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EXHIBIT 2.3.2
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REDEMPTION AGREEMENT
XXXXXXX COMMUNICATIONS, INC., a Delaware corporation with its principal
offices at One Blue Hill Plaza, Fifth Floor, P.O. Box 1665, Xxxxx Xxxxx, XX
00000 (the "COMPANY"), and X. XXXXX FAMILY PARTNERSHIP, L.P., a Colorado limited
partnership (the "SELLER"), and XXXXX XXXXX, an individual, both located at
{Confidential Portion Omitted and Filed Separately with the Commission}
("XXXXX"), hereby agree as follows:
1. SALE AND PURCHASE OF SHARES.
a. Subject to the approval by the Company's Board of Directors of
this Agreement, the Company agrees to purchase from the
Seller, on the terms and conditions set forth in this
Redemption Agreement (the "AGREEMENT"), 300,000 shares (the
"SHARES") of the Company's common stock, par value $.001 per
share, (the "COMMON STOCK") held of record by the Seller. It
is expressly acknowledged by the Seller and Xxxxx that the
Company's Board of Directors may give or withhold its
approval, or condition its approval upon such conditions in
addition to those expressed in this Agreement as the Board may
in its absolute and unfettered discretion determine, and
without regard to any other agreements or understandings,
written or oral, between or among the parties, and that by
causing this Agreement to be executed, neither the Company nor
the officer executing this Agreement on its behalf, or any
other officer or director of the Company, is making has made
or is authorized to make any agreement or undertake any
obligation to consummate the transactions described in this
Agreement or in any other agreement between the parties absent
such approval by the Company's Board of Directors.
b. On the Closing Date (defined below), the Seller shall deliver
the Shares to the Company duly endorsed or with stock powers
duly executed in form for transfer with all applicable tax or
revenue stamps affixed or paid for, in consideration of, and
against payment by, the Company of Four Hundred-Five Thousand
($405,000) Dollars, by wire transfer to an account designated
by the Seller.
c. The closing of the sale and purchase of the Shares shall take
place on the date (the "CLOSING DATE") which is five (5)
business days after the satisfaction of the conditions set
forth in Section 4 below, at such time and place as shall be
mutually agreed.
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2. CERTAIN REPRESENTATIONS OF THE SELLER.
The Seller and Xxxxx hereby jointly and severally represents and
warrants to the Company, its officers and directors, the following:
a. The Seller is the sole beneficial owner of the Shares, free
and clear of all liens, pledges, liabilities, claims and
encumbrances (except for the obligations of Seller under the
lock-up agreement referred to in Section 3 of this Agreement).
b. The Seller and Xxxxx have each read carefully and understand
this Agreement and has consulted their own attorneys,
accountants and tax and financial advisors with respect to the
transaction contemplated hereby.
c. The Company has made available to the Seller, Xxxxx and their
counsel, or their designated representatives, during the
course of this transaction and prior to the sale of any of the
securities referred to herein, the opportunity to ask
questions of and receive answers from the officers and
directors of the Company concerning the terms and conditions
of the sale or otherwise relating to the financial data and
business of the Company, to the extent that the Company or its
officers and directors possess such information or can
acquire it without unreasonable effort or expense.
d. Seller and Xxxxx acknowledge that they are each aware that the
Company is seeking to further develop its current lines of
business involving telecommunications sales and services,
including internet telephony, and to expand into new lines of
business, including but not limited to the marketing and sale
on the internet of telecommunications and other products and
services (including "on-line" securities trading and
investment banking). Seller and Xxxxx acknowledge that this
Agreement is entered into by the Company without the Company
having made any representation or warranty, express or
implied, with respect to any matter or thing whatsoever.
Seller and Xxxxx each hereby waives any claim and releases the
Company and its officers, directors, employees and agents from
any claim that it or he or any person controlled by,
controlling or under common control with either of them (an
"Affiliate") has, may have or could have against the Company
or any of its officers, directors, employees or agents
regarding the amount or nature of the consideration paid by
the Company for the Shares and any other consideration
delivered by the Company to Seller or Xxxxx or any of their
Affiliates in connection with this Agreement or any other
agreements, including, but not limited to, any claim based
upon or arising out of any allegation that the Company failed
to inform Seller or Xxxxx about, failed to provide Seller or
Xxxxx with accurate or complete information regarding, or
provided Seller or Xxxxx with misleading information
concerning the Company's business and affairs, financial
condition, prospects, plans, work in process, opportunities or
any other matter or thing concerning the Company.
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e. The Seller and Xxxxx each has such knowledge and experience in
financial and business matters that each is capable of
evaluating the merits and risks of the sale of the Shares.
3. TERMINATION OF LOCK-UP AGREEMENT.
Effective with the Closing, the Company agrees that the provisions of
Sections 3.2, 3.3 and 3.4 of that certain Agreement among the Company, Calling
Card Co., Inc. and Psychic Readers Network, Inc., dated as of January 17, 1996,
providing, among other things, for Xxxxxxx'x acquisition from Psychic Readers
Network, Inc. of its interest in New Lauderdale, L.C., shall be deemed
terminated in their entirety and shall have no further force and effect.
4. CONDITIONS TO CLOSING.
a. It shall be a condition to the Company's obligation to close
the purchase of the Shares from the Seller that each of the
following conditions shall have first been satisfied, any one
or more of which may be waived by the Company in its
discretion:
i. the Company's Board of Directors shall have approved
the purchase of the Shares and this Agreement;
ii. no action or proceedings shall have been instituted
or, to the knowledge, information and belief of the
Company, shall have been threatened before a court or
other government body or by any public authority to
restrain or prohibit any of the transactions
contemplated by this Agreement and an authorized
officer of the Company shall have delivered to the
Seller a certificate, dated the Closing Date, to such
effect;
iii. the representations made by the Seller in this
Agreement shall be true and correct in all material
respects as of the date hereof and the Closing Date,
and Seller shall deliver to the Company at the
Closing a certificate, dated the Closing Date, to
such effect.
b. It shall be a condition to the Seller's obligation to close
the sale of the Shares to the Company that each of the
following conditions shall have first been satisfied, any one
or more of which may be waived by the Seller in his
discretion:
i. the Company's Board of Directors shall have approved
the purchase of the Shares and the consummation of
this Agreement;
ii. no action or proceedings shall have been instituted
or, to the knowledge, information and belief of
Seller, shall have been threatened before a court or
other government body or by any public authority to
restrain or
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prohibit any of the transactions contemplated by this
Agreement, and the Seller shall have delivered to the
Company at the closing a certificate, dated the
Closing Date, to such effect.
5. NO ASSIGNMENT.
This Agreement is not transferable or assignable by the Seller.
6. GENERAL.
a. This Agreement shall be binding upon the Seller and the
Company and their respective representatives, successors, and
permitted assigns.
b. This Agreement shall be governed by and construed in
accordance with the law of New York, including its choice of
law rules. Any judicial proceeding brought against any of the
parties to this Agreement on any dispute arising out of this
Agreement or any matter related hereto shall be brought in the
courts of the State of New York in New York County or in the
United States District Court for the Southern District of New
York, and, by execution and delivery of this Agreement, each
of the parties to this Agreement accepts for itself the
jurisdiction of the aforesaid courts, irrevocably consents to
the service of any and all process in any action or proceeding
by the mailing of copies of such process to such party at its
address provided for the giving of notices under Section 6(e)
below, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement. Each party
hereto irrevocably waives to the fullest extent permitted by
law any objection that it may now or hereafter have to the
laying of the venue of any judicial proceeding brought in such
courts and any claim that any such judicial proceeding has
been brought in an inconvenient forum.
c. All covenants, agreements, representations and warranties made
herein or otherwise made in writing by any party pursuant
hereto shall survive the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby.
d. This Agreement may be executed 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.
e. Any Notice or demand required or permitted to be given or made
hereunder to or upon any party hereto shall be deemed to have
been duly given or made for all purposes if (a) in writing and
sent by (i) messenger or an overnight courier service against
receipt, or (ii) certified or registered mail, postage paid,
return receipt requested, or (b) sent by telegram, telecopy,
telex or similar electronic means, provided that a written
copy thereof is sent on the same day by postage-
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paid first-class mail, if to the Company, at Xxxxxxx
Communications, Inc., Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, XX
00000, attn: Xxxxxxx Xxxxxxxx (fax: 914-620- 1885), and if to
the Seller or Xxxxx Xxxxx, at {Confidential Portion Omitted
and Filed Separately with the Commission}, or at such other
address as each such party furnishes by notice given in
accordance with this Section 6(e).
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day of May, 1999.
XXXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and CEO
X. XXXXX FAMILY PARTNERSHIP L.P.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, General Partner
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, individually
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