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