<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 1, 1999
IFX Corporation
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(Exact name of Registrant as Specified in Its Charter)
Delaware 0-15187 36-3399452
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(State or Other Jurisdiction of (Commission file number) (I.R.S. Employer
Incorporation or Organization) Identification No.)
IFX Corporation
707 Skokie Blvd., 5th Floor
Northbrook, Illinois 60062
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(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
(847) 412-9411
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(Registrant's Telephone Number, Including Area Code)
_______________________________________________________
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
On June 30, 1999, IFX Corporation sold all of its shares of capital
stock of IFX Ltd., a British company, to The Park Trust. Prior to the sale, IFX
Corporation owned 50.1% and The Park Trust owned 49.1% of IFX Ltd.'s outstanding
capital stock. IFX Ltd. provides institutional brokerage and foreign exchange
services to clients in the foreign exchange and futures business. As
consideration for its shares of IFX Ltd., The Park Trust paid U.S.$1,950,000 to
IFX Corporation and agreed to pay IFX Corporation the sum of U.S.$500,000 (plus
interest at a rate of prime plus three-percent) on or before June 30, 2000. The
parties intended that the consideration paid to IFX Corporation for its shares
of IFX Ltd. would equal approximately one-half of the net book value of IFX Ltd.
as of June 30, 1999. The consideration payable to IFX Corporation is subject to
adjustment if and to the extent that, on or before the third anniversary of the
closing date, (i) the auditors of IFX Ltd. determine that the net book value
and/or the net profits of IFX Ltd. upon which the consideration paid to IFX
Corporation was calculated were incorrect, or (ii) The Park Trust sells any of
its shares of IFX Ltd. capital stock to a third party at a price per share that
is greater than the price per share paid by The Park Trust to IFX Corporation.
In addition, at the closing of such sale IFX Corporation was issued one
redeemable preference share of IFX Ltd. (the "Preference Share"), which
represents all of the authorized and issued Preference Shares of IFX Ltd. The
Preference Share entitles IFX Corporation to receive, on a quarterly basis,
payments equal to 30% of the net profits of IFX Ltd. for each three-month period
commencing on July 1, 1999 and ending on June 30, 2002.
IFX Corporation's disposition of its shares of IFX Ltd. was effected
pursuant to that certain Share Sale Agreement dated June 30, 1999 and the
Written Resolutions of the Members of IFX Limited, copies of which are filed as
Exhibits 99.1 and 99.2 hereto and are incorporated herein by this reference. On
July 1, 1999, IFX Corporation issued a press release announcing the consummation
of this transaction, a copy of which is filed as Exhibit 99.3 and is
incorporated herein by this reference.
Item 7. Financial Statement and Exhibits
Exhibit Number Description of Exhibit
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99.1 Share Sale Agreement dated June 30, 1999
99.2 Written Resolutions of the Members of IFX Limited
99.3 Press release dated July 1, 1999
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IFX Corporation
By: /s/ Joel Eidelstein
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Joel Eidelstein,
President
Date: July 12, 1999
EXHIBIT INDEX
Exhibit Number Description of Exhibit
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99.1 Share Sale Agreement dated June 30, 1999
99.2 Written Resolutions of the Members of IFX Limited
99.3 Press release dated July 1, 1999
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<PAGE>
EXHIBIT 99.1
SHARE SALE AGREEMENT
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THIS SHARE SALE AGREEMENT is made and entered into this 30/th/ day of June,
1999, by and between IFX CORPORATION, a Delaware corporation (the "Seller"), and
THE PARK TRUST, a trust governed by the laws of the Isle of Jersey, acting by
Duncan Lawrie Offshore Service Limited as its trustee ("The Park Trust").
WITNESSETH:
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WHEREAS, the Seller and The Park Trust (through its trustee and beneficiaries)
are together the registered and beneficial owners of all of the issued and
outstanding capital stock of IFX LIMITED, a company organised under the laws of
England and Wales (the "Company"), as follows:
the Seller 2,448,465 Ordinary "A" shares
The Park Trust 2,448,464 Ordinary "B" shares
WHEREAS, the Seller desires to sell to The Park Trust all 2,448,465 Ordinary "A"
shares of the Company owned by the Seller (the "Shares") on the terms and
subject to the conditions herein set forth, and The Park Trust desires to
purchase such Shares on such terms and subject to such conditions as are set out
in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
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1.1 Agreement to Purchase and Sell. Subject to all the terms and conditions
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hereof, at the Closing (as defined in Section 1.5 below) on the Closing
Date (as defined in Section 1.5 below) the Seller shall sell with full
title guarantee all of the Shares to The Park Trust, and The Park Trust
shall purchase all of the Shares from the Seller, free from all
encumbrances and together with all rights now and hereafter attaching
to them (save for any dividend declared and/or paid on the Shares in
respect of the period up to and including 30 June 1999 which dividend,
for the avoidance of doubt, will be due to the Seller)for the aggregate
consideration set forth in Section 1.2 below (the "Consideration"),
payable as provided in Section 1.3 below, and subject to The Park Trust
and the Seller complying with their obligations at the Closing as set
forth in section 1.5 below.
<PAGE>
1.2 Consideration. Subject to the terms of Section 1.4 below, the aggregate
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consideration payable by The Park Trust to the Seller for the Shares
shall be satisfied by the payment of fifty percent (50%) of the
Company's Net Book Value (as defined below) as at June 30, 1999.
As used herein, the term "Net Book Value" shall mean, as of June 30,
1999, (i) Four Million Eight Hundred Ninety Six Thousand, Nine Hundred
and Twenty-Nine United States Dollars (US$4,896,929), plus (ii) the
Company's total accrued retained earnings, minus (iii) the book value
of the Company's intangible assets to the extent that such intangible
assets are in the Net Book Value, all as determined by the Company's
auditors in accordance with generally accepted accounting principles,
consistently applied, minus (iv) an amount equal to any dividend
declared and paid after June 30, 1999, that is payable to all of the
holders of record of the Company's ordinary shares on June 30, 1999
1.3 Payment of the Consideration. Subject to the terms of Section 1.4
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below, The Park Trust shall make payment of the Consideration to the
Seller as follows:
(a) On or before July 7, 1999, The Park Trust shall pay to the Seller,
by electronic funds transfer pursuant to such instructions as the
Seller shall have provided to The Park Trust an amount equal to
(i) fifty percent (50%) of the Company's Net Book Value as at June
30, 1999, minus (ii) Five Hundred Thousand United States Dollars
(US$500,000);
(b) On or before the first anniversary of the Closing, The Park Trust
shall pay to Seller, by electronic funds transfer an amount equal
to Five Hundred Thousand United States Dollars (US$500,000) plus
interest from the Closing Date until the date on which such
payment is made at the Assumed Interest Rate. As used herein, the
term "Assumed Interest Rate" shall mean three percent (3%) per
annum over and above the prime, base or reference rate as
announced from time to time by Harris Trust and Savings Bank of
Chicago, Illinois, USA, or any successor thereto.
1.4 Consideration Adjustments. In the event that the auditors of the
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Company determine after the Closing Date that an adjustment to the
amount of Consideration paid by The Park Trust to the Seller pursuant
to Section 1.3(b) is required, based on the auditors' calculation of
Net Book Value and Net Profit, then if such adjustment shall result in
an increase in the Consideration, The Park Trust shall pay such amount
to the Seller by electronic funds transfer and if such adjustment shall
result in a decrease in the Consideration, the Seller shall pay such
amount to The Park Trust, in each case promptly after the auditors make
their determination. The auditors' determination as to the Net Book
Value and Net Profit shall be conclusive, provided, however, that each
of the parties shall have the right to review and comment on the
auditors' determination.
If a Park Trust Adjustment Event (as defined below) shall occur prior
to the third (3/rd/) anniversary of the Closing Date, then within
thirty (30) days
<PAGE>
following the closing of such Park Trust Adjustment Event, The Park
Trust shall pay the Seller, by electronic funds transfer pursuant to
such instructions as the Seller shall have provided to The Park Trust,
an amount equal to the Applicable Percentage of the amount equal to (i)
two million four hundred forty-eight thousand four hundred sixty-five
(2,448,465), multiplied by (ii) the Premium Per Share with respect to
such Park Trust Adjustment Event.
As used herein, the term "Park Trust Adjustment Event" shall mean the
sale by The Park Trust of any equity securities of the Company at a
price per share which is effectively greater than (1) the aggregate
amount paid to the Seller by The Park Trust hereunder through the date
of such sale of equity securities by The Park Trust (excluding any
payment made pursuant to Section 3.3 hereof), divided by (2) two
million four hundred forty-eight thousand four hundred sixty five
(2,448,465). As used herein, the term "Applicable Percentage" shall
mean (1) fifty percent (50%) with respect to any Park Trust Adjustment
Event which occurs on or before the first (1/st/) anniversary of the
Closing Date, (2) thirty-five percent (35%) with respect to any Park
Trust Adjustment Event which occurs after the first (1/st/) anniversary
of the Closing Date and on or before the second (2nd) anniversary of
the Closing Date, and (3) twenty percent (20%) with respect to any Park
Trust Adjustment Event which occurs after the second anniversary of the
Closing Date and prior to the third (3/rd/) anniversary of the Closing
Date. As used herein, the term "Premium Per Share" shall mean, with
respect to any particular Park Trust Adjustment Event, the amount by
which (i) the actual or deemed sales price per share in such Park Trust
Adjustment Event exceeds (ii) the quotient equal to the aggregate
amount paid to the Seller by Park Trust through the date of such Park
Trust Adjustment Event (excluding any payment made pursuant to Section
3.3 hereof), divided by two million four hundred forty-eight thousand
four hundred sixty-five (2,448,465). Notwithstanding the foregoing, if
(i) Lee S. Casty, any member of his family, any entity owned, directly
or indirectly, or controlled by Lee S. Casty or any member of his
family, or any affiliate of the foregoing in the aggregate cease to own
at least 15% of the Seller (including any successor entity into which
the Seller is merged or any acquirer of Seller) or (ii) more than 50%
of the directors of the Seller at the Closing Date shall cease to be
directors thereof, unless prior to such change the new directors shall
have been approved by the incumbent directors, then the provisions of
this Section 1.4 shall not apply. Instead, The Park Trust covenants
that no event which would otherwise constitute a Park Trust Adjustment
Event shall occur without Seller's (or its transferee's or successor's)
consent.
1.5 Closing. The consummation of the purchase and sale of the Shares
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described in Section 1.1 above (the "Closing") shall occur on June 30,
1999 (the date of the Closing being referred to herein as the "Closing
Date"). At the Closing, and concurrently with the Seller's performance
of its obligations hereunder to be performed at the Closing:
(a) the Seller shall deliver to The Park Trust a share
certificate evidencing the Seller's ownership of the
Shares, together with a duly executed stock transfer form
in form sufficient to effect the transfer of the Shares to
The Park Trust; and
<PAGE>
(b) The Park Trust and the Seller shall each sign such
shareholder and class resolutions of the Company (the
"Resolutions") and procure that the board of directors of
the Company passes such board resolutions (the "Board
Resolutions") as are required to:
(i) Amend thearticles of association of the Company
(the "Articles");
(ii) Reclassify the Ordinary "A" Shares and the
Ordinary "B" Shares of the Company as Ordinary
Shares of US$1 each to rank pari passu; and;
(iii) Allot and issue, credited as fully paid up, one
new redeemable preference share of US$1 in the
Company (the "Preference Share") to the Seller,
such Preference Share having the rights and
being subject to the restrictions set out in the
Articles (in consideration for US$1 paid by the
Seller to the Company), enter the Seller in the
register of members of the Company as the holder
of the Preference Share and issue a share
certificate in respect of the Preference Share
to the Seller.
The Resolutions and the Board Resolutions shall be in the form attached
to this Agreement and initialled by or on behalf of The Park Trust and
the Seller for the purposes of identification.
1.6 Late Payments. Any payments due to Seller hereunder, if not paid when
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due, shall accrue interest and be payable at the Assumed Interest Rate.
1.7 Seller's Change of Name. The Seller confirms that in the event that it
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shall commence any activities in the field of financial trading, then
it shall use its best efforts, at its own expense, to change its name
(and any trading name) to any name not including the words or
abbreviations "Index Future Group", "IFX" or any similar word or
colourable imitation thereof at the next annual or special meeting of
the stockholders of the Seller, which the Seller shall cause to be
called for a date not later than June 30, 2000, and shall supply a copy
of its Certificate of Incorporation on Change of Name or equivalent
document to The Park Trust promptly after such change has been
effected.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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2.1 Representations and Warranties of the Seller
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(i) Organisation and Authority. The Seller is a corporation which is
duly organised, validly existing, and in good standing under the
laws of the State of Delaware, U.S.A. The Seller has full
corporate power, right and capacity to enter into this Agreement
and to perform its
<PAGE>
obligations hereunder. The Seller's execution, delivery and
performance of this Agreement have been duly authorised by all
necessary corporate action on the part of the Seller.
(ii) Enforceability. This Agreement is a valid and binding agreement
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of the Seller enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy,
insolvency, reorganisation, moratorium or similar laws and except
as may be limited by the unavailability of equitable remedies.
(iii) No Conflicts. The Seller's execution, delivery and performance of
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this Agreement does not conflict with, and does and will not
result in a material breach of, or constitute a violation or
default under, any agreement or other document or instrument to
which the Seller is a party or by which the Seller or any of its
assets or properties is bound or affected, or any law, statute,
rule, regulation, ordinance, writ, order or judgement to which
the Seller is subject or by which the Seller or any of its assets
or properties is bound or affected.
(iv) Title to the Shares. The Seller is the registered and sole
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beneficial owner of the Shares, free and clear of all mortgages,
liens, claims, encumbrances and other security interests or
restrictions or any kind whatsoever. The Shares are fully paid
up.
(v) Consents. The Seller is not required to obtain any consent or
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other approval from any governmental agency or any other person
(including any lessor, customer, supplier or lender to the Seller
or the Company) to permit the consummation of the transactions
contemplated hereby.
(vi) No Indebtedness. There is not outstanding any indebtedness or
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other liability (actual or contingent) owing by the Company to
the Seller or to any officer of or any person connected with the
Seller, nor is there any indebtedness owing to the Company by any
such person.
(vii) No Pre-emptive Rights. No person has the right (whether
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exercisable now or in the future and whether contingent or not)
to call for the sale, transfer or conversion of any of the Shares
under any option or other loan agreement (including conversion
rights and rights of pre-emption).
2.2 Representations of The Park Trust - Enforceability. This Agreement is a
valid and binding agreement of The Park Trust enforceable against it in
accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganisation, moratorium or similar laws and
except as may be limited by the unavailability of equitable remedies.
The Park Trust furthermore warrants that it is a duly constituted trust
in accordance with the laws of the Isle of Jersey.
<PAGE>
ARTICLE III
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COVENANTS
3.1 Conduct of the Company Pending Closing. The Seller hereby covenants and
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agrees that, from the date hereof to and including the Closing Date,
the Seller shall cause the Company to operate the business only in
usual and ordinary course, consistent with past practice.
3.2 Termination of the Stockholders Agreement. Except as otherwise provided
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in this Section 3.2, effective as of the Closing Date, the Stockholders
Agreement previously made between IFX Corporation and The Park Trust in
relation to the Company shall be terminated and of no further force or
effect whatsoever.
3.3 Payment of Indebtedness. The Park Trust hereby confirms that it has
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already paid or will pay promptly that certain indebtedness to Seller
in the principal amount of Two Hundred Thousand United States Dollars
(US$200,000) which covenant will not, for the avoidance of doubt, form
part of the Consideration in any event.
3.4. Audit Rights. The Park Trust hereby covenants and agrees that, until
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such time as The Park Trust shall have fully discharged all of its
obligations to the Seller hereunder, The Park Trust shall keep full and
complete books and records relating to all of the matters which could
affect the calculation of amounts payable by The Park Trust to the
Seller hereunder. The Park Trust further covenants and agrees that all
such books and records shall be kept in accordance with prudent
business practice and shall be prepared in accordance with the
practices adopted by the Company for the preparation of its management
accounts, and shall be retained for at least four (4) years following
the Closing Date. The Seller and its duly authorised representatives
shall have the right at all reasonable times and upon reasonable notice
to examine such books and records, and shall have free and full access
thereof for said purposes and for the purpose of making extracts
therefrom and copies thereof. The costs of any such examination by the
Seller or any of its duly authorised representatives shall be borne
solely by Seller unless such examination shall reveal an underpayment
by The Park Trust of more than five percent (5%) with respect to any
particular quarter, in which event The Park Trust shall promptly
reimburse the Seller for such costs of examination.
3.5 Indemnification.
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(i) The Park Trust (the "Indemnitor") hereby agrees to
indemnify the Seller and the affiliates, directors and
officers of the Seller (collectively, the "Indemnitee") and
shall hold each of them harmless from, any and all damages,
claims, suits, actions, causes of action, proceedings,
investigations, losses, liabilities, assessments, judgements,
deficiencies and expenses (including without limitation,
reasonable legal, accounting and other professional expenses)
<PAGE>
("Indemnified Liabilities") asserted against or incurred or
sustained by any of them relating to associated with or
arising out of any actions by the Company from and after the
date hereof; provided, however, that in no event shall Duncan
Lawrie Offshore Services Limited or any successor trustee
thereto of The Park Trust have any individual or personal
liability or obligation to indemnify or hold harmless any
Indemnitee and any indemnification amount payable pursuant to
this Agreement by The Park Trust shall be paid solely out of
the assets thereof.
(ii) Indemnification Procedure.(a) Reasonably promptly
after obtaining knowledge thereof, Indemnitee shall give
Indemnitor written notice of any Indemnified Liability which
the Indemnitee has determined has given or could give rise to
a claim for indemnification hereunder (a "Notice of Claim");
provided, however, that no failure or delay in giving any such
Notice of Claim shall relieve the Indemnitor of its
obligations except, and only to the extent, that it is
prejudiced thereby. A Notice of Claim shall specify in
reasonable detail the nature and all known particulars related
to an Indemnified Liability.
(iii) The Indemnitor shall (a) promptly inform the
Indemnitee of all material developments with respect to a
matter which is the subject of a Notice of Claim and (b)
inform the Indemnitee promptly after the Indemnitor has made a
good faith determination, based on the facts alleged in such
Notice of Claim or which have otherwise become known to the
Indemnitor, either that the Indemnitor acknowledges that it
has an indemnification obligation hereunder in respect of such
Indemnified Liability or that the Indemnitor has made a good
faith determination that it has no indemnification obligation
hereunder in respect of such Indemnified Liability. The
Indemnitee shall have the right, but not the obligation, to
participate, at its own cost and expense, in the defence,
contest or other opposition of any such third party claim,
demand, suit, action or proceeding through legal counsel
selected by it and shall have the right, but not the
obligation, to assert any and all cross-claims or
counterclaims which it may have. So long as the Indemnitor is
in good faith performing its obligations, the Indemnitee shall
(i) at Indemnitor's cost and expenses, co-operate in all
reasonable ways with, make its relevant files and records
available for inspection and copying by, make its employees
reasonably available to and otherwise render reasonable
assistance to the indemnitor upon request and (ii) not
compromise or settle any such claim, demand, suit, action or
proceedings without the prior written consent of the
Indemnitor. If the Indemnitor fails to perform its obligations
under this Section 3.5(iii), or if the Indemnitor shall have
informed the Indemnitee in writing in accordance herewith that
the Indemnitor does not have an indemnification obligation
hereunder in respect to such Indemnified Liability, then the
Indemnitee shall have the right, but not the obligation, to
take the actions which the Indemnitor would have had the right
to take in connection with the performance of such obligations
and, if the Indemnitee is entitled to indemnification
<PAGE>
hereunder in respect of the event or circumstance as to which
the Indemnitee takes such actions, then the Indemnitor shall ,
in addition to indemnifying Indemnitee for the Indemnified
Liability, indemnify the Indemnitee for all of the legal,
accounting and other costs, fees and expenses reasonably and
actually incurred in connection therewith. If the Indemnitor
proposes to settle or compromise any such third party action,
demand, claim, suit or proceeding, the Indemnitor shall give
written notice to that effect (together with a statement in
reasonable detail of the terms and conditions of such
settlement or compromise) to the Indemnitee a reasonable time
prior to effecting such settlement or compromise.
Notwithstanding anything contained herein to the contrary, the
Indemnitee shall have the right to object to the settlement or
compromise of any such third party action, demand, claim, suit
or proceeding whereupon (A) the Indemnitee will assume the
defence, contest or other opposition of any such third party
action, demand, claim, suit or proceeding for its own account
and as if it were the Indemnitor and (B) the Indemnitor shall
be released from any and all liability with respect to any
such third party action, demand, claim, suit or proceeding to
the extent that such liability exceeds the liability which the
indemnitor would have had in respect of such a settlement or
compromise.
3.6 No Dividends, etc. Without the prior written consent of Seller, The
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Park Trust will use its reasonable endeavours to procure that no
dividends, distributions or share redemptions in excess of 50% of the
year's Net Profit (as defined in the Resolutions) will be distributed
or made by the Company prior to the time that Seller receives all
amounts due under Section 1.3(b).
3.7 Tax Assistance. The Park Trust shall cause the Company to provide the
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Seller with such information as may be required by the Internal Revenue
Service.
3.8 Payments to Directors. The Park Trust shall take reasonable steps to
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procure that the Company shall not pay amounts to on behalf of Graham
Wellesley, Lorenzo Naldini or any of their affiliates (including,
without limitation, rent and business promotion expenses, professional
fees or consulting fees) in excess of (pound)120,000 in the aggregate
per year in a manner which may prejudice the payment to the Seller of
the preferential dividend pursuant to the Resolutions.
3.9 Alterations to Articles. Without the prior written consent of the
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Seller, The Park Trust undertakes to refrain from effecting any
alterations to the Articles which adversely affect the rights of the
holder of the Preference Share during the period which any monies are
owed in connection with the Preference Share.
<PAGE>
ARTICLE IV
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CONDITIONS TO THE OBLIGATIONS OF THE SELLER
The obligations of the Seller to proceed with the Closing as provided
herein are subject to the satisfaction of each of the following
conditions on or before the Closing Date, unless otherwise waived, in
writing, by the Seller.
4.1 Representations and Warranties. The representations and warranties of
------------------------------
The Park Trust contained herein shall be true and correct in all
material respects on and as of the Closing Date.
4.2 Performance. The Park Trust shall have duly performed or complied with
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all of the covenants, acts and obligations to be performed or complied
with by it hereunder at or prior to the Closing, including without
limitation the delivery of the funds and documents described in Article
1 hereof.
4.3 Trustee's Certificate. The Park Trust shall have delivered to the
---------------------
Seller a written certificate, dated the Closing Date and duly executed
by the trustee of The Park Trust, as the case may be, certifying
without qualification or exception to the effect that the
representations and warranties of The Park Trust, contained herein are
true and correct on and as of the Closing Date, and that The Park
Trust, has duly performed or complied with the covenants, acts and
obligations to be performed or complied with by it hereunder at or
prior to the Closing.
ARTICLE V
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CONDITIONS TO THE OBLIGATIONS OF THE PARK TRUST
The obligations of The Park Trust to proceed with the Closing are
subject to the satisfaction of each of the following conditions on or
before the Closing Date, unless otherwise waived, in writing, by The
Park Trust.
5.1 Representations and Warranties. The representations and warranties of
------------------------------
the Seller contained herein shall be true and correct in all material
respects on and as of the Closing Date.
5.2 Performance. The Seller shall have duly performed or complied with all
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of the covenants, acts and obligations to be performed or complied with
by it hereunder at or prior to the Closing.
5.3 Assignment of Shares. The Seller shall have delivered to The Park Trust
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the share certificate evidencing its ownership of the Shares,
accompanied by a duly executed stock transfer form in favour of The
Park Trust.
5.4 Officer's Certificate. The Seller shall have delivered to The Park
---------------------
Trust a written certificate, dated the Closing Date and duly executed
by an officer of
<PAGE>
the Seller, certifying without qualification or exception to the effect
that the Seller's representations and warranties contained herein are
true and correct on and as of the Closing Date, and that the Seller has
duly performed or complied with the covenants, acts and obligations to
be performed or complied with by it hereunder at or prior to the
Closing.
ARTICLE VI
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TERMINATION
This Agreement may be terminated and abandoned, without limiting or
waiving any other rights or remedies any party hereto may have at law
or in equity, at any time prior to the consummation of the Closing on
the Closing Date under the following described circumstances:
(a) upon the mutual written consent of all parties hereto;
(b) by The Park Trust, if the conditions set forth in Article V
hereof shall not have been fully satisfied or waived by The
Park Trust on or before June 30, 1999; or
(c) by the Seller, if the conditions set forth in Article IV
hereof shall not have been fully satisfied or waived by the
Seller on or before June 30, 1999.
ARTICLE VII
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MISCELLANEOUS
7.1 Written Agreement to Govern. This Agreement sets forth the entire
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understanding of the parties with respect to the subject matter hereof,
and supersedes all prior and contemporaneous oral or written agreements
between the parties hereto relating to such subject matter. No party
hereto shall be bound by any definition, condition, representation,
warranty, covenant or provision other than as expressly stated in this
Agreement or as hereafter set in a written instrument executed by such
party or by a duly authorised representative of such party. In no event
shall this Agreement be modified or rescinded except pursuant to a
written instrument signed by the party against whom enforcement is
sought.
7.2 Severability. The provisions of this Agreement shall be interpreted in
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a reasonable manner which will sustain their legality. The invalidity
or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof, and any such
provision which is adjudicated to be invalid or unenforceable by a
court of competent jurisdiction shall be severed from this Agreement.
7.3 Notices. Any and all notices necessary or desirable to be served
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hereunder shall be in writing and shall be (i) personally delivered,
(ii) sent by a reputable private courier service with international
operations, (iii) sent by
<PAGE>
facsimile telecopier to the facsimile number indicated for the intended
recipient below, or (iv) sent by registered mail, postage prepaid,
return receipt requested, to the address for the intended recipient set
forth below:
(a) If to the Seller:
IFX Corporation
707 Skokie Boulevard
Fifth Floor
Northbrook
Illinois
60062
Fax: [ ]
With a copy to:
Neal, Gerber & Eisenberg
Suite 2200
Two North La Salle Street
Chicago, Illinois 60602
Attn: Scott J. Bakal, Esq.
Fax: (312) 269-1747
(b) If to The Park Trust:
Duncan Lawrie Offshore Services Limited
14/15 Mount Havelock
Douglas
Isle of Man
Attn:_Ms Carolyn Johnston
Fax: + 44 1624 6628 78
With a copy to:
Duncan Lawrie Limited
1 Hobart Place
London SW1 0HU
Attn:W. M. Dawson
Fax:+44 171 245 6276
Any notice sent by private courier service as provided above shall be
deemed delivered on the third (3/rd/) business day next following the
date on which it was placed into the custody of such courier service.
Any notice delivered by facsimile telecopier as provided above shall be
deemed delivered twelve (12) hours following the date and time
reflected on a written confirmation of such transmission. Any notice
sent by mail as provided above shall be deemed delivered on the fifth
(5/th/) business day next following the postmark date which it bears.
<PAGE>
7.4 Effect of Change of Shares. If the Company shall, at any time prior to
--------------------------
the third (3/rd/) anniversary of the Closing Date, change its issued
capital stock into an increased number of shares, through an issuance
or sub-division of shares, or into a decreased number of shares,
through a redemption or consolidation of shares, then immediately after
the record date of such change all of the terms and provisions hereof
shall be deemed adjusted such that the economic effect of all the terms
and provisions hereof immediately after such change shall be identical
to the economic effect of the terms and provisions hereof immediately
prior to such change.
7.5 Public Announcements. Except as may be required by law, neither party
--------------------
hereto shall make, or shall cause to be made, any press release or
public announcement in respect of this Agreement or the transaction
contemplated hereby, or shall otherwise communicate with any news media
with respect thereto, without the express written consent of each other
party hereto. Except to the extent prohibited by applicable law, each
of the parties hereto shall co-operate in good faith with each of the
other parties here as to the timing and contents of any such press
release or public announcement. Notwithstanding the foregoing, each of
the parties consents to the other party making a public announcement
following the Closing, provided however, that prior to either party
making such announcement, each party shall provide the other party and
its legal counsel with a draft of such public announcement and provide
them with a reasonable opportunity to comment thereon.
7.6 Further Assurances. At any time and from time to time following the
------------------
Closing, each party hereto shall execute and deliver to each other
party hereto, without further consideration, such instruments of
transfer or other documents, and shall take such other action as may be
reasonably required, in order to consummate the transaction
contemplated hereby and give effect to the purposes and intent of this
Agreement.
7.7 Assignment. This Agreement shall inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and assigns.
7.8 Waiver. Failure to insist upon strict compliance with any of the terms
------
or conditions hereof shall not be deemed a waiver of such term or
condition, nor shall any waiver or relinquishment of any right or
remedy hereunder at any one or more times be deemed a waiver or
relinquishment of such right or remedy at any other time or times.
7.9 Survival. The representations, warranties, covenants and agreements set
--------
forth herein shall survive the Closing.
7.10 Governing Law. The validity, construction and enforceability of this
-------------
Agreement shall be governed by and construed in accordance with the
laws of England and Wales. Each party hereto irrevocably submits to the
exclusive jurisdiction of the courts of England and Wales with respect
to any action or proceeding arising out of or relating hereto, and each
party hereto irrevocably agrees that all claims in respect of any such
action or proceeding shall be held and determined in such court. Each
party hereby further waives, to the fullest
<PAGE>
extent permitted by law, any objection which it may now or hereafter
have to the laying of venue in any such court and any objection to any
action or proceeding in any such court on the basis of an inconvenient
forum. Each party agrees that a final, non-appealable judgement in any
such action or proceeding shall be conclusive and may be enforced in
any other jurisdiction by suit on the judgement or in any other manner
provided by law.
7.11 Attorneys Fees. If any legal action or other proceeding shall be
--------------
brought for the enforcement of any rights under this Agreement, or
arising out of any alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this
Agreement, then the prevailing party shall be entitled to recover
reasonable attorneys fees and other costs incurred in such action or
proceeding in addition to any other relief to which it may be entitled.
7.12 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement.
7.13 Interpretation. If any provision in this Agreement shall receive
--------------
judicial interpretation or construction, then there shall not be any
presumption that the terms hereof shall be strictly construed or
construed more strictly against the party which prepared the same.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
IFX CORPORATION,
a Delaware corporation
By: /s/ Joel Eidelstein Title: President
------------------------------------ --------------------
THE PARK TRUST,
a trust governed by the
laws of the Isle of Jersey
By: Duncan Lawrie Offshore Services Limited,
its trustee
By: /s/ illegible Title:___________________________
---------------------------
<PAGE>
EXHIBIT 99.2
Company number 2876294
THE COMPANIES ACTS 1985 and 1989
WRITTEN RESOLUTIONS OF THE MEMBERS
-of-
IFX LIMITED
We, the persons whose names appear below, being all the members entitled to
receive notice of and to attend and vote at general meetings of the Company,
hereby resolve, pursuant to regulation 53 of Table A in the Schedule to the
Companies (Tables A to F) Regulations 1985 (as amended) as it applies to the
Company pursuant to Article 1(a) of the Company's articles of association, upon
the following resolutions and declare that they shall be as valid and effective
as if they had been passed, in the case of resolutions 1 and 2, as ordinary
resolutions of the Company and, in the case of resolution 3, as a special
resolution of the Company at a general meeting of the Company duly convened and
held:
THAT:
ORDINARY RESOLUTIONS
1. The authorised share capital of the Company be and hereby is increased
from US$4,896,929 divided into 2,448,465 A ordinary shares of US$1 each
("A Shares") and 2,448,464 B ordinary shares of US$1 each ("B Shares")
to US$4,896,930 divided into 4,896,929 ordinary shares of US$1 each and
one redeemable preference share of US$1, by the reclassification of the
existing A Shares and B Shares in the Company as ordinary shares and
the creation of one redeemable preference share of US$1 (such
redeemable preference share having the rights and restrictions
attaching to it as set out in the articles of association of the
Company as amended pursuant to resolution 3 below).
2. Pursuant to section 80 of the Companies Act 1985 (the "Act"), the
directors of the Company be and hereby are authorised generally and
unconditionally to allot relevant securities of the Company (as defined
in section 80 of the Act) up to an aggregate nominal amount of US$1
provided that this authority, unless renewed, shall expire on the date
five years from the date on which this resolution is passed save that
the Company may before such expiry make an offer or agreement which
would or might require relevant securities to be allotted after expiry
of this authority and the directors may allot the relevant securities
in pursuance of such offer or agreement as if the authority conferred
hereby had not expired.
<PAGE>
SPECIAL RESOLUTION
3. The articles of association of the Company be and hereby are altered by
removing the third section of Article 1 headed "Share Capital" and by
renumbering the existing Article 3 as Article 3.2 and by inserting the
following Article to be numbered 3.1:
SHARES
"3.1. (1) (A) The authorised share capital of the Company at the date of
adoption of these Articles is US$4,896,930 divided into
4,896,929 ordinary shares of US$1 each ("ordinary shares")
and one redeemable preference share of US$1 ("redeemable
preference share").
(B) The rights and restrictions attaching to the redeemable
preference share are as follows:
(i) Income
(a) In this paragraph (i), the following expressions have
the following meanings:
"Applicable Percentage": shall mean (1) fifty percent
(50%) with respect to any
Company Adjustment Event
which occurs on or before
the first (1/st/)
anniversary of the Relevant
Date, (2) thirty-five
percent (35%) with respect
to any Company Adjustment
Event which occurs after the
first (1st) anniversary of
the Relevant Date and on or
before the second (2/nd/)
anniversary of the Relevant
Date, and (3) twenty percent
(20%) with respect to any
Company Adjustment Event
which occurs after the
second (2/nd/) anniversary
of the Relevant
<PAGE>
Date and prior to the third
(3/rd/) anniversary of the
Relevant Date.
"Assumed Interest Rate": shall mean three percent
(3%) per annum over and
above the prime rate as
announced from time to time
by Harris Trust and Savings
Bank of Chicago, Illinois,
USA, or any successor
thereto.
"Relevant Date": 30 June,1999
"Company Adjustment Event":
shall mean (i) the Company's
issuance of any equity
securities, or of any
securities which may be
converted into or exchanged
for equity securities, (ii)
the Company's sale of all or
substantially all of its
assets, or (iii) the merger
or consolidation of the
Company with or into any
other company or other
entity in such manner as may
be permitted under
applicable law; provided,
however, that issuance of
securities or options
thereon by the Company from
time to time to any employee
or consultant of the Company
that in the aggregate
represent less than 15% of
the securities of the
Company shall not be deemed
to be a Company Adjustment
Event.
"Net Profit": for any particular time
period, the Company's net
profits of such period
determined by the Company's
auditors in accordance with
<PAGE>
the Company's historical
accounting practices;
provided, however, that in
determining Net Profit, the
following modifications from
the Company's historical
accounting practices shall
be taken into account:
(a)(1) all amounts paid to
or on behalf of Graham
Wellesley, Lorenzo Naldini,
or any of their affiliates
(including, without
limitation, rent and
business promotion expenses,
professional fees or
consulting fees) in excess
of One Hundred Twenty
Thousand Pounds
((pound)120,000) in the
aggregate per year shall be
disregarded, (2) all
expenses relating to up to
Two Million Four Hundred
Thousand United States
Dollars (US$2,400,000) of
funds borrowed by the
Company (or by The Park
Trust, if such funds are
subscribed or contributed to
the capital of the Company
or provided to the Company
in the form of subordinated
indebtedness) and
outstanding during such
period, including without
limitation all such expenses
characterised as interest,
commitment fees, closing
fees, or other fees or
charges associated with such
financing, shall be
disregarded, and (3) if more
than Two Million Four
Hundred Thousand United
States Dollars
(US$2,400,000) shall have
been borrowed by the
<PAGE>
Company and shall be
outstanding during such
period (or, in the
alternative, if more than
Two Million Four Hundred
Thousand United States
Dollars (US$2,400,000) shall
have been borrowed by The
Park Trust and shall be
outstanding during such
period, but only to the
extent that such borrowed
funds are subscribed or
contributed by The Park
Trust to the capital of the
Company or contributed to
the Company in the form of
subordinated indebtedness,
then the expenses for such
period shall be deemed to
include interest expense in
an amount equal to the
Assumed Interest Rate (as
defined above) as applied to
the amount by which the
outstanding balance of such
borrowed funds exceeds Two
Million Four Hundred
Thousand United States
Dollars (US$2,400,000) from
time to time, and the actual
expenses paid by the Company
or The Park Trust, as the
case may be, with respect to
such borrowed funds shall be
disregarded, and (b) the net
profits of any entity
affiliated with or related
to the Company that assumes
the operation of any portion
of the business of the
Company, as such business
was conducted at June 30,
1999, shall be included
<PAGE>
"Payment Period": each three month period as
referred to in (1)(b) below.
"Premium Per Share": shall mean, with respect to
any particular Company
Adjustment Event, the amount
by which (i) the actual or
deemed issuance price per
share in such Company
Adjustment Event exceeds
(ii) the quotient equal to
the aggregate amount paid to
the holder of the relevant
preference share in respect
of the preferential dividend
by the Company through the
date of such Company
Adjustment Event, divided by
two million four hundred
forty-eight thousand four
hundred sixty-five
(2,448,465).
(b) The holder of the redeemable preference share is
entitled to be paid, within twenty-three days
following the close of each three month period,
commencing with the three month period immediately
following the Relevant Date and continuing for a
total of twelve such three month periods, out of
profits available for distribution , a preferential
dividend equal to 30% of the Company's Net Profit
for such three month period without any further
resolution of the directors and/or the
Shareholders, whereupon a debt shall arise in
favour of the holder of the redeemable preference
share.
(c) If for any reason whatsoever the preferential
dividend in respect of any Payment Period is not
paid to the holder of the redeemable preference
share by the due date pursuant to paragraph (b)
above, interest shall be payable on the amount of
such overdue preferential dividend at the Assumed
Interest Rate. Such interest shall be payable from
the due date for payment until actual payment in
full is made and shall be accrued daily on the
basis of a 360 day year. Such interest shall be
treated as though it were part of the amount of the
preferential dividend originally payable.
<PAGE>
(d) The preferential dividend shall be paid to the
holder of the redeemable preference share by
electronic funds transfer pursuant to such
instructions as such holder shall from time to time
direct by notice in writing to the Company.
(e) The holder of the redeemable preference share and
its duly authorised representatives shall have the
right at all reasonable times and upon reasonable
notice to examine such books and records of the
Company and its affiliates as relate to all of the
matters which affect the calculation of amounts
payable in respect of the preferential dividend and
shall have force and full access thereto for the
said purposes and for the purpose of taking
extracts therefrom and copies thereof. The costs of
any such examination made by the holder of the
redeemable preference share or any of its duly
authorised representatives shall be borne by such
holder, unless such examination shall reveal an
underpayment by the Company of more than five per
cent (5%) with respect to any particular Payment
Period, in which event the Company shall promptly
reimburse the holder of the redeemable preference
share for such costs of examination. All such books
and records shall be kept in accordance with
generally accepted accounting principles
consistently applied, and shall be retained for at
least four (4) years following the Relevant Date.
(f) The preferential dividend is payable in priority to
a payment of a dividend to the holders of any other
class of share. While the redeemable preference
share remains in issue, the Company shall not pay
or make any dividend, distribution or share
redemption in excess of 70% of Net Profits.
(g) Save as provided in this Article 3(1)(B)(i) the
holder of the redeemable preference share shall
have no entitlement to the profits of the Company.
(h) If a Company Adjustment Event shall occur on or
prior to the third (3/rd/) anniversary of the
Relevant Date, then on the third anniversary of the
Closing (or if later the date the last preferential
dividend is paid pursuant to Article 3.1(b) above)
the preferential dividend as referred to in Article
3.1(b) above shall be increased by an amount equal
to the Applicable Percentage of the amount equal to
(i) two million four hundred forty-eight thousand
four hundred
<PAGE>
sixty-five (2,448,465), multiplied by (ii) the
Premium Per Share with respect to such Company
Adjustment Event.
Notwithstanding the foregoing, if (i) Lee S. Casty,
any member of his family, any entity owned,
directly or indirectly, or controlled by Lee S.
Casty or any member of his family, or any affiliate
of the foregoing in the aggregate cease to own at
least 15% of the holder of the redeemable
preference share (including any successor entity
into which such holder is merged or any acquiror of
such holder) or (ii)more than 50% of the members of
the board of directors of the holder shall have
ceased to serve as directors thereof, unless prior
to such change the new directors shall have been
approved by the incumbent directors, then the
provisions of this paragraph (h) shall not apply to
the Company (and accordingly the preferential
dividend shall not be so increased).
(ii) Capital
On a return of capital on winding up or otherwise (other
than on conversion, redemption or purchase of shares)
the assets of the Company available for distribution
among the members shall be applied in repaying to the
holder of the redeemable preference share the following
amounts, in priority to a repayment to the holders of
any other class of share:
(a) the amount of any accruals of the preferential
dividend, to be calculated down to and including
the date of commencement of the winding up (in the
case of a winding up) or of the return of capital
(in another case), to be payable whether or not the
preferential dividend has been declared or earned;
and
(b) the nominal amount of the redeemable preference
share.
(iii) Attendance at general meetings
The redeemable preference share confers the right on the
holder to receive notice of a general meeting but no
right to vote thereat.
(iv) Purchase and redemption
(a) The Company has the right (subject to the
provisions of these Articles and the Act) to redeem
the redeemable
<PAGE>
preference share at any time on or after 30 June
2002, and on 30 June 2003 the Company shall
(subject to the provisions of the Articles and the
Act) redeem the redeemable preference share if
still in issue.
(b) The monies payable on the redemption of the
redeemable preference share are the total of:
(I) the amount of any accruals of the
preferential dividend but not paid (including
any interest thereon; and
(II) the nominal amount of the redeemable
preference share.
(c) Redemption is effected by giving to the holder of
the redeemable preference share not less than four
weeks' notice (a "redemption notice"). The
redemption notice shall specify the date fixed for
redemption (the "redemption date") and the place at
which the certificate for the redeemable preference
share is to be presented for redemption.
(d) On the redemption date the holder of the redeemable
preference share is bound to deliver to the Company
at the place stated in the redemption notice the
certificate for the share. On receipt, the Company
shall pay to the holder (or, in the case of joint
holders, to the holder whose name stands first in
the register in respect of the redeemable
preference share) the redemption moneys due to him.
(e) If the holder of the redeemable preference share
fails to deliver the certificate for the share to
the Company, the Company may retain the redemption
moneys. The redemption moneys shall be paid to the
holder (by cheque despatched at the holder's risk)
within five business days of receipt of the
certificate or an indemnity in respect of the
certificate in a form satisfactory to the board. No
person has a claim against the Company for interest
on retained redemption moneys.
(v) Transfers
The redeemable preference share shall not be
transferable."
<PAGE>
..../s/ (officer).............................
For and on behalf of
Duncan Lawrie Offshore Services Limited as trustee of
the Park Trust
.../s/ Joel Eidelstein, as President.........
For and on behalf of
IFX Corporation
Date [ ] 1999
<PAGE>
EXHIBIT 99.3
IFX Announces Disposition of Its London Based Foreign Exchange Operation, IFX
Ltd.
CHICAGO--(BUSINESS WIRE)--July 1, 1999--IFX Corporation (NASDAQ:"FUTR")
announced today the disposition of its ownership in IFX Ltd. IFX Ltd. offers
institutional brokerage services to clients conducting business in the
international foreign exchange and futures business. The disposition of IFX Ltd.
is based on an earn-out formula with payments quarterly over a three-year
period. This transaction closed on June 30, 1999.
Commenting on this disposition, Joel Eidelstein, Chief Executive Officer of IFX,
said, "Although we are quite confident in the viability and potential of IFX
Ltd., we feel that this line of business does not fit into our core focus of
Internet based operations and investments in Latin America."
IFX Corporation (http:\\www.ifxcorp.com) is a pan-regional Internet service
provider (ISP) covering Latin America and the United States. The Company
provides a wide array of Internet services and makes investments in other
Internet-related businesses. IFX recently made an investment of $3 million for a
minority stake in Yupi Internet, Inc.,(http://www.yupi.com). Yupi believes it is
the largest Spanish-language Internet network in the world. Also, IFX holds an
interest in Telcom.Net, LP, an Internet software company specializing in
Internet based communications solutions. For more information on Telcom.Net, LP,
please visit Telcom's web site http://www.telcom.net.
This release and prior releases are available on the KCSA Public Relations
Worldwide website at www.kcsa.com.
Contact:
IFX CORPORATION
Colleen Downes
Chief Financial Officer
IFX Corporation
312/419-9530
or
KCSA
Joseph A. Mansi/Sarah Shepard
212/682-6300, ext. 205/236
Fax: 212/697-0910
e-mail: [email protected] [email protected]
or
MEDIA
Jennifer Urezzio
212/682-6300, ext. 223
Fax: 212/338-9558
e-mail: [email protected]
