EXECUTION COPY
SHARE EXCHANGE AND TERMINATION AGREEMENT
SHARE EXCHANGE AND TERMINATION AGREEMENT, dated as of December
18, 1997 ("Agreement"), among IPC Information Systems, Inc., a Delaware corpora
tion ("IPC"), International Exchange Network Ltd. ("IXNET"), a Delaware
corporation, ▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇" and together
with ▇▇▇▇▇, sometimes collectively referred to herein as the "IXNET Minority
Stockholders").
WHEREAS, ▇▇▇▇▇ owns 336 shares (the "▇▇▇▇▇ IXNET Shares") of
Common Stock, par value $.01 per share, of IXNET (the "IXNET Common Stock") and
▇▇▇▇▇▇▇▇ owns 224 shares of IXNET Common Stock (the "▇▇▇▇▇▇▇▇ IXNET Shares");
WHEREAS, IXNET, IPC and each of ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ wish to
exchange the shares of IXNET Common Stock owned by each of ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
for common stock, par value $.01 per share, of IPC ("IPC Common Stock"); and
WHEREAS, for U.S. federal income tax purposes, it is intended
that the exchange pursuant to this Agreement shall qualify as a tax-free
reorganization under Sections 354(a)(1) and 368(a)(1)(B) of the U.S. Internal
Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, receipt of which is
acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly Controlling, Controlled by, or under common
Control with such Person, provided that no securityholder of IPC shall be deemed
an Affiliate of any other securityholder solely by reason of any investment in
IPC.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") means the possession, directly or indirectly or as a
trustee or executor, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of stock, as a
trustee or executor, by contract or credit arrangement or otherwise.
"PERSON" means an individual, corporation, partnership,
limited liability company, limited partnership, association, trust,
unincorporated organization or other entity or group (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended).
"SUBSIDIARY" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
2. EXCHANGE OF SHARES; CLOSING.
(a) Subject to the terms and conditions of this Agreement, on
the Closing Date, (i) ▇▇▇▇▇ shall exchange the ▇▇▇▇▇ IXNET Shares for 152,381
shares of IPC Common Stock (the "▇▇▇▇▇ IPC Shares"), provided that 10% of the
▇▇▇▇▇ IPC Shares (the "▇▇▇▇▇ Holdback Shares") shall be issued to ▇▇▇▇▇ pursuant
to the provisions set forth in Section 2(c) below, and (ii) ▇▇▇▇▇▇▇▇ shall
exchange the ▇▇▇▇▇▇▇▇ IXNET Shares for 101,587 shares of IPC Common Stock (the
"▇▇▇▇▇▇▇▇ IPC Shares"), provided that 10% of the ▇▇▇▇▇▇▇▇ IPC Shares (the
"▇▇▇▇▇▇▇▇ Holdback Shares") shall be issued to ▇▇▇▇▇▇▇▇ pursuant to the
provisions set forth in Section 2(c) below.
(b) The exchange of ▇▇▇▇▇ IXNET Shares and ▇▇▇▇▇▇▇▇ IXNET
Shares for IPC Common Stock will take place on the date ("Closing Date") of the
closing ("Closing") of the transactions contemplated hereby to be held at the
offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ immediately after the closing of the transactions contemplated by the
Merger Agreement (as defined in Section 3(a), below). At the Closing immediately
following the Effective Time (as defined in the Merger Agreement), (i) IPC will
deliver to ▇▇▇▇▇ one or more certificates representing 152,381 shares of IPC
Common Stock registered in the name of ▇▇▇▇▇ against delivery by ▇▇▇▇▇ to IPC of
stock certificates representing the ▇▇▇▇▇ IXNET Shares, duly endorsed and in
proper form for transfer and (ii) IPC will deliver to ▇▇▇▇▇▇▇▇ one or more
certificates representing 101,587 shares of IPC Common Stock registered in the
name of ▇▇▇▇▇▇▇▇ against delivery by Servidio to IPC of stock certificates
representing the ▇▇▇▇▇▇▇▇ IXNET Shares, duly endorsed and in proper form for
transfer.
(c) The ▇▇▇▇▇ Holdback Shares shall be issued to ▇▇▇▇▇ and the
▇▇▇▇▇▇▇▇ Holdback Shares shall be issued to ▇▇▇▇▇▇▇▇ if, prior to the six month
anniversary of the date hereof, releases (the "Third Party Releases"), in form
and substance reasonably satisfactory to IPC and executed by ▇▇▇▇ ▇▇▇▇▇, Ariand
Kumar and ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Releasing Persons") shall have been delivered to
IPC with respect to any claim of the Releasing Persons arising in connection
with the transactions contemplated by this Agreement.
3. CONDITIONS OF IPC TO CLOSING. The obligations of IPC to
consummate the transactions contemplated hereby are subject to the fulfillment
to IPC's satisfaction, prior to or at the Closing, of the following conditions:
- 2 -
(a) The transactions contemplated by the Merger Agreement,
dated as of the date hereof (the "Merger Agreement"), between Arizona
Acquisition Corp. ("AAC") and IPC shall have been consummated.
(b) Each of the IXNET Minority Stockholders shall have
executed and delivered to IPC the release (the "Release") in the form of Exhibit
A attached hereto.
(c) (i) ▇▇▇▇▇ shall have entered into the Amended and Restated
Employment Agreement, dated the Closing Date, between IXNET and ▇▇▇▇▇ in the
form of Exhibit B hereto (the "Amended and Restated ▇▇▇▇▇ Employment Agreement")
and (ii) ▇▇▇▇▇▇▇▇ shall have entered into the Amended and Restated Employment
Agreement, dated the Closing Date, between IXNET and ▇▇▇▇▇▇▇▇ in the form of
Exhibit C hereto (the "Amended and Restated ▇▇▇▇▇▇▇▇ Employment Agreement").
(d) The representations and warranties of the IXNET Minority
Stockholders shall be true and correct in all respects at and as of the Closing
Date as if made on the Closing Date.
4. CONDITIONS OF IXNET MINORITY STOCKHOLDERS TO CLOSING. The
obligations the IXNET Minority Stockholders to consummate the transactions
contemplated hereby are subject to the fulfillment to the IXNET Minority
Stockholders' satisfaction, prior to or at the Closing, of the following
conditions:
(a) The transactions contemplated by the Merger Agreement
between AAC and IPC shall have been consummated.
(b) (i) IXNET shall have entered into the Amended and Restated
▇▇▇▇▇ Employment Agreement and (ii) IXNET shall have entered into the Amended
and Restated ▇▇▇▇▇▇▇▇ Employment Agreement.
(c) The representations and warranties of IPC shall be true
and correct in all respects at and as of the Closing Date as if made on the
Closing Date.
(d) The Investors Agreement in the form of Exhibit D hereto
shall have been entered into by the parties named therein.
5. REPRESENTATIONS AND WARRANTIES OF IXNET MINORITY
STOCKHOLDERS. Each IXNET Minority Stockholder, severally and not jointly,
represents and warrants as to itself only as follows:
(a) Such IXNET Minority Stockholder has full right, power and
authority to execute and deliver this Agreement and the Release and to perform
its obligations hereunder and
- 3 -
thereunder and this Agreement and the Release have been duly authorized,
executed and delivered by such IXNET Minority Stockholder and enforceable in
accordance with its terms except as limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditor's rights
generally, (ii) general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law, and to the discretion of the
court before which any proceeding therefor may be brought, or (iii) public
policy considerations or court decisions which may limit the rights of the
parties thereto for indemnification.
(b) (i) The ▇▇▇▇▇ IXNET Shares constitute all of the shares of
IXNET Common Stock owned by ▇▇▇▇▇, (ii) the ▇▇▇▇▇▇▇▇ IXNET Shares constitute all
of the shares of IXNET Common Stock owned by ▇▇▇▇▇▇▇▇, (iii) except as
contemplated by the Stockholders' Agreement, dated as of June 23, 1995 among
IPC, IXNET, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ (the "Existing Stockholders' Agreement"), and the
Employment and Non-Competition Agreement, between IXNET and ▇▇▇▇▇, dated as of
June 22, 1995 (the "Existing ▇▇▇▇▇ Employment Agreement"), ▇▇▇▇▇ does not own or
hold any other options, warrants or other rights, agreements, arrangements or
other commitments relating to shares of IXNET Common Stock which he owns of
record or relating to any other issued or unissued shares of IXNET Common Stock,
(iv) except as contemplated by the Existing Stockholders' Agreement and the
Employment and Non-Competition Agreement, between IXNET and ▇▇▇▇▇▇▇▇, dated as
of June 22, 1995 (the "Existing ▇▇▇▇▇▇▇▇ Employment Agreement"), ▇▇▇▇▇▇▇▇ does
not own or hold any other options, warrants or other rights, agreements,
arrangements or other commitments relating to shares of IXNET Common Stock which
he owns of record or relating to any other issued or unissued shares of IXNET
Common Stock, (v) except as contemplated by the Existing Stockholders' Agreement
and the Existing ▇▇▇▇▇ Employment Agreement, ▇▇▇▇▇ owns the ▇▇▇▇▇ IXNET Shares
free and clear of all liens, security interests, claims, rights, limitations,
options or encumbrances whatsoever ("Liens") and (vi) except as contemplated by
the Existing Stockholders' Agreement and the Existing ▇▇▇▇▇▇▇▇ Employment
Agreement, ▇▇▇▇▇▇▇▇ owns the ▇▇▇▇▇▇▇▇ IXNET Shares free and clear of all Liens.
(c) The execution and delivery by such IXNET Minority
Stockholder of this Agreement, the performance by such IXNET Minority
Stockholder of its obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not conflict with or result in
a violation or breach of any term, condition or provision of any contract or
agreement to which such IXNET Minority Stockholder is a party or by which any of
its assets or properties are bound.
(d) No broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such IXNET Minority
Stockholder in his or her capacity as such.
(e) The shares of IPC Common Stock will be acquired by each
IXNET Minority Stockholder pursuant to this Agreement for his own account and
with no intention of
- 4 -
distributing or reselling such securities or any part thereof in any transaction
that would be in violation of the securities laws of the United States of
America, or any state, without prejudice, however, to the rights of such IXNET
Minority Stockholder at all times to sell or otherwise dispose of all or any
part of the shares of IPC Common Stock owned by such IXNET Minority Stockholder
under an effective registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), or under an exemption from such registration
available under the Securities Act, and subject, nevertheless, to the
disposition of such IXNET Minority Stockholder's property being at all times
within his control. If such IXNET Minority Stockholder should in the future
decide to dispose of any of the shares of IPC Common Stock received pursuant to
this Agreement, such IXNET Minority Stockholder understands and agrees that it
may do so only in compliance with this Agreement, the Securities Act and
applicable state securities laws, as then in effect.
(f) Each IXNET Minority Stockholder is an "accredited
investor" as such term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act.
6. REPRESENTATIONS AND WARRANTIES OF IPC AND IXNET. Each of
IPC and IXNET, jointly but not severally, represents and warrants to each IXNET
Minority Stockholder that:
(a) Each of IPC and IXNET (i) has been duly incorporated and
is validly existing and in good standing under the laws of the State of
Delaware, and (ii) has all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted.
(b) Each of IPC and IXNET has the corporate power and
authority and the full legal right to execute, deliver and perform its
obligations under this Agreement, and IPC and IXNET has the corporate power and
authority to issue the IPC Common Stock and otherwise carry out the transactions
contemplated hereby and has taken all necessary corporate action to authorize
the transactions contemplated hereby. Upon issuance, the IPC Common Stock to be
issued pursuant to this Agreement shall be duly authorized, fully paid and
non-assessable. This Agreement has been duly authorized, executed and delivered
by each of IPC and IXNET and is the legal, valid and binding obligation of each
of IPC and IXNET, enforceable against it in accordance with its terms except as
limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditor's rights generally, (ii) general principles of
equity, whether such enforceability is considered in a proceeding in equity or
at law, and to the discretion of the court before which any proceeding therefor
may be brought, or (iii) public policy considerations or court decisions which
may limit the rights of the parties thereto for indemnification.
(c) The execution and delivery by IPC or IXNET, as the case
may be, of this Agreement, the performance by such Person of its obligations
hereunder and the consummation of the transactions contemplated hereby do not
and will not conflict with or result in a violation
- 5 -
or breach of any term, condition or provision of any contract or agreement to
which such Person is a party or by which any of its assets or properties are
bound.
7. COVENANTS OF THE IXNET MINORITY STOCKHOLDERS. (a) ▇▇▇▇▇
shall enter into the Amended and Restated Employment Agreement, dated the
Closing Date, between IPC and ▇▇▇▇▇ and (b) ▇▇▇▇▇▇▇▇ shall enter into the
Amended and Restated Employment Agreement, dated the Closing Date, between IPC
and ▇▇▇▇▇▇▇▇.
(b) Except as otherwise contemplated hereby, prior to the
Closing Date, no IXNET Minority Stockholder shall, directly or indirectly,
(other than, solely as directed in his capacity as an employee, in connection
with a Superior Acquisition Proposal (as such term is defined in the Merger
Agreement)) (i) except pursuant to the terms of this Agreement, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of
("Transfer"), enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the Transfer
of, or exercise any discretionary powers to distribute, any or all of the ▇▇▇▇▇
IXNET Shares or ▇▇▇▇▇▇▇▇ IXNET Shares, as the case may be or any interest
therein, including any trust income or principal; (ii) grant any proxies or
powers of attorney with respect to any of the ▇▇▇▇▇ IXNET Shares or ▇▇▇▇▇▇▇▇
IXNET Shares, as the case may be; (iii) deposit any of the ▇▇▇▇▇ IXNET Shares or
▇▇▇▇▇▇▇▇ IXNET Shares, as the case may be, into a voting trust or enter into a
voting agreement with respect to any such shares; or (iv) take any action that
would make any representation or warranty of such IXNET Minority Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling such IXNET Minority Stockholder from performing his obligations under
this Agreement.
8. TERMINATION OF STOCKHOLDERS AGREEMENT. Effective upon the
Closing, the Existing Stockholders' Agreement is hereby terminated without any
liability to the parties thereto and has no further force and effect.
9. TAX MATTERS.
(a) IPC represents and warrants to the IXNET Minority
Stockholders as follows:
(i) Following the Closing Date, IPC will be in "control" of
IXNET. For purposes of this Section 10, "control" of a corporation
means the direct ownership of stock of such corporation possessing at
least 80% of the total combined voting power of all classes of stock of
such corporation entitled to vote and at least 80% of the total number
of shares of each other class of such corporation's stock.
(ii) IPC has no plan or intention to cause IXNET to issue
additional shares of IXNET stock that would result in IPC losing
control of IXNET;
- 6 -
(iii) IPC has no current plan or intention (a) to liquidate
IXNET, (b) to merge IXNET with or into another corporation, (c) to sell
or otherwise dispose of (whether by dividend distribution or otherwise)
the stock of IXNET, except for transfers of stock of IXNET to another
corporation controlled by IPC, or (d) to cause, suffer or permit IXNET
to sell or otherwise dispose of (whether by dividend distribution or
otherwise) any of IXNET's assets (except for transfers to corporations
controlled by IXNET or dispositions made in the ordinary course of
IXNET's business);
(iv) At the time of the Closing, IXNET will not have
outstanding any warrants, options, convertible securities, or any other
type of right pursuant to which any person could acquire stock in IXNET
that, if exercised or converted, would affect IPC's retention of
control of IXNET.
(v) Following the Closing, IPC will cause IXNET to continue
IXNET's historic business, or continue to use a significant portion of
its historic business assets in a business.
(vi) IPC shall not, nor shall it permit IXNET or any of its
other subsidiaries to, take or cause to be taken any action, whether
before or after the Closing, which it reasonably expects would
disqualify the Merger as a tax-free reorganization within the meaning
of Sections 354(a)(1) and 368(a)(1)(B) of the Code.
(vii) Following the Closing, IPC shall use its reasonable best
efforts to conduct its business and otherwise act, and shall cause
IXNET to use its reasonable best efforts to conduct its business and
otherwise act, in a manner which would not jeopardize the
characterization of this Agreement as a tax-free reorganization within
the meaning of Sections 354(a)(1) and 368(a)(1)(B) of the Code.
The representations, warranties and covenants contained in this Section 9(a)
shall not be deemed to be breached (a) as a result of actions taken by the IXNET
Minority Stockholders that have not been approved by IXNET or IPC's board of
directors or (b) in the case of the representations, warranties and covenants
contained in clause (vi) or (vii) of this Section 9(a) by IXNET or IPC entering
into this Agreement, the Agreement and Plan of Merger, dated the date hereof,
between IPC and Arizona Acquisition Corp., the Investors Agreement, dated the
date hereof, among IPC and the parties named therein, the Amended and Restated
Labor Pool Agreement, dated the date hereof, between IPC and ▇▇▇▇▇▇▇▇▇▇▇
Electric Company, Inc., a New York Corporation ("KEC-NY"), the Amended and
Restated Labor Pool Agreement, dated the date hereof, between IPC and
▇▇▇▇▇▇▇▇▇▇▇ Electric Company, Inc., a New Jersey Corporation ("KEC-NJ"), the
Amended and Restated Corporate Opportunity Agreement, dated the date hereof,
among IPC, KEC-NY and KEC-NJ, the Amended and Restated Employment Agreement,
dated as of the Closing Date, by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and IPC, the
Amended and Restated Employment Agreement, dated as of the Closing Date, between
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and IPC, the Amended and Restated Employment Agreement, dated
as of the Closing Date, between ▇▇▇▇▇ ▇▇▇▇▇ and IPC and the
- 7 -
Amended and Restated Employment Agreement, dated as of the Closing Date, between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and IPC (collectively, the "Operative Documents"), consummating
the transactions contemplated by the Operative Documents or doing any acts
required by the Operative Documents.
(b) IPC, IXNET, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ will not take any position
on any Federal, state or local income or franchise tax return, or take any other
tax reporting position, that is inconsistent with the treatment of this
Agreement as a tax-free organization within the meaning of Sections 354(a)(1)
and 368(a)(1)(B) of the Code, unless otherwise required by a "determination" (as
defined in Section 1313(a)(1) of the Code) or by applicable state or local or
franchise tax law.
10. NON-COMPETITION.
(a) For a period of two and one-half years after the Effective
Time, except as contemplated by this Agreement or the Merger Agreement, each of
the IXNET Minority Stockholders severally agrees, and shall cause each of his
respective Affiliates to agree, that any such Person shall not, directly or
indirectly, through any Person Controlled by such IXNET Minority Stockholder, in
any form or manner on a worldwide basis: (i) engage in any activities
competitive in any material respect with the business of IPC and its
Subsidiaries and Affiliates ("Business") for his or their own account or for the
account of any other Person, or (ii) become interested in any Person engaged in
activities competitive in any material respect with the Business as a partner,
shareholder, member, principal, agent, employee, trustee, consultant or in any
other relationship or capacity; PROVIDED, HOWEVER, that each of the IXNET
Minority Stockholders may own, directly or indirectly, solely as a passive
investment, securities of any Person if such IXNET Minority Stockholder or any
of his Affiliates, as the case may be (x) is not a Person in Control of, or a
member of a group that Controls, such Person and (y) does not, directly or
indirectly, own 5% or more of any voting class of securities of such Person.
(b) Each of the IXNET Minority Stockholders severally agrees
that the provisions of this Section 10 are necessary to protect the interests of
IPC or its Subsidiaries or Affiliates and are reasonable and valid in
geographical and temporal scope and in all other respects. If any court
determines that the provisions of this Section 10 or any part thereof are
unenforceable because of the duration or geographical scope of such provision,
such court will have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision will be
enforceable.
(c) If either of the IXNET Minority Stockholders commits a
breach, or threatens to commit a breach, of any of the provisions contained in
this Section 10, IPC shall have the following rights and remedies with respect
to such IXNET Minority Stockholder, each of which rights and remedies shall be
independent of the others, and shall be severally enforceable, and all of which
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available under law or in equity to IPC: the right and
remedy to have
- 8 -
the provisions of this Section 10 enforced by any court of competent
jurisdiction by injunction, restraining order, specific performance or other
equitable relief in favor of IPC, it being acknowledged and agreed that any
breach or threatened breach of the provisions of this Section 10 would cause
irreparable injury to IPC and that money damages would not provide an adequate
remedy to IPC.
11. TERMINATION. This Agreement shall automatically terminate
and be of no further force or effect upon the earlier to occur of (a) the
termination of the Merger Agreement in accordance with its terms or (b) April
30, 1998. Upon such termination of this Agreement, except for any rights any
party hereto may have in respect of any breach by any other party of its
obligations or representations or warranties hereunder, none of the parties
hereto shall have any further obligation or liability hereunder.
12. MISCELLANEOUS.
(a) All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to ▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 9 -
If to IPC
or IXNET: IPC Information Systems, Inc.
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
copy to: Arizona Acquisition Corp.
c/o Cable Systems Holding LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
and: Citicorp Venture Capital, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and: ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and: Thacher, ▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(b) At any time prior to the Closing Date, any party hereto
may, with respect to any other party hereto, (i) extend the time for the
performance of any of the obligations or other acts, (ii) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (iii) waive compliance with any of the agreements
or conditions contained herein. Any such extension or waiver shall be valid if
set forth in an instrument in writing signed by the party or parties to be bound
thereby.
- 10 -
(c) The headings contained in this Agreement are for the
convenience of reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(d) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated by the this Agreement and the Merger Agreement is
not affected in any manner adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated by this
Agreement and the Merger Agreement are fulfilled to the extent possible.
(e) This Agreement, including all exhibits hereto, constitutes
the entire agreement and supersedes all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof and except as otherwise expressly provided herein.
(f) Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party (whether by operation of law
or otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
descendants and legal representatives and permitted assigns. No other Person
shall have any right, benefit or obligation under this Agreement as a third
party beneficiary or otherwise; provided that it is expressly understood that
AAC shall have the same rights of IPC or IXNET to enforce the terms and
provisions of this Agreement to the same extent as if AAC was a party hereto.
(g) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties hereto shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are entitled at
law or in equity.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any representation, warranty or
agreement herein, nor shall any single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
- 11 -
(i) Each party agrees to bear its own expenses in connection
with the transactions contemplated hereby.
(j) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to any
principles of conflicts of law that might indicate the applicability of the laws
of any jurisdiction other than the State of New York.
(k) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
(l) This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
(m) Each of the IXNET Minority Stockholders hereby
acknowledges that, for purposes of Title IV of the Employee Retirement Income
Security Act of 1974, as amended, IPC and IXNET may become members of a
controlled group of corporations that includes Citicorp Venture Capital, Ltd.
and its Affiliates.
- 12 -
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
IPC INFORMATION SYSTEMS, INC.
By: /S/ S.T. ▇▇▇▇▇▇
--------------------------
Name: S.T. ▇▇▇▇▇▇
Title: President and C.E.O.
INTERNATIONAL EXCHANGE NETWORK
LTD.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
/S/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
- 13 -
EXHIBIT A
---------
IXNET STOCKHOLDER RELEASE
-------------------------
In consideration for the payment of the consideration to the undersigned
pursuant to the Share Exchange and Termination Agreement, the undersigned hereby
releases, waives and discharges, covenants not to ▇▇▇ and agrees to hold
harmless IPC, IXNET or any of their respective present and former affiliates,
subsidiaries, shareholders, employees, directors, officers, representatives,
agents, successors or assigns from all actions, causes of action, suits,
liabilities, claims, obligations and rights whatsoever, known (with respect to
clause (a) and (b) below) and known or unknown (with respect to clause (b)
below), fixed, conditional or contingent, in law or in equity, that the
undersigned or any of his successors or assigns ever had, now has or hereafter
can, shall or may have for any matters based upon or arising out of (a) any
indemnity obligation of IPC or IXNET to the undersigned resulting from facts or
circumstances existing on or before the Closing Date of any kind whatsoever or
(b) the Stockholders Agreement, dated June 23, 1995, among IPC, IXNET, ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇, and any and all claims, costs, expenses and attorneys' fees with
respect to any of the foregoing. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Share Exchange
and Termination Agreement, dated December 18, 1997, among the parties named
therein (the "Share Exchange and Termination Agreement").
------------------------------------------
[IXNET Releasing Stockholder]
Dated: _________ __, 1998.
EXHIBIT B
---------
AMENDED AND RESTATED ▇▇▇▇▇ EMPLOYMENT AGREEMENT
-----------------------------------------------
EXHIBIT C
---------
AMENDED AND RESTATED ▇▇▇▇▇▇▇▇ EMPLOYMENT AGREEMENT
--------------------------------------------------
EXHIBIT D
---------
INVESTORS AGREEMENT
-------------------