EXHIBIT 10.3
PUT AGREEMENT
PUT AGREEMENT, dated as of February 19, 2002 among IFX CORPORATION, a
Delaware corporation (the "Company"), UBS CAPITAL AMERICAS III, L.P., a limited
partnership formed under the laws of Jersey, Channel Islands ("UBS LP"), and UBS
CAPITAL LLC, a Delaware limited liability company (collectively with UBS LP and
their respective successors and assigns, "UBS"). Certain capitalized terms used
but not otherwise defined herein are defined in Section 1.
WHEREAS, the Company and UBS have entered into that certain IFX
Corporation Series C Convertible Preferred Stock Purchase Agreement, dated
October 11, 2001 (the "Preferred Stock Purchase Agreement"); and
WHEREAS, one of the conditions to consummation of the transactions
contemplated by the Preferred Stock Purchase Agreement is the execution and
delivery of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms shall
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have the meanings specified below:
(a) "Exchange Ratio" shall mean (i) with respect to each share of Tutopia
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Preferred Stock which is put to the Company hereunder, 0.700833 share of IFX
Preferred Stock and (ii) with respect to each share of Tutopia Common Stock
which is put to the Company hereunder, 0.700833 share of IFX Common Stock.
(b) "IFX Common Stock" shall mean the common stock, par value $.02 per
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share, of the Company.
(c) "IFX Preferred Stock" shall have the meaning set forth in Section
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3(a).
(d) "Pro Rata Portion" shall mean a percentage of the total number of
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Tutopia Shares owned by a given holder thereof equal to the percentage of the
total number of Tutopia Shares owned by UBS which UBS elects to sell to the
Company pursuant to a Put Option.
(e) "Tutopia" shall mean Tutopia.com, Inc., a Delaware corporation.
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(f) "Tutopia Common Stock" shall mean the common stock, par value $.001
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per share, of Tutopia.
(g) "Tutopia Preferred Stock" shall mean the Series A Convertible
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Preferred Stock, $.001 par value per share, of Tutopia.
(h) "Tutopia Shares" shall mean, collectively, shares of Tutopia Common
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Stock and Tutopia Preferred Stock.
(i) "Tutopia Stockholders Agreement" shall mean the Amended and Restated
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Stockholders Agreement dated as of August 31, 2000 by and among Tutopia, Latin
Guide, Inc., UBS, LSC, LLC and the other parties named therein, as amended.
2. Put Option.
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(a) From and after the date hereof until the first (1st) anniversary of the
date hereof (the "Expiration Date"), UBS shall have the right from time to time,
upon written notice thereof, specifying the Tutopia Shares to be put (the "UBS
Put Notice"), to put to the Company all or any portion of its Tutopia Shares
(the "Put Option") at a price per share equal to the Exchange Ratio.
(b) Within ten (10) days after each receipt of a UBS Put Notice, the
Company shall promptly make an offer to all other holders of Tutopia Shares who
are parties to the Tutopia Stockholders Agreement (except Latin Guide, Inc.), by
written notice thereof, to purchase a Pro Rata Portion of the Tutopia Shares
held by each such holder thereof at a price per share equal to the Exchange
Ratio and on the other terms and conditions set forth herein. UBS and all such
other holders of Tutopia Shares who deliver a put notice (collectively with the
UBS Put Notice, the "Put Notices") to the Company within fifteen (15) days after
receipt of a notice from the Company pursuant to this Section 2(b), shall be
considered to have exercised the Put Option simultaneously as of the date the
Company received the UBS Put Notice for purposes of this Agreement.
(c) Within thirty (30) days following the date of a UBS Put Notice, the
Company shall purchase or cause one or more of its subsidiaries to purchase and
each Seller (as defined below) shall sell to the Company the Tutopia Shares put
pursuant to the Put Notices (subject to the Sellers' complying with any rights
of first refusal or other restrictions on transfer of such Tutopia Shares).
(d) At the closing of a purchase of Tutopia Shares pursuant this Agreement
(a "Closing"), UBS and each of the other holders of Tutopia Shares which
accepted the offer to purchase made pursuant to Section 2(b) (collectively with
UBS, the "Sellers") shall deliver the certificate or certificates representing
the Tutopia Shares owned by such Seller to be sold to the Company, free and
clear of all liens and encumbrances (other than pursuant to the Tutopia
Stockholders Agreement), and the Company, as payment therefor, will issue and
deliver to such Seller the appropriate number of shares of IFX Preferred Stock
or IFX Common Stock, as the case may be, in the form of a single certificate (or
such greater number of certificates representing such shares as such Seller may
request), each dated the date of Closing and registered in such Seller's name
(or in the name of such Seller's nominee(s)). Each Seller which is to be issued
shares of IFX Preferred Stock as payment for its Tutopia Shares shall be issued
such shares of IFX Preferred Stock in such proportions between shares of voting
and non-voting IFX Preferred Stock as each such Seller shall determine.
(e) At each Closing, each Seller which is not then a party to the
Stockholders Agreement or the Registration Rights Agreement (as such terms are
defined in the Preferred
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Stock Purchase Agreement) shall become a party to each such agreement by
executing and delivering to the Company a counterpart signature page thereof. In
addition, at each Closing, each Seller shall represent and warrant to the
Company that it is acquiring the shares of IFX Preferred Stock or IFX Common
Stock, as the case may be, for its own account, for investment purposes only,
and with no present intention of distributing, selling or otherwise disposing of
them, and each other holder of Tutopia Shares shall waive any further rights
under the Tutopia Stockholders Agreement as a condition to participating in the
Put Option. In the event that any Seller refuses or fails to become a party to
such agreements or make such representation and warranty or otherwise fails to
comply with all of the obligations of a Seller hereunder, then such Seller shall
be deemed to have revoked the exercise of its Put Option and shall not be
entitled to have its Pro Rata Portion of Tutopia Shares purchased by the Company
at the Closing.
3. Covenants of the Company. The Company hereby covenants to UBS as follows:
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(a) As soon as practicable following receipt of the UBS Put Notice, but in
any event no later than twenty (20) days thereafter, the Company shall file with
the Secretary of State of the State of Delaware a Certificate of Designation,
Number, Powers, Preferences and Relative, Participating and Other Rights (the
"IFX Preferred Certificate") authorizing a new series of preferred stock of the
Company (the "IFX Preferred Stock") substantially in the form of the Series C
Certificate (as defined below). The IFX Preferred Stock shall have all of the
rights, preferences, privileges and restrictions of the Company's Series C
Convertible Preferred Stock (the "Series C Preferred Stock") set forth in the
Certificate of Designation, Number, Powers, Preferences and Relative,
Participating, Optional and Other Rights of Series C Convertible Preferred Stock
of the Company filed with the Secretary of State of the State of Delaware on
February 19, 2002, as amended from time to time (the "Series C Certificate");
provided, however, that upon a bankruptcy, liquidation, dissolution or winding
up of the Company, the holders of IFX Preferred Stock shall not be entitled to
receive out of the assets or funds of the Company by reason of their ownership
of such IFX Preferred Stock amounts in excess of the Stated Preference as is
provided with respect to the Series C Preferred Stock in Section 3(a)(i) of the
Series C Certificate.
(b) At each Closing, (i) the shares of IFX Preferred Stock and/or IFX
Common Stock to be issued and sold to each Seller at such Closing shall 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 (as
defined in the Preferred Stock Purchase Agreement), other than the Stockholders
Agreement, (ii) the IFX Common Stock issuable upon conversion of the IFX
Preferred Stock will have been duly authorized, will have been reserved for
issuance upon conversion of the IFX Preferred Stock, and, when issued, will be
duly and validly issued and outstanding, fully paid and nonassessable and will
be free of Encumbrances, other than pursuant to the Stockholders Agreement, and
(iii) the shares of Common Stock issuable upon conversion of the IFX Preferred
Stock to be issued and sold to such Seller at the Closing and any shares of IFX
Common Stock to be issued and sold to each Seller at such Closing shall have
been duly listed or admitted for trading on the Nasdaq National Market or such
other stock exchange or listing service as the IFX Common Stock is then listed
or admitted for trading.
4. Conditions to Obligations of the Sellers. The obligation of each of the
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Sellers to sell its Tutopia Shares which it has agreed to sell at the Closing
pursuant to its Put Option, and the other
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obligations of each of the Sellers under this Agreement, are subject to the
fulfillment at or prior to the Closing of the following conditions, any of which
may be waived in writing in whole or in part by such Seller:
(a) Performance. The Company and each of its subsidiaries shall have
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performed and complied in all material respects with all agreements, conditions
and covenants contained herein required to be performed or complied with by it
prior to or at the Closing, including without limitation the covenants set forth
in Section 3.
(b) Absence of Litigation. (i) The consummation of the transactions
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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
proceeding with respect to the application of any such applicable law to such
effect shall be pending or threatened; and (iii) no proceeding shall be pending
or shall have been threatened which seeks to impose liability upon any of the
Sellers by reason of the consummation of the transactions contemplated by this
Agreement.
(c) Consents. Such Seller and the Company shall have obtained any and all
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necessary consents and governmental approvals, and shall have made any and all
filings and declarations necessary or appropriate for the consummation of the
transactions contemplated by this Agreement. In furtherance and not in
limitation of the foregoing, the requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or any foreign anti-competition, antitrust
or pre-merger notification rules and regulations, if applicable, shall have been
complied with.
(d) Filing of Certificate. Prior to or contemporaneously with the Closing
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the IFX Preferred Certificate shall have been duly filed with the Secretary of
State of the State of Delaware and shall be in full force and effect as of the
Closing and shall not have been amended or modified without the consent of UBS.
(e) Other Documents. The Company shall have delivered to each of the
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Sellers such other documents and completed such other proceedings relating to
the transactions contemplated by this Agreement as any Seller may reasonably
request.
5. Conditions to Obligations of the Company. The obligation of the Company to
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purchase each Seller's Tutopia Shares which such Seller has agreed to sell at
the Closing pursuant to the Put Option, and the other obligations of the Company
under this Agreement with respect to such Seller, are subject to the fulfillment
at or prior to the Closing of the following conditions, any of which may be
waived in writing in whole or in part by the Company:
(a) Performance. Such Seller shall have performed and complied in all
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material respects with all agreements, conditions and covenants contained herein
required to be performed or complied with by it prior to or at the Closing.
(b) Absence of Litigation. (i) The consummation of the transactions
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contemplated hereby shall not have been restrained, enjoined or otherwise
prohibited by any applicable law,
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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 proceeding with respect to the
application of any such applicable law to such effect shall be pending or
threatened; and (iii) no proceeding shall be pending or shall have been
threatened which seeks to impose liability upon the Company or any of its
subsidiaries by reason of the consummation of the transactions contemplated by
this Agreement.
(c) Consents. The Company shall have obtained any and all material
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necessary consents and governmental approvals, and shall have made any and all
material filings and declarations necessary or appropriate for the consummation
of the transactions contemplated by this Agreement. In furtherance and not in
limitation of the foregoing, the requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or any foreign anti-competition, antitrust
or pre-merger notification rules and regulations, if applicable, shall have been
complied with.
6. General.
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(a) Transfer; Assignment. UBS may transfer or assign its rights under this
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Agreement, in whole or in part.
(b) Notices. All notices, requests and demands to or upon the respective
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parties hereto to be effective shall be in the manner provided in the Preferred
Stock Purchase Agreement
(c) Amendments. This Agreement may not be modified, changed, amended,
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terminated or abandoned except in a writing signed by UBS and the Company.
(d) Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the internal laws of the State of New York without
regard to the principles of conflicts of law thereof. Each party hereto hereby
irrevocably submits to the nonexclusive jurisdiction of the courts of the State
of New York and of the United States of America sitting in the City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that the venue thereof may not be appropriate,
that such suit, action or proceeding is improper or that this Agreement or any
of the documents referred to in this Agreement may not be enforced in or by said
courts, and each party hereto irrevocably agrees that all claims with respect to
such suit, action or proceeding may be heard and determined in such a New York
state or federal court. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party in the manner provided in
Section 6(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
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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
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any securities exchange or market (in which case the text of the announcement
shall be provided 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) Entire Agreement. This Agreement contains the entire agreement and
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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.
(g) Further Assurances. Each party shall cooperate and take such actions
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as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby and thereby.
(h) Counterparts. This Agreement may be executed (including by facsimile
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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.
(i) Termination. This Agreement shall terminate upon the later to occur of
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(i) the Expiration Date or (ii) the date of the last Closing of any Put Options
that were exercised pursuant to Put Notices that were sent prior to the
Expiration Date.
(j) No Third Party Rights. This Agreement is not intended and shall not be
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construed to create any rights in any persons other than the parties listed on
the signature page hereto, and no person shall be entitled to assert any rights
as third party beneficiary hereunder.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties have executed this PUT AGREEMENT as of the date
set forth in the first paragraph hereof.
IFX CORPORATION
By: /s/ Michael Shalom Name: Michael Shalom
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Title: Chief Executive Officer
UBS CAPITAL AMERICAS III, L.P.By: UBS Capital Americas III, LLC
By: /s/ Mark O. Lama
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Name: Mark O. Lama
Title: Principal
By: /s/ Marc A. Unger
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Name: Marc A Unger
Title: Chief Financial Officer
UBS CAPITAL LLC
By: /s/ Mark O. Lama
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Name: Mark O. Lama
Title: Attorney-in-fact
By:/s/ Marc A. Unger
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Name: Marc A Unger
Title: Attorney-in-fact
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