IFX CORPORATION
SERIES C CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
Dated as of October 11, 2001
TABLE OF CONTENTS
Page
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1. Authorization of the Securities; Nature of Agreement...................................................... 6
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(a) Series C Preferred Stock.............................................................................. 6
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(b) Nature of Agreement................................................................................... 6
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2. Sale and Purchase of Series C Preferred Stock............................................................. 7
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3. Purchase Price............................................................................................ 7
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4. Representations and Warranties of the Company............................................................. 7
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(a) Organization and Good Standing........................................................................ 8
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(b) Authorization......................................................................................... 8
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(c) Capital Stock......................................................................................... 8
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(d) Subsidiaries.......................................................................................... 10
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(e) Compliance With Material Instruments.................................................................. 10
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(f) Good Title............................................................................................ 11
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(g) Litigation............................................................................................ 11
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(h) Tax Matters........................................................................................... 11
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(i) Registration Rights................................................................................... 12
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(j) Offering.............................................................................................. 12
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(k) Insurance............................................................................................. 12
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(l) Certain Transactions.................................................................................. 12
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(m) Contracts............................................................................................. 12
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(n) Governmental Consents................................................................................. 15
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(o) Officers, Employees and Labor......................................................................... 15
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(p) Compliance with Laws.................................................................................. 16
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(q) Intellectual Property................................................................................. 16
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(r) Environmental Matters................................................................................. 17
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(s) Certain Practices..................................................................................... 18
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(t) Brokers............................................................................................... 18
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(u) No Undisclosed Liabilities............................................................................ 18
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(v) Disclosure............................................................................................ 18
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(w) SEC Filings........................................................................................... 19
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(x) Financial Statements.................................................................................. 19
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(y) Availability and Transfer of Foreign Currency......................................................... 19
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(z) Absence of Changes.................................................................................... 19
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(aa) Real Property Holding Company........................................................................ 21
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(bb) Investment Company Act............................................................................... 21
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(cc) Subchapter S......................................................................................... 21
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(dd) State Takeover Statutes.............................................................................. 21
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5. Representations and Warranties of the Purchasers.......................................................... 21
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(a) Investment Intent..................................................................................... 21
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(b) Sophistication........................................................................................ 21
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(c) Illiquidity........................................................................................... 21
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(d) Accredited Investor................................................................................... 21
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(e) Brokers.......................................................................22
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(g) Requisite Power and Authority.................................................22
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(h) No Conflict...................................................................22
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6. Covenants.........................................................................22
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(a) Pre-Closing Actions...........................................................22
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(b) Covenants Pending Closing.....................................................22
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(c) Stockholder Approval; Proxy Statement.........................................23
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(d) No Solicitation...............................................................24
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(e) Books and Records.............................................................24
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(f) Post-Closing Covenants........................................................24
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(g) Inspection Rights.............................................................25
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(h) Listing Application...........................................................25
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7. Conditions to Obligations of the Purchasers.......................................25
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(a) Representations and Warranties................................................26
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(b) Performance...................................................................26
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(c) Absence of Litigation.........................................................26
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(d) Opinion of Counsel to the Company and Subsidiaries............................26
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(e) Consents......................................................................26
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(f) Assignment of Intellectual Property...........................................26
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(g) Contemporaneous Transactions..................................................26
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(h) Closing Papers................................................................27
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(i) Absence of Material Adverse Effect............................................28
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(j) Proceedings...................................................................28
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(k) Legends.......................................................................28
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(l) Lucent Indebtedness...........................................................28
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(m) Tutopia Stockholders Agreement................................................28
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8. Conditions to the Obligations of the Company......................................28
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(a) Representations and Warranties................................................29
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(b) Performance...................................................................29
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9. Survival..........................................................................29
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10. Termination......................................................................29
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11. Effect of Termination............................................................30
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12. Miscellaneous Provisions.........................................................30
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(a) Acknowledgment................................................................30
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(b) Notices.......................................................................30
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(c) Severability..................................................................31
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(d) Governing Law.................................................................31
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(e) Publicity.....................................................................31
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(f) Captions and Section Headings.................................................31
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(g) Amendments and Waivers........................................................32
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(h) Successors and Assigns........................................................32
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(i) Expenses......................................................................32
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(j) Entire Agreement..............................................................32
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(k) Exhibits......................................................................32
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(l) Further Assurances............................................................32
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(m) Condition to Effectiveness.................................................................... 32
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(n) Counterparts.................................................................................. 32
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(o) Attorneys' Fees............................................................................... 33
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(p) Disclosure Generally.......................................................................... 33
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13. Definitions...................................................................................... 33
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(a) Definitions................................................................................... 33
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(b) Other Definitional Provisions................................................................. 39
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EXHIBITS
EXHIBIT A SCHEDULE OF PURCHASERS..................................................................A-1
EXHIBIT B FORM OF CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES C
PREFERRED STOCK OF IFX CORPORATION......................................................B-1
EXHIBIT C SCHEDULE OF EXCEPTIONS..................................................................C-1
EXHIBIT D FORM OF OPINION OF COMPANY COUNSEL......................................................D-1
EXHIBIT E FORM OF THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT...............................E-1
EXHIBIT F FORM OF SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT.......................F-1
EXHIBIT G FORM OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF IFX CORPORATION................G-1
EXHIBIT H FORM OF AMENDED CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES A
PREFERRED STOCK OF IFX CORPORATION......................................................H-1
EXHIBIT I FORM OF AMENDED CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES B
PREFERRED STOCK OF IFX CORPORATION......................................................I-1
EXHIBIT J FORM OF TUTOPIA PUT AGREEMENT...........................................................J-1
EXHIBIT K COMMITMENT LETTER.......................................................................K-1
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IFX CORPORATION
SERIES C CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
This Purchase Agreement is made and entered into as of the 11th day of
October, 2001, by and among IFX Corporation, a Delaware corporation (the
"Company") and each Person listed on the Schedule of Purchasers attached as
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Exhibit A hereto (the "Schedule of Purchasers") who executes this Agreement as a
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Purchaser (such Persons are referred to in this Agreement, collectively, as the
"Purchasers" and individually, as a "Purchaser") and International Technology
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Investments, LC, a Nevada limited liability company ("ITI"), Xxxxxxx Xxxxxx,
individually ("Shalom"), Xxxx Xxxxxxxxxx, individually ("Eidelstein"), and Xxx
X. Xxxxx ("Xxxxx") only with respect to Section 12(q) hereof. Unless defined
elsewhere herein, capitalized and other defined terms shall have the meanings
specified in Section 13.
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RECITALS
The Company desires to sell to the Purchasers, and the Purchasers
desire to purchase from the Company such number of shares of Series C
Convertible Preferred Stock set forth in Section 2 hereof, all on the terms and
conditions set forth herein.
Simultaneously with the execution and delivery of this Agreement, the
Requisite Stockholders have executed and delivered a Voting Agreement whereby
they agreed to consent to certain of the transactions contemplated hereby.
AGREEMENT
In consideration of the premises and the mutual covenants, agreements,
hereinafter set forth, the parties to this Agreement agree as follows:
1. Authorization of the Securities; Nature of Agreement.
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(a) Series C Preferred Stock. The Company has authorized the
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issuance pursuant to the terms and conditions of this Agreement of shares of its
Preferred Stock, $1.00 par value per share, to be designated as Series C
Convertible Preferred Stock (the "Series C Preferred Stock"), as provided
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herein. The shares of Series C Preferred Stock have all of the rights,
preferences, privileges and restrictions set forth in the Certificate of
Designation, Number, Powers, Preferences and Relative, Participating, Optional
and Other Rights of Series C Convertible Preferred Stock of IFX Corporation (the
"Series C Certificate"), a copy of which, in the form to be filed with the
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Secretary of State of the State of Delaware, is attached as Exhibit B hereto.
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(b) Nature of Agreement. This Agreement insofar as it relates to
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the acquisition of a particular number of shares of the Series C Preferred Stock
by any Purchaser is a separate agreement between that Purchaser and the Company.
But this Agreement insofar as it
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relates to the rights, duties and remedies of the Company and the Purchasers,
from and after the Closing, shall be deemed to be one Agreement.
2. Sale and Purchase of Series C Preferred Stock. (a) Subject to the terms
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and conditions set forth in this Agreement, the Company agrees to sell to the
Purchasers, and each of the Purchasers severally and not jointly agrees to
purchase from the Company, the number of shares of Series C Preferred Stock
indicated opposite such Purchaser's name on the Schedule of Purchasers (the
"Shares"), in such proportions between shares of Class I Series C Preferred
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Stock and Class II Series C Preferred Stock as each such Purchaser shall
determine, for a purchase price set forth in Section 3. The sale and purchase of
the Series C Preferred Stock shall take place at the offices of Xxxx Xxxxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City
time, at a closing (the "Closing") to occur as soon as practicable after
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satisfaction or waiver of the conditions to Closing set forth in Sections 7 and
8. At the Closing, the Company will deliver to each Purchaser the Series C
Preferred Stock to be purchased by such Purchaser in the form of a single
certificate (or such greater number of certificates representing such shares as
such Purchaser may request), each dated the date of Closing and registered in
such Purchaser's name (or in the name of such Purchaser's nominee(s)), against
delivery by such Purchaser of the purchase price set forth in Section 3. If at
the Closing, the Company shall fail to tender to any Purchaser the Series C
Preferred Stock to be purchased by such Purchaser, or any of the conditions
specified in Section 7 shall not have been fulfilled to the satisfaction of such
Purchaser, such Purchaser shall, at its election, be relieved of all further
obligations under this Agreement, without thereby waiving any other rights such
Purchaser may have by reason of such failure or such nonfulfillment.
3. Purchase Price. At the Closing, each Purchaser shall pay a purchase
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price for the Shares to be purchased by it hereunder in an amount equal to the
sum of (a) the cash consideration indicated opposite such Purchaser's name on
the Schedule of Purchasers plus (b) the transfer and assignment to the Company
of the shares of Common Stock owned by such Purchaser indicated opposite such
Purchaser's name on the Schedule of Purchasers. The cash portion of the purchase
price shall be payable by the payment to the Company or its order of immediately
available funds and/or conversion of indebtedness (subject to the following
sentence) in the aggregate amount of such cash portion of the purchase price. In
the event that a portion of such cash consideration is paid by a Purchaser in
the form of conversion of indebtedness, then (i) the principal amount of such
converted indebtedness shall be applied toward the payment of such cash portion
of the purchase price, and (ii) any accrued interest on such converted
indebtedness shall be applied to the purchase, at a purchase price equal to
Three Dollars ($3.00) per share, of shares of Series C Preferred Stock in
addition to the number of Shares to be purchased by such Purchaser as set forth
on the Schedule of Purchasers. In addition, at the Closing, each Purchaser shall
surrender the certificate or certificates representing the shares of Common
Stock owned by such Purchaser indicated opposite such Purchaser's name to be
assigned to the Company as part of the purchase price for the Shares, which
certificates shall be accompanied by appropriate stock powers.
4. Representations and Warranties of the Company. Subject to the
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exceptions set forth in the Schedule of Exceptions attached as Exhibit C hereto
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(the "Schedule of Exceptions"), the Company represents and warrants to each of
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the Purchasers that:
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(a) Organization and Good Standing. The Company and each of its
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Subsidiaries is an entity duly organized and validly existing under and by
virtue of the laws of its state or country of incorporation and is in good
standing under such laws (to the extent the concept of good standing is
recognized under the laws of such jurisdictions). The Company and each of its
Subsidiaries is qualified, licensed or domesticated as a foreign corporation in
all jurisdictions where the failure to be so qualified, licensed or domesticated
would have a Material Adverse Effect. The Company and each of its Subsidiaries
has full power and authority (corporate and other) to own, lease and operate its
properties and assets and to operate the Business as currently being operated.
(i) Except as set forth on the Schedule of Exceptions, the
minute books of the Company and each of its Subsidiaries, as previously made
available to the Purchasers, contain accurate records of all meetings of and
resolutions of, or written consents by, its shareholders and its board of
directors (or committees thereof) since the date of its incorporation.
(b) Authorization. (i) The Company has all requisite right,
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power and authority (corporate or otherwise) to execute and deliver this
Agreement and each of the other agreements and instruments referred to herein to
be entered into by the Company at or prior to a Closing (including without
limitation the Certificate) in connection with the consummation of the
transactions contemplated by this Agreement (the "Other Agreements") and to
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perform its obligations and consummate all of the transactions contemplated
hereunder and thereunder, including the issuance of the shares of Series C
Preferred Stock to be acquired by each Purchaser at the Closing. All corporate
proceedings have been taken and all corporate authorizations have been secured
which are necessary on the part of the Company and each of its Subsidiaries to
authorize the execution, delivery and performance of this Agreement and each of
the Other Agreements.
(ii) This Agreement has been duly executed and delivered
and constitutes, and each of the Other Agreements when executed and delivered by
the Company, will constitute, legal, valid and binding obligations of the
Company, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency or other similar laws affecting the
enforceability of creditors' rights generally and court decisions with respect
thereto, and the discretion of courts in granting equitable remedies.
(iii) The shares of the Series C Preferred Stock to be
acquired by each Purchaser at the Closing have been duly authorized and, when
delivered, will be duly and validly issued and outstanding, fully paid and
nonassessable, and will be free of Encumbrances. The Common Stock of the Company
issuable upon conversion of the Series C Preferred Stock (the "Conversion
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Shares") (i) has been duly authorized, (ii) has been reserved for issuance upon
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conversion of the Series C Preferred Stock, and (iii) when issued, will be duly
and validly issued and outstanding, fully paid and nonassessable and will be
free of Encumbrances.
(c) Capital Stock. (ii) (A) On the date hereof, the authorized
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capital stock of the Company consists of (1) 50,000,000 shares of Common Stock,
par value $.02 per share (the "Common Stock"), of which 14,401,495 shares of
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Common Stock are issued and outstanding,
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and (2) 10,000,000 shares of Preferred Stock, par value $1.00 per share (the
"Preferred Stock"), of which 2,030,869 shares of Preferred Stock have been
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designated Series A Preferred Stock, all of which shares of Series A Preferred
Stock are issued and outstanding ("Series A Preferred Stock"), and of which
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4,418,262 shares of Preferred Stock have been designated Class I Series B
Preferred Stock, 3,994,127 of which shares of Class I Series B Preferred Stock
are issued and outstanding, and of which 424,135 shares of Preferred Stock have
been designated Class II Series B Preferred Stock, all of which shares of Class
II Series B Preferred Stock are issued and outstanding (together with the Class
I Series B Preferred Stock, "Series B Preferred Stock"); and (B) immediately
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after the Closing, the authorized capital of the Company will consist of (1)
60,000,000 shares of Common Stock, of which 14,401,495 shares of Common Stock
will be issued and outstanding, and (2) 20,000,000 shares of Preferred Stock, of
which (x) 2,030,869 shares of Preferred Stock will have been designated as
Series A Preferred Stock, all of which shares will be issued and outstanding;
(y) 4,842,397 shares of Preferred Stock will have been designated Series B
Preferred Stock, 4,418,262 of which shares will be issued and outstanding; and
(z) a number of shares of Preferred Stock will be designated Series C Preferred
Stock which is equal to the sum of 3,833,333 plus the total number of additional
shares, if any, purchased by the Purchasers at the Closing by reason of accrued
interest on converted indebtedness as provided in Section 2, all of which shares
will be issued and outstanding.
(ii) Except as set forth in the Schedule of Exceptions, the
Company has not (A) issued or granted, (B) agreed to issue or grant, or (C)
caused or permitted any of its Subsidiaries to issue or grant, any option,
warrant, right or other Convertible Security which affords any Person the right
to purchase or otherwise acquire any shares of the Common Stock, the Series A
Preferred Stock, the Series B Preferred Stock or the Series C Preferred Stock,
or any other security of the Company or any of its Subsidiaries ("Capital Stock
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Agreements"). Neither the Company nor any of its Subsidiaries is subject to any
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obligation (contingent or otherwise) to purchase or otherwise acquire or retire
any shares of its securities.
(iii) All of the issued and outstanding securities of the
Company and its Subsidiaries have been duly authorized and validly issued, are
fully paid, nonassessable and free of preemptive rights (other than those
preemptive rights set forth in the Schedule of Exceptions) and other
Encumbrances, and were issued in compliance with all Applicable Laws, including
those regulating the offer, sale or issuance of securities.
(iv) Except as set forth in the Schedule of Exceptions, no
Person has any rights of first refusal or similar rights or any preemptive
rights in connection with the issuance of the shares of Series C Preferred Stock
or Conversion Shares, or with respect to any future offer, sale or issuance of
securities by the Company, any of its Subsidiaries or any of its stockholders,
other than as provided in this Agreement or after the Closing, the Registration
Rights Agreement, the Stockholders Agreement, the Series A Certificate, the
Series B Certificate or the Series C Certificate.
(v) The Schedule of Exceptions sets forth a true and
correct list of (1) to the knowledge of the Company, each of the Company's
shareholders who owns, of record or beneficially, more than 5% of the Common
Stock on a Fully Diluted Basis, indicating the number and class of shares owned
by each shareholder, and such shareholder's percentage
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interest in the Company and percentage interest in the Common Stock on a Fully
Diluted Basis, and (2) each of the holders of Convertible Securities, the number
and type of Convertible Securities owned by such holder and to the knowledge of
the Company, such holder's percentage interest in the Company and percentage
interest in the Common Stock on a Fully Diluted Basis.
(vi) True and correct copies of all documents relating to the
issuance and terms of all outstanding shares of capital stock and other equity
securities of the Company and all Convertible Securities of the Company issued
after November 10, 1998 have been provided to the Purchasers. Except as set
forth in the Schedule of Exceptions, each option issued to purchase capital
stock or other equity securities of the Company granted under the Stock Option
Plan or otherwise was granted pursuant to an option agreement in substantially
the form provided to the Purchasers.
(d) Subsidiaries. (iii) The name of each Subsidiary of the Company, the
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jurisdiction of its incorporation and the ownership of capital stock of its
shareholders are listed in the Schedule of Exceptions. Except as set forth on
the Schedule of Exceptions, all of the issued and outstanding shares of capital
stock of each Subsidiary are 100% owned, beneficially and of record, by the
Company (other than a single share (if any) of such Subsidiary held by a nominee
of the Company in order to comply with Applicable Law), are validly issued,
fully paid and nonassessable, and free from Encumbrances.
(ii) Except for the capital stock or other securities of the
Subsidiaries listed on the Schedule of Exceptions, the Company does not own,
directly or indirectly, beneficially or of record, or have any obligations to
purchase or otherwise acquire, any capital stock or other securities of any
Person. Except as set forth on the Schedule of Exceptions, none of the
Subsidiaries owns, directly or indirectly, beneficially or of record, or has any
obligation to acquire any capital stock or other securities of any Person.
(e) Compliance With Material Instruments. Except as set forth on the
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Schedule of Exceptions, the Company and each Subsidiary is not in violation of
(i) any Applicable Law, (ii) any term of its Certificate of Incorporation or
Bylaws (or equivalent documents in its jurisdiction of organization), or (iii)
any Contract to which it is subject and which is material to the Business,
including any Capital Stock Agreement (collectively, the "Material
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Instruments"). The execution and delivery by the Company of this Agreement and
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the Other Agreements, the performance by the Company of its obligations
hereunder and thereunder and the consummation by the Company of the transactions
contemplated hereby and thereby, including the issuance of the Series C
Preferred Stock, the issuance of the Conversion Shares and the taking of any
other action contemplated by this Agreement or the Other Agreements, will not
(i) result in (A) any violation of any Applicable Law, or (B) any violation of
any term of the Company's or any of its Subsidiaries' Certificate of
Incorporation or Bylaws (or equivalent documents), or (C) any violation of or
any conflict with or a default (with or without notice, lapse of time or both)
under any of the Material Instruments, which violation, conflict or default
might reasonably be expected to have a Material Adverse Affect on the ability of
the Company or any of its Subsidiaries to satisfy its obligations under this
Agreement, any of the Other Agreements or any of the Material Instruments, (ii)
accelerate or constitute an event entitling the other party to any Material
Instrument to accelerate the obligations of such Material Instrument,
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or to increase the rate of interest presently in effect or to entitle the other
party to such Material Instrument to any other right resulting from a
change-in-control or otherwise, or (iii) result in the creation of any
Encumbrance upon any of the material properties or assets of the Company or any
of its Subsidiaries. The performance by the Company or any of its Subsidiaries
of its obligations and the enforcement of its rights under the Material
Instruments will not have a Material Adverse Effect.
(f) Good Title. Except as set forth on the Schedule of Exceptions, the
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Company and each of its Subsidiaries has good title to, a valid license to, or a
valid leasehold interest in, the properties and assets used by it, in each case
free and clear of all Encumbrances, except liens for current property taxes not
yet due and payable and any immaterial workmen's, repairmen's, warehouseman's
and carriers' liens arising in the ordinary course of business. The buildings,
equipment and other tangible assets of the Company and each of its Subsidiaries
are in all material respects in good operating condition and repair, free from
any known defects and are usable in the ordinary course of the Business; and the
Company and each of its Subsidiaries owns, or has a valid leasehold interest in
or license to use, all assets necessary for the conduct of the Business as
presently conducted.
(g) Litigation. (iv) Except as set forth on the Schedule of Exceptions,
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there are no actions, proceedings, investigations (civil, criminal, regulatory
or otherwise), arbitrations, claims, demands or grievances ("Actions") pending
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against the Company or any Subsidiary (or, to the best knowledge of the Company,
any basis therefor or threat thereof).
(ii) There are no judgments unsatisfied against the Company or any
Subsidiary or consent decrees or injunctions to which the Company, any
Subsidiary or any assets of the Business are subject.
(h) Tax Matters. Except as set forth in the Schedule of Exceptions, the
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Company and each of its Subsidiaries (i) has timely filed (including extensions)
all Tax returns that are required to have been filed by it with all appropriate
Governmental Authorities (and all such Tax returns are true, complete and
correct in all material respects), (ii) has timely paid all Taxes owed by it or
withheld and remitted to the appropriate Governmental Authority all Taxes which
it is obligated to withhold and remit from amounts owing to any employee
(including social security taxes), creditor, customer or third party, and (iii)
has not waived any statute of limitations with respect to Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency. The assessment
of any additional Taxes for periods for which returns have been filed is not
expected to exceed the recorded liability therefor, and there are no material
unresolved questions or claims concerning the Tax liability of the Company or
any Subsidiary. There is no pending dispute with, or notice from, any taxing
authority relating to any of the Tax returns which, if determined adversely to
the Company or any Subsidiary, would result in the assertion by any taxing
authority of any valid deficiency in a material amount for Taxes, and to the
knowledge of the Company, there is no proposed liability for a deficiency in any
Tax to be imposed upon the properties or assets of the Company, the Business or
any Subsidiary. There are no federal, state, local or foreign Tax Encumbrances
on any asset of the Company, the Business or any Subsidiary (other than
Encumbrances for Taxes not yet due and payable).
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(i) Registration Rights. Except as set forth in the Schedule of
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Exceptions and the Registration Rights Agreement, the Company is not a party to
any agreement or commitment which obligates the Company to register under the
Securities Act of 1933, as amended (the "Securities Act"), or any other
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securities law of any jurisdiction, any of its presently outstanding securities
or any of its securities which may hereafter be issued.
(j) Offering. Subject to the accuracy of the Purchasers' representations
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in Section 5 of this Agreement, the offer, issuance and sale of the Series C
Preferred Stock hereunder constitute, and will constitute, transactions exempt
from the registration and prospectus delivery requirements of Section 5 of the
Securities Act and analogous provisions of the Applicable Laws of all other
jurisdictions, and the Company has obtained (or is exempt from the requirement
to obtain) all qualifications, permits and other consents required by all
Applicable Laws governing the offer, sale, issuance or conversion of securities.
(k) Insurance. The Schedule of Exceptions contains a true, complete and
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correct list of all insurance policies covering the Business and the respective
material assets of the Company and each Subsidiary. The Company and each
Subsidiary maintains in full force and effect such insurance policies. Neither
the Company nor any Subsidiary is in default with respect to any provision
contained in any insurance policy. Neither the Company nor any Subsidiary has
failed to give any notice under any insurance policy in due time.
(l) Certain Transactions. Except as set forth in the Schedule of
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Exceptions, neither the Company nor any of its Subsidiaries is indebted, either
directly or indirectly, to any of the officers, directors, advisory board
members or stockholders of the Company or any Subsidiary, or to any Affiliates
of the foregoing, in any amount whatsoever, other than for payment of salary for
services rendered and reasonable expenses; except as set forth on the Schedule
of Exceptions, none of said officers, directors, advisory board members,
stockholders and their respective Affiliates are indebted to the Company or any
Subsidiary or, to the knowledge of the Company, have any direct or indirect
ownership interest in, or any contractual relationship with, any Affiliates of
the Company or any Subsidiary or with any Person with which the Company or any
Subsidiary has a business relationship, or any Person which, directly or
indirectly, competes with the Company or any Subsidiary. Except as set forth in
the Schedule of Exceptions, no such officer, director, advisory board member or
stockholder, nor any of their respective Affiliates, is, directly or indirectly,
a party to or otherwise an interested party with respect to any contract,
agreement, arrangement or understanding with the Company or any Subsidiary other
than agreements for the issuance of stock options to any such Person under the
Stock Option Plan.
(m) Contracts. (v) Except as expressly contemplated by this Agreement,
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or as set forth in the Schedule of Exceptions, the Company and each of its
Subsidiaries is not, and as of each of the Closings the Company and each of its
Subsidiaries will not be, a party to, or bound by, and none of their respective
assets is or will be subject to, any written or oral agreement, contract,
commitment, order, license, lease or other instrument and arrangement of the
types described below (the "Contracts"):
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(A) any pension, profit sharing, stock option, employee stock
purchase or other plan providing for deferred, incentive or other
compensation to employees, any other employee benefit plan, or any
contract with any labor union;
(B) any contract for the employment or personal services of any
officer, individual employee or other person or entity on a full-time,
part-time, consulting, advisory or other basis providing annual
compensation in excess of $125,000 or which, in any way, restricts or
limits the right of the Company or any Subsidiary to terminate such
contract at will;
(C) any loan agreement, indenture, letter of credit, security
agreement, mortgage, pledge agreement, deed of trust, bond, note, or other
agreement relating to the borrowing of money in excess of $125,000 or to
the mortgaging, pledging, transferring of a security interest, or
otherwise placing an Encumbrance on any material asset or material group
of assets (whether tangible or intangible) of the Company or any
Subsidiary;
(D) any guarantee of the payment or performance of any Person in
excess of $125,000; any agreement to indemnify any Person or act as a
surety for an amount in excess of $125,000; any other agreement to be
contingently or secondarily liable for the obligations of any Person; or
any "keep well" or similar credit support arrangements;
(E) any lease or agreement under which it is the lessee of or
holds or operates any property, real or personal, owned by any other party
requiring annual payments in excess of $125,000;
(F) any contract or agreement or group of related agreements with
the same party or any group of affiliated parties which requires or may in
the future require an aggregate payment by or to the Company or any
Subsidiary in excess of $125,000;
(G) any contract or agreement prohibiting it from freely engaging
in any business or competing anywhere in the world;
(H) any material licenses, licensing arrangements and other
similar contracts providing in whole or in part for the use by a third
party of, or limiting the use by the Company or any Subsidiary of, any
Intellectual Property;
(I) any brokerage or finder's agreements relating to this
Transaction;
(J) any joint venture, partnership and similar contracts involving
a sharing of profits or expenses (including joint development and joint
marketing contracts);
-13-
(K) any asset purchase agreements, stock purchase agreements
and other acquisition or divestiture agreements, including any agreements
relating to the sale, lease or disposal of any assets of the Company or
any of its Subsidiaries for consideration in excess of $50,000 or
involving continuing indemnity or other obligations;
(L) any material sales agency, marketing or distributorship
agreements;
(M) any contracts which contain "take or pay" provisions;
(N) any contracts, agreements or arrangements regarding
pre-emptive rights, rights of first refusal, put or call rights or
obligations, anti-dilution rights or other restrictions on or with respect
to the issuance, sale or redemption of the capital stock of the Company or
any of its Subsidiaries;
(O) any contracts, agreements or arrangements regarding the
rights, obligations, restrictions on or with respect to the voting of any
of the capital stock of the Company or any of its Subsidiaries or the
registration of such stock for offering to the public pursuant to the
Securities Act; and/or
(P) any other contract, agreement or commitment not the
subject matter of clauses (A) through (P) above which is or could be
reasonably expected to be material to the Company, any Subsidiary or the
Business.
(ii) The Company and each of its Subsidiaries has performed all
obligations required to be performed by it to date and is not in material
default under, or in material breach of, or in receipt of any claim of material
default under or material breach of, any agreement to which it is a party or to
which any of its assets is subject; the Company has no present expectation or
intention of not fully performing, or of permitting any of its Subsidiaries not
to perform fully, all such obligations; and the Company does not have any
knowledge of any material breach or anticipated material breach by the other
parties to any contract or commitment to which it or any of its Subsidiaries is
a party or to which any of its or their assets is subject.
(iii) To the knowledge of the Company, none of the officers of the
Company or any Subsidiary is a party to any oral or written contract which
prohibits, restricts or limits his or her performance of his or her duties or
the fulfillment of his or her obligations as an employee and an officer of the
Company or any Subsidiary.
(iv) Each Contract is a legal, valid, binding and enforceable
obligation of the Company or a Subsidiary, and to the knowledge of the Company,
the other parties thereto, subject to applicable bankruptcy, insolvency, or
other similar laws affecting the enforceability of creditors' rights generally
and court decisions with respect thereto, and the discretion of courts in
granting equitable remedies. Except as set forth in the Schedule of Exceptions,
no Consent of any Person is required under any Contract as a result of or in
connection with the execution and delivery by the Company or any of its
Subsidiaries or the performance by the Company or any of
-14-
its Subsidiaries of its obligations hereunder or under any of the Other
Agreements or the consummation by the Company or any of its Subsidiaries of the
transactions contemplated hereby or thereby.
(n) Governmental Consents. No Governmental Approvals or Consents are
---------------------
required to be obtained under Applicable Law or the Certificate of Incorporation
and By-Laws of the Company in connection with (i) the execution, delivery or
performance by the Company of this Agreement or any of the Other Agreements or
the consummation of any transaction contemplated hereby or thereby, and (ii) the
carrying on of the Business as it is presently carried on and is contemplated to
be carried on, except as have been obtained or accomplished and except for
immaterial Governmental Approvals or Consents, except as set forth on the
Schedule of Exceptions. All such Governmental Approvals and Consents have been
duly obtained or accomplished and are in full force and effect and the Company
and its Subsidiaries are in compliance in all material respects with each such
Governmental Approval and Consent.
(o) Officers, Employees and Labor. (vi) Except as set forth in the
-----------------------------
Schedule of Exceptions, the Company and each of its Subsidiaries has complied in
all material respects with all Applicable Laws relating to the employment of
labor, including provisions thereof relating to wages, hours, social welfare,
equal opportunity and collective bargaining. The Company does not have any
material labor relations problems. All the employment agreements entered into
between the Company or any Subsidiary, on the one hand, and their respective
employees, on the other hand, are in full force and effect.
(ii) The Schedule of Exceptions contains a list of all officers
of the Company and each of its Subsidiaries and all other current employees and
consultants whose current annual salary or rate of compensation (including
bonuses, commissions and inventive compensation) is $125,000 or more, together
with their current job titles or relationship to the Company or its
Subsidiaries. None of the Persons referred to above, nor any other employee or
consultant of the Company and its Subsidiaries, has notified the Company or such
Subsidiary that such Person will cancel or otherwise terminate such Person's
relationship with the Company or such Subsidiary, or is being terminated by the
Company or such Subsidiary.
(iii) To the Company's knowledge, none of the officers or
employees of the Company or any of its Subsidiaries is in breach of any covenant
or agreement with any previous employer or other Person with regard to (A)
restrictions on competition with the business of such previous employer or other
Person, (B) solicitation of the employees of such previous employer or other
Persons, or (C) non-disclosure of the confidential or proprietary information of
such previous employer or other Person.
(iv) Except as set forth on the Schedule of Exceptions, the
Company and its Subsidiaries do not have any Benefit Plans. The Company has
delivered to the Purchasers true, correct and complete copies of all documents,
summary plan descriptions, insurance contracts, third party administration
contracts and all other documentation created to embody all Benefit Plans, plus
descriptions of any Benefit Plans that have not been reduced to writing.
-15-
(v) Except as set forth on the Schedule of Exceptions and for
required contributions or benefit accruals for the current plan year, no
material liability has been or is expected to be incurred by the Company under
or pursuant to any Applicable Law relating to Benefit Plans and, to the best
knowledge of the Company, no event, transaction or condition has occurred or
exists that could result in any such liability to the Company or any of its
Subsidiaries or, following the Closing, the Company, its Subsidiaries, the
Purchasers or any such Benefit Plan.
(vi) Except as set forth on the Schedule of Exceptions, each of
the Benefit Plans listed in the Schedule of Exceptions is and has at all times
been in compliance in all material respects with all applicable provisions of
Applicable Laws.
(vii) Except as specifically set forth in the Schedule of
Exceptions, the execution and performance of the transactions contemplated by
this Agreement will not (either alone or upon the occurrence of any currently
planned additional or subsequent event) constitute an event under any Benefit
Plan or individual agreement that will or may result in any payment (whether of
severance pay or otherwise), acceleration, vesting or increase in material
benefits with respect to any employee, former employee, consultant, agent or
director of the Company or any Subsidiary.
(viii) With respect to all Benefit Plans which are funded, or
are required by Applicable Law to be funded, the present value of all accrued
benefits (vested and non-vested) of each such Benefit Plan as of the date of
Closing, will not exceed the fair market value of the assets of each such
Benefit Plan as of the date of Closing.
(p) Compliance with Laws. Except as set forth on the Schedule of
--------------------
Exceptions, the Company and each of its Subsidiaries is not, in any material
respects, in violation of any Applicable Laws and has not received notice of any
such violation.
(q) Intellectual Property. Except as set forth in the Schedule of
---------------------
Exceptions, the Company owns free and clear of all Encumbrances, or possesses
and is validly licensed under, all Intellectual Property material to the
operation of the Business, as conducted in the past, as presently conducted and
as contemplated to be conducted. Any such licenses are in full force and effect.
No past, current, or planned activity, service or product of the Company or any
Subsidiary infringes or conflicts with the Intellectual Property of any third
party. The Company and its Subsidiaries have taken appropriate steps and
measures to establish and preserve ownership of or right to use all Intellectual
Property material to the operation of the Business. The Company owns all rights
in and to any and all Intellectual Property used or planned to be used by the
Company or any Subsidiary, or covering or embodied in any past, current or
planned activity, service or product of the Company or any Subsidiary, which
Intellectual Property was made, developed, conceived, created or written by any
consultant retained, or any employee employed, by the Company or any Subsidiary.
To the Company's knowledge, no former or current employee, and no former or
current consultant, of the Company or any Subsidiary has any rights in any
Intellectual Property made, developed, conceived, created or written by the
aforesaid employee or consultant during the period of his retention by the
Company or the Subsidiary which can be asserted against the Company or any
Subsidiary. The Company owns,
-16-
or has full and unrestricted rights to use, any and all domain names containing
the word "Unete" (including the word "Unete" in combination with any
non-military extension, including Xxxxx.xxx, Xxxxx.xxx and Xxxxx.xxx). The
domain name Xxxxx.xxx does not and will not receive an amount of Internet
traffic intended for any website or webpage of the Company that would have a
Material Adverse Effect. Except as set forth on the Schedule of Exceptions,
neither the Company nor any Subsidiary has knowledge of any Intellectual
Property owned by the Company or any Subsidiary and material to the operation of
the Business which is the subject of any Encumbrance or other agreement granting
rights therein to any third party. Except as set forth on the Schedule of
Exceptions, neither the Company nor any Subsidiary is obligated or under any
liability whatsoever to make any payments by way of royalties, fees or otherwise
to any owner, licensor of, or other claimant to, any Intellectual Property, with
respect to the use thereof or in connection with the conduct of the Business, or
otherwise. The Company and each of its Subsidiaries has taken reasonable steps
to protect, maintain and safeguard the Intellectual Property material to the
Business, including any Intellectual Property for which improper or unauthorized
disclosure would impair its value or validity, and has executed and has had
executed appropriate nondisclosure and confidentiality agreements and made all
appropriate filings and registrations in connection with the foregoing. Neither
the Company nor any Subsidiary has knowledge of any infringement by any third
party of any Intellectual Property of the Company or any Subsidiary. There has
been no judgment, decree, injunction, rule, or order rendered by any
Governmental Authority, and no claim made against the Company or any Subsidiary,
asserting the invalidity, abuse, misuse or unenforceability of any Intellectual
Property material to the operation of the Business, or that would limit, cancel,
or question the validity of, or the rights of the Company or any Subsidiary in,
any Intellectual Property material to the operation of the Business.
(r) Environmental Matters. (vii) The Company has complied in all
---------------------
material respects with all applicable Environmental Laws. There is no pending
or, to the knowledge of the Company, threatened civil or criminal litigation,
written notice of violation, formal administrative proceeding, or investigation,
inquiry or information request by any Governmental Authority, relating to any
Environmental Law involving the Company or any of its Subsidiaries.
(ii) Neither the Company, nor to the knowledge of the Company,
any third party has released any Materials of Environmental Concern into the
environment at any parcel of real property or any facility formerly or currently
owned, leased, operated or controlled by the Company. The Company is not aware
of any releases of Materials of Environmental Concern at parcels of real
property or facilities other than those owned, leased, operated or controlled by
the Company that could reasonably be expected to have an impact on the real
property or facilities owned, leased, operated or controlled by the Company.
(iii) Set forth in the Schedule of Exceptions is a list of all
environmental reports, investigations and audits of which the Company is aware
(whether conducted by or on behalf of the Company or a third party, and whether
done at the initiative of the Company or directed by a Governmental Authority or
other third party) issued or conducted during the five years preceding the date
hereof relating to premises currently or previously owned, leased or operated by
the Company or any of its Subsidiaries. Complete and accurate
-17-
copies of each such report, or the results of each such investigation or audit,
have been provided to the Purchasers.
(s) Certain Practices. Neither the Company nor any Subsidiary (nor any
-----------------
constituent corporation of any merger of which the Company or any Subsidiary is
a surviving corporation, or other Person of which the Company or any Subsidiary
is the surviving corporation) nor any of their respective officers, employees,
directors, representatives or agents has, since the inception of the Business by
the Company or any of its Subsidiaries (or their predecessors): (i) taken any
action in furtherance of any boycott not sanctioned by the United States; (ii)
entered into any contract or agreement to conduct any transaction with any
Governmental Authority, agent, representative or resident of, or any Person
based or resident in, any of the following countries: Angola (UNITA); Burma
(Myanmar); Cuba; Iran; Iraq; Libya; North Korea; Sudan; Syria; and the Federal
Republic of Yugoslavia (Serbia and Montenegro); or (iii) knowingly offered,
promised, authorized or made, directly or indirectly, (A) any unlawful payments
under Applicable Laws, or (B) any payments or other inducements (whether or not
unlawful), to any government official, including any official of an entity owned
or controlled by a government, political party or official thereof or any
candidate for political office, with the intent or purpose of: (1) influencing
any act or decision of such official in his official capacity; (2) inducing such
official to do or omit to do any act in violation of the lawful duty of such
official; (3) receiving an improper advantage; or (4) inducing such official to
use his influence with a Governmental Authority to affect or influence any act
or decision of such Governmental Authority; in order to assist the Company or
any Subsidiary in obtaining or retaining business for or with, or directing
business to, any person.
(t) Brokers. No finder, broker, agent, financial advisor or other
-------
intermediary has acted on behalf of the Company or any of its Affiliates in
connection with the offering of the Series C Preferred Stock or the negotiation
or consummation of this Agreement or the Other Agreements or any of the
transactions contemplated hereby or thereby. All such negotiations or the
consummation of this Agreement or the Other Agreements or any of the
transactions contemplated hereby or thereby will not give rise to any valid
claim against the Company, any Subsidiary or any of the Purchasers for any
brokerage or finder's commission, fee or similar compensation.
(u) No Undisclosed Liabilities. Except as set forth on the Schedule of
--------------------------
Exceptions or in the SEC Reports, neither the Company nor any Subsidiary has any
liabilities, obligations, claims, commitments or debts of any nature, whether
known or unknown, whether due or becoming due, or asserted or unasserted
(whether fixed, accrued, absolute, contingent, secured or otherwise). The
Schedule of Exceptions sets forth a true and complete schedule of accrued
liabilities and future payments due with respect to any acquisitions by the
Company or any Subsidiary of any equity securities or assets of any Person.
(v) Disclosure. This Agreement (including the Schedules and Exhibits
----------
hereto) does not contain any untrue statement of any material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein, in light of the circumstances under which they were made, not
misleading. To the Company's knowledge,
-18-
there are no facts that, individually or in the aggregate, would have a Material
Adverse Effect that have not been set forth in this Agreement (including the
Schedule of Exceptions).
(w) SEC Filings. Since January 1, 1997, the Company has timely filed
-----------
all forms, reports and documents with the SEC required to be filed by it
pursuant to the Federal securities laws and the rules and regulations of the SEC
thereunder, all of which complied in all material respects with all applicable
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the SEC thereunder. The above referenced forms, reports and
documents of the Company are sometimes collectively referred to herein as the
"SEC Reports." A true and complete list of the SEC Reports is set forth in the
Schedule of Exceptions. All documents required to be filed as exhibits to the
SEC Reports have been timely filed. None of the SEC Reports, including without
limitation any financial statements or schedules included therein, at the time
filed contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(x) Financial Statements. The consolidated balance sheets and the
--------------------
related consolidated statements of income, stockholders' equity and cash flows
(including the related notes thereto) of the Company and its Subsidiaries
included in the SEC Reports complied as to form in all material respects with
the applicable accounting requirements and published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with GAAP,
applied on a basis consistent with prior periods except as otherwise noted
therein, present fairly the consolidated financial position of the Company and
its Subsidiaries as of their respective dates, and the consolidated results of
their operations and their cash flows for the periods presented therein, and
reflect all adjustments necessary for the fair presentation of results for the
periods presented except as set forth on the Schedule of Exceptions.
(y) Availability and Transfer of Foreign Currency. All requisite
---------------------------------------------
foreign exchange control approvals and other authorizations, if any, by any
Governmental Authority have been validly obtained and are in full force and
effect to assure: (a) the ability of the Company and its Subsidiaries to make
any and all payments necessary to (i) each Purchaser for dividend payments on
the Common Stock and the Series C Preferred Stock, or (ii) any other party in
order to conduct the Business; (b) the ability of the Company's Subsidiaries to
make any and all payments of dividends and other distributions to the Company
and any and all other intercompany payments to or from the Company; and (c) the
availability of dollars to enable each Purchaser to convert its investment to
dollars, if necessary, if such Purchaser liquidates its investment in the Series
C Preferred Stock or the Common Stock.
(z) Absence of Changes. Except as set forth in the Schedule of
------------------
Exceptions, since June 30, 2000, neither the Company nor any Subsidiary has:
(i) suffered any Material Adverse Effect;
(ii) incurred, assumed, guaranteed or discharged any debt, claim,
commitment, obligation or liability, absolute, accrued, contingent or otherwise,
whether due or to
-19-
become due (including any indebtedness for borrowed money), in excess of
$100,000, individually or in the aggregate;
(iii) mortgaged, pledged or subjected to any other Encumbrance,
any material piece of property, business or assets, tangible or intangible;
(iv) sold, transferred, leased to others or otherwise disposed
of any of the assets of the Business, in excess of $100,000, individually or in
the aggregate, or canceled or compromised any debt, claim, commitment,
liability or obligation, or waived or released any right of substantial value,
involving an amount in excess of $100,000, individually or in the aggregate;
(v) received any written notice of termination of any Contract
with required payments thereunder in excess of $100,000;
(vi) suffered any damage, destruction or loss (whether or not
covered by insurance) to property, in excess of $100,000, individually or in the
aggregate;
(vii) transferred or granted any rights under, or entered into
any settlement regarding the breach, misappropriation, infringement or violation
of, any Intellectual Property, or modified any existing rights with respect
thereto in a manner involving payments by or to the Business in excess of
$100,000, individually or $100,000 in the aggregate;
(viii) with respect to amounts in excess of $25,000 per year,
made any change in the rate of compensation, commission, bonus or other direct
or indirect remuneration payable, or paid or agreed or made any enforceable oral
promise to pay, conditionally or otherwise, any bonus, incentive, retention or
other compensation, retirement, welfare, fringe or severance benefit or vacation
pay, to or in respect of any employee, distributor or agent;
(ix) made any change in its accounting, auditing or tax
methods, practices or principles;
(x) encountered any labor union organizing activity, had any
actual or threatened employee strikes, work stoppages, slowdowns or lockouts, or
had any material and adverse change in its relations with its employees,
distributors, agents, customers or suppliers;
(xi) entered into any Contract, involving an amount per year in
excess of $100,000, individually or in the aggregate, or paid or agreed to pay
any brokerage or finder's fee, or incurred any severance pay obligations by
reason of, this Agreement or any of the transactions contemplated hereby;
(xii) made any grant of credit to any customer or distributor on
terms or in amounts materially more favorable than had been extended to that
customer or distributor in the past; or
(xiii) taken any action or omitted to take any action that has
resulted or could reasonably be expected to result in the occurrence of any of
the foregoing.
-20-
(aa) Real Property Holding Company. The Company is not a real
-----------------------------
property holding company within the meaning of Section 897(c)(2) of the United
States Internal Revenue Code of 1986, as amended.
(bb) Investment Company Act. The Company is not, nor is it
----------------------
directly or indirectly controlled by or acting on behalf of, any Person that is
an "investment company" within the meaning of the United States Investment
Company Act of 1940, as amended.
(cc) Subchapter S. The Company has not elected to be treated
------------
as a Subchapter S corporation or a collapsible corporation pursuant to Section
1362(a) or Section 341(f) of the United States Internal Revenue Code of 1986, as
amended.
(dd) State Takeover Statutes. The Board of Directors of the
-----------------------
Company has approved this Agreement, the Other Agreements and the transactions
contemplated hereby and thereby and the provisions of any "fair price,"
"moratorium," "control share," "interested stockholders," "affiliated
transaction" or other anti-takeover statute or regulation, and any antitakeover
or other restrictive provisions of the Company's Certificate of Incorporation
are not applicable to the transactions contemplated by this Agreement or the
Other Agreements.
5. Representations and Warranties of the Purchasers. Each
------------------------------------------------
Purchaser severally (and not jointly) represents and warrants to the Company
that:
(a) Investment Intent. The shares of Series C Preferred Stock
-----------------
to be acquired by and issued to the Purchaser pursuant to this Agreement are
being acquired by the Purchaser solely for its own account, for investment
purposes only, and with no present intention of distributing, selling or
otherwise disposing of them.
(b) Sophistication. Such Purchaser is able to bear the
--------------
economic risk of an investment in shares of the Series C Preferred Stock to be
acquired by it pursuant to this Agreement and can afford to sustain a total loss
of such investment, and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
proposed investment and therefore has the capacity to protect its own interests
in connection with the purchase of its respective shares of Series C Preferred
Stock.
(c) Illiquidity. Such Purchaser understands that there is no
-----------
public market for the shares of Series C Preferred Stock to be acquired by it
and that there may never be a public market for such stock, and that even if a
market develops for such stock such Purchaser may have to bear the risk of its
investment in such stock for a substantial period of time.
(d) Accredited Investor. Such Purchaser is an "accredited
-------------------
investor" within the meaning of Regulation D promulgated under the Securities
Act. In addition (but without limiting the effect of the Company's
representations and warranties contained herein), such Purchaser has received
such information as it considers necessary or appropriate for deciding whether
to acquire its respective shares of Series C Preferred Stock.
-21-
(e) Brokers. No finder, broker, agent, financial advisor or
-------
other intermediary has acted on behalf of such Purchaser in connection with the
transactions contemplated by this Agreement or the Other Agreements.
(f) Investment Company Act. No Purchaser is an "investment
----------------------
company" within the meaning of the United States Investment Company Act of 1940,
as amended.
(g) Requisite Power and Authority. Each Purchaser has all
-----------------------------
necessary power and authority to execute and deliver this Agreement and the
Other Agreements to which it is a party and to carry out their provisions. This
Agreement has been duly executed and delivered by each Purchaser, and each of
the Other Agreements when executed and delivered by each Purchaser who is a
party thereto, will constitute the legal, valid and binding obligations of such
Purchaser, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, or other similar laws affecting the enforceability of
creditors' rights generally and court decisions with respect thereto, and the
discretion of courts in granting equitable remedies.
(h) No Conflict. The execution and delivery by each Purchaser
-----------
of this Agreement and the consummation of the transactions contemplated hereby
by each Purchaser will not result in any violation of or default under, any
provision of the organizational documents of such Purchaser, any contract to
which such Purchaser is a party or any applicable law, rule or regulation, which
violation or default could reasonably be expected to (i) affect the validity of
this Agreement or any agreement entered into pursuant hereto, (ii) affect in any
material respect any action taken or to be taken by such Purchaser pursuant to
this Agreement or any agreement entered into pursuant hereto or (iii) have a
material adverse effect on the properties, assets, business or operations of
such Purchaser.
6. Covenants.
---------
(a) Pre-Closing Actions. As promptly as practicable, each of
-------------------
the parties to this Agreement will (i) use commercially reasonable efforts to
take all actions required of such party to do all other things reasonably
necessary, proper or advisable to consummate the transactions contemplated
hereby by the date of the Closing, (ii) file or supply, or cause to be filed or
supplied, all applications, notifications and information required to be filed
or supplied by such party pursuant to Applicable Law in connection with this
Agreement, the issuance of the shares of Series C Preferred Stock pursuant
hereto and the consummation of the other transactions contemplated hereby and by
the Other Agreements; (iii) use all reasonable efforts to obtain, or cause to be
obtained, all Consents (including all Governmental Approvals and any Consents
required under any contract) necessary to be obtained by such party in order to
consummate the transactions contemplated pursuant to this Agreement and the
Other Agreements; and (iv) coordinate and cooperate with the other parties in
exchanging such information and supplying such assistance as may be reasonably
requested by the other parties in connection with any filings and other actions
to be made or taken in order to consummate the transactions contemplated
pursuant to this Agreement and by the Other Agreements.
(b) Covenants Pending Closing. Pending the Closing, neither
-------------------------
the Company nor any Subsidiary will, without the Purchasers' prior written
consent, take any action which
-22-
would result in any of the representations or warranties made by the Company in
this Agreement not being true in any material respect at and as of the time
immediately after such action, or in any of the covenants contained in this
Agreement becoming incapable of performance. The Company will promptly notify
the Purchasers of any action or event of which it becomes aware which has the
effect of making incorrect any of such representations or warranties in any
material respect or which has the effect of rendering any of such covenants
incapable of performance. The giving of such notice shall not relieve the
Company of any liability or the failure of any condition to the obligations of
the Purchasers hereunder.
(c) Stockholder Approval; Proxy Statement.
(i) As promptly as possible after the execution and
delivery of this Agreement, the Company shall cause a meeting of its
stockholders (the "Company Stockholder Meeting") to be held (on a date selected
---------------------------
in consultation with the Purchasers) for the purpose of voting on the approval
of the transactions contemplated by this Agreement, including (i) approval and
adoption of the Amendment to the Certificate, the Series A Certificate and the
Series B Certificate, and (ii) approval of the issuance of the Shares
contemplated hereby (collectively, the "Transactions"). The Board shall
------------
recommend approval and adoption of the Transactions. In connection with the
Company Stockholder Meeting, the Company (x) shall prepare and file with the
SEC, and use its reasonable best efforts to have cleared by the SEC and will
thereafter mail to its stockholders as promptly as practicable a proxy statement
meeting the requirements of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the "Proxy Statement") and all other proxy
---------------
materials relating to the Company Stockholder Meeting, which Proxy Statement
shall include the recommendation of the Board in favor of the Transactions, (y)
shall ensure that all proxies solicited in connection with the Company
Stockholder Meeting are solicited in compliance with all applicable statutes,
laws and regulations, including the rules and regulations promulgated by the
SEC, and (z) shall otherwise comply with Applicable Law in connection with
obtaining the approval of the Company's stockholders in connection with the
transactions contemplated hereby. The Company will provide the Purchasers with a
copy of the preliminary Proxy Statement and all modifications thereto prior to
filing or delivery to the SEC and will consult with the Purchasers in connection
therewith. The Company will notify the Purchasers promptly of any receipt of any
comments from the SEC or its staff and of any request by the SEC or its staff
for amendments or supplements to the Proxy Statement or for additional
information and will supply the Purchasers with copies of all correspondence
between the Company or any of its representatives, on the one hand, and the SEC
or its staff, on the other hand, with respect to the Proxy Statement. If at any
time after the mailing of the Proxy Statement to the Company's stockholders
there shall occur any event that should be set forth in an amendment or
supplement to the Proxy Statement, the Company will promptly prepare and mail to
its stockholders such an amendment or supplement. The Company will not mail any
Proxy Statement, or any amendment or supplement thereto, to which the Purchasers
reasonably object. The Company covenants that the Proxy Statement, including any
amendment or supplement thereto shall not contain any untrue statement of a
material fact or omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading.
-23-
(ii) UBS covenants that any information regarding UBS
furnished by it in writing to the Company, specifically for inclusion in the
Proxy Statement (including any amendment or supplement thereto) will not contain
any untrue statement of a material fact or omission of a material fact required
to be stated in the Proxy Statement or any amendment or supplement thereto
necessary to make the statements therein not misleading.
(d) No Solicitation. Except as otherwise expressly
---------------
authorized in this Agreement, from the date hereof to the Closing, the Company
and its Subsidiaries shall (and shall cause their respective employees,
directors, agent and Affiliates to) immediately suspend any existing
negotiations or discussions relating to any sale or other transfer of actual or
beneficial ownership of the Company, any shares of capital stock of the Company
or any Subsidiary, the business or any of the Company's or any Subsidiary's
assets (other than in the ordinary course of business) (collectively, a
"Transaction"), and the Company and its Subsidiaries shall not, and shall cause
-----------
their respective employees, directors, agents and Affiliates to not, (a) solicit
any proposals or offers relating to a Transaction, or (b) negotiate or discuss
with any third party concerning any proposal or offer for a Transaction.
(e) Books and Records. The Company shall, and shall cause
-----------------
each Subsidiary to, maintain books and records accurately disclosing all
payments made.
(f) Post-Closing Covenants. Until the consummation of a
----------------------
Qualified Public Offering, the Company will deliver to each holder of at least
60,000 shares of Series C Preferred Stock and/or Conversion Shares:
(i) as soon as available, but in any event within
ninety (90) days after the end of each fiscal year of the Company, a copy of the
audited consolidated balance sheet of the Company and its Subsidiaries as at the
end of such fiscal year and the related audited statements of consolidated
income, stockholders' equity and changes in financial position of the Company
and its Subsidiaries for such fiscal year, setting forth in each case (after the
first full fiscal year of the Company) in comparative form the figures for the
previous year which shall be prepared in accordance with GAAP applied
consistently throughout the periods reflected therein and reported on without
any qualification as to the scope of the audit by independent certified public
accountants of nationally recognized standing;
(ii) as soon as available but in any event within
thirty (30) days after the end of each calendar month of the Company such
monthly reports as are presented to management of the Company or any of its
Subsidiaries.
(iii) No later than thirty (30) days prior to the start
of each fiscal year, an annual business plan setting forth the anticipated
strategic business activities and goals of the Company and its Subsidiaries,
including an expected annual budget and operating plan (containing projections
of operating results) for the Company and its Subsidiaries.
(iv) As soon as available, but in any event within
forty-five (45) days after the end of each semi-annual fiscal period of the
Company, an update to the monthly
-24-
projections contained in the annual budget, operating plan and business plan
furnished by the Company to the Purchasers pursuant to subsection (iii) above;
(v) promptly upon receipt thereof, copies of all
final reports submitted to the Company or any of its Subsidiaries by independent
certified public accountants in connection with each annual, interim or special
audit of the books of the Company or of any of its Subsidiaries made by such
accountants, including, without limitation, any final comment letter submitted
by such accountants to management in connection with their annual audit;
(vi) promptly upon their becoming available, copies
of all financial statements, reports, notices and proxy statements sent or made
available generally by the Company to all of its security holders in their
capacity as such or by any Subsidiary of the Company to its security holders,
other than the Company, and of all regular and periodic reports and all final
registration statements and final prospectuses, if any, filed by the Company or
any of its Subsidiaries with any securities exchange or with the SEC or any
Governmental Authority succeeding to any of its functions;
(vii) as soon as available, but in any event within
thirty (30) days after the end of each month and within ten (10) days prior to
each regularly scheduled meeting of the Board of Directors of the Company, a
narrative report prepared by the President of the Company detailing the
activities, business developments, operating results and marketing efforts of
the Company and its Subsidiaries since the date of the previous such report
delivered by the Company pursuant to this subsection (vii); and
(viii) such other information reasonably requested by
such Purchaser.
(g) Inspection Rights. Until the consummation of a Qualified
-----------------
Public Offering, each holder of at least 60,000 shares of Series C Preferred
Stock and/or Conversion Shares shall have the right, upon reasonable notice, to
visit and inspect any of the properties of the Company or any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the Company
or any of its Subsidiaries with its directors, officers and employees, all at
such reasonable times and as often as may be reasonably requested; provided,
--------
however, that the Company shall not be obligated to provide access to any
-------
information which it reasonably considers to be a trade secret or similar
confidential information unless the recipient of such information executes a
nondisclosure agreement in a form reasonably acceptable to the Company.
(h) Listing Application. As soon as possible as of the date
-------------------
hereof the Company shall file with Nasdaq a listing application with respect to
the Conversion Shares and use its reasonable best efforts to cause such
application to become effective.
7. Conditions to Obligations of the Purchasers. The obligation of
-------------------------------------------
each of the Purchasers to purchase and pay for the Series C Preferred Stock
which it has agreed to purchase at the Closing and the other obligations of each
of the Purchasers under this Agreement are subject to the fulfillment at or
prior to the Closing of the following conditions, any of which may be waived in
writing in whole or in part by such Purchaser:
-25-
(a) Representations and Warranties. On the date of the
------------------------------
Closing each of the representations and warranties of the Company set forth in
this Agreement that is qualified as to materiality and each of the
representations and warranties set forth in Section 4(c) shall be true and
correct in all respects and each such representation and warranty that is not so
qualified shall be true and correct in all material respects in each case on the
date hereof and at and as of the date of the Closing with the same effect as
though such representations and warranties had been made at and as of the date
of the Closing.
(b) Performance. The Company and each of its Subsidiaries
-----------
shall have performed and complied in all material respects with all agreements
and conditions contained herein required to be performed or complied with by it
prior to or at the Closing.
(c) Absence of Litigation. (i) The consummation of the
---------------------
transactions contemplated hereby shall not have been restrained, enjoined or
otherwise prohibited by any Applicable Law, including any order, injunction,
decree or judgment of any court or other Governmental Authority; (ii) no court
or other Governmental Authority shall have determined that any Applicable Law
makes illegal the consummation of the transactions contemplated hereby and no
Action with respect to the application of any such Applicable Law to such effect
shall be pending or threatened; and (iii) no Action shall be pending or shall
have been threatened which seeks to impose liability upon any of the Purchasers
by reason of the consummation of the transactions contemplated by this
Agreement.
(d) Opinion of Counsel to the Company and Subsidiaries. The
--------------------------------------------------
Purchasers shall each have received the written opinion of counsel for the
Company, in form and substance satisfactory to the Purchasers dated and
delivered as of the date of the Closing, substantially identical in form and
substance to Exhibit D hereto.
---------
(e) Consents. The Company shall have obtained any and all
--------
Consents and Governmental Approvals set forth in the Schedule of Exceptions, and
shall have made any and all filings and declarations necessary or appropriate
(A) for the consummation of the transactions contemplated by this Agreement and
the Other Agreements, (B) pursuant to Applicable Law, and (C) pursuant to
Contracts applicable to the Company in connection with the transactions
contemplated by this Agreement and the Other Agreements.
(f) Assignment of Intellectual Property. All the
-----------------------------------
Intellectual Property set forth in the Schedule of Exceptions shall have been
assigned or licensed, as applicable, to the Company pursuant to instruments in
form and substance satisfactory to the Purchasers, and the written Consent of
any third party necessary for any such assignment or license shall have been
obtained.
(g) Contemporaneous Transactions. Prior to or
----------------------------
contemporaneously with the Closing:
(i) Each of the Stockholders Agreement, Registration
Rights Agreement and the Tutopia Put Agreement shall have been executed and
delivered by each party named on the signature pages thereof.
-26-
(ii) (A) The Company shall have issued to each
Purchaser, and each of the Purchasers shall have acquired, the shares of Series
C Preferred Stock to be acquired at the Closing by such Purchaser under this
Agreement, and (B) the Company shall have delivered to each Purchaser
certificates representing such shares of Series C Preferred Stock acquired
hereunder, each registered in the name of such Purchaser or the name of its
nominee(s).
(iii) The Amendment to the Certificate shall have
been duly filed with the Secretary of State of the State of Delaware. The
Amendment to the Certificate shall be in full force and effect as of the Closing
and shall not have been amended or modified.
(iv) The Series C Certificate shall have been duly
filed with the Secretary of State of the State of Delaware. The Series C
Certificate shall be in full force and effect as of the Closing and shall not
have been amended or modified.
(v) The Series A Certificate shall have been duly
filed with the Secretary of State of the State of Delaware. The Series A
Certificate shall be in full force and effect as of the Closing and shall not
have been amended or modified.
(vi) The Series B Certificate shall have been duly
filed with the Secretary of State of the State of Delaware. The Series B
Certificate shall be in full force and effect as of the Closing and shall not
have been amended or modified.
(vii) The Company shall have obtained the approval of
its stockholders in accordance with Applicable Law and Nasdaq rules and
regulations necessary to consummate the transactions contemplated hereby.
(viii) The composition of the Board shall be in
compliance with the terms of the Stockholders Agreement.
(ix) A Nasdaq listing application with respect to
the Conversion Shares shall have been filed and become effective.
(x) The requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, or any foreign anti-competition,
antitrust or pre-merger notification rules and regulations, if applicable, shall
have been complied with.
(xi) The Company shall have received waivers from
its senior management, optionholders and the other parties to the Material
Instruments, in form and substance satisfactory to the Purchasers, of the
change-in-control provisions contained in their respective employment
agreements, option agreements and/or Material Instruments with respect to the
transactions contemplated hereby.
(h) Closing Papers. The Company shall have delivered to each
--------------
of the Purchasers all of the following:
(i) a certificate signed by the President and Chief
Executive Officer of the Company, dated as of the date of the Closing, stating
that (A) the person signing such
-27-
certificate has made or has caused to be made such investigations as are
necessary to permit him to certify the accuracy of the information set forth
therein, (B) such certificate does not misstate any material fact and does not
omit to state any fact necessary to make the certificate not misleading, and (C)
the other conditions specified in this Section 7 have been satisfied;
---------
(ii) copies (certified by the President, Secretary
or Assistant Secretary of the Company or, if required under Applicable Law, the
applicable Governmental Authority) of the resolutions duly adopted by the Board
of Directors and Stockholders of the Company authorizing the adoption of the
Amendment to the Certificate, Series A Certificate, Series B Certificate, Series
C Certificate and authorizing the execution, delivery and performance of this
Agreement, the Other Agreements and all other agreements referred to in this
Agreement as being executed at or prior to the Closing;
(iii) copies (certified by the Secretary or Assistant
Secretary of the Company) of the Certificate of Incorporation and Bylaws (or
equivalent documents) of the Company and, each of the Subsidiaries listed on
Schedule 7(h)(iii) hereto, in each case as amended through the date of the
------------------
Closing; and
(iv) such other documents relating to the
transactions contemplated by this Agreement as any Purchaser may reasonably
request.
(i) Absence of Material Adverse Effect. No event or series
----------------------------------
of events shall have occurred which has had or could reasonably be expected to
have a Material Adverse Effect.
(j) Proceedings. All corporate and other proceedings of the
-----------
Company taken or to be taken in connection with the transactions contemplated
hereby and by the Other Agreements to be consummated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to each Purchaser.
(k) Legends. Each stock certificate issued by the Company
-------
to stockholders party to the Stockholder Agreement or Registration Rights
Agreement on or prior to the date of the Closing shall have been stamped or
otherwise imprinted with a legend in substantially the form provided in Section
5.12 of the Stockholders Agreement and Section 2 of the Registration Rights
Agreement.
(l) Lucent Indebtedness. The Company's indebtedness to
-------------------
Lucent Technologies, Inc. shall have been restructured in a manner satisfactory
to the Purchasers.
(m) Tutopia Stockholders Agreement. The Tutopia
------------------------------
Stockholders Agreement shall have been duly amended, in a manner satisfactory to
the Purchasers, to permit all transactions contemplated by this Agreement, the
Tutopia Put Agreement and the restructuring of the Company's indebtedness to
Lucent Technologies, Inc. referenced in Section 7(l).
8. Conditions to the Obligations of the Company. The obligations
--------------------------------------------
of the Company with respect to each Purchaser under this Agreement are subject
to the fulfillment on or prior to
-28-
the date of the Closing of the following conditions, any of which may be waived
in writing, in whole or in part, by the Company:
(a) Representations and Warranties. On the date of the
------------------------------
Closing, each of the representations and warranties of such Purchaser set forth
in this Agreement shall be true and correct in all respects on the date hereof
and at and as of the date of the Closing with the same effect as though such
representations and warranties had been made at and as of the date of the
Closing.
(b) Performance. Such Purchaser shall have performed and
-----------
complied in all material respects with all agreements and conditions contained
herein required to be performed by or complied with by it prior to the Closing.
(c) Absence of Litigation. (i) The consummation of the
---------------------
transactions contemplated hereby shall not have been restrained, enjoined or
otherwise prohibited by any Applicable Law, including any order, injunction,
decree or judgment of any court or other Governmental Authority; (ii) no court
or other Governmental Authority shall have determined that any Applicable Law
makes illegal the consummation of the transactions contemplated hereby and no
Action with respect to the application of any such Applicable Law to such effect
shall be pending or threatened; and (iii) no Action shall be pending or shall
have been threatened which seeks to impose liability upon any Company by reason
of the consummation of the transactions contemplated by this Agreement.
(d) The requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, or any foreign anti-competition, antitrust
or pre-merger notification rules and regulations, if applicable, shall have been
complied with.
9. Survival. The representations and warranties of the Company
--------
set forth in Sections 4(a), 4(b), 4(c), 4(d), 4(e), 4(h), 4(j), 4(o), 4(q),
4(t), 4(u) and 4(y) shall survive the Closing indefinitely. All other
representations and warranties of the Company contained herein shall expire at
the second anniversary of the Closing. The representations and warranties of the
Purchasers contained herein shall survive the Closing for a period of two years.
All covenants and agreements contained herein shall survive the Closing
indefinitely.
10. Termination. This Agreement may be terminated:
-----------
(a) by mutual written consent of all of the parties hereto;
or
(b) by any of the Purchasers (with respect to such Purchaser
only) by written notice to the Company if any of the conditions to the Closing
set forth in Section 7 shall not have been fulfilled by 5:00 p.m. New York time
on the date which is 60 days from the date hereof, unless such failure shall be
due to the failure of such Purchaser to perform or comply with any of the
covenants, agreements or conditions hereof to be performed or complied with by
it prior to the Closing.
-29-
11. Effect of Termination. If this Agreement is terminated pursuant
---------------------
to the provisions of Section 10, then this Agreement shall become void and have
no effect, without any liability to any person in respect hereof or of the
transactions contemplated hereby on the part of any party hereto, or any of its
directors, officers, employees, consultants, agents, representatives, advisers,
stockholders or Affiliates except for any liability resulting from such party's
breach or default under this Agreement.
12. Miscellaneous Provisions.
------------------------
(a) Acknowledgment. Each Purchaser acknowledges and agrees
--------------
that it has, independently and without reliance upon any other Purchaser, made
its own evaluation and decision to acquire the Series C Preferred Stock to be
acquired by it pursuant to this Agreement. Each Purchaser further acknowledges
that no other Purchaser has acted as an agent for such Purchaser or the Company
in connection with the acquisition of the shares of Series C Preferred Stock
hereunder and will not be acting as an agent for such Purchaser in connection
with monitoring its investment hereunder.
(b) Notices. All notices, requests, demands, approvals,
-------
consents, waivers or other communications required or permitted to be given
hereunder (each, a "Notice") shall be in writing and shall be (a) personally
------
delivered, (b) transmitted by telecopy facsimile, provided that the original
copy thereof also is sent by pre-paid, first class, registered or certified mail
(return receipt requested) or by next-day or overnight mail (to any United
States address), or by an internationally recognized express delivery service
(to any foreign address), (c) sent by first class, registered or certified mail
(return receipt requested) or by next-day or overnight mail (to any United
States address), postage and charges prepaid, or (d) delivered by an
internationally recognized express delivery service (to any foreign address),
postage and charges prepaid:
(i) if to any Purchaser, at the address and numbers
set forth at the end of this Agreement, marked for attention as therein
indicated;
(ii) if to the Company, to:
IFX Corporation
00000 X.X. 00 Xxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
With a copy to:
Xxxx, Gerber & Xxxxxxxxx
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
-30-
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
or, in each case, at such other address and numbers as may have been furnished
in a Notice by such Person to the other parties. Any Notice shall be deemed
effective or given upon receipt (or refusal of receipt).
(c) Severability. Should any Section or any part of a Section
------------
within this Agreement be rendered void, invalid or unenforceable by any court of
law for any reason, such invalidity or unenforceability shall not void or render
invalid or unenforceable any other Section or part of a Section in this
Agreement.
(d) Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the internal laws of the State of New
York without regard to the principles of conflicts of law thereof. Each party
hereto hereby irrevocably submits to the nonexclusive jurisdiction of the courts
of the State of New York and of the United States of America sitting in the City
of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that the venue thereof may not be appropriate,
that such suit, action or proceeding is improper or that this Agreement or any
of the documents referred to in this Agreement may not be enforced in or by said
courts, and each party hereto irrevocably agrees that all claims with respect to
such suit, action or proceeding may be heard and determined in such a New York
state or federal court. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party in the manner provided in
Section 12(b) and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(e) Publicity. Except as required by Applicable Law or the
---------
requirements of any securities exchange or market (in which case the nature of
the announcement shall be described to the other parties (and the other parties
shall be allowed reasonable time to comment) prior to dissemination to the
public), no party shall make any public announcement in respect of this
Agreement or the transactions contemplated hereby without the prior written
consent of the other parties.
(f) Captions and Section Headings. Captions or section
-----------------------------
headings contained in this Agreement are inserted as a matter of convenience and
for reference purposes only, and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provision hereof.
-31-
(g) Amendments and Waivers. Neither this Agreement nor any
----------------------
term hereof, may be changed, waived, discharged or terminated orally or in
writing, except that any term of this Agreement may be amended and the
observance of any such term may be waived (either generally or in a particular
instance and either retroactively or prospectively) with (but only with) the
prior written consent of the Company and all the Purchasers; provided, however,
-------- -------
that no such amendment or waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent therein.
(h) Successors and Assigns. All rights, covenants and
----------------------
agreements of the parties contained in this Agreement shall, except as otherwise
provided herein, be binding upon and inure to the benefit of their respective
successors and assigns. This Agreement may not be assigned (by operation of law,
contract or otherwise) by any party hereto; provided, however, that each
-------- -------
Purchaser may assign or otherwise transfer its rights and obligations hereunder
to: (i) any Person who acquires shares of Series C Preferred Stock from any
Purchaser or any successor or assign of any Purchaser; or (ii) any
successor-in-interest to substantially all of such Purchaser's or successor's or
assign's business (whether by stock sale, asset sale or otherwise).
(i) Expenses. The Company agrees to pay the reasonable fees
--------
and reimburse the reasonable out-of-pocket expenses, including legal and
accounting fees and expenses, of UBS, upon receipt of the xxxx therefor, in
connection with the transactions contemplated by this Agreement and the Other
Agreements. The Company agrees to reimburse reasonable travel and lodging
expenses of the Purchasers in connection with attendance of the Purchasers'
representatives at meetings of the Board of Directors of the Company and other
visits to the Company associated with exercising or fulfilling any of its rights
or obligations under this Agreement or the Other Agreements.
(j) Entire Agreement. This Agreement (including the
----------------
attached Exhibits and Schedules) contains the entire agreement and understanding
of the parties and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter
hereof.
(k) Exhibits. The Exhibits and Schedules attached to this
--------
Agreement hereby are incorporated into and made a part of this Agreement.
(l) Further Assurances. Each party shall cooperate and take
------------------
such actions as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the Other Agreements and
the transactions contemplated hereby and thereby.
(m) Condition to Effectiveness. This Agreement shall become
--------------------------
effective only upon its execution and delivery by the Company and each
Purchaser.
(n) Counterparts. This Agreement may be executed (including
------------
by facsimile transmission) with counterpart signature pages or in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
-32-
(o) Attorneys' Fees. If any party initiates any legal
---------------
action arising out of or in connection with this Agreement or any of the Other
Agreements, the prevailing party in such legal action shall be entitled to
recover from the other party all reasonable attorneys' fees, expert witness fees
and expenses incurred by the prevailing party in connection therewith.
(p) Disclosure Generally. The Schedule of Exceptions shall
--------------------
be arranged in sections corresponding to the Sections contained in this
Agreement, and the disclosures in any section of the Schedule of Exceptions
shall qualify only (a) the corresponding section of this Agreement, and (b)
other sections of Section 4 to the extent it is clear (notwithstanding the
absence of a specific cross-reference) from a reading of the exception that such
exception is applicable to such other sections. The inclusion of any information
in the Schedules shall not be deemed to be an admission or acknowledgment, in
and of itself, that such information is material or has or would have a Material
Adverse Effect, or is outside the ordinary course of business.
(q) Covenant of Stockholders. At the Closing, (i) each of
------------------------
ITI, Shalom, Eidelstein and Casty will execute and deliver the Stockholders
Agreement, and (ii) each of ITI and Casty will execute and deliver the
Registration Rights Agreement. Each of such parties shall cause their Affiliates
owning shares of Common Stock or Preferred Stock to also execute such
agreements.
(r) Consent of the Purchasers. Pursuant to Section 4(b) of
-------------------------
the Certificate of Designation, Numbers, Powers, Preferences and Relative,
Participating, Optional and Other Rights of Series A Convertible Preferred Stock
of the Company, as currently in effect (the "Existing Series A Certificate") and
Section 4(b) of the Certificate of Designation, Numbers, Powers, Preferences and
Relative, Participating, Optional and Other Rights of Series B Convertible
Preferred Stock of the Company, as currently in effect (the "Existing Series B
Certificate"), the Purchasers, as holders of one hundred percent (100%) of the
outstanding Series A Preferred Stock and one hundred percent (100%) of the
outstanding Series B Preferred Stock, hereby (i) consent to the Company and
Communications Equipment Leasing Corp. ("CELC"), a subsidiary of the Company,
entering into agreements with Lucent Technologies Inc. ("Lucent") to restructure
indebtedness owed to Lucent by the Company and CELC, on the terms and conditions
set forth in the commitment letter attached as Exhibit K hereto (the "Commitment
Letter"), including the issuance by the Company of ten-year warrants to Lucent
to purchase up to 500,000 shares of Common Stock for a purchase price of $1.00
per share ("Warrant Issuance") and (ii) acknowledge that the Warrant Issuance
will be a Permitted Issuance and will not constitute New Securities (as defined
in the Existing Series A Certificate and the Series B Certificate). This Section
12(r) is expressly subject to and conditioned upon the preparation, execution
and delivery of definitive documentation reflecting the transactions
contemplated by the Commitment Letter, including the Warrant Issuance, in form
and substance satisfactory to the Purchasers and shall expire upon expiration of
the Commitment Letter.
13. Definitions.
-----------
(a) Definitions. For the purposes of this Agreement, the
-----------
following terms shall have the meanings specified below:
-33-
"Action" has the meaning set forth in Section 4(g)(i).
------- ---------------
"Additional Shares" has the meaning set forth in Section 2(b).
------------------ ------------
"Affiliate" of a specified Person means (i) any Person that
----------
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person, or (ii)
in the case of a natural Person, such Person's spouse, parent or lineal
descendant (whether by blood or adoption and including stepchildren). "Control"
--------
(including the terms "controlled by" and "under common control with") means the
-------------- --------------------------
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of voting securities, by contract or credit arrangement, as trustee or executor,
or otherwise.
"Agreement" shall mean this Agreement (including the Schedules
----------
and Exhibits hereto), as amended, supplemented or modified from time to time in
accordance with the provisions hereof.
"Amendment to the Certificate" means the Amendment to the
-----------------------------
Certificate of Incorporation of the Company in form and substance identical to
Exhibit G attached hereto.
---------
"Applicable Law" shall mean, with respect to any Person, any
---------------
and all provisions of any constitution, treaty, statute, law, regulation,
ordinance, code, rule, judgment, rule of common law, order, decree, award,
injunction, Governmental Approval, concession, grant, franchise, license,
agreement, directive, guideline, policy, requirement, or other governmental
restriction or any similar form of decision of, or determination by, or any
interpretation or administration of any of the foregoing by, any Governmental
Authority, whether in effect as of the date hereof or thereafter and in each
case as amended, applicable to such Person or its subsidiaries or their
respective assets.
"Benefit Plan" shall mean any plan, agreement or arrangement,
-------------
formal or informal, whether oral or written, whereby the Company or any
Subsidiary provides any benefit to any present or former officer, director or
employee, or dependent or beneficiary thereof, including any profit sharing,
deferred compensation, stock option performance stock, pension, death benefit or
other fringe benefit, employee stock purchase, bonus, severance, retirement,
health or insurance plan.
"Board" shall mean the Board of Directors of the Company.
------
"Business" shall mean the business of the Company and each of
---------
its Subsidiaries.
"Capital Stock Agreements" shall have the meaning set forth in
Section 4(c)(ii).
"Casty" has the meaning set forth in the first paragraph
------
hereof.
"Closing" has the meaning set forth in Section 2.
-------- ---------
"Common Stock" has the meaning set in Section 4(c)(i).
-34-
"Company" has the meaning set forth in the first paragraph
--------
hereof.
"Consent" shall mean any consent, approval, authorization,
--------
waiver, permit, grant, franchise, concession, agreement, license, exemption or
order of, registration, certificate, declaration or filing with, or report or
notice to, any Person, including any Governmental Authority.
"Contracts" has the meaning set forth in Section 4(m)(i).
---------- ---------------
"Contracts Schedule" has the meaning set forth in Section
4(m)(i).
"Conversion Shares" has the meaning set forth in Section
4(c)(iv).
"Convertible Securities" shall mean (i) any rights, options or
-----------------------
warrants issued by the Company or any of its Subsidiaries to acquire Common
Stock or any capital stock of the Company or any Subsidiary, including the
shares of Series C Preferred Stock to be issued hereunder, (ii) any notes,
debentures, shares of preferred stock or other securities, options, warrants or
rights issued by the Company or any of its Subsidiaries, which are convertible
or exercisable into, or exchangeable for, Common Stock or any capital stock of
the Company or any Subsidiary and (iii) any contractual or other obligation
(whether fixed, contingent or otherwise) to issue shares of capital stock or
other securities of the Company or any Subsidiary in connection with the
acquisition of any securities, business or enterprise (including any Internet
Service Provider).
"$" or "dollars" shall mean lawful money of the United States
-- --------
of America.
"Eidelstein" has the meaning set forth in the first paragraph
-----------
hereof.
"Encumbrance" shall mean any lien, encumbrance, hypothecation,
------------
right of others, proxy, voting trust or similar arrangement, pledge, security
interest, collateral security agreement, limitations on voting rights,
limitations on rights of ownership filed with any Governmental Authority, claim,
charge, equities, mortgage, pledge, objection, title defect, title retention
agreement, option, restrictive covenant, restriction on transfer, right of first
refusal, right of first offer, statutory or contractual preemptive right or any
comparable interest or right created by or arising under Applicable Law, of any
nature whatsoever.
"Environmental Law" means any United States federal, state,
------------------
local or foreign law, statute, rule or regulation or the common law relating to
the protection of human health or the environment, including, without
limitation, CERCLA (as defined below), the United States federal Resource
Conservation and Recovery Act of 1976 as amended (the "Recovery Act"), any
-------------
statute, regulation or order pertaining to (i) treatment, storage, disposal,
generation and transportation of industrial, toxic or hazardous materials or
substances or solid or hazardous waste; (ii) air, water and noise pollution;
(iii) groundwater and soil contamination; (iv) the release or threatened release
into the environment of industrial, toxic or hazardous materials or substances,
or solid or hazardous waste, including, without limitation, emissions,
discharges, injections, spills, escapes or dumping of pollutants, contaminants,
or chemicals; (v) the
-35-
protection of wild life, marine life and wetlands, including, without
limitation, all endangered and threatened species; (vi) storage tanks, vessels,
abandoned or discarded barrels, containers and other closed receptacles; (vii)
health and safety of employees and other persons; and (viii) manufacture,
processing, use, distribution, treatment, storage, disposal, transportation or
handling of pollutants, contaminants, toxic or hazardous materials or substances
or oil or petroleum products or solid or hazardous waste. As used herein, the
terms "release" and "environment" has the meaning set forth in the United States
federal Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA").
-------
"Fully Diluted Basis" shall mean, when used with respect to
--------------------
outstanding shares of Common Stock, all shares of Common Stock which would be
outstanding after giving effect to the transactions contemplated by this
Agreement and assuming the exercise, conversion or exchange of all Convertible
Securities.
"GAAP" shall mean United States generally accepted accounting
-----
principles consistently applied.
"Governmental Approvals" shall mean any action, order,
-----------------------
authorization, consent, approval, license, lease, waiver, franchise, concession,
agreement, license, ruling, permit, tariff, rate, certification, exemption of,
filing or registration by or with, or report or notice to, any Governmental
Authority.
"Governmental Authority" shall mean any nation or foreign or
-----------------------
domestic government, any state or other political subdivision thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government (including, without limitation, any
government authority, agency, department, board, commission or instrumentality
of the United States, any State of the United States or any political
subdivision thereof), or any tribunal or arbitrator(s) of competent
jurisdiction, or any self-regulatory organization.
"include", "includes", "included" and "including" shall be
-------- --------- --------- ----------
construed as if followed by the phrase "without being limited to".
"Intellectual Property" shall mean any and all worldwide,
----------------------
international, U.S. and/or foreign, patents, all applications therefor and all
reissues, reexaminations, continuations, continuations-in-part, divisions, and
patent term extensions thereof, inventions (whether patentable or not),
discoveries, improvements, concepts, innovations, industrial models, registered
and unregistered copyrights, copyright registrations and applications, author's
rights, works of authorship (including any text or artwork of any kind, and
software of all types in whatever medium, inclusive of computer programs, source
code, object code and executable code, and related documentation), URLs, web
sites, web pages and any part thereof, technical information, know-how, trade
secrets, drawings, designs, design protocols, specifications for parts and
devices, quality assurance and control procedures, design tools, manuals,
research data concerning historic and current research and development efforts,
including the results of successful and unsuccessful designs, databases and
proprietary data, proprietary processes, technology, engineering, discoveries,
formulae, algorithms, operational procedures, trade names,
-36-
trade dress, trademarks, domain names, and service marks, and registrations and
applications therefor, the goodwill of the business symbolized or represented by
the foregoing, customer lists and other proprietary information and common-law
rights.
"ITI" has the meaning set forth in the first paragraph hereof.
----
"Material Adverse Effect" shall mean any event, circumstance,
------------------------
occurrence, fact, condition, change or effect that is materially adverse to (i)
the Business, operations, results of operations, financial condition, prospects,
properties, assets or liabilities of the Company and its Subsidiaries, taken as
a whole, or (ii) the ability of the Company to perform fully its obligations
hereunder and under the Other Agreements and to consummate the transactions
contemplated hereby and thereby. For the purposes of this Agreement, a currency
devaluation or foreign exchange restriction or other actions by any Governmental
Authority limiting repatriation of capital or any other material change in the
governmental or political climate of the countries in which the Company or its
Subsidiaries carry out the Business shall be deemed to have a Material Adverse
Effect.
"Material Instruments" has the meaning set forth in Section
--------------------- -------
4(e).
----
"Materials of Environmental Concern" means any chemicals,
-----------------------------------
pollutants or contaminants, hazardous substances (as such term is defined under
CERCLA), solid wastes and hazardous wastes (as such terms are defined under the
Recovery Act), toxic materials, oil or petroleum and petroleum products, or any
other material subject to regulation under any Environmental Law.
"Notice" has the meaning set forth in Section 12(b).
-------
"Other Agreements" has the meaning set forth in Section
----------------- -------
4(b)(i).
-------
"Per Share Price" has the meaning set forth in Section 2.
---------------- ---------
"Person" or "person" shall mean any natural person, company,
------- -------
corporation, association, partnership, organization, business, firm, joint
venture, trust, unincorporated organization or any other entity or organization,
and shall include any Governmental Authority.
"Preferred Stock" has the meaning set forth in Section
---------------- -------
4(c)(i).
-------
"Proxy Statement" shall have the meaning set forth in Section
---------------- -------
6(c)(i).
-------
"Qualified Public Offering" shall mean an underwritten public
--------------------------
offering of shares of Common Stock for which the Company has obtained a firm
commitment from one or more underwriter(s) for at least $60 million of Common
Stock and in which the Company receives gross proceeds from the sale of Common
Stock to the public of at least $45 million (before deduction of underwriter's
discounts and commissions), and which values the equity of the Company at no
less than $200 million pre-offering.
-37-
"Registration Rights Agreement" means the Second Amended and
-----------------------------
Restated Registration Rights Agreement to be entered into among the Company and
the stockholders of the Company, in form and substance identical to Exhibit F
---------
hereto.
"Requisite Stockholders" means UBS, Xxxxx, Xxxxxxx Shalom,
----------------------
International Technology Investments, LC and Xxxx Xxxxxxxxxx and their
respective Affiliates holding voting stock of the Company.
"Schedule of Exceptions" has the meaning set forth in the
----------------------
first paragraph of Section 4.
---------
"Schedule of Purchasers" has the meaning set forth in the
----------------------
first paragraph hereof.
"SEC" shall mean the U.S. Securities and Exchange Commission
---
or any successor agency thereto.
"SEC Reports" has the meaning set forth in Section 4(w).
----------- -----------
"Securities Act" has the meaning set forth in Section 4(i).
-------------- -----------
"Series A Certificate" means the Amended Certificate of
--------------------
Designation, Numbers, Powers, Preferences and Relative, Participating, Optional
and Other Rights of Series A Preferred Stock in form and substance identical to
Exhibit H attached hereto.
---------
"Series A Preferred Stock" has the meaning set forth in
------------------------
Section 4(c)(i).
---------------
"Series B Certificate" means the Amended Certificate of
--------------------
Designation, Numbers, Powers, Preferences and Relative, Participating, Optional
and Other Rights of Series B Preferred Stock in form and substance identical to
Exhibit I attached hereto.
---------
"Series B Preferred Stock" has the meaning set forth in
------------------------
Section 4(c)(i).
---------------
"Series C Certificate" has the meaning set forth in Section
-------------------- -------
1(a).
----
"Series C Preferred Stock" has the meaning set forth in
------------------------
Section 1(a).
-----------
"Shalom" has the meaning set forth in the first paragraph
------
hereof.
"Shares" shall have the meaning set forth in Section 2.
------ ---------
"Stock Option Plan" means, collectively, the IFX Corporation
-----------------
Directors Stock Option Plan, the 1998 IFX Corporation Stock Option and Incentive
Plan and the IFX Corporation 2001 Stock Option Plan.
"Stockholders Agreement" means the Third Amended and Restated
----------------------
Stockholders Agreement to be entered into among the Company and the stockholders
of the Company, in form and substance identical to Exhibit E hereto.
---------
-38-
"Subsidiary" means any Person of which equity securities
----------
possessing a majority of (i) the ordinary voting power in electing the board of
directors, or (ii) the outstanding capital stock or other equity interests, are,
at the time as of which such determination is being made, owned by the Company
either directly or indirectly through one or more Subsidiaries.
"Taxes" shall mean any domestic or foreign taxes, charges,
-----
feed, levies or other assessments, including any income, alternative, minimum,
accumulated earnings, personal holding company, franchise, capital stock, net
worth, capital, profits, windfall profits, gross receipts, value added, sales,
use, goods and services, excise, customs duties, transfer, conveyance, mortgage,
registration, stamp, documentary, recording, premium, severance, environmental,
real property, personal property, ad valorem, intangibles, rent, occupancy,
license, occupational, employment, unemployment insurance, social security,
disability, worker's compensation, payroll, health care, withholding, estimated
or other taxes, charges, fees, levies or other assessments, and including any
interest, penalties or additions relating thereto, imposed by any Governmental
Authority or other taxing authority.
"Transaction" has the meaning set forth in Section 6(d).
----------- -----------
"Tutopia Put Agreement" means the Put Agreement to be entered
---------------------
into among the Company, UBS and the other parties named therein, in form and
substance identical to Exhibit J hereto.
---------
"Tutopia Stockholders Agreement" means that certain Amended
------------------------------
and Restated Stockholders Agreement dated August 31, 2000, by and among
Xxxxxxx.xxx, Inc., Latin Guide, Inc., UBS, LSC, LLC and the other holders of
capital stock of Xxxxxxx.xxx, Inc. named therein, as amended.
"UBS" shall mean (i) UBS Capital Americas III, L.P., a
---
Delaware limited partnership, (ii) UBS Capital LLC, a Delaware limited liability
company and (iii) any Affiliate of either of the foregoing entities,
individually and collectively.
(b) Other Definitional Provisions. The words "hereof",
----------------------------- ------
"herein", and "hereunder" and words of similar import shall refer to this
------ ---------
Agreement as a whole and not to any particular provision of this Agreement.
Terms defined in the singular shall have a comparable meaning when used in the
plural and vice versa. Whenever a representation or warranty made by a Person
herein refers to the knowledge of such Person, such knowledge shall be deemed to
consist of the actual knowledge of such Person or the knowledge which would have
been present after reasonable due inquiry by such Person. A Person (other than
an individual) will be deemed to have "knowledge" of a particular fact or other
---------
matter if any individual who is serving, or who has at any time served, as a
director, executive officer, member, partner, executor or trustee of such Person
(or a Person acting in any similar capacity) has, or any time had, actual
knowledge of such fact or other matter, or should have had knowledge thereof
given such individual's office or capacity and given industry standards or given
reasonable due inquiry by such individual.
[Remainder of Page Intentionally Left Blank]
-39-
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
IFX CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxxxx
Title: President
Agreed and Accepted only as to
Section 12(q) hereof:
INTERNATIONAL TECHNOLOGY
INVESTMENTS, LC
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title:
/s/ Xxx X. Xxxxx
----------------------------
Xxx X. Xxxxx
/s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxx
-40-
Purchaser:
---------
The undersigned hereby executes and delivers this Agreement as of the
date first above written as one of the Purchasers referred to therein for the
purpose of purchasing from the Company the applicable Shares at the Closing.
UBS CAPITAL AMERICAS III, L.P.
By: UBS Capital Americas III, LLC
By: /s/ Xxxx Xxxx
---------------------
Name: Xxxx Xxxx
Title: Principal
By: /s/ Xxxx Xxxxx
---------------------
Name: Xxxx Xxxxx
Title: Chief Financial
Officer
Address: UBS Capital Americas III, L.P.c/o UBS Capital Americas III,
XXX000 Xxxx XxxxxxXxx Xxxx, XX 10171Attention: Xxxxxxx X.
Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy
of Notices to: Xxxx Xxxxxxx XXX000 Xxxx XxxxxxXxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
-41-
Purchaser:
---------
The undersigned hereby executes and delivers this Agreement as of the
date first above written as one of the Purchasers referred to therein for the
purpose of purchasing from the Company the applicable Shares at the Closing.
UBS CAPITAL LLC
By: /s/ Xxxx Xxxx
----------------------
Name: Xxxx Xxxx
Title: Attorney-in-Fact
By: /s/ Xxxx Xxxxx
----------------------
Name: Xxxx Xxxxx
Title: Attorney-in-Fact
Address: UBS Capital XXX000 Xxxx XxxxxxXxx Xxxx, XX 10171Attention:
Xxxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy
of Notices to: Xxxx Xxxxxxx XXX000 Xxxx XxxxxxXxx Xxxx, Xxx Xxxx 00000Xxxxxxxxx:
Xxxxx Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
-42-
EXHIBIT A
SCHEDULE OF PURCHASERS
IFX Corporation
Series C Preferred Stock
--------------------------------------------------------------------------------------------------------------
Number of Shares of Cash Portion of Number of Shares of
------------------- --------------- -------------------
Series C Preferred Purchase Price Common Stock to be
------------------ -------------- ------------------
Purchaser Stock to be Purchased Assigned as Part of
--------- --------------------- -------------------
Purchase Price
--------------------------------------------------------------------------------------------------------------
UBS Capital Americas 3,641,667 $6,650,000 1,425,000
III, L.P.
--------------------------------------------------------------------------------------------------------------
UBS Capital LLC 191,666 $ 350,000 75,000
--------------------------------------------------------------------------------------------------------------
-43-
