Unassociated Document


    Exhibit
10.1

     

    ASSET
PURCHASE AGREEMENT

     

     This
ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of February 11, 2011 by
and between Arbinet Corporation, a Delaware corporation ("Seller"), and AIP
Acquisition LLC, a limited liability company organized under the laws of
Delaware ("Buyer").  Seller and Buyer are at times collectively
referred to herein as “Parties” and individually as a “Party.”

     

    WITNESSETH:

     

     WHEREAS,
Seller entered into that certain Agreement and Plan of Merger by and among
Seller, Primus Telecommunications Group, Incorporated (“Primus”), and PTG
Investments, Inc. dated November 10, 2010, as amended by Amendment No. 1 thereto
dated December 14, 2010 (the “Merger Agreement”); and

     

     WHEREAS,
pursuant to the terms of the Merger Agreement, PTG Investments, Inc. will merge
with and into Seller, with Seller continuing as the surviving corporation and a
wholly-owned subsidiary of Primus (the “Merger”); and

     

     WHEREAS,
Seller, together with certain of its wholly owned subsidiaries, are the owners
of the portfolio of patents and patent applications set forth in Schedule A (the
“Patent Portfolio”); and

     

     WHEREAS,
pursuant to the terms of the Merger Agreement, Seller has the right, prior to
the closing of the Merger, to, among other things, sell the Patent Portfolio to
a third party for cash; and

     

     WHEREAS,
Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the
Patent Portfolio on an “as is” and “where is” basis, subject only to the limited
representations and warranties specifically set forth herein.

     

     NOW,
THEREFORE, in consideration of the mutual representations, warranties, covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to the
terms and conditions hereof, the Parties, intending to be legally bound, hereby
agree as follows:

     

    I.  DEFINITIONS

     

    1.1.           Defined
Terms.  As used herein, the terms below shall have the
following respective meanings:

     

     "Affiliate" means, with
respect to a Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person; but
only for so long as such relationship exists.  For purposes of this
definition, "control" shall mean beneficial ownership of more than fifty percent
(50%) of the shares of the subject entity entitled to vote in the election of
directors (or, in the case of an entity that is not a corporation, for the
election of the corresponding managing authority).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     "Agreement" shall mean this
Asset Purchase Agreement (together with all attachments, schedules and exhibits
referenced herein).

     

     "Business Day" shall mean any
day other than a Saturday, Sunday or a legal holiday on which banking
institutions in the State of New York are not required to open.

     

     "Governmental Entity" shall
mean any (i) federal, state, local, municipal, foreign or other government; (ii)
governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and any court or
other tribunal); or (iii) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature, including any arbitral tribunal.

     

     "Law" means any federal,
state, local or foreign statute, law, ordinance, regulation, rule, code, order,
principle of common law, and judgment enacted, promulgated, issued, enforced or
entered by any Governmental Entity, or other requirement or rule of
law.

     

     "Liabilities" shall mean, as
to any Person, all debts, adverse claims, liabilities, commitments,
responsibilities, and obligations of any kind or nature whatsoever, direct,
indirect, absolute or contingent, of such Person, whether accrued, vested or
otherwise, whether known or unknown and whether or not actually reflected, or
required to be reflected, in such Person's balance sheets or other books and
records.

     

     "Order" shall mean any
judgment, order, injunction, writ, ruling, decree, stipulation or award of any
Governmental Entity or private arbitration tribunal.

     

     "Person" shall mean an
individual, a partnership, a joint venture, a corporation, a business trust, a
limited liability company, a trust, an unincorporated organization, a joint
stock company, a labor union, an estate, a Governmental Entity or any other
entity.

     

     "Proceeding" shall mean any
action, arbitration, audit, hearing, investigation, litigation, or suit (whether
civil, criminal, administrative, investigative, or informal), but excluding
patent prosecution matters, commenced, brought, conducted, or heard by or
before, or otherwise involving, any Governmental Entity or
arbitrator.

     

     "Transfer Tax" shall mean any
federal, state, county, local, foreign and other sales, use, transfer,
conveyance, documentary transfer, recording or other similar tax, fee or charge
imposed upon the sale, transfer or assignment of property or any interest
therein or the recording thereof, and any penalty, addition to tax or interest
with respect thereto, but such term shall not include any tax on, based upon or
measured by, the net income, gains or profits from such sale, transfer or
assignment of the property or any interest therein.

     

    1.2.           Other Definitional
Provisions.

     

    (a)        
   The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
Schedule references are to this Agreement unless otherwise
specified.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (b)      
     The meanings given to terms defined herein shall
be equally applicable to both singular and plural forms of such
terms.

     

    II.  PURCHASE
AND SALE

     

    2.1.           Assets to be
Sold.  At Closing (as defined in Section 3.1(a)), Seller shall,
and Seller shall cause its wholly owned subsidiaries identified on Schedule B
(the “Selling Subsidiaries”) to, sell, convey, assign, transfer and deliver to
Buyer, and Buyer shall purchase, acquire, and accept all of Seller’s and the
Selling Subsidiaries’ right, title and interest in the Patent Portfolio and any
rights arising therefrom (the "Purchased Assets").

     

    (a)       
    The Purchased Assets shall include, but not be limited
to,

     

    (i)           the
Seller’s and the Selling Subsidiaries’ entire right, title and interest in, to
and under the Patent Portfolio, and any and all substitutions, continuations,
divisionals, continuations-in-parts, supplementary protection certificates,
renewals, all letters patent granted thereon, and all revivals, reissues,
reexaminations, confirmations, revalidations, registrations, patents of addition
and extensions thereof in the United States or in any country, including the
right to sue for and collect damages and other recoveries for past, present and
future infringement thereof; and the entire right, title and interest in all
Convention and Treaty Rights of all kinds thereon, including without limitation
all rights of priority in any country of the world, in and to the inventions,
discoveries and applications covered by the Patent Portfolio; the same to be
held and enjoyed by the Buyer, its successors and assigns, as fully as the same
would have been held and enjoyed by the Seller and the Selling Subsidiaries,
respectively, had this Agreement not been entered into; and

     

    (ii)           copies
of all of Seller’s and the Selling Subsidiaries’ notebooks and other primary
data, research results, records and documentation, plans, standard operating
procedures, conclusions, specifications, information, technical data,
correspondence, and any other technical or descriptive materials, in each case,
as of the Closing Date, and relating to the design, development, prosecution,
maintenance, or enforcement of the Patent Portfolio or the subject matter
thereof, including, but not limited to, internal files, correspondence with
attorneys or agents, invention disclosures, infringement investigations and
reports, publications, analytical methods, analytical testing, developmental
reports, research in progress, feature specifications, functional overviews,
algorithms, data, formulae, flow charts, models, prototypes, processes, and beta
testing procedures and beta testing results relating to the Patent Portfolio, to
the extent any of the foregoing are recorded in any tangible form, whether in
paper, electronic or other format,  and to the extent held by and
reasonably accessible to Seller or the Selling Subsidiaries. Seller and Selling
Subsidiaries shall deliver any of the foregoing to Buyer upon Buyer’s request;
provided, however, that Buyer shall be responsible for any out-of-pocket
expenses incurred by Seller or Selling Subsidiaries in connection
therewith.  Seller and Selling Subsidiaries reserve the right to
redact confidential or privileged information contained in any of the foregoing
that does not relate to the Patent Portfolio.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (b)       
    The Patent Portfolio shall be transferred to the Buyer
pursuant to an “Assignment of Patents and Patent Applications” substantially in
the form of Schedule C; and as subsequently requested by Buyer in order to
effectuate or record the transfer of rights in the Patent Portfolio
worldwide.

     

    2.2.           Excluded
Assets.  The Purchased Assets shall not include any of Seller's
or the Selling Subsidiaries’ right, title or interest in or to any other assets,
property, or rights of Seller or the Selling Subsidiaries, other than those
expressly set forth in Section 2.1 above (collectively, the “Excluded
Assets”).

     

    2.3.           Liabilities to be Assumed by
Buyer.  To the extent allegations are raised or determinations
are made with respect to any Liability associated with the Purchased Assets,
including allegations or determinations of Liability arising out of the
procurement process or enforcement of any of the Purchased Assets, Buyer shall
assume on the Closing Date (as defined in Section 3.1(a)), by execution of the
Assignment of Patents and Patent Applications documents, any and all such
Liabilities associated with, arising out of, or relating to, the Purchased
Assets (collectively, the
“Assumed Liabilities”).

     

    2.4.           Excluded
Liabilities.  Except as otherwise set forth in this Agreement,
Buyer shall not assume, and shall be deemed not to have assumed, any Liabilities
except for the Assumed Liabilities, and Seller and the Selling Subsidiaries
shall be solely and exclusively liable with respect to all Liabilities of Seller
and the Selling Subsidiaries other than the Assumed Liabilities (collectively,
the “Excluded Liabilities”).

     

    2.5.           RESERVED

     

    2.6.           Consideration.  In
consideration for the Purchased Assets, and subject to the terms and conditions
of this Agreement, at Closing Buyer shall assume the Assumed Liabilities and pay
to Seller in immediately available funds, by wire transfer to an account or
accounts designated by Seller, an amount in cash equal to $4,000,000.00 (the
“Purchase Price”).

     

    2.7.           License
Agreement.  Buyer acknowledges and agrees that, at the Closing,
Buyer and Seller shall enter into a license agreement, substantially in the form
of Schedule D (the “License Agreement”), pursuant to which Buyer will grant-back
to Seller, for its benefit, and the benefit of its affiliated corporate
entities, successors and assignees by operation of law or otherwise, including
to PTG Investments, Inc. and its affiliates and assignees, a royalty-free,
worldwide, assignable (on a non-exclusive basis) and perpetual license and right
to use the Patent Portfolio and all associated rights only upon the terms set
forth in the License Agreement.

     

    2.8.           Payment of Transfer
Taxes.  All Transfer Taxes arising out of the transfer of the
Purchased Assets and any Transfer Taxes required to effect any recording or
filing with respect thereto shall be borne by Buyer.

     

    2.9.           Bulk
Sales.  Each of the Parties waives compliance with any
applicable provisions of the Uniform Commercial Code Article 6 (Bulk Sales or
Bulk Transfers) or analogous provisions of law, as adopted in the states in
which its business is conducted, as such provisions may apply to the
transactions contemplated by this Agreement.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    III.  CLOSING

     

    3.1.           Closing; Transfer of
Possession: Certain Deliveries.

     

    (a)           The
closing of the transactions contemplated herein (the “Closing”) shall be held at
the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 701
Pennsylvania Ave., NW, Suite 900 Washington, DC 20004, at 10:00 a.m., local
time, on Friday, February 11, 2011 unless the Parties hereto otherwise
agree.  The actual time and date of the Closing are referred to herein
as the “Closing Date.”

     

    (b)    
       At the Closing, Seller shall deliver
to Buyer:

     

    (i)          Duly
executed copies of the Assignment of Patents and Patent Applications documents
and all other instruments of conveyance and transfer, in form and substance
reasonably acceptable to Buyer; and

     

    (ii)         Duly
executed copies of the License Agreement.

     

    (c)         
  At the Closing, Buyer shall deliver to Seller:

     

    (i)          The
Purchase Price;

     

    (ii)         Duly
executed copies of the Assignment of Patents and Patent Applications documents
and all other instruments of transfer, in form and substance reasonably
acceptable to Seller; and

     

    (iii)        Duly
executed copies of the License Agreement.

     

    


    IV.  REPRESENTATIONS
AND WARRANTIES OF SELLER

     

     Seller
hereby represents and warrants to Buyer as follows:

     

    4.1.           Existence, Good Standing and
Power.  Seller is a corporation validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power
and authority to own and operate the Purchased Assets to be sold
hereunder.  Seller has all requisite power and authority to execute
and deliver this Agreement and the other documents and instruments to be
executed and delivered by such Seller and to perform its obligations hereunder
and thereunder.

     

    4.2.           Authority.  The
execution, delivery and performance of this Agreement and the consummation by
Seller of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Seller and the Selling
Subsidiaries.

     

    4.3.           Execution and Binding
Effect.  This Agreement has been duly and validly executed and
delivered by Seller and the documents executed by the Selling Subsidiaries have
been duly and validly executed and delivered by the applicable Selling
Subsidiaries, and each constitutes a valid and legally binding obligation of
Seller or the applicable Selling Subsidiaries, as applicable, enforceable
against each of them in accordance with its respective terms, subject, however,
to the effects of bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors’ rights generally and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    4.4.           Third Party
Approvals.  The execution, delivery and performance by Seller
of this Agreement and the transactions contemplated hereby do not require any
consents, waivers, authorizations or approvals of, or filings with, any third
Persons which have not been obtained by Seller.

     

    4.5.           Brokers and
Finders.  Seller has engaged the firm of The Bank Street Group
LLC to assist in connection with the matters contemplated by this Agreement and
will be responsible for the fees and expenses of such firm.

     

    4.6.           Good
Title.  Except as set forth in Schedule E attached hereto, to
Seller’s knowledge 1) Seller and Selling Subsidiaries have good title to and own
all right, title and interest in the Purchased Assets; 2) Seller and Selling
Subsidiaries have power and authority to sell the Purchased Assets; 3) the
Purchased Assets are free of any liens or other restrictions on title; 4) as of
the Closing Date, all actions, maintenance fees, annuities and other payments
currently outstanding, due or necessary to avoid the expiration or abandonment
of the Purchased Assets have been taken or paid, including without limitation
the filing of responses to Patent and Trademark Office or other patent office
actions; 5) no assignment, sale, agreement or encumbrance has been made or
entered into which would conflict with the transfer of ownership of the
Purchased Assets contemplated herein; 6) other than with respect to the Patent
and Trademark Office or other patent offices, no adverse finding of invalidity,
non-infringement or unenforceability has been made against any of the Purchased
Assets.  Other than with respect to actions of the Patent and
Trademark Office or other patent offices, or facts pertaining to filings or
submissions therewith, Seller and Selling Subsidiaries have no knowledge of any
fact that would render the Purchased Assets invalid or
unenforceable.

     

    V.  REPRESENTATIONS
AND WARRANTIES OF BUYER

     

     Buyer
hereby represents and warrants to Seller as follows:

     

    5.1.           Existence, Good Standing and
Power.  Buyer is a limited liability company validly existing
and in good standing under the laws of the State of Delaware and has all
requisite power and authority to own, lease and operate the property it now
owns, leases and operates.  Buyer has all requisite power and
authority to conduct its business as presently conducted, to execute and deliver
this Agreement and the other documents and instruments to be executed and
delivered by Buyer pursuant hereto and to perform its obligations hereunder and
thereunder.

     

    5.2.           Authority.  The
execution, delivery and performance of this Agreement and the consummation by
Buyer of the transactions contemplated hereby have been duly authorized by all
necessary corporate or company action on the part of Buyer.

     

    5.3.           Execution and Binding
Effect.  This Agreement has been duly and validly executed and
delivered by Buyer and constitutes a valid and legally binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, subject, however,
to the effects of bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors’ rights generally and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    5.4.           Third Party
Approvals.  The execution, delivery and performance by Buyer of
this Agreement and the transactions contemplated hereby do not require any
consents, waivers, authorizations or approvals of, or filings with, any third
Persons which have not been obtained by the Buyer.

     

    5.5.           Brokers and
Finders.  Buyer has not employed any broker or finder or
incurred any liability for any brokerage fees, commissions, finders, or similar
fees in connection with the transactions contemplated by this
Agreement.

     

    5.6.           Financing.  Buyer
has sufficient unrestricted funds on hand or committed lines of credit to
consummate the transactions contemplated by this Agreement, including the
remittance of the Purchase Price on the Closing Date.

     

    5.7.           Disclosure of
Information.  Buyer has had an opportunity to conduct reasonable due
diligence, and to ask questions and receive answers from Seller regarding the
Purchased Assets, and to obtain additional information (to the extent Seller
possessed such information or could acquire it without unreasonable effort or
expense) necessary to verify the accuracy of any information furnished to Buyer
or to which Buyer had access. 

     

    5.8.           Risk of Loss of
Investment.  Buyer understands that there is a limited
financial and operating history associated with the Patent Portfolio, and that a
purchase of the Patent Portfolio involves substantial risks and is speculative
in nature.  Buyer is experienced in evaluating, investing in, and acquiring
companies and assets, including those assets at a similar stage of development
and involving similar risk as that of the Patent Portfolio.  Buyer
acknowledges that Buyer is able to fend for itself.  Buyer has such
knowledge and experience in financial and business matters that Buyer is capable
of evaluating the merits and risks of the acquisition of the Purchased
Assets.  Buyer can bear the economic risk of such acquisition and is able,
without impairing Buyer’s financial condition, to consummate the transactions
contemplated by this Agreement, and to suffer a complete loss of the Purchase
Price. 

     

    VI.  CONDITIONS
TO OBLIGATIONS OF THE PARTIES

     

    6.1.           Conditions Precedent to
Obligations of Buyer and Seller to Close.  The respective
obligations of Buyer, on the one hand, and Seller, on the other hand, to close
under this Agreement shall be subject to the satisfaction at or prior to the
Closing Date of the following conditions:

     

    (a)       
    No
Injunction.  No preliminary or permanent injunction or other
order issued by, and no Proceeding or Order by or before any Governmental Entity
in the United States or by any United States Governmental Entity nor any Law or
Order promulgated or enacted by any United States Governmental Entity shall be
in effect or pending which materially delays, restrains, enjoins or otherwise
prohibits or seeks to restrain, enjoin or otherwise prohibit the transactions
contemplated hereby.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    (b)     
      Consents and
Approvals.  All consents, waivers, authorizations and approvals
of third Persons as are necessary in connection with the transactions
contemplated by this Agreement shall have been obtained, except for such
consents, waivers, authorizations and approvals the failure of which to obtain
or make would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the ability of the Parties to consummate
the transactions contemplated hereunder.

     

    (c)    
       Performance of
Agreements.  Each Party shall have performed in all material
respects all obligations and agreements contained in this Agreement required to
be performed by them prior to or at the Closing Date.

     

    VII.  SURVIVAL

     

    7.1.           Survival.  All
representations and warranties of Buyer and Seller contained in this Agreement
shall survive up to the Closing and shall terminate at and upon the Closing,
after which no claims based on any alleged breach thereof may be
asserted.

     

    VIII.  MISCELLANEOUS

     

    8.1.           AS-IS; WHERE-IS; WITH ALL
FAULTS; NO WARRANTY.

     

    (a)      
     EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN SECTIONS 4.1-4.6 OF THIS AGREEMENT,
SELLER MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, INCLUDING,
WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE CONDITION OF
THE PURCHASED ASSETS, THEIR CONTENTS, THE INCOME DERIVED OR POTENTIALLY TO BE
DERIVED FROM THE PURCHASED ASSETS, OR THE EXPENSES INCURRED OR POTENTIALLY TO BE
INCURRED IN CONNECTION WITH THE PURCHASED ASSETS.

     

    (b)     
      BUYER ACKNOWLEDGES AND AGREES THAT UPON
CLOSING SELLER SHALL SELL AND CONVEY TO BUYER, AND BUYER SHALL PURCHASE AND
ACCEPT FROM SELLER THE PURCHASED ASSETS “AS IS, WHERE IS, WITH ALL
FAULTS.”  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
SECTIONS 4.1-4.6, BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PURCHASED ASSETS OR
RELATING THERETO MADE OR FURNISHED BY SELLER OR ITS REPRESENTATIVES, TO WHOMEVER
MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT AS EXPRESSLY
STATED HEREIN.  BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT THAT THE PURCHASED ASSETS ARE BEING SOLD “AS IS,
WHERE IS, WITH ALL FAULTS.”

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    (c)       
    Buyer acknowledges to Seller that it had the opportunity
to conduct prior to Closing such inspections and investigations of the Purchased
Assets as Buyer deemed necessary or desirable to satisfy itself as to the
Purchased Assets and its acquisition thereof.  Buyer hereby assumes
the risk that adverse matters, subject to the Representations and Warranties
contained in sections 4.1-4.6 and other than adverse matters of which Seller or
the Selling Subsidiaries were aware, may not have been revealed by Buyer’s
review and inspections and investigations.

     

    (d)     
      Buyer acknowledges that some Purchased
Assets may contain third-party intellectual property that may have been licensed
to Seller or otherwise acquired by Seller.  Buyer understands that
Seller is unable to transfer intellectual property belonging to a third party
without the express written consent of that party, which will not be obtained or
sought by Seller as a part of this Agreement.  Buyer shall accept full
responsibility for communicating with third parties whose intellectual property
may be included in the Purchased Assets transferred hereby and shall pay any and
all licensing or other fees, costs, expenses or charges that may be associated
with using said assets.

     

    8.2.           Recitals.  The
recitals set forth in this Agreement are an integral part of this Agreement, and
are incorporated herein by reference as a substantive portion of this
Agreement.

     

    8.3.           Expenses.  Except
as set forth in this Agreement and whether or not the transactions contemplated
hereby are consummated, each Party shall bear all costs and expenses incurred or
to be incurred by such Party in connection with this Agreement and the
consummation of the transactions contemplated hereby.

     

    8.4.           Assignment.  Neither
this Agreement nor any of the rights or obligations hereunder may be assigned by
Buyer without the prior written consent of Seller. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and assigns, and except as otherwise
expressly provided herein, no other Person shall have any right, benefit or
obligation hereunder.

     

    8.5.           Parties in
Interest.  Without limiting the foregoing, no direct or
indirect holder of any equity interests or securities of either Seller or Buyer
(whether such holder is a limited or general partner, member, stockholder or
otherwise), nor any Affiliate of either Seller or Buyer, nor any director,
officer, employee, representative, agent or other controlling person of each of
the Parties hereto and their respective Affiliates shall have any liability or
obligation arising under this Agreement or the transactions contemplated
thereby.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    8.6.           Notices.  Unless
otherwise provided herein, any notice, request, instruction or other document to
be given hereunder by any Party to any other Party shall be in writing and shall
be delivered in person or by scanned documents sent by confirmed e-mail or by
courier or facsimile transmission (with such facsimile transmission confirmed by
sending a copy of such notice, request, instruction or other document by
certified mail, return receipt requested) or mailed by certified mail, postage
prepaid, return receipt requested (such mailed notice to be effective on the
date such receipt is acknowledged), as follows:

     

    
      	
              If
      to Seller:

               

              
                Arbinet
      Corporation

              

              
                460 Herndon Parkway,
      Suite 150

              

              
                Herndon, Virginia 20170

              

              
                Attention: General
      Counsel

              

              
                Telephone:  (703) 650-4240

              

              
                Fax: (703)
      650-4295

              

              
                E-mail:
      chill@arbinet.com

              

               

              
                with a copy, which
      shall not constitute notice, to:

                 

              

              
                Mintz, Levin, Cohn,
      Ferris, Glovsky and Popeo, P.C.

              

              
                701 Pennsylvania Ave.,
      NW, Suite 900

              

              
                Washington, DC 20004

              

              
                Attention: Kemal
      Hawa

              

              
                Telephone: (202)
      434-7363

              

              
                Fax: (202)
      434-7400

              

              
                E-mail:
      KHawa@mintz.com

              

               

            
	
              If
      to Buyer:

               

              AIP Acquisition
      LLC

              
                c/o Remus Holdings,
      LLC

              

              
                2200 Fletcher
      Avenue

              

              
                5th
      Floor

              

              
                Fort Lee, NJ  07024

              

              
                Telephone:  (201)
      592-0742

              

              
                e-mail: 
      philm@pure1.com

              

               

            
	
              
                with a copy, which
      shall not constitute notice, to:

                 

              

              
                Pearl Cohen Zedek
      Latzer LLP

              

              
                1500 Broadway,
      12th
      Floor

              

              
                New York, NY 10016

              

              
                Attention: Guy
      Yonay

              

              
                Telephone: (646)
      878-0808

              

              
                Email:
      GuyY@pczlaw.com

              

            


    

     

    or to
such other place and with such other copies as either Party may designate as to
itself by written notice to the other Party.  Any rejection, refusal
to accept, or inability to deliver because of changed address of which no notice
was given shall be deemed to be receipt of the notice as of the date of such
rejection, refusal or inability to deliver.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    


    8.7.          Governing Law; Jurisdiction
and Venue

     

    
      This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts
executed in and to be performed in that state. All actions and proceedings
arising out of or relating to this Agreement shall be heard and determined by
the Delaware Court of Chancery or a federal district court located in
Delaware. Each of the Parties hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the Delaware Court of Chancery or a federal district court located in
Delaware for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such court), waives any objection to the laying of
venue of any such litigation in the Delaware Court of Chancery or a federal
district court located in Delaware, agrees not to plead or claim that such
litigation brought therein has been brought in any inconvenient forum and
consents to service of process in
such action being given in accordance with the notice provisions
hereof.

       

    

    8.8.           Waiver of Jury Trial.
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ALL RIGHTS OF TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR ANY OF THE OTHER TRANSACTIONS CONTEMPLATED
HEREBY.

     

    8.9.           Entire
Agreement:  Amendments and Waivers.  This Agreement
constitutes the entire agreement between the Parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations,
and discussions, whether oral or written, of the Parties.  Except as
set forth herein or in any certificate delivered pursuant hereto, no Party (or
any employee or agent thereof) makes any representation or warranty, express or
implied, to any other Party with respect to this Agreement or the transactions
contemplated hereby.  No supplement, modification or waiver of this
Agreement (including, without limitation, any schedule hereto) shall be binding
unless the same is executed in writing by all Parties.  No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar), and no such
waiver shall constitute a continuing waiver unless otherwise expressly
provided.

     

    8.10.         Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.  Delivery of an executed counterpart of a signature page
to this Agreement by telecopy shall be as effective as delivery of a manually
executed counterpart of this Agreement.  In proving this Agreement, it
shall not be necessary to produce or account for more than one such counterpart
signed by the Party against whom enforcement is sought.

     

    8.11.         Invalidity.  If
any one or more of the provisions contained in this Agreement, or in any other
instrument referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, the Parties shall use their reasonable
efforts, including, but not limited to, the amendment of this Agreement, to
ensure that this Agreement shall reflect as closely as practicable the intent of
the Parties hereto on the date hereof.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    8.12.        
Headings.  The
headings of the Articles and Sections herein are inserted for convenience of
reference only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.

     

    8.13.         Specific
Performance.  Each of the Parties acknowledges that the other
Party hereto would be irreparably damaged in the event any of the provisions of
this Agreement were not performed in accordance with its specific terms or were
otherwise breached.  Accordingly, each of the Parties shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of this Agreement and to enforce specifically this Agreement and the terms and
provisions thereof in any action instituted in any court of the United States or
any state thereof having subject matter jurisdiction, in addition to any other
remedy to which the Parties may be entitled, at law, in equity or pursuant to
this Agreement.

     

    8.14.         Counting.  If
the due date for any action to be taken under this Agreement (including, without
limitation, the delivery of notices) is not a Business Day, then such action
shall be considered timely taken if performed on or prior to the next Business
Day following such due date.

     

    8.15.         Schedules.  The
Schedules attached to, delivered with and identified to this Agreement are a
part of this Agreement the same as if fully set forth herein and all references
herein to any Section of this Agreement shall be deemed to include a reference
to any Schedule named therein.

     

    8.16.         Preparation of this
Agreement.  Buyer and Seller hereby acknowledge
that  (a) Buyer and Seller jointly and equally participated in the
drafting of this Agreement and all other agreements contemplated hereby, (b)
both Buyer and Seller have been adequately represented and advised by legal
counsel with respect to this Agreement and the transactions contemplated hereby,
and (c) no presumption shall be made that any provision of this Agreement shall
be construed against either Party by reason of such role in the drafting of this
Agreement and any other agreement contemplated hereby.

     

    [Remainder
of Page Intentionally Left Blank]

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly
authorized officers of Seller and Buyer as of the date first above
written.

     

    
      	 
      	
              ARBINET
      CORPORATION

            
	 
      	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/ Shawn F. O’Donnell

            	 
      
	 
      	 
      	
              Name:

            	
              Shawn
      F. O’Donnell

            
	 
      	 
      	
              Title:

            	
              Chief
      Executive Officer and President

            
	
               
      

            	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              AIP
      ACQUISITION LLC

            
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/ Karen Singer

            	 
      
	 
      	 
      	
              Name:

            	
              Karen
      Singer

            
	 
      	 
      	
              Title:

            	
              Manager

            


    

     

    
      
        
        

      

      
        13