SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "AGREEMENT") is dated as
of
March 24, 2004, among Infocrossing, Inc., a
Delaware corporation (the
"COMPANY"), and the purchasers identified
on the signature pages hereto (each, a
"PURCHASER" and collectively, the
"PURCHASERS").
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of
the Securities Act (as defined below)
and Rule 506 promulgated thereunder, the
Company desires to issue and sell to
the Purchasers, and the Purchasers,
severally and not jointly, desire to
purchase from the Company certain
securities of the Company, as more fully
described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained
in
this Agreement, and for other good and
valuable consideration the receipt and
adequacy of which are hereby acknowledged,
the Company and the Purchasers agree
as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms
defined elsewhere in this Agreement,
for all purposes of this Agreement, the
following terms shall have the meanings
indicated in this Section 1.1:
"ACTION" means any action, suit, inquiry, notice of violation,
proceeding (including any partial
proceeding such as a deposition) or
investigation pending or threatened against
or affecting the Company in a
writing delivered to the Company or such
Subsidiary (as the case may be), any
Subsidiary or any of their respective
properties before or by any court,
arbitrator, governmental or administrative
agency, regulatory authority
(federal, state, county, local or foreign),
stock market, stock exchange or
trading facility.
"AFFILIATE" means any Person that, directly or indirectly
through one or more intermediaries,
controls or is controlled by or is under
common control with a Person, as such terms
are used in and construed under Rule
144.
"BUSINESS DAY" means any day except Saturday, Sunday and any
day which shall be a federal legal holiday
or a day on which banking
institutions in the State of New York are
authorized or required by law or other
governmental action to close.
"CLOSING" means
the closing of the purchase and sale of the
Shares pursuant to Article II.
"CLOSING DATE" means the second Business Day after the
satisfaction or waiver of the conditions to
Closing set forth in Sections 5.1
and 5.2.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, $0.01
par value per share, and any securities
into which such common stock may
hereafter be reclassified.
"COMPANY COUNSEL" means Latham & Watkins LLP.
"DISCLOSURE MATERIALS" has the meaning set forth in Section
3.1(h).
"EFFECTIVE DATE" means the date that the Registration
Statement required by Section 2(a) of the
Registration Rights Agreement is first
declared effective by the Commission.
"ESCROW AGENT" means the Escrow Agent under the Escrow
Agreement.
"ESCROW AGREEMENT" means the Escrow Agreement, dated as of the
date of this Agreement, among the Company,
Roth Capital Partners, LLC and the
Escrow Agent.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"INVESTMENT AMOUNT" means, with respect to each Purchaser, the
investment amount indicated below such
Purchaser's name on the signature page of
this Agreement.
"LIEN" means any lien, charge, encumbrance, security interest
or right of first refusal.
"PER SHARE PURCHASE PRICE" equals $10.50.
"PERSON" means an individual or corporation, partnership,
trust, incorporated or unincorporated
association, joint venture, limited
liability company, joint stock company,
government (or an agency or subdivision
thereof) or other entity of any kind.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation,
an investigation or partial
proceeding, such as a deposition), whether
commenced or threatened.
"REGISTRATION STATEMENT" means a registration statement
meeting the requirements set forth in the
Registration Rights Agreement and
covering the resale by the Purchasers of
the Shares.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date of this
Agreement, among the Company and the
Purchasers, in the form of Exhibit B.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such
Rule may be amended from time to time,
or any similar rule or regulation hereafter
adopted by the Commission having
substantially the same effect as such
Rule.
"SEC REPORTS" has the meaning set forth in Section 3.1(h).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means the shares of Common Stock issued or issuable
to the Purchasers at the Closing.
"SUBSIDIARY" means any "significant subsidiary" as defined in
Rule 1-02(w) of the Regulation S-X
promulgated by the Commission under the
Exchange Act.
"TRADING DAY" means (i) a day on which the Common Stock is
traded on a Trading Market, or (ii) if the
Common Stock is not listed on a
Trading Market, a day on which the Common
Stock is traded in the
over-the-counter market, as reported by the
OTC Bulletin Board or the National
Quotation Bureau Incorporated, or (iii) if
the Common Stock is not quoted on the
OTC Bulletin Board, a day on which the
Common Stock is quoted in the
over-the-counter market as reported by the
National Quotation Bureau
Incorporated (or any similar organization
or agency succeeding to its functions
of reporting prices); provided, that in the
event that the Common Stock is not
listed or quoted as set forth in (i), (ii)
and (iii) hereof, then Trading Day
shall mean a Business Day.
"TRADING MARKET" means whichever of the New York Stock
Exchange, the American Stock Exchange, the
NASDAQ National Market or the NASDAQ
SmallCap Market, on which the Common Stock
is listed or quoted for trading on
the date in question.
"TRANSACTION DOCUMENTS" means this Agreement, the Registration
Rights Agreement, the Escrow Agreement and
any other documents or agreements
executed in connection with the
transactions contemplated hereunder.
ARTICLE II.
PURCHASE AND SALE
2.1 Purchase of Shares; Closing. Subject to
the terms and conditions set forth
in this Agreement, at the Closing the
Company shall issue and sell to each
Purchaser, and each Purchaser shall,
severally and not jointly, purchase from
the Company, the Shares representing such
Purchaser's Investment Amount. The
Closing shall take place on the Closing
Date at the offices of Bryan Cave LLP,
1290 Avenue of the Americas, New York, NY
10104 or at such other location as the
parties may agree.
2.2 Closing Deliveries. (a) At the Closing,
the Company shall deliver or cause
to be delivered to each Purchaser the
following (collectively, the "COMPANY
DELIVERABLES"):
(i) a certificate evidencing a number of
Shares equal to such Purchaser's
Investment Amount divided by the Per Share
Purchase Price, registered in the
name of such Purchaser, or such nominee
name as designated by Purchaser;
(ii) the legal opinion of Company Counsel,
in agreed form, addressed to the
Purchasers; and
(iii) the Registration Rights Agreement and
the Escrow Agreement, each duly
executed by the Company.
(b) At the Closing, each Purchaser shall
deliver or cause to be delivered the
following:
(i) such Purchaser's Investment Amount,
which shall have been deposited in
accordance with Section 4.11 and which will
be distributed in accordance with
the Escrow Agreement; and
(ii) the Registration Rights Agreement,
duly executed by such Purchaser.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the
Company. The Company hereby makes the
following representations and warranties to
each Purchaser:
(a) Subsidiaries. The Company has no direct
or indirect Subsidiaries other than
those listed in Schedule 3.1(a). Except as
disclosed in Schedule 3.1(a), the
Company owns, directly or indirectly, all
of the capital stock of each
Subsidiary free and clear of any and all
Liens, and all the issued and
outstanding shares of capital stock of each
Subsidiary are validly issued and
are fully paid, non-assessable and free of
preemptive and similar rights.
(b) Organization and Qualification. Each of
the Company and each Subsidiary is
an entity duly incorporated or otherwise
organized, validly existing and in good
standing under the laws of the jurisdiction
of its incorporation or organization
(as applicable), with the requisite power
and authority to own and use its
properties and assets and to carry on its
business as currently conducted.
Neither the Company nor any Subsidiary is
in violation of any of the provisions
of its respective certificate or articles
of incorporation, bylaws or other
organizational or charter documents. Each
of the Company and each Subsidiary is
duly qualified to conduct business and is
in good standing as a foreign
corporation or other entity in each
jurisdiction in which the nature of the
business conducted or property owned by it
makes such qualification necessary,
except where the failure to be so qualified
or in good standing, as the case may
be, would not, individually or in the
aggregate, have or reasonably be expected
to result in (i) an adverse effect on the
legality, validity or enforceability
of any Transaction Document, (ii) a
material and adverse effect on the results
of operations, assets, prospects, business
or condition (financial or otherwise)
of the Company and the Subsidiaries, taken
as a whole, or (iii) a material
adverse impairment to the Company's ability
to perform on a timely basis its
obligations under any Transaction Document
(any of (i), (ii) or (iii), a
"MATERIAL ADVERSE EFFECT").
(c) Authorization; Enforcement. The Company
has the requisite corporate power
and authority to enter into and to
consummate the transactions contemplated by
each of the Transaction Documents and
otherwise to carry out its obligations
thereunder. The execution and delivery of
each of the Transaction Documents by
the Company and the consummation by it of
the transactions contemplated thereby
have been duly authorized by all necessary
action on the part of the Company and
no further action is required by the
Company in connection therewith. Each
Transaction Document has been (or upon
delivery will have been) duly executed by
the Company and, when delivered in
accordance with the terms hereof, will
constitute the valid and binding obligation
of the Company enforceable against
the Company in accordance with its terms,
except as such enforceability may be
limited by applicable bankruptcy,
insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or
affecting generally the enforcement
of, creditors' rights and remedies or by
other equitable principles of general
application and as any rights to indemnity
or contribution thereunder may be
limited by public policy
considerations.
(d) No Conflicts. The execution, delivery
and performance of the Transaction
Documents by the Company and the
consummation by the Company of the transactions
contemplated thereby do not and will not
(i) conflict with or violate any
provision of the Company's or any
Subsidiary's certificate or articles of
incorporation, bylaws or other
organizational or charter documents, or (ii)
conflict with, or constitute a default (or
an event that with notice or lapse of
time or both would become a default) under,
or give to others any rights of
termination, amendment, acceleration or
cancellation (with or without notice,
lapse of time or both) of, any agreement,
credit facility, debt or other
instrument (evidencing a Company or
Subsidiary debt or otherwise) or other
understanding to which the Company or any
Subsidiary is a party or by which any
property or asset of the Company or any
Subsidiary is bound or affected, or
(iii) result in a violation of any law,
rule, regulation, order, judgment,
injunction, decree or other restriction of
any court or governmental authority
to which the Company or a Subsidiary is
subject (including federal and state
securities laws and regulations), or by
which any property or asset of the
Company or a Subsidiary is bound or
affected; except in the case of each of
clauses (ii) and (iii), such as would not,
individually or in the aggregate,
have or reasonably be expected to result in
a Material Adverse Effect.
(e) Filings, Consents and Approvals. The
Company is not required to obtain any
consent, waiver, authorization or order of,
give any notice to, or make any
filing or registration with, any court or
other federal, state, local or other
governmental authority or other Person in
connection with the execution,
delivery and performance by the Company of
the Transaction Documents, other than
(i) the filing with the Commission of one
or more Registration Statements in
accordance with the requirements
Registration Rights Agreement or the filing of
a Form D with the Commission, (ii) any
filings required by state securities
laws, (iii) the filings required in
accordance with Section 4.5, and (iv) those
that have been made or obtained prior to or
as of the date of this Agreement.
(f) Issuance of the Shares. The Shares have
been duly authorized and, when
issued and paid for in accordance with this
Agreement, will be duly and validly
issued, fully paid and nonassessable, free
and clear of all Liens.
(g) Capitalization. The number of shares
and type of all authorized, issued and
outstanding capital stock of the Company,
and all shares of Common Stock
reserved for issuance under the Company's
various option and incentive plans, is
set forth in Schedule 3.1(g). Except as set
forth in Schedule 3.1(g), no
securities of the Company are entitled to
preemptive or similar rights, and no
Person has any right of first refusal,
preemptive right, right of participation,
or any similar right to participate in the
transactions contemplated by the
Transaction Documents. Except as a result
of the purchase and sale of the Shares
and except as disclosed in Schedule 3.1(g),
there are no outstanding options,
warrants, scrip rights to subscribe to,
calls or commitments of any character
whatsoever relating to, or securities,
rights or obligations convertible into or
exchangeable for, or giving any Person any
right to subscribe for or acquire,
any shares of Common Stock, or contracts,
commitments, understandings or
arrangements by which the Company or any
Subsidiary is or may become bound to
issue additional shares of Common Stock, or
securities or rights convertible or
exchangeable into shares of Common Stock.
Except as set forth in Schedule
3.1(g), the issue and sale of the Shares
will not, immediately or with the
passage of time, obligate the Company to
issue shares of Common Stock or other
securities to any Person (other than the
Purchasers) and will not result in a
right of any holder of Company securities
to adjust the exercise, conversion,
exchange or reset price under such
securities.
(h) SEC Reports; Financial Statements. The
Company has filed all reports
required to be filed by it under the
Securities Act and the Exchange Act,
including pursuant to Section 13(a) or
15(d) thereof, for the twelve months
preceding the date hereof (the foregoing
materials being collectively referred
to herein as the "SEC REPORTS" and,
together with the Schedules to this
Agreement, the "DISCLOSURE MATERIALS") on a
timely basis or has timely filed a
valid extension of such time of filing and
has filed any such SEC Reports prior
to the expiration of any such extension. As
of their respective dates, the SEC
Reports complied in all material respects
with the requirements of the
Securities Act and the Exchange Act and the
rules and regulations of the
Commission promulgated thereunder, and none
of the SEC Reports, when filed,
contained any untrue statement of a
material fact or omitted to state a material
fact required to be stated therein or
necessary in order to make the statements
therein, in light of the circumstances
under which they were made, not
misleading. The financial statements of the
Company included in the SEC Reports
comply in all material respects with
applicable accounting requirements and the
rules and regulations of the Commission
with respect thereto as in effect at the
time of filing. Such financial statements
have been prepared in accordance with
generally accepted accounting principles
applied on a consistent basis during
the periods involved ("GAAP"), except as
may be otherwise specified in such
financial statements or the notes thereto,
and fairly present in all material
respects the financial position of the
Company and its consolidated Subsidiaries
as of and for the dates thereof and the
results of operations and cash flows for
the periods then ended, in each case in
accordance with GAAP, subject, in the
case of unaudited statements, to normal,
nonrecurring, year-end audit
adjustments.
(i) Press Releases. The press releases
disseminated by the Company during the
one (1) year preceding the date of this
Agreement taken as a whole do not
contain any untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
in order to make the statements
therein, in light of the circumstances
under which they were made, not
misleading.
(j) Material Changes. Since the date of the
latest audited financial statements
included within the SEC Reports, except as
specifically disclosed in the SEC
Reports, (i) there has been no event,
occurrence or development that has had or
that would have or reasonably be expected
to result in a Material Adverse
Effect, (ii) the Company has not incurred
any liabilities (contingent or
otherwise) other than (A) trade payables
and accrued expenses incurred in the
ordinary course of business consistent with
past practice and (B) liabilities
not required to be reflected in the
Company's financial statements pursuant to
GAAP or required to be disclosed in filings
made with the Commission, (iii) the
Company has not adopted material changes in
accounting principles or changed its
auditors, (iv) the Company has not declared
or made any dividend or distribution
of cash or other property to its
stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares
of its capital stock, and (v) the
Company has not issued any equity
securities to any officer, director or
Affiliate, except pursuant to existing
Company stock option plans. The Company
does not have pending before the Commission
any request for confidential
treatment of information.
(k) Litigation. There is no Action which
(i) adversely affects or challenges the
legality, validity or enforceability of any
of the Transaction Documents or the
Shares or (ii) would, if there were an
unfavorable decision, individually or in
the aggregate, have or reasonably be
expected to result in a Material Adverse
Effect. Neither the Company nor any
Subsidiary, nor any director or officer
thereof, is or has been the subject of any
Action involving a claim of violation
of or liability under federal or state
securities laws or a claim of breach of
fiduciary duty. There has not been, and to
the knowledge of the Company, there
is not pending or contemplated, any
investigation by the Commission involving
the Company or any current or former
director or officer of the Company. The
Commission has not issued any stop order or
other order suspending the
effectiveness of any registration statement
filed by the Company or any
Subsidiary under the Exchange Act or the
Securities Act.
(l) Labor Relations. No material labor
dispute exists or, to the knowledge of
the Company, is imminent with respect to
any of the employees of the Company
which would have or reasonably be expected
to result in a Material Adverse
Effect.
(m) Compliance. Neither the Company nor any
Subsidiary (i) is in default under
or in violation of (and no event has
occurred that has not been waived that,
with notice or lapse of time or both, would
result in a default by the Company
or any Subsidiary under), nor has the
Company or any Subsidiary received notice
of a claim that it is in default under or
that it is in violation of, any
indenture, loan or credit agreement or any
other agreement or instrument to
which it is a party or by which it or any
of its properties is bound (whether or
not such default or violation has been
waived), (ii) is in violation of any
order of any court, arbitrator or
governmental body, or (iii) is or has been in
violation of any statute, rule or
regulation of any governmental authority,
including without limitation all foreign,
federal, state and local laws relating
to taxes, environmental protection,
occupational health and safety, product
quality and safety and employment, labor
matters and gaming matters, except in
each case as would not, individually or in
the aggregate, have or reasonably be
expected to result in a Material Adverse
Effect. The Company is in compliance
with the applicable requirements of the
Sarbanes-Oxley Act of 2002 and the rules
and regulations thereunder promulgated by
the Commission, except where such
noncompliance would not have or reasonably
be expected to result in a Material
Adverse Effect and except that the Company
does not currently have a financial
expert on its audit committee.
(n) Regulatory Permits. The Company and the
Subsidiaries possess all
certificates, authorizations and permits
issued by the appropriate federal,
state, local or foreign regulatory
authorities necessary to conduct their
respective businesses as described in the
SEC Reports, except where the failure
to possess such permits would not,
individually or in the aggregate, have or
reasonably be expected to result in a
Material Adverse Effect ("MATERIAL
PERMITS"), and neither the Company nor any
Subsidiary has received any notice of
proceedings relating to the revocation or
modification of any Material Permit.
(o) Title to Assets. The Company and the
Subsidiaries have good and marketable
title in fee simple to all real property
owned by them that is material to their
respective businesses and good and
marketable title in all personal property
owned by them that is material to their
respective businesses, in each case free
and clear of all Liens, except for Liens as
do not materially affect the value
of such property and do not materially
interfere with the use made and proposed
to be made of such property by the Company
and the Subsidiaries or Liens
pursuant to the Term Loan Agreement, dated
October 21, 2003, among the Company,
the Lenders named therein and Infocrossing
Agent, Inc., as Agent. Any real
property and facilities held under lease by
the Company and the Subsidiaries are
held by them under valid, subsisting and
enforceable leases of which the Company
and the Subsidiaries are in compliance,
except as would not, individually or in
the aggregate, have or reasonably be
expected to result in a Material Adverse
Effect.
(p) Patents and Trademarks. The Company and
the Subsidiaries have, or have
rights to use, all patents, patent
applications, trademarks, trademark
applications, service marks, trade names,
copyrights, licenses and other similar
rights that are necessary or material for
use in connection with their
respective businesses as described in the
SEC Reports and which the failure to
so have would not, individually or in the
aggregate, have or reasonably be
expected to result in a Material Adverse
Effect (collectively, the "INTELLECTUAL
PROPERTY RIGHTS"). Neither the Company nor
any Subsidiary has received a written
notice that the Intellectual Property
Rights used by the Company or any
Subsidiary violates or infringes upon the
rights of any Person. Except as set
forth in the SEC Reports, to the knowledge
of the Company, all such Intellectual
Property Rights are enforceable and there
is no existing infringement by another
Person of any of the Intellectual Property
Rights.
(q) Insurance. The Company and the
Subsidiaries are insured by insurers of
recognized financial responsibility against
such losses and risks and in such
amounts as are prudent and customary in the
businesses in which the Company and
the Subsidiaries are engaged. The Company
has no reason to believe that it will
not be able to renew its existing insurance
coverage as and when such coverage
expires or to obtain similar coverage from
similar insurers as may be necessary
on market terms.
(r) Transactions With Affiliates and
Employees. There are no transactions
between the Company or any Subsidiary on
the one hand and any officer or
director of the Company on the other and,
to the knowledge of the Company, none
of the employees of the Company is
presently a party to any transaction with the
Company or any Subsidiary (other than for
services as employees, officers and
directors), in each case, that are required
to be described in the SEC Reports
pursuant to Item 404 of Regulation S-K and
are not so described in accordance
therewith.
(s) Internal Accounting Controls. The
Company and the Subsidiaries maintain a
system of internal accounting controls
sufficient to provide reasonable
assurance that (i) transactions are
executed in accordance with management's
general or specific authorizations, (ii)
transactions are recorded as necessary
to permit preparation of financial
statements in conformity with generally
accepted accounting principles and to
maintain asset accountability, (iii)
access to assets is permitted only in
accordance with management's general or
specific authorization, and (iv) the
recorded accountability for assets is
compared with the existing assets at
reasonable intervals and appropriate action
is taken with respect to any
differences.
(t) Solvency. Based on the financial
condition of the Company as of the Closing
Date (and assuming that the Closing shall
have occurred), (i) the Company's fair
saleable value of its assets exceeds the
amount that will be required to be paid
on or in respect of the Company's existing
debts and other liabilities
(including known contingent liabilities) as
they mature; (ii) the Company's
assets do not constitute unreasonably small
capital to carry on its business for
the current fiscal year as now conducted
and as proposed to be conducted
including its capital needs taking into
account the particular capital
requirements of the business conducted by
the Company, and projected capital
requirements and capital availability
thereof; and (iii) the current cash flow
of the Company, together with the proceeds
the Company would receive, were it to
liquidate all of its assets, after taking
into account all anticipated uses of
the cash, would be sufficient to pay all
amounts on or in respect of its debt
when such amounts are required to be paid.
The Company does not intend to incur
debts beyond its ability to pay such debts
as they mature (taking into account
the timing and amounts of cash to be
payable on or in respect of its debt).
(u) Certain Fees. Except as described in
Schedule 3.1(u), no brokerage or
finder's fees or commissions are or will be
payable by the Company to any
broker, financial advisor or consultant,
finder, placement agent, investment
banker, bank or other Person with respect
to the transactions contemplated by
this Agreement. The Purchasers shall have
no obligation with respect to any fees
or with respect to any claims (other than
such fees or commissions owed by a
Purchaser pursuant to written agreements
executed by such Purchaser which fees
or commissions shall be the sole
responsibility of such Purchaser) made by or on
behalf of other Persons for fees of a type
contemplated in this Section that may
be due in connection with the transactions
contemplated by this Agreement.
(v) Certain Registration Matters. Assuming
the accuracy of the Purchasers'
representations and warranties set forth in
Section 3.2(b)-(i), no registration
under the Securities Act is required for
the offer and sale of the Shares by the
Company to the Purchasers under the
Transaction Documents. The Company is
eligible to register the resale of its
Common Stock for resale by the Purchasers
under Form S-3 promulgated under the
Securities Act. Except as described in
Schedule 3.1(v), the Company has not
granted or agreed to grant to any Person
any rights (including "piggy-back"
registration rights) to have any securities
of the Company registered with the
Commission or any other governmental
authority that have not been satisfied.
(w) Listing and Maintenance Requirements.
Except as specified in the SEC Reports
or that have been cured, the Company has
not, in the two years preceding the
date hereof, received notice from any
Trading Market to the effect that the
Company is not in compliance with the
listing or maintenance requirements
thereof. The Company is, and has no reason
to believe that it will not in the
foreseeable future continue to be (other
than with respect to minimum price
requirements), in compliance with the
current listing and maintenance
requirements for continued listing of the
Common Stock on the NASDAQ Stock
Market. The issuance and sale of the Shares
under the Transaction Documents does
not contravene the rules and regulations of
the Trading Market on which the
Common Stock is currently listed or quoted,
and no approval of the shareholders
of the Company thereunder is required for
the Company to issue and deliver to
the Purchasers the Shares in accordance
with the Transaction Documents.
(x) Investment Company. The Company is not,
and is not an Affiliate of, an
"investment company" within the meaning of
the Investment Company Act of 1940,
as amended.
(y) No Additional Agreements. The Company
does not have any agreement or
understanding with any Purchaser with
respect to the transactions contemplated
by the Transaction Documents other than as
specified in the Transaction
Documents.
(z) No Ownership in SMS. Neither the
Company nor, to the Company's knowledge,
any of its officers or directors own any
equity interest in ITO Acquisition
Corp, a data center outsourcing company
doing business as Systems Management
Specialists ("SMS") other than pursuant to
the Company's acquisition of all of
the outstanding stock of SMS.
(aa) Disclosure. The Company confirms that
neither it nor any Person acting on
its behalf has provided any of the
Purchasers or their agents or counsel with
any information that the Company believes
constitutes material, non-public
information except insofar as the existence
and terms of the proposed
transactions hereunder may constitute such
information. The Company understands
and confirms that the Purchasers will rely
on the foregoing representations and
covenants in effecting transactions in
securities of the Company. All disclosure
provided to the Purchasers regarding the
Company, its business and the
transactions contemplated hereby, furnished
by or
