of both). There can
be no assurance that the Company will be able to obtain additional financing on
commercially reasonable terms, if at all, to fund its losses generated from
operations, to fund its capital expenditures or to fund its debt service
obligations as they become due. If
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necessary funds are not available, the Company's business and results of
operations and the future expansion of its business could be materially
adversely affected.
As of June 30, 1999 and the date of this filing, the Company has an
outstanding receivable of $1.4 million dollars from a customer of its Mexican
Network Solutions services subsidiaries. This receivable has been outstanding
since December 31, 1998. The Company has been encountering difficulties in its
dealings with this customer and may be forced to utilize legal resources to
enforce collection of this amount. In the event that the Company determines that
this amount or a portion of the amount is uncollectible in the future, the
Company may be forced to incur a charge in excess of its current reserve for
uncollectibles of $425,000.
RECENT ACCOUNTING PRONOUNCEMENTS
SFAS No. 133, "ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES,"
requires companies to recognize all derivatives contracts as either assets or
liabilities in the balance sheet and to measure them at fair value. If certain
conditions are met, a derivative may be specifically designated as a hedge, the
objective of which is to match the timing of gain or loss recognition on the
hedging derivative with the recognition of (i) the changes in the fair value of
the hedged asset or liability that are attributable to the hedged risk or (ii)
the earnings effect of the hedged forecasted transaction. For a derivative not
designated as a hedging instrument, the gain or loss is recognized in income in
the period of change. SFAS No. 133 is effective for all fiscal quarters of
fiscal years beginning after June 15, 1999.
Historically, the Company has not entered into derivatives contracts either
to hedge existing risks or for speculative purposes. The Company does not expect
adoption of the new standard to have a material effect on its financial
statements.
SOP 98-5, "REPORTING ON THE COSTS OF START-UP ACTIVITIES," requires all
start-up and organizational costs to be expensed as incurred. It also requires
all remaining historically capitalized amounts of these costs existing at the
date of adoption to be expensed and reported as the cumulative effect of a
change in accounting principles. SOP 98-5 is effective for all fiscal years
beginning after December 31, 1998. The adoption of SOP 98-5 did not have a
material effect on its financial statements.
SFAS No. 135, "RESCISSION OF FINANCIAL ACCOUNTING STANDARDS BOARD NO. 75
("SFAS NO. 75") AND TECHNICAL CORRECTIONS," rescinds SFAS No. 75 and amends
Statement of Financial Accounting Standards Board No. 35. SFAS No. 135 also
amends other existing authoritative literature to make various technical
corrections, clarify meanings, or describe applicability under changed
conditions. SFAS No. 135 is effective for financial statements issued for fiscal
years ending after February 15, 1999. The Company believes that the adoption of
SFAS No. 135 will not have a material effect on its financial statements.
UNCERTAINTIES
The Company continues to face many risks and uncertainties, including general
and specific market economic risks. The exploitation of the opportunities
presented by the Mexican market are expected to require substantial capital. To
the extent the Company's Mexican subsidiaries do not have a positive net cash
flow from its operations in 1998, it can be expected that the Company would have
to fund any shortfalls from its working capital. In addition, any capital
expenditures needed to expand the operations of the Mexican subsidiaries would
likely be funded out of the working capital of the parent corporation. Any such
fundings would reduce the funds available to finance and expand the Company's
strategy to compete in the international long distance services business. Also,
any economic crises in Mexico could result in the need to fund any cash flow
shortfalls of the Company's Mexican subsidiaries.
As in any recently deregulated market, drastic changes and adjustments of
regulations or changes in government policies may occur from time to time that
will directly affect the Company. The Company's competitive position in the
telecommunications services and long distance markets depends heavily on the
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license granted by the Mexican government. Should this permit be revoked for
whatever reason, the Company would be severely impaired or unable to provide
many of its telecommunications services. In addition, the Company relies on
other carriers to complete the transmission of certain telecommunications
services. To the extent that any of these carriers was to no longer do business
with the Company, the Company would either have to find an alternate source or
not be able to provide those services.
The international long distance market, although large and rapidly growing,
is also very competitive. The Company competes in this market with companies
that have greater experience and substantially greater resources, both financial
and otherwise. In addition, the Company faces certain additional risks in
competing in this market, including changes in U.S. and foreign government
regulations and telecommunications standards, dependence on strategic partners,
tariffs, taxes and other trade barriers, the potential for nationalization and
economic downturns and political instability in foreign countries. In addition,
the Company could be adversely affected by a reversal in the trend toward
deregulation of telecommunication markets. The Company will be increasingly
exposed to these risks as the Company expands its presence in this market. The
Company's growth in this business is dependent on its ability to expand its
capacity through investments in additional facilities or entering into
termination arrangements with other carriers. There can be no assurance that the
Company will be successful in raising the capital required to fund the
additional facilities or to enter into such arrangements with other carriers, in
which case the Company's operations, the future growth in this business and the
ability to compete effectively against competitors with significantly more
resources could be materially adversely affected.
The Company will compete in this market with companies that have greater
experience and have substantially greater resources. In addition, the prepaid
phone card industry is subject to extensive U.S. federal and state regulation
including the imposition of various excise taxes and fees, including the
"Universal Service Fund". As with the wholesale international long distance
business, the Company's growth in this business is dependent on its ability to
expand its capacity through investments in additional facilities or entering in
partnering arrangements for outsourcing the telecommunications services related
to calls initiated on the prepaid phone cards it serves. There can be no
assurance that the Company will be successful in raising the capital required to
fund the additional facilities, or in obtaining such partnering arrangements, in
which case the Company's operations, the future growth in this business and the
ability to compete effectively against competitors with significantly more
resources could be materially adversely affected.
The Company is also pursuing a strategy of growth through selective
acquisitions. However, there can be no assurance that any acquisition will be
completed, that attractive candidates will be identified in the future, that the
Company will be successful in raising the capital to fund such acquisitions, or
that, if completed, any acquisition will be beneficial to the Company.
In June 1998, Telereunion S.A. de C.V. ("Telereunion S.A."), a subsidiary of
the Company, received a 30-year, facilities-based carrier license from the
Mexican government allowing it to construct and operate a long distance network
in Mexico (the "Concession"). Under the terms of the Concession, Telereunion
S.A. was to have begun operations on its network as of June 3, 1999. In
addition, under the terms of the Concession, Telereunion S.A. is required to
meet certain capitalization thresholds prior to beginning operations. The
Company has petitioned the Comision Federal de Telecomunicaciones (the
"COFETEL"), the equivalent of the Federal Communications Commission in the
United States, to have the Concession amended to extend the start of operations
date and waive or amend the equity and debt to equity requirements. Although
several other concessionaires have received certain waivers for defaults under
their respective concessions, there can be no assurance that these amendments
will be obtained from the COFETEL. If such amendments are not obtained, the
Company will not have the right to operate the Mexican Network which could have
a material adverse effect on the Company's ability to effectuate its business
plan and its financial condition.
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FOREIGN CURRENCY RISK
The general economic conditions of Mexico are greatly affected by the
fluctuations in exchange rates and inflation. The Company's foreign currency
risk is mitigated in Mexico due to the fact that many of the Company's customers
are multinational firms that transact and pay in U.S. dollars. In addition, most
of the customers that do pay in pesos pay at the spot exchange rate in effect at
the time of payment as opposed to the exchange rate at the time the receivable
is created. The Company's functional currency in Mexico is the U.S. dollar
because the majority of its transactions are in such currency. However, from
time to time the Company transacts in the local currency and thus faces foreign
currency risk with respect to these transactions. U.S.-originated calls will be
paid in U.S. dollars; however, the Company also expects to derive a certain
portion of its revenues from calls originated outside of the U.S. thus exposing
the Company to additional exchange rate risk. In addition, the Company pays its
termination partners in Latin America in their respective local currencies,
exposing the Company to additional exchange rate risk. The Company may choose to
limit its exposure to foreign currency risk through the purchase of forward
foreign exchange contracts or similar hedging strategies. There can be no
assurance that any foreign currency hedging strategy would be successful in
avoiding exchange-related losses.
The Company does not currently hedge against the risk of foreign exchange
rate fluctuations. See further discussion in Item 3 - Quantitative and
Qualitative Disclosures about Market Risk.
YEAR 2000 PLANS
A significant percentage of the software that runs most of the computers in
the United States relies on two-digit, rather than four-digit, date codes to
define the applicable year, resulting in date-sensitive software having the
potential inability to interpret date codes properly, misreading "00" for the
year 1900 instead of the year 2000.
This could result in a system failure or miscalculations causing disruptions
of operations, including, without limitation, a temporary inability to process
transactions, send invoices or engage in similar normal business activities,
which could have material adverse operational and financial consequences.
STATE OF READINESS
The Company has initiated a comprehensive program to identify, evaluate and
address issues associated with the ability of its information and
non-information technology systems (collectively, "Systems") to properly
recognize the Year 2000 (the "Year 2000 Readiness Program") in order to avoid
interruption of the operation of these Systems and a material adverse effect on
the Company's business, financial position and results of operation as a result
of the century change. The Company has empowered a "Y2K Committee" to manage the
Year 2000 Readiness Program. The Y2K Committee shall also review the Year 2000
compliance efforts of the Company's key vendors and customers and shall
regularly report to and be controlled by the Board of Directors.
Each of the information technology software programs that the Company
currently uses has either been certified by its respective vendor as Year 2000
compliant or will be replaced with software that is so certified prior to
year-end. The Company intends to conduct comprehensive tests of all of its
software programs for Year 2000 compliance as part of its Year 2000 Readiness
Program. An integral part of the Company's non-information technology systems,
its telecommunications switches, however, may not currently be Year 2000
compliant. The respective vendors of the Company's switches are in the process
of reviewing their switches for Year 2000 readiness. However, there can be no
assurance that such switches are Year 2000 compliant and that the Company will
not experience switch related problems in Year 2000. In addition to other
reasons, the production of accurate and timely customer invoices depends upon
the generation of accurate and timely underlying data by the Company's switches.
The Company does not believe that its other non-information
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technology systems will be affected by the Year 2000, but will not know
definitively until the Company tests and evaluates such equipment. The Company
believes that all Year 2000 compliance initial testing and any necessary
conversions will be completed by September 30, 1999.
The Company's computer systems interface with the computers and technology of
many different domestic and international telecommunications companies on a
daily basis. If one of these telecommunication companies should fail or suffer
an adverse effect from a Year 2000 problem, the Company's customers could
experience impairment of services. The Company considers the Year 2000 readiness
of its international customers and vendors of particular importance given the
general concern that the computer systems abroad may not be as prepared as those
in domestic operations to handle the century change. As part of its Year 2000
Readiness Program, the Company intends to contact its key vendors and customers
to ascertain whether the systems used by such third parties are Year 2000
compliant.
COSTS
The Company has not incurred any costs to date to reprogram, replace and test
its Systems for Year 2000 compliance. The Company believes that the costs
associated with its Year 2000 compliance efforts will be incurred during 1999.
The Company is still estimating the costs of the efforts but doesn't expect that
these costs will be significant over the life of the project; though such
expenditures may increase materially following testing of non-information
technology systems and evaluation of the Year 2000 compliance status of integral
third party vendors and customers. Costs incurred in connection with the
Company's Year 2000 compliance efforts will be expensed as incurred, unless new
systems are purchased that should be capitalized in accordance with generally
accepted accounting principles.
The Company currently anticipates that its Systems will be Year 2000
compliant before January 1, 2000, though no assurances can be given that the
Company's compliance testing will not detect unanticipated Year 2000 compliance
problems that prevent such Year 2000 compliance. Furthermore, a system failure
by any of the Company's significant customers or vendors could have a material
adverse effect on the Company's operations. Because the Company does not yet
know the Year 2000 compliance status of integral third parties, it is currently
unable to assess the likelihood or the risk to the Company of third party system
failures.
RISKS
The Company believes that a disruption in the operation of its networks,
billing system and financial and accounting systems and/or an inability to
access interconnections with other telecommunications carriers, are the major
risks associated with the inability of its Systems to process Year 2000 data
correctly. The failure of the Company to correct a material Year 2000 problem
could cause an interruption or failure of certain of the Company's normal
business functions or operations and could have a material adverse effect on the
Company's business, financial position and results of operations. In addition,
there could also be a material adverse effect on the Company's business,
financial position and results of operations if the systems of other companies
on whose services the Company depends, or with whom the Company's Systems
interface, are not Year 2000 compliant.
Based upon risk assessment work conducted thus far, the Company believes that
the most reasonably likely worst case scenario of the failure by the Company, or
any integral third party, to resolve Year 2000 issues would be an inability by
the Company (i) to provide telecommunications services to the Company's
customers, (ii) to route and deliver telephone calls originating from or
terminating with other telecommunications carriers for an indeterminable period
of time and (iii) to timely and accurately bill customers. Such worst-case
scenario could have a material adverse affect on the Company's business, results
of operations and liquidity. These failures could also result in a loss of
customers due to service interruptions and billing errors, substantial claims by
customers and increased expenses associated with Year 2000 litigation,
stabilization of operations and executing mitigation and contingency plans.
While the Company believes that it is taking appropriate measures to mitigate
these risks, there can be no assurance that such measures will be successful.
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CONTINGENCY PLAN
At this time, the Company does not have a contingency plan. The Company
intends to develop contingency plans to handle Year 2000 system failures
experienced by its Systems and to handle any necessary interactions with the
computers and technology of any integral non-complying third party. This plan is
expected to be completed by September 30, 1999.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is subject to financial market risks, including interest rate
risk and foreign currency exchange risk. During the second quarter of 1999,
there were no material changes in financial market risks except for the changes
in the Mexican peso exchange rate to the U.S. dollar as described below.
FOREIGN CURRENCY EXCHANGE RISK
The Company conducts a significant amount of its operations in countries
outside the United States. The Company's foreign currency exchange risk includes
the following:
In the past years, the Mexican economy has had periods of exchange rate
instability and peso devaluation. The Company's Network Solutions services and
Customer Relationship Management services business is conducted in Mexico. The
majority of the Company's revenues in the value-added services business are
contracted in dollars or in pesos indexed to the dollar at the time of
settlement. The products and services the Company sells in the value-added
services business line are generally imported from the U.S. or other countries
and are payable in dollars. The Company's remaining operating costs in this
segment are generally paid in pesos. The Company's major outsourcing contracts
with the U.S. Embassy and the Ministry of Foreign Affairs generate revenues that
are collected in pesos and costs that are paid in pesos.
The Company generally collects its revenues from the Broadband Services
and Products services in U.S. dollars and pays for its costs to provide
these services in U.S. dollars
In the International Long Distance business segment, the Company sells it
services to customers in the U.S. and thus its revenues are collected in U.S.
dollars. The Company's costs of providing these services are paid to vendors
both in the U.S. and in Mexico or other Latin American countries. A significant
portion of its costs to provide these services are structured under operating
agreements with carriers in Mexico under which the costs historically have been
settled in pesos. The Company has entered into new, additional agreements with
carriers in Mexico that will provide it with additional termination capacity in
Mexico in 1999. These new arrangements provide for settlement in U.S. dollars.
In periods in which the peso devaluates, this results in a cost reduction to the
Company as it generally extends short credit terms to its customers and has
received extended credit terms from its vendors. In periods when the peso
appreciates, this results in a cost increase to the Company. Over the last
several years, the peso has experienced devaluations in the exchange rates to
the U.S. dollar. In the second quarter of 1999, the peso exchange rate
strengthened from over 10 to 1 to an average 9.5 to 1 resulting in an increase
in the Company's cost. Due to limited credit availability, the Company has not
historically hedged its peso costs. In the future as the Company's operations in
Mexico increase, the Company's peso denominated transactions may increase
causing the Company to enter into hedging activities as credit availability
allows.
In addition, as the Company invests in the Mexican Network and begins to
generate more revenues in Mexico, the Company's foreign currency risk will
increase. Moreover, upon completion, the Lucent Facility will be denominated in
U.S. dollars.
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PART II. OTHER INFORMATION
ITEM 3. LEGAL PROCEEDINGS
TELSCAPE INTERNATIONAL, INC., TELEREUNION S.A. DE C.V. AND TELEREUNION
INTERNATIONAL S.A. V. MASTEC, INC. AND ACIETEL MEXICANA, S.A. DE C.V.
In May 1999, Telscape International, Inc., Telereunion S.A. de C.V. and
Telereunion International S.A. (collectively, the "Company") filed a lawsuit
against Mastec, Inc. and Acietel Mexicana, S.A. de C.V. (collectively, the
"Defendants"). The Company has filed a complaint for breach of contract,
negligent misrepresentation and promissory estoppels arising out of an
unconditional commitment letter executed by the Defendants pursuant to which the
Defendants committed to provide the Plaintiffs with financing in the amount of
$17.5 million. The Company has prayed for relief to include damages in the
amount of no less than $10.0 million plus attorney's fees and costs. The lawsuit
is pending in the U.S. District Court for the Southern District of Texas.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits. See Index to Exhibits on page 26.
(b) Reports on Form 8-K: NONE
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SIGNATURES
In accordance with the requirements of the Exchange Act, the issuer has
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Telscape International, Inc.
(Registrant)
Date: August 15, 1999 By: /s/ E. SCOTT CRIST
E. Scott Crist
CEO and Principal Executive Officer
Date: August 15, 1999 By: /s/ TODD M. BINET
Todd M. Binet
President, CFO
Principal Financial Officer
Date: August 15, 1999 By: /s/ JESSE MORRIS
Jesse Morris
Vice President of Finance, Controller
Principal Accounting Officer
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INDEX OF EXHIBITS
EXHIBIT NO. DESCRIPTION
1.1 - Form of Underwriting Agreement between the Company, BT Alex.
Brown Incorporated and Lehman Brother Inc. (Incorporated herein
by reference to Exhibit 1.1 to the Company's Registration
Statement No. 333-60271)
3.1 - Articles of Incorporation of the Registrant, as amended (filed
as Exhibit 3.1 to the Company's Registration Statement No.
33-80542-D and incorporated herein by reference)
3.2 - Bylaws of the Registrant, as amended (filed as Exhibit 3.2 to
the Company's Registration Statement No. 33-80542-D and
incorporated herein by reference)
3.3 - Articles of Incorporation of Polish Microwave, Inc. (filed as
Exhibit 3.3 to the Company's Registration Statement No.
33-80542-D and incorporated herein by reference)
3.4 - Bylaws of Polish Microwave, Inc. (filed as Exhibit 3.4 to the
Company's Registration Statement No. 33-80542-D and incorporated
herein by reference)
3.5 - Contract of Limited Liability Company of DTS/ZWUT (filed as
Exhibit 3.5 to the Company's Registration Statement No.
33-80542-D and incorporated herein by reference)
4.1 - Form of Certificate evidencing Common Stock (filed as Exhibit
4.1 to the Company's Registration Statement No. 33-80542-D and
incorporated herein by reference)
4.2 - Form of Warrant Agreement between American Stock Transfer &
Trust Company and the Company (filed as Exhibit 4.2 to the
Company's Registration Statement No. 33-80542-D and incorporated
herein by reference)
4.3 - Form of Warrant Certificate evidencing the Warrants (filed as
Exhibit 4.3 to the Company's Registration Statement No.
33-80542-D and incorporated herein by reference)
4.4 - Form of Statement of the establishment of the Series B
non-voting, nonparticipating Preferred Stock (filed as Exhibit
4.1 to the Company's Report on Form 10-QSB for the quarter ended
March 31, 1996 and incorporated herein by reference)
10.1 - Form of Representative's Warrants (filed as Exhibit 10.8 to
the Company's Registration Statement No. 33-80542-D and
incorporated herein by reference)
10.2 - Warrant Agreement between the Company and S.P. Krishna Murthy
(filed as Exhibit 10.13 to the Company's Report on Form 10-KSB
for the year ended December 31, 1995 and incorporated herein by
reference)
10.3 - Form of Series A Common Stock Warrant (filed as Exhibit 10.4
to the Company's Report on Form 10-QSB for the quarter ended
March 31, 1996 and incorporated herein by reference)
10.4 - Form of Series B Common Stock Warrant (filed as Exhibit 10.5
to the Company's Report on Form 10-QSB for the quarter ended
March 31, 1996 and incorporated herein by reference)
10.5 - Form of Employment Agreement for Manuel Landa, Ricardo Orea
Gudino and Oscar Garcia Mora (filed as Exhibit 10.6 to the
Company's Report on Form 10-QSB for the quarter ended March 31,
1996 and incorporated herein by reference)
10.6 - Form of Non-Qualified Stock Option Certificate and Agreement,
as amended, for Manuel Landa, Ricardo Orea Gudino and Oscar
Garcia Mora (filed as Exhibit 10.7 to the Company's Report on
Form 10-QSB for the quarter ended March 31, 1996 and
incorporated herein by reference)
10.7 - Form of Series A Common Stock Warrant dated May 17, 1996
between the Company and Manuel Landa, Ricardo Orea Gudino, Oscar
Garcia Mora and Christopher Efird (filed as Exhibit 10.1 to the
Company's Report on Form 8-K dated June 3, 1996 and incorporated
herein by reference)
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10.8 - Employment Agreement for E. Scott Crist (filed as Exhibit 10.1
to the Company's Report on Form 10-QSB for the quarter ended
September 30, 1996 and incorporated herein by reference)
10.9 - Employment agreement for Todd Binet (filed as Exhibit 10.29 to
the Company's Report on Form 10-KSB for the year ended December
31, 1996 and incorporated herein by reference)
10.10 - Form of Promissory Note dated July 1, 1997, between
Telereunion and Jose Luis Apan Wong, Raul de la Parra Zavala and
Alejandro Apan Wong (filed as Exhibit 10.4 to the Company's
Current Report on Form 8-K dated August 5, 1997 and incorporated
herein by reference)
10.11 - Form of Common Stock Warrant dated July 1, 1997, between the
Company and Jose Luis Apan Wong, Raul de la Parra Zavala and
Alejandro Apan Wong (filed as Exhibit 10.4 to the Company's
Current Report on Form 8-K dated August 5, 1997 and incorporated
herein by reference)
10.12 - Stock Purchase Agreement dated July 1, 1997, by and among the
Company, Telscape USA, Inc., Telereunion and Jose Luis Apan
Wong, Raul de la Parra Zavala and Alejandro Apan Wong (filed as
Exhibit 10.4 to the Company's Current Report on Form 8-K dated
August 5, 1997 and incorporated herein by reference)
10.13 - Stock Purchase Agreement dated October 1, 1997, by and among
Telscape USA, Inc., Telereunion, Inc. and Jose Martin Pena
Nunez, Carlos Joaquin De Lara Y Campos, Jorge Pena Nunez, Martha
Teresita Martin Del Campo Gutierrez (filed as Exhibit 10.1 to
the Company's Current Report on Form 8-K dated October 15, 1997
and incorporated herein by reference)
10.14 - Stock Purchase Agreement dated January 22, 1998, by and among
the Company; MSN Communications, Inc.; Stuart Newman and Michael
Newman, together with Form of Promissory Note dated January 23,
1998 in the principal amount of $375,000 payable to Stuart
Newman attached as Exhibit B-1 and Form of Promissory Note dated
January 23, 1998 in the principal amount of $375,000 payable to
Michael Newman attached as Exhibit B-2 (filed as Exhibit 10.1 to
the Company's Current Report on Form 8-K dated February 6, 1998
and incorporated herein by reference)
10.15 - Stock Purchase Agreement dated May 18, 1998, by and among
Telscape International, Inc., California Microwave, Inc. and
California Microwave Services Divisions, Inc. together with a
Form of Supply Agreement between California Microwave, Inc. and
California Microwave Services Division, Inc. as Exhibit B
(Incorporated herein by reference to Exhibit 10.1 to the
Company's Current Report on Form 8-K dated June 9, 1998)
10.16 - Securities Purchase Agreement between Deere Park Capital
Management, LLC and Telscape International, Inc. dated as of May
1, 1998; Registration Rights Agreement dated as of May 1, 1998
between Telscape International, Inc. and Deere Park Capital
Management, LLC; Form of Convertible Debenture for $3,000,000
dated May 1, 1998; Form of Stock Purchase Warrant to Purchase
8,952 shares of Common Stock of Telscape International, Inc.
dated May 12, 1998 (all filed as Exhibit 4.4 to the Company's
Report on Form 10Q for the quarter ended March 31, 1998 and
incorporated herein by reference)
10.17 - Form of Convertible Debenture in the principal amount of
$1,000,000 between Deere Park Capital Management, LLC and
Telscape International, Inc. dated as of May 28, 1998 and a form
of Stock Purchase Warrant to Purchase 2,427 shares of Common
Stock of Telscape International, Inc. dated May 28, 1998
(Incorporated herein by reference to Exhibit 10.3 to the
Company's Current Report on Form 8-K dated June 9, 1998)
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10.18 - Securities Purchase Agreement dated May 29, 1998 by and
between Telscape International, Inc. and Gordon Brothers
Capital, LLC; together with a Form of Convertible Debenture in
the principal amount of $5,000,000 payable to Gordon Brothers
Capital, LLC attached as Exhibit A; a Form of Stock Purchase
Warrant for Gordon Brothers, LLC for 12,136 shares of Common
Stock of Telscape International, Inc. attached as Exhibit B; and
a Registration Rights Agreement by and between Gordon Brothers
Capital, LLC and Telscape International, Inc. attached as
Exhibit C (Incorporated herein by reference to Exhibit 10.4 to
the Company's Current Report on Form 8-K dated June 9, 1998)
10.19 - Equity Purchase Agreement by and between INTERLINK
Communications Holding Co., Inc. and each of Telscape
International, Inc., E. Russell Hardy, Stephen Strohman, Monty
J. Moore, and Salvador Giblas dated as of May 19, 1998
(Incorporated herein by reference to Exhibit 10.5 to the
Company's Current Report on Form 8-K dated June 9, 1998)
10.20 - Form of Employment Agreement by and between California
Microwave Services Division, Inc. and E. Russell Hardy dated as
of May 18, 1998 (Incorporated herein by reference to Exhibit
10.6 to the Company's Current Report on Form 8-K dated June 9,
1998)
10.21 - Form of Employment Agreement by and between California
Microwave Services Division, Inc. and Stephen Strohman dated as
of May 18, 1998 (Incorporated herein by reference to Exhibit
10.7 to the Company's Current Report on Form 8-K dated June 9,
1998)
10.22 - Form of Employment Agreement by and between California
Microwave Services Division, Inc. and Monty J. Moore dated as of
May 18, 1998 (Incorporated herein by reference to Exhibit 10.8
to the Company's Current Report on Form 8-K dated June 9, 1998)
10.23 - Form of Consulting Agreement by and between California
Microwave Services Division, Inc. and Salvador Giblas dated as
of May 18, 1998 (Incorporated herein by reference to Exhibit
10.9 to the Company's Current Report on Form 8-K dated June 9,
1998)
10.24 - Loan Agreement between Telscape USA, Inc. and MSN
Communications, Inc. and Southwest Bank of Texas dated May 19,
1998 (Incorporated herein by reference to Exhibit 10.24 to the
Company's Registration Statement No. 333-60271)
10.25 - Outside Directors Stock Option Plan of the Polish Telephones
and Microwave Corporation (Incorporated herein by reference to
Exhibit 10.24 to the Company's Registration Statement No.
333-60271)
10.26 - Form of Financing Agreement by and between the Company and
Newbridge Financial Services Networks dated as of December 7,
1998 (Incorporated herein by reference to Exhibit 10.26 to the
Company's Report on Form 10-K for the year ended December 31,
1998)
10.27 - Form of Financing Agreement by and between the Company and
NTFC Capital Corporation dated as of January 11, 1999
(Incorporated herein by reference to Exhibit 10.27 to the
Company's Report on Form 10-K for the year ended December 31,
1998)
10.28 - Form of Securities Purchase Agreement by and between the
Company and Kendu Partners and MDNH Partners, L.P. dated as of
December 18, 1998, and Exhibit B to this agreement representing
the Form of Registration Rights Agreement (Incorporated herein
by reference to Exhibit 10.28 to the Company's Report on Form
10-K for the year ended December 31, 1998)
10.29 - Form of Securities Purchase Agreement by and between Telscape
International, Inc., INTERLINK Communications, Inc. and Cahill,
Warnock, Strategic Partners Fund, L.P. dated as of May 5, 1999,
Exhibit A representing the form of the Increasing Rate Secured
Promissory Note, Exhibit B representing the form of Warrant, and
Exhibit C representing the Security Agreement. (Incorporated
herein by reference to Exhibit 10.29 to the Company's Report on
Form 10-Q for the quarter ended March 31, 1999)
29
<PAGE>
*10.30 - Form of Securities Purchase Agreement by and between Telscape
International, Inc., INTERLINK Communications, Inc. and Cahill,
Warnock, Strategic Partners Fund, L.P. dated as of June 18,
1999, Exhibit A representing the form of the Increasing Rate
Secured Promissory Note, Exhibit B representing the form of
Warrant, and Exhibit C representing the Security Agreement and
Amendment No. 1 to Securities Purchase Agreement.
*10.31 - Securities Purchase Agreement dated July 19, 1999 by and
between Telscape International, Inc., Telscape USA, Inc., TSCP
International, Inc., MSN Communications, Inc. and Lucent
Technologies Inc., together with a Form of Demand Note in the
principal amount of $3,000,000 payable to Lucent Technologies
Inc. attached as Exhibit A; a Form of Stock Purchase Warrant for
Lucent Technologies Inc. for 85,000 shares of Common Stock of
Telscape International, Inc. attached as Exhibit B; and a
Security Agreement by and between Telscape International, Inc.,
Telscape USA, Inc., MSN Communications, Inc., TSCP
International, Inc. and State Street Bank and Trust Company
attached as Exhibit C.
*27.1 - Financial Data Schedule 1999
----------------
* Filed herewith
30
EXHIBIT 10.30
=======================================================
TELSCAPE INTERNATIONAL, INC.
INTERLINK COMMUNICATIONS, INC.
---------------
SECURITIES PURCHASE AGREEMENT
Dated as of June 18, 1999
---------------
Increasing Rate Senior Bridge Notes due June 17, 2000
Warrants to Purchase Shares of Common Stock
=======================================================
<PAGE>
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of June 18, 1999 (this
"AGREEMENT"), is among TELSCAPE INTERNATIONAL, INC., a Texas corporation
("TELSCAPE"), INTERLINK COMMUNICATIONS, INC., a Delaware corporation
("INTERLINK," Telscape and Interlink being collectively referred to as the
"COMPANY"), each of the lenders which is a signatory hereto (individually, a
"LENDER" and, collectively, the "LENDERS"), and CAHILL, WARNOCK, STRATEGIC
PARTNERS FUND, L.P., a Delaware limited partnership, as agent for the Lenders
(in such capacity, together with its successors in such capacity, the "AGENT").
In consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
SECTION 1 ISSUANCE OF SECURITIES.
SECTION 1.1 AUTHORIZATION. The Company has (a) duly authorized the
issue of its Increasing Rate Senior Bridge Notes due June 17, 2000, in the
aggregate principal amount of up to US$2,000,000 (individually, a "NOTE" and,
collectively, the "NOTES"), substantially in the form of EXHIBIT A hereto, and
(b) the issuance of warrants (the "WARRANTS") to purchase an aggregate of up to
62,501 shares of common stock of Telscape, US $.001 par value per share (the
"COMMON STOCK"), subject to adjustment, substantially in the form of EXHIBIT B
hereto. The Notes shall mature, shall bear interest, shall be payable and shall
be otherwise as provided herein and in EXHIBIT A. Each Lender shall receive a
Note payable to such Lender in a principal amount equal to the amount set forth
opposite such Lender's name on the signature pages hereof and otherwise duly
completed. The Warrants shall be exercisable, transferable and subject to
adjustment and shall be otherwise as provided herein and in EXHIBIT B. Each
Lender shall receive Warrants in an amount equal to the amount set forth
opposite such Lender's name on the signature pages hereof. The Notes, the
Warrants, the Warrant Shares (as defined in the Warrants) and certificates and
other instruments from time to time evidencing the same, are herein sometimes
collectively called the "SECURITIES."
SECTION 1.2 PURCHASE AND SALE OF THE SECURITIES; THE CLOSING. In
reliance upon the representations of the Company contained in SECTION 1.5 hereof
and subject to the terms and conditions set forth herein, the Lenders shall
purchase the Securities from the Company and the Company shall sell the
Securities to the Lenders for an aggregate purchase price of US$2,000,000 (the
"PURCHASE PRICE"). The closing (the "CLOSING") of the Lenders' purchase of the
Securities shall be held at 10:00 a.m., Baltimore time on June 18, 1999 (the
"CLOSING DATE"), at the offices of the Agent, One South Street, Suite 2150,
Baltimore, MD 21202, or at such other time or place as the parties hereto may
mutually agree.
On the Closing Date, the Company will deliver to the Lenders the
Notes in the aggregate principal amount specified above, and the Warrants,
registered in the Lenders' respective name or in the name(s) of their respective
nominee(s), as may be specified by each Lender upon five (5) Business Days'
advance written notice to the Company, duly executed and dated the Closing Date,
against the Lenders' delivery to the Company (or to persons at the direction of
the Company) of immediately available funds in the amount of the Purchase Price
(net of any costs or expenses to be paid by the Company to the Lenders or to the
Agent or their counsel pursuant to SECTION 3.17 of this
<PAGE>
Agreement). For purposes of this Agreement, "BUSINESS DAY" shall mean any day,
except a Saturday, Sunday or other day on which commercial banks in the State of
Maryland are authorized or required by law to close.
SECTION 1.3 THE NOTES.
(A) RATE OF INTEREST. Subject to modification pursuant to
SECTION 1.3 (C) below, each Note shall bear interest from the Closing Date on
the unpaid principal amount of the Note from time to time outstanding at a rate
per annum equal to eight percent (8%) (such rate, as increased as provided in
this Agreement, the "INTEREST RATE"). From and after December 18, 1999, the
Interest Rate shall increase to a rate per annum equal to nine percent (9%). The
Interest Rate shall increase by an additional one percent (1%) on the eighteenth
(18th) day of each month after December, 1999.
(B) PAYMENT OF INTEREST. Interest shall be calculated in
arrears through the last day of each month and shall be due and payable in
arrears in monthly installments on the last Business Day of each month,
commencing with June 30, 1999, and ending on June 17, 2000 (the "MATURITY
DATE"). The Company may request, by delivering, in each instance, a written
request to the Agent at least three (3) Business Days prior to the Maturity Date
or the extended Maturity Date, that Lenders extend the Maturity Date for up to
two (2) additional thirty (30) day periods. The Agent (with the consent of all
of the Lenders, in their sole discretion) shall grant such request or (if fewer
than all Lenders consent) shall deny such request.
(C) COMPUTATION OF INTEREST. Interest shall be computed on
each Note on the basis of a 365 or 366-day year, as the case may be, and the
actual number of days elapsed in any period, including the Closing Date but
excluding the date by which payment is deemed, pursuant to SECTION 1.3(g), to
have been received. Except as permitted pursuant to SECTION 1.3(b), any
principal or interest payment due on each Note which is not paid when due,
whether at stated maturity, by notice of acceleration or otherwise, shall bear
interest (calculated in the manner set forth above) at a rate equal to the
then-current Interest Rate plus an additional five percent (5%) per annum.
(D) PAYMENT OF PRINCIPAL. The outstanding principal balance of
each Note shall be due and payable in full on the Maturity Date.
(E) PREPAYMENTS.
(I) OPTIONAL. The Company may, from time to time,
prepay the Notes, in whole or in part, so long as each partial prepayment of
principal on the Notes is equal to or greater than US$50,000 and the Company has
given the Lenders one (1) or more Business Days written notice of such optional
prepayment. Any such optional prepayment of principal shall be without premium
or penalty. Each prepayment of principal under this SECTION shall be accompanied
by all interest then accrued and unpaid on the principal so prepaid. Any
principal prepaid pursuant to this SECTION shall be in addition to, and not in
lieu of, all payments otherwise required to be paid under the Notes and this
Agreement at the time of such prepayment.
(II) MANDATORY. (A) Except as provided in SECTION
1.3(E)(II)(B) below, unless otherwise agreed to by all of the Lenders, the
Company shall prepay the Notes
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<PAGE>
immediately upon receipt, and to the extent, of the net financing proceeds in
excess of $50,000 actually received by the Company in the event that the Company
completes any financing transaction (including any equity financing, but other
than the transactions set forth in the proviso in SECTION 3.5) whatsoever from
and after the Closing Date, including without limitation any public or private
placements of debt or equity. Notwithstanding anything to the contrary contained
herein, the Company may draw up to $1.5 million under its currently outstanding
equity line of credit without being required to prepay the Notes.
(B) In the event that Telscape completes a private equity
financing before the Maturity Date, resulting in net proceeds received by
Telscape of not less than $15,000,000 on terms substantially the same as those
set forth in the form of the letter of intent attached hereto as EXHIBIT F or on
terms which the Holder reasonably determines are no less favorable to the
investors than the terms set forth in such letter of intent (the "PRIVATE EQUITY
FINANCING"), the proceeds of the Private Equity Financing will be used to
prepay, in the aggregate and on a pro-rata basis, $1,000,000 of the unpaid
principal balance of the Notes, together with all accrued and unpaid interest,
and the remaining $1,000,000 unpaid principal balance on the Notes will convert
to indebtedness under the same terms as the lead investor receives under the
Private Equity Financing pursuant to documentation substantially the same as the
documentation entered into by Telscape in connection with the Private Equity
Financing.
(F) [INTENTIONALLY LEFT BLANK.]
(G) GENERAL PAYMENT PROVISIONS. (1) The Company shall make
each payment which it owes under the Notes or this Agreement not later than 3:00
p.m., Baltimore, Maryland time, on the date such payment becomes due and
payable, in lawful money of the United States of America, without set-off,
deduction or counterclaim, and in immediately available funds sent by wire
transfer to the Agent in accordance with its written payment instructions
received by the Company no later than five (5) Business Days prior to such
payment date. Any payment received by the Agent after such time shall be deemed
to have been made on the next following Business Day. Should any such payment
become due and payable on a day other than a Business Day, the maturity of such
payment shall be the next Business Day. Any amount received by the Agent,
whether as an interest payment, principal payment or principal prepayment from
or on behalf of the Company, shall be applied as follows in descending order of
priority: (i) to all costs, fees and expenses of the Agent and any Lender
(including reasonable attorneys' fees) incurred in connection with this
Agreement or in enforcing any obligations of, or in collecting any payments
from, any obligor hereunder or under the Securities; (ii) to interest which has
accrued on past due payments hereunder; (iii) to interest that is currently due
and payable on the Notes; (iv) to payment of principal on the Notes currently
due and payable; (v) to the payment of past due principal on the Notes; and (vi)
to the prepayment of principal due under the Notes.
(2)(A) The Agent agrees to act as the Lenders' sole managing
agent with respect to the Notes and shall take such action as may be reasonably
necessary to administer, monitor, and collect and disburse payments of principal
and interest on the Notes.
3
<PAGE>
(B) The Agent shall be an agent of the Lenders with respect to
all proceeds of any kind paid to or received by the Agent, by or on behalf of
the Company under the Notes or any other Loan Document.
(C) The Agent shall keep customary books and records relating
to the Notes and such books and records shall be available for the Lenders'
inspection during the Agent's normal business hours. The Agent agrees to deliver
to each Lender such documentation relating to the Notes as each Lender shall
reasonably request from time to time.
(D) Promptly upon the Agent's receipt from the Company of any
statement, report or other information that the Company is required to deliver
to the Agent or the Lenders by the terms of the Loan Documents, the Agent shall
deliver a complete and correct copy of the same to each Lender.
(E) The Agent shall hold the originals of, and shall have
delivered concurrently herewith to each Lender copies, of the Loan Documents.
(F) The Agent shall receive all payments on account of
principal and interest and all other sums payable pursuant to the Notes and the
other Loan Documents. Promptly upon the receipt thereof by the Agent, whether by
payment from the Company or otherwise, the Agent will transfer to each Lender,
such Lender's pro rata portion of (i) any and all interest payments hereafter
made on the Notes, (ii) any principal payments made on the Notes, (iii) any
amount received by Agent from the Company in reimbursement of expenses incurred
by the Lenders, and (iv) all other sums payable by the Company pursuant to any
of the Loan Documents.
(G) Each of the Lenders will, on written demand, reimburse the
Agent of their respective pro rata share of any and all reasonable costs,
expenses and disbursements which may be incurred or made by the Agent in
connection with its action in its capacity as the Agent. Except as expressly set
forth in this Agreement, the Agent shall have no obligation to the Lenders, and
in no event shall the Agent be deemed to be a fiduciary for the Lenders.
(H) NO FURTHER OBLIGATION. Other than the payment of the
Purchase Price, which payment is subject to the terms and conditions hereof, and
notwithstanding whether or not the Company has repaid such amounts in whole or
in part, the Agent and the Lenders shall have no obligation whatsoever to lend,
advance or otherwise pay any other monies to or on behalf of the Company.
SECTION 1.4 THE WARRANTS.
Concurrently herewith, Telscape and the Lenders are entering into
the Warrants, pursuant to which Telscape shall execute and deliver to each
Lender a Warrant on the Closing Date. The Warrants shall be dated as of the
Closing Date and shall only be exercisable from and after such date for the
purchase of shares of Common Stock. In the event that a Lender's Note has not
been repaid in full on or before certain dates, as set forth in such Lender's
Warrant, such Lender's Warrant shall become exercisable for the purchase of
additional shares of Common Stock, as set forth in such Lender's Warrant.
4
<PAGE>
SECTION 1.5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Lender that on the date
hereof and as of the Closing Date:
(a) Each of Telscape and Interlink is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas or Delaware, as the case may be, and is duly qualified as a foreign
corporation in each jurisdiction in which the character of the properties owned
or held under lease by it or the nature of the business transacted by it
requires such qualification. The Company has all requisite power to transact the
business it transacts and proposes to transact, to execute and deliver this
Agreement, the Securities and all other documents and agreements contemplated
hereby and thereby, and to perform the provisions hereof and thereof and to
consummate the transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement,
the Securities, and all other documents and agreements contemplated hereby and
thereby, and the consummation of the transactions contemplated hereby or
thereby, have been duly authorized and approved by the Company. This Agreement,
the Securities, and all other documents and agreements contemplated hereby and
thereby have each been duly authorized, executed and delivered by, and each is
the valid and binding obligation of, the Company enforceable against the Company
in accordance with its terms, except as may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws or by legal or
equitable principles relating to or limiting creditors' rights generally.
(c) Except as set forth in SCHEDULE 1.5(C) hereto or as set
forth in Telscape's most recent Securities Exchange Act of 1934 (as amended, the
"EXCHANGE ACT") filings with the Securities and Exchange Commission (the "SEC"),
copies of which have been provided to the Lenders by the Company, the Company
has no actual knowledge of any fact that materially adversely affects, or could
reasonably be expected to materially adversely affect, the business, prospects,
properties, assets, operations or financial condition of the Company, or the
ability of the Company to perform its respective obligations under this
Agreement, the Securities or any other documents or agreements contemplated
hereby and thereby.
(d) On the Closing Date, the authorized capital stock of
Telscape will consist of 25,000,000 shares of Common Stock, 5,000,000 shares of
preferred stock and 1,000,000 shares of series A preferred stock. As of the
Closing Date, Telscape has issued and outstanding 6,618,292 shares of Common
Stock, no shares of preferred stock and no shares of series A preferred stock.
The Common Stock and any Warrant Shares issued pursuant to the Warrants were or
will, when issued, be duly and validly issued, fully paid and nonassessable. On
the Closing Date, the authorized capital stock of Interlink will consist of: (1)
600,000 shares of common stock, 10,500 shares of which are issued and
outstanding, none of such issued and outstanding shares are owned by Telscape,
and (2) 89,500 shares of convertible participating preferred stock, all of which
are issued and outstanding and are owned, legally and beneficially, by Telscape.
Except as set forth in SCHEDULE 1.5(D) hereto, there are no other outstanding
options, warrants or similar rights of any person to acquire any of the capital
stock of the Company and the Company has no contingent obligations to issue
additional shares. Except as set forth in SCHEDULE 1.5(D) hereto, the Company is
not subject to
5
<PAGE>
any obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any of its capital stock or other securities or obligation evidencing the
right of any holder thereof to purchase any of its capital stock or other
securities.
(e) The consummation of the transactions contemplated by this
Agreement and the performance of the terms and provisions of this Agreement, the
Securities and any other documents or agreements contemplated hereby and thereby
will not (i) contravene, result in any breach of, or constitute a default under
any indenture, mortgage, deed of trust, bank loan or credit agreement, corporate
charter, by-laws or other material agreement or instrument to which the Company
is a party or by which the Company or any of its properties is bound, (ii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order of any court, arbitrator or Federal, State, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (collectively, "GOVERNMENTAL PERSON")
applicable to the Company or (iii) violate any material provision of any statute
or other law, rule or regulation of any Governmental Person applicable to the
Company.
(f) Except as set forth in SCHEDULE 1.5(F) hereto, no consent,
approval or authorization of, or registration, filing or declaration with, any
person or entity is required for the issuance of the Securities or the valid
execution and delivery of the Securities or for the performance by the Company
of this Agreement, the Securities, and any other documents or agreements
contemplated hereby and thereby, other than the filings, registrations or
qualifications under the securities laws or "blue sky" laws of any State that
may be required to be made or obtained in connection with the offer, issuance,
sale or delivery of the Securities or any interest therein.
(g) The Company possesses all material licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names and
any other tangible or intangible or intellectual property rights, or rights
thereto, required to conduct its business substantially as now conducted and as
currently proposed to be conducted, without actual knowledge of conflict with
the rights of others. The Company has not directly or indirectly, created,
incurred, assumed or permitted to exist any Lien (as hereinafter defined) on any
such intellectual property.
(h) No employee benefit plan established or maintained by the
Company or to which the Company has made contributions is subject to Part 3 of
Subtitle B of Title 1 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 412 of the Internal Revenue Code of 1986, as amended.
(i) Neither the Company nor anyone acting on its behalf has
offered the Securities, or any interest or participation therein, for sale to or
solicited any offer to buy the Securities, or any interest or participation
therein, from, or otherwise approached or negotiated in respect thereof with,
any person other than the Agent and the Lenders, and its partners, officers,
affiliates and representatives. Neither the Company nor anyone acting on its
behalf has taken and will not take any action that would require the offer,
issuance or sale of the Securities or any interest or participation therein to
be registered under Section 5 of the Securities Act of 1933 (as amended, the
"SECURITIES ACT"), or applicable state securities laws. The Company has not
authorized or appointed any person to act on its behalf in connection with the
offering of the Securities. No broker or finder (other than Imperial Capital,
LLC and Strategic Growth International, Inc.) has acted for the Company
6
<PAGE>
in connection with this Agreement or the transactions contemplated hereby, and
no broker or finder (other than Imperial Capital, LLC and Strategic Growth
International, Inc.) is entitled to any brokerage or finder's fees or other
commission in respect of such transaction based in any way on agreements,
arrangements or understandings made by or on behalf of the Company. All fees
owed to Imperial Capital, LLC and Strategic Growth International, Inc. in
connection with the transactions contemplated by this Agreement will be paid
when due by the Company.
(j) No part of the proceeds from the sale of the Securities
hereunder will be used, directly or indirectly, for the purpose of buying or
carrying any Amargin stock" within the meaning of Regulation G of the Board of
Governors of the Federal Reserve System (12 CFR 207), or for the purpose of
buying or carrying or trading in any securities under such circumstances as to
involve the Company in a violation of Regulation X of said Board (12 CFR 224) or
to involve any broker or dealer in a violation of Regulation T of said Board (12
CFR 220). The assets of the Company do not include any margin stock, and the
Company does not have any present intention of acquiring any margin stock.
(k) The Company is not an investment company subject to
registration under the Investment Company Act of 1940, as amended.
(l) At Closing, the Lenders shall acquire good and marketable
title to the Securities free and clear of all covenants, conditions,
restrictions, liens, pledges, charges, encumbrances, options and adverse claims
or rights of any kind whatsoever.
(m) Except for Indebtedness incurred in the ordinary course of
business not in excess of US$10,000 in the aggregate or as otherwise disclosed
in SCHEDULE 1.5(M), the Company has no outstanding Indebtedness of any kind
(including contingent obligations, tax assessments and unusual forward or
long-term commitments). For purposes of this Agreement, "INDEBTEDNESS" shall
mean any obligation for borrowed money (other than the Company's obligations to
the Lenders in connection herewith and the obligations contemplated in SECTION
2.7), including without limitation (A) any obligation owed for all or any part
of the purchase price of property, services or other assets or for the cost of
property or other assets constructed or of improvements thereto, (B) accounts
payable included in current liabilities outstanding for more than one hundred
twenty (120) days and incurred in respect of property purchased in the ordinary
course of business, (C) any obligations secured by any lien in respect of
property even though the person owning the property has not assumed or become
liable for the payment of such obligation, (D) any guarantee with respect to any
of the foregoing indebtedness of another person, and (E) obligations in respect
of letters of credit.
(n) Except as set forth in SCHEDULE 1.5(N) hereto, there are
no material (i) actions, suits or legal, equitable, arbitrative or
administrative proceedings pending, or to the knowledge of the Company,
threatened against the Company and (ii) judgements, injunctions, writs, rulings
or orders by any Governmental Person against the Company or its directors or
officers.
(o) Neither the Company nor any of its officers, directors,
employees or agents (or stockholders, distributors, representatives or other
persons acting on the express, implied or apparent authority of Company) 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
7
<PAGE>
of value, any extraordinary discount, or any other unlawful or unusual
inducement, to or from any person, business association or governmental official
or entity in the United States or elsewhere in connection with or in furtherance
of the business of Company (including, without limitation, any offer, payment or
promise to pay money or other thing of value (i) to any foreign official or
political party (or official thereof) for the purposes of influencing any act,
decision or omission in order to assist Company 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 is not in any manner dependent upon the
making or receipt of such payments, discounts or other inducements.
(p) Telscape has registered its Common Stock pursuant to
Section 12(b) or 12(g) of the Exchange Act and is in full compliance with all
reporting requirements of the Exchange Act, and Telscape has maintained all
requirements for the continued listing or quotation of its Common Stock, and
such Common Stock is currently listed or quoted on the Principal Market. As of
the date hereof, the Principal Market is the NASDAQ National Market.
(q) The Company has furnished or made available or will
furnish and make available prior to the Closing Date to the Lenders true and
correct copies of the Company's articles or certificate of incorporation, as
amended and in effect on the date hereof, and the Company's by-laws, as amended
and in effect on the date hereof.
(r) As of their respective dates, all registration statements,
reports and documents, including proxy statements filed by or on behalf of
Telscape with the SEC pursuant to the Securities Act or Exchange Act (the "SEC
DOCUMENTS") complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and rules and
regulations of the SEC promulgated thereunder and other federal, state and local
laws, rules and regulations applicable to such SEC Documents, and none of the
SEC Documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of Telscape included in the SEC
Documents comply as to form in all material respects with generally accepted
accounting principles, consistently applied, and the published rules and
regulations of the SEC or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of Telscape as of the dates thereof and the results of operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
(s) Since December 31, 1998, no material adverse effect on the
business, operations, properties, prospects, or financial condition of Telscape
("MATERIAL ADVERSE EFFECT") has occurred or exists with respect to Telscape or
its subsidiaries.
(t) Telscape and its subsidiaries have no liabilities or
obligations which are material, individually or in the aggregate, and are not
disclosed in the SEC Documents or
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otherwise publicly announced, other than those incurred in the ordinary course
of Telscape's or its subsidiaries' respective businesses since the filing of
Telscape's most recent SEC Document, and which, individually or in the
aggregate, do not or would not have a Material Adverse Effect on Telscape or
upon any of its subsidiaries.
(u) Since the filing of Telscape's most recent SEC Document,
no event or circumstance has occurred or exists with respect to Telscape or its
subsidiaries or their respective businesses, properties, prospects, operations
or financial condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement prior to the date hereof by Telscape
but which has not been so publicly announced or disclosed in the SEC.
SECTION 1.6 REPRESENTATIONS AND WARRANTIES OF THE LENDERS.
Each Lender represents and warrants to the Company that on the date
hereof and as of the Closing Date:
(a) Such Lender has all requisite power to execute and deliver this
Agreement, and all other documents and agreements contemplated hereby and
thereby, and to perform the provisions hereof and thereof and to consummate the
transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement, and
all other documents and agreements contemplated hereby and thereby, and the
consummation of the transactions contemplated hereby or thereby, have been duly
authorized and approved by such Lender. This Agreement, and all other documents
and agreements contemplated hereby and thereby have each been duly authorized,
executed and delivered by, and each is the valid and binding obligation of, such
Lender enforceable against such Lender in accordance with its terms, except as
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws or by legal or equitable principles relating to or
limiting creditors' rights generally.
(c) Such Lender is an "ACCREDITED INVESTOR" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act of 1933, as
amended.
(d) Such Lender acknowledges that the securities being acquired by
it are not being acquired pursuant to a transaction registered under the
Securities Act of 1933, as amended, in that the issuance of the securities does
not involve any public offering.
(e) Such Lender represents that it is acquiring the securities for
investment for its own account, and not with a view to distribution.
(f) Without limiting the representations and warranties contained in
the Loan Documents (as defined below) such Lender has received from the Company
access to information as it deems necessary for the purchase of the securities.
(g) Such Lender will not sell or otherwise transfer the securities
without registration of such securities under the Securities Act of 1933, as
amended, or an exemption
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therefrom, and fully understands and agrees that such Lender must bear the
economic risk of its purchase for an indefinite period of time.
(h) Such Lender represents that it is willing and able to bear the
economic risk of its investment in the Securities issued hereunder, and has no
need for liquidity with respect thereto, is able to sustain a complete loss of
its investment, and purchasing such securities for its own account for
investment and not with a view for resale or distribution thereof except in
compliance with the Securities Act of 1933, as amended.
SECTION 2 CONDITIONS TO OBLIGATIONS OF THE LENDERS. The obligations of the
Lenders to purchase and pay for the Securities on the Closing Date shall be
subject to the satisfaction on or before the Closing Date of the conditions
hereinafter set forth:
SECTION 2.1 PROCEEDINGS SATISFACTORY. All proceedings taken on or
prior to the Closing Date in connection with the issuance of the Securities and
the consummation of the transactions contemplated hereby and all documents and
papers relating thereto shall be satisfactory in form and substance to the
Agent, the Lenders and their counsel.
SECTION 2.2 REPRESENTATIONS TRUE. All representations and warranties
of the Company contained herein shall be true and correct in all respects on and
as of the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date; the Company shall have
performed in all respects all agreements on its part required to be performed
under this Agreement on or prior to the Closing Date; and no Event of Default
(as hereinafter defined) shall have occurred and be continuing on and as of the
Closing Date.
SECTION 2.3 THE PURCHASE BY THE LENDERS PERMITTED BY APPLICABLE
LAWS. The sale by the Company and the payment for the Securities to be purchased
by the Lenders (i) shall not be prohibited by any applicable law or governmental
regulation, release, interpretation or opinion, (ii) shall not subject the Agent
or any Lender to any penalty under or pursuant to any applicable law or
governmental regulation, and (iii) shall be permitted by the laws and
regulations of the jurisdictions to which the Agent or any Lender is subject.
SECTION 2.4 [INTENTIONALLY LEFT BLANK.]
SECTION 2.5 EXECUTION AND DELIVERY OF DOCUMENTS; GRANTING OF
SECURITY INTEREST. The Lenders shall have received the following at its offices,
duly executed and delivered and in form and substance satisfactory to the Agent,
the Lenders and their counsel: the Notes and the Warrants, and such other
documents and information as the Agent or any Lender may reasonably request in
connection herewith, including without limitation, (a) a Security Agreement in
the form of EXHIBIT C hereto, (b) an Omnibus Certificate, substantially in the
form of EXHIBIT D hereto and (c) a Subordination Agreement in the form of
EXHIBIT E hereto. The Security Agreement, the Omnibus Certificate and the
Subordination Agreement, together with this Agreement, the Notes and the
Warrants are sometimes collectively referred to herein as the "LOAN DOCUMENTS."
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SECTION 2.6 DUE DILIGENCE. The Agent and each Lender shall have
completed their due diligence investigation of the Company and the transactions
contemplated and shall have found, in their sole and absolute discretion, no
state of affairs or circumstances unsatisfactory to the Agent or any Lender.
SECTION 3 COVENANTS. The Company covenants and agrees that on and after
the date hereof, so long as the Note shall be outstanding:
SECTION 3.1 PAYMENT OF THE NOTE. The Company shall pay the principal
of and interest on the Notes on the dates and in the manner provided in the
Notes and this Agreement. The obligation of the Company described in the
preceding sentence is absolute and unconditional, irrespective of any tax or
accounting treatment of such obligation including without limitation any
documentary stamp, transfer, ad valorem or other taxes assessed by any
jurisdiction in connection with this transaction.
SECTION 3.2 STAY, EXTENSION AND USURY LAWS. The Company agrees (to
the extent it may lawfully do so) that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would prohibit or
forgive the Company from paying all or a portion of the principal of, or
interest on, any Note as contemplated herein, wherever enacted, now or at any
time hereinafter in force, or that may materially affect the covenants or the
performance of this Agreement in any manner inconsistent with the provisions of
this Agreement. The Company expressly waives all benefit or advantage of any
such law. If a court of competent jurisdiction prescribes that the Company may
not waive its rights to take the benefit or advantage of any stay or extension
law or any usury law or other law in accordance with the prior sentence, then
the obligation to pay interest on each Note shall be reduced to the maximum
legal limit under applicable law governing the interest payable in connection
with such Note, and any amount of interest paid by the Company that is deemed
illegal shall be deemed to have been a prepayment of principal on such Note.
SECTION 3.3 CORPORATE EXISTENCE. The Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, as the case may be, in accordance with the rights (charter
and statutory), licenses and franchises of the Company.
SECTION 3.4 TAXES. The Company shall pay prior to delinquency all
taxes, assessments and governmental levies that may be imposed upon the Company,
except as contested in good faith and by appropriate proceedings.
SECTION 3.5 LIMITATIONS ON INDEBTEDNESS. Without the prior written
consent of all of the Lenders, which consent may not be unreasonably withheld or
denied , the Company shall not, and shall not permit its consolidated
subsidiaries to, directly or indirectly, create, incur, assume, suffer to exist
or otherwise in any manner become liable or commit to become liable for any
Indebtedness other than the Company's obligations to the Agent and the Lenders
in connection herewith and Indebtedness incurred in the ordinary course of
business not in excess of US$10,000 in the aggregate; provided, however, that
(i) debt incurred for the purchase of the Securities hereunder, (ii) debt
incurred solely for the purpose of leasing, or financing all or any part of the
cost of acquiring,
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personal property for the Company and/or its consolidated subsidiaries not to
exceed $13 million in the aggregate, (iii) replacement or renewal of any debt
outstanding at the Closing Date hereof, (iv) advances under revolving credit
agreements not to exceed a principal amount of $2 million at any one time
outstanding, plus interest thereon, (v) a subordinated bridge financing in the
aggregate principal amount of up to $4 million, plus interest thereon, shall be
permitted hereunder. Notwithstanding the foregoing, should all of the Lenders
consent to the Company's incurring of any Indebtedness (other than Indebtedness
described in the immediately preceding sentence), the net proceeds of such
Indebtedness shall be applied as a mandatory prepayment of principal of the
Notes in accordance with SECTION 1.3(E) hereof.
SECTION 3.6 LIMITATIONS ON LIENS. The Company shall not directly or
indirectly, create, incur, assume or permit to exist or otherwise cause or
permit to become effective any mortgage, lien, pledge, charge, security interest
or other encumbrance in or on, or any interest or title of any vendor, lessor,
lender or other secured party to or of the Company under any conditional sale or
other title retention agreement or capital lease with respect to, any property
or asset of the Company, or the signing or filing of a financing statement that
names the Company as debtor, or the signing of any security agreement
authorizing any other party as the secured party thereunder to file any
financing statement (collectively, a "LIEN"), other than Liens created pursuant
to the Loan Documents, Liens otherwise approved in writing by all of the Lenders
(in their sole discretion), and Liens securing the transactions referred to in
CLAUSES (I) -(IV) of the proviso of SECTION 3.5.
SECTION 3.7 LIMITATION ON ACTIVITIES. The Company shall not, and
shall not permit any of its 50% or greater owned subsidiaries to, engage in any
business or investment activities other than those necessary for, incident to,
connected with or arising out of the Company's principal activities in the
telecommunications industry.
SECTION 3.8 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES. The Company
shall not make any payment to or investment in, or enter into any transaction
with, any Affiliate, including without limitation the purchase, sale or exchange
of property or the rendering of any service, except transactions entered into
with Affiliates (a) in the ordinary course of business, (b) on terms and
conditions substantially similar to those that the Company would have received
in an "arm's length" transaction with a third party and (c) related to the
Company's principal activities. For purposes of this Agreement, "AFFILIATE"
shall mean any other person controlling or controlled by or under common control
with such specified person. For the purposes of this definition, "CONTROL" when
used with respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
Notwithstanding anything to the contrary in the Loan Documents, the Company
shall be permitted to enter into the bridge loan referred to in the proviso of
SECTION 3.5.
SECTION 3.9 CHANGE IN CONTROL. Except with the written consent of
all of the Lenders, the Company shall not merge or consolidate with or into, or
sell, transfer, lease or convey all or substantially all of its assets to, any
person or into another corporation or entity, or otherwise permit any person or
group to acquire direct or indirect beneficial ownership of 50% or more of the
outstanding capital stock of the Company.
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SECTION 3.10 MAINTENANCE OF PROPERTIES. The Company shall maintain,
preserve, protect and keep its properties in good repair, working order and
condition (ordinary wear and tear excepted), and make necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times materially consistent with past
practices of the Company.
SECTION 3.11 MAINTENANCE OF INSURANCE. The Company shall maintain
insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar properties in the same general areas in
which the Company operates.
SECTION 3.12 SALE OF ASSETS. The Company shall not sell, lease,
transfer or dispose of any of its interest in its respective properties or
assets, whether real, personal or mixed, or tangible or intangible, other than
in the ordinary course of business consistent with prudent business practice
(which includes the disposition in a commercially reasonable manner of equipment
and inventory that is obsolete).
SECTION 3.13 REPURCHASE OF SECURITIES. Except with the written
consent of all of the Lenders (which may be granted or withheld in their sole
discretion), the Company shall not repurchase or otherwise acquire or retire any
of its capital stock or other securities or obligation evidencing the right of
any holder thereof to purchase any of its capital stock or other securities in
an aggregate amount in excess of US$10,000.00; provided, however, that any and
all amounts owing to Deere Park Capital Management, LLC, not to exceed
$5,000,000, shall be specifically excluded from this restriction.
SECTION 3.14 REPORTING; INSPECTION. Within 45 days after each
month-end, commencing with month-end June, 1999, the Company shall provide to
each Lender a written certificate signed by the Company's President, containing
the following: (a) copies of all reports and other written information which the
Company delivers to its securityholders during such month; (b) copies of all of
the Company's internally prepared balance sheets, profit and loss statements and
cash flow statements for such month, all prepared in conformity with generally
accepted accounting principles except for the absence of footnotes and for
regularly recurring periodic adjustments; and (c) such other information as the
Agent or any Lender may reasonably request from time to time, including without
limitation the ability to communicate orally and in writing with officers and
directors of the Company. In addition, each of the Agent and the Lenders, at
their expense, shall have the right to inspect the Company's properties and to
examine its books and records, all at reasonable times and upon reasonable
notice to the Company.
SECTION 3.15 COMPLIANCE WITH LAWS. The Company shall comply in all
material respects with all applicable laws, statutes and regulations of any
Governmental Person, a violation of which would have a material adverse effect
on the financial condition, operations, business, profits, prospects or
properties of the Company or the validity or enforceability of this Agreement,
the Securities or any other documents or agreements contemplated hereby or
thereby or any of the transactions contemplated hereby or thereby.
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SECTION 3.16 PAYMENT OF EXPENSES. Whether or not the transactions
contemplated by this Agreement are consummated, the Company shall promptly pay
to the Agent and the Lenders all reasonable costs and out-of-pocket expenses
incurred by any of them, including without limitation reasonable attorneys'
fees, incurred in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Securities, any administration costs in
connection therewith, and defense or enforcement costs related thereto. On the
Closing Date, the Company shall pay to the Agent and the Lenders all reasonable
costs and out-of-pocket expenses of any of them, including, without limitation,
the reasonable fees, office charges and expenses of Nida & Maloney, counsel to
the Company, by directing the Lenders to pay themselves and such entities on the
Closing Date out of the Purchase Price.
SECTION 3.17 [INTENTIONALLY LEFT BLANK.]
SECTION 3.18 [INTENTIONALLY LEFT BLANK.]
SECTION 3.19 RESTRICTED PAYMENTS. The Company shall not, directly or
indirectly, declare or make any Restricted Payment (as defined below).
"RESTRICTED PAYMENT" means any dividend or distribution (in cash, property or
obligations) on any shares of any class of capital stock (now or hereafter
outstanding) of the Company and any warrants, options or other rights with
respect to any shares of any class of capital stock of the Company (other than
pursuant to the Loan Documents).
SECTION 4 EVENTS OF DEFAULT; REMEDIES.
SECTION 4.1 EVENTS OF DEFAULT DEFINED; ACCELERATION OF MATURITY. If
any of the following events ("EVENTS OF DEFAULT") shall occur and be continuing
(for any reason whatsoever and whether it shall be voluntary or involuntary or
by operation of law or otherwise):
A. default shall be made in the payment of the principal of, or
interest on, the Note when and as the same shall become due and payable, whether
at stated maturity, by acceleration, upon a mandatory prepayment due date or
otherwise, and such default is not cured within five (5) Business Days; or
B. default shall be made in the performance or observance of any
covenant, agreement or condition contained herein or in any of the other Loan
Documents, and such default shall have continued for a period of five (5)
Business Days; or
C. the Company shall (1) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property and assets, (2) be
generally unable to pay its debts as such debts become due, (3) make a general
assignment for the benefit of its creditors, (4) commence a voluntary case under
the United States Bankruptcy Code or similar law or regulation (as now or
hereafter in effect), (5) file a petition seeking to take advantage of any other
law providing for the relief of debtors, (6) fail to controvert in a timely or
appropriate manner, or acquiesce in writing to, any petition filed against it in
an
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involuntary case under such Bankruptcy Code or other law or regulation, (7)
dissolve, (8) take any corporate action under any applicable law analogous to
any of the foregoing, or (9) take any corporate action for the purpose of
effecting any of the foregoing; or
D. a proceeding or case shall be commenced, without the application
or consent of the Company in any court of competent jurisdiction, seeking (1)
the liquidation, reorganization, dissolution, winding up or composition or
readjustment of its debts, (2) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or for all or any substantial part of
its assets, or (3) similar relief in respect of the Company, under any law
providing for the relief of debtors, and such proceeding or case shall continue
undismissed, or unstayed and in effect, for a period of sixty (60) days; or an
order for relief shall be entered in an involuntary case under the United States
Bankruptcy Code or other similar law or regulation, against the Company; or
action under the laws of any jurisdiction affecting the Company analogous to any
of the foregoing shall be taken with respect to the Company and shall continue
unstayed and in effect for any period of sixty (60) days; or
E. final judgment for the payment of money shall be rendered by a
court of competent jurisdiction against the Company and the Company shall not
discharge the same or provide for its discharge in accordance with its terms, or
procure a stay of execution thereof within sixty (60) days from the date of
entry thereof and within said period of sixty (60) days, or such longer period
during which execution of such judgment shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal, and such
judgment together with all other such judgments shall exceed in the aggregate
US$250,000; or
F. any representation or warranty made by the Company in this
Agreement, any other Loan Document or any other documents or agreements
contemplated hereby and thereby or in any certificate or other instrument
delivered hereunder or pursuant hereto or in connection with any provision
hereof shall be false or incorrect in any material respect on the date as of
which made;
then (x) upon the occurrence of any Event of Default described in SUBSECTION C
OR D, the unpaid principal amount of the Notes, together with the interest
accrued thereon and all other amounts payable by the Company hereunder, shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by the Company or (y) upon the occurrence of any other Event of Default,
the Lenders may, by notice to the Company, declare the unpaid principal amount
of the Notes to be, and the same shall forthwith become, due and payable,
together with the interest accrued thereon and all other amounts payable by the
Company hereunder.
SECTION 4.2 SUITS FOR ENFORCEMENT. If any Event of Default shall
have occurred and be continuing, the Agent and the Lenders may proceed to
protect and enforce their rights against the Company, either by suit in equity
or by action at law, or both, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the exercise of
any power granted in this Agreement, or the Agent and the Lenders may proceed to
enforce the payment by the Company of all sums due upon the Note or to enforce
any other legal or equitable right of the Agent and/or any Lender.
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The Company covenants that, if it shall default in the making of any
payment due under any Note or in the performance or observance of any agreement
contained in this Agreement, it will pay to the Agent and the Lenders such
further amounts, to the extent lawful, to cover any reasonable costs and
expenses of collection or of otherwise enforcing their respective rights,
including without limitation the reasonable counsel fees and costs and expenses
incurred in connection with any restructuring, negotiation, refinancing,
workout, bankruptcy or other similar transaction or proceeding. The obligations
set forth in this paragraph shall survive the payment in full of the Notes.
SECTION 4.3 REMEDIES CUMULATIVE. No remedy herein conferred upon the
Agent or any Lender is intended to be exclusive of any other remedy and each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise.
SECTION 4.4 REMEDIES NOT WAIVED. No course of dealing between the
Company and any other person and no delay or failure in exercising any rights
hereunder or under the Note in respect thereof shall operate as a waiver of any
rights of the Agent or any Lender.
SECTION 5 TAXES.
The Company will pay all taxes (including interest and penalties),
other than taxes imposed on the income of the Agent and the Lenders, which may
be payable in respect of the execution and delivery of this Agreement or of the
execution and delivery (but not the transfer) of any of the Securities or of any
amendment of, or waiver or consent under or with respect to, this Agreement or
of any of the Securities and will save the Agent and the Lenders and all
subsequent holders of the Securities harmless against any loss or liability
resulting from nonpayment or delay in payment of any such tax. The obligations
of the Company under this Section shall survive the payment of the Notes.
SECTION 6 MISCELLANEOUS.
SECTION 6.1 INDEMNIFICATION. The Company agrees to indemnify, defend
and hold harmless the Agent, the Lenders and their respective successors,
assigns, heirs, subsidiaries, Affiliates and all of the officers, directors,
employees, partners and agents (including attorneys and accountants) of each of
the aforementioned persons or entities, and each of them, from and against any
and all losses, claims, damages, liabilities, expenses, demands, causes of
action, suits, debts, obligations, rights, promises, acts, agreements and
damages of any kind or nature whatsoever, whether at law or in equity, whether
known or unknown, foreseen or unforeseen, heretofore or hereafter arising out
of, relating to, connected with or incidental to the failure of any
representation or warranty made by the Company or in any other documents or
agreements contemplated hereby or the failure of the Company to comply in all
material respects with the covenants contained in this Agreement or in any other
documents or agreements contemplated hereby. The indemnification set forth
herein shall in no way limit, impair or otherwise have any effect on the
indemnification provisions set forth in any agreement between Imperial Capital,
LLC and the Company.
SECTION 6.2 RELIANCE ON AND SURVIVAL OF REPRESENTATIONS. All
representations, warranties, covenants and agreements of the Company herein
shall be deemed to be material and to
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have been relied upon by the Agent and the Lenders and shall survive the
execution and delivery of this Agreement and of the Securities, for so long as
the Notes remain outstanding.
SECTION 6.3 SUCCESSORS AND ASSIGNS. This Agreement shall bind and
inure to the benefit of and be enforceable by the Company, the Agent, the
Lenders and each of their respective successors and assigns, and, in addition,
shall inure to the benefit of and be enforceable by each person who shall from
time to time be a holder of the Note. The Agent and the Lenders shall be
permitted to transfer the Securities in accordance with their terms and in
accordance with applicable restrictions under applicable federal and state
securities laws.
SECTION 6.4 NOTICES. All notices and other communications provided
for in this Agreement shall be in writing and delivered by registered or
certified mail, postage prepaid, or delivered by overnight courier (for next
Business Day delivery) or telecopied, addressed as follows, or at such other
address as any of the parties hereto may hereafter designate by notice to the
other parties given in accordance with this SECTION:
1) if to the Company:
Telscape International, Inc.
Interlink Communications, Inc.
2700 Post Oak Boulevard, Suite 1000
Houston, TX 77056
Attn: Todd M. Binet, President of Telscape and Vice President
of Interlink
Telephone: (713) 968-0968, ext. 22
Telecopier: (713) 968-0930
With a copy of any notice to:
Nida & Maloney
800 Anacapa Street
Santa Barbara, California 93101
Attn: C. Thomas Hopkins, Esq.
Telephone: (805) 568-1151
Telecopier: (805) 568-1955
2) if to the Agent:
Cahill, Warnock, Strategic Partners Fund, L.P.
One South Street, Suite 2150
Baltimore, MD 21202
Attn: Mr. David L. Warnock
Telephone: (410) 895-3810
Telecopier: (410) 895-3805
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With a copy of any notice to:
Hogan & Hartson
555 13th Street, Suite 1300
Washington, DC 20004
Attn: Timothy A. Lloyd, Esq.
Telephone: (202) 637-8619
Telecopier: (202) 637-5910
3) If to any Lender, to:
the Address for Notices set forth below such Lender's
name on the signature pages hereof
Any such notice or communication shall be deemed to have been duly
given on the fifth day after being so mailed, the next Business Day after
delivery by overnight courier, when received when sent by telecopy or upon
receipt when delivered personally.
SECTION 6.5 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures may be
exchanged by telecopy, with original signatures to follow. Each of the parties
hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The
original signature pages shall be forwarded to the Agent or its counsel and the
Agent or its counsel will provide all of the parties hereto with a copy of the
entire Agreement.
SECTION 6.6 AMENDMENTS. This Agreement may only be amended by a
writing duly executed by the parties hereto.
SECTION 6.7 SEVERABILITY. If any term or provision of this Agreement
or any other document executed in connection herewith shall be determined to be
illegal or unenforceable, all other terms and provisions hereof and thereof
shall nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
SECTION 6.8 GOVERNING LAW; SUBMISSION TO PROCESS. EXCEPT TO THE
EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY SELECTED IN A DOCUMENT
OR SECURITY, THIS AGREEMENT AND THE SECURITIES AND ALL AMENDMENTS, SUPPLEMENTS,
WAIVERS AND CONSENTS RELATING HERETO OR THERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS ITSELF TO
THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
STATE OF MARYLAND AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE
UPON IT IN ANY LEGAL PROCEEDINGS RELATING HERETO BY ANY MEANS ALLOWED
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UNDER MARYLAND OR FEDERAL LAW. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE COMPANY SHALL APPOINT AN AGENT FOR SERVICE OF PROCESS IN
MARYLAND AND SHALL NOTIFY THE AGENT AND THE LENDERS OF ANY FUTURE CHANGE
THEREIN.
SECTION 6.9 ENTIRE AGREEMENT. This Agreement contains the entire
Agreement of the parties hereto with respect to the transactions contemplated
hereby and supersedes all previous oral and written, and all previous
contemporaneous oral negotiations, commitments and understandings.
SECTION 6.10 FURTHER ASSURANCES. The Company agrees promptly to
execute and deliver such documents and to take such other acts as are reasonably
necessary to effectuate the purposes of this Agreement.
SECTION 6.11 HEADINGS. The headings contained herein are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 6.12 WAIVER OF JURY TRIAL. THE COMPANY, THE AGENT AND THE
LENDERS EACH HEREBY AGREE TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE
SECURITIES OR ANY OTHER AGREEMENTS RELATING TO THE SECURITIES OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION. NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT,
THE SECURITIES OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE SECURITIES.
SECTION 6.13 ASSIGNMENTS AND PARTICIPATIONS. The Company may not
assign its rights or obligations hereunder or under the Notes without the prior
written consent of all of the Lenders. Each Lender may assign all or any portion
of its Note or its other Securities without the prior consent of the Company.
Each Lender may sell or agree to sell to one or more other persons a
participation in all or any part of any of its Note or its other Securities
without the prior consent of the Company. Upon surrender of any Note or other
Securities of a Lender, the Company shall execute and deliver one or more
substitute notes, warrants or other securities in such denominations and of a
like aggregate unpaid principal amount or other amount issued to such Lender
and/or to such Lender's designated transferee or transferees. Each Lender may
furnish any information in the possession of such Lender concerning the Company,
or any of its respective subsidiaries, from time to time to assignees and
participants (including prospective assignees and participants).
19
<PAGE>
SECTION 7. APPOINTMENT OF AGENT.
SECTION 7.1 APPOINTMENT OF AGENT.
(A) AGENT. Each Lender hereby appoints the Agent as agent to act for
and on behalf of such Lender and the other Lenders under or pursuant to this
Agreement and the other Loan Documents, and the Agent hereby accepts such
appointment. The Agent is authorized to act on behalf of each Lender in (i)
exercising rights and remedies with respect to the collateral under the Loan
Documents (the "COLLATERAL"), including taking, holding and disposing of the
Collateral, or with respect to any other matter under any of the Loan Documents,
(ii) giving notices or instructions to the Company, (iii) receiving information
from or notices by the Company, and (iv) communicating to the Company
determinations required or permitted to be made under this Agreement or any
other Loan Document. The Agent may, on behalf of each Lender, take any other
action which such Lender is entitled to take hereunder or under any of the Loan
Documents. Such appointment of the Agent as Agent shall not, however, impair or
modify any rights, obligations or duties which the Agent or any affiliate of the
Agent may otherwise have with respect to any Lender. In its administration of
this Agreement and the other Loan Documents, except to the extent to which
another standard applies to the Agent by reason of any other document between
the Agent and any Lender, the Agent will exercise the same care that it
exercises in the administration or handling of transactions for its own account,
subject, however, to SUBSECTION (G) below.
(B) REQUISITE LENDERS. Except with respect to any matters expressly
provided for by this Agreement, the Notes, the Security Documents or any other
Loan Documents, each Lender agrees that the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and each Lender agrees that the Agent shall be fully
protected in so acting or refraining from acting) upon the written instructions
of the Requisite Lenders (as defined below). For the purpose hereof, the
"REQUISITE LENDERS" shall mean, at any time, the all of the Lenders holding the
outstanding principal amount of the Notes. The Requisite Lenders may, in their
reasonable discretion, remove the Agent and then select a new Agent to fulfill,
in accordance with the terms hereof, the role of the Agent. All powers of the
Agent shall be exercised for the benefit of all Lenders and in accordance with
the directions of the Requisite Lenders. The Agent shall take every reasonable
action to implement the Requisite Lenders' directions. If any Note is ever held
by any Person other than the original Lenders in accordance herewith, the Agent
may insist on the execution of any agency agreement among all holders of Notes,
in form satisfactory to the Agent and providing for satisfactory
indemnification, before carrying out any further actions under the Loan
Documents.
(C) LIMITATION OF DUTIES AND FIDUCIARY RELATIONSHIP. The Agent shall
not have any duties or responsibilities, except those expressly set forth in
this Agreement and the other Loan Documents. The Agent shall not have any
fiduciary relationship with any Lender arising under this Agreement and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents
against the Agent.
20
<PAGE>
(D) DISTRIBUTION OF PROCEEDS. The Lenders shall share in the
proceeds obtained by the Agent and in any other benefit either arising under the
Loan Documents or obtained by the Agent in connection therewith, in the relative
proportions which the amounts then owed by the Company to each of the Lenders
bear to the total amount then owed by the Company to all of the Lenders;
provided that the Agent shall be the first to be reimbursed for all costs and
expenses incurred in its capacity as the Agent. The duties undertaken by the
Agent have been undertaken as an accommodation to the Lenders and, accordingly,
the Agent shall not be compensated for its services hereunder.
(E) WRITTEN DIRECTIONS. The Agent may at any time request written
directions from all the Lenders with respect to (i) any interpretation of this
Agreement and the other Loan Documents, or (ii) any action to be taken or not to
be taken hereunder or thereunder and may withhold any action until such
directions have been received from the Requisite Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a direction of the Requisite Lenders under the
terms of this Agreement and such request and any action taken or withheld
pursuant to such direction shall be binding upon all the Lenders.
(F) AGENTS AND ATTORNEYS. The Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys selected by the Agent, using reasonable care. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys so
selected. The Agent shall be entitled to the advice of counsel concerning all
matters pertaining to its duties hereunder.
(G) LIMITATION OF LIABILITY. The Agent and its officers, directors,
employees, agents, attorneys-in-fact and affiliates shall not:
(i) be liable for any action taken or omitted to be taken by any
of such Persons or for any error in judgment under or in connection with
this Agreement and the other Loan Documents, except for any such Person's
gross negligence or willful misconduct; or
(ii) be responsible in any manner to any Lender or any other
Person for any failure of any other party to perform its obligations under
this Agreement and the other Loan Documents.
(H) RELIANCE UPON DOCUMENTATION. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or any telephone
conversation believed, respectively, by the Agent to be genuine and correct and
to have been signed, sent, made or spoken by the proper person or persons, and
upon the advice and statements of legal counsel, independent accountants and
other experts selected, respectively, by the Agent.
(I) RELIANCE BY THE COMPANY. Each Lender agrees that, prior to the
delivery to the Company of a notice of the removal or termination of the Agent
as Agent as set forth below, the Company shall be entitled to rely on the
Agent's or any subsequent Agent's authority to act on behalf of each Lender in
all dealings with the Agent (or any such subsequent Agent) with respect to the
Loan Documents. The Company shall be protected in relying on actions,
communications, notices and terminations relating thereto or required or
permitted thereunder by the Agent. The Company shall
21
<PAGE>
discharge its obligations under this Agreement and the Loan Documents by
delivering payments, notices and other information to the Agent. In the event of
the removal of the Agent and the appointment of a successor Agent by the
Lenders, the Company shall not be required to recognize any such removal or
appointment unless and until the Company shall have received a writing setting
forth such removal and appointment executed by the Requisite Lenders, and the
Company shall be entitled to rely on such writing as being genuine and what it
purports to be without any necessity of any investigation whatsoever.
[Signature pages follow.]
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of
the date first set forth above.
THE COMPANY:
TELSCAPE INTERNATIONAL, INC.,
a Texas corporation
By: ________________________________
Name: Todd M. Binet
Title: President
INTERLINK COMMUNICATIONS, INC.,
a Delaware corporation
By: ________________________________
Name: Todd M. Binet
Title: Vice President
23
<PAGE>
AGENT AND LENDERS:
PURCHASE PRICE:$1,895,000 CAHILL, WARNOCK, STRATEGIC PARTNERS FUND, L.P., a
Delaware limited partnership, as Agent and as
NOTE AMOUNT: $1,895,000 a Lender
WARRANTS: 59,219 By: Cahill, Warnock, Strategic Partners, L.P.,
its general partner
By: ____________________________
Name: David L. Warnock
Title: General Partner
PURCHASE PRICE: $105,000 STRATEGIC ASSOCIATES, L.P., a Delaware limited
partnership, as a Lender
AMOUNT: $105,000
By: Cahill, Warnock & Company, LLC,
WARRANTS: 3,282 its general partner
By: ____________________________
Name: David L. Warnock
Title: Managing Partner
ADDRESS FOR NOTICES:
Cahill, Warnock, Strategic Partners Fund, L.P.
One South Street, Suite 2150
Baltimore, MD 21202
Attn: Mr. David L. Warnock
Telephone: (410) 895-3810
Telecopier: (410) 895-3805
24
<PAGE>
EXHIBIT A
FORM OF NOTE
<PAGE>
EXHIBIT A
THIS NOTE HAS BEEN ISSUED PURSUANT TO THAT CERTAIN SECURITIES PURCHASE
AGREEMENT, DATED AS OF JUNE 18, 1999, AMONG THE MAKERS (AS DEFINED BELOW), THE
LENDER (AS DEFINED BELOW) AND CERTAIN OTHER PARTIES (THE "SECURITIES PURCHASE
AGREEMENT"). THIS NOTE IS SUBJECT TO ALL OF THE TERMS AND CONDITIONS OF THE
SECURITIES PURCHASE AGREEMENT AND IS ENTITLED TO THE BENEFITS THEREOF. ALL TERMS
NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANING GIVEN TO SUCH TERMS IN THE
SECURITIES PURCHASE AGREEMENT.
THE SECURITY REPRESENTED BY THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES
LAWS. THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, IN THE ABSENCE OF (1) AN
EFFECTIVE REGISTRATION STATEMENT AND QUALIFICATION IN EFFECT WITH RESPECT TO
THIS NOTE UNDER THE SECURITIES ACT AND UNDER ANY APPLICABLE STATE SECURITIES
LAWS OR (2) AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION.
------------------
INCREASING RATE SECURED PROMISSORY NOTE
------------------
TELSCAPE INTERNATIONAL, INC.
US$___________ INTERLINK COMMUNICATIONS, INC.
JUNE 18, 1999
FOR VALUE RECEIVED, the undersigned, TELSCAPE INTERNATIONAL, INC., a
Texas corporation ("TELSCAPE"), and INTERLINK COMMUNICATIONS, INC., a Delaware
corporation ("INTERLINK," Telscape and Interlink being collectively referred to
as the "COMPANY"), hereby jointly and severally promise to pay to the order of
____________________ (the "LENDER") or its assigns (the "Holder"), the principal
sum of ____________________________ (US$_______) (or so much thereof as shall
remain outstanding) on June 17, 2000 (the "MATURITY DATE"). Subject to
modification, this Note shall bear interest from the date hereof on the unpaid
principal amount hereof from time to time outstanding at a rate per annum equal
to eight percent (8%) (such rate, as increased as provided in this Note, the
"INTEREST RATE"). From and after December 18, 1999, the Interest Rate shall
increase to a rate per annum equal to nine percent (9%). The Interest Rate shall
increase by an additional one percent (1%) on the seventh (18th) day of each
month after December, 1999.
Interest shall be calculated in arrears through the last day of each
month and shall be due and payable in arrears in monthly installments on the
last Business Day of each month, commencing with June 30, 1999 and terminating
on the Maturity Date. "BUSINESS DAY" shall mean any day, except a Saturday,
Sunday or other day or which commercial banks in the State of Maryland are
authorized or required by law to close.
<PAGE>
Interest shall be computed on this Note on the basis of a 365 or
366-day year, as the case may be, and the actual number of days elapsed in any
period, including the date hereof but excluding the date by which the Holder is
deemed, pursuant to the Securities Purchase Agreement, to have received payment.
Any principal or interest payment due on this Note which is not paid when due,
whether at stated maturity, by notice of acceleration or otherwise, shall bear
interest (calculated in the manner set forth above) at a rate equal to the
then-current Interest Rate plus an additional five percent (5%) per annum.
The outstanding principal balance of this Note shall be due and
payable on the Maturity Date.
This Note is secured by, and entitled to the benefits provided in,
that certain Security Agreement, by and between Interlink and the Agent, dated
as of June 18, 1999.
The Makers may, from time to time, prepay this Note, in whole or in
part, so long as each partial prepayment of principal is equal to or greater
than US$50,000.00 and the Company has given the Holder one (1) or more Business
Days written notice of such optional prepayment. Any such optional prepayment of
principal shall be without premium or penalty. Each prepayment of principal
under this Note shall be accompanied by all interest then accrued and unpaid on
the principal so prepaid. Any principal prepaid shall be in addition to, and not
in lieu of, all payments otherwise required to be paid hereunder and under the
Securities Purchase Agreement at the time of such prepayment.
Unless otherwise agreed to by the Lender, the Makers shall (i)
prepay the outstanding principal balance of this Note, together with accrued but
unpaid interest thereon and all sums to become owing hereunder upon the
occurrence of any event of default under the Securities Purchase Agreement and
(ii) prepay this Note and the other notes issued pursuant to the Securities
Purchase Agreement, pro rata, to the extent of net financing proceeds in excess
of US$50,000.00 actually received by the Company in the event that the Company
completes any financing transaction (other than the transactions referred to in
the proviso of SECTION 3.5 of the Securities Purchase Agreement), including
without limitation any public or private placements of debt or equity.
Payments of principal, premium (if any) and interest are to be made
in lawful money of the United States of America.
The Company and all other parties whatsoever liable for payment of
any amounts due or to become due under the terms of this Note, hereby waive
presentment for payment, protest and demand, any notice of protest or demand,
and any other indulgences or forbearances of any kind whatsoever.
-2-
<PAGE>
Subject to compliance with applicable federal and state securities
laws, the Holder may sell, assign and otherwise transfer all or portions of, and
participations in, the Holder's interest in this Note from time to time. The
Company hereby agrees to execute and deliver to the Holder such documents,
interests and agreements as the Holder deems necessary or desirable to effect
such transfer. Upon surrender of this Note for registration of transfer or
assignment, duly endorsed, or accompanied by a written instrument of transfer or
assignment duly executed by the registered Holder or such Holder's attorney duly
authorized in writing, one or more new Notes for a like principal amount will be
issued to, and, at the option of the Holder, registered in the name of, the
transferee(s) or assignee(s). The Company shall treat the person who holds this
Note as the owner hereof for all purposes whatsoever.
The Company may not assign its rights or obligations hereunder
without the prior written consent of the Holder. The Holder may assign all or
any portion of this Note without the prior consent of the Company. The Holder
may sell or agree to sell to one or more other persons a participation in all or
any part of any of this Note without the prior consent of the Company. Upon
surrender of this Note, the Company shall execute and deliver one or more
substitute notes in such denominations and of a like aggregate unpaid principal
amount issued to the Holder and/or to the Holder's designated transferee or
transferees.
The Company acknowledges and warrants that the debt evidenced hereby
is a "commercial loan" within the meaning of Title 12 of the Commercial Law
Article of the Annotated Code of Maryland (1990 ed.). The Company warrants that
all loan proceeds will be used solely to carry on a business or commercial
enterprise.
The obligations of all persons and entities comprising the "Company"
hereunder shall be joint and several.
-3-
<PAGE>
This Note is governed by and shall be construed in accordance with
the laws of the State of Maryland but not including the choice of law rules
thereof.
TELSCAPE INTERNATIONAL, INC.,
a Texas corporation
By: ___________________________
Name: Todd M. Binet
Title: President
INTERLINK COMMUNICATIONS, INC.,
a Delaware corporation
By: ___________________________
Name: Todd M. Binet
Title: Vice President
-4-
<PAGE>
EXHIBIT B
FORM OF WARRANTS
<PAGE>
WARRANT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE
SOLD, TRANSFERRED OR OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS.
Warrant A-___
June 18, 1999
Warrant to Purchase _________ Shares of Common Stock of
Telscape International, Inc.
Telscape International, Inc., a Texas corporation (the "COMPANY"), hereby
acknowledges that ______________________ ("INVESTOR"), or any other Warrant
Holder is entitled, on the terms and conditions set forth below, to purchase
from the Company, at any time after the date hereof and continuing for three
years thereafter, the above number of fully paid and nonassessable shares of
Common Stock, par value $0.001 per share, of the Company (the "COMMON STOCK") at
the Purchase Price (hereinafter defined), as the same may be adjusted pursuant
to SECTION 5 herein.
1. DEFINITIONS. All terms not otherwise defined herein shall have the
meanings given such terms in the Agreement.
(a) "AGREEMENT" shall mean the Securities Purchase Agreement of even
date herewith between the Company and the Investor.
(b) "INVESTOR" shall mean ______________________________.
(c) "PURCHASE PRICE" shall be $8.00 per share.
(d) "WARRANT HOLDER" shall mean the Investor or any permitted assignee
of all or any portion of this Warrant.
(e) "WARRANT SHARES" shall mean the shares of Common Stock or other
securities issuable upon exercise of this Warrant.
(f) Other capitalized terms used herein which are defined in the
Agreement shall have the same meanings herein as therein.
<PAGE>
2. EXERCISE OR EXCHANGE OF WARRANT.
(a) This Warrant may be exercised by the Warrant Holder, in whole or
in part, at any time and from time to time by surrender of this Warrant,
together with the form of exercise attached hereto as Exhibit A (the "EXERCISE
FORM") duly executed by Warrant Holder, together with the full Purchase Price
(as defined in SECTION 1) for each share of Common Stock as to which this
Warrant is exercised, to the Company at the address set forth in SECTION 15
hereof. At the option of the Warrant Holder, payment of the Purchase Price may
be made either by (i) certified check payable to the order of the Company, (ii)
surrender of certificates then held representing, or deduction from the number
of shares issuable upon exercise of this Warrant, of that number of shares which
has an aggregate fair market value (as defined below) on the date of exercise
equal to the aggregate Purchase Price for all shares to be purchased pursuant to
this Warrant or (iii) by any combination of the foregoing methods.
In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for which
this Warrant is exercised, and the Company, at its expense, shall forthwith
issue and deliver to or upon the order of the Warrant Holder a new Warrant of
like tenor in the name of the Warrant Holder or as the Warrant Holder may
request, reflecting such adjusted Warrant Shares.
(b) The "DATE OF EXERCISE" of the Warrant shall be the date that the
completed Exercise Form is delivered to the Company, together with the original
Warrant and payment in full of the Purchase Price.
3. DELIVERY OF STOCK CERTIFICATES.
(a) Subject to the terms and conditions of this Warrant, as soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within five (5) Business Days (as defined in the Securities Purchase
Agreement) thereafter, the Company at its expense (including, without
limitation, the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the Warrant Holder, or as the Warrant
Holder may lawfully direct, a certificate or certificates for the number of
fully paid and non-assessable shares of Common Stock to which the Warrant Holder
shall be entitled on such exercise, together with any other stock or other
securities or property (including cash, where applicable) to which the Warrant
Holder is entitled upon such exercise in accordance with the provisions hereof.
(b) This Warrant may not be exercised as to fractional shares of
Common Stock. In the event that the exercise of this Warrant, in full or in
part, would result in the issuance of any fractional share of Common Stock, then
in such event the Warrant Holder shall be entitled to cash equal to the fair
market value of such fractional share. For purposes of this Warrant, "FAIR
MARKET VALUE" shall equal the closing bid price of the Common Stock on the
Nasdaq National Market or Small-Cap Market, the American Stock Exchange or the
New York Stock Exchange, whichever is the principal trading exchange or market
for the
-2-
<PAGE>
Common Stock (the "PRINCIPAL MARKET") on the date of exercise hereof, or if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq National Market or Small-Cap Market, the
closing bid price on the over-the-counter market as furnished by any New York
Stock Exchange member firm that makes a market in the Common Stock reasonably
selected from time to time by the Company for that purpose, or, if the Common
Stock is not traded over-the-counter and the average price cannot be determined
as contemplated above, the fair market value of the Common Stock shall be as
reasonably determined in good faith by the Company's Board of Directors.
4. COVENANTS OF THE COMPANY.
(a) The Company shall take all necessary action and proceedings as may
be required and permitted by applicable law, rule and regulation, including,
without limitation, the notification of the Principal Market, for the legal and
valid issuance of this Warrant and the Warrant Shares to the Warrant Holder.
(b) From the date hereof through the last date on which this Warrant
is exercisable, the Company shall take all steps necessary and within its
control to insure that the Common Stock remains listed or quoted on the
Principal Market and shall not amend its Articles of Incorporation or By-Laws so
as to adversely affect any rights of the Warrant Holder under this Warrant;
provided, however, that increasing the number of authorized shares shall not be
deemed a material adverse effect.
(c) The Company shall at all times reserve and keep available, solely
for issuance and delivery as Warrant Shares hereunder, such shares of Common
Stock as shall from time to time be issuable as Warrant Shares.
(d) The Warrant Shares, when issued in accordance with the terms
hereof; will be duly authorized and, when paid for or issued in accordance with
the terms hereof, shall be validly issued, fully paid and non-assessable. The
Company has authorized and reserved for issuance to the Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to this
Warrant.
(e) With a view to making available to the Warrant Holder the benefits
of Rule 144 promulgated under the Securities Act ("RULE 144") and any other rule
or regulation of the Securities and Exchange Commission (the "SEC"), that may at
any time permit Warrant Holder to sell securities of the Company to the public
without registration, the Company agrees to use its best efforts to: (i) make
and keep public information available, as those terms are understood and defined
in Rule 144, at all times; and (ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act.
5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of and kind
of securities purchasable upon exercise of this Warrant and the Purchase Price
shall be subject to adjustment from time to time as follows:
-3-
<PAGE>
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the Company
shall at any time after the date hereof but prior to the expiration of this
Warrant subdivide its outstanding securities as to which purchase rights under
this Warrant exist, by split-up, spin-off, or otherwise, or combine its
outstanding securities as to which purchase rights under this Warrant exist, the
number of Warrant Shares as to which this Warrant is exercisable as of the date
of such subdivision, split-up, spin-off or combination shall forthwith be
proportionately increased in the case of a subdivision, or proportionately
decreased in the case of a combination. Appropriate adjustments shall also be
made to the Purchase Price, but the aggregate purchase price payable for the
total number of Warrant Shares purchasable under this Warrant as of such date
shall remain the same.
(b) STOCK DIVIDEND. If at any time after the date hereof the Company
declares a dividend or other distribution on Common Stock payable in Common
Stock or other securities or rights convertible into or exchangeable for Common
Stock ("COMMON STOCK EQUIVALENTS"), without payment of any consideration by
holders of Common Stock for the additional shares of Common Stock or the Common
Stock Equivalents (including the additional shares of Common Stock issuable upon
exercise or conversion thereof), then the number of shares of Common Stock for
which this Warrant may be exercised shall be increased as of the record date (or
the date of such dividend distribution if no record date is set) for determining
which holders of Common Stock shall be entitled to receive such dividends, in
proportion to the increase in the number of outstanding shares (and shares of
Common Stock issuable upon conversion of all such securities convertible into
Common Stock) of Common Stock as a result of such dividend, and the Purchase
Price shall be adjusted so that the aggregate amount payable for the purchase of
all the Warrant Shares issuable hereunder immediately after the record date (or
on the date of such distribution, if applicable), for such dividend shall equal
the aggregate amount so payable).
(c) OTHER DISTRIBUTIONS. If at any time after the date hereof the
Company distributes to holders of its Common Stock, other than as part of a
dissolution or liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets without payment
of any consideration by holders of Common Stock (other than cash, Common Stock
or securities convertible into or exchangeable for Common Stock), then, in any
such case, the Warrant Holder shall be entitled to receive, upon exercise of
this Warrant, with respect to each share of Common Stock issuable upon such
exercise, the amount of cash or evidences of indebtedness or other securities or
assets which such Warrant Holder would have been entitled to receive with
respect to each such share of Common Stock as a result of the happening of such
event had this Warrant been exercised immediately prior to the record date or
other date determining the shareholders entitled to participate in such
distribution (the "DETERMINATION DATE").
(d) MERGER, CONSOLIDATION, ETC. If at any time after the date hereof
there shall be a merger or consolidation of the Company with or into, or a
transfer of all or substantially all of the assets of the Company to, another
entity (a "CONSOLIDATION EVENT"), then the Warrant Holder shall be entitled to
receive upon such transfer, merger or consolidation becoming effective, and upon
payment of the aggregate Purchase Price then in effect, the number of shares or
other securities or property of the Company or of the successor corporation
resulting from such merger or consolidation, which would have been received by
Warrant Holder for the shares of stock subject to this Warrant had this Warrant
been exercised immediately prior to such transfer, merger or
-4-
<PAGE>
consolidation becoming effective or to the applicable record date thereof, as
the case may be. The Company shall not effect any Consolidation Event unless the
resulting successor or acquiring entity (if not the Company) assumes by written
instrument the obligation to deliver to the Warrant Holder such shares of stock
and/or securities as the Warrant Holder is entitled to receive had this Warrant
been exercised in accordance with the foregoing.
(e) RECLASSIFICATION, ETC. If at any time after the date hereof there
shall be a reclassification of any securities as to which purchase rights under
this Warrant exist, into the same or a different number of securities of any
other class or classes, then the Warrant Holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Purchase Price then in effect, the number of shares or other
securities or property resulting from such reorganization or reclassification,
which would have been received by the Warrant Holder for the shares of stock
subject to this Warrant had this Warrant at such time been exercised.
(f) PURCHASE PRICE ADJUSTMENT. In the event that the Company issues or
sells any Common Stock or securities which are convertible into or exchangeable
for its Common Stock or any convertible securities, or any warrants or other
rights to subscribe for or to purchase or any options for the purchase of its
Common Stock or any such convertible securities (other than issuance of shares
of Common Stock upon conversion thereof, shares or options issued or which may
be issued to employees, directors or consultants pursuant to the Company's stock
option or stock purchase plans as of the date hereof or shares issued upon
exercise of options, warrants or rights outstanding as of the date hereof) at an
effective purchase price per share which is (i) less than the Purchase Price
then in effect and more than fifteen percent (15%) less than the fair market
value (as hereinabove defined) of the Common Stock on the trading day next
preceding such issue or sale OR (ii) less than the Purchase Price IF AND ONLY IF
the Notes have not been prepaid in full within three (3) months of the Closing
Date, then in each such case, the Purchase Price in effect immediately prior to
such issue or sale shall be reduced effective concurrently with such issue or
sale to an amount determined by multiplying the Purchase Price then in effect by
a fraction, (x) the numerator of which shall be the sum of (1) the number of
shares of Common Stock outstanding immediately prior to such issue or sale,
including, without duplication, those deemed to have been issued under the
Warrants plus (2) the number of shares of Common Stock which the aggregate
consideration received by the Company for such additional shares would purchase
at (A) such fair market value then in effect (if CLAUSE (I) above applies), or
(B) the Purchase Price (if CLAUSE (II) above applies), and (y) the denominator
of which shall be the number of shares of Common Stock of the Company
outstanding immediately after such issue or sale including, without duplication,
those deemed to have been issued under the Warrants. For purposes of the
foregoing fraction, Common Stock outstanding shall include, without limitation,
any equity offerings then outstanding, whether
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or not they are exercisable or convertible when such fraction is to be
determined. Notwithstanding the foregoing provisions of this SECTION 5(F),
CLAUSE (I) of this SECTION 5(F) shall not apply if the requirements of CLAUSE
(II) of this SECTION 5(F) are met.
The foregoing price adjustment shall not apply to the issuance of shares of
Common Stock which may be issued upon exercise of options under the Company's
employee or director stock option plans, upon the conversion or exchange of
convertible or exchangeable securities or upon the exercise of warrants, or
other rights, which options, convertible or exchangeable securities, warrants or
other rights are outstanding on the date of execution and delivery of this
Warrant.
The number of shares which may be purchased shall be increased
proportionately to any reduction in Purchase Price pursuant to this paragraph
5(f), so that after such adjustments the aggregate Purchase Price payable
hereunder for the increased number of shares of Common Stock shall be the same
as the aggregate Purchase Price in effect immediately prior to such adjustments.
Notwithstanding anything else contained in this Warrant to the contrary,
there shall be no adjustment of the Purchase Price or the number of shares of
Common Stock issuable pursuant to the exercise of this Warrant in the event that
during the term of this Warrant, the Company issues shares of Common Stock, or
securities convertible into Common Stock to the Purchaser.
(g) ADJUSTMENTS; ADDITIONAL SHARES, SECURITIES OR ASSETS. In the event
that at any time, as a result of an adjustment made pursuant to this SECTION 5,
the Warrant Holder shall, upon exercise of this Warrant, become entitled to
receive shares and/or other securities or assets (other than Common Stock) then,
wherever appropriate, all references herein to shares of Common Stock shall be
deemed to refer to and include such shares and/or other securities or assets;
and thereafter the number of such shares and/or other securities or assets shall
be subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this SECTION 5.
6. REGISTRATION RIGHTS.
(a) "PIGGYBACK" REGISTRATION RIGHTS. If at any time after the date hereof
the Company shall determine to register under the Securities Act (including
pursuant to a demand of any security holder of the Company exercising
registration rights) any of its Common Stock (except pursuant to the
registration statement on Form S-3 filed with the SEC on April 30, 1999 (file
No. 333-77443), securities to be issued solely in connection with any
acquisition of any entity or business, shares issuable solely pursuant to
employee benefit plans eligible for registration on SEC Form S-8 or shares to be
registered on any registration form that does not permit secondary sales), it
shall send to each Lender and to each of the Warrant Holder(s) written notice of
such determination at least thirty (30) days prior to each such filing and, if
within twenty (20) days after receipt of such notice, any Warrant Holder shall
so request in writing, the Company shall use its best efforts to include in such
registration statement (to the extent permitted by
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applicable regulation) all or any part of the Warrant Shares (collectively
referred to in this SECTION 6 as "REGISTRABLE SECURITIES") that such Warrant
Holder requests to be registered, provided, however, that if, in connection with
any offering involving an underwriting of Common Stock to be issued by the
Company, the managing underwriter shall impose a limitation on the amount of
Registrable Securities included in any such registration statement, then, to the
extent that any Registrable Securities remain available for registration after
the underwriter's cutback, the Company shall be obligated to include in such
registration statement with respect to each Warrant Holder requesting inclusion
only the product of : (i) the number of Registrable Securities with respect to
which such Warrant Holder has requested inclusion hereunder and (ii) such
Warrant Holder's pro rata share of the sum of all Registrable Securities
permitted to be registered and all other securities of the Company, the holders
of which Registrable Securities and other securities have requested that such
securities be registered. Any Registrable Securities which are included in any
underwritten offering under this SECTION 6(A) shall be sold upon such terms as
the managing underwriters shall reasonably request but in any event shall be
upon terms not less favorable than those upon which any other selling security
holder shall sell any of its securities. If any Warrant Holder disapproves of
the terms of such underwriting, such Warrant Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter. The Company
shall use its best efforts to cause the managing underwriter or underwriters of
a proposed underwritten offering (the "COMPANY UNDERWRITER") to permit the
Warrant Holders who have requested to participate in the registration for such
offering to include such Registrable Securities in such offering on the same
terms and conditions as the securities of the Company included therein.
Notwithstanding the foregoing, if the Company Underwriter delivers a written
opinion to the Warrant Holders that the total amount or kind of securities which
they, the Company and any other Persons intend to include in such offering (the
"TOTAL SECURITIES") is sufficiently large so as to prevent the Company from
effecting a successful offering of the Total Securities, then the amount or kind
of securities to be offered for the account of any members of management shall
be reduced pro rata to the extent necessary to reduce the Total Securities to
the amount recommended by the Company Underwriter, and if the amount or kind of
Total Securities is still sufficiently large so as to prevent the Company from
effecting a successful offering of the Total Securities, then the amount or kind
of securities to be offered for the account of the Warrant Holders and any other
Persons shall be reduced pro rata to the extent necessary to reduce the Total
Securities to the amount recommended by the Company Underwriter. Notwithstanding
the provisions of this SECTION 6(A), the Company shall have the right, at any
time after it shall have given written notice pursuant to this SECTION 6(A)
(irrespective of whether a written request for inclusion of Registrable
Securities shall have been made), to elect not to file any such proposed
registration statement or to withdraw the same after the filing and prior to the
effective date thereof whether or not any Warrant Holder has elected to include
securities in such registration.
(b) EFFECTIVENESS. If necessary to permit distribution of the
Registrable Securities, the Company shall use its best efforts to maintain the
effectiveness for up to one (1) year of the registration pursuant to which any
of the
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<PAGE>
Registrable Securities are being offered, and from time to time will amend or
supplement such registration statement and the prospectus contained therein as
and to the extent necessary to comply with the Securities Act and any applicable
state securities statute or regulation. Notwithstanding the foregoing, if the
registration by the Company of the resale of Registrable Securities is eligible
for SEC Form S-3 or any successor to such form, the Company shall use its best
efforts to maintain the effectiveness of the registration until all registered
Registrable Securities are sold. Each Warrant Holder shall notify the Company
promptly of the completion of the offering of its Registrable Securities under
any such effective registration statement.
If requested by the Company or a representative of the underwriters
of Common Stock (or other securities) of the Company, each Warrant Holder shall
not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Warrant Holder (other than those
included in registration) for a period specified by the representative of the
underwriters, not to exceed one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act for the Company's initial public offering of the Company's Common
Stock.
(c) FURTHER OBLIGATIONS OF THE COMPANY. Whenever, under the preceding
provisions of this SECTION 6, the Company is required hereunder to register
Registrable Securities, it agrees that it shall also do the following:
(i) Furnish to each selling Holder such copies of each preliminary and
final prospectus and any other documents as such Warrant Holder may reasonably
request to facilitate the public offering of its Registrable Securities;
(ii) Use its best efforts to register or qualify the Registrable
Securities to be registered pursuant to this SECTION 6 under the applicable
securities or blue sky laws of such jurisdictions as any selling Warrant Holder
may reasonably request;
(iii) Furnish to each selling Warrant Holder: (A) a signed counterpart of
an opinion of counsel for the Company, dated the effective date of the
registration statement; and (B) a copy of any "comfort" letters signed by the
Company's independent public accountants who have examined and reported on the
Company's financial statements included in the registration statement, covering
substantially the same matters as are customarily covered in opinions of
issuer's counsel and in accountants' "comfort" letters delivered to the
underwriters in underwritten public offerings of securities;
(iv) Permit each selling Warrant Holder or such Warrant Holder's counsel
or other representatives to inspect and copy such corporate documents and
records as may reasonably be requested by them in connection with such
registration; and
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<PAGE>
(v) Furnish to each selling Warrant Holder, upon request, a copy of all
documents filed and all correspondence from or to the Commission in connection
with any such offering.
(d) EXPENSES. Except for underwriters' discounts and brokerage commissions
allocable to the Registrable Securities, the Company shall bear all costs and
expenses of each registration contemplated in this SECTION 6, including, but not
limited to, printing, legal and accounting fees and expenses, SEC and NASD
filing fees and blue sky fees and expenses in any jurisdiction in which the
securities to be offered are to be registered or qualified.
(e) TRANSFER OF REGISTRATION RIGHTS. The registration rights of the
Warrant Holders of Registrable Securities under this SECTION 6 shall inure to
the benefit of and be exercisable by any transferee of Registrable Securities.
7. INDEMNIFICATION.
(a) The Company agrees to defend, indemnify and hold harmless each
Lender, each other Warrant Holder, any underwriter(s) and their respective
directors, officers, employees, attorneys and agents, as well as each other
Person (if any) controlling any of the foregoing Persons within the meaning of
Section 15 of the Securities Act, or Section 20 of the Exchange Act, from and
against any and all claims, liabilities, losses and expenses (including, without
limitation, the disbursements, expenses and fees of their respective attorneys)
that may be imposed upon, incurred by, or asserted against any of them, any of
their respective directors, officers, employees, attorneys and agents, or any
such control Person, under the Securities Act, the Exchange Act or any other
statute or at common law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof), arise out of or are related directly or
indirectly to: (i) the Warrants or the Warrant Shares, (ii) any registration
statement or prospectus, (iii) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement under
which such securities were registered under the Securities Act or the Exchange
Act, or in any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereto, or (iv) any alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse such Persons for any
legal or any other expenses reasonably incurred by such Persons in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any alleged untrue statement or alleged omission made in such
registration statement, preliminary prospectus, prospectus or amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by such respective Person
specifically for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any such
indemnified Person, and shall survive the transfer of such securities by such
Person.
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<PAGE>
Promptly after receipt of notice of the commencement of any action in respect of
which indemnity may be sought against the Company, the Company shall assume the
defense of such action (including the employment of counsel, who shall be
counsel reasonably satisfactory to the party seeking indemnity hereunder) and
the payment of expenses insofar as such action shall relate to any alleged
liability in respect of which indemnity may be sought against the Company. The
Company shall not, except with the approval of each party being indemnified
under this SECTION 7(A), consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to the parties being so indemnified of a release from
all liability in respect to such claim or litigation.
(b) Each Warrant Holder agrees to defend, indemnify and hold harmless the
Company, any underwriter(s) and their respective directors, officers, employees,
attorneys and agents, as well as each other Person (if any) controlling any of
the foregoing Persons within the meaning of Section 15 of the Securities Act, or
Section 20 of the Exchange Act, from and against any and all claims,
liabilities, losses and expenses (including, without limitation, the
disbursements, expenses and fees of their respective attorneys) that may be
imposed upon, incurred by, or asserted against any of them, any of their
respective directors, officers, employees, attorneys and agents, or any such
control Person, under the Securities Act, the Exchange Act or any other statute
or at common law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof), arise out of or are related directly or indirectly
to: (i) any alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which this Warrant
or the Warrant Shares were registered under the Securities Act or the Exchange
Act, or in any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereto, or (ii) any alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company or the underwriter by such Warrant Holder or a person acting on its
behalf specifically for inclusion therein, and shall reimburse such Persons for
any legal or any other expenses reasonably incurred by such Persons in
connection with investigating or defending any such loss, claim, damage,
liability or action. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any such indemnified
Person, and shall survive the transfer of such securities by such Warrant
Holder. Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against such Warrant Holder, such
Warrant Holder shall assume the defense of such action (including the employment
of counsel, who shall be counsel reasonably satisfactory to the party seeking
indemnity hereunder) and the payment of expenses insofar as such action shall
relate to any alleged liability in respect of which indemnity may be sought
against such Warrant Holder. Such Warrant Holder shall not, except with the
approval of each party being indemnified under this SECTION 7(B), consent to
entry of any judgment or enter into any settlement that does not include
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<PAGE>
as an unconditional term thereof the giving by the claimant or plaintiff to the
parties being so indemnified of a release from all liability in respect to such
claim or litigation.
8. NO IMPAIRMENT. The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Warrant Holder against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any Warrant Shares above the amount payable
therefor on such exercise, and (b) will take all such action as may be
reasonably necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant.
9. NOTICE OF ADJUSTMENTS; NOTICES. Whenever the Purchase Price or number of
Warrant Shares purchasable hereunder shall be adjusted pursuant to SECTION 5
hereof, the Company shall execute and deliver (by first class mail, postage
prepaid) to the Warrant Holder a certificate setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Purchase Price and number
of shares purchasable hereunder after giving effect to such adjustment.
10. RIGHTS AS SHAREHOLDER. Prior to exercise of this Warrant, the Warrant
Holder shall not be entitled to any rights as a shareholder of the Company with
respect to the Warrant Shares, including (without limitation) the right to vote
such shares, receive dividends or other distributions thereon or be notified of
stockholder meetings. However, in the event of any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend (other than a cash
dividend) or other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, the Company shall mail to each Warrant
Holder, at least 10 days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right.
11. REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of the Warrant and,
in the case of any such loss, theft or destruction of the Warrant, upon delivery
of an indemnity agreement or security reasonably satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
12. CONSENT TO JURISDICTION. THE COMPANY (I) HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES
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DISTRICT COURT LOCATED IN THE CITY OF BALTIMORE OR ANY STATE COURT LOCATED IN
THE CITY OF BALTIMORE, MARYLAND FOR THE PURPOSES OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT AND (II) HEREBY WAIVES,
AND AGREES NOT TO ASSERT IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
THE SUIT, ACTION OR PROCEEDING IS IMPROPER. THE COMPANY CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF TO
SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS WARRANT AND
AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS
AND NOTICE THEREOF. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR LIMIT ANY RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
13. ENTIRE AGREEMENT; AMENDMENTS. This Warrant and the Agreement contain the
entire understanding of the parties with respect to the matters covered hereby
and thereby. No provision of this Warrant may be waived or amended other than by
a written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
14. RESTRICTED SECURITIES.
(a) REGISTRATION OR EXEMPTION REQUIRED. This Warrant has been issued
in a transaction exempt from the registration requirements of the Securities Act
in reliance upon the provisions of Section 4(2) of the Securities Act of 1933.
This Warrant and the Warrant Shares issuable upon exercise of this Warrant may
not be resold except pursuant to an effective registration statement or an
exemption to the registration requirements of the Securities Act and applicable
state laws.
(b) LEGEND. The Warrant and any Warrant Shares issued upon exercise
thereof (until a registration statement has been declared effective by the SEC
with respect to the Warrant Shares, at which time, such legend shall be removed,
and the Warrant Shares shall be freely tradeable), shall bear the following
legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD OR OFFERED FOR SALE EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN
APPLICABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
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<PAGE>
(c) ASSIGNMENT. Assuming the conditions of (a) above regarding
registration or exemption have been satisfied, the Warrant Holder may sell,
transfer, assign, pledge or otherwise dispose of this Warrant, in whole or in
part. The Warrant Holder shall deliver a written notice to Company,
substantially in the form of the Assignment attached hereto as Exhibit B,
indicating the person or persons to whom the Warrant shall be assigned and the
respective number of warrants to be assigned to each assignee. The Company shall
effect the assignment within ten (10) days, and shall deliver to the assignee(s)
designated by the Warrant Holder after delivery to the Company of the original
Warrant or Warrants for cancellation, a Warrant or Warrants of like tenor and
terms for the appropriate number of shares.
15. NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
to the Company: Telscape International, Inc.
2700 Post Oak Boulevard
Suite 1000
Houston, Texas 77056
Attention: Todd M. Binet, President
Facsimile No.: (713) 968-0930
to the Warrant Holder: _____________________________
_____________________________
_____________________________
Attn: _______________________
Facsimile: ___________________
Either party hereto may from time to time change its address or facsimile
number for notices under this SECTION 15 by giving at least 10 days prior
written notice of such changed address or facsimile number to the other party
hereto.
16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Maryland. The headings in this Warrant are
for purposes of reference only, and shall not
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<PAGE>
limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
17. SURVIVAL. The provisions of SECTIONS 6 and 7 shall survive the exercise
or expiration of this Warrant, and the Company shall confirm such survival in
writing if the Warrant Holder requests such confirmation upon exercise or
expiration of this Warrant in its entirety.
TELSCAPE INTERNATIONAL, INC.
By:_________________________
Todd M. Binet
President
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EXHIBIT A
FORM OF WARRANT EXERCISE
I/we hereby exercise Telscape International, Inc. (the "Company")
Common Stock Purchases Warrant #_________________.
(a) Number of Shares of the Company common stock covered
in Purchase Warrant #______________ __________________
(b) Total Exercise price (____________ per share)
$_________________
__________________________________ _____________________________________
Signature Employment Identification Number
___________________________________________
Name (please print)
_______________________________________________________________________
Address
_______________________________________________________________________
___________________________________________
Telephone Number
__________________________________ _____________________________________
Signature Employment Identification No.
___________________________________________
Name (please print)
_______________________________________________________________________
Address
_______________________________________________________________________
___________________________________________
Telephone Number
I wish to register my shares of the Company common stock as follows:
a. ( ) Individual Ownership
b. ( ) Husband and Wife as Community Property
c. ( ) Joint Tenants w/Right to Survivorship (JTRS)
d. ( ) Tenants in Common
e. ( ) Other_________________________________
Dated:___________________________________, 19__.
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT
(To be executed by the registered Warrant Holder desiring to transfer the
Warrant)
FOR VALUED RECEIVED, the undersigned holder of the attached Warrant hereby
sells, assigns and transfers unto the persons below named the right to purchase
______________ shares of the Common Stock of TELSCAPE INTERNATIONAL, INC.
evidenced by the attached Warrant and does hereby irrevocably constitute and
appoint ______________________ attorney to transfer the said Warrant on the
books of the Company, with full power of substitution in the premises.
Dated:
______________________________
Signature
Fill in for new Registration of Warrant:
_________________________________________
Name
_________________________________________
Address
_________________________________________
Please print name and address of assignee
(including zip code number)
NOTICE: The signature to the foregoing Assignment must correspond to the name as
written upon the face of the attached Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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EXHIBIT C
FORM OF SECURITY AGREEMENT
<PAGE>
EXHIBIT C
*****************************************************************
SECURITY AGREEMENT
Dated as of June 18, 1999
between
INTERLINK COMMUNICATIONS, INC.
and
CAHILL, WARNOCK, STRATEGIC PARTNERS FUND, L.P.,
as Agent
*****************************************************************
<PAGE>
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of June 18, 1999 (this
"AGREEMENT"), is made between INTERLINK COMMUNICATIONS, INC., a Delaware
corporation (the "COMPANY"), and CAHILL, WARNOCK, STRATEGIC PARTNERS FUND, L.P.,
a Delaware limited partnership, as agent for the Lenders referred to below (in
such capacity, together with its successors in such capacity, the "AGENT").
The Securities Purchase Agreement, dated as of June 18, 1999 (the
"SECURITIES PURCHASE AGREEMENT"), among Telscape International, Inc., a Texas
corporation ("TELSCAPE"), the Company, each of the lenders signatory thereto
(individually, a "LENDER" and, collectively, the "LENDERS"), and the Agent,
provides, subject to its terms and conditions, for the purchase of secured
promissory notes by the Lenders from Telscape and the Company. It is a condition
to the obligations of Lenders under the Securities Purchase Agreement that the
Company shall have executed and delivered, and granted the Liens provided for
in, this Agreement.
To induce Lenders to enter into, and to purchase the secured
promissory notes under, the Securities Purchase Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company has agreed to pledge and grant a security interest in
the Collateral as security for the Secured Obligations. Accordingly, the Company
agrees with Agent as follows:
Section 1. DEFINITIONS AND INTERPRETATION.
1.01 CERTAIN DEFINED TERMS. Unless otherwise defined, all
capitalized terms used in this Agreement that are defined in the Securities
Purchase Agreement (including those terms incorporated by reference) shall have
the respective meanings assigned to them in the Securities Purchase Agreement.
In addition, the following terms shall have the following meanings under this
Agreement:
"ACCOUNTS" shall have the meaning assigned to that term in SECTION
2.01(B).
"COLLATERAL" shall have the meaning assigned to that term in SECTION
2.01.
"COPYRIGHT COLLATERAL" shall mean all Copyrights, whether now owned
or hereafter acquired by the Company, including each Copyright identified in
ANNEX 2.
"COPYRIGHTS" shall mean, collectively, (a) all copyrights, copyright
registrations and applications for copyright registrations, (b) all renewals and
extensions of all copyrights, copyright
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<PAGE>
registrations and applications for copyright registration and (c) all rights,
now existing or hereafter coming into existence, (i) to all income, royalties,
damages and other payments (including in respect of all past, present or future
infringements) now or hereafter due or payable under or with respect to any of
the foregoing, (ii) to sue for all past, present and future infringements with
respect to any of the foregoing and (iii) otherwise accruing under or pertaining
to any of the foregoing throughout the world.
"DOCUMENTS" shall have the meaning assigned to that term in SECTION
2.01(F).
"EQUIPMENT" shall have the meaning assigned to that term in SECTION
2.01(E).
"GOVERNMENTAL PERSON" shall mean any Federal, state, municipal,
local, territorial or other governmental department, commission, board, bureau,
agency, regulatory authority, instrumentality, judicial or administrative body,
domestic or foreign.
"INITIAL SECURITIES PURCHASE AGREEMENT" shall have the meaning
assigned to that term in SECTION 2.11.
"INSTRUMENTS" shall have the meaning assigned to that term in
SECTION 2.01(C).
"INTELLECTUAL PROPERTY" shall mean all Copyright Collateral, all
Patent Collateral and all Trademark Collateral, together with (a) all
inventions, processes, production methods, proprietary information, know-how and
trade secrets; (b) all licenses or user or other agreements granted to the
Company with respect to any of the foregoing, in each case whether now or
hereafter owned or used, including the licenses or other agreements with respect
to the Copyright Collateral, the Patent Collateral or the Trademark Collateral
listed in ANNEX 5; (c) all information, customer lists, identification of
suppliers, data, plans, blueprints, specifications, designs, drawings, recorded
knowledge, surveys, engineering reports, test reports, manuals, materials
standards, processing standards, performance standards, catalogs, computer and
automatic machinery software and programs; (d) all field repair data, sales data
and other information relating to sales or service of products now or hereafter
manufactured; (e) all accounting information and all media in which or on which
any information or knowledge or data or records may be recorded or stored and
all computer programs used for the compilation or printout of such information,
knowledge, records or data; (f) the approvals of any Governmental Person now
held or hereafter obtained by the Company in respect of any of the foregoing;
and (g) all causes of action, claims and warranties now owned or hereafter
acquired by the Company in respect of any of the foregoing. It is understood
that Intellectual Property shall include all of the foregoing owned or acquired
by the Company on a worldwide basis.
"INVENTORY" shall have the meaning assigned to that term in SECTION
2.01(D).
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"PATENT COLLATERAL" shall mean all Patents, whether now owned or
hereafter acquired by the Company, including each Patent identified in ANNEX 3.
"PATENTS" shall mean, collectively, (a) all patents and patent
applications, (b) all reissues, divisions, continuations, renewals, extensions
and continuations-in-part of all patents or patent applications and (c) all
rights, now existing or hereafter coming into existence, (i) to all income,
royalties, damages, and other payments (including in respect of all past,
present and future infringements) now or hereafter due or payable under or with
respect to any of the foregoing, (ii) to sue for all past, present and future
infringements with respect to any of the foregoing and (iii) otherwise accruing
under or pertaining to any of the foregoing throughout the world, including all
inventions and improvements described or discussed in all such patents and
patent applications.
"SECURED OBLIGATIONS" shall mean (a) the payment and performance of
the Notes by the Company and/or Telscape and (b) any and all obligations of the
Company and/or Telscape for the performance of the agreements, covenants and
undertakings of the Company and/or Telscape under or in respect of the Loan
Documents.
"TRADEMARK COLLATERAL" shall mean all Trademarks, whether now owned
or hereafter acquired by the Company, including each Trademark identified in
ANNEX 4. Notwithstanding the foregoing, the Trademark Collateral shall not
include any Trademark which would be rendered invalid, abandoned, void or
unenforceable by reason of its being included as part of the Trademark
Collateral.
"TRADEMARKS" shall mean, collectively, (a) all trade names,
trademarks and service marks, logos, trademark and service mark registrations
and applications for trademark and service mark registrations, (b) all renewals
and extensions of any of the foregoing and (c) all rights, now existing or
hereafter coming into existence, (i) to all income, royalties, damages and other
payments (including in respect of all past, present and future infringements)
now or hereafter due or payable under or with respect to any of the foregoing,
(ii) to sue for all past, present and future infringements with respect to any
of the foregoing and (iii) otherwise accruing under or pertaining to any of the
foregoing throughout the world, together, in each case, with the product lines
and goodwill of the business connected with the use of, or otherwise symbolized
by, each such trade name, trademark and service mark.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as
in effect in the State of Maryland from time to time or, by reason of mandatory
application, any other applicable jurisdiction.
Section 1.02 INTERPRETATION. In this Agreement, unless otherwise
indicated, the singular includes the plural and plural the singular; words
importing either gender include the other gender; references to statutes or
regulations are to be construed as including all statutory or regulatory
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provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography and
other means of reproducing words in a tangible visible form; the words
"including," "includes" and "include" shall be deemed to be followed by the
words "without limitation"; references to articles, sections (or subdivisions of
sections), exhibits, annexes or schedules are to this Agreement; references to
agreements and other contractual instruments shall be deemed to include all
subsequent amendments, extensions and other modifications to such instruments
(without, however, limiting any prohibition on any such amendments, extensions
and other modifications by the terms of any Loan Document); and references to
persons include their respective permitted successors and assigns and, in the
case of Governmental Persons, persons succeeding to their respective functions
and capacities.
Section 2. COLLATERAL.
2.01 GRANT. As collateral security for the prompt payment in full
when due (whether at stated maturity, by acceleration or otherwise) and
performance of the Secured Obligations, the Company hereby pledges and grants to
Agent a security interest in all of the Company's right, title and interest in
and to the following property, whether now owned or hereafter acquired by the
Company and whether now existing or hereafter coming into existence
(collectively, the "COLLATERAL"):
(a) [Intentionally left blank]
(b) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of the Company constituting a right to the payment of
money, whether or not earned by performance, including all moneys due and to
become due to the Company in repayment of any loans or advances, in payment for
goods (including Inventory and Equipment) sold or leased or for services
rendered, in payment of tax refunds and in payment of any guarantee of any of
the foregoing (collectively, the "ACCOUNTS");
(c) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of the Company evidencing, representing,
arising from or existing in respect of, relating to, securing or otherwise
supporting the payment of, any of the Accounts (collectively, the
"INSTRUMENTS");
(d) all inventory (as defined in the Uniform Commercial Code) and
all other goods of the Company that are held by the Company for sale, lease or
furnishing under a contract of service (including to its subsidiaries or
affiliates), that are so leased or furnished or that constitute raw materials,
work in process or material used or consumed in its business, including all
spare parts and related supplies, all goods obtained by the Company in exchange
for any such goods, all products made or processed from any such goods and all
substances, if any, commingled with or added to any such goods (collectively,
the "INVENTORY");
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<PAGE>
(e) all equipment (as defined in the Uniform Commercial Code) and
all other goods of the Company that are used or bought for use primarily in its
business, including all spare parts and related supplies, all goods obtained by
the Company in exchange for any such goods, all substances, if any, commingled
with or added to such goods and all upgrades and other improvements to such
goods, in each case to the extent not constituting Inventory (collectively, the
"EQUIPMENT");
(f) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of the Company covering, evidencing or representing
Inventory or Equipment (collectively, the "DOCUMENTS");
(g) all contracts and other agreements of the Company relating to
the sale or other disposition of all or any part of the Inventory, Equipment or
Documents and all rights, warranties, claims and benefits of the Company against
any person arising out of, relating to or in connection with all or any part of
the Inventory, Equipment or Documents of the Company, including any such rights,
warranties, claims or benefits against any person storing or transporting any
such Inventory or Equipment or issuing any such Documents;
(h) all other accounts or general intangibles of the Company not
constituting Accounts, including, to the extent related to all or any part of
the other Collateral, all books, correspondence, credit files, records,
invoices, tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Company or any computer bureau or service
company from time to time acting for the Company;
(i) all other tangible and intangible property of the Company,
including all Intellectual Property; and
(j) all proceeds and products in whatever form of all or any part of
the other Collateral, including all proceeds of insurance and all condemnation
awards and all other compensation for any casualty with respect to all or any
part of the other Collateral (together with all rights to recover and proceed
with respect to the same), and all accessories to, substitutions for and
replacements of all or any part of the other Collateral.
2.02 INTELLECTUAL PROPERTY. For the purpose of enabling Agent to
exercise its rights, remedies, powers and privileges under SECTION 6 at such
time or times as Agent shall be lawfully entitled to exercise such rights,
remedies, powers and privileges, and for no other purpose, the Company hereby
grants to Agent, to the extent assignable, an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to the Company) to
use, assign, license or sublicense any of the Intellectual Property of the
Company, together with reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer programs used for
the compilation or printout of such items.
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<PAGE>
2.03 PERFECTION. Concurrently with the execution and delivery of
this Agreement, the Company shall (i) file such financing statements and other
documents in such offices as shall be necessary or as Agent may request to
perfect and establish the priority of the Liens granted by this Agreement, (ii)
deliver and pledge to Agent any and all Instruments, endorsed or accompanied by
such instruments of assignment and transfer in such form and substance as Agent
may request, and (iii) take all such other actions as shall be necessary or as
Agent may request to perfect and establish the priority of the Liens granted by
this Agreement.
2.04 PRESERVATION AND PROTECTION OF SECURITY INTERESTS. The
Company shall:
(a) [Intentionally left blank]
(b) upon the acquisition after the Closing Date by the Company of
any Instrument, promptly deliver and pledge to Agent all such Instruments,
endorsed or accompanied by such instruments of assignment and transfer in such
form and substance as Agent may request;
(c) upon the acquisition after the Closing Date by the Company of
any Equipment covered by a certificate of title or ownership, promptly cause
Agent to be listed as the lienholder on such certificate of title and within 30
days of the acquisition of such Equipment deliver evidence of the same to Agent;
(d) upon the Company's acquiring, or otherwise becoming entitled to
the benefits of, any Copyright (or copyrightable material), Patent (or
patentable invention), Trademark (or associated goodwill) or other Intellectual
Property or upon or prior to the Company's filing, either directly or through
any agent, licensee or other designee, of any application with any Governmental
Person for any Copyright, Patent, Trademark, or other Intellectual Property, in
each case after the Closing Date, execute and deliver such contracts, agreements
and other instruments as Agent may request to evidence, validate, perfect and
establish the priority of the Liens granted by this Agreement in such and any
related Intellectual Property and, if requested by Agent, amend ANNEX 2, 3 or 4
(as the case may be) to reflect the inclusion of any such Intellectual Property
as part of the Collateral (it being understood that the failure to amend any
such Annex shall not affect the Liens granted by this Agreement on any such
Intellectual Property); and
(e) give, execute, deliver, file or record any and all financing
statements, notices, contracts, agreements or other instruments, obtain any and
all approvals of Governmental Persons and take any and all steps that may be
necessary or as Agent may request to create, perfect, establish the priority of,
or to preserve the validity, perfection or priority of, the Liens granted by
this Agreement or to enable Agent to exercise and enforce its rights, remedies,
powers and privileges under this Agreement with respect to such Liens.
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<PAGE>
2.05 ATTORNEY-IN-FACT.
(a) Subject to the rights of the Company under SECTIONS 2.06, 2.07,
2.08 and 2.09, Agent is hereby appointed the attorney-in-fact of the Company for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instruments which Agent may deem necessary or advisable
to accomplish the purposes of this Agreement, to preserve the validity,
perfection and priority of the Liens granted by this Agreement and, following
any Event of Default, to exercise its rights, remedies, powers and privileges
under this Agreement. This appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing,
Agent shall be entitled under this Agreement upon the occurrence and
continuation of any Event of Default (i) to ask, demand, collect, sue for,
recover, receive and give receipt and discharge for amounts due and to become
due under and in respect of all or any part of the Collateral; (ii) to receive,
endorse and collect any Instruments or other drafts, instruments, documents and
chattel paper in connection with clause (i) above (including any draft or check
representing the proceeds of insurance or the return of unearned premiums);
(iii) to file any claims or take any action or proceeding that Agent may deem
necessary or advisable for the collection of all or any part of the Collateral,
including the collection of any compensation due and to become due under any
contract or agreement with respect to all or any part of the Collateral; and
(iv) to execute, in connection with any sale or disposition of the collateral
under SECTION 6, any endorsements, assignments, bills of sale or other
instruments of conveyance or transfer with respect to all or any part of the
Collateral.
(b) Without limiting the rights and powers of Agent under SECTION
2.05(A), the Company hereby appoints Agent as its attorney-in-fact, effective
the Closing Date and terminating upon the termination of this Agreement, for the
purpose of (i) filing such applications with such state agencies and (ii)
executing such other documents and instruments on behalf of, and taking such
other action in the name of, the Company as Agent may deem necessary or
advisable to accomplish the purposes of this Agreement. This appointment as
attorney-in-fact is irrevocable and coupled with an interest.
2.06 [Intentionally left blank]
2.07 USE OF INTELLECTUAL PROPERTY. Subject to such action not
otherwise constituting an Event of Default and so long as no Event of Default
shall have occurred and be continuing, the Company will be permitted to exploit,
use, enjoy, protect, license, sublicense, assign, sell, dispose of or take other
actions with respect to the Intellectual Property in the ordinary course of the
business of the Company. In furtherance of the foregoing, so long as no Event of
Default shall have occurred and be continuing, Agent shall from time to time,
upon the request of the Company, execute and deliver any instruments,
certificates or other documents, in the form so requested, which the Company
shall have certified are appropriate (in its judgment) to allow it to take any
action permitted above (including relinquishment of the license provided
pursuant to SECTION 2.02 as to any specific Intellectual Property). The exercise
of rights, remedies, powers and privileges under SECTION 6 by
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<PAGE>
Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by the Company in accordance with the first
sentence of this SECTION 2.07.
2.08 INSTRUMENTS. So long as no Event of Default shall have occurred
and be continuing, the Company may retain for collection in the ordinary course
of business any Instruments obtained by it in the ordinary course of business,
and Agent shall, promptly upon the request, and at the expense of, the Company,
make appropriate arrangements for making any Instruments pledged by the Company
available to the Company for purposes of presentation, collection or renewal.
Any such arrangement shall be effected, to the extent deemed appropriate by
Agent, against trust receipt or like document.
2.09 USE OF COLLATERAL. So long as no Event of Default shall have
occurred and be continuing, the Company shall, in addition to its rights under
SECTIONS 2.06, 2.07 and 2.08 in respect of the Collateral contemplated in those
sections, be entitled to use and possess the other Collateral and to exercise
its rights, title and interest in all contracts, agreements, licenses and
approvals of Governmental Persons, subject to the rights, remedies, powers and
privileges of Agent under SECTIONS 3 and 6 and to such use, possession or
exercise not otherwise constituting an Event of Default.
2.10 RIGHTS AND OBLIGATIONS.
(a) The Company shall remain liable to perform its duties and
obligations under the contracts and agreements included in the Collateral in
accordance with their respective terms to the same extent as if this Agreement
had not been executed and delivered. The exercise by Agent of any right, remedy,
power or privilege in respect of this Agreement shall not release the Company
from any of its duties and obligations under such contracts and agreements.
Agent shall have no duty, obligation or liability under such contracts and
agreements or in respect to any approval of any Governmental Persons included in
the Collateral by reason of this Agreement or any other Loan Document, nor shall
Agent be obligated to perform any of the duties or obligations of the Company
under any such contract or agreement or any such approval of any Governmental
Persons or to take any action to collect or enforce any claim (for payment)
under any such contract or agreement or approval of any Governmental Persons.
(b) No Lien granted by this Agreement in the Company's right, title
and interest in any contract, agreement or approval of any Governmental Person
shall be deemed to be a consent by Agent to any such contract, agreement or
approval of any Governmental Person.
(c) No reference in this Agreement to proceeds or to the sale or
other disposition of Collateral shall authorize the Company to sell or otherwise
dispose of any Collateral except to the extent otherwise expressly permitted by
the terms of any Loan Document.
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<PAGE>
(d) Agent shall not be required to take steps necessary to preserve
any rights against prior parties to any part of the Collateral.
2.11 TERMINATION. This Agreement shall terminate upon the earliest
to occur of: (i) the payment in full of all of the Secured Obligations; (ii) the
prepayment of the principal of the Notes in the aggregate amount of $1,000,000,
together with all accrued and unpaid interest on the Notes, and the conversion
of the remaining principal in the aggregate amount of $1,000,000 pursuant to
Section 1.3(d) of the Securities Purchase Agreement; or (iii) the payment in
full of all of the secured obligations owing to the Lenders under the Securities
Purchase Agreement dated as of May 5, 1999 (the "INITIAL SECURITIES PURCHASE
AGREEMENT"), among the Company, Telscape, the Agent and the lenders signatories
thereto. Upon such termination of this agreement the Agent shall forthwith cause
to be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral and
money received in respect of the Collateral, to or on the order of the Company
and to be released, canceled and granted back all licenses and rights referred
to in SECTION 2.02. Agent shall also execute and deliver to the Company upon
such termination such Uniform Commercial Code termination statements, and such
other documentation as shall be reasonably requested by the Company to effect
the termination and release of the Liens granted by this Agreement on the
Collateral.
Section 3. CERTAIN PROCEEDS.
3.01 NOTICE TO ACCOUNT DEBTORS. If any Event of Default shall have
occurred and be continuing, the Company shall, upon request of Agent, promptly
notify (and the Company hereby authorizes Agent so to notify) each account
debtor in respect of any Accounts or Instruments that such Collateral has been
assigned to Agent under this Agreement and that any payments due or to become
due in respect of such Collateral are to be made directly to Agent.
3.02 PROCEEDS HELD IN TRUST. If any Event of Default shall have
occurred and be continuing, the Company agrees that if the proceeds of any
Collateral (including payments made in respect of Accounts and Instruments)
shall be received by it, all such proceeds shall be held in trust by the Company
for and as the property of Agent and shall not be commingled with any other
funds or property of the Company.
Section 4. REPRESENTATIONS AND WARRANTIES. As of the Closing
Date, the Company represents and warrants to Agent as follows:
4.01 TITLE. The Company is the sole beneficial owner of the
Collateral in which it purports to grant a Lien pursuant to this Agreement, and
such Collateral is free and clear of all Liens (other than pursuant to the
Initial Securities Purchase Agreement). The Liens granted by this Agreement in
favor of Agent have attached and constitute a perfected security interest in all
of such
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<PAGE>
Collateral (other than Intellectual Property registered or otherwise located
outside of the United States of America) prior to all other Liens (other than
pursuant to the Initial Securities Purchase Agreement).
4.02 [Intentionally left blank]
4.03 INTELLECTUAL PROPERTY.
(a) ANNEXES 2, 3 and 4 set forth completely and correctly all
Copyrights, Patents and Trademarks owned by the Company on the Closing Date;
except pursuant to licenses and other user agreements entered into by the
Company in the ordinary course of business and listed in ANNEX 5, the Company
owns and possesses the right to use, and has done nothing to authorize or enable
any other Person to use, any Copyright, Patent or Trademark listed in ANNEX 2, 3
or 4; all registrations listed in ANNEXES 2, 3 and 4 are valid and in full force
and effect; and, except as may be set forth in ANNEX 5, the Company owns and
possesses the right to use all Copyrights, Patents and Trademarks listed in
ANNEXES 2, 3 and 4;
(b) ANNEX 5 sets forth completely and correctly all licenses and
other user agreements included in the Intellectual Property on the Closing Date;
(c) To the Company's knowledge, (i) except as set forth in ANNEX 5,
there is no violation by others of any right of the Company with respect to any
Copyright, Patent or Trademark listed in ANNEX 2, 3 or 4 and (ii) the Company is
not infringing in any respect upon any Copyright, Patent or Trademark of any
other Person; and no proceedings have been instituted, are pending against the
Company or, to the Company's knowledge, have been threatened against, and no
claim has been received by, the Company, alleging any such violation, except as
may be set forth in ANNEX 5; and
(d) The Company does not own any Trademarks registered in the United
States of America to which the last sentence of the definition of Trademark
Collateral applies.
Section 5. COVENANTS.
5.01 BOOKS AND RECORDS. The Company shall:
(a) keep full and accurate books and records relating to the
Collateral and stamp or otherwise mark such books and records in such manner as
Agent may reasonably require in order to reflect the Liens granted by this
Agreement;
(b) furnish to Agent from time to time (but, unless any Event of
Default shall have occurred and be continuing, no more frequently than
quarterly) statements and schedules further identifying and describing the
Copyright Collateral, the Patent Collateral and the Trademark Collateral
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and such other reports in connection with the Copyright Collateral, the Patent
Collateral and the Trademark Collateral, as Agent may reasonably request, all in
reasonable detail;
(c) prior to filing, either directly or through an agent, licensee
or other designee, any application for any Copyright, Patent or Trademark,
furnish to Agent prompt notice of such proposed filing; and
(d) permit representatives of Agent, upon reasonable notice, at any
time during normal business hours to inspect and make abstracts from its books
and records pertaining to the Collateral, permit representatives of Agent to be
present at the Company's place of business to receive copies of all
communications and remittances relating to the Collateral and forward copies of
any notices or communications received by the Company with respect to the
Collateral, all in such manner as Agent may request. The Company agrees to pay
the reasonable cost of any such inspection conducted at any time that an Event
of Default or event which, with the giving of notice or the passage of time, or
both, would constitute an Event of Default (up to a maximum amount of $5,000 for
any such inspection) which has occurred and is continuing.
5.02 REMOVALS, ETC. Without at least 30 days' prior written notice
to Agent, the Company shall not: (i) maintain any of its books and records with
respect to the Collateral at any office or maintain its principal place of
business at any place, or permit any Inventory or Equipment to be located
anywhere, other than at the address initially indicated for notices to it under
SECTION 7 or at one of the locations identified in ANNEX 6 or in transit from
one of such locations to another; (ii) change its corporate name, or the name
under which it does business, from the name shown on the signature pages to this
Agreement.
5.03 SALES AND OTHER LIENS. The Company shall not dispose of any
Collateral, create, incur, assume or suffer to exist any Lien upon any
Collateral or file or suffer to be on file or authorize to be filed, in any
jurisdiction, any financing statement or like instrument with respect to all or
any part of the Collateral in which Agent is not named as the sole secured party
for its own benefit.
5.04 [Intentionally left blank]
5.05 INTELLECTUAL PROPERTY.
(a) The Company (either itself or through licensees) will, for each
Trademark, (i) to the extent consistent with past practice and good business
judgment, continue to use such Trademark on each and every trademark class of
goods applicable to its current line as reflected in its current catalogs,
brochures and price lists in order to maintain such Trademark in full force and
effect free from any claim of abandonment for nonuse, (ii) maintain as in the
past the quality of products and services offered under such Trademark, (iii)
employ such Trademark with the appropriate notice of registration and (iv) not
(and not permit any licensee or sublicensee to) do any act or knowingly
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<PAGE>
omit to do any act whereby any Trademark material to the conduct of its business
may become invalidated.
(b) The Company (either itself or through licensees) will not do any
act or knowingly omit to do any act whereby any Patent material to the conduct
of its business may become abandoned or dedicated.
(c) The Company shall notify Agent immediately if it knows or has
reason to know that any Intellectual Property material to the conduct of its
business may become abandoned or dedicated, or of any adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding before any Governmental Person) regarding the
Company's ownership of any Intellectual Property material to its business, its
right to copyright, patent or register the same (as the case may be), or its
right to keep, use and maintain the same.
(d) The Company will take all necessary steps that are consistent
with good business practices in any proceeding before any appropriate
Governmental Person to maintain and pursue each application relating to any
Intellectual Property (and to obtain the relevant registrations) and to maintain
each registration material to the conduct of its business, including payment of
maintenance fees, filing of applications for renewal, affidavits of use,
affidavits of incontestability and opposition, interference and cancellation
proceedings.
(e) In the event that any Intellectual Property material to the
conduct of its business is infringed, misappropriated or diluted by a third
party, the Company shall notify Agent within (10) days after it learns of such
event and shall, if consistent with good business practice, promptly sue for
infringement, misappropriation or dilution, seek temporary restraints and
preliminary injunctive relief to the extent practicable, seek to recover any and
all damages for such infringement, misappropriation or dilution and take such
other actions as are appropriate under the circumstances to protect such
Collateral.
(f) The Company shall, through counsel acceptable to Agent,
prosecute diligently any application for any Intellectual Property pending as of
the date of this Agreement or thereafter made until the termination of this
Agreement, make application on uncopyrighted but copyrightable material,
unpatented but patentable inventions and unregistered but registerable
Trademarks and preserve and maintain all rights in applications for any
Intellectual Property; PROVIDED, HOWEVER, that the Company shall have no
obligation to make any such application if making such application would be
unnecessary or imprudent in the good faith business judgment of the Company. Any
expenses incurred in connection with such an application shall be borne by the
Company. The Company shall not abandon any right to file an application for any
Intellectual Property or any pending such application in the United States
without the consent of Agent, which consent shall not be unreasonably withheld.
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(g) Agent shall have the right but shall in no way be obligated to
bring suit in its own name to enforce the Copyrights, Patents and Trademarks and
any license under such Intellectual Property, in which event the Company shall,
at the request of Agent, do any and all lawful acts and execute and deliver any
and all proper documents required by Agent in aid of such enforcement action.
5.06 FURTHER ASSURANCES. The Company agrees that, from time to time
upon the written request of Agent, the Company will execute and deliver such
further documents and do such other acts and things as Agent may reasonably
request in order fully to effect the purposes of this Agreement.
Section 6. REMEDIES.
6.01 EVENTS OF DEFAULT, ETC. If any Event of Default shall have
occurred:
(a) Agent in its discretion may require the Company to, and the
Company shall, assemble the Collateral owned by it at such place or places,
reasonably convenient to both Agent and the Company, designated in Agent's
request;
(b) Agent in its discretion may make any reasonable compromise or
settlement it deems desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or otherwise
modify the terms of, all or any part of the Collateral;
(c) Agent in its discretion may, in its name or in the name of the
Company or otherwise, demand, sue for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for all or any
part of the Collateral, but shall be under no obligation to do so;
(d) Agent in its discretion may, upon ten business days prior
written notice to the Company of the time and place, with respect to all or any
part of the Collateral which shall then be or shall thereafter come into the
possession, custody or control of Agent or any of its agents, sell, lease or
otherwise dispose of all or any part of such Collateral, at such place or places
as Agent deems best, for cash, for credit or for future delivery (without
thereby assuming any credit risk) and at public or private sale, without demand
of performance or notice of intention to effect any such disposition or of time
or place of any such sale (except such notice as is required above or by
applicable statute and cannot be waived), and Agent or any other person may be
the purchaser, lessee or recipient of any or all of the Collateral so disposed
of at any public sale (or, to the extent permitted by law, at any private sale)
and thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or
otherwise), of the Company, any such demand, notice and right or equity being
hereby expressly waived and released. In the event of any sale, license or other
disposition of any of the Trademark Collateral, the goodwill connected with and
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symbolized by the Trademark Collateral subject to such disposition shall be
included, and the Company shall supply to Agent or its designee, for inclusion
in such sale, assignment or other disposition, all Intellectual Property
relating to such Trademark Collateral. Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned; and
(e) Agent shall have, and in its discretion may exercise, all of the
rights, remedies, powers and privileges with respect to the Collateral of a
secured party under the Uniform Commercial Code (whether or not the Uniform
Commercial Code is in effect in the jurisdiction where such rights, remedies,
powers and privileges are asserted) and such additional rights, remedies, powers
and privileges to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights, remedies, powers and privileges in respect of
this Agreement or the Collateral may be asserted, including the right, to the
maximum extent permitted by law, to exercise all voting, consensual and other
powers of ownership pertaining to the Collateral as if Agent were the sole and
absolute owner of the Collateral (and the Company agrees to take all such action
as may be appropriate to give effect to such right).
The proceeds of, and other realization upon, the Collateral by virtue of
the exercise of remedies under this SECTION 6.01 and of the exercise of the
license granted to Agent in SECTION 2.02 shall be applied in accordance with
SECTION 6.04.
6.02 DEFICIENCY. If the proceeds of, or other realization upon, the
Collateral by virtue of the exercise of remedies under SECTION 6.01 and of the
exercise of the license granted by Agent in SECTION 2.02 are insufficient to
cover the costs and expenses of such exercise and the payment in full of the
other Secured Obligations, the Company's shall remain liable for any deficiency.
6.03 PRIVATE SALE.
(a) Agent shall incur no liability as a result of the sale, lease or
other disposition of all or any part of the Collateral at any private sale
pursuant to SECTION 6.01 conducted in a commercially reasonable manner. The
Company hereby waives any claims against Agent arising by reason of the fact
that the price at which the Collateral may have been sold at such a private sale
was less than the price which might have been obtained at a public sale or was
less than the aggregate amount of the Secured Obligations, even if Agent accepts
the first offer received and does not offer the Collateral to more than one
offeree.
(b) [Intentionally left blank]
6.04 APPLICATION OF PROCEEDS. Except as otherwise expressly provided
in this Agreement and except as provided below in this SECTION 6.04, the
proceeds of, or other realization
-15-
<PAGE>
upon, all or any part of the Collateral by virtue of the exercise of remedies
under SECTION 6.01 or of the exercise of the license granted in SECTION 2.02,
and any other cash at the time held by Agent under SECTION 3 or this SECTION 6,
shall be applied by Agent:
FIRST, to the payment of the costs and expenses of such exercise of
remedies, including reasonable out-of-pocket costs and expenses of Agent, the
fees and expenses of its agents and counsel and all other expenses incurred and
advances made by Agent in that connection;
NEXT, to the payment in full of the remaining Secured Obligations
in such manner as Agent may determine; and
FINALLY, to the payment to the Company, or its respective successors
or assigns, or as a court of competent jurisdiction may direct, of any surplus
then remaining.
As used in this SECTION 6, "PROCEEDS" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any property received under any bankruptcy,
reorganization or other similar proceeding as to the Company or any issuer of,
or account debtor or other obligor to the Company on, any of the Collateral.
Section 7. MISCELLANEOUS.
7.01 WAIVER. No failure on the part of Agent to exercise and no
delay in exercising, and no course of dealing with respect to, any right,
remedy, power or privilege under this Agreement shall operate as a waiver of
such right, remedy, power or privilege, nor shall any single or partial exercise
of any right, remedy, power or privilege under this Agreement preclude any other
or further exercise of any such right, remedy, power or privilege or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges provided in this Agreement are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
7.02 NOTICES. All notices and other communications provided for in
this Agreement shall be in writing and delivered by registered or certified
mail, postage prepaid, or delivered by overnight courier (for next Business Day
delivery) or telecopied, addressed as follows, or at such other address as any
of the parties hereto may hereafter designate by notice to the other parties
given in accordance with this SECTION:
1) if to the Company:
Interlink Communications, Inc.
2700 Post Oak Boulevard
Suite 1000
Attn: Todd M. Binet
Telephone: (713) 968-0968
Telecopier: (713) 968-0930
-16-
<PAGE>
With a copy of any notice to:
Nida & Maloney, P.C.
800 Anacapa Street
Santa Barbara, California 93101
Attn: C. Thomas Hopkins, Esq.
Telephone: (805) 568-1151
Telecopy: (805) 568-1955
2) if to Agent:
Cahill, Warnock & Company, LLC
One South Street, Suite 2150
Baltimore, MD 21202
Attn: David Warnock
Telephone: (410) 895-3810
Telecopier: (410) 895-3805
With a copy of any notice to:
Hogan & Hartson
555 13th Street, Suite 1300
Washington, DC 20004
Attn: Tim Lloyd, Esq.
Telephone: (202) 637-8619
Telecopier: (202) 637-5910
Any such notice or communication shall be deemed to have been duly
given on the fifth day after being so mailed, the next Business Day after
delivery by overnight courier, when received when sent by telecopy or upon
receipt when delivered personally.
-17-
<PAGE>
7.03 EXPENSES, ETC. The Company agrees to pay or to reimburse Agent
for all reasonable costs and expenses (including reasonable attorney's fees and
expenses) that may be incurred by Agent in any effort to enforce any of the
provisions of SECTION 6 or any of the obligations of the Company in respect of
the Collateral or in connection with (a) the preservation of the Lien of, or the
rights of Agent under this Agreement or (b) any actual or attempted sale, lease,
disposition, exchange, collection, compromise, settlement or other realization
in respect of, or care of, the Collateral, including all such costs and expenses
(and reasonable attorney's fees and expenses) incurred in any bankruptcy,
reorganization, workout or other similar proceeding.
7.04 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures may be
exchanged by telecopy, with original signatures to follow. Each of the parties
hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The
original signature pages shall be forwarded to Agent or its counsel and Agent or
its counsel will provide all of the parties hereto with a copy of the entire
Agreement.
7.05 AMENDMENTS. This Agreement may only be amended by a writing
duly executed by the parties hereto.
7.06 SEVERABILITY. If any term or provision of this Agreement or any
other document executed in connection herewith shall be determined to be illegal
or unenforceable, all other terms and provisions hereof and thereof shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
7.07 GOVERNING LAW; SUBMISSION TO PROCESS. EXCEPT TO THE EXTENT THAT
THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY SELECTED IN A DOCUMENT OR SECURITY,
THIS AGREEMENT AND THE SECURITIES AND ALL AMENDMENTS, SUPPLEMENTS, WAIVERS AND
CONSENTS RELATING HERETO OR THERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS ITSELF TO
THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
STATE OF MARYLAND AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE
UPON IT IN ANY LEGAL PROCEEDINGS RELATING HERETO BY ANY MEANS ALLOWED UNDER
MARYLAND OR FEDERAL LAW. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE COMPANY SHALL APPOINT AN AGENT FOR SERVICE OF
-18-
<PAGE>
PROCESS IN MARYLAND AND SHALL NOTIFY AGENT IN WRITING OF SUCH APPOINTMENT AND
ANY FUTURE CHANGE THEREIN.
7.08 ENTIRE AGREEMENT. This Agreement contains the entire Agreement
of the parties hereto with respect to the transactions contemplated hereby and
supersedes all previous oral and written, and all previous contemporaneous oral
negotiations, commitments and understandings.
7.09 FURTHER ASSURANCES. The Company agrees promptly to execute and
deliver such documents and to take such other acts as are reasonably necessary
to effectuate the purposes of this Agreement.
7.10 HEADINGS. The headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
7.11 WAIVER OF JURY TRIAL. THE COMPANY AND AGENT EACH HEREBY AGREE
TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE SECURITIES OR ANY OTHER
AGREEMENTS RELATING TO THE SECURITIES OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS TRANSACTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE SECURITIES OR ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE SECURITIES.
7.12 SUCCESSOR AND ASSIGNS; ASSIGNMENT. This Agreement shall not be
assignable by the Company. This Agreement may be assigned by the Agent to its
successor as Agent pursuant to the provisions of the Securities Purchase
Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
[Signature Page Follows]
-19-
<PAGE>
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of
the date first set forth above.
AGENT:
CAHILL, WARNOCK, STRATEGIC PARTNERS FUND, L.P.,
a Delaware limited partnership, as Agent
By: Cahill, Warnock, Strategic Partners, L.P.,
its general partner
By: ____________________________
Name: David L. Warnock
Title: General Partner
THE COMPANY:
INTERLINK COMMUNICATIONS, INC.,
a Delaware corporation
By: ___________________________________
Name: Mr. Todd Binet
Title: Vice President
-20-
<PAGE>
ANNEX 1
[INTENTIONALLY LEFT BLANK]
ANNEX 1 TO SECURITY AGREEMENT
<PAGE>
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
TITLE DATE FILED REGISTRATION NO. EFFECTIVE DATE
- --------------------------------------------------------------------------------
NONE
ANNEX 2 TO SECURITY AGREEMENT
<PAGE>
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
FILE PATENT COUNTRY REGISTRATION NO. DATE
- --------------------------------------------------------------------------------
Satellite Communications Systems and Apparatus 32905
ANNEX 3 TO SECURITY AGREEMENT
<PAGE>
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE MARK REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS
U.S. TRADEMARKS
APPLICATION (A)
REGISTRATION (R) REGISTRATION
MARK OR SERIES NO. (S) OR FILING DATE
- --------------------------------------------------------------------------------
EQUASTAR (R)1394371 5/20/86
EQUATORIAL (R)1263498 1/10/84
EQUATORIAL and Design (R)1228254 2/02/83
EQUATORIAL and Design (R)1319036 2/12/85
ANNEX 4 TO SECURITY AGREEMENT
<PAGE>
FOREIGN TRADEMARKS
APPLICATION (A) REGISTRATION OR
MARK REGISTRATION (R) COUNTRY FILING DATE (F)
- --------------------------------------------------------------------------------
NONE
ANNEX 4 TO SECURITY AGREEMENT
- 2 -
<PAGE>
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
NONE
ANNEX 5 TO SECURITY AGREEMENT
<PAGE>
ANNEX 6
LIST OF LOCATIONS
Interlink Communications, Inc. Headquarters
1143 Borregas Avenue
Sunnyvale, CA 94089
Interlink Communications, Inc. Teleport Facility
300 Ferguson Drive
Mountain View, CA 94043
ANNEX 6 TO SECURITY AGREEMENT
<PAGE>
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
This Amendment dated as of June 18, 1999 (this "AMENDMENT"), is
among TELSCAPE INTERNATIONAL, INC., a Texas corporation ("TELSCAPE"), INTERLINK
COMMUNICATIONS, INC., a Delaware corporation ("INTERLINK," Telscape and
Interlink being collectively referred to as the "COMPANY") and each of the
lenders signatories to the Securities Purchase Agreement referred to below
(individually, a "LENDER" and, collectively, the "LENDERS"), and CAHILL, WARNOCK
STRATEGIC PARTNERS FUND, L.P., a Delaware limited partnership, as agent for the
Lenders (in such capacity, together with its successor in such capacity, the
"AGENT").
RECITALS
Whereas, the Company entered into a Securities Purchase Agreement,
dated as of May 5, 1999 (as modified by that certain Consent dated as of June
18, 1999, and as otherwise amended, modified and supplemented and in effect from
time to time, the "SECURITIES PURCHASE AGREEMENT"), among the Company, the Agent
and each of the Lenders signatories thereto, providing for the sale to and the
purchase by the Lenders of the Increasing Rate Senior Bridge Notes due May 6,
2000 payable by the Company in the principal amount of $6,850,000 (the "NOTES")
and warrants to purchase an aggregate of up to 256,315 shares of common stock of
Telscape, US$.001 par value per share (the "WARRANTS");
Whereas, the Company intends to enter into a securities purchase
agreement (the "CAHILL CREDIT FACILITY") with the Agent, and other lenders
signatories thereto, providing for the sale to and the purchase by the lenders
of the Increasing Rate Notes due June 17, 2000 payable by the Company in the
principal amount of $2,000,000 and warrants to purchase an aggregate up to
62,501 shares of common stock of Telscape, US$.001 par value per share;
Whereas, the Company has incurred or intends to incur, indebtedness
under an equity line of credit not to exceed $1,500,000 (the "EQUITY LINE OF
CREDIT"); and
Whereas, the Company has requested that the Lenders amend, and the
Lenders find it desirable and necessary to amend, certain provisions of the
Securities Purchase Agreement, as set forth herein.
Now, therefore, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
<PAGE>
AGREEMENT
Section 1. DEFINITIONS. Capitalized terms used but not defined in this
Amendment shall have the meaning given to them in the Securities Purchase
Agreement.
Section 2. AMENDMENT TO SECTION 1.3(E)(II) OF THE SECURITIES PURCHASE
AGREEMENT.
Section 1.3(e)(ii) of the Securities Purchase Agreement is
hereby amended and restated in its entirety as follows:
(II) MANDATORY. (A) Unless otherwise agreed to by
all of the Lenders, the Company shall prepay the Notes immediately upon receipt,
and to the extent, of the net financing proceeds in excess of $50,000 actually
received by the Company in the event that the Company completes any financing
transaction (other than the transactions set forth in the proviso in SECTION
3.5) whatsoever from and after the Closing Date, including without limitation
any public or private placements of debt or equity. Notwithstanding anything to
the contrary contained herein, the Company may draw up to $1.5 million under its
currently outstanding equity line of credit without being required to prepay the
Notes.
Section 3. AMENDMENT TO SECTION 3.5 OF THE SECURITIES PURCHASE AGREEMENT.
Section 3.5 of the Securities Purchase Agreement is hereby
amended and restated in its entirety as follows:
"Section 3.5 LIMITATIONS ON INDEBTEDNESS. Without the prior
written consent of all of the Lenders, which consent may not be unreasonably
withheld or denied , the Company shall not, and shall not permit its
consolidated subsidiaries to, directly or indirectly, create, incur, assume,
suffer to exist or otherwise in any manner become liable or commit to become
liable for any Indebtedness other than the Company's obligations to the Agent
and the Lenders in connection herewith and Indebtedness incurred in the ordinary
course of business not in excess of US$10,000 in the aggregate; provided,
however, that (i) debt incurred for the purchase of the Securities hereunder,
(ii) debt incurred solely for the purpose of leasing, or financing all or any
part of the cost of acquiring, personal property for the Company and/or its
consolidated subsidiaries not to exceed $13 million in the aggregate, (iii)
replacement or renewal of any debt outstanding at the Closing Date hereof, (iv)
advances under revolving credit agreements not to exceed a principal amount of
$2 million at any one time outstanding, plus interest thereon, (v) debt in the
aggregate principal amount of $2 million, together with interest thereon,
incurred under a Securities Purchase Agreement dated as of June 18, 1999, among
the Company, Cahill, Warnock Strategic Partners Fund, L.P., as agent, and the
other lenders parties thereto, and (vi) a subordinated bridge financing in the
aggregate principal amount of up to $4 million, plus interest thereon, shall be
permitted hereunder. Notwithstanding the foregoing, should all of the Lenders
consent to the Company's incurring of any Indebtedness (other than Indebtedness
described in the immediately preceding sentence), the net proceeds of such
Indebtedness shall be applied as a mandatory prepayment of principal of the
Notes in accordance with SECTION 1.3(E) hereof."
<PAGE>
Section 3. WAIVER. The Agent and the Lenders hereby waive any Event of
Default which may have occurred under the Securities Purchase Agreement by
reason of the Company's incurrence of indebtedness under the Equity Line of
Credit prior to the effectiveness of this Amendment.
Section 4. REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to each Lender as follows:
a. The Company is duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its incorporation.
b. The Company has full power and authority and legal right to
execute and deliver this Amendment, and has taken all necessary action to
authorize such execution, delivery and performance.
c. This Amendment has been duly executed and delivered by the
Company and is enforceable against the Company in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
d. The execution and delivery of this Amendment by the Company
will not violate or conflict with the Company's Certificate of Incorporation,
Bylaws or any material agreements to which the Company is a party.
Section 5. CONSTRUCTION OF AMENDMENT. The Securities Purchase Agreement
shall be deemed waived only to the extent set forth herein. This Amendment shall
be limited precisely as written and shall not be deemed (a) to be a consent to
any modification or waiver of other terms or conditions of the Securities
Purchase Agreement or any of the documents referred to therein or delivered in
connection therewith, or (b) to prejudice any right, remedy, power or privilege
which any party now has or may have in the future under or in connection with
the Securities Purchase Agreement or any of the documents referred to therein or
delivered in connection therewith.
Section 6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
Section 7. GOVERNING LAW. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of Maryland,
without regard to the conflicts of law principles thereof.
Section 8. SEVERABILITY. If any provision or portion of this Amendment
shall be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions and portions of this Amendment shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
[Signature pages follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the date first above
written.
TELSCAPE INTERNATIONAL, INC.,
a Texas corporation
By:__________________________________
Name: Todd M. Binet
Title: President
INTERLINK COMMUNICATIONS, INC.,
a Delaware corporation
By:___________________________________
Name: Todd M. Binet
Title: President
Each of the undersigned, as holder of the Notes and Warrants issued
under the Securities Purchase Agreement, does hereby consent to the Amendment of
the specified provisions of the Securities Purchase Agreement effected by the
foregoing.
CAHILL, WARNOCK, STRATEGIC
PARTNERS FUND, L.P.,
a Delaware limited partnership
By: Cahill, Warnock, Strategic Partners, L.P.,
Its General Partner
By:_____________________________________
Name: David L. Warnock
Title: General Partner
<PAGE>
STRATEGIC ASSOCIATES, L.P.,
a Delaware limited partnership
By: Cahill, Warnock & Company, LLC,
Its General Partner
By:______________________________________
Name: David L. Warnock
Title: Managing Partner
SIENA CAPITAL PARTNERS, L.P.,
a California limited partnership
By: Charleville Capital, L.P.,
a California limited partnership
Its General Partner
By: Aneis Advisors, Inc.,
a California corporation
Its General Partner
By:_________________________
Christopher P. Shepard
Vice President
THE AVALON TOTAL RETURN FUND, L.P.,
By:_____________________________________
Name:_____________________________
Title:____________________________
<PAGE>
OLD POINTE PARTNERS, L.P.,
By:______________________________________
Name:______________________________
Title:_____________________________
RANDALL WOOSTER,
an individual
_________________________________________
Randall Wooster
ST. JOHNS CAPITAL, LLC,
a Virginia limited liability company
By:______________________________________
Name: Chip Stelljes
Title:_____________________________
E. SCOTT CRIST,
an individual
_________________________________________
E. Scott Crist
EXHIBIT 10.31
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of July 19, 1999 (this
"AGREEMENT"), is among TELSCAPE INTERNATIONAL, INC., a Texas corporation
("HOLDINGS"), TELSCAPE USA, INC., a Texas corporation ("TELSCAPE USA), TSCP
INTERNATIONAL INC., a Texas corporation ("TSCP"), and MSN COMMUNICATIONS, INC.,
a California corporation ("MSN" together with Holdings, Telscape USA and TSCP,
collectively referred to as the "COMPANIES" and each a "COMPANY") and LUCENT
TECHNOLOGIES INC., a Delaware corporation (the "PURCHASER").
In consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
SECTION 1. ISSUANCE OF SECURITIES.
SECTION 1.1 AUTHORIZATION. (a) The Company has duly authorized the
issuance of a Demand Note in the aggregate principal amount of U.S.$3,000,000,
(the "DEMAND NOTE"), substantially in the form of EXHIBIT A hereto, and (b)
Holdings has duly authorized the issuance of a Warrant (the "WARRANT") to
purchase an aggregate of up to 85,000 shares of common stock of Holdings, US
$.001 par value per share (the "COMMON STOCK"), subject to adjustment,
substantially in the form of EXHIBIT B hereto. The Demand Note shall bear
interest and shall be payable upon demand and shall as otherwise be provided
herein and in EXHIBIT A. The Warrant shall be exercisable, transferable and
subject to adjustment and shall be otherwise as provided herein and in EXHIBIT
B. The Demand Note, the Warrant, the Warrant Shares (as defined in the Warrant)
and certificates and other instruments from time to time evidencing the same,
are herein sometimes collectively called the "SECURITIES."
SECTION 1.2 PURCHASE AND SALE OF THE SECURITIES; THE CLOSING. In
reliance upon the representations of the Company contained in SECTION 1.5 hereof
and subject to the terms and conditions set forth herein, the Purchaser shall
purchase the Securities from the Company and the Company shall sell the
Securities to the Purchaser for an aggregate purchase price of US$3,000,000 (the
"PURCHASE PRICE"). The closing (the "CLOSING") of the Purchaser's purchase of
the Securities shall be held at 10:00 a.m., New York time on July 19, 1999 (the
"CLOSING DATE"), at the offices of the Kelley Drye and Warren, LLP, 101 Park
Avenue, New York, New York 10178, or at such other time or place as the parties
hereto may mutually agree.
On the Closing Date, the Company will deliver to the Purchaser the
Demand Note in the aggregate amount specified above and the Warrant, registered
in the Purchaser's name or in the name(s) of its respective nominee(s), as may
be specified by the Purchaser, duly executed and dated the Closing Date, against
the Purchaser's delivery to the Company (or to persons at the direction of the
Company) of immediately available funds in the amount of the Purchase Price (net
of any costs or expenses to be paid by the Company to the Purchaser or its
counsel). For purposes of this Agreement, "BUSINESS DAY" shall mean any day,
except a Saturday, Sunday or
<PAGE>
other day on which commercial banks in the State of New York are authorized or
required by law to close.
SECTION 1.3 THE DEMAND NOTE.
(a) RATE OF INTEREST. The Demand Note shall bear interest from the
Closing Date on the unpaid balance at the rate of ten percent (10.0%) per annum
(the "INTEREST RATE").
(b) PAYMENT. Upon the Demand of the Purchaser, the Company shall pay
to the Purchaser the full amount of the unpaid principal balance plus accrued
interest at the rate specified herein.
(c) NO FURTHER OBLIGATION. Other than the payment of the Purchase
Price, which payment is subject to the terms and conditions hereof, and
notwithstanding whether or not the Company has repaid such amounts in whole or
in part, the Purchaser shall have no obligation whatsoever to lend, advance or
otherwise pay any monies to or on behalf of the Company.
(d) OPTIONAL PREPAYMENTS. The Company may prepay the Demand Note in
full so long as the Company has given the Purchaser one (1) or more Business
Days written notice of such optional prepayment. Any such optional prepayment of
principal shall be without premium or penalty.
SECTION 1.4 THE WARRANT.
Concurrently herewith, Holdings and the Purchaser are entering into
the Warrant, pursuant to which Holdings shall execute and deliver to the
Purchaser a Warrant on the Closing Date. The Warrant shall be dated as of the
Closing Date and shall only be exercisable from and after such date for the
purchase of shares of Common Stock of Holdings and ending on the date that is
the third anniversary of the date hereof.
SECTION 1.5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Purchaser that on the
date hereof and as of the Closing Date:
(a) Each of Holdings, Telscape USA, TSCP and MSN is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas or California, as the case may be, and is duly qualified as a
foreign corporation in each jurisdiction in which the character of the
properties owned or held under lease by it or the nature of the business
transacted by it requires such qualification. The Company has all requisite
power to transact the business it transacts and proposes to transact, to execute
and deliver this Agreement, the Securities and all other documents and
agreements contemplated hereby and thereby, and to perform the provisions hereof
and thereof and to consummate the transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement, the
Securities, and all other documents and agreements contemplated hereby and
thereby, and the consummation of the transactions contemplated hereby or
thereby, have been duly authorized and approved by the Company. This Agreement,
the Securities, and all other documents and
2
<PAGE>
agreements contemplated hereby and thereby have each been duly authorized,
executed and delivered by, and each is the valid and binding obligation of, the
Company enforceable against the Company in accordance with its terms, except as
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws or by legal or equitable principles relating to or
limiting creditors' rights generally.
(c) Except as set forth in Holding's most recent Securities Exchange
Act of 1934 (as amended, the "EXCHANGE ACT") filings with the Securities and
Exchange Commission (the "SEC"), copies of which have been provided to the
Purchaser by the Company, the Company has no actual knowledge of any fact that
materially adversely affects, or could reasonably be expected to materially
adversely affect, the business, prospects, properties, assets, operations or
financial condition of the Company, or the ability of the Company to perform its
respective obligations under this Agreement, the Securities or any other
documents or agreements contemplated hereby and thereby.
(d) On the Closing Date, the authorized capital stock of Holdings
will consist of 25,000,000 shares of Common Stock, 5,000,000 shares of preferred
stock and 1,000,000 shares of series A preferred stock. As of the Closing Date,
Holdings has issued and outstanding 6,916,958 shares of Common Stock, no shares
of preferred stock and no shares of series A preferred stock. The shares of
Common Stock issuable upon the exercise of the Warrant have been duly authorized
and reserved for issuance by all necessary corporate action and when issued and
delivered in accordance with the terms of this Agreement will be duly and
validly issued, fully paid and nonassessable. Except as set forth in SCHEDULE
1.5(D) hereto, there are no other outstanding options, warrants or similar
rights of any person to acquire any of the capital stock of Holdings and
Holdings has no contingent obligations to issue additional shares. Except as set
forth in SCHEDULE 1.5(D) hereto, Holdings is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any of
its capital stock or other securities or obligation evidencing the right of any
holder thereof to purchase any of its capital stock or other securities.
(e) The consummation of the transactions contemplated by this
Agreement and the performance of the terms and provisions of this Agreement, the
Securities and any other documents or agreements contemplated hereby and thereby
will not (i) contravene, result in any breach of, or constitute a default under
any indenture, mortgage, deed of trust, bank loan or credit agreement, corporate
charter, by-laws or other material agreement or instrument to which the Company
is a party or by which the Company or any of its properties is bound, (ii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order of any court, arbitrator or Federal, State, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (collectively, "GOVERNMENTAL PERSON")
applicable to the Company or (iii) violate any material provision of any statute
or other law, rule or regulation of any Governmental Person applicable to the
Company.
(f) The Company has obtained or will obtain prior to closing all
necessary consents, approvals and authorizations and has made all registrations,
filings or declarations with all Governmental Persons required for the issuance
of the Securities or the valid execution and delivery of the Securities or for
the performance by the Company of this Agreement, the Securities, and any other
documents or agreements contemplated hereby and thereby, other than the filings,
registrations or qualifications under the securities laws or "blue
3
<PAGE>
sky" laws of any State that may be required to be made or obtained in connection
with the offer, issuance, sale or delivery of the Securities or any interest
therein.
(g) No employee benefit plan established or maintained by the
Company or to which the Company has made contributions is subject to Part 3 of
Subtitle B of Title 1 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 412 of the Internal Revenue Code of 1986, as amended.
(h) Neither the Company nor anyone acting on its behalf has offered
the Securities, or any interest or participation therein, for sale to or
solicited any offer to buy the Securities, or any interest or participation
therein, from, or otherwise approached or negotiated in respect thereof with,
any person other than the Purchaser, and its partners, officers, affiliates and
representatives. Neither the Company nor anyone acting on its behalf has taken
and will not take any action that would require the offer, issuance or sale of
the Securities or any interest or participation therein to be registered under
Section 5 of the Securities Act of 1933 (as amended, the "SECURITIES ACT"), or
applicable state securities laws. The Company has not authorized or appointed
any person to act on its behalf in connection with the offering of the
Securities. No broker or finder has acted for the Company in connection with
this Agreement or the transactions contemplated hereby, and no broker or finder
is entitled to any brokerage or finder's fees or other commission in respect of
such transaction based in any way on agreements, arrangements or understandings
made by or on behalf of the Company.
(i) The Company is not an investment company subject to registration
under the Investment Company Act of 1940, as amended.
(j) At Closing, the Purchaser shall acquire good and marketable
title to the Securities free and clear of all covenants, conditions,
restrictions, liens, pledges, charges, encumbrances, options and adverse claims
or rights of any kind whatsoever.
(k) Holdings has registered its Common Stock pursuant to Section
12(b) or 12(g) of the Exchange Act and is in full compliance with all reporting
requirements of the Exchange Act, and Holdings has maintained all requirements
for the continued listing or quotation of its Common Stock, and such Common
Stock is currently listed or quoted on the Principal Market. As of the date
hereof, the Principal Market is the NASDAQ National Market.
(l) Holdings has furnished or made available or will furnish and
make available prior to the Closing Date to the Purchaser true and correct
copies of the Company's articles or certificate of incorporation, as amended and
in effect on the date hereof, and the Company's by-laws, as amended and in
effect on the date hereof.
(m) As of their respective dates, all registration statements,
reports and documents, including proxy statements filed by or on behalf of
Holdings with the SEC pursuant to the Securities Act or Exchange Act (the "SEC
DOCUMENTS") complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and rules and
regulations of the SEC promulgated thereunder and other federal, state and local
laws, rules and regulations applicable to such SEC Documents, and none of the
SEC Documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of Holdings included in the SEC
Documents comply as to form in all material respects with generally accepted
accounting principles, consistently applied, and the published rules and
regulations of the SEC or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting
4
<PAGE>
principles applied on a consistent basis during the periods involved (except (i)
as may be otherwise indicated in such financial statements or the notes thereto
or (ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) and fairly present
in all material respects the financial position of Holdings as of the dates
thereof and the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
SECTION 1.6 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to the Company that on the
date hereof and as of the Closing Date:
(a) The Purchaser has all requisite power to execute and deliver
this Agreement, and all other documents and agreements contemplated hereby and
thereby, and to perform the provisions hereof and thereof and to consummate the
transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement, and
all other documents and agreements contemplated hereby and thereby, and the
consummation of the transactions contemplated hereby or thereby, have been duly
authorized and approved by the Purchaser. This Agreement, and all other
documents and agreements contemplated hereby and thereby have each been duly
authorized, executed and delivered by, and each is the valid and binding
obligation of the Purchaser enforceable against such Purchaser in accordance
with its terms, except as may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws or by legal or
equitable principles relating to or limiting creditors' rights generally.
(c) The Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act of 1933, as
amended.
(d) The Purchaser acknowledges that the Securities being acquired by
it are not being acquired pursuant to a transaction registered under the
Securities Act of 1933, as amended, in that the issuance of the Securities does
not involve any public offering.
(e) The Purchaser represents that it is acquiring the Securities for
investment for its own account, and not with a view to distribution.
(f) The Purchaser has received from the Company access to
information as it deems necessary for the purchase of the Securities.
(g) The Purchaser will not sell or otherwise transfer the Securities
without registration of such Securities under the Securities Act of 1933, as
amended, or an exemption therefrom, and fully understands and agrees that the
Purchaser must bear the economic risk of its purchase for an indefinite period
of time.
5
<PAGE>
(h) The Purchaser represents that it is willing and able to bear the
economic risk of its investment in the Securities issued hereunder, and has no
need for liquidity with respect thereto, is able to sustain a complete loss of
its investment, and purchasing such Securities for its own account for
investment and not with a view for resale or distribution thereof except in
compliance with the Securities Act of 1933, as amended.
SECTION 2. CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The obligations of
the Purchaser to purchase and pay for the Securities on the Closing Date shall
be subject to the satisfaction on or before the Closing Date of the conditions
hereinafter set forth:
SECTION 2.1 PROCEEDINGS SATISFACTORY. All proceedings taken on or
prior to the Closing Date in connection with the issuance of the Securities and
the consummation of the transactions contemplated hereby and all documents and
papers relating thereto shall be satisfactory in form and substance to the
Purchaser and its counsel.
SECTION 2.2 REPRESENTATIONS TRUE. All representations and warranties
of the Company contained herein shall be true and correct in all respects on and
as of the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date; the Company shall have
performed in all respects all agreements on its part required to be performed
under this Agreement on or prior to the Closing Date.
SECTION 2.3 THE PURCHASE BY THE PURCHASER PERMITTED BY APPLICABLE
LAWS. The sale by the Company and the payment for the Securities to be purchased
by the Purchaser (i) shall not be prohibited by any applicable law or
governmental regulation, release, interpretation or opinion, (ii) shall not
subject the Purchaser to any penalty under or pursuant to any applicable law or
governmental regulation, and (iii) shall be permitted by the laws and
regulations of the jurisdictions to which the Purchaser is subject.
SECTION 2.4 EXECUTION AND DELIVERY OF DOCUMENTS: GRANTING OF
SECURITY INTEREST. The Purchaser shall have received the following at its
offices, duly executed and delivered and in form and substance satisfactory to
the Purchaser and its counsel: the Agreement and the Securities, and such other
documents and information as the Purchaser may reasonably request, in connection
herewith, including without limitation, (a) a Security Agreement in the form of
Exhibit C hereto, (b) an Omnibus Secretary's Certificate in the form of Exhibit
D hereto, and (c) an opinion of counsel to the Company.
SECTION 2.5 PAYMENT OF EXPENSES. Whether or not the transactions
contemplated by this Agreement are consummated, the Company shall promptly pay
to the Purchaser all reasonable costs and out-of-pocket expenses incurred by any
of it, including without limitation reasonable attorneys' fees, incurred in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the Securities, any administration costs in connection therewith,
and defense or enforcement costs related thereto.
SECTION 3. COVENANTS. The Company covenants and agrees that on and after
the date hereof, so long as the Demand Note shall be outstanding:
SECTION 3.1 PAYMENT OF THE NOTE. The Company shall pay to the
Purchaser the principal of and interest on the Demand Note on demand of the
Purchaser as provided in the Demand Note and in this Agreement. The obligation
of the Company described in the preceding
6
<PAGE>
sentence is absolute and unconditional, irrespective of any tax or accounting
treatment of such obligation including without limitation any documentary stamp,
transfer, ad valorem or other taxes assessed by any jurisdiction in connection
with this transaction.
SECTION 3.2 STAY, EXTENSION AND USURY LAWS. The Company agrees (to
the extent it may lawfully do so) that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would prohibit or
forgive the Company from paying all or a portion of the principal of, or
interest on, the Demand Note as contemplated herein, wherever enacted, now or at
any time hereinafter in force, or that may materially affect the covenants or
the performance of this Agreement in any manner inconsistent with the provisions
of this Agreement. The Company expressly waives all benefit or advantage of any
such law. If a court of competent jurisdiction prescribes that the Company may
not waive its rights to take the benefit or advantage of any stay or extension
law or any usury law or other law in accordance with the prior sentence, then
the obligation to pay interest on the Demand Note shall be reduced to the
maximum legal limit under applicable law governing the interest payable in
connection with the Demand Note, and any amount of interest paid by the Company
that is deemed illegal shall be deemed to have been a prepayment of principal on
such Note.
SECTION 3.3 CORPORATE EXISTENCE. The Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, as the case may be, in accordance with the rights (charter
and statutory), licenses and franchises of the Company.
SECTION 3.4 REPURCHASE OF SECURITIES. Except with the written
consent of all the Purchasers (which may be granted or withheld in its sole
discretion), the Company shall not repurchase or otherwise acquire or retire any
of its capital stock or other securities or obligation evidencing the right of
any holder thereof to purchase any of its capital stock or other securities in
an aggregate amount in excess of US$10,000.00 so long as the Demand Note shall
be outstanding.
SECTION 3.5 COMPLIANCE WITH LAWS. The Company shall comply in all
material respects with all applicable laws, statutes and regulations of any
Governmental Person, a violation of which would have a material adverse effect
on the financial condition, operations, business, profits, prospects or
properties of the Company or the validity or enforceability of this Agreement,
the Securities or any other documents or agreements contemplated hereby or
thereby or any of the transactions contemplated hereby or thereby.
SECTION 4. MISCELLANEOUS
SECTION 4.1 RELIANCE ON AND SURVIVAL OF REPRESENTATIONS. All
representations, warranties, and agreements of the Company herein shall be
deemed to be material and to have been relied upon by the Purchaser and shall
survive the execution and delivery of this Agreement and of the Securities so
long as the Demand Note shall be outstanding.
SECTION 4.2 SUCCESSORS AND ASSIGNS. This Agreement shall bind and
inure to the benefit of and be enforceable by the Company, and the Purchaser and
each of their respective successors and assigns. The Purchaser shall be
permitted to transfer the Securities in accordance
7
<PAGE>
with its terms and in accordance with applicable restrictions under applicable
federal and state securities laws.
SECTION 4.3 NOTICES. All notices and other communications provided
for in this Agreement shall be in writing and delivered by registered or
certified mail, postage prepaid, or delivered by overnight courier (for next
Business Day delivery) or telecopied, addressed as follows, or at such other
address as any of the parties hereto may hereafter designate by notice to the
other parties given in accordance with this SECTION:
1) if to the Company:
Telscape International, Inc.
2700 Post Oak Boulevard, Suite 1000
Houston, TX 77056
Attn: Todd M. Binet
Telephone: (713) 968-0968
Telecopier: (713) 968-0930
Telscape USA, Inc.
2700 Post Oak Boulevard, Suite 1000
Houston, TX 77056
Attn: Todd M. Binet
Telephone: (713) 968-0968
Telecopier: (713) 968-0930
TSCP International, Inc.
2700 Post Oak Boulevard, Suite 1000
Houston, TX 77056
Attn: Todd M. Binet
Telephone: (713) 968-0968
Telecopier: (713) 968-0930
MSN Communications, Inc.
2700 Post Oak Boulevard
Houston, TX 77056
Attn: Todd M. Binet
Telephone: (713) 968-0968
Telecopier: (713) 968-0930
8
<PAGE>
2) if to the Purchaser:
Lucent Technologies, Inc.
283 King George Road
Warren, New Jersey
Attn: General Counsel
Telephone: (908) 559-8282
Telecopier: (908) 559-1711
Any such notice or communication shall be deemed to have been duly
given on the fifth day after being so mailed, the next Business Day after
delivery by overnight courier, when received when sent by telecopy or upon
receipt when delivered personally.
SECTION 4.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures may be
exchanged by telecopy, with original signatures to follow. Each of the parties
hereto agrees that it will be bound by its own telecopied signature and that it
accepts the telecopied signatures of the other parties to this Agreement. The
original signature pages shall be forwarded to the Purchaser's counsel and the
Purchaser or its counsel will provide all of the parties hereto with a copy of
the entire Agreement.
SECTION 4.5 AMENDMENTS. This Agreement may only be amended by a
writing duly executed by the parties hereto.
SECTION 4.6 SEVERABILITY. If any term or provision of this Agreement
or any other document executed in connection herewith shall be determined to be
illegal or unenforceable, all other terms and provisions hereof and thereof
shall nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
SECTION 4.7 GOVERNING LAW; SUBMISSION TO PROCESS. EXCEPT TO THE
EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY SELECTED IN A DOCUMENT
OR SECURITY, THIS AGREEMENT AND THE SECURITIES AND ALL AMENDMENTS, SUPPLEMENTS,
WAIVERS AND CONSENTS RELATING HERETO OR THERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT WOULD CAUSE THE GOVERNING LAW OF ANOTHER
JURISDICTION TO BE APPLIED. THE COMPANY HEREBY IRREVOCABLY SUBMITS ITSELF TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE STATE
OF NEW YORK AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT
IN ANY LEGAL PROCEEDINGS RELATING HERETO BY ANY MEANS ALLOWED UNDER NEW YORK OR
FEDERAL LAW. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
9
<PAGE>
SECTION 4.8 AGENT FOR SERVICE OF PROCESS. The Company shall appoint
CT Corporation System, 1633 Broadway, New York, New York 10019 as its agent for
service of process in New York and shall notify the Purchaser of any future
change therein.
SECTION 4.9 ENTIRE AGREEMENT. This Agreement contains the entire
Agreement of the parties hereto with respect to the transactions contemplated
hereby and supersedes all previous oral and written, and all previous
contemporaneous oral negotiations, commitments and understandings.
SECTION 4.10 FURTHER ASSURANCES. The Company agrees promptly to
execute and deliver such documents and to take such other acts as are reasonably
necessary to effectuate the purposes of this Agreement.
SECTION 4.11 HEADINGS. The headings contained herein are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.12 ASSIGNMENTS. The Company may not assign its rights or
obligations hereunder without the prior written consent of the Purchaser. The
Purchaser may assign all or any portion of the Demand Note or other Securities
without the prior consent of the Company.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the date
first set forth above.
THE COMPANY:
TELSCAPE INTERNATIONAL, INC.,
a Texas corporation
By: ________________________________
Name: Todd M. Binet
Title: President
TELSCAPE USA, INC.,
a Texas corporation
By: ________________________________
Name: Todd M. Binet
Title: Executive Vice President and Secretary
TSCP INTERNATIONAL, INC.,
a Texas corporation
By: ________________________________
Name: Todd M. Binet
Title: Executive Vice President and Secretary
MSN COMMUNICATIONS, INC.
a California corporation
By: ________________________________
Name: Todd M. Binet
Title: Executive Vice President and Secretary
<PAGE>
THE PURCHASER:
LUCENT TECHNOLOGIES INC.,
a Delaware corporation
By: ________________________________
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF DEMAND NOTE
<PAGE>
DEMAND NOTE
$3,000,000.00 July 19, 1999
FOR VALUE RECEIVED, TELSCAPE INTERNATIONAL, INC., a Texas
corporation, TELSCAPE USA, INC., a Texas corporation, MSN COMMUNICATIONS, INC.,
a California corporation and TSCP INTERNATIONAL, INC., a Texas corporation
(collectively, the "MAKERS" and each a "MAKER"), jointly and severally, hereby
unconditionally promises to pay to or to the order of LUCENT TECHNOLOGIES INC.,
a Delaware corporation (the "PAYEE"), upon demand, the principal sum of THREE
MILLION DOLLARS ($3,000,000.00), together with interest, if any, which shall
accrue on and after July 19, 1999 on the unpaid balance at the rate of ten
percent (10.0%) per annum (the "INTEREST RATE").
Each Maker agrees that its obligations under this Note are joint and
several. Payment of principal and interest shall be made in lawful money of the
United States of America, and shall be made at the office of the Payee at 283
King George Road, Warren, New Jersey 07059, or at such other place or bank
account as the Payee or any holder hereof may from time to time designate.
Said sums shall be payable together with all costs and expenses,
including attorneys' fees and legal expenses, incurred by the Payee or any
holder hereof in seeking to enforce payment of this Note.
This Note shall be senior to all subordinated debt and at least PARI
PASSU with all other senior debt of the Makers.
Upon the commencement of any proceeding under any bankruptcy or
insolvency laws by or against any Maker, or upon an assignment for the benefit
of creditors by any Maker, the whole of the principal sum of this Note then
outstanding, and the interest accrued thereon, and any other sums due hereunder,
shall immediately become due and payable automatically, without demand or notice
of any kind, all of which are expressly waived by each Maker.
Each Maker hereby waives presentment for payment, demand, protest,
notice of dishonor and nonpayment of this Note and notice of any kind. Each
Maker (i) waives diligence, demand, presentment, protest and notice of any kind,
(ii) agrees that it will not be necessary for Payee to first institute suit in
order to enforce payment of this Note and (iii) consents to any one or more
extensions or postponements of time of payment, release, surrender or
substitution of collateral security, or forbearance or other indulgence, without
notice or consent. The pleading of any statute of limitations as a defense to
any demand against each Maker is expressly hereby waived by such Maker.
<PAGE>
This Note shall be secured by that certain Security Agreement made
by the Makers and State Street Bank and Trust Company, a Massachusetts banking
corporation, as U.S. Collateral Agent for the sole benefit of the Payee, on the
date hereof. The Payee shall not be required to resort to any collateral for
payment, but may proceed against the Makers and any guarantor or endorser hereof
in such order and manner as the Payee may choose. None of the rights of the
Payee shall be waived or diminished by any failure or delay in the exercise
thereof.
Each Maker hereby waives personal service of any and all process
upon it and consents that all such service of process may be made by registered
or certified mail (return receipt requested) directed to it and service so made
shall be deemed to be completed five (5) days after the same shall have been so
deposited in the U.S. mails, or, at the Payee's option, by service upon the
Makers in any other manner provided under the rules of any such courts. Within
thirty (30) days after such service, the Makers shall appear in answer to such
process, failing which the Makers shall be deemed in default and judgment may be
entered by the Payee against the Makers for the amount of the claim and other
relief requested.
Each Maker consents and submits to the non-exclusive jurisdiction of
the courts of the State of New York and the United States District Court for the
Southern District of New York and waives any objection based on venue or FORUM
NON CONVENIENS with respect to any action instituted therein arising under this
Note or in any way connected with or related or incidental to the dealings among
the Makers and the Payee in respect of this Note or the transaction related
hereto or thereto, in each case whether now existing or hereafter arising, and
whether in contract, tort, equity or otherwise.
EACH MAKER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS NOTE OR (2) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS AMONG THE MAKERS AND THE
PAYEE IN RESPECT OF THIS NOTE OR THE TRANSACTIONS RELATED HERETO OR THERETO IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE. EACH MAKER AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY.
This Note shall be binding upon the successors and assigns of each
Maker and inure to the benefit of the Payee and its successors, endorsees and
assigns. Whenever used herein, the term "Maker" shall be deemed to include its
successors and assigns and the term "Payee" shall be deemed to include their
successors, endorsees and assigns. If any term or provision of this Note shall
be held invalid, illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected thereby.
2
<PAGE>
The rights and obligations of the parties hereunder shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York, without regard to the conflicts of law principles thereof.
TELSCAPE INTERNATIONAL, INC.,
as a Maker
_______________________________________
Name:
Title:
ADDRESS: 2700 Post Oak Blvd.
Suite 1000
Houston, Texas 77056
TELSCAPE USA, INC.,
as a Maker
_______________________________________
Name:
Title:
ADDRESS: 2700 Post Oak Blvd.
Suite 1000
Houston, Texas 77056
MSN COMMUNICATIONS, INC.,
as a Maker
_______________________________________
Name:
Title:
ADDRESS: 2700 Post Oak Blvd.
Suite 1000
Houston, Texas 77056
3
<PAGE>
TSCP INTERNATIONAL, INC.,
as a Maker
_______________________________________
Name:
Title:
ADDRESS: 2700 Post Oak Blvd.
Suite 1000
Houston, Texas 77056
4
<PAGE>
EXHIBIT B
FORM OF WARRANT
<PAGE>
WARRANT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE
SOLD, TRANSFERRED OR OFFERED FOR SALE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS.
Warrant 1
July 19, 1999
Warrant to Purchase 85,000 Shares of Common Stock of
TELSCAPE INTERNATIONAL, INC.
Telscape International, Inc., a Texas corporation (the "COMPANY"), hereby
acknowledges that Lucent Technologies Inc., a Delaware corporation ("INVESTOR"),
or any other Warrant Holder is entitled, on the terms and conditions set forth
below, to purchase from the Company, at any time after the date hereof and
ending on the date that is the third anniversary of the date hereof, the above
number of fully paid and nonassessable shares of Common Stock, par value $0.001
per share, of the Company (the "COMMON STOCK") at the Purchase Price
(hereinafter defined), as the same may be adjusted pursuant to SECTION 5 herein.
1. DEFINITIONS. All terms not otherwise defined herein shall have the
meanings given such terms in the Agreement.
(a) "AGREEMENT" shall mean the Securities Purchase Agreement of even
date herewith between the Company and the Investor.
(b) "INVESTOR" shall mean Lucent Technologies Inc., a Delaware
corporation.
(c) "PURCHASE PRICE" shall be $8.50 per share.
(d) "WARRANT HOLDER" shall mean the Investor or any permitted assignee
of all or any portion of this Warrant.
(e) "WARRANT SHARES" shall mean the shares of Common Stock or other
securities issuable upon exercise of this Warrant.
(f) Other capitalized terms used herein which are defined in the
Agreement shall have the same meanings herein as therein.
<PAGE>
2. EXERCISE OR EXCHANGE OF WARRANT.
(a) This Warrant may be exercised by the Warrant Holder, in whole or
in part, at any time and from time to time by surrender of this Warrant,
together with the form of exercise attached hereto as Exhibit A (the "EXERCISE
FORM") duly executed by Warrant Holder, together with the full Purchase Price
(as defined in SECTION 1) for each share of Common Stock as to which this
Warrant is exercised, to the Company at the address set forth in SECTION 15
hereof. At the option of the Warrant Holder, payment of the Purchase Price may
be made either by (i) certified check payable to the order of the Company, (ii)
surrender of certificates then held representing, or deduction from the number
of shares issuable upon exercise of this Warrant, of that number of shares which
has an aggregate fair market value (as defined below) on the date of exercise
equal to the aggregate Purchase Price for all shares to be purchased pursuant to
this Warrant or (iii) by any combination of the foregoing methods.
In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for which
this Warrant is exercised, and the Company, at its expense, shall forthwith
issue and deliver to or upon the order of the Warrant Holder a new Warrant of
like tenor in the name of the Warrant Holder or as the Warrant Holder may
request, reflecting such adjusted Warrant Shares.
(b) The "DATE OF EXERCISE" of the Warrant shall be the date that the
completed Exercise Form is delivered to the Company, together with the original
Warrant and payment in full of the Purchase Price.
3. DELIVERY OF STOCK CERTIFICATES.
(a) Subject to the terms and conditions of this Warrant, as soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within five (5) Business Days thereafter, the Company at its expense
(including, without limitation, the payment by it of any applicable issue taxes)
will cause to be issued in the name of and delivered to the Warrant Holder, or
as the Warrant Holder may lawfully direct, a certificate or certificates for the
number of fully paid and non-assessable shares of Common Stock to which the
Warrant Holder shall be entitled on such exercise, together with any other stock
or other securities or property (including cash, where applicable) to which the
Warrant Holder is entitled upon such exercise in accordance with the provisions
hereof.
(b) This Warrant may not be exercised as to fractional shares of
Common Stock. In the event that the exercise of this Warrant, in full or in
part, would result in the issuance of any fractional share of Common Stock, then
in such event the Warrant Holder shall be entitled to cash equal to the fair
market value of such fractional share. For purposes of this Warrant, "FAIR
MARKET VALUE" shall equal the closing bid price of the Common Stock on the
Nasdaq National Market or Small-Cap Market, the American Stock Exchange or the
New York Stock Exchange, whichever is the principal trading exchange or market
for the
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Common Stock (the "PRINCIPAL MARKET") on the date of exercise hereof, or if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq National Market or Small-Cap Market, the
closing bid price on the over-the-counter market as furnished by any New York
Stock Exchange member firm that makes a market in the Common Stock reasonably
selected from time to time by the Company for that purpose, or, if the Common
Stock is not traded over-the-counter and the average price cannot be determined
as contemplated above, the fair market value of the Common Stock shall be as
reasonably determined in good faith by the Company's Board of Directors.
4. COVENANTS OF THE COMPANY.
(a) The Company shall take all necessary action and proceedings as
may be required and permitted by applicable law, rule and regulation, including,
without limitation, the notification of the Principal Market, for the legal and
valid issuance of this Warrant and the Warrant Shares to the Warrant Holder.
(b) From the date hereof through the last date on which this Warrant
is exercisable, the Company shall take all steps necessary and within its
control to insure that the Common Stock remains listed or quoted on the
Principal Market and shall not amend its Articles of Incorporation or By-Laws so
as to adversely affect any rights of the Warrant Holder under this Warrant;
provided, however, that increasing the number of authorized shares shall not be
deemed a material adverse effect.
(c) The Company shall at all times reserve and keep available, solely
for issuance and delivery as Warrant Shares hereunder, such shares of Common
Stock as shall from time to time be issuable as Warrant Shares.
(d) The Warrant Shares, when issued in accordance with the terms
hereof; will be duly authorized and, when paid for or issued in accordance with
the terms hereof, shall be validly issued, fully paid and non-assessable. The
Company has authorized and reserved for issuance to the Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to this
Warrant.
(e) With a view to making available to the Warrant Holder the benefits
of Rule 144 promulgated under the Securities Act ("RULE 144") and any other rule
or regulation of the Securities and Exchange Commission (the "SEC"), that may at
any time permit Warrant Holder to sell securities of the Company to the public
without registration, the Company agrees to use its best efforts to: (i) make
and keep public information available, as those terms are understood and defined
in Rule 144, at all times; and (ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act.
5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of and kind
of securities purchasable upon exercise of this Warrant and the Purchase Price
shall be subject to adjustment from time to time as follows:
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(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the Company
shall at any time after the date hereof but prior to the expiration of this
Warrant subdivide its outstanding securities as to which purchase rights under
this Warrant exist, by split-up, spin-off, or otherwise, or combine its
outstanding securities as to which purchase rights under this Warrant exist, the
number of Warrant Shares as to which this Warrant is exercisable as of the date
of such subdivision, split-up, spin-off or combination shall forthwith be
proportionately increased in the case of a subdivision, or proportionately
decreased in the case of a combination. Appropriate adjustments shall also be
made to the Purchase Price, but the aggregate purchase price payable for the
total number of Warrant Shares purchasable under this Warrant as of such date
shall remain the same.
(b) STOCK DIVIDEND. If at any time after the date hereof the Company
declares a dividend or other distribution on Common Stock payable in Common
Stock or other securities or rights convertible into or exchangeable for Common
Stock ("COMMON STOCK EQUIVALENTS"), without payment of any consideration by
holders of Common Stock for the additional shares of Common Stock or the Common
Stock Equivalents (including the additional shares of Common Stock issuable upon
exercise or conversion thereof), then the number of shares of Common Stock for
which this Warrant may be exercised shall be increased as of the record date (or
the date of such dividend distribution if no record date is set) for determining
which holders of Common Stock shall be entitled to receive such dividends, in
proportion to the increase in the number of outstanding shares (and shares of
Common Stock issuable upon conversion of all such securities convertible into
Common Stock) of Common Stock as a result of such dividend, and the Purchase
Price shall be adjusted so that the aggregate amount payable for the purchase of
all the Warrant Shares issuable hereunder immediately after the record date (or
on the date of such distribution, if applicable), for such dividend shall remain
the same.
(c) OTHER DISTRIBUTIONS. If at any time after the date hereof the
Company distributes to holders of its Common Stock, other than as part of a
dissolution or liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets without payment
of any consideration by holders of Common Stock (other than cash, Common Stock
or securities convertible into or exchangeable for Common Stock), then, in any
such case, the Warrant Holder shall be entitled to receive, upon exercise of
this Warrant, with respect to each share of Common Stock issuable upon such
exercise, the amount of cash or evidences of indebtedness or other securities or
assets which such Warrant Holder would have been entitled to receive with
respect to each such share of Common Stock as a result of the happening of such
event had this Warrant been exercised immediately prior to the record date or
other date determining the shareholders entitled to participate in such
distribution (the "DETERMINATION DATE").
(d) MERGER, CONSOLIDATION, ETC. If at any time after the date hereof
there shall be a merger or consolidation of the Company with or into, or a
transfer of all or substantially all of the assets of the Company to, another
entity (a "CONSOLIDATION EVENT"), then the Warrant Holder shall be entitled to
receive upon such transfer, merger or
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consolidation becoming effective, and upon payment of the aggregate Purchase
Price then in effect, the number of shares or other securities or property of
the Company or of the successor corporation resulting from such merger or
consolidation, which would have been received by Warrant Holder for the shares
of stock subject to this Warrant had this Warrant been exercised immediately
prior to such transfer, merger or consolidation becoming effective or to the
applicable record date thereof, as the case may be. The Company shall not effect
any Consolidation Event unless the resulting successor or acquiring entity (if
not the Company) assumes by written instrument the obligation to deliver to the
Warrant Holder such shares of stock and/or securities as the Warrant Holder is
entitled to receive had this Warrant been exercised in accordance with the
foregoing.
(e) RECLASSIFICATION, ETC. If at any time after the date hereof there
shall be a reclassification of any securities as to which purchase rights under
this Warrant exist, into the same or a different number of securities of any
other class or classes, then the Warrant Holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Purchase Price then in effect, the number of shares or other
securities or property resulting from such reorganization or reclassification,
which would have been received by the Warrant Holder for the shares of stock
subject to this Warrant had this Warrant at such time been exercised.
(f) PURCHASE PRICE ADJUSTMENT. In the event that the Company issues or
sells any Common Stock or securities which are convertible into or exchangeable
for its Common Stock or any convertible securities, or any warrants or other
rights to subscribe for or to purchase or any options for the purchase of its
Common Stock or any such convertible securities (other than issuance of shares
of Common Stock upon conversion thereof, shares or options issued or which may
be issued to employees, directors or consultants pursuant to the Company's stock
option or stock purchase plans as of the date hereof or shares issued upon
exercise of options, warrants or rights outstanding as of the date hereof) at an
effective purchase price per share which is less than the Purchase Price then in
effect and more than fifteen percent (15%) less than the fair market value (as
hereinabove defined) of the Common Stock on the trading day next preceding such
issue or sale, then the Purchase Price in effect immediately prior to such issue
or sale shall be reduced effective concurrently with such issue or sale to an
amount determined by multiplying the Purchase Price then in effect by a
fraction, (x) the numerator of which shall be the sum of (1) the number of
shares of Common Stock outstanding immediately prior to such issue or sale,
including, without duplication, those deemed to have been issued under the
Warrants plus (2) the number of shares of Common Stock which the aggregate
consideration received by the Company for such additional shares would purchase
at such fair market value then in effect, and (y) the denominator of which shall
be the number of shares of Common Stock of the Company outstanding immediately
after such issue or sale including, without duplication, those deemed to have
been issued under the Warrants. For purposes of the foregoing fraction, Common
Stock outstanding shall include, without limitation, any equity offerings then
outstanding, whether or not they are exercisable or convertible when such
fraction is to be determined.
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The foregoing price adjustment shall not apply to the issuance of shares of
Common Stock which may be issued upon exercise of options under the Company's
employee or director stock option plans, upon the conversion or exchange of
convertible or exchangeable securities or upon the exercise of warrants, or
other rights, which options, convertible or exchangeable securities, warrants or
other rights are outstanding on the date of execution and delivery of this
Warrant.
The number of shares which may be purchased shall be increased
proportionately to any reduction in Purchase Price pursuant to this paragraph
5(f), so that after such adjustments the aggregate Purchase Price payable
hereunder for the increased number of shares of Common Stock shall be the same
as the aggregate Purchase Price in effect immediately prior to such adjustments.
Notwithstanding anything else contained in this Warrant to the contrary,
there shall be no adjustment of the Purchase Price or the number of shares of
Common Stock issuable pursuant to the exercise of this Warrant in the event that
during the term of this Warrant, the Company issues shares of Common Stock, or
securities convertible into Common Stock to the Purchaser.
(g) ADJUSTMENTS; ADDITIONAL SHARES, SECURITIES OR ASSETS. In the event
that at any time, as a result of an adjustment made pursuant to this SECTION 5,
the Warrant Holder shall, upon exercise of this Warrant, become entitled to
receive shares and/or other securities or assets (other than Common Stock) then,
wherever appropriate, all references herein to shares of Common Stock shall be
deemed to refer to and include such shares and/or other securities or assets;
and thereafter the number of such shares and/or other securities or assets shall
be subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this SECTION 5.
6. REGISTRATION RIGHTS.
(a) "PIGGYBACK" REGISTRATION RIGHTS. If at any time after the date hereof
the Company shall determine to register under the Securities Act (including
pursuant to a demand of any security holder of the Company exercising
registration rights) any of its Common Stock (except pursuant to the
registration statement on Form S-3 filed with the SEC on April 30, 1999 (file
No. 333-77443), securities to be issued solely in connection with any
acquisition of any entity or business, shares issuable solely pursuant to
employee benefit plans eligible for registration on SEC Form S-8 or shares to be
registered on any registration form that does not permit secondary sales), it
shall send to each of the Warrant Holder(s) written notice of such determination
at least thirty (30) days prior to each such filing and, if within twenty (20)
days after receipt of such notice, any Warrant Holder shall so request in
writing, the Company shall use its best efforts to include in such registration
statement (to the extent permitted by applicable regulation) all or any part of
the Warrant Shares (collectively referred to in this SECTION 6 as "REGISTRABLE
SECURITIES") that such Warrant Holder requests to be registered, provided,
however, that if, in connection with any offering involving an underwriting of
Common
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Stock to be issued by the Company, the managing underwriter shall impose a
limitation on the amount of Registrable Securities included in any such
registration statement, then, to the extent that any Registrable Securities
remain available for registration after the underwriter's cutback, the Company
shall be obligated to include in such registration statement with respect to
each Warrant Holder requesting inclusion only the product of : (i) the number of
Registrable Securities with respect to which such Warrant Holder has requested
inclusion hereunder and (ii) such Warrant Holder's pro rata share of the sum of
all Registrable Securities permitted to be registered and all other securities
of the Company, the holders of which Registrable Securities and other securities
have requested that such securities be registered. Any Registrable Securities
which are included in any underwritten offering under this SECTION 6(A) shall be
sold upon such terms as the managing underwriters shall reasonably request but
in any event shall be upon terms not less favorable than those upon which any
other selling security holder shall sell any of its securities. If any Warrant
Holder disapproves of the terms of such underwriting, such Warrant Holder may
elect to withdraw therefrom by written notice to the Company and the
underwriter. The Company shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering (the "COMPANY
UNDERWRITER") to permit the Warrant Holders who have requested to participate in
the registration for such offering to include such Registrable Securities in
such offering on the same terms and conditions as the securities of the Company
included therein. Notwithstanding the foregoing, if the Company Underwriter
delivers a written opinion to the Warrant Holders that the total amount or kind
of securities which they, the Company and any other Persons intend to include in
such offering (the "TOTAL SECURITIES") is sufficiently large so as to prevent
the Company from effecting a successful offering of the Total Securities, then
the amount or kind of securities to be offered for the account of any members of
management shall be reduced pro rata to the extent necessary to reduce the Total
Securities to the amount recommended by the Company Underwriter, and if the
amount or kind of Total Securities is still sufficiently large so as to prevent
the Company from effecting a successful offering of the Total Securities, then
the amount or kind of securities to be offered for the account of the Warrant
Holders and any other Persons shall be reduced pro rata to the extent necessary
to reduce the Total Securities to the amount recommended by the Company
Underwriter. Notwithstanding the provisions of this SECTION 6(A), the Company
shall have the right, at any time after it shall have given written notice
pursuant to this SECTION 6(A) (irrespective of whether a written request for
inclusion of Registrable Securities shall have been made), to elect not to file
any such proposed registration statement or to withdraw the same after the
filing and prior to the effective date thereof whether or not any Warrant Holder
has elected to include securities in such registration.
(b) EFFECTIVENESS. If necessary to permit distribution of the
Registrable Securities, the Company shall use its best efforts to maintain the
effectiveness for up to one (1) year of the registration pursuant to which any
of the Registrable Securities are being offered, and from time to time will
amend or supplement such registration statement and the prospectus contained
therein as and to the extent necessary to comply with the Securities Act and any
applicable state securities statute or
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regulation. Notwithstanding the foregoing, if the registration by the Company of
the resale of Registrable Securities is eligible for SEC Form S-3 or any
successor to such form, the Company shall use its best efforts to maintain the
effectiveness of the registration until all registered Registrable Securities
are sold. Each Warrant Holder shall notify the Company promptly of the
completion of the offering of its Registrable Securities under any such
effective registration statement.
If requested by the Company or a representative of the underwriters
of Common Stock (or other securities) of the Company, each Warrant Holder shall
not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Warrant Holder (other than those
included in registration) for a period specified by the representative of the
underwriters, not to exceed one hundred twenty (120) days following the
effective date of a registration statement of the Company filed under the
Securities Act for the Company's initial public offering of the Company's Common
Stock.
(c) FURTHER OBLIGATIONS OF THE COMPANY. Whenever, under the preceding
provisions of this SECTION 6, the Company is required hereunder to register
Registrable Securities, it agrees that it shall also do the following:
(i) Furnish to each selling Warrant Holder such copies of each preliminary
and final prospectus and any other documents as such Warrant Holder may
reasonably request to facilitate the public offering of its Registrable
Securities;
(ii) Use its best efforts to register or qualify the Registrable
Securities to be registered pursuant to this SECTION 6 under the applicable
securities or blue sky laws of such jurisdictions as any selling Warrant Holder
may reasonably request;
(iii) Furnish to each selling Warrant Holder: (A) a signed counterpart of
an opinion of counsel for the Company, dated the effective date of the
registration statement; and (B) a copy of any "comfort" letters signed by the
Company's independent public accountants who have examined and reported on the
Company's financial statements included in the registration statement, covering
substantially the same matters as are customarily covered in opinions of
issuer's counsel and in accountants' "comfort" letters delivered to the
underwriters in underwritten public offerings of securities;
(iv) Permit each selling Warrant Holder or such Warrant Holder's counsel
or other representatives to inspect and copy such corporate documents and
records as may reasonably be requested by them in connection with such
registration; and
(v) Furnish to each selling Warrant Holder, upon request, a copy of
all documents filed and all correspondence from or to the Commission in
connection with any such offering.
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(d) EXPENSES. Except for underwriters' discounts and brokerage commissions
allocable to the Registrable Securities, the Company shall bear all costs and
expenses of each registration contemplated in this SECTION 6, including, but not
limited to, printing, legal and accounting fees and expenses, SEC and NASD
filing fees and blue sky fees and expenses in any jurisdiction in which the
securities to be offered are to be registered or qualified.
(e) TRANSFER OF REGISTRATION RIGHTS. The registration rights of the
Warrant Holders of Registrable Securities under this SECTION 6 shall inure to
the benefit of and be exercisable by any transferee of Registrable Securities.
7. INDEMNIFICATION.
The Company agrees to defend, indemnify and hold harmless each
Warrant Holder, any underwriter(s) and their respective directors, officers,
employees, attorneys and agents, as well as each other Person (if any)
controlling any of the foregoing Persons within the meaning of Section 15 of the
Securities Act, or Section 20 of the Exchange Act, from and against any and all
claims, liabilities, losses and expenses (including, without limitation, the
disbursements, expenses and fees of their respective attorneys) that may be
imposed upon, incurred by, or asserted against any of them, any of their
respective directors, officers, employees, attorneys and agents, or any such
control Person, under the Securities Act, the Exchange Act or any other statute
or at common law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof), arise out of or are related directly or indirectly
to: (i) the Warrants or the Warrant Shares, (ii) any registration statement or
prospectus, (iii) any alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which such
securities were registered under the Securities Act or the Exchange Act, or in
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or (iv) any alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse such Persons for any legal or any
other expenses reasonably incurred by such Persons in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any alleged untrue statement or alleged omission made in such registration
statement, preliminary prospectus, prospectus or amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such respective Person
specifically for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any such
indemnified Person, and shall survive the transfer of such securities by such
Person. Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against the Company, the Company shall
assume the defense of such action (including the employment of counsel, who
shall be counsel reasonably satisfactory to the party seeking indemnity
hereunder) and the payment of expenses insofar as such action shall relate to
any alleged liability in respect
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of which indemnity may be sought against the Company. The Company shall not,
except with the approval of each party being indemnified under this SECTION
7(A), consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to the parties being so indemnified of a release from all liability in
respect to such claim or litigation.
8. NO IMPAIRMENT. The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Warrant Holder against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any Warrant Shares above the amount payable
therefor on such exercise, and (b) will take all such action as may be
reasonably necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant.
9. NOTICE OF ADJUSTMENTS; NOTICES. Whenever the Purchase Price or number of
Warrant Shares purchasable hereunder shall be adjusted pursuant to SECTION 5
hereof, the Company shall execute and deliver (by first class mail, postage
prepaid) to the Warrant Holder a certificate setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Purchase Price and number
of shares purchasable hereunder after giving effect to such adjustment.
10. RIGHTS AS SHAREHOLDER. Prior to exercise of this Warrant, the Warrant
Holder shall not be entitled to any rights as a shareholder of the Company with
respect to the Warrant Shares, including (without limitation) the right to vote
such shares, receive dividends or other distributions thereon or be notified of
stockholder meetings. However, in the event of any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend (other than a cash
dividend) or other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, the Company shall mail to each Warrant
Holder, at least 10 days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right.
11. REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of the Warrant and,
in the case of any such loss, theft or destruction of the Warrant, upon delivery
of an indemnity agreement or security reasonably satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
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12. CONSENT TO JURISDICTION. THE COMPANY (I) HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK OR ANY STATE COURT OF THE STATE OF NEW YORK FOR
THE PURPOSES OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS WARRANT AND (II) HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURT, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER. THE COMPANY CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION
OR PROCEEDING BY MAILING A COPY THEREOF TO SUCH PARTY AT THE ADDRESS IN EFFECT
FOR NOTICES TO IT UNDER THIS WARRANT AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING IN
THIS PARAGRAPH SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW.
13. ENTIRE AGREEMENT; AMENDMENTS. This Warrant and the Agreement contain the
entire understanding of the parties with respect to the matters covered hereby
and thereby. No provision of this Warrant may be waived or amended other than by
a written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
14. RESTRICTED SECURITIES.
(a) REGISTRATION OR EXEMPTION REQUIRED. This Warrant has been issued
in a transaction exempt from the registration requirements of the Securities Act
in reliance upon the provisions of Section 4(2) of the Securities Act of 1933.
This Warrant and the Warrant Shares issuable upon exercise of this Warrant may
not be resold except pursuant to an effective registration statement or an
exemption to the registration requirements of the Securities Act and applicable
state laws.
(b) LEGEND. The Warrant and any Warrant Shares issued upon exercise
thereof (until a registration statement has been declared effective by the SEC
with respect to the Warrant Shares, at which time, such legend shall be removed,
and the Warrant Shares shall be freely tradeable), shall bear the following
legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD OR OFFERED FOR SALE EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE
SECURITIES ACT AND
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ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS.
(c) ASSIGNMENT. Assuming the conditions of (a) above regarding
registration or exemption have been satisfied, the Warrant Holder may sell,
transfer, assign, pledge or otherwise dispose of this Warrant, in whole or in
part. The Warrant Holder shall deliver a written notice to Company,
substantially in the form of the Assignment attached hereto as Exhibit B,
indicating the person or persons to whom the Warrant shall be assigned and the
respective number of warrants to be assigned to each assignee. The Company shall
effect the assignment within ten (10) days, and shall deliver to the assignee(s)
designated by the Warrant Holder after delivery to the Company of the original
Warrant or Warrants for cancellation, a Warrant or Warrants of like tenor and
terms for the appropriate number of shares.
15. NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
to the Company: Telscape International, Inc.
2700 Post Oak Boulevard
Suite 1000
Houston, Texas 77056
Attention: Todd M. Binet, President
Facsimile No.: (713) 968-0930
to the Warrant Holder: Lucent Technologies, Inc.
283 King George Road
Warren, New Jersey 07059
Attn: General Counsel
Facsimile: (908) 559-1711
Either party hereto may from time to time change its address or facsimile
number for notices under this SECTION 15 by giving at least 10 days prior
written notice of such changed address or facsimile number to the other party
hereto.
16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant shall
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be construed and enforced in accordance with and governed by the laws of the
State of new York, without regard to the conflicts of law principles thereof.
The headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
17. SURVIVAL. The provisions of SECTIONS 6 and 7 shall survive the exercise
or expiration of this Warrant, and the Company shall confirm such survival in
writing if the Warrant Holder requests such confirmation upon exercise or
expiration of this Warrant in its entirety.
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TELSCAPE INTERNATIONAL, INC.
By:________________________________
Todd M. Binet
President
<PAGE>
EXHIBIT A
FORM OF WARRANT EXERCISE
I/we hereby exercise Telscape International, Inc. (the "Company")
Common Stock Purchases Warrant #_________________.
(a) Number of Shares of the Company common stock covered
in Purchase Warrant #______________ __________________
(b) Total Exercise price (____________ per share) $_________________
____________________________________ _________________________________
Signature Employment Identification Number
___________________________________________
Name (please print)
_______________________________________________________________________
Address
_______________________________________________________________________
___________________________________________
Telephone Number
_______________________________________ _______________________________
Signature Employment Identification No.
___________________________________________
Name (please print)
_______________________________________________________________________
Address
_______________________________________________________________________
___________________________________________
Telephone Number
I wish to register my shares of the Company common stock as follows:
a. ( ) Individual Ownership
b. ( ) Husband and Wife as Community Property
c. ( ) Joint Tenants w/Right to Survivorship (JTRS)
d. ( ) Tenants in Common
e. ( ) Other_________________________________
Dated:___________________________________, _____.
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EXHIBIT B
FORM OF ASSIGNMENT
(To be executed by the registered Warrant Holder
desiring to transfer the Warrant)
FOR VALUED RECEIVED, the undersigned holder of the attached Warrant hereby
sells, assigns and transfers unto the persons below named all of the rights of
the undersigned under the Warrant to purchase ______________ shares of the
Common Stock of TELSCAPE INTERNATIONAL, INC. evidenced by the attached Warrant
and does hereby irrevocably constitute and appoint ______________________
attorney to transfer the said Warrant on the books of the Company, maintained
for the purpose, with full power of substitution in the premises.
Dated:
______________________________
Signature
Fill in for new Registration of Warrant:
_________________________________________
Name
_________________________________________
Address
_________________________________________
Please print name and address of assignee
(including zip code number)
NOTICE: The signature to the foregoing Assignment must correspond to the name as
written upon the face of the attached Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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EXHIBIT C
FORM OF SECURITY AGREEMENT
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SECURITY AGREEMENT
This AGREEMENT, dated as of July 19, 1999 (the "SECURITY AGREEMENT"),
is among TELSCAPE INTERNATIONAL, INC., a Texas corporation ("HOLDINGS"),
TELSCAPE USA, INC., a Texas corporation ("TELSCAPE USA"), MSN COMMUNICATIONS,
INC., a California corporation ("MSN"), TSCP INTERNATIONAL, INC., a Texas
corporation ("TSCP"; and each of TSCP, Holdings, Telscape USA, and MSN
collectively, the "BRIDGE BORROWERS", and individually, a "BRIDGE BORROWER") and
STATE STREET BANK AND TRUST COMPANY, a Massachusetts banking corporation, as the
U.S. Collateral Agent (the "U.S. COLLATERAL AGENT") for the sole benefit of
Lucent Technologies Inc., a Delaware corporation ("LUCENT").
WITNESSETH
WHEREAS, at the request of the Borrowers, Lucent has agreed to provide
to the Bridge Borrowers a loan in an aggregate principal amount of $3,000,000
(the "BRIDGE LOAN") pursuant to the terms and conditions set forth in the Demand
Note issued by the Bridge Borrowers to Lucent (the "DEMAND NOTE"), on the date
hereof; and
WHEREAS, the Bridge Borrowers desire to induce Lucent to provide such
Bridge Loan, and therefore are willing to execute and deliver this Security
Agreement (the "SECURITY AGREEMENT");
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1.
(a) DEFINITIONS. For the purposes of this Security Agreement, unless
otherwise defined herein, capitalized terms shall have the meanings specified
below.
"ACCOUNTS" has the meaning set forth in Section 9-106 of the UCC.
"BRIDGE BORROWERS" has the meaning set forth in the preamble.
"BRIDGE LOAN" has the meaning set forth in the recitals.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
on which the commercial banks in New York City are authorized or required
by law to close.
"COLLATERAL" has the meaning set forth in Section 2.
"DEFAULT" has the meaning set forth in the Section 7.
"DEMAND NOTE" has the meaning set forth in the recitals.
"HOLDINGS" has the meaning set forth in the preamble.
"INSTRUMENTS" has the meaning set forth in Section 2.
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"LIEN" means any mortgage, pledge, hypothecation, assignment for
security, deposit arrangement, encumbrance, lien (statutory or other),
charge or other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LUCENT" has the meaning set forth in the recitals.
"MSN" has the meaning set forth in the preamble.
"OBLIGATIONS" means the Demand Note, this Security Agreement and all
other obligations, liabilities and indebtedness of any kind owing by Bridge
Borrowers to Lucent including principal, interest, charges, fees, costs and
expenses arising out of or in connection with the performance of the Demand
Note or the preservation and enforcement of Lucent's rights under the
Demand Note and this Security Agreement.
"PERSON" means any individual, sole proprietorship, partnership,
corporation, limited liability company, limited liability partnership,
business trust, unincorporated association, joint stock corporation, trust,
joint venture or other entity or any agency or instrumentality or political
subdivision thereof.
"PROCEEDS" has the meaning set forth in Section 9-306(1) of the UCC.
"PROCESS AGENT" has the meaning set forth in Section 16(c).
"SECURED PARTIES" has the meaning set forth in Section 2.
"SECURITY AGREEMENT" has the meaning set forth in the preamble.
"TELSCAPE USA" has the meaning set forth in the preamble.
"TSCP" has the meaning set forth in the preamble.
"U.S. COLLATERAL AGENT" has the meaning set forth in the preamble.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York; PROVIDED that if, by reason of any mandatory
requirement of law, any or all of the attachment, perfection, or priority
of the security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a state other than the State of New York,
the term "UCC" means the Uniform Commercial Code as in effect in such other
state for purposes of (a) the provisions hereof relating to such
attachment, perfection, or priority and (b) the definitions related to such
provisions.
(b) RULES OF CONSTRUCTION. Unless the context of this Security
Agreement clearly requires otherwise, references to the plural include the
singular, and the singular include the plural. The words "hereof," "herein,"
"hereby," "hereunder," and similar terms in this Security Agreement refer to
this Security Agreement as a whole and not to any particular provision of this
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Security Agreement. The words "include," "includes, and "including" mean
include, includes and including "without limitation" and "without limitation by
specification." All references in this Security Agreement to "Article",
"Section", "subsection", "subparagraph", "clause" or "Exhibit", unless otherwise
indicated, shall be deemed to refer to an Article, Section, subsection,
subparagraph, clause or Exhibit, as applicable, of this Security Agreement.
SECTION 2. GRANT OF SECURITY INTEREST. Each Bridge Borrower hereby
pledges, assigns and grants to the U.S. Collateral Agent for the ratable benefit
of Lucent and the U.S. Collateral Agent (collectively, the "SECURED PARTIES") a
continuing first priority security interest in and first priority Lien on the
following described property of the Bridge Borrowers, wherever located, whether
now owned or hereafter acquired or arising, and all Proceeds and products
thereof and accessions thereto (all of the same being hereinafter called the
"COLLATERAL"), including:
(a) all Accounts;
(b) all instruments, chattel paper or letters of credit (each as
defined in the UCC) of each of the Bridge Borrowers, evidencing, representing,
arising from or existing in respect of, relating to, securing or otherwise
supporting the payment of any of the Accounts (collectively, the "INSTRUMENTS").
(c) all Proceeds and products of any and all of the foregoing
Collateral.
SECTION 3. OBLIGATIONS SECURED. The Collateral hereunder constitutes
and will constitute continuing security for prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
SECTION 4. APPLICATION OF PROCEEDS OF COLLATERAL. All amounts owing
with respect to the Obligations shall be secured by the Collateral without
distinction as to whether some Obligations are then due and payable and other
Obligations are not then due and payable. Upon any realization upon the
Collateral by the U.S. Collateral Agent, each Bridge Borrower agrees that the
Proceeds thereof shall be applied by the U.S. Collateral Agent:
(a) FIRST, to the U.S. Collateral Agent for payment of the costs and
expenses, if any, of such sale or disposition, including reasonable compensation
to the U.S. Collateral Agent for customary brokerage commissions and its
counsel, and all reasonable expenses, liabilities and advances made or incurred
by the U.S. Collateral Agent in connection therewith; and
(b) SECOND, to Lucent for application in the following order of
priority:
(i) First, the interest and fees due ;
(ii) Second, installments of principal due; and
(iii) Third, all other amounts due under the Demand Note or this
Security Agreement.
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Each Bridge Borrower shall remain liable for any deficiency remaining
unpaid after the application of Proceeds in accordance with the foregoing
provisions. Each Bridge Borrower agrees that all amounts received through
realization on the Collateral shall be applied to the payment of the Obligations
in accordance with the provisions of this Section 4.
SECTION 5. REPRESENTATIONS AND COVENANTS OF BRIDGE BORROWERS.
(a) LOCATION OF CHIEF EXECUTIVE OFFICE; TAX IDENTIFICATION NUMBER.
Each Bridge Borrower represents that its federal tax identification number, its
state of incorporation and the location of its chief executive office, books and
records are as described in SCHEDULE A attached hereto. Each Bridge Borrower
shall hold and preserve such records and will permit representatives of the U.S.
Collateral Agent, at any reasonable time during normal business hours, upon
advance written notice, and as often as may reasonably be desired, to inspect
and make abstracts from such records. Each Bridge Borrower agrees that it will
not change its federal tax identification number, its state of incorporation or
the location of its chief executive office or the location where its books and
records are kept without the express written consent of the U.S. Collateral
Agent and will advise the U.S. Collateral Agent as to any change in the location
of any property comprising a part of the Collateral.
(b) OWNERSHIP OF COLLATERAL. Each Bridge Borrower represents that, as
of the date hereof, it is the owner of its Collateral free from any Lien. Each
Bridge Borrower shall continue to be the owner of its Collateral free of any
Lien and such Bridge Borrower shall defend the same against all claims and
demands of all persons at any time claiming the same or any interest therein
adverse to the Secured Parties. No effective financing statement is on file in
any recording office, except as such may have been filed in favor of the U.S.
Collateral Agent relating to this Security Agreement. Such Bridge Borrower shall
not pledge, mortgage nor create nor suffer to exist a security interest in the
Collateral in favor of any Person other than the U.S. Collateral Agent for the
sole benefit of Lucent.
(c) CREATION AND PERFECTION OF LIEN. This Security Agreement creates a
valid first priority security interest in the Collateral, securing the complete
payment and performance when due of the Obligations. All filings and other
actions necessary or desirable to perfect and protect such security interest
have been duly taken and the U.S. Collateral Agent's security interest for the
benefit of the Secured Parties in the Collateral is and shall remain prior to
all other Liens and encumbrance.
(d) NO FURTHER ACTIONS. Except for the filings referred to in
paragraph (c) above, no authorization, approval or other action by, and no
notice of filing with, any governmental authority or other Person that has not
been received, taken or made is required (i) for the grant by each Bridge
Borrower of the security interest granted hereby or for the execution, delivery
or performance of this Security Agreement by such Bridge Borrower, (ii) for the
perfection and maintenance of the security interest and Lien hereunder
(including the first priority nature of such security interest and Lien), or
(iii) for the exercise by the U.S. Collateral Agent of the rights or the
remedies in respect of the Collateral pursuant to this Security Agreement in
accordance with applicable law.
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(e) AUTHORITY. Each Bridge Borrower represents and warrants that, as
of the date hereof, it has full power and authority to execute, deliver and
perform this Security Agreement and the Demand Note. The execution, delivery of
and performance of this Security Agreement and the Demand Note have been duly
authorized by such Bridge Borrower. This Security Agreement has been duly and
validly executed and delivered by such Bridge Borrower, and constitutes the
legal, valid and binding obligations of such Bridge Borrower, enforceable
against such Bridge Borrower in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, fraudulent conveyance, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
general equitable principles.
(f) FURTHER ASSURANCES BY BRIDGE BORROWERS. Each Bridge Borrower
agrees that, from time to time, at the expense of such Bridge Borrower, such
Bridge Borrower will promptly execute and deliver to the U.S. Collateral Agent
for the benefit of the Secured Parties such further instruments and documents,
and take such further action, as may be necessary or desirable, or that the U.S.
Collateral Agent may request, in order to perfect or otherwise protect and
maintain the security interest granted or purported to be granted and the Lien
created hereby or to enable the U.S. Collateral Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, each Bridge Borrower will: (i) if any
Collateral shall be evidenced by any Instrument, deliver and pledge to the U.S.
Collateral Agent hereunder such Instrument duly indorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the U.S. Collateral Agent and (ii) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the U.S.
Collateral Agent may request, in order to perfect and preserve the assignment
and security interest granted or purported to be granted hereby. Each Bridge
Borrower hereby authorizes the U.S. Collateral Agent for the benefit of the
Secured Parties to file one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the Collateral without the
signature of such Bridge Borrower where permitted by law. The U.S. Collateral
Agent agrees to provide such Bridge Borrower with a copy of any such filing. A
carbon, photographic or other reproduction of this Security Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
SECTION 6. POWER OF ATTORNEY. Each Bridge Borrower hereby irrevocably
appoints the U.S. Collateral Agent as its attorney-in-fact, effective at all
times subsequent to the occurrence of any breach of or default under the
Obligations, and during the continuance thereof, with full authority in the
place and stead of such Bridge Borrower and in the name of such Bridge Borrower
or otherwise, to take any action and to execute any instrument which the U.S.
Collateral Agent may deem necessary or advisable to accomplish the purpose of
this Security Agreement, including the power and right (i) to endorse such
Bridge Borrowers' name on any checks, notes, acceptances, money orders, drafts,
filings or other forms of payment or security that may come into the U.S.
Collateral Agent's possession and (ii) to do all other things which the U.S.
Collateral Agent then determines to be necessary to carry out the terms of this
Security Agreement. Each Bridge Borrower ratifies and approves all acts of such
attorney-in-fact. The power conferred on the U.S. Collateral Agent hereunder is
solely to protect the U.S. Collateral Agent's and the Secured Parties' interests
in the Collateral and shall not impose any duty upon the U.S. Collateral Agent
to exercise such power.
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SECTION 7. ACCOUNTS. Upon any failure of any Bridge Borrower to pay to
Lucent the principal and interest due under the Demand Note upon demand by
Lucent (a "DEFAULT"):
(a) Each Bridge Borrower shall notify the U.S. Collateral Agent
promptly of: (i) any material delay in such Bridge Borrower's performance of any
of its obligations to any account debtor or the assertion of any claims,
offsets, defenses or counterclaims by any account debtor, or any disputes with
account debtors, or any settlement, adjustment or compromise thereof, (ii) all
material adverse information relating to the financial condition of any account
debtor. No credit, discount, allowance or extension or agreement for any of the
foregoing shall be granted to any account debtor without the U.S. Collateral
Agent's consent, except in the ordinary course of such Bridge Borrower's
business in accordance with practices and policies previously disclosed in
writing to the U.S. Collateral Agent. So long as no default has occurred, each
Bridge Borrower shall settle, adjust or compromise any claim, offset,
counterclaim or dispute with any account debtor. Upon the occurrence of a
default, the U.S. Collateral Agent shall, at its option, have the exclusive
right to settle, adjust or compromise any claim, offset, counterclaim or dispute
with account debtors or grant any credits, discounts or allowances.
(b) The U.S. Collateral Agent shall have the right at any time or
times, in its own name or Lucent's name, to verify the validity, amount or any
other matter relating to any Account or other Collateral, by mail, telephone,
facsimile transmission or otherwise.
(c) The U.S. Collateral Agent may, at any time or times that a default
has occurred, (i) notify any or all account debtors that the Accounts have been
assigned to the U.S. Collateral Agent and that the U.S. Collateral Agent has a
security interest therein and the U.S. Collateral Agent may direct any or all
accounts debtors to make payment of Accounts directly to the U.S. Collateral
Agent, (ii) extend the time of payment of, compromise, settle or adjust for
cash, credit, return of merchandise or otherwise, and upon any terms or
conditions, any and all Accounts or other obligations included in the Collateral
and thereby discharge or release the account debtor or any other party or
parties in any way liable for payment thereof without affecting any of the
Obligations, (iii) demand, collect or enforce payment of any Accounts or such
other obligations, but without any duty to do so, and the U.S. Collateral Agent
shall not be liable for its failure to collect or enforce the payment thereof
nor for the negligence of its agents or attorneys with respect thereto and (iv)
take whatever other action the U.S. Collateral Agent may deem necessary or
desirable for the protection of the Secured Parties' interests. At any time that
a default has occurred, at the U.S. Collateral Agent's request, all invoices and
statements sent to any account debtor shall state that the Accounts and such
other obligations have been assigned to the U.S. Collateral Agent and are
payable directly and only to the U.S. Collateral Agent and such Bridge Borrower
shall deliver to the U.S. Collateral Agent such originals of documents
evidencing the sale and delivery of goods or the performance of services giving
rise to any Accounts as the U.S. Collateral Agent may require.
(d) The U.S. Collateral Agent shall apply any collection of Proceeds
received by the U.S. Collateral Agent hereunder (insofar as such proceeds relate
to the Collateral) to the Obligations in accordance with Section 4 of this
Security Agreement.
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SECTION 8. DEFAULT; REMEDIES. Upon the occurrence of a Default the
U.S. Collateral Agent may demand, sue for, collect, or make any settlement or
compromise with respect to the Collateral upon the written instruction of
Lucent.
(a) Upon the occurrence of a default, the U.S. Collateral Agent shall
have all rights and remedies provided in this Security Agreement and other
applicable law, all of which rights and remedies may be exercised without notice
to or consent by the Bridge Borrowers, except as such notice or consent is
expressly provided for hereunder or required by applicable law. All rights,
remedies and powers granted to the U.S. Collateral Agent hereunder, or under
other applicable law, are cumulative, not exclusive and enforceable, in the U.S.
Collateral Agent's discretion, alternatively, successively, or concurrently on
any one or more occasions. The U.S. Collateral Agent may, at any time or times,
proceed directly against each of the Bridge Borrowers to collect the Obligations
without prior recourse to the Collateral.
(b) The U.S. Collateral Agent agrees that it will give notice to each
Bridge Borrower and Lucent of any enforcement action taken by it pursuant to
this Section 8 promptly after commencing such action.
SECTION 9. MARSHALLING. The U.S. Collateral Agent shall not be
required to marshal any present or future security for (including but not
limited to this Security Agreement and the Collateral subject to the security
interest created hereby), or guaranties of, the Obligations or any of them, or
to resort to such security or guaranties in any particular order; and all of its
rights hereunder and in respect of such security and guaranties shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that it lawfully may, each Bridge Borrower hereby agrees that it will
not invoke any law relating to the marshalling of Collateral which might cause
delay in or impede the enforcement of the U.S. Collateral Agent's rights under
this Security Agreement or under any other instrument evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or guaranteed, and to the extent that it lawfully
may do so each Bridge Borrower hereby irrevocably waives the benefits of all
such laws. Except as otherwise provided by applicable law or this Agreement, the
U.S. Collateral Agent shall have no duty as to the collection or protection of
the Collateral or any income thereon, nor as to the preservation of rights
against prior parties, nor as to the preservation of any rights pertaining
thereto beyond the sole custody thereof.
SECTION 10. BRIDGE BORROWERS' OBLIGATIONS NOT AFFECTED. To the extent
permitted by law, the obligations of each Bridge Borrower under this Security
Agreement shall remain in full force and effect without regard to, and shall not
be impaired by (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Bridge Borrower, to
the extent permitted by law; (b) any exercise or nonexercise, or any waiver, by
the U.S. Collateral Agent of any right, remedy, power or privilege under or in
respect of any of the Obligations or any security therefor (including this
Security Agreement); (c) any amendment to or modification of any instrument
evidencing any of the Obligations or pursuant to which any of them were issued;
(d) any amendment to or modification of any instrument or agreement (other than
this Security Agreement) securing any of the Obligations; or (e) the taking of
additional security for or any guaranty of any of the Obligations or the release
or
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discharge or termination of any security or guaranty for any of the Obligations;
and whether or not such Bridge Borrower shall have notice or knowledge of any of
the foregoing.
SECTION 11. NO WAIVER. No failure on the part of the U.S. Collateral
Agent to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the U.S. Collateral Agent of any right, remedy or power hereunder
preclude any other or future exercise of any other right, remedy or power. Each
and every right, remedy and power hereby granted to the U.S. Collateral Agent,
or Lucent or allowed to any of them by law or other agreement, shall be
cumulative and not exclusive of any other, and, subject to the provisions of
this Security Agreement, may be exercised by the U.S. Collateral Agent or Lucent
from time to time.
SECTION 12. INDEMNITY AND EXPENSES. (a) Each Bridge Borrower jointly
and severally agrees to indemnify the U.S. Collateral Agent from and against any
and all claims, losses and liabilities growing out of or resulting from this
Security Agreement (including, without limitation, enforcement of this Security
Agreement), except claims, losses or liabilities resulting from the U.S.
Collateral Agent's gross negligence or willful misconduct.
(b) Each Bridge Borrower will upon demand pay to the U.S. Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts and agents, which the U.S.
Collateral Agent may incur in connection with (i) the preparation and
administration of this Security Agreement or the Demand Note, (ii) the custody
or preservation of, or the collection from or other realization upon, any of the
Collateral, (iii) the exercise or enforcement of any of the rights of the U.S.
Collateral Agent hereunder or (iv) the failure by any Bridge Borrower to perform
or observe any of the provisions hereof.
SECTION 13. CONSENTS, AMENDMENTS, WAIVERS. Any term of this Security
Agreement may be amended only upon the prior written agreement of the Secured
Parties and each of the Bridge Borrowers, and the performance or observance by
any Bridge Borrower of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only upon the
prior written consent of the Secured Parties.
SECTION 14. GOVERNING LAW. Except as otherwise required by the laws of
any jurisdiction in which any Collateral is located, this Security Agreement
shall be deemed to be a contract under seal and shall for all purposes be
governed by and construed in accordance with the domestic laws of the State of
New York without giving effect to any choice or conflict of law provision or
rule (whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
New York.
SECTION 15. WAIVERS OF JURY TRIAL. EACH OF THE BRIDGE BORROWERS AND
THE U.S. COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT AND
FOR ANY COUNTERCLAIM WITH RESPECT THERETO TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW.
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SECTION 16. SUBMISSION TO JURISDICTION; WAIVERS. Each Bridge Borrower
hereby irrevocably and unconditionally:
(a) Submits for itself and its property in any legal action or
proceeding relating to this Security Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and the appellate
courts from any thereof;
(b) Consents that any such action or proceeding may be brought in any
such court and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) Agrees that service of process in any such action or proceeding
may be made personally or by mailing or delivering a copy of the summons and
complaint or other legal process in any legal action or proceeding to any Bridge
Borrower at its address set forth in Section 21 or to the CT Corporation System,
1633 Broadway, New York, New York 10019, its process agent (together with any
successor process agent, the "PROCESS AGENT"). Service of process upon the
Process Agent shall be deemed in every respect effective service upon such
Bridge Borrower and shall be legal and binding upon such Bridge Borrower for all
purposes notwithstanding any failure to mail copies of such legal process to
such Bridge Borrower or any failure on the part of such Bridge Borrower to
receive the same;
(d) Agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) Waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section 16(e) any special, exemplary, punitive or consequential damages.
SECTION 17. PARTIES IN INTEREST. All terms of this Security Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and permitted assigns of the parties hereto, PROVIDED that
no Bridge Borrower may assign or transfer its rights hereunder without the prior
written consent of the U.S. Collateral Agent and Lucent. Any assignment or
transfer by any Bridge Borrower of its rights hereunder in violation of this
Security Agreement shall be void.
SECTION 18. COUNTERPARTS. This Security Agreement and any amendment
hereof may be executed in several counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one instrument. In proving this
Security Agreement it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is sought.
SECTION 19. SEVERABILITY. Any provision of this Security 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 provisions
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hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
The parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provision with valid provisions the economic effect of
which is as close as possible to that of the invalid, illegal or unenforceable
provision.
SECTION 20. TERMINATION. Upon the indefeasible payment in full of the
Obligations in accordance with their terms, (a) this Security Agreement shall
terminate and each Bridge Borrower shall be entitled to the return, at such
Bridge Borrowers' expense, of such Collateral in the possession or control of
the U.S. Collateral Agent as has not theretofore been disposed of pursuant to
the provisions hereof and (b) upon request of such Bridge Borrower, the U.S.
Collateral Agent will execute and file, at such Bridge Borrower's expense, UCC
termination statements and such other documents as such Bridge Borrower may
reasonably request to evidence the termination of the U.S. Collateral Agent's
security interest in the Collateral.
SECTION 21. NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission followed by other delivery) and addressed to the
addresses of the Bridge Borrowers and the U.S. Collateral Agent set forth below,
or to such other address as may be hereafter notified in writing by the
respective parties hereto, and unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by messenger or by
mail, or three days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received.
IF TO BRIDGE BORROWER:
Telscape International, Inc.
2700 Post Oak Blvd., Suite 1000
Houston, TX 77056
Attn: Todd M. Binet
Phone: 713-968-0968
Fax 713-968-0930
Telscape USA, Inc.
2700 Post Oak Blvd., Suite 1000
Houston, TX 77056
Attn: Todd M. Binet
Phone: 713-968-0968
Fax 713-968-0930
10
<PAGE>
MSN Communications, Inc.
2700 Post Oak Blvd., Suite 1000
Houston, TX 77056
Attn: Todd M. Binet
Phone: 713-968-0968
Fax 713-968-0930
TSCP International, Inc.
2700 Post Oak Blvd., Suite 1000
Houston, TX 77056
Attn: Todd M. Binet
Phone: 713-968-0968
Fax 713-968-0930
IF TO LENDER:
Lucent Technologies, Inc.
283 King George Road
Warren, New Jersey
Attn: Annette Fasciano
Phone: (908) 559-8282
Fax: (908) 559-1711
IF TO U.S. COLLATERAL AGENT:
State Street Bank and Trust Company
2 International Place, 4th Floor
Boston, MA
Attn:________________________
Phone:_______________________
Fax:_________________________
SECTION 22. INTEGRATION. This Security Agreement represents the
agreement of the Bridge Borrowers with respect to the subject matter hereof, and
there is no promise, undertaking, representation or warranty by the U.S.
Collateral Agent relative to the subject matter hereof not expressly set forth
or referred to herein.
SECTION 23. ACKNOWLEDGEMENTS. The Bridge Borrowers hereby acknowledge
that:
(a) It has been advised by counsel in the negotiation, execution and
delivery of this Security Agreement;
11
<PAGE>
(b) The U.S. Collateral Agent has no fiduciary relationship to the
Bridge Borrowers; and
(c) No joint venture exists among any of the Bridge Borrowers and the
U.S. Collateral Agent.
SECTION 24. HEADINGS. Section headings used herein are for convenience
of reference only, are not part of this Security Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this
Security Agreement.
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed by their authorized representatives as of the date first written
above.
TELSCAPE INTERNATIONAL INC.,
as a Bridge Borrower
By:________________________
Name: TODD M. BINET
Title: PRESIDENT
TELSCAPE USA, INC.,
as a Bridge Borrower
By:________________________
Name: TODD M. BINET
Title: EXECUTIVE VICE PRESIDENT
MSN COMMUNICATIONS, INC.,
as a Bridge Borrower
By:________________________
Name: TODD M. BINET
Title: EXECUTIVE VICE PRESIDENT
TSCP INTERNATIONAL, INC.,
as a Bridge Borrower
By:________________________
Name: TODD M. BINET
Title: EXECUTIVE VICE PRESIDENT
13
<PAGE>
STATE STREET BANK AND TRUST COMPANY,
as the U.S. Collateral Agent
By:________________________
Name:______________________
Title:_____________________
14
<PAGE>
SECURITY AGREEMENT
SCHEDULE A
FEDERAL TAX IDENTIFICATION NUMBER, STATE OF INCORPORATION AND LOCATION OF
CHIEF EXECUTIVE OFFICE AND BOOKS AND RECORDS
TELSCAPE INTERNATIONAL, INC.
Federal Tax Identification Number: 75-2433637
State of Incorporation: TEXAS
Location of Chief Executive Office and Books and Records:
2700 POST OAK BOULEVARD, SUITE 1000, HOUSTON, TEXAS 77056
TELSCAPE USA, INC.
Federal Tax Identification Number: 76-0499077
State of Incorporation: TEXAS
Location of Chief Executive Office and Books and Records:
2700 POST OAK BOULEVARD, SUITE 1000, HOUSTON, TEXAS 77056
MSN COMMUNICATIONS, INC.
Federal Tax Identification Number: 33-0707658
State of Incorporation: CALIFORNIA
Location of Chief Executive Office and Books and Records:
2700 POST OAK BOULEVARD, SUITE 1000, HOUSTON, TEXAS 77056
TSCP INTERNATIONAL, INC.
Federal Tax Identification Number: 76-0577773
State of Incorporation: TEXAS
Location of Chief Executive Office and Books and Records:
2700 POST OAK BOULEVARD, SUITE 1000, HOUSTON, TEXAS 77056
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<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 5,044,000
<SECURITIES> 0
<RECEIVABLES> 15,166,000
<ALLOWANCES> (425,000)
<INVENTORY> 4,534,000
<CURRENT-ASSETS> 30,686,000
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<TOTAL-ASSETS> 84,609,000
<CURRENT-LIABILITIES> 41,010,000
<BONDS> 10,041,000
0
0
<COMMON> 7,000
<OTHER-SE> 33,551,000
<TOTAL-LIABILITY-AND-EQUITY> 84,609,000
<SALES> 56,728,000
<TOTAL-REVENUES> 56,728,000
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<INCOME-TAX> (2,251,000)
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<NET-INCOME> (5,942,000)
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