Exhibit 10.14
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TUTOPIA.COM, INC.
PURCHASE AGREEMENT
Series A Convertible Preferred Stock
______________________________________
Dated as of August 7, 2000
Exhibit 10.14
TABLE OF CONTENTS
Page
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1. AUTHORIZATION OF THE SECURITIES; NATURE OF AGREEMENT....................... 1
(a) Series A Preferred Stock............................................ 1
(b) Nature of Agreement................................................. 1
2. SALE AND PURCHASE OF SERIES A PREFERRED STOCK.............................. 1
(a) Purchase and Sale at the Initial Closing............................ 2
(b) Purchases and Sales Subsequent to the Initial Closing............... 2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.............................. 3
(a) Organization and Good Standing...................................... 3
(b) Authorization. Except as set forth in the Schedule of Exceptions:.. 3
(c) Capital Stock....................................................... 4
(d) Subsidiaries........................................................ 6
(e) Compliance With Material Instruments................................ 7
(f) Good Title.......................................................... 7
(g) Litigation.......................................................... 7
(h) Tax Matters......................................................... 8
(i) Registration Rights................................................. 8
(j) Offering............................................................ 8
(k) Insurance........................................................... 8
(l) Certain Transactions................................................ 9
(m) Contracts........................................................... 9
(n) Governmental Consents...............................................12
(o) Officers, Employees and Labor.......................................13
(p) Compliance with Laws................................................13
(q) Intellectual Property...............................................13
(r) Environmental Matters...............................................14
(s) Certain Practices...................................................15
(t) Brokers.............................................................15
(u) No Undisclosed Liabilities..........................................15
(v) Disclosure..........................................................16
(w) Financial Statements................................................16
(x) Availability and Transfer of Foreign Currency.......................16
(y) Absence of Changes..................................................16
(z) Real Property Holding Company.......................................18
(aa) Investment Company Act..............................................18
(bb) Subchapter S........................................................18
(cc) State Takeover Statutes.............................................18
(dd) Funded Indebtedness.................................................18
(ee) Business Operations.................................................18
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Exhibit 10.14
Page
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...........................18
(a) Investment Intent...................................................18
(b) Sophistication......................................................19
(c) Illiquidity.........................................................19
(d) Accredited Investor.................................................19
(e) Brokers.............................................................19
(f) Organization and Good Standing......................................19
(g) Requisite Power and Authority.......................................19
(h) No Conflict.........................................................19
5. COVENANTS..................................................................20
(a) Pre-Closing Actions.................................................20
(b) Conduct of Business.................................................20
(c) Access and Cooperation..............................................22
(d) Compliance with the Hart-Scott-Rodino Antitrust
Improvements Act of 1976..........................................22
(e) No Solicitation.....................................................22
(f) Books and Records...................................................23
(g) Post-Closing Covenants..............................................23
(h) Inspection Rights...................................................24
(i) Covenant Not to Compete.............................................24
(j) Stockholder Solicitation............................................25
(k) Stock Option Agreements.............................................25
(l) Funded Indebtedness.................................................25
6. CONDITIONS TO OBLIGATIONS OF THE PURCHASERS................................26
(a) Representations and Warranties......................................26
(b) Performance.........................................................26
(c) Absence of Litigation...............................................26
(d) Opinion of Counsel to the Company and Subsidiaries..................26
(e) Consents............................................................27
(f) Assignment of Intellectual Property.................................27
(g) Contemporaneous Transactions........................................27
(h) Closing Papers......................................................28
(i) Absence of Material Adverse Effect..................................28
(j) Proceedings.........................................................28
(k) Legends.............................................................29
(l) Private Equity Fee..................................................29
7. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY...............................29
(a) Representations and Warranties......................................29
(b) Performance.........................................................29
(c) Payment.............................................................29
(d) Absence of Litigation...............................................29
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Exhibit 10.14
Page
8. SURVIVAL..................................................................30
9. TERMINATION...............................................................30
10. EFFECT OF TERMINATION.....................................................30
11. MISCELLANEOUS PROVISIONS..................................................30
(a) Acknowledgment.......................................................30
(b) Notices..............................................................30
(c) Severability.........................................................31
(d) Governing Law........................................................31
(e) Publicity............................................................32
(f) Captions and Section Headings........................................32
(g) Amendments and Waivers...............................................32
(h) Successors and Assigns...............................................32
(i) Expenses.............................................................33
(j) Entire Agreement.....................................................33
(k) Exhibits.............................................................33
(l) Further Assurances...................................................33
(m) Counterparts.........................................................33
(n) Attorneys' Fees......................................................33
(o) Disclosure Generally.................................................33
12. DEFINITIONS...............................................................34
(a) Definitions..........................................................34
(b) Other Definitional Provisions........................................40
iii
Exhibit 10.14
EXHIBITS
EXHIBIT A SCHEDULE OF PURCHASERS...........................................A-1
EXHIBIT B CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A PREFERRED STOCK OF
TUTOPIA.COM, INC.................................................B-1
EXHIBIT C SCHEDULE OF EXCEPTIONS...........................................C-1
EXHIBIT D FORM OF OPINION OF COMPANY COUNSEL...............................D-1
EXHIBIT E FORM OF RESTATED STOCKHOLDERS AGREEMENT..........................E-1
EXHIBIT F-1 FORM OF DIAL ACCESS AGREEMENT....................................F-1
EXHIBIT F-2 FORM OF REVENUE SHARING AGREEMENT................................F-2
EXHIBIT G FORM OF INTER-COMPANY SERVICES AGREEMENT........................G-1
EXHIBIT H FORM OF EMPLOYMENT AGREEMENT
AMENDMENT AND WAIVER.............................................H-1
EXHIBIT I FINANCIAL STATEMENTS.............................................I-1
EXHIBIT J FORM OF RESTATED CERTIFICATE OF INCORPORATION....................J-1
EXHIBIT K FORM OF STOCK OPTION PLAN........................................K-1
EXHIBIT L FORM OF STOCK OPTION AGREEMENT...................................L-1
EXHIBIT M EXISTING STOCKHOLDERS AGREEMENT..................................M-1
EXHIBIT N FORM OF RESTATED BY-LAWS.........................................N-1
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Exhibit 10.14
TUTOPIA.COM, INC.
PURCHASE AGREEMENT
This Purchase Agreement is made and entered into as of the 7th day of
August, 2000, by and among IFX Corporation, a Delaware corporation ("IFX"),
Latin Guide, Inc., a Delaware corporation ("Latin Guide") and Tutopia.com, Inc.,
a Delaware corporation (the "Company;" IFX, Latin Guide and the Company are
hereinafter collectively referred to as the "Sellers" and individually as a
"Seller"), and each Person listed on the Schedule of Purchasers attached as
Exhibit A hereto (the "Schedule of Purchasers") who executes this Agreement as a
Purchaser (such Persons are referred to in this Agreement, collectively, as the
"Purchasers" and individually, as a "Purchaser"). Unless defined elsewhere
herein, capitalized and other defined terms shall have the meanings specified in
Section 12.
RECITALS
The Company desires to sell to the Purchasers, and the Purchasers desire to
purchase from the Company, an aggregate of up to 11,890,606 shares (the
"Shares") of the Series A Convertible Preferred Stock, all on the terms and
conditions set forth herein.
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 A Preferred Stock. The Company has authorized the issuance
and sale pursuant to the terms and conditions of this Agreement of up to
11,890,606 shares of its Preferred Stock, $.001 par value per share, to be
designated as Series A Convertible Preferred Stock (the "Series A Preferred
Stock"). The shares of Series A Preferred Stock shall 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 A Convertible Preferred Stock of Tutopia.com, Inc., a
copy of which, in the form to be filed with the Secretary of State of the State
of Delaware, is attached hereto as Exhibit B hereto (the "Certificate").
(b) Nature of Agreement. This Agreement insofar as it relates to the
purchase of a particular number of the Series A Preferred Stock by any Purchaser
is a separate agreement between that Purchaser and the Company. But this
Agreement insofar as it 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 A Preferred Stock.
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Exhibit 10.14
(a) Purchase and Sale at the Initial Closing. Subject to the terms 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 A Preferred Stock
indicated opposite such Purchaser's name on the Schedule of Purchasers for a
price of $2.1025 per share. The sale and purchase of the Series A Preferred
Stock shall take place at the offices of Kaye, Scholer, Fierman, Hays & Handler,
LLP, 425 Park Avenue, New York, New York 10022, at 10:00 a.m., New York City
time, at a closing (the "Initial Closing") to occur as soon as practicable after
satisfaction or waiver of the conditions to Closing set forth in Sections 6 and
7. At the Initial Closing, the Company will deliver to each Purchaser the Series
A 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 the Initial Closing and
registered in such Purchaser's name (or in the name of such Purchaser's
nominee(s)), against delivery by such Purchaser to the Company or its order of
immediately available funds in the amount of the purchase price for such shares
of Series A Preferred Stock. If at the Initial Closing, the Company shall fail
to tender to any Purchaser the Series A Preferred Stock to be purchased by such
Purchaser, or any of the conditions specified in Section 6 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. The closing of the purchase and sale of Shares
by any party exercising his/her/its co-investment rights under the Existing
Stockholders Agreement during the Stockholder Solicitation Period shall occur
simultaneously with the Initial Closing. At the Initial Closing, each such party
shall become a party to this Agreement and the Restated Stockholders Agreement
by signing such agreements and such party shall not be deemed a party to such
agreements until such Initial Closing.
(b) Purchases and Sales Subsequent to the Initial Closing. If less
than all of the Shares are sold at the Initial Closing, subject to the terms and
conditions of this Agreement and, with the written consent of UBS, the Company
may sell up to the balance of the authorized but unissued Shares (the "Remaining
Shares") to such institutional investors, venture capital or private equity
firms or funds or strategic investors as the Company may determine with the
consent of UBS, at the same price per share as the Shares purchased and sold at
the Initial Closing. Any such sale shall be upon the same terms and conditions
as those contained herein, may occur in one or more closings ("Subsequent
Closing(s)") and such persons or entities shall become parties to this
Agreement, and the Restated Stockholders Agreement, and shall have the rights
and obligations of a Purchaser hereunder and thereunder. Such persons or
entities may become parties to such agreements by (i) executing copies of such
agreements by appending additional signature pages to such agreements containing
their signatures and (ii) appending additional pages to or revising Exhibit A
hereto. Any Subsequent Closing shall take place at a location and on a date and
time as the Company and such purchaser of Remaining Shares shall mutually agree
which shall be a Business Day no later than thirty
Exhibit 10.14
(30) days from the Initial Closing. The Initial Closing and any Subsequent
Closing are individually referred to herein as a "Closing" and, collectively, as
the "Closings."
3. Representations and Warranties of the Company. Subject to the
exceptions set forth in the Schedule of Exceptions attached as Exhibit C hereto
(the "Schedule of Exceptions"), the Sellers (jointly and severally, except that
the Company shall have no liability for representations and warranties relating
to IFX or Latin Guide) represent and warrant to each of the Purchasers that:
(a) Organization and Good Standing.
(i) Except as set forth in the Schedule of Exceptions, the Company
and each of its 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.
(ii) 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. Except as set forth in the Schedule of Exceptions:
(i) Each Seller (x) has all requisite right, 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 such
party at or prior to any Closing (including the Certificate) in connection with
the consummation of the transactions contemplated by this Agreement (the "Other
Agreements") and to perform its obligations and consummate all of the
transactions contemplated hereunder and thereunder, including the sale and
issuance of the shares of Series A Preferred Stock to be purchased by each
Purchaser at the Initial Closing, and (y) all corporate proceedings and
corporate authorizations which are necessary on the part of such Seller and each
of its Subsidiaries have been taken or secured to authorize the execution,
delivery and performance of this Agreement and each of the Other Agreements by
such Seller, it being understood and agreed that any sale pursuant to Section
2(b) hereof shall require approval of the Board of Directors of the Company.
(ii) This Agreement has been duly executed and delivered and
constitutes, and each of the Other Agreements when executed and delivered by
each Seller
Exhibit 10.14
party thereto, will constitute the legal, valid and binding obligations of such
Seller, 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 A Preferred Stock to be purchased by
each Purchaser at the applicable 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, other than those contained in
this Agreement, the Existing Stockholders Agreement, the Restated Stockholders
Agreement and the Certificate, existing under applicable securities laws or
created by the Purchasers. The New Common Stock of the Company issuable upon
conversion of the Series A Preferred Stock (the "Conversion Shares"), as of the
applicable Closing, will (x) be duly authorized, (y) be reserved for issuance
upon conversion of the Series A Preferred Stock issued at the applicable
Closing, and (z) when issued, be duly and validly issued and outstanding, fully
paid and nonassessable and free of Encumbrances, other than those contained in
this Agreement, the Existing Stockholders Agreement, the Restated Stockholders
Agreement and the Certificate, existing under applicable securities laws or
created by the Purchasers.
(c) Capital Stock.
(i) (A) On the date hereof, the authorized capital stock of the
Company consists of (1) ten (10) million shares of Class A Common Stock, par
value $.001 per share (the "Class A Common Stock"), of which ten (10) million
shares of Class A Common Stock are issued and outstanding, (2) twenty-five (25)
million shares of Class B Common Stock, par value $.001 per share (the "Class B
Common Stock"), of which 1,833,333.34 shares of Class B Common Stock are issued
and outstanding, and (3) ten (10) million shares of Preferred Stock, par value
$.001 per share (the "Preferred Stock"), none of which shares of Preferred Stock
are issued and outstanding; and (B) immediately after the Closings, assuming
that all of the Shares of Series A Preferred Stock have been issued and sold
hereunder, the authorized capital of the Company will consist of (1) 50,000,000
shares of common stock, par value $.001 per share (the "New Common Stock"), of
which 11,833,333.34 shares of New Common Stock will be issued and outstanding,
and (2) twenty (20) million shares of Preferred Stock, of which 11,890,606
shares of Preferred Stock will have been designated Series A Preferred Stock and
of which 11,890,606 shares of Series A Preferred Stock will be issued and
outstanding. (The Class A Common Stock, Class B Common Stock and New Common
Stock are collectively referred to herein as the "Common Stock.")
(ii) Except as set forth in the Schedule of Exceptions or as expressly
contemplated hereby, 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 or the Series A Preferred
Exhibit 10.14
Stock, or any other security of the Company or any of its Subsidiaries. Except
as set forth in the Schedule of Exceptions or as provided in the Certificate,
neither the Company nor any of its Subsidiaries is subject to any 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 other than those
existing under the Existing Stockholders Agreement, the Restated Stockholders
Agreement and organizational documents of the relevant entity or by virtue of
Applicable Laws, 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 A 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 Initial Closing, the
Restated Stockholders Agreement or the Certificate.
(v) The Schedule of Exceptions sets forth a true and correct list of
(1) each of the Company's shareholders of record, indicating the number and
class of shares owned by each shareholder of record and (2) each of the holders
of record of Convertible Securities, the number and type of Convertible
Securities owned by such holder of record. LGI is the record and beneficial
owner of all shares of the Company indicated as being owned by it in the
Schedule of Exceptions.
(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 have been provided to UBS. The names of all Persons to whom
options (the "Optionholders") to purchase Common Stock or other equity
securities of the Company have been granted and the number of options granted to
each Optionholder are set forth in the Schedule of Exceptions. All such options
will be issued under the Stock Option Plan. Other than with respect to the
number of options granted, the Company is not under any obligation or subject to
any agreement or commitment with respect to the terms of such option, including
exercise price and vesting schedule, except as set forth in the Stock Option
Agreement.
(vii) True and correct copies of all agreements in full force and
effect on the date hereof among the Company and holders of equity securities of
the Company relating to their ownership of such equity securities are attached
hereto as Exhibit M (the "Existing Stockholders Agreement").
Exhibit 10.14
(d) Subsidiaries.
(i) The name of each Subsidiary of the Company, the jurisdiction of
its incorporation and the ownership of capital stock of its shareholders are
listed in the Schedule of Exceptions. Except as set forth in 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, other than those existing under
organizational documents or by virtue of Applicable Laws.
(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. 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.
Exhibit 10.14
(e) Compliance With Material Instruments. Except as set forth in the
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
(collectively, the "Material Instruments"). The execution and delivery by the
Company of this Agreement and 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 and sale of the Series A 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 (in the case of the
Company, as amended by the Restated Certificate of Incorporation and Restated
By-Laws) (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 materially adversely affect 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 holder of any indebtedness of the Company or any of its
Subsidiaries to accelerate the maturity of any such indebtedness or to increase
the rate of interest presently in effect with respect to such indebtedness, 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. The 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.
(i) There are no actions, proceedings, investigations (civil,
criminal, regulatory or otherwise), arbitrations, claims, demands or grievances
("Actions") pending against the Company or any Subsidiary (or, to the best
knowledge of the Company, any basis therefor or threat thereof).
Exhibit 10.14
(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. The 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 best 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).
(i) Registration Rights. Except as set forth in the Schedule of Excep
tions and the Restated Stockholders 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
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 in Section 4 of this Agreement, the offer, issuance and sale of
the Series A Preferred Stock and the Conversion Shares 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 or issuance
of securities.
(k) Insurance. The Schedule of Exceptions contains a true, complete and
correct list of all insurance policies covering the Business and the respective
material assets of the Company and each Subsidiary. IFX and certain Subsidiaries
of IFX maintain 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
Exhibit 10.14
Company nor any Subsidiary has failed to give anynotice under any insurance
policy in due time.
(l) Certain Transactions. Except as set forth in the Schedule of
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 best 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 or
Optionholder.
(m) Contracts.
(i) Except as expressly contemplated by this Agreement, or as set
forth in the Schedule of Exceptions, the Company and each of its Subsidiaries is
not 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"):
(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 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 $25,000
or to the mortgaging, pledging, transferring of a security interest, or
otherwise placing an Encumbrance in excess of $25,000 on any material
Exhibit 10.14
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 $25,000; any agreement to indemnify any Person or act
as a surety for an amount in excess of $25,000; 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 $25,000;
(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 $25,000;
(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);
(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 $25,000
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) [Intentionally omitted];
Exhibit 10.14
(O) 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;
(P) 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
(Q) 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) Except as set forth in the Schedule of Exceptions, 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 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 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.
Exhibit 10.14
(n) Governmental Consents. Except with respect to HSR Approval
and the filing of the Certificate and the Restated Certificate of Incorporation
with the Secretary of State of the State of Delaware, 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 which are required to be obtained or made prior to the
Initial Closing 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.
(i) 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 $25,000 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. None of the
Benefit Plans set forth in the Schedule of Exceptions constitutes a pension or
retirement plan or other
Exhibit 10.14
plan which is required to be funded under Applicable Law. 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.
(v) Except for required contributions 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.
(p) Compliance with Laws. 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, or has full and unrestricted rights
to use, any and all domain names containing the word "Tutopia" (including the
word "Tutopia" in combination with any non-military extension, including
Tutopia.com, Tutopia.net and Tutopia.org.). The domain name Tutopia.com 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.
(i) 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.
Exhibit 10.14
(iii) The Company is not aware of any environmental reports,
investigations and audits (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.
(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 A 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 in the Schedule of
Exceptions or in the Financial Statements, 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
Exhibit 10.14
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, 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) Financial Statements. The Company has provided the Purchasers with
(A) the consolidated unaudited balance sheet of the Company and its Subsidiaries
at June 30, 2000, together with the related unaudited consolidated income and
cash flow statements for the twelve (12) month period then ended and (B) the
financial projections of the Company and its Subsidiaries for the period from
July 1, 2000 through August 31, 2001, copies of which are attached hereto as
Exhibit I hereto (together, the "Financial Statements"). The Financial
Statements (excluding any projections) fairly present the true, complete and
correct financial position, results of operation and statements of cash flow of
the Company and its Subsidiaries on a consolidated basis as of the dates and for
the periods indicated therein and have been prepared in accordance with GAAP
(except as otherwise indicated therein), subject to customary year-end
adjustments and without notes. The financial projections referred to in clause
(B) above have been prepared in good faith based upon the Company's books and
records and assumptions, which the Company believes are reasonable as of the
date of this Agreement.
(x) 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 A 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
A Preferred Stock or the Common Stock.
(y) Absence of Changes. Except as set forth in the Schedule of
Exceptions, since the inception of the Company, neither the Company nor any of
its Subsidiaries has:
(i) suffered any Material Adverse Effect;
Exhibit 10.14
(ii) incurred, assumed, guaranteed or discharged any debt, claim,
commitment, obligation or liability, absolute, accrued, contingent or otherwise,
whether due or to become due (including any indebtedness for borrowed money), in
excess of $25,000, individually or in the aggregate;
(iii) mortgaged, pledged or subjected to any other Encumbrance,
any 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 $25,000, 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 $25,000, individually or in the aggregate;
(v) received any written notice of termination of any Contract
with required payments thereunder in excess of $25,000;
(vi) suffered any damage, destruction or loss (whether or not
covered by insurance) to property, in excess of $25,000, 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
$25,000, individually or $25,000 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, except after the date hereof as required by Applicable
Law;
(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 $25,000, 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;
Exhibit 10.14
(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.
(z) 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.
(aa) 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.
(bb) 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.
(cc) 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 antitakeover statute or regulation, and any antitakeover
or other similar restrictive provisions of the Company's Certificate of
Incorporation, as amended, are not applicable to the transactions contemplated
by this Agreement or Other Agreements.
(dd) Funded Indebtedness. Neither the Company nor any Subsidiary is
obligated with respect to any Funded Indebtedness, except as set forth in the
Schedule of Exceptions.
(ee) Business Operations. Immediately following the Initial Closing,
the Company and its Subsidiaries will own, have a leasehold interest in or have
license to use all of the assets, properties and rights necessary to enable it
to operate their business in the same manner as currently operated.
4. 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 A Preferred Stock and the
related Conversion Shares to be purchased 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.
Exhibit 10.14
(b) Sophistication. Such Purchaser is able to bear the economic risk
of an investment in shares of the Series A Preferred Stock to be purchased by it
pursuant to this Agreement and the related Conversion Shares 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 A Preferred Stock and the related Conversion Shares.
(c) Illiquidity. Such Purchaser understands that there is no public
market for the shares of Series A Preferred Stock to be purchased by it and the
related Conversion Shares 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 purchase its
respective shares of Series A Preferred Stock and the related Conversion Shares.
(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) Organization and Good Standing. With respect to any Purchaser
which is an entity, such Purchaser is 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).
(g) Requisite Power and Authority. Such 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 such Purchaser, and this
Agreement constitutes, and each of the Other Agreements to which such Purchaser
is a party when executed and delivered by such Purchaser 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, Applicable Law
or any provision of the organizational documents of such Purchaser, any contract
to which such
Exhibit 10.14
Purchaser is a party or any applicable law, rule or regulation, which violation
or default (other than of or under organizational documents) 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.
5. 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 A 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) Conduct of Business. Except as otherwise permitted by this
Agreement or with the written consent of UBS, from the date hereof to the
Initial Closing, the Company shall and shall cause each of its Subsidiaries to:
(i) carry on the Business in the ordinary course, consistent
with past practice and in substantially the same manner as heretofore conducted
and, use commercially reasonable steps to preserve its relationships with
customers, suppliers and others having business dealings with the Company and
its Subsidiaries;
(ii) not create, issue or sell any securities, or grant or
otherwise issue any options or purchase rights with respect thereto (other than
options or purchase rights provided for in a Contract described on the Schedule
of Contracts), or enter into any contract or commitment to do any of the
foregoing;
(iii) not repay or prepay any liability or obligation in excess
of $25,000 in the aggregate prior to its stated maturity;
Exhibit 10.14
(iv) not declare or make any dividend, payment or distribution
to its shareholders or purchase, retire, acquire or redeem any shares of its
capital stock or other securities;
(v) not mortgage, pledge or subject to lien or any other
Encumbrance (other than any immaterial workmen's, repairmen's, warehousemen's
and carrier's liens arising in the ordinary course of business) any of its
material assets, tangible or intangible;
(vi) not sell, assign, license, transfer or otherwise dispose
of any of its assets having a fair market value of at least $25,000,
individually or in the aggregate, or incur any liabilities or obligations
(including liabilities with respect to indebtedness, capital leases or
guarantees thereof) in excess of $25,000, individually or in the aggregate;
(vii) not grant (or commit to grant) any increase in
compensation (including incentive or bonus compensation) to any officer or any
general increase in compensation (including incentive or bonus compensation) to
its employees other than, in each case, normal merit and cost-of-living
increases, or enter into any new, or amend or alter (or commit to enter into,
amend or alter) in any material respect any existing, employment or consulting
agreements or any Benefit Plan or collective bargaining agreement or commitment
(including any commitment to pay retirement or other benefits), trust agreement
or similar arrangement adopted by it with respect to its own employees;
(viii) not amend its certificate of incorporation and by-laws (or
equivalent documents in its jurisdiction of organization) except as provided
herein or as required by Applicable Law;
(ix) not merge or consolidate with or into any other Person; or
make any acquisition of all or substantially all of the stock, assets or
business of any other Person;
(x) maintain in full force and effect existing insurance to
the extent available on commercially reasonable terms;
(xi) not make any capital expenditure or capital expenditure
commitment (other than in an emergency) in excess of $25,000 in the aggregate;
(xii) other than as may be reasonably required to consummate the
transactions contemplated hereby, not make any modifications of or changes in or
terminate any existing Contract set forth on the Schedule of Contracts;
(xiii) not incur any debt or liability in excess of $25,000 in
the aggregate; or
Exhibit 10.14
(xiv) except as expressly required by this Agreement, enter into
or assume any material contract, agreement, obligation, lease, license or
commitment which involves an aggregate monetary commitment or exposure for all
such contracts in excess of $25,000.
(c) Access and Cooperation. Between the date hereof and the Initial
Closing, the Company shall afford UBS and its officers, employees, counsel,
accountants and other authorized representatives access to all of the Company's
sites, properties, books and records and will furnish UBS with such additional
financial and operating data and other information as to the Business and
properties of the Company as UBS may from time to time request. The Company will
cooperate with UBS, its representatives, auditors and counsel in the preparation
of any documents or other material which may be required in connection with any
documents or materials required by this Agreement. Neither the Company nor UBS
will use any information obtained pursuant to this Section 5(c) for any purpose
unrelated to the consummation of the transactions contemplated by this Agreement
or the Business and, if this Agreement is terminated, each party will hold all
information and documents obtained pursuant to this paragraph in confidence
unless and until such time as such information or documents become publicly
available other than by reason of any action or failure to act by such party or
as it is advised by counsel that any such information or document is required by
Applicable Law to be disclosed, and in the event of the termination of this
Agreement, such party will, upon request by the other, deliver to the other all
documents so obtained by it or destroy such documents.
(d) Compliance with the Hart-Scott-Rodino Antitrust Improvements Act
of 1976. The Company and UBS have filed notifications resulting in the early
termination of the waiting period under and in accordance with the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Approval"), in
connection with the consummation of the sale of the Shares to UBS contemplated
herein. The parties shall promptly respond to any further inquiries received
from the Federal Trade Commission or the Antitrust Division of the Department of
Justice in connection with such filings. The costs and expenses thereof
(including filing fees) shall be borne by IFX.
(e) No Solicitation. Except as otherwise expressly authorized in this
Agreement, from the date hereof to the Initial Closing, the Company and its
Subsidiaries shall (and shall cause their respective employees, directors,
agents 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, (i) solicit any proposals or
offers relating to a Transaction or (ii) negotiate or discuss with any third
party concerning any proposal or offer for a Transaction, except as required by
Applicable Law.
Exhibit 10.14
(f) Books and Records. The Company shall, and shall cause each
Subsidiary to, maintain books and records accurately disclosing all payments
made.
(g) Post-Closing Covenants. Until the consummation of a Qualified Public
Offering, the Company will deliver to each holder of at least 10% of the shares
of Common Stock on a Fully Diluted Basis shares of Series A Preferred Stock
and/or Conversion Shares (as adjusted for stock splits, dividends,combinations
and the like):
(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 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 securityholders in their capacity as such
or by any Subsidiary of the Company to its securityholders, other than the
Company and of all
Exhibit 10.14
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 Chief Operating Officer 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.
(h) Inspection Rights. Until the consummation of a Qualified Public
Offer, each holder of at least 10% of the shares of Common Stock on a Fully
Diluted Basis shares of Series A 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.
(i) Covenant Not to Compete. In furtherance of the sale to Purchasers of
the Shares, IFX shall not, and IFX shall cause each of its Affiliates (whether
existing as of the date hereof or in the future) not to, directly or indirectly,
through equity ownership or otherwise, for themselves or any other Person,
engage in the business of providing free ISP services, provide consulting
services to any entity whose primary business consists of providing free ISP
services, or otherwise compete with the Company or any of its Subsidiaries in
providing free ISP services in Latin America ("Covenant Not to Compete") for a
period of time equal to the term of the Dial Access Agreement (including any
extensions thereof, if any) plus one (1) year, but in no event shall the term of
the foregoing Covenant Not to Compete be less than three (3) years from the date
of the Closing. Anything herein to the contrary notwithstanding, IFX and its
Affiliates shall not be prohibited from (i) offering network service/wholesale
Internet connection service to other free ISP businesses on a commercial basis,
(ii) maintaining its current ownership interest in YUPI Internet Inc., e-Pagos
and Centronet.com, or (iii) maintaining its current ownership interest in IFX
Facilito, Inc. ("Facilito"), provided that Facilito does not engage in the
business of providing Internet access to subscribers without such subscribers
paying a fee for such access. Nothing herein shall be construed to prevent IFX
or its Affiliates from owning, as an investment, up to 5% of a class of equity
or debt securities issued by any competitor (or an entity which controls a
competitor) of the Company that is publicly
traded and registered under Section 12 of the Securities Exchange Act of
1934, as amended, or publicly traded on any foreign securities exchange.
The parties agree that the covenants included in this Section 5(i) are,
taken as a whole, reasonable in their geographic scope and their duration,
and no party shall raise any issue of the reasonableness of the scope or
duration of the covenants in any proceeding to enforce any such covenants.
If, in any judicial proceeding, a court shall refuse to enforce any of the
separate covenants deemed included in this paragraph, then the
unenforceable covenant shall be deemed eliminated from these provisions for
the purpose of those proceedings to the extent necessary to permit the
remaining separate covenants to be enforced.
(j) Stockholder Solicitation. On the date hereof, the Company
shall provide proper notice pursuant to the Existing Stockholders Agreement
to its stockholders party thereto regarding such stockholders' preemptive
right to purchase Shares under, and as a result of the transactions
contemplated by, this Agreement and soliciting each such stockholder's
agreement to enter into the Restated Stockholders Agreement. The Company
shall use its reasonable best efforts to obtain each such stockholder's
execution and delivery of the Restated Stockholders Agreement during the
Stockholder Solicitation Period. All documents delivered to such
stockholders shall be subject to the prior review and approval (not to be
unreasonably withheld) of UBS.
(k) Stock Option Agreements. All options listed in the Schedule
of Exceptions will be evidenced by Stock Option Agreements.
(l) Funded Indebtedness.
(i) Immediately prior to the Initial Closing, IFX shall
contribute to LGI and LGI shall in turn contribute to the Company all of
the receivables relating to any Funded Indebtedness owed to IFX or any
Subsidiary of IFX by the Company or any Subsidiary of the Company,
excluding Permitted Indebtedness contemplated by paragraph (ii) below.
(ii) At the Initial Closing, IFX and LGI shall cause the Company
and its Subsidiaries not to have any Funded Indebtedness (other than any
inter-company indebtedness among the Company and its Subsidiaries) in
excess of $2 million, in the aggregate, which indebtedness shall consist of
only third party ordinary course accounts payable ("Permitted
Indebtedness"). To the extent that ordinary course accounts payable as of
the Initial Closing are in an amount less than $2 million, then, upon
receipt of satisfactory documentation of the payment of accounts payable
constituting all or a portion of such difference by LGI or IFX, the Company
shall reimburse IFX and/or LGI, as the case may be, for the cost thereof,
within five (5) business days of the presentation of such receipts to the
Company. Any amount owed to IFX or any Subsidiary thereof (other than the
Company or any Subsidiary of the Company) in excess of Permitted
Indebtedness shall be deemed cancelled immediately upon contribution to the
Company as contemplated by paragraph (i) above.
Exhibit 10.14
(m) The Company shall use its reasonable best efforts to submit
the Stock Option Plan, as amended to the date of submission, for approval
by the Company's stockholders within thirty (30) days of the Initial
Closing. In connection therewith, LGI and each of the Purchasers, in their
capacity as stockholders of the Company, hereby covenants and agrees to
vote in favor of the adoption of the Stock Option Plan, as so amended. The
foregoing shall only apply to the extent that the Stock Option Plan can be
approved by written consent of stockholders and the Company shall be under
no obligation to call a meeting of stockholders. Further, the foregoing
shall in no way limit the Company's ability to amend the Stock Option Plan
in accordance with the terms and provisions thereof governing amendment.
6. Conditions to Obligations of the Purchasers. The obligation of
each of the Purchasers to purchase and pay for the Series A Preferred Stock
which it has agreed to purchase at Closing and the other obligations of
each of the Purchasers under this Agreement are subject to the fulfillment
at or prior to such Closing of the following conditions, any of which may
be waived in writing in whole or in part by such Purchaser:
(a) Representations and Warranties. At the Initial Closing each
of the representations and warranties of the Company set forth in this
Agreement that is qualified as to materiality 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 Initial Closing with
the same effect as though such representations and warranties had been made
at and as of the Initial Closing (except to the extent such representation
and warranty relates to a specific date).
(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 Initial 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 or
the Company 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 Initial Closing, substantially identical in
form and substance to Exhibit D hereto.
Exhibit 10.14
(e) Consents . The Company shall have obtained any and all
material 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 Section 3(q) of the Schedule of Exceptions, except
for items in Section 3(ee) and except for rights of Spinway, Inc. referred
to herein, 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) The Stockholder Solicitation Period with respect to the
issuance of Series A Preferred Stock hereunder shall have expired and the
Restated Stockholders Agreement shall have been executed and delivered by
the Company, Latin Guide, Inc., each Purchaser and each other stockholder
of the Company, other than holders of up to 86,000 shares of Class B Common
Stock.
(ii) (A) The Company shall have sold to each Purchaser, and each
of the Purchasers shall have purchased, the shares of Series A Preferred
Stock to be purchased at such Closing by such Purchaser under this
Agreement, and (B) the Company shall have delivered to each Purchaser
certificates representing such shares of Series A Preferred Stock, each
registered in the name of such Purchaser or the name of its nominee(s).
(iii) The Restated Certificate of Incorporation shall have been
duly filed with the Secretary of State of the State of Delaware. The
Restated Certificate of Incorporation shall be in full force and effect as
of the Initial Closing and shall not have been amended or modified, except
by reason of the filing of the Certificate.
(iv) The Restated By-Laws shall have been duly adopted by all
necessary corporate action on the part of the Company. The Restated By-Laws
shall be in full force and effect as of the Initial Closing and shall not
have been amended or modified.
(v) The Certificate shall have been duly filed with the Secretary
of State of the State of Delaware. The Certificate shall be in full force
and effect as of such Closing and shall not have been amended or modified.
Exhibit 10.14
(vi) The Inter-Company Services Agreement and Dial Access Agreement
between the Company and IFX shall have been executed and be in full force and
effect as of the Initial Closing and shall not have been amended or modified.
(vii) The Company shall have adopted the Stock Option Plan. The
Option Plan shall be in full force and effect as of the Initial Closing and
shall not have been amended or modified.
(viii) The Company and Jak Burzstyn shall have entered into the
Employment Agreement Amendment and Waiver. The Employment Agreement Amendment
and Waiver shall be in full force and effect as of the Initial Closing and shall
not have been amended or modified.
(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 Initial Closing, stating that (A) the
person signing such 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 6 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 of the Company authorizing the adoption of the 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 Initial 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, in each case as amended
through the date of the Initial 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) Proceeding. All corporate and other proceedings of the Company
taken or to be taken in connection with the transactions contemplated hereby and
by the
Exhibit 10.14
Other Agreements to be consummated at the applicable 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 Restated Stockholders Agreement on or prior to the
date of the applicable Closing shall have been stamped or otherwise imprinted
with a legend in substantially the form provided in Section 8.1 of the Restated
Stockholders Agreement.
(l) Private Equity Fee. At the applicable Closing, the Company shall
have paid UBS Capital Americas III, L.P., a private equity fee of 3% of the
purchase price of the Shares, if any, purchased by UBS at such Closing.
7. Conditions to the Obligations of the Company. The obligations of the
Company under this Agreement are subject to the fulfillment on or prior to the
date of the applicable 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 applicable
Closing, each of the representations and warranties of the Purchasers purchasing
Shares at such Closing 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 such Closing with
the same effect as though such representations and warranties had been made at
and as of the date of such Closing (except to the extent such representation and
warranty relates to a specific date).
(b) Performance. The Purchasers purchasing Shares at such Closing
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
them prior to such Closing.
(c) Payment. With respect to any Closing, each Purchaser obligated
to purchase Shares at such Closing shall have delivered the purchase price for
such Shares.
(d) Absence of Litigation. (i) The consummation of the transactions
contemplated hereby shall not have been restrained, enjoined or otherwise
prohibited by Applicable Law, including any order, injunction, decree or
judgment of any court or Governmental Authority; and (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.
Notwithstanding any other provisions hereof, in the event that any of the
conditions set forth in this Section 7 as they relate to any Purchaser are not
satisfied at the applicable Closing, the Company shall not be relieved of its
obligations hereunder with respect to each other Purchaser.
Exhibit 10.14
8. Survival. The representations and warranties of the Company set forth
in Sections 3(a), 3(b), 3(c), 3(d), 3(e), 3(h), 3(j), 3(o), 3(q), 3(t), 3(u) and
3(y) shall survive the Closing indefinitely. All other representations and
warranties of the Company contained herein shall expire at the second
anniversary of the Initial Closing. The representations and warranties of the
Purchasers contained herein shall survive the applicable Closing indefinitely.
All covenants and agreements contained herein shall survive the Closing
indefinitely.
9. 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 its rights and
obligations only and not those of any other Purchaser) by written notice to the
Company if any of the conditions to the Initial Closing set forth in Section 6
shall not have been fulfilled by 5:00 p.m. New York time on September 15, 2000
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 such Closing.
10. Effect of Termination. If this Agreement is terminated pursuant to the
provisions of Section 9, 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.
11. 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 purchase the Series A Preferred Stock to be purchased
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 purchase of the shares of Series A 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
Exhibit 10.14
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 IFX, Latin Guide or the Company, to:
IFX Corporation
707 Skokie Boulevard
Suite 580
Northbrook, Illinois 60062
Attention: Chief Executive Officer
Telephone Number: 847-412-9411
Telecopy Number: 305-574-7867
with a copy to:
Neal, Gerber & Eisenberg
Two North LaSalle Street
Chicago, Illinois 60602
Attention: Scott J. Bakal, Esq.
Telephone Number: 312-269-8000
Telecopy Number: 312-269-1747
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, to the extent
permitted by Applicable Law, 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
Exhibit 10.14
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 11(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.
(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), (i) prior to the Initial
Closing, the prior written consent of the Company and each Purchaser party
hereto, and (ii) after the Initial Closing, the Purchasers holding a majority of
the shares of Series A Preferred Stock and/or Conversion Shares then
outstanding; provided, however, that any amendment or waiver which would
adversely affect any party hereto in a manner which is different from the manner
the other parties hereto are affected shall also require the prior written
consent of such party; provided further, 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 after the applicable
Closing, each Purchaser may assign or otherwise transfer its rights and
obligations hereunder to: (i) any Person who acquires shares of Series A
Preferred Stock from any Purchaser or any successor or assign of any
Exhibit 10.14
Purchaser, to the extent permitted by the Restated Stockholders Agreement; 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 bill 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' representatives on the Board of Directors in connection with the
attendance of such 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) 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.
(n) 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.
(o) 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 3
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.
12. Definitions.
-----------
(a) Definitions. For the purposes of this Agreement, the following
terms shall have the meanings specified below:
"Action" has the meaning set forth in Section 3(g)(i).
------
"Affiliate" of a specified Person shall mean (a) any Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person, (b) in
the case of a natural Person, such Person's spouse, parent or lineal descendant
(whether by blood or adoption and including stepchildren), or (c) in the case of
UBS, (i) any company under the direct or indirect control of UBS AG (a "UBS
Group Company") and/or any partnership or unincorporated association under the
direct or indirect control of any UBS Group Company which includes, without
limiting the generality of the foregoing, any limited partnership the general
partner of which is a UBS Group Company and any limited liability company the
managing member of which is a UBS Group Company, and (ii) any alternative
investment vehicle formed by either of the foregoing, or any other entity (x) in
which UBS AG directly or indirectly owns at least 20% of the equity interests
and (y) is advised or managed (whether pursuant to contract, as general partner,
managing member or otherwise) by an entity in which UBS AG has a direct or
indirect equity interest. "Control" (including the terms "controlled by" and
"under common control with") shall mean 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.
"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.
"Certificate" has the meaning set forth in Section 1(a).
"Closing" has the meaning set forth in Section 2(c).
"Common Stock" has the meaning set forth in Section 3(c)(i).
"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 3(m)(i).
"Contracts Schedule" has the meaning set forth in Section 3(m)(i).
"Conversion Shares" has the meaning set forth in Section 3(b)(ii).
"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 A Preferred Stock to be issued hereunder, and (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.
"Dial Access Agreement" shall mean the Dial Access Agreement to be
entered into between the Company and IFX in substantially the same form as
Exhibit F hereto.
"$" or "dollars" shall mean lawful money of the United States of
America.
"Employment Agreement Amendment and Waiver" shall mean the Amendment
and Waiver to Employment Agreement, of even date herewith, between the Company
and Jak Burzstyn, in substantially the same form as Exhibit H hereto.
Exhibit 10.14
"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" shall mean 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 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").
"Existing Stockholders Agreement" has the meaning set forth in
Section 3(c)(vii).
"Financial Statements" has the meaning set forth in Section 3(w).
--------------------
"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.
"Funded Indebtedness" shall mean, without duplication, the aggregate
amount (including the current portions thereof) of all (i) indebtedness for
money borrowed from others (including IFX or any subsidiary thereof), purchase
money indebtedness (other than capital lease obligations), accounts payable and
indebtedness evidenced by bonds, notes, debentures or other securities of the
Company or any of its Subsidiaries;
Exhibit 10.14
(ii) indebtedness of the type described in clause (i) above guaranteed, directly
or indirectly, in any manner by the Company or any of its Subsidiaries, through
an agreement, contingent or otherwise, to supply funds to, or in any other
manner invest in, the relevant debtor, or to purchase indebtedness, or to
purchase and pay for property if not delivered or pay for services if not
performed, primarily for the purpose of enabling such debtor to make payment of
the indebtedness or to assure the owners of the indebtedness against loss, but
excluding endorsements of checks and other instruments in the ordinary course;
(iii) indebtedness of the type described in clause (i) above secured by any
Encumbrances upon property owned by the Company or any of its Subsidiaries, even
through such Person has not in any manner become liable for the payment of such
indebtedness; (iv) interest expense accrued but unpaid, and all prepayment
premiums, on or relating to any of such indebtedness; and (v) all obligations
under capital leases of the Company and its Subsidiaries which are required to
be reflected as liabilities on the balance sheet of the Company by GAAP.
"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.
"HSR Approval" has the meaning set forth in Section 5(c).
"include", "includes", "included" and "including" shall be construed
as if followed by the phrase "without being limited to."
"Initial Closing" has the meaning set forth in Section 2(c).
"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, 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.
"Inter-Company Services Agreement" shall mean the Inter-Company
Services Agreement to be entered into between the Company and IFX in
substantially the same form as Exhibit G hereto.
"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 3(e).
--------------------
"Materials of Environmental Concern" shall mean 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.
"New Common Stock" has the meaning set forth in Section 3(c)(i).
----------------
"Notice" has the meaning set forth in Section 11(b).
------
"Other Agreements" has the meaning set forth in Section 3(b).
----------------
"Permitted Indebtedness" has the meaning set forth in Section 5(l)
hereof.
"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.
Exhibit 10.14
"Preferred Stock" has the meaning set forth in Section 3(c)(i).
"Qualified Public Offering" shall mean an underwritten public offering
of shares of Common Stock of the Company in which the Company receives gross
proceeds from the sale of Common Stock to the public of at least $50.00 million
(before deduction of underwriter's discounts and commissions), and which values
the equity of the Company at no less than $150 million pre-offering.
"Restated By-Laws" shall mean the Amended and Restated By-Laws of the
Company in substantially the same form as Exhibit N hereto.
"Restated Certificate of Incorporation" shall mean the Amended and
Restated Certificate of Incorporation of the Company in substantially the same
form as Exhibit J hereto, to be filed with the Secretary of State of the State
of Delaware.
"Restated Stockholders Agreement" shall mean the Amended and Restated
Stockholders Agreement to be entered into among the Company and the stockholders
of the Company, in substantially the same form as Exhibit E hereto.
"Schedule of Exceptions" has the meaning set forth in the first
paragraph of Section 3.
"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.
"Securities Act" has the meaning set forth in Section 3(i).
"Series A Preferred Stock" has the meaning set forth in Section 1(a).
"Shares" has the meaning set forth in the Recitals.
"Stock Option Agreement" shall mean the Stock Option Agreement in
substantially the same form as Exhibit L hereto.
"Stock Option Plan" shall mean the Tutopia.com, Inc. 2000 Stock Plan
in substantially the same form as Exhibit K hereto.
"Stockholder Solicitation Period" shall mean the twenty (20) day
period prior to a consummation of the issuance by the Company of any equity
securities (which includes the issuance of Series A Preferred Stock contemplated
hereby) as required under the Existing Stockholders Agreement to notify the
parties thereto of such issuance and their preemptive right to participate in
such issuance, as provided in the Existing Stockholders Agreement.
Exhibit 10.14
"Subsequent Closing" has the meaning set forth in Section 2(c).
"Subsidiary" shall mean 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 5(d).
"UBS" shall mean (i) UBS Capital Americas III, L.P., a Jersey, Channel
Islands limited partnership, (ii) UBS Capital LLC, a Delaware limited liability
company and (iii) any Affiliate of UBS, 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.
Exhibit 10.14
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
TUTOPIA.COM, INC.
/s/ Jak Bursztyn
----------------
By: Jak Bursztyn
Title: President
IFX CORPORATION
/s/ Joel Eidelstein
-------------------
By: Joel Eidelstein
Title: President
LATIN GUIDE, INC.
/s/ Michael Shalom
------------------
By: Michael Shalom
Title: CEO
N-1
Exhibit 10.14
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 6,777,645 shares of Series A Preferred Stock at
the Closing.
UBS CAPITAL AMERICAS III, L.P.
By: UBS Capital Americas (LA-Advisors)
LLC
By: /s/ Mark O. Lama
----------------
Name: Mark O. Lama
Title: Principal
By: /s/ George A. Duarte
--------------------
Name: George A. Duarte
Title: Partner
Address: UBS Capital Americas III, L.P.
c/o UBS Capital Americas
(LA-Advisors) LLC
299 Park Avenue
New York, NY 10171
Attention: Charles W. Moore
Telephone No.: (212) 821-6330
Telecopy No.: (212) 821-6333
With a copy
of Notices to: Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
Attention: Nancy Fuchs, Esq.
Telephone No.: (212) 836-8565
Telecopy No.: (212) 836-7246
Exhibit 10.14
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 356,718 Shares of Series A Preferred Stock at the
Closing.
UBS CAPITAL LLC
By: /s/ Mark O. Lama
----------------
Name: Mark O. Lama
Title: Attorney in Fact
By: /s/ George A. Duarte
--------------------
Name: George A. Duarte
Title: Attorney in Fact
Address: UBS Capital LLC
299 Park Avenue
New York, NY 10171
Attention: Charles W. Moore
Telephone No.: (212) 821-6330
Telecopy No.: (212) 821-6333
With a copy
of Notices to: Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
Attention: Nancy Fuchs, Esq.
Telephone No.: (212) 836-8565
Telecopy No.: (212) 836-7246
Exhibit 10.14
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 such number of shares of Series A Preferred Stock
at the Closing derived from the formula set forth opposite its name on Exhibit A
hereto.
LSC, LLC
/s/ Colleen Downes
--------------
Name: Colleen Downes
Title: Vice President
Address:
Telephone No.:
Telecopy No.:
With a copy
of Notices to:
Telephone No.:
Telecopy No.:
Exhibit 10.14
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 ___________ shares of Series A Preferred Stock at
the Closing.
----------------------------------------
Name:
Address:
Telephone No.:
Telecopy No.:
With a copy
of Notices to:
Telephone No.:
Telecopy No.: