EXHIBIT 99.1
SHARE SALE AGREEMENT
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THIS SHARE SALE AGREEMENT is made and entered into this 30/th/ day of June,
1999, by and between IFX CORPORATION, a Delaware corporation (the "Seller"), and
THE PARK TRUST, a trust governed by the laws of the Isle of Jersey, acting by
Xxxxxx Xxxxxx Offshore Service Limited as its trustee ("The Park Trust").
WITNESSETH:
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WHEREAS, the Seller and The Park Trust (through its trustee and beneficiaries)
are together the registered and beneficial owners of all of the issued and
outstanding capital stock of IFX LIMITED, a company organised under the laws of
England and Wales (the "Company"), as follows:
the Seller 2,448,465 Ordinary "A" shares
The Park Trust 2,448,464 Ordinary "B" shares
WHEREAS, the Seller desires to sell to The Park Trust all 2,448,465 Ordinary "A"
shares of the Company owned by the Seller (the "Shares") on the terms and
subject to the conditions herein set forth, and The Park Trust desires to
purchase such Shares on such terms and subject to such conditions as are set out
in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
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1.1 Agreement to Purchase and Sell. Subject to all the terms and conditions
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hereof, at the Closing (as defined in Section 1.5 below) on the Closing
Date (as defined in Section 1.5 below) the Seller shall sell with full
title guarantee all of the Shares to The Park Trust, and The Park Trust
shall purchase all of the Shares from the Seller, free from all
encumbrances and together with all rights now and hereafter attaching
to them (save for any dividend declared and/or paid on the Shares in
respect of the period up to and including 30 June 1999 which dividend,
for the avoidance of doubt, will be due to the Seller)for the aggregate
consideration set forth in Section 1.2 below (the "Consideration"),
payable as provided in Section 1.3 below, and subject to The Park Trust
and the Seller complying with their obligations at the Closing as set
forth in section 1.5 below.
1.2 Consideration. Subject to the terms of Section 1.4 below, the aggregate
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consideration payable by The Park Trust to the Seller for the Shares
shall be satisfied by the payment of fifty percent (50%) of the
Company's Net Book Value (as defined below) as at June 30, 1999.
As used herein, the term "Net Book Value" shall mean, as of June 30,
1999, (i) Four Million Eight Hundred Ninety Six Thousand, Nine Hundred
and Twenty-Nine United States Dollars (US$4,896,929), plus (ii) the
Company's total accrued retained earnings, minus (iii) the book value
of the Company's intangible assets to the extent that such intangible
assets are in the Net Book Value, all as determined by the Company's
auditors in accordance with generally accepted accounting principles,
consistently applied, minus (iv) an amount equal to any dividend
declared and paid after June 30, 1999, that is payable to all of the
holders of record of the Company's ordinary shares on June 30, 1999
1.3 Payment of the Consideration. Subject to the terms of Section 1.4
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below, The Park Trust shall make payment of the Consideration to the
Seller as follows:
(a) On or before July 7, 1999, The Park Trust shall pay to the Seller,
by electronic funds transfer pursuant to such instructions as the
Seller shall have provided to The Park Trust an amount equal to
(i) fifty percent (50%) of the Company's Net Book Value as at June
30, 1999, minus (ii) Five Hundred Thousand United States Dollars
(US$500,000);
(b) On or before the first anniversary of the Closing, The Park Trust
shall pay to Seller, by electronic funds transfer an amount equal
to Five Hundred Thousand United States Dollars (US$500,000) plus
interest from the Closing Date until the date on which such
payment is made at the Assumed Interest Rate. As used herein, the
term "Assumed Interest Rate" shall mean three percent (3%) per
annum over and above the prime, base or reference rate as
announced from time to time by Xxxxxx Trust and Savings Bank of
Chicago, Illinois, USA, or any successor thereto.
1.4 Consideration Adjustments. In the event that the auditors of the
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Company determine after the Closing Date that an adjustment to the
amount of Consideration paid by The Park Trust to the Seller pursuant
to Section 1.3(b) is required, based on the auditors' calculation of
Net Book Value and Net Profit, then if such adjustment shall result in
an increase in the Consideration, The Park Trust shall pay such amount
to the Seller by electronic funds transfer and if such adjustment shall
result in a decrease in the Consideration, the Seller shall pay such
amount to The Park Trust, in each case promptly after the auditors make
their determination. The auditors' determination as to the Net Book
Value and Net Profit shall be conclusive, provided, however, that each
of the parties shall have the right to review and comment on the
auditors' determination.
If a Park Trust Adjustment Event (as defined below) shall occur prior
to the third (3/rd/) anniversary of the Closing Date, then within
thirty (30) days
following the closing of such Park Trust Adjustment Event, The Park
Trust shall pay the Seller, by electronic funds transfer pursuant to
such instructions as the Seller shall have provided to The Park Trust,
an amount equal to the Applicable Percentage of the amount equal to (i)
two million four hundred forty-eight thousand four hundred sixty-five
(2,448,465), multiplied by (ii) the Premium Per Share with respect to
such Park Trust Adjustment Event.
As used herein, the term "Park Trust Adjustment Event" shall mean the
sale by The Park Trust of any equity securities of the Company at a
price per share which is effectively greater than (1) the aggregate
amount paid to the Seller by The Park Trust hereunder through the date
of such sale of equity securities by The Park Trust (excluding any
payment made pursuant to Section 3.3 hereof), divided by (2) two
million four hundred forty-eight thousand four hundred sixty five
(2,448,465). As used herein, the term "Applicable Percentage" shall
mean (1) fifty percent (50%) with respect to any Park Trust Adjustment
Event which occurs on or before the first (1/st/) anniversary of the
Closing Date, (2) thirty-five percent (35%) with respect to any Park
Trust Adjustment Event which occurs after the first (1/st/) anniversary
of the Closing Date and on or before the second (2nd) anniversary of
the Closing Date, and (3) twenty percent (20%) with respect to any Park
Trust Adjustment Event which occurs after the second anniversary of the
Closing Date and prior to the third (3/rd/) anniversary of the Closing
Date. As used herein, the term "Premium Per Share" shall mean, with
respect to any particular Park Trust Adjustment Event, the amount by
which (i) the actual or deemed sales price per share in such Park Trust
Adjustment Event exceeds (ii) the quotient equal to the aggregate
amount paid to the Seller by Park Trust through the date of such Park
Trust Adjustment Event (excluding any payment made pursuant to Section
3.3 hereof), divided by two million four hundred forty-eight thousand
four hundred sixty-five (2,448,465). Notwithstanding the foregoing, if
(i) Xxx X. Xxxxx, any member of his family, any entity owned, directly
or indirectly, or controlled by Xxx X. Xxxxx or any member of his
family, or any affiliate of the foregoing in the aggregate cease to own
at least 15% of the Seller (including any successor entity into which
the Seller is merged or any acquirer of Seller) or (ii) more than 50%
of the directors of the Seller at the Closing Date shall cease to be
directors thereof, unless prior to such change the new directors shall
have been approved by the incumbent directors, then the provisions of
this Section 1.4 shall not apply. Instead, The Park Trust covenants
that no event which would otherwise constitute a Park Trust Adjustment
Event shall occur without Seller's (or its transferee's or successor's)
consent.
1.5 Closing. The consummation of the purchase and sale of the Shares
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described in Section 1.1 above (the "Closing") shall occur on June 30,
1999 (the date of the Closing being referred to herein as the "Closing
Date"). At the Closing, and concurrently with the Seller's performance
of its obligations hereunder to be performed at the Closing:
(a) the Seller shall deliver to The Park Trust a share
certificate evidencing the Seller's ownership of the
Shares, together with a duly executed stock transfer form
in form sufficient to effect the transfer of the Shares to
The Park Trust; and
(b) The Park Trust and the Seller shall each sign such
shareholder and class resolutions of the Company (the
"Resolutions") and procure that the board of directors of
the Company passes such board resolutions (the "Board
Resolutions") as are required to:
(i) Amend thearticles of association of the Company
(the "Articles");
(ii) Reclassify the Ordinary "A" Shares and the
Ordinary "B" Shares of the Company as Ordinary
Shares of US$1 each to rank pari passu; and;
(iii) Allot and issue, credited as fully paid up, one
new redeemable preference share of US$1 in the
Company (the "Preference Share") to the Seller,
such Preference Share having the rights and
being subject to the restrictions set out in the
Articles (in consideration for US$1 paid by the
Seller to the Company), enter the Seller in the
register of members of the Company as the holder
of the Preference Share and issue a share
certificate in respect of the Preference Share
to the Seller.
The Resolutions and the Board Resolutions shall be in the form attached
to this Agreement and initialled by or on behalf of The Park Trust and
the Seller for the purposes of identification.
1.6 Late Payments. Any payments due to Seller hereunder, if not paid when
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due, shall accrue interest and be payable at the Assumed Interest Rate.
1.7 Seller's Change of Name. The Seller confirms that in the event that it
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shall commence any activities in the field of financial trading, then
it shall use its best efforts, at its own expense, to change its name
(and any trading name) to any name not including the words or
abbreviations "Index Future Group", "IFX" or any similar word or
colourable imitation thereof at the next annual or special meeting of
the stockholders of the Seller, which the Seller shall cause to be
called for a date not later than June 30, 2000, and shall supply a copy
of its Certificate of Incorporation on Change of Name or equivalent
document to The Park Trust promptly after such change has been
effected.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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2.1 Representations and Warranties of the Seller
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(i) Organisation and Authority. The Seller is a corporation which is
duly organised, validly existing, and in good standing under the
laws of the State of Delaware, U.S.A. The Seller has full
corporate power, right and capacity to enter into this Agreement
and to perform its
obligations hereunder. The Seller's execution, delivery and
performance of this Agreement have been duly authorised by all
necessary corporate action on the part of the Seller.
(ii) Enforceability. This Agreement is a valid and binding agreement
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of the Seller enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy,
insolvency, reorganisation, moratorium or similar laws and except
as may be limited by the unavailability of equitable remedies.
(iii) No Conflicts. The Seller's execution, delivery and performance of
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this Agreement does not conflict with, and does and will not
result in a material breach of, or constitute a violation or
default under, any agreement or other document or instrument to
which the Seller is a party or by which the Seller or any of its
assets or properties is bound or affected, or any law, statute,
rule, regulation, ordinance, writ, order or judgement to which
the Seller is subject or by which the Seller or any of its assets
or properties is bound or affected.
(iv) Title to the Shares. The Seller is the registered and sole
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beneficial owner of the Shares, free and clear of all mortgages,
liens, claims, encumbrances and other security interests or
restrictions or any kind whatsoever. The Shares are fully paid
up.
(v) Consents. The Seller is not required to obtain any consent or
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other approval from any governmental agency or any other person
(including any lessor, customer, supplier or lender to the Seller
or the Company) to permit the consummation of the transactions
contemplated hereby.
(vi) No Indebtedness. There is not outstanding any indebtedness or
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other liability (actual or contingent) owing by the Company to
the Seller or to any officer of or any person connected with the
Seller, nor is there any indebtedness owing to the Company by any
such person.
(vii) No Pre-emptive Rights. No person has the right (whether
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exercisable now or in the future and whether contingent or not)
to call for the sale, transfer or conversion of any of the Shares
under any option or other loan agreement (including conversion
rights and rights of pre-emption).
2.2 Representations of The Park Trust - Enforceability. This Agreement is a
valid and binding agreement of The Park Trust enforceable against it in
accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganisation, moratorium or similar laws and
except as may be limited by the unavailability of equitable remedies.
The Park Trust furthermore warrants that it is a duly constituted trust
in accordance with the laws of the Isle of Jersey.
ARTICLE III
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COVENANTS
3.1 Conduct of the Company Pending Closing. The Seller hereby covenants and
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agrees that, from the date hereof to and including the Closing Date,
the Seller shall cause the Company to operate the business only in
usual and ordinary course, consistent with past practice.
3.2 Termination of the Stockholders Agreement. Except as otherwise provided
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in this Section 3.2, effective as of the Closing Date, the Stockholders
Agreement previously made between IFX Corporation and The Park Trust in
relation to the Company shall be terminated and of no further force or
effect whatsoever.
3.3 Payment of Indebtedness. The Park Trust hereby confirms that it has
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already paid or will pay promptly that certain indebtedness to Seller
in the principal amount of Two Hundred Thousand United States Dollars
(US$200,000) which covenant will not, for the avoidance of doubt, form
part of the Consideration in any event.
3.4. Audit Rights. The Park Trust hereby covenants and agrees that, until
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such time as The Park Trust shall have fully discharged all of its
obligations to the Seller hereunder, The Park Trust shall keep full and
complete books and records relating to all of the matters which could
affect the calculation of amounts payable by The Park Trust to the
Seller hereunder. The Park Trust further covenants and agrees that all
such books and records shall be kept in accordance with prudent
business practice and shall be prepared in accordance with the
practices adopted by the Company for the preparation of its management
accounts, and shall be retained for at least four (4) years following
the Closing Date. The Seller and its duly authorised representatives
shall have the right at all reasonable times and upon reasonable notice
to examine such books and records, and shall have free and full access
thereof for said purposes and for the purpose of making extracts
therefrom and copies thereof. The costs of any such examination by the
Seller or any of its duly authorised representatives shall be borne
solely by Seller unless such examination shall reveal an underpayment
by The Park Trust of more than five percent (5%) with respect to any
particular quarter, in which event The Park Trust shall promptly
reimburse the Seller for such costs of examination.
3.5 Indemnification.
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(i) The Park Trust (the "Indemnitor") hereby agrees to
indemnify the Seller and the affiliates, directors and
officers of the Seller (collectively, the "Indemnitee") and
shall hold each of them harmless from, any and all damages,
claims, suits, actions, causes of action, proceedings,
investigations, losses, liabilities, assessments, judgements,
deficiencies and expenses (including without limitation,
reasonable legal, accounting and other professional expenses)
("Indemnified Liabilities") asserted against or incurred or
sustained by any of them relating to associated with or
arising out of any actions by the Company from and after the
date hereof; provided, however, that in no event shall Xxxxxx
Xxxxxx Offshore Services Limited or any successor trustee
thereto of The Park Trust have any individual or personal
liability or obligation to indemnify or hold harmless any
Indemnitee and any indemnification amount payable pursuant to
this Agreement by The Park Trust shall be paid solely out of
the assets thereof.
(ii) Indemnification Procedure.(a) Reasonably promptly
after obtaining knowledge thereof, Indemnitee shall give
Indemnitor written notice of any Indemnified Liability which
the Indemnitee has determined has given or could give rise to
a claim for indemnification hereunder (a "Notice of Claim");
provided, however, that no failure or delay in giving any such
Notice of Claim shall relieve the Indemnitor of its
obligations except, and only to the extent, that it is
prejudiced thereby. A Notice of Claim shall specify in
reasonable detail the nature and all known particulars related
to an Indemnified Liability.
(iii) The Indemnitor shall (a) promptly inform the
Indemnitee of all material developments with respect to a
matter which is the subject of a Notice of Claim and (b)
inform the Indemnitee promptly after the Indemnitor has made a
good faith determination, based on the facts alleged in such
Notice of Claim or which have otherwise become known to the
Indemnitor, either that the Indemnitor acknowledges that it
has an indemnification obligation hereunder in respect of such
Indemnified Liability or that the Indemnitor has made a good
faith determination that it has no indemnification obligation
hereunder in respect of such Indemnified Liability. The
Indemnitee shall have the right, but not the obligation, to
participate, at its own cost and expense, in the defence,
contest or other opposition of any such third party claim,
demand, suit, action or proceeding through legal counsel
selected by it and shall have the right, but not the
obligation, to assert any and all cross-claims or
counterclaims which it may have. So long as the Indemnitor is
in good faith performing its obligations, the Indemnitee shall
(i) at Indemnitor's cost and expenses, co-operate in all
reasonable ways with, make its relevant files and records
available for inspection and copying by, make its employees
reasonably available to and otherwise render reasonable
assistance to the indemnitor upon request and (ii) not
compromise or settle any such claim, demand, suit, action or
proceedings without the prior written consent of the
Indemnitor. If the Indemnitor fails to perform its obligations
under this Section 3.5(iii), or if the Indemnitor shall have
informed the Indemnitee in writing in accordance herewith that
the Indemnitor does not have an indemnification obligation
hereunder in respect to such Indemnified Liability, then the
Indemnitee shall have the right, but not the obligation, to
take the actions which the Indemnitor would have had the right
to take in connection with the performance of such obligations
and, if the Indemnitee is entitled to indemnification
hereunder in respect of the event or circumstance as to which
the Indemnitee takes such actions, then the Indemnitor shall ,
in addition to indemnifying Indemnitee for the Indemnified
Liability, indemnify the Indemnitee for all of the legal,
accounting and other costs, fees and expenses reasonably and
actually incurred in connection therewith. If the Indemnitor
proposes to settle or compromise any such third party action,
demand, claim, suit or proceeding, the Indemnitor shall give
written notice to that effect (together with a statement in
reasonable detail of the terms and conditions of such
settlement or compromise) to the Indemnitee a reasonable time
prior to effecting such settlement or compromise.
Notwithstanding anything contained herein to the contrary, the
Indemnitee shall have the right to object to the settlement or
compromise of any such third party action, demand, claim, suit
or proceeding whereupon (A) the Indemnitee will assume the
defence, contest or other opposition of any such third party
action, demand, claim, suit or proceeding for its own account
and as if it were the Indemnitor and (B) the Indemnitor shall
be released from any and all liability with respect to any
such third party action, demand, claim, suit or proceeding to
the extent that such liability exceeds the liability which the
indemnitor would have had in respect of such a settlement or
compromise.
3.6 No Dividends, etc. Without the prior written consent of Seller, The
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Park Trust will use its reasonable endeavours to procure that no
dividends, distributions or share redemptions in excess of 50% of the
year's Net Profit (as defined in the Resolutions) will be distributed
or made by the Company prior to the time that Seller receives all
amounts due under Section 1.3(b).
3.7 Tax Assistance. The Park Trust shall cause the Company to provide the
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Seller with such information as may be required by the Internal Revenue
Service.
3.8 Payments to Directors. The Park Trust shall take reasonable steps to
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procure that the Company shall not pay amounts to on behalf of Xxxxxx
Wellesley, Xxxxxxx Naldini or any of their affiliates (including,
without limitation, rent and business promotion expenses, professional
fees or consulting fees) in excess of (pound)120,000 in the aggregate
per year in a manner which may prejudice the payment to the Seller of
the preferential dividend pursuant to the Resolutions.
3.9 Alterations to Articles. Without the prior written consent of the
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Seller, The Park Trust undertakes to refrain from effecting any
alterations to the Articles which adversely affect the rights of the
holder of the Preference Share during the period which any monies are
owed in connection with the Preference Share.
ARTICLE IV
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CONDITIONS TO THE OBLIGATIONS OF THE SELLER
The obligations of the Seller to proceed with the Closing as provided
herein are subject to the satisfaction of each of the following
conditions on or before the Closing Date, unless otherwise waived, in
writing, by the Seller.
4.1 Representations and Warranties. The representations and warranties of
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The Park Trust contained herein shall be true and correct in all
material respects on and as of the Closing Date.
4.2 Performance. The Park Trust shall have duly performed or complied with
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all of the covenants, acts and obligations to be performed or complied
with by it hereunder at or prior to the Closing, including without
limitation the delivery of the funds and documents described in Article
1 hereof.
4.3 Trustee's Certificate. The Park Trust shall have delivered to the
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Seller a written certificate, dated the Closing Date and duly executed
by the trustee of The Park Trust, as the case may be, certifying
without qualification or exception to the effect that the
representations and warranties of The Park Trust, contained herein are
true and correct on and as of the Closing Date, and that The Park
Trust, has duly performed or complied with the covenants, acts and
obligations to be performed or complied with by it hereunder at or
prior to the Closing.
ARTICLE V
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CONDITIONS TO THE OBLIGATIONS OF THE PARK TRUST
The obligations of The Park Trust to proceed with the Closing are
subject to the satisfaction of each of the following conditions on or
before the Closing Date, unless otherwise waived, in writing, by The
Park Trust.
5.1 Representations and Warranties. The representations and warranties of
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the Seller contained herein shall be true and correct in all material
respects on and as of the Closing Date.
5.2 Performance. The Seller shall have duly performed or complied with all
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of the covenants, acts and obligations to be performed or complied with
by it hereunder at or prior to the Closing.
5.3 Assignment of Shares. The Seller shall have delivered to The Park Trust
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the share certificate evidencing its ownership of the Shares,
accompanied by a duly executed stock transfer form in favour of The
Park Trust.
5.4 Officer's Certificate. The Seller shall have delivered to The Park
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Trust a written certificate, dated the Closing Date and duly executed
by an officer of
the Seller, certifying without qualification or exception to the effect
that the Seller's representations and warranties contained herein are
true and correct on and as of the Closing Date, and that the Seller has
duly performed or complied with the covenants, acts and obligations to
be performed or complied with by it hereunder at or prior to the
Closing.
ARTICLE VI
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TERMINATION
This Agreement may be terminated and abandoned, without limiting or
waiving any other rights or remedies any party hereto may have at law
or in equity, at any time prior to the consummation of the Closing on
the Closing Date under the following described circumstances:
(a) upon the mutual written consent of all parties hereto;
(b) by The Park Trust, if the conditions set forth in Article V
hereof shall not have been fully satisfied or waived by The
Park Trust on or before June 30, 1999; or
(c) by the Seller, if the conditions set forth in Article IV
hereof shall not have been fully satisfied or waived by the
Seller on or before June 30, 1999.
ARTICLE VII
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MISCELLANEOUS
7.1 Written Agreement to Govern. This Agreement sets forth the entire
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understanding of the parties with respect to the subject matter hereof,
and supersedes all prior and contemporaneous oral or written agreements
between the parties hereto relating to such subject matter. No party
hereto shall be bound by any definition, condition, representation,
warranty, covenant or provision other than as expressly stated in this
Agreement or as hereafter set in a written instrument executed by such
party or by a duly authorised representative of such party. In no event
shall this Agreement be modified or rescinded except pursuant to a
written instrument signed by the party against whom enforcement is
sought.
7.2 Severability. The provisions of this Agreement shall be interpreted in
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a reasonable manner which will sustain their legality. The invalidity
or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof, and any such
provision which is adjudicated to be invalid or unenforceable by a
court of competent jurisdiction shall be severed from this Agreement.
7.3 Notices. Any and all notices necessary or desirable to be served
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hereunder shall be in writing and shall be (i) personally delivered,
(ii) sent by a reputable private courier service with international
operations, (iii) sent by
facsimile telecopier to the facsimile number indicated for the intended
recipient below, or (iv) sent by registered mail, postage prepaid,
return receipt requested, to the address for the intended recipient set
forth below:
(a) If to the Seller:
IFX Corporation
000 Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxxxxx
Xxxxxxxx
00000
Fax: [ ]
With a copy to:
Xxxx, Xxxxxx & Xxxxxxxxx
Suite 0000
Xxx Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
(b) If to The Park Trust:
Xxxxxx Xxxxxx Offshore Services Limited
00/00 Xxxxx Xxxxxxxx
Xxxxxxx
Xxxx xx Xxx
Attn:_Ms Xxxxxxx Xxxxxxxx
Fax: + 00 0000 0000 00
With a copy to:
Xxxxxx Xxxxxx Limited
0 Xxxxxx Xxxxx
Xxxxxx XX0 0XX
Attn:X. X. Xxxxxx
Fax:x00 000 000 0000
Any notice sent by private courier service as provided above shall be
deemed delivered on the third (3/rd/) business day next following the
date on which it was placed into the custody of such courier service.
Any notice delivered by facsimile telecopier as provided above shall be
deemed delivered twelve (12) hours following the date and time
reflected on a written confirmation of such transmission. Any notice
sent by mail as provided above shall be deemed delivered on the fifth
(5/th/) business day next following the postmark date which it bears.
7.4 Effect of Change of Shares. If the Company shall, at any time prior to
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the third (3/rd/) anniversary of the Closing Date, change its issued
capital stock into an increased number of shares, through an issuance
or sub-division of shares, or into a decreased number of shares,
through a redemption or consolidation of shares, then immediately after
the record date of such change all of the terms and provisions hereof
shall be deemed adjusted such that the economic effect of all the terms
and provisions hereof immediately after such change shall be identical
to the economic effect of the terms and provisions hereof immediately
prior to such change.
7.5 Public Announcements. Except as may be required by law, neither party
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hereto shall make, or shall cause to be made, any press release or
public announcement in respect of this Agreement or the transaction
contemplated hereby, or shall otherwise communicate with any news media
with respect thereto, without the express written consent of each other
party hereto. Except to the extent prohibited by applicable law, each
of the parties hereto shall co-operate in good faith with each of the
other parties here as to the timing and contents of any such press
release or public announcement. Notwithstanding the foregoing, each of
the parties consents to the other party making a public announcement
following the Closing, provided however, that prior to either party
making such announcement, each party shall provide the other party and
its legal counsel with a draft of such public announcement and provide
them with a reasonable opportunity to comment thereon.
7.6 Further Assurances. At any time and from time to time following the
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Closing, each party hereto shall execute and deliver to each other
party hereto, without further consideration, such instruments of
transfer or other documents, and shall take such other action as may be
reasonably required, in order to consummate the transaction
contemplated hereby and give effect to the purposes and intent of this
Agreement.
7.7 Assignment. This Agreement shall inure to the benefit of and be binding
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upon the parties hereto and their respective successors and assigns.
7.8 Waiver. Failure to insist upon strict compliance with any of the terms
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or conditions hereof shall not be deemed a waiver of such term or
condition, nor shall any waiver or relinquishment of any right or
remedy hereunder at any one or more times be deemed a waiver or
relinquishment of such right or remedy at any other time or times.
7.9 Survival. The representations, warranties, covenants and agreements set
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forth herein shall survive the Closing.
7.10 Governing Law. The validity, construction and enforceability of this
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Agreement shall be governed by and construed in accordance with the
laws of England and Wales. Each party hereto irrevocably submits to the
exclusive jurisdiction of the courts of England and Wales with respect
to any action or proceeding arising out of or relating hereto, and each
party hereto irrevocably agrees that all claims in respect of any such
action or proceeding shall be held and determined in such court. Each
party hereby further waives, to the fullest
extent permitted by law, any objection which it may now or hereafter
have to the laying of venue in any such court and any objection to any
action or proceeding in any such court on the basis of an inconvenient
forum. Each party agrees that a final, non-appealable judgement in any
such action or proceeding shall be conclusive and may be enforced in
any other jurisdiction by suit on the judgement or in any other manner
provided by law.
7.11 Attorneys Fees. If any legal action or other proceeding shall be
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brought for the enforcement of any rights under this Agreement, or
arising out of any alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this
Agreement, then the prevailing party shall be entitled to recover
reasonable attorneys fees and other costs incurred in such action or
proceeding in addition to any other relief to which it may be entitled.
7.12 Counterparts. This Agreement may be executed in one or more
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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.
7.13 Interpretation. If any provision in this Agreement shall receive
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judicial interpretation or construction, then there shall not be any
presumption that the terms hereof shall be strictly construed or
construed more strictly against the party which prepared the same.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
IFX CORPORATION,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxxx Title: President
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THE PARK TRUST,
a trust governed by the
laws of the Isle of Jersey
By: Xxxxxx Xxxxxx Offshore Services Limited,
its trustee
By: /s/ illegible Title:___________________________
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