Exhibit 10.34
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT dated as of March 3, 2000 (this
"Agreement") is by and between IC FIBER HOLDING INC., a Delaware corporation
("Seller"), WORLDWIDE FIBER IC HOLDINGS, INC., a Nevada corporation ("Buyer"),
and ILLINOIS CENTRAL RAILROAD COMPANY, an Illinois corporation ("IC").
RECITALS
WHEREAS, pursuant to that certain Limited Liability Company
Agreement of Worldwide Fiber IC LLC dated May 28, 1999 (the "LLC Agreement"),
Seller acquired units (the "Units") constituting 25% of the issued and
outstanding equity capital of Worldwide Fiber IC LLC, a Delaware limited
liability company ("WFI-IC"); and
WHEREAS, Seller desires to sell, and Buyer desires to
purchase, the Units, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration had and received, the parties agree as follows:
1. SALE AND PURCHASE OF UNITS; PURCHASE PRICE. Seller hereby agrees to sell, and
Buyer hereby agrees to purchase, the Units at the Closing (as hereinafter
defined) for a total payment of Twenty Million and No/100 United States Dollars
(US$20,000,000) (the "Purchase Price") in immediately available funds.
2. CLOSING; DELIVERIES AT CLOSING
(a) Closing. the "Closing" Means the Time At Which Seller
Consummates the Sale of the Units to the Buyer by Delivery by
Seller and Ic of the Documents Referred to in Sections
2(B)(i), 5(C)(iii) and 5(C)(iv) Against Delivery by Buyer of
the Purchase Price and the Documents Referred to in Sections
2(B)(ii)(b), 5(B)(iii) and 5(B)(iv). the Closing Shall Occur
At Such Time and Place as the Parties Mutually Agree (The
"Closing Date").
(b) DELIVERIES AT CLOSING. At the Closing, (I) the Seller Shall
deliver to the Buyer (A) an assignment, in substantially the
form attached hereto as Exhibit A (the "Assignment"), executed
by Seller, transferring the Units to Buyer, and (B) a
cross-receipt, in substantially the form attached hereto as
Exhibit B (the "Cross-Receipt," and together with this
Agreement and the Assignment, the "Unit Transaction
Documents"), executed by Seller acknowledging receipt by
Seller of the Purchase Price; and (ii) the Buyer shall deliver
to the Seller (A) the Purchase Price to the Seller by wire
transfer of funds to an account designated by Seller or IC,
and (B) a cross-receipt, in substantially the form attached
hereto as Exhibit B, executed by Buyer acknowledging receipt
by Buyer of the Units.
3. REPRESENTATIONS AND WARRANTIES OF SELLER AND IC. Seller and IC hereby jointly
and severally represent and warrant to Buyer as of the date hereof and, unless
otherwise provided, as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date hereof throughout this Agreement)
as follows:
(a) Neither Seller nor IC has employed any broker or finder in
connection with the transactions contemplated by this
Agreement. The Buyer acknowledges that Seller and IC have
retained Xxxxxxx Xxxxx as an advisor to them, and Seller and
IC each represent, warrant and acknowledge to the Buyer that
Xxxxxxx Xxxxx is not employed as a broker or finder in
connection with the transactions contemplated by this
Agreement and that Seller or IC will be responsible for all
fees payable to Xxxxxxx Xxxxx.
(b) The execution, delivery and performance by Seller and IC of
this Agreement and each of the other Unit Transaction
Documents and the consummation by Seller and IC of the
transactions contemplated hereby and thereby will not (a)
violate any provision of law, statute, rule or regulation, or
any ruling, writ, injunction, order, judgment or decree of any
court, administrative agency or other governmental body
applicable to it, or any of its properties or assets; (b)
conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute (with due notice or
lapse of time, or both) a default (or give rise to any right
of termination, cancellation or acceleration) under any
contract to which Seller or IC is a party that would
materially adversely affect Seller's or IC's ability to
consummate the transactions contemplated by this Agreement or
perform its obligations under any Unit Transaction Documents;
or (c) violate the organizational documents (if any) of Seller
or IC.
(c) Each of Seller and IC is duly organized and validly existing
under the laws of the jurisdiction of its organization and has
all corporate power and authority to enter into and carry out
the transactions contemplated by each of the Unit Transaction
Documents and the performance by Seller and IC of their
obligations hereunder and thereunder. Each of the Unit
Transaction Documents has been duly authorized by all
necessary action on the part of Seller and IC. Each of the
Unit Transaction Documents constitutes a valid and binding
agreement of Seller and IC, as applicable, enforceable against
Seller or IC or both, as the case may be, in accordance with
its terms except to the extent that enforceability may be
limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally and by equitable
principles generally whether enforced in a court of law or at
equity.
(d) No permit, authorization, consent or approval of or by, or any
notification of or filing with, any government, regulatory
authority, governmental department, agency, commission, board,
tribunal, or court or other law, rule or regulating-making
entity having or purporting to have jurisdiction on behalf of
any nation, or state or other subdivision thereof or any
municipality, district or other subdivision
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thereof; (a "Governmental Authority") or any individual, sole
proprietorship, general, limited or any other partnership,
limited liability company, unincorporated association,
unincorporated syndicate, unincorporated organization, trust,
body corporate, or other entity, and a natural person in such
person's capacity as trustee, executor, administrator or other
legal representative (collectively, with Governmental
Authority, a "Person") is required in connection with the
execution, delivery and performance by Seller or IC of any
Transaction Document, the consummation by Seller or IC of the
transactions contemplated hereby or thereby, or the issuance,
purchase or delivery of the Units (other than such
notifications or filings required under applicable securities
laws, if any, which shall be made on a timely basis and other
than provided for in any Unit Transaction Document).
(e) In respect of the Units (i) no Person, other than Worldwide
Fiber Inc., a Canadian corporation ("WFI") or Buyer, has any
written or oral agreement or option or any right or privilege
(whether by law, pre-emptive or contractual) capable of
becoming an agreement or option for the purchase or
acquisition from Seller of any of the Units, (ii) no Person
other than WFI or Buyer has any agreement or option or any
right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement, including
convertible securities, warrants or convertible obligations of
any nature, for the purchase, subscription, allotment or
issuance of any unissued units, shares or other securities of
WFI-IC, (iii) Seller is the beneficial owner of record of the
Units, with good and marketable title thereto, free and clear
of any mortgage, lien, security interest, pledge, escrow,
charge, or other encumbrance of any kind or character
whatsoever (an "Encumbrance") and, without limiting the
generality of the foregoing, none of the Units are subject to
any voting trust, shareholder agreement or voting agreement
other than the LLC Agreement and (iv) upon completion of the
transaction contemplated by this Agreement, all of the Units
will be owned by the Buyer as the beneficial owner of record,
with a good and marketable title thereto free and clear of any
Encumbrance except for such Encumbrances as may have been
granted by WFI or Buyer.
(f) Seller and IC agree that by Seller accepting the Purchase
Price at Closing, Seller and IC shall be representing and
warranting that the foregoing representations and warranties
are true as at the Closing Date with the same force and effect
as if they had been made by Seller and IC at the Closing Date
and shall continue in full force and effect. Each of Seller
and IC undertakes to notify the Buyer in writing of any change
in any representation, warranty or other information relating
to Seller or IC set forth herein which takes place prior to
the Closing Date.
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4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller and IC as of
the date hereof and, unless otherwise provided, as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date
hereof throughout this Agreement) as follows:
(a) Buyer is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Nevada, and
has all requisite corporate power and authority to enter into
and carry out the transactions contemplated by this Agreement.
(b) The execution and delivery by Buyer of this Agreement and the
other Unit Transaction Documents and the performance by the
Buyer of its obligations hereunder and thereunder have been
duly authorized by all requisite corporate action on the part
of the Buyer. Each Unit Transaction Document constitutes a
legal, valid and binding agreement of the Buyer, enforceable
against the Buyer in accordance with its terms except to the
extent that enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights
generally and by equitable principles generally, whether
enforced in a court of law or at equity.
(c) The execution, delivery and performance by the Buyer of the
Unit Transaction Documents and the consummation by the Buyer
of the transactions contemplated thereby will not (a) violate
any provision of law, statute, rule or regulation, or any
ruling, writ, injunction, order, judgment or decree of any
court, administrative agency or other governmental body
applicable to it, or any of its properties or assets; (b)
conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute (with due notice or
lapse of time, or both) a default (or give rise to any right
of termination, cancellation or acceleration) under any
contract to which the Buyer is a party that would materially
adversely affect the Buyer's ability to consummate the
transactions contemplated by any Unit Transaction Document or
perform its obligations under any Unit Transaction Document;
or (c) violate its organizational documents.
(d) No permit, authorization, consent or approval of or by, or any
notification of or filing with, any Person is required in
connection with the execution, delivery and performance by the
Buyer of any Unit Transaction Document, the consummation by
the Buyer of the transactions contemplated hereby or thereby
(other than such notifications or filings required under
applicable securities laws, if any, which shall be made by the
Buyer on a timely basis and other than provided for in any
Unit Transaction Document).
(e) Buyer agrees that by Buyer accepting the Units at Closing,
Buyer shall be representing and warranting that the foregoing
representations and warranties are
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true as at the Closing Date with the same force and effect as
if they had been made by Buyer at the Closing Date and shall
continue in full force and effect. Buyer undertakes to notify
Seller and IC in writing of any change in any representation,
warranty or other information relating to Buyer set forth
herein which takes place prior to the Closing Date.
5. CONDITIONS TO THE CLOSING
(a) CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of Seller and Buyer to consummate the transactions
contemplated hereby shall be subject to the satisfaction at or
prior to the Closing Date of the following conditions, any or
all of which may be waived in writing, in whole or in part, by
the Seller or the Buyer, to the extent permitted by applicable
law:
(i) No Governmental Authority shall have enacted, issued,
promulgated or enforced any statute, rule,
regulation, executive order, decree, judgment,
preliminary or permanent injunction or other order
which is in effect and which prohibits, enjoins or
otherwise restrains the consummation of the
transactions contemplated hereby; provided, that the
parties shall use commercially reasonable efforts to
cause any such decree, judgment, injunction or order
to be vacated or lifted.
(ii) Each consent or approval from, or filing with any
Person, required to be obtained or made and any
waiting period required to have expired in order to
consummate the transactions contemplated by this
Agreement at the Closing shall have been obtained, or
made, as the case may be, and any such waiting period
shall have expired.
(b) CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller
to consummate the transactions contemplated hereby shall be
subject to the satisfaction or waiver, on or prior to the
Closing Date, of the following conditions:
(i) Each representation and warranty made by the Buyer
herein shall be true and correct, in all material
respects on and as of the Closing Date, with the same
force and effect as though such representation and
warranty had been made on and as of the Closing Date,
except for changes permitted or contemplated by this
Agreement and except for each representation and
warranty that is made as of a specific date or time,
which shall be true and correct in all material
respects, only as of such specific date or time.
(ii) The Buyer shall have complied in all material
respects with all its agreements and covenants
contained herein required to be performed at or prior
to the Closing to the extent such agreements and
covenants relate to the Closing.
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(iii) The Buyer shall have delivered to the Seller a
certificate executed by a senior executive officer of
the Buyer, which shall be satisfactory in form and
substance to the Seller, certifying that the
conditions set forth in paragraphs (i) and (ii) have
been met.
(iv) The Buyer shall have delivered to the Seller a
certificate of the corporate secretary of the Buyer,
in form and substance satisfactory to the Seller,
certifying (A) a copy of the Articles of
Incorporation of the Buyer and all amendments
thereto, certified by the Secretary of State of the
State of Nevada, (ii) the By-Laws of the Buyer, (iii)
a Certificate of Good Standing for the Buyer issued
by the Secretary of State of the State of Nevada,
(iv) resolutions of the board of directors of the
Buyer authorizing the execution, delivery and
performance by the Buyer of this Agreement, any other
agreement entered into or instrument delivered by the
Buyer in connection herewith, and the transactions
contemplated thereby, (v) copies of each governmental
or third party consent, approval or filing required
to be obtained or made in order to consummate the
transactions contemplated by this Agreement at the
Closing, and (vi) incumbency matters.
(c) CONDITIONS TO THE OBLIGATIONS OF THE BUYER. The obligations of
the Buyer to consummate the transactions contemplated hereby
shall be subject to the satisfaction (or waiver), on or before
the Closing Date, of the following conditions:
(i) Each representation and warranty made by Seller and
IC herein shall be true and correct in all material
respects, with the same force and effect as though
such representation and warranty had been made on and
as of the Closing Date, except for changes permitted
or contemplated by this Agreement and except for each
representation and warranty that is made as of a
specific date or time, which shall be true and
correct, in all material respects, only as of such
specific date or time.
(ii) Seller and IC shall have complied in all material
respects with all of its agreements and covenants
contained herein required to be performed at or prior
to the Closing to the extent such agreements and
covenants relate to the Closing.
(iii) Seller and IC shall each have delivered to the Buyer
a certificate executed by a senior executive officer
of each of Seller and IC, which shall be satisfactory
in form and substance to the Buyer, certifying that
the conditions set forth in paragraphs (i) and (ii)
have been met.
(iv) Seller and IC shall each have delivered to the Buyer
a certificate of its corporate secretary, in form and
substance satisfactory to the Buyer, certifying (i) a
copy of the Articles of Incorporation of Seller or
IC, as the
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case may be, and all amendments thereto, certified
by an appropriate governmental official, (ii) the
By-Laws of Seller or IC, as the case may be, (iii)
a Certificate of Good Standing for Seller or IC,
as the case may be, issued by an appropriate
governmental official, (iv) resolutions of the
board of directors of Seller or IC, as the case
may be, authorizing the execution, delivery and
performance by Seller or IC, as the case may be,
respectively, of this Agreement, any other
agreement entered into or instrument delivered by
Seller or IC, as the case may be, in connection
herewith, and the transactions contemplated
thereby, (v) copies of each governmental or third
party consent, approval or filing required to be
obtained or made in order to consummate the
transactions contemplated by this Agreement at the
Closing, and (vi) incumbency matters.
6. CONFIDENTIALITY
(a) The parties hereto hereby covenant and agree with each other
that, subject to subsection 6(c), they will not disclose, or
allow their respective directors, officers, employees agents,
representatives or consultants, if any, to disclose, to any
Person, any of the terms, conditions or other facts of or
concerning this Agreement or the existence of this Agreement
without the prior written consent of the other parties hereto.
The parties hereto hereby further covenant and agree with each
other that they will at all times keep, and all reasonable and
normal steps to cause their respective directors, officers,
employees, agents, representatives and consultants, if any, to
at all times keep, all information of every nature and kind
whatsoever regarding Buyer, Seller and IC including, without
limitation, information on and/or copies of material
agreements, corporate, proceedings and other data, whether
transferred in writing, orally, visually, electronically or by
any other means, and all analyses, studies, compilations,
data, supplies or other documents prepared by any party or
Buyer, Seller or IC containing, or based in whole or in part
on, any such information or reflecting any such information,
strictly confidential, and shall at no time convey or
disclose, or knowingly allow their respective directors,
officers, employees, agents, representatives or consultants,
if any, to convey or disclose, in any manner whatsoever, to
any person, firm or corporation any of the aforesaid
information. The parties hereto hereby further covenant and
agree with each other not to use, and to take all normal and
reasonable steps to ensure that their respective directors,
officers, employees, agents, representatives or consultants,
if any, do not use, any of the aforesaid information except
for the purposes of exercising their respective rights and
performing their respective obligations under this Agreement.
(b) Each party hereto hereby covenants and agrees with each other
party hereto to indemnify and hold harmless each other party
hereto from any losses, damages, charges, fees or expenses
(including reasonable attorneys' or solicitors' fees) arising
out of or resulting from any breach of subsection 6(a). The
parties hereto hereby further covenant and agree with each
other not to do any act, or knowingly
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allow their respective directors, officers, employees, agents,
representatives or consultants, if any, to do any act, to
infringe upon any copyright, patent, industrial design or
other proprietary rights of Buyer or its affiliates.
(c) The parties hereto hereby further covenant and agree with each
other that, in the event they, or their respective directors,
officers, employees, agents, representatives or consultants,
if any, become legally compelled to disclose any of the
aforesaid information, or are advised by their respective
legal counsel that such disclosure is required to comply with
applicable law, to immediately provide the other parties with
written notice so that the other parties may seek a protective
order or other appropriate remedy, and to cooperate, and to
cause their respective directors, officers, employees, agents,
representatives and consultants, if any, to cooperate, with
the other parties in any effort undertaken to obtain a
protective order or other remedy. Each party hereto hereby
further covenants and agrees with each other party to, in the
event that such protective order or remedy is not obtained,
furnish, and to cause his directors, officers, employees,
agents, representatives and consultants, if any, to furnish,
only that portion of the aforesaid information which he is
legally required to furnish, and to use his best efforts, and
to cause his directors, officers, employees, agents,
representatives, and consultants, if any, to use their best
efforts, to obtain an assurance from the recipient of any of
the aforesaid information that confidential treatment will be
accorded to such information, to the extent that such
assurance is available. Notwithstanding the foregoing, each of
the parties acknowledges that the parties may be required to
disclose the terms of this Agreement, and provide a copy of
this Agreement, in filings made by such party under applicable
securities law, and may have to disclose the aforesaid
information in an open court in legal proceedings between the
parties, or between a party and others, and each of the
parties hereby consents to such disclosure and to the filing
of a copy of this Agreement for public viewing under filings
required to be made by a party under applicable securities
law.
(d) Each party hereto hereby acknowledges to and covenants and
agrees with each other party hereto that a breach by him of
any of his covenants contained in this Section 6 may result in
damages to each of the other parties and that a monetary award
would not adequately compensate for such damages, and,
accordingly, that in the event of any such breach, in addition
to all other remedies available in law or in equity, the other
parties, or any of them, shall be entitled as a matter of
right to apply to a court of competent equitable jurisdiction
for such relief by way of restraining order, injunction,
decree or otherwise as may be appropriate to ensure compliance
by him with Section 6.
(e) Each of the parties hereto hereby acknowledges to and
covenants and agrees with each of the other parties hereto
that, notwithstanding any provision of this Agreement, its
covenants contained in Section 6 survive any termination of
this Agreement.
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7. OTHER COVENANTS
(a) COOPERATION BY PARTIES; SATISFACTION OF CLOSING CONDITIONS.
From the date hereof and prior to the Closing, each party
shall use its commercially reasonable efforts, and will
cooperate with each other, to secure as promptly as
practicable all necessary consents, approvals, authorizations,
exemptions and waivers from third parties as shall be required
to enable the parties hereto to effect the transactions
contemplated hereby, and each party shall use its commercially
reasonable efforts to cause (but not waive) any closing
condition in Section 5 to be satisfied.
(b) SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. All
representations and warranties in the this Agreement shall
survive the Closing indefinitely and shall in no way be
affected by any investigation of the subject matter thereof
made by or on behalf of Buyer, Seller or IC. All statements
contained in any certificate or other instrument delivered by
party pursuant to this Agreement shall constitute
representations and warranties by any party under this
Agreement.
(c) EXPENSES. Each of Buyer, Seller and IC shall pay all the costs
and expenses incurred by it or on its behalf in connection
with this Agreement and the consummation of the transactions
contemplated hereby.
(d) REMEDIES. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been
breached by any party hereto, each other party may proceed to
protect and enforce its rights either by suit in equity and/or
by action at law, including, but not limited to, an action for
damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement
contained in this Agreement, and to exercise all other rights
existing in their favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that
each party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond
or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.
(e) FURTHER ASSURANCES. At any time or from time to time after the
Closing, Buyer, on the one hand, and Seller and IC, on the
other hand, agree to cooperate with each other, and at the
request of the other party, to execute and deliver any further
instruments or documents and to take all such further action
as the other party may reasonably request in order to evidence
or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of
the parties hereunder.
(f) REPORTING OF TRANSACTION. The parties hereto agree to report
(for all purposes, including without limitation tax purposes)
the transactions contemplated hereby in
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a manner consistent with the express terms hereof, and the
parties agree to cooperate fully with each other to ensure
accurate and consistent reporting of such transactions for tax
purposes.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of Buyer, Seller and IC, and the respective
successors, permitted assigns, heirs and personal
representatives of each of them. This Agreement shall not be
assignable by Buyer, without the consent of Seller, or by
Seller or IC, without the consent of Buyer.
(h) ENTIRE AGREEMENT. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a
part hereof contain the entire agreement among the parties
with respect to the subject matter hereof and supersede all
prior and contemporaneous arrangements or understandings with
respect thereto.
(i) NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be
sufficient if contained in a written instrument delivered in
person or sent by fax, nationally recognized overnight courier
or first class registered or certified mail, return receipt
requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter
be designated in writing by such party to the other parties:
(i) if to Buyer, to:
c/o Worldwide Fiber Inc.
#0000-0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxx
with a copy to:
Xxxxxxx & Xxxxxx
0000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
(ii) if to Seller or IC, to:
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
00xx Xxxxx
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Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxxxxxxxx
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
(j) AMENDMENTS. The terms and provisions of this Agreement may be
modified or amended, or any of the provisions hereof waived,
temporarily or permanently, pursuant to the written consent of
Buyer, Seller and IC.
(k) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed
to be an original instrument, but all such counterparts
together shall constitute but one agreement.
(l) HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not
be deemed to be a part of this Agreement.
(m) NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of
names and pronouns shall include the plural and vice versa.
(n) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
without giving effect to the principles of conflicts of law.
Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the non-exclusive
jurisdiction of the courts of the State of New York located in
the City of New York, for any action, proceeding or
investigation in any court or before any governmental
authority ("LITIGATION") arising out of or relating to this
Agreement and the transactions contemplated hereby, and
further agrees that service of any process, summons, notice or
document by registered mail to its respective address set
forth in this Agreement shall be effective service of process
for any Litigation brought against it in any such court. Each
of the parties hereto hereby irrevocably and
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unconditionally waives any objection to the laying of venue of
any Litigation arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of
New York located in the City of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead
or claim in any such court that any such Litigation brought in
any such court has been brought in an inconvenient forum.
(o) CURRENCY. Unless otherwise indicated, references to "dollars",
"$" or "US$" are to U.S. dollars and references to "C$" are to
Canadian dollars.
(p) NO PARTNERSHIP. The obligations of each of the parties to this
Agreement are several and not joint. Nothing in this Agreement
shall imply or be deemed to imply a partnership, joint venture
or other relationship between the parties.
[The rest of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be duly executed as of the date first above written.
IC FIBER HOLDING INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Its: Senior Vice President and
Chief Financial Officer
----------------------------
WORLDWIDE FIBER IC HOLDINGS, INC.
By: /s/ Xxxxx Xxxx
----------------------------
Its: President
----------------------------
ILLINOIS CENTRAL RAILROAD COMPANY
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Its: Senior Vice President and
Chief Financial Officer
----------------------------
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EXHIBIT A
ASSIGNMENT
FOR VALUE RECEIVED, IC Fiber Holding Inc., a Delaware corporation ("IC
Fiber"), DOES HEREBY ASSIGN AND TRANFER unto Worldwide Fiber IC Holdings, Inc.,
a Nevada corporation, 25 Units in Worldwide Fiber IC LLC, a Delaware limited
liability company, being all of IC Fiber's Units in Worldwide Fiber IC LLC.
IN WITNESS WHEREOF, the undersigned has executed these presents as of
March ____, 2000.
IC FIBER HOLDING INC.
By:________________________________
Its:_______________________________
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EXHIBIT B
CROSS-RECEIPT
THIS CROSS-RECEIPT is made with respect to the Purchase Agreement dated
as of March ___, 2000 (the "Purchase Agreement") by and between IC Fiber Holding
Inc., a Delaware corporation ("Seller"), and Worldwide Fiber IC Holdings, Inc.,
a Nevada corporation ("Buyer").
By its signature below, Buyer hereby acknowledges receipt from Seller
of Seller's Units (the "Units") in Worldwide Fiber IC LLC, a Delaware limited
liability company.
By its signature below, Seller hereby acknowledges receipt from Buyer
of $20,000,000 in the form of a bank draft payable to Seller, such payment
representing payment of the Purchase Price to Seller pursuant to Section 2 of
the Purchase Agreement.
Capitalized terms used and not otherwise defined herein have the
meanings given such terms in the Purchase Agreement.
Dated: March ____, 2000
BUYER:
WORLDWIDE FIBER IC HOLDINGS, INC.
By:________________________________
Its:_______________________________
SELLER:
IC FIBER HOLDING INC.
By:________________________________
Its:_______________________________
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