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Exhibit G
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
IFX CORPORATION COMMON STOCK
DATED AS OF OCTOBER 13, 2000
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TABLE OF CONTENTS
Page
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1. Sale and Purchase of Common Stock............................................................................1
2. Representations and Warranties of Sellers....................................................................2
(a) Organization and Good Standing.........................................................................2
(b) Ownership of Seller....................................................................................2
(c) Authorization; Enforceability..........................................................................2
(d) No Conflicts...........................................................................................2
(e) Good and Marketable Title to the Shares................................................................2
(f) Offering...............................................................................................3
(g) Brokers................................................................................................3
(h) No Undisclosed Liabilities.............................................................................3
(i) SEC Reports............................................................................................3
(j) Litigation.............................................................................................3
(k) Disclosure.............................................................................................3
(l) Use of Proceeds........................................................................................3
3. Representations and Warranties of the Purchasers.............................................................4
(a) Investment Intent......................................................................................4
(b) Sophistication.........................................................................................4
(c) Accredited Investor....................................................................................4
(d) Brokers................................................................................................4
(e) Requisite Power and Authority..........................................................................4
(f) No Conflict............................................................................................4
4. Conditions to Obligations of the Purchasers..................................................................4
(a) Representations and Warranties.........................................................................4
(b) Performance............................................................................................5
(c) Absence of Litigation..................................................................................5
(d) Opinion of Counsel to Sellers..........................................................................5
(e) Consents...............................................................................................5
(f) Closing Papers.........................................................................................5
(g) Right of First Refusal.................................................................................6
5. Conditions to the Obligations of Sellers.....................................................................6
(a) Representations and Warranties.........................................................................6
(b) Performance............................................................................................6
6. Survival.....................................................................................................6
7. Indemnification..............................................................................................6
(a) Indemnification by Sellers.............................................................................6
(b) Indemnification by Purchasers..........................................................................7
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8. Miscellaneous Provisions.....................................................................................7
(a) Notices................................................................................................7
(b) Severability...........................................................................................7
(c) Governing Law..........................................................................................8
(d) Publicity..............................................................................................8
(e) Captions and Section Headings..........................................................................8
(f) Amendments and Waivers.................................................................................8
(g) Successors and Assigns.................................................................................8
(h) Expenses...............................................................................................9
(i) Entire Agreement.......................................................................................9
(j) Exhibits...............................................................................................9
(k) Further Assurances.....................................................................................9
(l) Condition to Effectiveness.............................................................................9
(m) Counterparts...........................................................................................9
(n) Disclosure Generally...................................................................................9
9. Definitions..................................................................................................9
(a) Definitions............................................................................................9
(b) Other Definitional Provisions.........................................................................11
EXHIBITS
EXHIBIT A SCHEDULE OF PURCHASERS....................................................................A-1
EXHIBIT B SCHEDULE OF EXCEPTIONS....................................................................B-1
EXHIBIT C FORM OF OPINION OF SELLERS COUNSEL........................................................C-1
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement is made and entered into as of the
13th day of October, 2000, by and among International Technology Investments
L.C., a Nevada limited liability company ("ITI"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Shalom" and
together with ITI, the "Sellers") and each Person listed on the Schedule of
Purchasers attached as Exhibit A hereto (the "Schedule of Purchasers") who
executes this Agreement as a Purchaser (such Persons are referred to in this
Agreement, collectively, as the "Purchasers" and individually, as a
"Purchaser"). Unless defined elsewhere herein, capitalized and other defined
terms shall have the meanings specified in Section 9.
RECITALS
Shalom is the sole, duly appointed and acting Manager of ITI and is an
indirect beneficial owner of 40,000 units of Class A membership interests of
ITI. ITI owns 6,000,000 shares of Common Stock and Shalom has the sole right to
control the voting and disposition of such Common Stock held by ITI. Sellers
desire to sell to the Purchasers, and the Purchasers desire to purchase from
Sellers an aggregate of 1,500,000 shares of Common Stock for a total aggregate
purchase price of Nine Million Dollars ($9,000,000) at the Closing (as defined
below), subject to the terms and conditions herein.
AGREEMENT
In consideration of the premises and the mutual covenants, agreements,
hereinafter set forth, the parties to this Agreement agree as follows:
1. Sale and Purchase of Common Stock. Subject to the terms and
conditions set forth in this Agreement, ITI agrees to sell to the Purchasers,
and each of the Purchasers severally (and not jointly) agrees to purchase from
ITI, the number of shares of Common Stock indicated opposite such Purchaser's
name on the Schedule of Purchasers (the "Shares"), free and clear of all
Encumbrances, for a purchase price of Six and 00/100 Dollars ($6.00) per share.
The sale and purchase of the Shares shall take place at the offices of ▇▇▇▇,
Scholer, Fierman, ▇▇▇▇ & Handler, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at 10:00 a.m., New York City time, at a closing (the "Closing") on the
date hereof. At the Closing, ITI shall deliver to each Purchaser one or more
stock certificates representing such Shares, together with a stock power dated
the date of the Closing evidencing the transfer of such Shares to such
Purchaser, free and clear of all Encumbrances, against delivery by such
Purchaser to ITI of immediately available funds in the amount of the aggregate
purchase price for such Shares. If at the Closing, ITI shall fail to tender to
any Purchaser the Common Stock to be purchased by such Purchasers, or any of the
conditions specified in Section 4 shall not have been fulfilled to the
satisfaction of such Purchaser, such Purchaser shall, at its election, be
relieved of all further obligations under this Agreement, without thereby
waiving any other rights such Purchaser may have by reason of such failure or
such nonfulfillment.
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2. Representations and Warranties of Sellers. Subject to the exceptions
set forth in the Schedule of Exceptions attached as Exhibit B hereto (the
"Schedule of Exceptions"), Sellers, jointly and severally, represent and warrant
to each of the Purchasers that:
(a) Organization and Good Standing. ITI is a limited liability
company duly organized and validly existing under and by virtue of the laws of
the State of Nevada and is in good standing under such laws. ITI is qualified,
licensed or domesticated as a foreign limited liability company in all
jurisdictions where the failure to be so qualified, licensed or domesticated
would have a Material Adverse Effect. ITI has full power and authority
(corporate and other) to own, lease and operate its properties and assets and to
operate its business as currently being operated.
(b) Ownership of ITI. All of the outstanding membership or
other equity interests in ITI are owned by those Persons set forth in the
Schedule of Exceptions free and clear of all Encumbrances. Shalom has the sole
right to vote and dispose of (or cause the disposition of) all shares of Common
Stock owned by ITI. Shalom is an indirect beneficial owner of 40,000 units of
Class A membership interests of ITI.
(c) Authorization; Enforceability. (i) Each Seller has all
requisite right, power and authority to execute and deliver this Agreement and
each of the other agreements and instruments referred to herein to be entered
into by such Seller at or prior to the Closing in connection with the
consummation of the transactions contemplated by this Agreement (the "Other
Agreements") and to perform its obligations and consummate all of the
transactions contemplated hereunder and thereunder, including the sale of the
Shares to be purchased by each Purchaser at the Closing. All limited liability
company proceedings have been taken and all limited liability company
authorizations have been secured which are necessary on the part of ITI to
authorize the execution, delivery and performance of this Agreement and each of
the Other Agreements.
(ii) This Agreement has been duly executed and
delivered and constitutes, and each of the Other Agreements when executed and
delivered by each of the Sellers, will constitute, legal, valid and binding
obligations of each of the Sellers, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency or other similar
laws affecting the enforceability of creditors' rights generally and court
decisions with respect thereto, and the discretion of courts in granting
equitable remedies.
(d) No Conflicts. The execution and delivery by each of the
Sellers of this Agreement, the Other Agreements and the consummation of the
transactions contemplated hereby and thereby by each of the Sellers will not
result in any breach or violation of, default under or conflict with any
provision of the organizational documents of ITI, any contract, agreement,
instrument, order, injunction or decree to which either of the Sellers is a
party or otherwise bound or any Applicable Law, and except as set forth in the
Schedule of Exceptions, no Consent from any Governmental Authority or any other
Person is required in connection with the execution, delivery or performance by
Sellers of this Agreement or the Other Agreements.
(e) Good and Marketable Title to the Shares. ITI has good,
valid and marketable title to the Shares free and clear of all Encumbrances.
Except as set forth on the
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Schedule of Exceptions, no Person has any right of first refusal or similar
rights and no other transfer restrictions exist in connection with the transfer
by ITI of the Shares to the Purchasers as contemplated hereby.
(f) Offering. Subject to the accuracy of the Purchasers'
representations in Section 3 of this Agreement, the offer, sale and transfer of
the Shares constitute transactions exempt from the registration and prospectus
delivery requirements of Section 5 of the Securities Act and analogous
provisions of the Applicable Laws of all other jurisdictions, and ITI has
obtained (or is exempt from the requirement to obtain) all qualifications,
permits and other consents required by all Applicable Laws governing the offer,
sale or transfer of securities.
(g) Brokers. No finder, broker, agent, financial advisor or
other intermediary has acted on behalf of either of the Seller or any of their
respective Affiliates in connection with the offer, sale or transfer of the
Shares or the negotiation or consummation of this Agreement or the Other
Agreements or any of the transactions contemplated hereby or thereby. All such
negotiations or the consummation of this Agreement or the Other Agreements or
any of the transactions contemplated hereby or thereby will not give rise to any
valid claim against any of the Sellers, the Company or any of the Purchasers for
any brokerage or finder's commission, fee or similar compensation.
(h) No Undisclosed Liabilities. Except as set forth on the
Schedule of Exceptions or in the SEC Reports, to the knowledge of ITI and to the
best of the actual knowledge of Shalom, neither the Company nor any of the
Company's subsidiaries has any liabilities, obligations, claims, commitments or
debts of any nature, whether due or becoming due, or asserted or unasserted
(whether fixed, accrued, absolute, contingent, secured or otherwise).
(i) SEC Reports. To the knowledge of ITI and to the best of
the actual knowledge of Shalom, the SEC Reports, including without limitation
any financial statements or schedules included therein, at the time filed
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.
(j) Litigation. There are no Actions pending against either of
the Sellers (or, to the best knowledge of Sellers, any basis therefor or threat
thereof) which would affect the Sellers' obligations hereunder.
(k) Disclosure. This Agreement (including the Schedules and
Exhibits hereto) does not contain any untrue statement of any material fact or
omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
(l) Use of Proceeds. The proceeds received by Sellers in
connection with the sale of the Common Stock to the Purchasers as contemplated
hereby shall be used exclusively for the repayment of the obligations of Sellers
set forth in the Schedule of Exceptions.
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3. Representations and Warranties of the Purchasers. Each Purchaser
severally (and not jointly) represents and warrants to Sellers that:
(a) Investment Intent. The shares of Common Stock to be
purchased by and transferred to the Purchaser pursuant to this Agreement are
being acquired by the Purchaser for its own account, for investment purposes,
and with no present intention of publicly distributing, selling or otherwise
disposing of them.
(b) Sophistication. Such Purchaser has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the proposed investment and therefore has the capacity
to protect its own interests in connection with the purchase of its respective
shares of Common Stock.
(c) Accredited Investor. Such Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act.
(d) Brokers. No finder, broker, agent, financial advisor or
other intermediary has acted on behalf of such Purchaser in connection with the
transactions contemplated by this Agreement or the Other Agreements.
(e) Requisite Power and Authority. Each Purchaser has all
necessary power and authority to execute and deliver this Agreement and the
Other Agreements to which it is a party and to carry out their provisions. This
Agreement has been duly executed and delivered by each Purchaser, and each of
the Other Agreements when executed and delivered by each Purchaser who is a
party thereto, will constitute the legal, valid and binding obligations of such
Purchaser, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, or other similar laws affecting the enforceability of
creditors' rights generally and court decisions with respect thereto, and the
discretion of courts in granting equitable remedies.
(f) No Conflict. The execution and delivery by each Purchaser
of this Agreement and the consummation of the transactions contemplated hereby
by each Purchaser will not result in any violation of or default under, any
provision of the organizational documents of such Purchaser, any contract to
which such Purchaser is a party or any applicable law, rule or regulation, which
violation or default could reasonably be expected to (i) affect the validity of
this Agreement or any agreement entered into pursuant hereto, (ii) affect in any
material respect any action taken or to be taken by such Purchaser pursuant to
this Agreement or any agreement entered into pursuant hereto or (iii) have a
material adverse effect on the properties, assets, business or operations of
such Purchaser.
4. Conditions to Obligations of the Purchasers. The obligation of each
of the Purchasers to purchase and pay for the Common Stock which it has agreed
to purchase at the Closing and the other obligations of each of the Purchasers
under this Agreement are subject to the fulfillment at or prior to the Closing
of the following conditions, any of which may be waived in writing in whole or
in part by such Purchaser:
(a) Representations and Warranties. On the date of the Closing
each of the representations and warranties of Sellers set forth in this
Agreement shall be true and correct in
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all material respects (other than Section 2(e) which shall be true and correct
in all respects) in each case on the date hereof and at and as of the date of
the Closing with the same effect as though such representations and warranties
had been made at and as of the date of the Closing.
(b) Performance. Each of the Sellers shall have performed and
complied in all material respects with all agreements and conditions contained
herein required to be performed or complied with by it prior to or at the
Closing.
(c) Absence of Litigation. (i) The consummation of the
transactions contemplated hereby shall not have been restrained, enjoined or
otherwise prohibited by any Applicable Law, including any order, injunction,
decree or judgment of any court or other Governmental Authority; (ii) no court
or other Governmental Authority shall have determined that any Applicable Law
makes illegal the consummation of the transactions contemplated hereby and no
Action with respect to the application of any such Applicable Law to such effect
shall be pending or threatened; and (iii) no Action shall be pending or shall
have been threatened which seeks to impose liability upon any of the Purchasers
by reason of the consummation of the transactions contemplated by this
Agreement.
(d) Opinion of Counsel to Sellers. The Purchasers shall each
have received the written opinion of counsel for Seller, in form and substance
satisfactory to the Purchasers dated and delivered as of the date of the
Closing, substantially identical in form and substance to Exhibit C hereto.
(e) Consents. Sellers shall have obtained any and all Consents
and Governmental Approvals set forth in the Schedule of Exceptions, and shall
have made any and all filings and declarations necessary or appropriate (A) for
the consummation of the transactions contemplated by this Agreement and the
Other Agreements and (B) pursuant to Applicable Law in connection with the
transactions contemplated by this Agreement and the Other Agreements.
(f) Closing Papers. Sellers shall have delivered to each of
the Purchasers all of the following:
(i) a certificate, dated as of the date of the
Closing, stating that (A) the person signing such certificate (which person
shall be Shalom individually and as managing member of ITI) has made or has
caused to be made such investigations as are necessary to permit him/it to
certify the accuracy of the information set forth therein, (B) such certificate
does not misstate any material fact and does not omit to state any fact
necessary to make the certificate not misleading, and (C) the other conditions
specified in this Section 4 have been satisfied;
(ii) copies (certified by the managing member of ITI)
of the resolutions duly adopted by such managing member authorizing the
execution, delivery and performance of this Agreement, the Other Agreements and
all other agreements referred to in this Agreement as being executed at the
Closing;
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(iii) copies (certified by managing member of ITI) of
the Certificate of Formation and Operating Agreement (or equivalent documents)
of ITI, as amended through the date of the Closing;
(iv) a stock power duly executed by ITI evidencing
the transfer to the respective Purchasers of the Shares to be purchased by such
Purchaser hereunder together with the stock certificate(s) representing such
Shares; and
(v) such other documents relating to the transactions
contemplated by this Agreement as any Purchaser may reasonably request.
(g) Right of First Refusal. Sellers shall have given written
notice to the Company regarding the Company's right of first refusal under the
Stockholders Agreement with respect to the Common Stock proposed to be sold
hereunder and the Company shall have delivered to ITI a written waiver of such
rights.
5. Conditions to the Obligations of Sellers. The obligations of Sellers
under this Agreement are subject to the fulfillment on or prior to the date of
the Closing of the following conditions, any of which may be waived in writing,
in whole or in part, by Sellers:
(a) Representations and Warranties. On the date of the
Closing, each of the representations and warranties of the Purchasers set forth
in this Agreement shall be true and correct in all material respects on the date
hereof and at and as of the date of the Closing with the same effect as though
such representations and warranties had been made at and as of the date of the
Closing.
(b) Performance. The Purchasers shall have performed and
complied in all material respects with all agreements and conditions contained
herein required to be performed by or complied with by them prior to the
Closing.
6. Survival. The representations and warranties of Sellers set forth in
Sections 2(a), (b), (c), (d), (e) and (l) shall survive the Closing
indefinitely. All other representations and warranties of Sellers contained
herein shall expire at the second anniversary of the Closing. The
representations and warranties of the Purchasers contained herein shall expire
at the second anniversary of the Closing. All covenants and agreements contained
herein shall survive the Closing indefinitely.
7. Indemnification.
(a) Indemnification by Sellers. Sellers hereby, jointly and
severally, agree to indemnify, defend and hold harmless the Purchasers and their
respective directors, officers, members, partners (general or limited)
employees, Affiliates, successors and assigns from and against any losses,
liabilities, damages, costs or expenses, including, without limitation,
interest, penalties and reasonable fees and expenses of counsel (collectively,
"Losses"), based upon, arising out of or otherwise resulting from (i) any
inaccuracy in any representation or breach of warranty of Sellers contained in
this Agreement or the Other Agreements and (ii) the breach or nonfulfillment of
any covenant, agreement or other obligation of the Sellers under this Agreement
or the Other Agreements.
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(b) Indemnification by Purchasers. Each Purchaser severally
(and not jointly) agrees to indemnify, defend and hold harmless the Sellers and
their respective directors, officers, members, partners (general or limited)
employees, Affiliates, successors and assigns from and against any Losses based
upon, arising out of or otherwise resulting from (i) any inaccuracy in any
representation or breach of warranty of such Purchaser contained in this
Agreement or the Other Agreements and (ii) the breach or nonfulfillment of any
covenant, agreement or other obligations of such Purchaser under this Agreement
or the Other Agreements.
8. Miscellaneous Provisions.
(a) Notices. All notices, requests, demands, approvals,
consents, waivers or other communications required or permitted to be given
hereunder (each, a "Notice") shall be in writing and shall be (a) personally
delivered, (b) transmitted by telecopy facsimile, provided that the original
copy thereof also is sent by pre-paid, first class, registered or certified mail
(return receipt requested) or by next-day or overnight mail (to any United
States address), or by an internationally recognized express delivery service
(to any foreign address), (c) sent by first class, registered or certified mail
(return receipt requested) or by next-day or overnight mail (to any United
States address), postage and charges prepaid, or (d) delivered by an
internationally recognized express delivery service (to any foreign address),
postage and charges prepaid:
(i) if to any Purchaser, at the address and
numbers set forth at the end of this Agreement, marked for attention as therein
indicated;
(ii) if to ITI, to:
International Technology Investments, L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & Zeder, P.A.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
or, in each case, at such other address and numbers as may have been furnished
in a Notice by such Person to the other parties. Any Notice shall be deemed
effective or given upon receipt (or refusal of receipt).
(b) Severability. Should any Section or any part of a Section
within this Agreement be rendered void, invalid or unenforceable by any court of
law for any reason, such
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invalidity or unenforceability shall not void or render invalid or unenforceable
any other Section or part of a Section in this Agreement.
(c) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to the principles of conflicts of law thereof. Each party
hereto hereby irrevocably submits to the nonexclusive jurisdiction of the courts
of the State of New York and of the United States of America sitting in the City
of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that the venue thereof may not be appropriate,
that such suit, action or proceeding is improper or that this Agreement or any
of the documents referred to in this Agreement may not be enforced in or by said
courts, and each party hereto irrevocably agrees that all claims with respect to
such suit, action or proceeding may be heard and determined in such a New York
state or federal court. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party in the manner provided in
Section 8(a) and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(d) Publicity. Except as required by Applicable Law or the
requirements of any securities exchange or market, no party shall make any
public announcement in respect of this Agreement or the transactions
contemplated hereby without the prior written consent of the other parties.
(e) Captions and Section Headings. Captions or section
headings contained in this Agreement are inserted as a matter of convenience and
for reference purposes only, and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provision hereof.
(f) Amendments and Waivers. Neither this Agreement nor any
term hereof, may be changed, waived, discharged or terminated orally or in
writing, except that any term of this Agreement may be amended and the
observance of any such term may be waived (either generally or in a particular
instance and either retroactively or prospectively) with (but only with) the
prior written consent of each of the Sellers and Purchasers; provided, however,
that no such amendment or waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent therein.
(g) Successors and Assigns. All rights, covenants and
agreements of the parties contained in this Agreement shall, except as otherwise
provided herein, be binding upon and inure to the benefit of their respective
successors and assigns. This Agreement may not be assigned (by operation of law,
contract or otherwise) by any party hereto; provided, however,
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that each Purchaser may assign or otherwise transfer its rights and obligations
hereunder to: (i) any Person who acquires shares of Common Stock from any
Purchaser or any successor or assign of any Purchaser; or (ii) any
successor-in-interest to substantially all of such Purchaser's or successor's or
assign's business (whether by stock sale, asset sale or otherwise).
(h) Expenses. Each of the parties hereto agree to bear the
expenses incurred by him/it in connection with the transactions contemplated by
this Agreement and the Other Agreements.
(i) Entire Agreement. This Agreement (including the attached
Exhibits and Schedules) contains the entire agreement and understanding of the
parties and there are no further or other agreements or understandings, written
or oral, in effect between the parties relating to the subject matter hereof.
(j) Exhibits. The Exhibits and Schedules attached to this
Agreement hereby are incorporated into and made a part of this Agreement.
(k) Further Assurances. Each party shall cooperate and take
such actions as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the Other Agreements and
the transactions contemplated hereby and thereby.
(l) Condition to Effectiveness. This Agreement shall become
effective only upon its execution and delivery by Sellers and each Purchaser.
(m) Counterparts. This Agreement may be executed (including by
facsimile transmission) with counterpart signature pages or in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(n) Disclosure Generally. The Schedule of Exceptions shall be
arranged in sections corresponding to the Sections contained in this Agreement,
and the disclosures in any section of the Schedule of Exceptions shall qualify
only the corresponding section of this Agreement.
9. Definitions.
(a) Definitions. For the purposes of this Agreement, the
following terms shall have the meanings specified below:
"Action" shall mean any actions, proceedings, investigations
(civil, criminal, regulatory or otherwise), arbitrations, claims, demands or
grievances against either of the Sellers.
"Affiliate" of a specified Person means (i) any Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person, or (ii)
in the case of a natural Person, such Person's spouse, parent or lineal
descendant (whether by blood or adoption and including stepchildren). "Control"
(including the terms "controlled by" and "under common control with") means the
possession,
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directly or indirectly, of the power to direct or cause the direction of the
management policies of a Person, whether through the ownership of voting
securities, by contract or credit arrangement, as trustee or executor, or
otherwise.
"Agreement" shall mean this Agreement (including the Schedules
and Exhibits hereto), as amended, supplemented or modified from time to time in
accordance with the provisions hereof.
"Applicable Law" shall mean, with respect to any Person, any
and all provisions of any constitution, treaty, statute, law, regulation,
ordinance, code, rule, judgment, rule of common law, order, decree, award,
injunction, Governmental Approval, concession, grant, franchise, license,
agreement, directive, guideline, policy, requirement, or other governmental
restriction or any similar form of decision of, or determination by, or any
interpretation or administration of any of the foregoing by, any Governmental
Authority, whether in effect as of the date hereof or thereafter and in each
case as amended, applicable to such Person or its subsidiaries or their
respective assets.
"Closing" has the meaning set forth in Section 1.
"Common Stock" shall mean the common stock, $.02 par value per
share of the Company.
"Company" shall mean IFX Corporation, a Delaware corporation.
"Consent" shall mean any consent, approval, authorization,
waiver, permit, grant, franchise, concession, agreement, license, exemption or
order of, registration, certificate, declaration or filing with, or report or
notice to, any Person, including any Governmental Authority.
"$" or "dollars" shall mean lawful money of the United States
of America.
"Encumbrance" shall mean any lien, encumbrance, hypothecation,
right of others, proxy, voting trust or similar arrangement, pledge, security
interest, collateral security agreement, limitations on voting rights,
limitations on rights of ownership filed with any Governmental Authority, claim,
charge, equities, mortgage, pledge, objection, title defect, title retention
agreement, option, restrictive covenant, restriction on transfer, right of first
refusal, right of first offer, statutory or contractual preemptive right or any
comparable interest or right created by or arising under Applicable Law, of any
nature whatsoever.
"Governmental Approvals" shall mean any action, order,
authorization, consent, approval, license, lease, waiver, franchise, concession,
agreement, license, ruling, permit, tariff, rate, certification, exemption of,
filing or registration by or with, or report or notice to, any Governmental
Authority.
"Governmental Authority" shall mean any nation or foreign or
domestic government, any state or other political subdivision thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government (including, without limitation, any
government authority, agency, department, board,
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commission or instrumentality of the United States, any State of the United
States or any political subdivision thereof), or any tribunal or arbitrator(s)
of competent jurisdiction, or any self-regulatory organization.
"include", "includes", "included" and "including" shall be
construed as if followed by the phrase "without being limited to".
"Losses" has the meaning set forth in Section 7(a).
"Material Adverse Effect" shall mean any event, circumstance,
occurrence, fact, condition, change or effect that is materially adverse to (i)
the business, operations, results of operations, financial condition,
properties, assets or liabilities of Sellers, or (ii) the ability of Sellers to
perform fully its obligations under the Agreement and the Other Agreements and
to consummate the transactions contemplated hereby and thereby.
"Notice" has the meaning set forth in Section 8(a).
"Other Agreements" has the meaning set forth in Section 2(c).
"Person" or "person" shall mean any natural person, company,
corporation, association, partnership, organization, business, firm, joint
venture, trust, unincorporated organization or any other entity or organization,
and shall include any Governmental Authority.
"Schedule of Exceptions" has the meaning set forth in the
first paragraph of Section 2.
"Schedule of Purchasers" has the meaning set forth in the
first paragraph hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"SEC" shall mean the U.S. Securities and Exchange Commission
or any successor agency thereto.
"SEC Reports" shall mean all forms, reports and documents
filed by the Company with the SEC since January 1, 1997 required to be filed by
it pursuant to the Federal securities laws and the rules and regulations of the
SEC thereunder.
"Shares" has the meaning set forth in Section 1.
"Stockholders Agreement" shall mean the Stockholders Agreement
among the Company, UBS, ITI, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Shalom and ▇▇▇ ▇. ▇▇▇▇▇ dated as
of June 15, 2000.
"UBS" shall mean (i) UBS Capital Americas III, L.P., a
Delaware limited partnership, and (ii) UBS Capital LLC, a Delaware limited
liability company.
(b) Other Definitional Provisions. The words "hereof",
"herein", and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Terms defined in the singular shall have a comparable
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meaning when used in the plural and vice versa. Whenever a representation or
warranty made by a Person herein refers to the knowledge of such Person, such
knowledge shall be deemed to consist of the actual knowledge of such Person or
the knowledge which would have been present after reasonable due inquiry by such
Person. A Person (other than an individual) will be deemed to have "knowledge"
of a particular fact or other matter if any individual who is serving, or who
has at any time served, as a director, executive officer, member, partner,
executor or trustee of such Person (or a Person acting in any similar capacity)
has, or any time had, actual knowledge of such fact or other matter, or should
have had knowledge thereof given such individual's office or capacity and given
industry standards or given reasonable due inquiry by such individual.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
INTERNATIONAL TECHNOLOGY INVESTMENTS, L.C.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
S-1
17
Purchaser:
The undersigned hereby executes and delivers this Agreement as of the
date first above written as one of the Purchasers referred to therein for the
purpose of purchasing from ITI the Shares at the Closing.
UBS CAPITAL AMERICAS III, L.P.
By: UBS Capital Americas III, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Principal
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
Address: UBS Capital Americas III, L.P.
c/o UBS Capital Americas III, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Lama
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy
of Notices to: ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇:
The undersigned hereby executes and delivers this Agreement as of the
date first above written as one of the Purchasers referred to therein for the
purpose of purchasing from the Company the Shares at the Closing.
UBS CAPITAL LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Attorney-in-Fact
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Attorney-in-Fact
Address: UBS Capital LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Lama
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy
of Notices to: ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-3