Exhibit 10.20
Stock Purchase Agreement
THIS STOCK PURCHASE AGREEMENT (this "Agreement") dated as of March 25,
2000, is entered into by and among Multi-Link Telecommunications, Inc., a
Colorado corporation ("Multi-Link"), VoiceLink, Inc., a Georgia corporation (the
"Company"), Mr. L. Van Page ("Page") and Mr. Xxxxx Xxxx ("Xxxx"). Page and Xxxx
are collectively referred to herein as "Stockholders."
Recitals
A. Stockholders own all of the issued and outstanding shares of capital
stock the Company.
B. Multi-Link desires to acquire from Stockholders, and Stockholders desire
to sell to Multi-Link, all of the outstanding capital stock of the Company, upon
the terms and conditions set forth herein.
C. For federal income tax purposes, it is intended that the transaction
shall qualify as a reorganization under the provisions of Section 368(a)(1)(B)
of the Internal Revenue Code of 1986, as amended (the "Code").
Agreement
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Purchase and Sale of Stock. Subject to the terms and provisions of this
Agreement, Multi-Link agrees to purchase and accept delivery from Stockholders
of, and Stockholders agree to sell, assign, transfer and deliver to Multi-Link,
at the Closing (as hereinafter defined), all of the issued and outstanding
shares of common stock of the Company (the "Common Stock"), in the amounts set
forth below opposite each Stockholder's name, free and clear of all liens,
claims, charges, restrictions equities or encumbrances of any kind or nature
whatsoever:
Stockholder Number of Shares
----------- ----------------
Page 500,000
Xxxx 20,850
2. Consideration - Multi-Link Stock.
uuuu) As consideration for the purchase of the Common Stock,
Multi-Link, at the Closing, will issue to Stockholders 1 share of
common stock, no par value, of Multi-Link (the "Multi-Link Common
Stock"), for each 1.28138 shares of Common Stock delivered by
Stockholders.
vvvv) The Multi-Link Common Stock will be unregistered and
restricted as to rights of resale or distribution in accordance with
the Securities Act of 1933, as amended ("Securities Act"), and Rule
144 promulgated thereunder. Multi-Link shall have no obligation to
register such shares for sale pursuant to the Securities Act, except
as provided in Section 9 hereof.
3. Closing. The closing of the purchase and sale of the Common Stock (the
"Closing ") shall take place at the offices of Xxxxxx, Xxxxxx & Xxxxxxx at 0000
Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (or at such other
place as the parties may mutually agree) at 10:00 a.m. E.S.T. time on March 31,
2000 (the "Closing Date"). The Closing Date may be changed to a different time
and date by the mutual written agreement of Multi-Link and Stockholders. If the
Closing is changed, all references to the Closing Date in this Agreement shall
refer to the changed date.
3.1 Documents to be Delivered by Stockholders to Multi-Link. At the
Closing, Stockholders will deliver to Multi-Link:
a) original stock certificates for the Common Stock, free and
clear of all liens, claims, charges, restrictions, equities or
encumbrances of any kind, which stock certificates shall be duly
endorsed to Multi-Link, or accompanied by duly executed stock powers
or assignments in forms satisfactory to Multi-Link;
b) an originally executed certificate of Stockholders in the form
of Exhibit A certifying as to the accuracy of Stockholders'
representations and warranties at and as of the Closing, and that
Stockholders and the Company have performed and complied with all of
the terms, provisions and conditions to be performed and complied with
by Stockholders or the Company at or before the Closing;
c) all consents and approvals, if any, in originally executed
form, required for Stockholders to execute, deliver and perform this
Agreement, and for the consummation of the transactions contemplated
hereby, including, without limitation, those consents set forth on the
Consents Schedule;
d) an originally executed Employment Agreement with Page in the
form of Exhibit B;
e) an opinion of Stockholders' counsel in the form and substance
acceptable to Multi-Link and its counsel;
f) such other certificates and documents as Multi-Link or its
counsel may reasonably request; and
g) a release from Xxxx relating to lease payments for the Xxxxxxx
Bridge Road real property in the form of a First Amendment to
Commercial Lease.
3.2 Documents to be Delivered by Multi-Link to Stockholders. At the
Closing, Multi- Link will deliver to Stockholders:
a) an irrevocable written instruction to American Securities
Transfer & Trust, Inc. to issue and deliver certificates representing
such shares to Stockholders;
b) an originally executed certificate of Multi-Link in the form
of Exhibit C certifying as to the accuracy of Multi-Link's
representations and warranties at and as of the Closing, and that
Multi-Link has performed and complied with all of the terms,
provisions and conditions to be performed and complied with by
Multi-Link at, on or before the Closing;
c) an originally executed incumbency certificate of Multi-Link in
the form of Exhibit D certifying as to certain corporate matters,
together with all of the attachments referred to therein;
d) a copy of the minutes of the board of directors of Multi-Link
authorizing the execution, delivery and performance of this Agreement,
certified by the secretary of Multi-Link;
e) an originally executed Employment Agreement with Page in the
form of Exhibit B;
f) an opinion of Multi-Link's counsel in form and substance
acceptable to Stockholders and their counsel; and
g) such other certificates and documents as Stockholders or their
counsel may reasonably request.
4. Representations and Warranties by Page. Page represents and warrants to
Multi-Link as follows:
4.1 Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia and has the corporate power and authority to enter into and perform this
Agreement, to carry on its business as now being conducted and as proposed to be
conducted, and to own and operate the properties and assets now owned and being
operated by it. Stockholders have delivered to Multi-Link complete and correct
copies of the Company's Certificate of Incorporation, as amended, and Bylaws, as
amended, as in effect on the date hereof. The Company is duly qualified or
licensed to do business and is in good standing as a foreign corporation in each
of the jurisdictions in which the Company is required to be qualified or
licensed to do business as a foreign corporation, except such jurisdictions, if
any, in which the failure to be so qualified or licensed will not have a
material adverse effect on the conduct of its business or the ownership or use
of any of its properties or assets. The Employees Schedule sets forth a true and
complete list of the names, addresses and titles of the directors and officers
of the Company. All previous names used by the Company are set forth on the
Corporate Organization Schedule.
4.2 Capitalization; Stock Ownership. The authorized capital stock of
the Company consists of 10,000,000 shares of Common Stock, of which 520,850
shares are issued and outstanding, and held of record by Stockholders in the
amounts set forth opposite their names in Section 1 hereof, and 500,000 shares
of Common Stock are held by the Company as treasury stock or have been
cancelled.
a) All of such issued and outstanding shares have been duly
authorized and validly issued and are fully paid and non-assessable
and none of them was issued in violation of any preemptive or other
right. The Company is not a party to or bound by any contract,
agreement or arrangement to issue, sell or otherwise dispose of or
redeem, purchase or otherwise acquire any capital stock or any other
security of the Company or any other security exercisable or
exchangeable for or convertible into any capital stock or any other
security of the Company, and, except for this Agreement there is no
outstanding option, warrant or other right to subscribe for or
purchase, or contract, agreement or arrangement with respect to, any
capital stock or any other security of the Company or any other
security exercisable or convertible into any capital stock or any
other security of the Company.
b) Page owns all of the issued and outstanding shares of Common
Stock in the amount set forth opposite his name in Section 1 hereof,
free and clear of all liens, claims, charges, restrictions, equities
and encumbrances of any kind or nature whatsoever, and Page has full
power and legal right to sell, assign, transfer and deliver such
shares of Common Stock to Multi-Link.
4.3 Subsidiaries and Other Equity Investments. The Company does not
own, directly or indirectly, a majority of the shares of capital stock of any
corporation, or any equity investment in any partnership, association or other
unincorporated business organization.
4.4 Authorization of Agreement; No Violation; Consents. The execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby have been duly authorized by each Stockholder.
Except as set forth on the Consents Schedule, neither the execution, delivery or
performance of this Agreement nor the consummation of any of the transactions
contemplated hereby (i) will violate or conflict with the Certificate of
Incorporation, as amended, or Bylaws, as amended, of the Company, (ii) will
conflict with in a material way or result in any material breach of or default
under any provision of any contract or agreement of any kind to which any
Stockholder or the Company is a party or by which any Stockholder or the Company
is bound or to which any property or asset of any of them is subject, (iii) is
prohibited by or requires any Stockholder or the Company to obtain or make any
consent, authorization, approval, registration or filing under any requirement,
statute, law, ordinance, regulation, rule, judgment, decree or order of any
court or governmental agency, board, bureau, body, department or authority, or
of any other person (including, without limitation, any party to any agreement
or arrangement which any Stockholder or the Company is a party or is otherwise
bound), (iv) will cause any acceleration of the maturity of any note, instrument
or other obligation to which the Company is a party or by which the Company is
bound or with respect to which the Company is an obligor or guarantor; or (v)
will result in the creation or imposition of any lien, claim, charge,
restriction, equity or encumbrance of any kind whatsoever upon or give to any
other person any interest or right (including any right of termination or
cancellation) in or with respect to any of the properties, assets, business,
agreements or contracts of the Company.
4.5 Financial Statements.
(a) Stockholders have delivered to Multi-Link copies of the
following financial statements:
(i) the unaudited consolidated and consolidating balance
sheets of the Company and its consolidated subsidiaries as at
December 31, 1997, December 31, 1998 and December 31, 1999 and
related consolidated and consolidating statements of income,
changes in stockholders' equity and cash flows for the fiscal
years ended on those dates, together with supporting schedules;
and
(ii) the unaudited consolidated and consolidating balance
sheets of the Company and its consolidated subsidiaries as at
February 29, 2000 (the "Interim Date") and related consolidated
and consolidating statements of income, changes in stockholders'
equity and cash flows for the two month period ended on the
Interim Date (the "Interim Financial Statements").
(b) All of the foregoing financial statements are complete and
correct in all material respects and present fairly and accurately the
separate and consolidated financial positions of the Company and each
of its consolidated subsidiaries as at the respective dates of such
balance sheets and the separate and consolidated results of the
operations and changes in financial position of the Company and each
of its consolidated subsidiaries for the respective periods then ended
in conformity with generally accepted accounting principles applied on
a basis consistent with that of the preceding periods; subject, in the
case of the Interim Financial Statements, to normal year-end
adjustments consistent with prior periods. To the best of Page's
knowledge, no uncollectible accounts receivable are reflected on such
balance sheets without provision for an adequate reserve for
uncollectible amounts, and inventories reflected on such balance
sheets represent only good and serviceable items priced at the lower
of cost (first in, first out method) or market value with adequate
provision for obsolescence, shrinkage, excess quantities, defective
materials and deterioration. As at the Interim Date, there was no
liability of any nature or in any amount that should properly be
reflected or reserved against in a balance sheet prepared in
conformity with generally accepted accounting principles applied on a
basis consistent with that of the preceding periods which is not fully
reflected or reserved against in the consolidated balance sheet of the
Company and its consolidated subsidiaries which is a part of the
Interim Financial Statements (the "Interim Balance Sheet").
4.6 No Undisclosed Liabilities, Etc. Since the Interim Date, except
for the transactions contemplated by this Agreement:
(b) the Company has not incurred any liability or obligation
(absolute, accrued, contingent or otherwise) of any nature, other than
liabilities and obligations incurred in the ordinary course of
business consistent with past business practices;
(c) all inventories acquired or produced by the Company have been
acquired or produced in the ordinary course of business in quantities
that are not materially greater or less than those required for the
current operation of their respective businesses and, except for a
reasonable allowance for defective materials and deterioration,
consist of good and serviceable items; and
(d) the Company has not acquired any material amount of accounts
receivable that are or are believed to be uncollectible, and the
frequency and amounts of payments received by the Company with respect
to the accounts receivable reflected on the Interim Balance Sheet do
not, in retrospect, render inadequate the reserve for uncollectible
accounts set forth on the Interim Balance Sheet.
4.7 Absence of Certain Changes. Since the Interim Date, except for the
execution and delivery of this Agreement, the Company has not:
(a) had any change in its condition (financial or otherwise),
operations (present or prospective), business (present or
prospective), properties, assets or liabilities, other than changes in
the ordinary course of business, none of which, individually or in the
aggregate, could have a material adverse effect on the Company, or its
financial condition, operations or assets;
(b) suffered any damage, destruction or loss of physical property
(whether or not covered by insurance) materially or adversely
affecting, individually or in the aggregate, its condition (financial
or otherwise) or operations (present or prospective);
(c) incurred or agreed to incur any indebtedness for borrowed
money;
(d) paid or obligated itself to pay in excess of $25,000 in the
aggregate for any fixed assets;
(e) suffered any substantial loss or waived any substantial
right;
(f) sold, transferred or otherwise disposed of, or agreed to
sell, transfer or otherwise dispose of, any assets or properties
material to the operations of the Company or having a fair market
value at the time of sale, transfer or disposition of $10,000 or more
in the aggregate, or cancelled, or agreed to cancel, any debts or
claims, other than in the ordinary course of business consistent with
past business practices;
(g) except as set forth on the Financing Contracts Schedule,
mortgaged, pledged or subjected to any charge, lien, claim or
encumbrance, or agreed to mortgage, pledge or subject to any charge,
lien, claim or encumbrance, any of its properties or assets;
(h) declared, set aside or paid any dividend or made any
distribution (whether in cash, property or stock) with respect to any
of its capital stock or redeemed, purchased or otherwise acquired, or
agreed to redeem, purchase or otherwise acquire, any of its capital
stock;
(i) except as set forth on the Employees Schedule, increased, or
agreed to increase, the compensation, bonuses or other compensation of
any kind of any of its officers, employees, consultants, independent
contractors or agents over the rate being paid to them as at the
Interim Date, other than normal merit and/or cost-of-living increases
pursuant to customary arrangements consistently followed, or adopted
or increased any benefit under any insurance, pension or other
employee benefit plan, payment or arrangement made to, for or with any
such officer, employee or agent;
(j) except as set forth on the Material Operating Contracts
Schedule, (aa) lost any major customer, knows of any potential loss of
any major customer, or had any material order cancelled or knows of
any threatened cancellation of any material order; (bb) lost any major
supplier, distributor, licensee or licensor or knows of any potential
loss thereof, or had any material contract with a supplier,
distributor, licensee or licensor cancelled or had an event of default
declared thereunder; (cc) been advised by BellSouth of any
circumstances that could lead to the termination of the arrangement
through which the Company bills certain of its customers on the
BellSouth telephone xxxx; (dd) been advised of any circumstances that
could lead to adverse changes in the cost of its interconnection
arrangements with BellSouth (or any other carrier); or (ee) made or
permitted any material amendment or termination of any material
contract, agreement or license to which it is a party, other than in
the ordinary course of business consistent with past business
practices;
(k) except as set forth on the Employees Schedule, had any
resignation or termination of employment of any of its key officers or
employees or knows of any impending or threatened resignation or
termination of employment that would have a material adverse effect on
its operations (present or prospective) or business (present or
prospective);
(l) made any change in its accounting methods or practices; or
(m) entered into or agreed to enter into any material transaction
not in the ordinary course of its business consistent with past
business practices.
4.8 Title to and Condition of Properties and Assets.
(a) The Company has good and marketable title to all of its
respective properties and assets, including, without limitation, (i)
all those used in its business and (ii) those reflected in the Interim
Balance Sheet, which assets and properties are subject to no mortgage,
pledge, conditional sales contract, lien, security interest, right of
possession in favor of any third party, claim, or other encumbrance,
agreement or arrangement, except (x) the lien of current taxes not yet
due and payable, and (y) as reflected in an agreement listed on the
Financing Contracts Schedule. The properties and assets used by the
Company in its business are reflected in the Interim Balance Sheet.
(b) The properties and assets of the Company (i) are in a good
state of repair and operating condition, ordinary wear and tear
excepted, (ii) include all properties and assets necessary and useful
to conduct the business of the Company, (iii) are suitable for the
purposes for which they are presently used and (iv) are located at the
principal places of business of the Company, or at such other
locations as are accounted for in the books and records of the
Company.
4.9 Leased Property. Set forth on the Material Operating Contracts
Schedule is a listing of all real estate owned by or leased to the Company
(collectively, the "Real Properties"), and all personal property leased to the
Company (collectively, "Leased Personal Property"), and with respect to the Real
Properties, the location of each property.
(a) Stockholders have delivered or made available to Multi-Link
(i) a copy of each deed or lease by which the Company acquired title
to or its interest in the Real Properties, and (ii) a copy of each
lease by which the Company acquired its interest in the Leased
Personal Property, all of which documents are true and complete copies
thereof as in effect on the date hereof.
(b) The Company has not received any written notice from any
governmental agency, board, bureau, body, department or authority of
any United States or foreign jurisdiction, with respect to any of the
Real Properties. There is no easement, right-of-way agreement,
license, sublease, occupancy agreement or like instrument with respect
to any of the Real Properties.
(c) Each lease pursuant to which the Company leases any of the
Real Properties or the Leased Personal Property is in full force and
effect and is valid and enforceable in accordance with its terms.
There is no material default by the Company under any such lease, or
any event that with notice or lapse of time or both would constitute
such a default by the Company. To the best of Page's knowledge, there
is no material default under any such lease by any other party thereto
or any event that with notice or lapse of time or both would
constitute such a default thereunder.
4.10 Tax Matters.
(a) All federal, state, local and foreign tax returns, reports
and statements required to be filed by the Company have been properly
and timely filed with the appropriate governmental agencies in all
jurisdictions in which such returns, reports and statements are
required to be filed, and all Charges (as defined below) shown thereon
to be due and payable have been paid prior to the date on which any
fine, penalty, interest, late charge or loss may be added thereto for
the nonpayment thereof, unless any such amounts are being contested in
good faith by appropriate proceedings and an adequate reserve has been
established therefor on the Interim Balance Sheet, or any such fine,
penalty, interest, late charge or loss has been paid.
(b) For purposes of this Agreement, "Charges" shall mean all
taxes, levies, imposts, assessments and charges, liens, claims or
encumbrances of any kind or nature whatsoever which are imposed by any
governmental authority (whether federal, state, municipal, local or
foreign) upon or relating to the Company, or its assets or business,
including, without limitation, such Charges relating to (i) the
Company's corporate existence, (ii) the Company's employees, payroll,
income or gross receipts, (iii) the Company's ownership, use or
operation of any of its assets, or (iv) the Company's business
activities, in each case including any and all fines, penalties, late
charges, interest and penalties.
(c) As of Closing, the Company has paid when due and payable all
Charges required to be paid by it, except where contested in good
faith, by appropriate proceedings, if adequate reserves therefor have
been established on the Interim Balance Sheet and where such
nonpayment would not have a material adverse effect on the Company, or
its financial condition, operations or assets. The tax reserves in the
Interim Balance Sheet are sufficient for all unpaid Charges, whether
or not disputed.
(d) No tax return of the Company is currently being audited by
the Internal Revenue Service ("IRS"). No issue has been raised or
settled in any audit of any of the tax returns of the Company that, by
application of similar principles, reasonably may be expected to
result in an assertion of a deficiency for any other taxable year not
yet examined. The Company has not settled, issued or entered into a
closing agreement with respect to any tax year for which an audit or
examination has been concluded that, by application of similar
principles, reasonably may be expected to result in a material
deficiency for any other taxable year not so examined. There is no
issue known to Page or the Company relating to any Charge (federal or
otherwise) that, if determined adversely to the Company would result
in the assertion of any material deficiency for any taxable year that
has not been accrued on the Interim Balance Sheet.
(e) The Company has not executed or filed with the IRS or any
other governmental authority any agreement or other document
extending, or having the effect of extending, the period for
assessment or collection of any Charge.
(f) The Company has not filed a consent pursuant to Section
341(f) of the Code, or agreed to have Section 341(f)(2) of the Code
apply to any disposition of subsection (f) assets (as such term is
defined in Section 341(f)(4) of the Code). The Company has not made
any payment, is not obligated to make any payment, and is not a party
to any agreement that could under certain circumstances obligate it to
make any payment, that will not be deductible under Section 280G of
the Code. The Company has disclosed on its federal and state income
tax returns all positions taken thereon that could give rise to a
substantial understatement of federal income tax within the meaning of
Section 6661 of the Code or any state counterpart thereto.
(g) None of the property owned by the Company is property which
the Company is required to treat as being owned by any other person
pursuant to the provisions of Section 168(f)(8) of the Internal
Revenue Code 1954, as amended, and in effect immediately prior to the
enactment of the Tax Reform Act of 1986 or is "tax-exempt use
property" within the meaning of Section 168(h) of the Code.
(h) The Company has not agreed or been required to make any
adjustment under Section 481(a) of the Code by reason of a change in
accounting method initiated by the Company, and the Company has no
knowledge that the IRS or any governmental authority has proposed any
such adjustment or change in accounting methods.
(i) The Company has no obligation under any written tax sharing
agreement of any kind or nature whatsoever. No power of attorney has
been granted by the Company with respect to any matter relating to
Charges which is currently in force.
4.11 Contracts.
(a) Except as set forth in the various schedules hereto, the
Company is not a party to any written, oral or other:
(i) contract with any labor union;
(ii) employment or consultant contract or other contract for
services;
(ii) lease, as lessor, with respect to any property, real or
personal;
(iv) loan agreement or instrument relating to any
indebtedness;
(v) contract of purchase or sale, other than entered into in
the ordinary course of business consistent with past business
practices;
(vi) contract with any agent, dealer, distributor, supplier,
licensor or licensee;
(vii) letter of credit, guarantee or performance bond;
(viii) contract or agreement restricting the ability of any
person from freely engaging in any business or competing anywhere
in the world;
(ix) contract not made in the ordinary course of business
consistent with past business practices;
(x) contract, except immaterial contracts not involving more
than $5,000 and which can be terminated at any time without cost;
or
(xi) material contract with any governmental authority.
(b) Each contract or other agreement listed in the various
schedules hereto is in full force and effect and is valid and
enforceable by the Company, in accordance with its terms. Neither the
Company nor any other party is in default in the observance or the
performance of any term or obligation to be performed by it under any
contract listed in the various schedules. To the best of Page's
knowledge, no other person is in material default in the observance or
the performance of any term or obligation to be performed by it under
any contract listed on the various schedules. There is no currently
outstanding bid or contract proposal which has been made by the
Company that, if accepted or entered into, could reasonably be
expected to result in a loss to the Company.
(c) Stockholders have delivered or made available to Multi-Link
true and complete copies of all contracts listed on the various
schedules as in effect on the date hereof.
4.12 Litigation. Except as set forth on the Litigation Schedule, there
are no actions, suits, proceedings or investigations, either at law or in
equity, or before any commission or other administrative authority in the United
States or foreign jurisdiction, of any kind now pending or, to the best of
Page's knowledge, threatened or proposed in any manner or, to the best of Page's
knowledge, any circumstances which could reasonably form the basis of any such
action, suit, proceeding or investigation, involving Page, the Company or any of
their respective properties or assets. There is no arbitration proceeding
pending or, to the best of Page's knowledge, threatened or proposed in any
manner involving Page, the Company or any of their respective properties or
assets. Neither Page, the Company, nor any of their properties or assets is
subject to any judicial, administrative or arbitration related judgment, order,
decree, restraint or settlement.
4.13 Patents and Trademarks.
(a) The Company does not own or license any patent, copyright,
registered trademark or trade name.
(b) Page has no knowledge of any potential claim against the
Company of infringement of any patent, copyright, trademark, trade
name, know-how, trade secret or other proprietary right of any other
person.
4.14 Compliance with Laws. The Company has complied with and is in
compliance with all federal, state, local and foreign statutes, laws,
ordinances, regulations, rules, judgments, orders and decrees applicable to it
or any of its properties, assets, operations and businesses, and there does not
exist any basis for any claim of default under or violation of any such statute,
law, ordinance, regulation, rule, judgment, order or decree, except such
defaults or violations or such bases for any claims of such defaults or
violations, if any, that in the aggregate do not and will not have a material
adverse effect on the Company, or its financial condition, operations, assets or
prospects. The Company has not received any opinion or memorandum or legal
advice from any legal counsel to the effect that it is exposed to any liability
or disadvantage that is or may be material to the Company.
4.15 Governmental Authorizations and Regulations. The Company has
obtained all licenses, franchises, permits and other governmental authorizations
required to be obtained by the Company in connection with its business
operations, and the ownership and use of its assets and properties, the absence
of any of which could have a material adverse effect on the Company, or its
financial condition, operations or assets. The Company has complied with all
such licenses, franchises, permits and other governmental authorizations in all
material respects. Such licenses, franchises, permits and other governmental
authorizations are valid, and the Company has not received any notice that any
governmental authority intends to cancel, terminate or not renew any such
license, franchise, permit or other governmental authorization.
4.16 Securities Matters. The Company has not ever purchased, issued or
sold any security in violation of any federal, state or foreign securities laws.
4.17 Employees; Labor Matters; Employee Benefit Plans and Related
Matters.
(a) Employees. Set forth on the Employees Schedule is a true,
correct and complete list of all employees of the Company as of the
date hereof. Except as set forth on the Employees Schedule, none of
such employees has any employment or similar agreement with the
Company. Except as set forth on the Employees Schedule, there are no
employees whose employment with the Company has been terminated on or
after January 1, 2000, whether or not such termination will have taken
effect as of the Closing Date. Except as set forth on the Employees
Schedule, the Company is not obligated to pay any employee severance
or other similar benefits with respect to such employee's termination
of employment, nor does the Company have any agreement or other
arrangement with any employee (whether or not terminated) with respect
to the payment of severance or other similar benefits. Except as set
forth on the Employees Schedule, all employees of the Company are
terminable at will.
(b) Labor Matters. There have not been any unfair labor practice
complaints, labor difficulties or troubles, or work stoppages, or, to
the best knowledge of Page, threats thereof, affecting or which could
potentially affect any of the Company's activities. The Company has no
collective bargaining or union contracts or agreements and, to the
best knowledge of Page, there is no union campaign presently being
conducted to solicit employees to authorize a union to request a
National Labor Relations Board certification election with respect to
any of the Company's employees.
(c) Pension Benefit Plans Generally. Except as set forth on the
Benefits Plan Schedule (collectively, the "Plans"), the Company does
not sponsor, maintain or contribute to any plan program, fund or
arrangement that constitutes an "employee pension benefit plan," nor
does the Company have any obligation to contribute to or accrue or pay
any benefits under any deferred compensation or retirement funding
arrangement on behalf of any employee or employees (such as, for
example, and without limitation, any individual retirement account or
annuity, any "excess benefit plan" (within the meaning of Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) or any non-qualified deferred compensation
arrangement). For the purposes of this Agreement, the term "employee
pension benefit plan" shall have the same meaning as is given that
term in Section 3(2) of ERISA. The Company has not sponsored,
maintained or contributed to any employee pension benefit plan other
than the Plans, nor is the Company required to contribute to any
retirement plan (other than the Plans) pursuant to the provisions of
any collective bargaining agreement establishing the terms and
conditions or employment of any of the Company's employees.
Stockholders have delivered or made available to Multi-Link true and
complete copies of the Plans.
(d) ERISA Title IV Considerations. The Company is not now, nor
can it become, liable to the Pension Benefit Guaranty Corporation or
to any multi-employer employee pension benefit plan under the
provisions of Title IV of ERISA or otherwise.
(e) The Qualified Plans.
(1) Qualified Status. The Plans are qualified plans within
the meaning of Section 401(a) of the Code and all funding
vehicles (trusts or otherwise) in which assets of either of the
Plans are held are exempt from federal income taxation pursuant
to the provisions of Section 501(a) of the Code.
(2) Determination Letters. The Internal Revenue Service has
issued favorable letters of determination with respect to the
qualified status of each of the Plans, as amended to date. With
respect to each of the Plans, the Internal Revenue Service has
not revoked any prior favorable determination letter, refused to
rule on a application for a determination or opinion letter or
otherwise proposed or threatened to revoke any determination
letter or to deny the qualified status of either of the Plans.
(3) Maximum Limitations. All annual additions credited to
the accounts of each of the participants under the Plans is
within the applicable limitations set forth at Section 415 of the
Code.
(f) The Profit Sharing Plan.
(1) Multi-Employer Plan. The Profit-Sharing Plan is a
"multi- employer plan" within the meaning of either Section
3(37)(A) or 4001(a)(3) of ERISA.
(2) Minimum Funding Standard Account. There is no
accumulated funding deficiency within the meaning of Section 412
of the Code with respect to the Profit-Sharing Plan, nor has
there been issued either a variance or waiver of the minimum
funding standard imposed by the Code with respect to the
Profit-Sharing Plan.
(g) Common-Control Enterprises. The Company has not at any time
formed, with any other entity a controlled group of corporations
within the meaning of Section 414(b) of the Code or a group of trades
or businesses under common control within the meaning of Section
414(c) of the Code.
(h) Prohibited Transactions. The Company has not engaged in any
transaction with respect to the assets of any employee benefit plan by
reason of which the Company is or could be subject to (i) the excise
taxes imposed by Sections 4971 through 4980B of the Code or (ii) civil
liability under Section 502(i) of ERISA.
(i) Employee Benefit Plan Claims Liability. Page has no knowledge
of any action, claim or demand of any kind brought or threatened by
any potential claimant or representative of such claimant under any
employee benefit plan where the Company or Multi-Link (after Closing)
may be (i) liable directly on such action, claim or demand, (ii)
liable over to another party in connection with such action, claim or
demand or (iii) obligated to indemnify any person, group of persons or
entity with respect to such action, claim or demand. Neither Page nor
the Company have any knowledge of any investigation or proceeding by
any governmental agency or quasi-governmental agency with respect to
any employee benefit plan sponsored or maintained by the Company.
(j) Reporting and Disclosure. The Company has filed or caused to
be filed on a timely basis every return, report, statement, notice,
declaration and other document required by any federal, state or local
government agency (including, without limitation, the Internal Revenue
Service, the United States Department of Labor, the Pension Benefit
Guaranty Corporation and the Securities and Exchange Commission) with
respect to each employee benefit plan sponsored or maintained by the
Company. The Company is in substantial compliance with all disclosures
to employees and beneficiaries required under ERISA, including,
without limitation, timely distribution of summary plan descriptions
and summary annual reports.
(k) No Stock Option Arrangements. The Company does not sponsor
any stock option plan and has not granted any option under any stock
option arrangement for the benefit of any employee or former employee.
(l) Other Employee Benefit Plans and Arrangements. Except as set
forth on the Employees Schedule, the Company does not sponsor,
maintain, support, nor is it otherwise a party to, or have any
liability under any plan, program, fund, arrangement or contractual
undertaking, whether for the benefit of a single individual or for
more than one individual, and whether or not funded, which is in the
nature of (i) an employee pension benefit plan, (ii) an employee
welfare benefit plan (as defined in Section 3(1) of ERISA) or (iii)
any incentive or other benefit arrangement for employees, their
dependents and/or their beneficiaries.
4.18 Certain Transactions. Except as set forth on the Material
Operating Contracts Schedule, there is no agreement in effect, and no agreement
now proposed, to which the Company is or is to be a party and in which any
current or former shareholder, director, officer, employee, consultant, agent or
independent contractor of the Company or any Affiliate (as defined below) of any
of the foregoing has, or is to have, a direct or indirect interest.
4.19 Books and Records; Accounting Practices. The Company makes and
keeps accurate books and records reflecting its assets, properties and
operations, and maintains internal accounting controls that provide reasonable
assurance that (i) transactions are executed with management's authorization,
(ii) transactions are recorded as necessary to permit preparation of the
Company's financial statements and to maintain accountability for the assets and
properties of the Company, (iii) access to the assets of the Company is
permitted only in accordance with management's authorization and, (iv) the
reported accounting of the assets and properties of the Company is compared with
existing assets at reasonable intervals. The books and records of the Company
are true, complete and accurate in all material respects, and are located at the
Company's principal places of business.
4.20 Minute Books. The Company's minute books contain true, complete
and accurate records of all meetings and other corporate actions of its
shareholders and board of directors and committees thereof.
4.21 Insurance. All properties and operations of the Company are
insured for its benefit, in amounts reasonably deemed adequate by its board of
directors or officers, against all risks usually insured against by persons
operating similar properties or conducting similar operations in the localities
where such properties are located or such operations are conducted under valid
and enforceable policies issued by insurers of recognized responsibility. Page
has delivered or made available to Multi-Link true and complete copies of all
such insurance policies as in effect on the date hereof as set forth on the
Insurance Policies Schedule.
4.22 Bank Accounts; Powers of Attorney. The Financing Contracts
Schedule sets forth (i) the name of each bank, brokerage firm or other person or
entity in which or with whom the Company has an account, safe deposit box or
funds or property being held, and the names of all persons authorized to draw
thereon or to have access thereto, and (ii) the names of all persons, if any,
holding powers of attorney from the Company and a summary statement of the terms
thereof.
4.23 Brokers. Neither the Company nor Page, nor anyone acting on
behalf of the Company or Page has employed any financial advisor, broker or
finder or incurred any liability for any financial advisory, brokerage or
finder's fee or commission in connection with this Agreement or the transactions
contemplated hereby for which Multi-Link or the Company may in any way be
liable.
4.24 Investment Representations. Page has sufficient knowledge and
experience in business and financial matters to evaluate the merits and risks of
an investment in Multi-Link Common Stock. Page understands that the shares of
Multi-Link Common Stock have not been registered under the Securities Act or any
state securities law in reliance on an exemption therefrom for non-public
offerings and further understands that such shares have not be approved or
disapproved by the United States Securities and Exchange Commission (the "SEC"),
or any other federal or state agency.
(a) Page is acquiring shares of Multi-Link Common Stock for his
own account, for investment purposes only, and not with a view to the
sale or other distribution thereof, in whole or in part, and is aware
that there are substantial restrictions on the transferability of such
shares; Page must bear the economic risk of an investment in the
shares for an indefinite period of time because the shares have not
been registered under the Securities Act and, therefore, cannot be
sold unless they are subsequently registered under the Securities Act
or an exemption from such registration has been established to the
satisfaction of Multi-Link (which may require an opinion of counsel
acceptable to Multi-Link); Page has no right to compel registration
under the Securities Act except as provided in Section 9 hereof.
(b) Page is an "accredited investor" as defined in the Securities
Act.
4.25 No Untrue Statements. No statement by Page and no written
information contained in this Agreement, any material delivered to Multi-Link or
any certificate or other document furnished by Page or any officer, employee,
counsel, representative or other agent of Page or the Company to Multi-Link
pursuant to or in connection with this Agreement and the transaction
contemplated hereby, contains or will contain any untrue statement of a material
fact, or omit or will omit to state a material fact necessary in order to make
the statements therein contained not misleading. There is no fact that affects,
or in the future might reasonably be expected to affect, adversely the condition
(financial or otherwise), operations (present or prospective), business (present
or prospective), properties, assets or liabilities of the Company in any
material respect that is not set forth in this Agreement or the schedules
hereto.
4A. Representations and Warranties by Xxxx. Xxxx represents and warrants to
Multi-Link as follows:
4A.1 Stock Ownership. Xxxx owns all of the issued and outstanding shares of
Common Stock in the amount set forth opposite his name in Section 1 hereof, free
and clear of all liens, claims, charges, restrictions, equities and encumbrances
of any kind or nature whatsoever, and Xxxx has full power and legal right to
sell, assign, transfer and deliver such shares of Common Stock to Multi-Link.
4A.2 Leased Property. The Company's lease of Real Property with Xxxx is in
full force and effect and is valid and enforceable in accordance with its terms.
There is no material default by the Company or Xxxx, or any event that with
notice or lapse of time or both would constitute such a default by the Company
or Xxxx, under such lease.
4A.3 Brokers. Neither the Company nor Xxxx, nor anyone acting on behalf of
the Company or Xxxx has employed any financial advisor, broker or finder or
incurred any liability for any financial advisory, brokerage or finder's fee or
commission in connection with this Agreement or the transactions contemplated
hereby for which Multi-Link or the Company may in any way be liable.
4A.4 Investment Representations. Xxxx has sufficient knowledge and
experience in business and financial matters to evaluate the merits and risks of
an investment in Multi-Link Common Stock. Xxxx understands that the shares of
Multi-Link Common Stock have not been registered under the Securities Act or any
state securities law in reliance on an exemption therefrom for non-public
offerings and further understands that such shares have not be approved or
disapproved by the SEC or any other federal or state agency.
(a) Xxxx is acquiring shares of Multi-Link Common Stock for his
own account, for investment purposes only, and not with a view to the
sale or other distribution thereof, in whole or in part, and is aware
that there are substantial restrictions on the transferability of such
shares; Xxxx must bear the economic risk of an investment in the
shares for an indefinite period of time because the shares have not
been registered under the Securities Act and, therefore, cannot be
sold unless they are subsequently registered under the Securities Act
or an exemption from such registration has been established to the
satisfaction of Multi-Link (which may require an opinion of counsel
acceptable to Multi-Link); Xxxx has no right to compel registration
under the Securities Act except as provided in Section 9 hereof.
(b) Xxxx is an "accredited investor" as defined in the Securities
Act.
4A.5 No Untrue Statements. No statement by Xxxx and no written information
contained in this Agreement, any material delivered to Multi-Link or any
certificate or other document furnished by Xxxx or any counsel, representative
or other agent of Xxxx to Multi-Link pursuant to or in connection with this
Agreement and the transaction contemplated hereby, contains or will contain any
untrue statement of a material fact, or omits or will omit to state a material
fact necessary in order to make the statements therein contained not misleading.
5. Representations and Warranties by Multi-Link. Multi-Link represents and
warrants to the Stockholders as follows:
5.1 Corporate Organization. Multi-Link is a corporation organized,
validly existing and in good standing under the laws of the State of Colorado
and has the corporate power and authority to carry on its business as now being
conducting by it and to acquire and own the Common Stock.
5.2 Authorization of Agreement; No Violation. Multi-Link has duly
authorized the execution, delivery and performance of this Agreement and the
transactions contemplated hereby. Neither the execution, delivery or performance
of this Agreement by Multi-Link or the consummation of any of the transactions
contemplated hereby (i) will violate or conflict with any provision of
Multi-Link's organizational documents or (ii) will result in any material breach
of or default under any provision of any contract or agreement of any kind to
which Multi-Link is a party or by which Multi-Link is bound or to which the
properties or assets of Multi-Link are subject.
5.3 Litigation. There are no actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in the United States or foreign jurisdiction, of any
kind now pending or, to Multi-Link's knowledge, threatened or proposed in any
manner or, to Multi-Link's knowledge, any circumstances which could reasonably
form the basis of any such action, suit, proceeding or investigation, involving
Multi-Link or any of its properties or assets. There is no arbitration
proceeding pending or, to Multi-Link's knowledge, threatened or proposed in any
manner involving Multi-Link. Neither the Company, any subsidiary of the Company,
nor any of their properties or assets is subject to any judicial or
administrative judgment, order, decree or restraint.
5.4 Investment Representation. Multi-Link is acquiring the Common
Stock for investment and not with a view to the distribution thereof or dividing
all or any part of its interest therein with any other person.
5.5 Securities Matters. Multi-Link has filed all reports required
under the Securities Act and the Securities Exchange Act of 1934, as amended
(the "Exchange Act") in connection with the registration of its common stock
(the "SEC Reports").
(a) As of their dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act or the Exchange
Act, as the case may be, and, at the respective times they were filed,
none of the SEC Reports contained any untrue statements of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The consolidated financial statements (including, in each
case, any notes thereto) of Multi-Link included in the SEC Reports
complied as to form in all material respects with applicable
accounting requirements in the published rules of the SEC with respect
thereto, were prepared in accordance with generally accepted
accounting principles ("GAAP") except in the case of unaudited
statements (as permitted by Form 10- QSB of the SEC), applied on a
consistent basis during the periods involved (except as may be
indicated therein or in the notes thereto) and present fairly (in all
material respects) in accordance with GAAP the consolidated financial
position of Multi-Link and its consolidated subsidiaries as at the
respective dates thereof and the consolidated results of their
operations and their consolidated cash flows for the periods then
ended (subject, in the case of unaudited statements, to any other
adjustments described therein and normal year-end audit adjustments).
5.6 No Untrue Statements. No statement by Multi-Link contained in this
Agreement and no written statement contained in any certificate or other
document furnished by any officer, employee, counsel, representative or other
agent of Multi-Link to Stockholders pursuant to or in connection with this
Agreement contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary in order to make the
statements therein contained not misleading.
6. Covenants of Stockholders. Stockholders covenant and agree with
Multi-Link as follows:
6.1 Due Diligence. From and after the date hereof until Closing,
Stockholders will cause the Company to give to Multi-Link and to its agents and
representatives (including, but not limited to, accountants, lawyers,
consultants and appraisers) full and complete access during normal working hours
to any and all of the properties, assets, books, records and other documents of
the Company to enable Multi-Link to make such examination of the business,
properties, assets, environmental matters, books, records and other documents of
the Company as Multi-Link may determine, and Stockholders will furnish, and will
cause the Company to furnish, to Multi-Link, such information and copies of such
documents and records as Multi-Link shall reasonably request. As part of such
examination, Multi-Link may make such inquiries of such persons having business
relationships with the Company (including, but not limited to, suppliers,
licensees, distributors and customers) as Multi-Link shall determine and
Stockholders shall cooperate fully, and shall cause the Company, and its
respective directors, officers, employees, consultants and agents to cooperate
fully with Multi-Link in connection therewith.
6.2 Conduct of Business Pending Closing. From the date hereof until
the Closing, except as consented to by Multi-Link in writing in advance:
(i) Stockholders will cause the Company to carry on its
business and operations in a good and diligent manner, on an
arm's-length basis, in accordance with all applicable laws, rules
and regulations, and substantially in the manner carried on as of
the date hereof;
(ii) Stockholders will not permit the Company to approve or
enter into any agreement, transaction or other arrangement,
whether oral or written, involving an expenditure of greater than
$10,000 in a single transaction or series of transactions, or
which is not cancelable by the Company at any time at no cost,
except for such agreements, transactions or other arrangements
routinely entered into by the Company in the ordinary course of
business consistent with past business practices;
(iii) Stockholders will not permit the Company to enter into
any agreement, transaction or other arrangement involving a
capital expenditure exceeding $10,000;
(iv) Stockholders will not permit the Company to acquire (in
any manner whatsoever, whether by purchase, lease or otherwise),
or sell, assign, transfer, lease, pledge, hypothecate or
otherwise dispose of or encumber, any assets or properties or any
interests therein;
(v) Stockholders will not permit the Company to declare,
authorize or pay any distribution, dividend or other payment to
its shareholders;
(vi) Stockholders will not permit the Company to issue, sell
or otherwise dispose of or redeem, purchase or otherwise acquire
any of its securities, including, without limitation, capital
stock, options, warrants or debt instruments;
(vii) Stockholders will not permit the Company to pay or
obligate itself to pay any compensation, commission, bonus, other
compensation or other type of payment to any director, officer,
employee, agent, consultant, or independent contractor of the
Company except for the regular compensation and commissions
payable to such director, officer, employee, agent, consultant or
independent contractor at the rate in effect on the date of this
Agreement, or enter into any new or modified agreement or
arrangement with such parties;
(viii) Stockholders will cause each of the Company to use
its best efforts to preserve its business organization intact, to
keep available to Multi-Link the services of its employees and
independent contractors and to preserve for Multi-Link its
relationships with suppliers, licensees, distributors, customers
and others having business relationships with it;
(ix) Stockholders will not permit the Company to amend its
Certificate of Incorporation or Bylaws;
(x) Stockholders will not permit the Company to engage in
any activity or transaction other than in the ordinary course of
business consistent with past business practices;
(xi) Stockholders will promptly notify Multi-Link in writing
of the receipt of any written notice or written claim of default
or breach by Stockholder or of any termination or cancellation or
written threat of termination or cancellation of any material
contract to which the Company is a party;
(xii) Stockholders will promptly notify Multi-Link of any
loss of or damage to any portion of the assets or properties of
the Company;
(xiii) Stockholders will cause the Company to continue to
maintain all of its usual books and records in the ordinary
course of business consistent with past business practices;
(xiv) Stockholders will not permit the Company to take,
suffer or permit any action which is within Stockholders' control
which would render untrue, in any respect, any of the
representations or warranties of Stockholders contained herein,
or omit to take any action, the omission of which would render
untrue any such representation or warranty; and
(xv) Without limiting the foregoing, Stockholders will
consult with Multi-Link regarding all significant developments,
transactions and proposals relating to the business or operations
or any of the assets or liabilities of the Company.
6.3 [Intentionally Blank]
6.4 Indemnification by Page. Page agrees to indemnify, defend and hold
Multi-Link, its Affiliates and their respective members, managers, partners,
venturers, shareholders, directors, officers, employees, spouses, legal
representatives, agents, successors and assigns ("Multi-Link Indemnified
Parties") harmless from and against any and all claims, judgments, damages,
penalties, fines, costs, liabilities, losses or expenses (including, without
limitation, reasonable attorneys' fees and expenses) (collectively, "Losses")
incurred by any Multi-Link Indemnified Party arising from, directly or
indirectly relating to or based upon any of the following matters:
(a) any fraud, intentional misrepresentation or a deliberate or
willful breach by Page or the Company of their respective
representations, warranties or covenants under this Agreement or in
any certificate, schedule or exhibit delivered pursuant hereto;
(b) any other inaccuracy, untruth or breach of any
representation, warranty or covenant of Page or the Company under this
Agreement or in any certificate, schedule or exhibit delivered
pursuant hereto, or by reason of any claim, action or proceeding
asserted or instituted relating to any matter or thing constituting an
inaccuracy, untruth or breach of such representations, warranties, or
covenants; or
(c) the Company's operation of its business on and prior to the
Closing Date, including, without limitation all employment related
matters, including, without limitation, (i) maintenance of all
employee benefit plans and policies, if any, (ii) provision of
employee benefits, if any, and (iii) violations by the Company of the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended by
the Internal Revenue Code of 1986, as amended, the Employee Retirement
Income Security Act of 1975, as amended, and the Public Health Service
Act, as amended.
6.4A Indemnification by Multi-Link. Multi-Link agrees to indemnify,
defend and hold Stockholders, their respective Affiliates, spouses, legal
representatives, agents, successors and assigns ("Stockholder Indemnified
Parties") harmless from and against any and all Losses incurred by any
Stockholder Indemnified Party arising from, directly or indirectly relating to
or based upon any of the following matters:
(a) any fraud, intentional misrepresentation or a deliberate or
willful breach by Multi-Link or any of its representations, warranties
or covenants under this Agreement or in any certificate, schedule or
exhibit delivered pursuant hereto; or
(b) any other inaccuracy, untruth or breach of any
representation, warranty or covenant of Multi-Link under this
Agreement or in any certificate, schedule or exhibit delivered
pursuant hereto, or by reason of any claim, action or proceeding
asserted or instituted relating to any matter or thing constituting an
inaccuracy, untruth or breach of such representations, warranties, or
covenant.
6.4B Limitations on Indemnification by Page. Notwithstanding the
provisions of Section 6.4 hereof, the rights of Multi-Link Indemnified Parties
to indemnification under Section 6.4 shall be subject to the following
limitations and other provisions:
(a) no indemnification shall be payable to any Multi-Link
Indemnified Party unless the total of all claims for indemnification
shall exceed $10,000 in the aggregate, whereupon the full amount of
such claims (to the first dollar) shall be recoverable in accordance
with the terms hereof.
(b) No indemnification shall be payable to a Multi-Link
Indemnified Party with respect to any claim after the date of the
report of the independent auditors of the Company for the fiscal year
ended September 30, 2000 (the "Indemnity Cut-off Date").
(c) The aggregate liability of Page pursuant to Section 6.4 shall
be limited to the recovery by the Multi-Link Indemnified Parties of up
to 40,000 shares of Multi-Link Common Stock issued pursuant to the
Agreement. If Page shall be obligated to reimburse a Multi-Link
Indemnified Party pursuant to the provisions of Section 6.4 hereof,
such reimbursement shall be paid by Page delivering to such Multi-Link
Indemnified Party such number of shares of Multi-Link Common Stock as
shall equal the amount payable pursuant to the indemnification
provisions of Section 6.4 hereof (with each share of Multi-Link Common
Stock delivered to pay such indemnification claim to be valued at the
closing bid price per share of Multi-Link Common Stock as reported by
the NASDAQ Market on the date of Closing). Stockholders hereby
authorize Multi-Link to direct its transfer agent to adjust the number
of shares owned by Stockholders to the extent and in the circumstances
provided in this Section 6.4B.
(d) In no event shall Page be liable for loss of profits,
goodwill or other special or consequential damages suffered by a
Multi-Link Indemnified Party whether or not the possibility of such
damages could have been reasonably foreseen by Page.
6.4C Limitations on Indemnification by Multi-Link. Notwithstanding the
provisions of Section 6.4A hereof, the rights of Stockholder Indemnified Parties
to indemnification under Section 6.4A hereof shall be subject to the following
limitations and other provisions:
(a) No indemnification shall be payable to any Stockholder
Indemnified Party unless the total of all claims for indemnification
shall exceed $10,000 in the aggregate, whereupon the full amount of
such claims (to the first dollar) shall be recoverable in accordance
with the terms hereof.
(b) No indemnification shall be payable to any Stockholder
Indemnified Party with respect to any claim after the Indemnity
Cut-off Date.
(c) The aggregate liability of Multi-Link pursuant to Section
6.4A shall be limited to the issuance and delivery by the Company of
up to an additional 40,000 shares of Multi-Link Common Stock. If
Multi-Link shall be obligated to reimburse a Stockholder Indemnified
Party pursuant to the provisions of Section 6.4A hereof, such
reimbursement shall be paid by Multi-Link delivering to such
Stockholder Indemnified Party such number of shares of Multi-Link
Common Stock as shall equal the amount payable pursuant to the
indemnification provisions of Section 6.4A hereof (with each share of
Multi-Link Common Stock delivered to pay such indemnification claim to
be valued at the closing bid price per share of Multi-Link Common
Stock as reported by the NASDAQ Market as of the date of Closing).
(d) In no event shall Multi-Link be liable for loss of profits,
goodwill or other special or consequential damages suffered by a
Stockholder Indemnified Party whether or not the possibility of such
damages could have been reasonably foreseen by Multi-Link.
6.4D Procedures for Indemnification. All claims for indemnification
pursuant to Sections 6.4 and 6.4A shall be asserted and settled as follows:
(a) Any person seeking indemnification (the "Indemnified Person")
shall give the person against who indemnification is asserted (the
"Indemnifying Person") prompt written notice or any claim, assessment,
action, suit or proceeding to which the indemnity set forth in Section
6.4 or Section 6.4A applies (the "Indemnification Notice"). If the
document evidencing such claim or demand is a court pleading, the
Indemnified Person shall give such notice within ten (10) days of
receipt of such pleading, otherwise, the Indemnified Person shall give
such notice within thirty (30) days of the date it becomes aware of or
receives written notice of such claim. Failure to give timely notice,
including the Indemnification Notice, of a matter which may give rise
to an indemnification claim shall not affect the right of the
Indemnified Person to collect such Losses so long as such failure to
so notify does not materially adversely affect the Indemnifying
Person's ability to defend such Losses against a third party.
(b) After an Indemnified Person has actual knowledge of any claim
from a third party as to which indemnity may be sought, the
Indemnified Person shall give notice to the Indemnifying Persons and
shall permit the Indemnifying Person (at its expense) to assume the
defense of any claim or any litigation resulting therefrom. The
Indemnified Person shall not be required to commence litigation or
take any action against any third party prior to making a claim for
indemnification hereunder. The Indemnifying Person shall be entitled
to assume the defense of any such claim, and if the Indemnifying
Person assumes the defense of any such claim or litigation, (i) it
will be conclusively established for purposes of this Agreement that
such claim is within the scope and subject to indemnification; and
(ii) no compromise or settlement of such claims may be effected by the
Indemnifying Person without the consent of the Indemnified Person.
Notwithstanding the foregoing, an Indemnified Person will have the
right at all times to take over and assume control of the defense,
settlement, negotiations or lawsuit relating to any claim or demand,
including without limitation, in the event that (i) the Indemnified
Person is also a party to such claim or litigation and the Indemnified
Person determines in good faith that joint representation would be an
appropriate, or (ii) the Indemnifying Person fails to provide
reasonable assurance to the Indemnified Person of its financial
capacity to defend such claim or litigation and to provide
indemnification with respect to such claim or litigation. In the event
that the Indemnifying Persons do not accept the defense of any matter
as provided above, a Indemnified Person will have the full right to
defend against any such claim or demand, and will be entitled to
settle or agree to pay in full such claim or demand, in its sole
discretion. In any event, the Indemnified Person and the Indemnifying
Person will cooperate in the defense of such action and the records of
the Indemnified Person will be available to the Indemnifying Person
with respect to such defense.
6.4E [Intentionally deleted]
6.5 Audit. After the Closing, Multi-Link will cause the annual
financial statements of the Company to be audited (the "Audit") by a certified
public accounting firm selected by Multi-Link (the "Auditors"). Multi-Link will
pay all costs and expenses of the Auditors in connection with the Audit, as and
when billed by the Auditors. The Company and the Stockholders will provide
Multi-Link and the Auditors with all assistance reasonably requested by any of
them in connection with the Audit, including the execution and delivery to the
Auditors of customary representation letters of management with respect to the
periods under Audit.
6.6 Consents and Approvals. Stockholders shall obtain prior to the
Closing at no cost and without any penalty or condition which is adverse to
Multi-Link or the Company all consents, authorizations and approvals under all
requirements, statutes, laws, ordinances, regulations, rules, judgments, decrees
and orders of any court or governmental agency, board, bureau, body, department
or authority or of any other person required to be obtained by Stockholders or
the Company in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, the consents set forth on the Consents Schedule.
6.7 Releases of the Company. Each Stockholder (collectively, the
"Releasing Parties") hereby forever covenants not to xxx and fully releases the
Company, its directors, officers and Affiliates, past, present and future, and
the attorneys, insurers, lenders, heirs, representatives, assigns and successors
of each of them (collectively, the "Released Parties"), with respect to and from
all actions and claims of any kind, known or unknown, suspected or unsuspected,
which a Stockholder, as applicable, may now have or has ever had against any of
the Released Parties, including, without limitation, all claims arising from an
employment relationship, contract or otherwise. Each Releasing Party hereby
represents and warrants that such party has not assigned or transferred to any
person or entity any of the claims released hereunder or bases therefor (whether
in the form of a contract right or otherwise).
7. Conditions Precedent.
7.1 Conditions to Multi-Link's Obligations. Multi-Link's obligations
under this Agreement are subject to the satisfaction, on the Closing Date, of
each of the following conditions, any of which may be waived in writing by
Multi-Link:
(a) Stockholders and the Company will have fully complied with
and performed all of their respective obligations under this Agreement
to be complied with and performed as of the Closing Date.
(b) All representations and warranties of each Stockholder in
this Agreement will be true and complete as of the date when given and
on the Closing Date.
(c) Multi-Link will be satisfied, in its sole and absolute
discretion, with its due diligence investigation of the Company, its
assets, properties, businesses and conditions (financial or
otherwise).
(d) Page shall have entered into an Employment Agreement with
Multi-Link in the form of Exhibit B.
(e) Multi-Link will be satisfied, in its sole and absolute
discretion, that all "owner perks" of the Stockholders (including,
without limitation, cars, car leases, clubs, and other remuneration)
shall have been transferred out of the Company without cost or expense
to the Company.
(f) Multi-Link, Stockholders, Xxxxx X. Xxxxxxxxx and Xxxxx X.
Xxxxxxx shall enter into a Registration Rights Agreement in the form
of Exhibit E.
7.2 Conditions to Stockholders' Obligations. Stockholders' obligations
under this Agreement are subject to the satisfaction, on the Closing Date, of
the following conditions, which may be waived in writing by Stockholders:
(a) All representations and warranties of Multi-Link in this
Agreement will be true and complete as of the date when given and on
the Closing Date.
(b) Multi-Link will have fully complied with and performed all
its obligations under this Agreement to be complied with or performed
as of the Closing Date.
(c) Multi-Link shall have entered into an Employment Agreement
with Page in the form of Exhibit B.
(d) Page will be satisfied, in his sole and absolute discretion,
with his due diligence investigation of Multi-Link, and its respective
assets, properties, businesses and conditions (financial or
otherwise).
(e) Multi-Link Stockholders, Xxxxx X. Xxxxxxxxx and Xxxxx X.
Xxxxxxx shall enter into a Registration Rights Agreement in the form
of Exhibit E.
8. Termination of Agreement; Effect of Termination.
8.1 Termination. This Agreement may be terminated at any time before
the Closing as follows:
(a) By Multi-Link, by written notice to Page; and
(b) By Page, by written notice to Multi-Link.
8.2 Effect of Termination. With the exception of the obligations of
the parties under Section 10.14 hereof, which will survive the termination of
this Agreement, upon a termination of this Agreement in accordance with the
Section 8.1 hereof, this Agreement will have no further force or effect.
9. Registration of Multi-Link Common Stock. Multi-Link, Stockholders, Xxxxx
X. Xxxxxxxxx and Xxxxx X. Xxxxxxx shall enter into certain agreements relating
to Multi-Link Common Stock pursuant to the form of Registration Rights Agreement
attached hereto as Exhibit E.
9A. Loan to the Company. At the Closing, Multi-Link shall loan
$500,000 to the Company to provide the Company with additional working capital.
10. Miscellaneous.
10.1 Survival. Subject to the provisions of Sections 6.4B and 6.4C
hereof, the covenants, representations and warranties of the parties hereto will
survive the Closing, notwithstanding any investigation heretofore or hereafter
made or omitted by any party hereto.
10.2 Further Assurances. Each party will execute and deliver any
further instruments or documents, and take all further action, reasonably
requested by any other party, at no expense to the requesting party, to carry
out the transactions contemplated by this Agreement.
10.3 No Waiver. No waiver of any breach of any provision of this
Agreement will be deemed a waiver of any other breach of this Agreement. No
extension of time for performance of any act will be deemed an extension of the
time for performance of any other act.
10.4 Severability. The provisions of this Agreement will be deemed
severable, and if any provision of this Agreement is held illegal, void or
invalid under applicable law, such provision may be changed to the extent
reasonably necessary to make the provision legal, valid and binding. If any
provision of this Agreement is held illegal, void or invalid in its entirety,
the remaining provisions of this Agreement will not be voided but will remain
binding in accordance with their terms.
10.5 Entire Agreement; Amendment. This Agreement and the schedules,
exhibits and attachments hereto contain the entire agreement of the parties with
respect to the purchase and sale of the Common Stock and the other transactions
contemplated by this Agreement. This Agreement may be amended only by an
instrument in writing signed by Multi-Link and Stockholders. The headings in
this Agreement are solely for convenience of reference and will not affect the
interpretation of any provision of this Agreement. The exhibits and schedules to
this Agreement are incorporated as a part of this Agreement.
10.6 Binding Agreement, Assignment. The terms and provisions of this
Agreement will bind the parties hereto, and their respective successors,
assigns, heirs, legal and personal representatives, as applicable. This
Agreement may be assigned by either party only with the prior written consent of
the other parties hereto.
10.7 Expenses. The Company will pay all expenses, including attorneys'
and accountants' fees incurred by the Company and Stockholders in connection
with the negotiation of this Agreement, the performance of their obligations
hereunder and the consummation of the transactions contemplated by this
Agreement in an aggregate amount not exceeding $25,000. To the extent the
Company and/or the Stockholders incurred any of the foregoing expenses in excess
of such $25,000 aggregate amount, such amount shall be payable by the
Stockholders. Multi-Link will pay all of its expenses, including attorneys' and
accountants' fees in connection with the negotiation of this Agreement, the
performance of their obligations hereunder and the consummation of the
transactions contemplated by this Agreement. Notwithstanding the foregoing
provisions of this Section 10.7, in any proceeding or other attempt to enforce,
construe or to determine the validity of this Agreement, the nonprevailing party
will pay the reasonable expenses of the prevailing party, including reasonable
attorneys' fees and costs.
10.8 Notices. Except as otherwise expressly set forth in this
Agreement, all notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when given in person, by cable,
telegram, or facsimile transmission (with proof of transmission), three (3)
business days after mailing by first class mail, registered or certified, return
receipt requested, postage prepaid, or one (1) business day after being sent by
overnight courier, charges prepaid, to the parties, in each case at the
following addresses:
Notices to Stockholders:
PAGE:
L. Van Page
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
With copy to:
Xxxxx X. Xxxxxxxx
XXXXXX, XXXXXX & XXXXXXX
0000 Xxxxxxxxx Xxxxxx X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
XXXX:
Xxxxx Xxxx
c/o First Flight Foods, Inc.
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx X000
Xxxxxxxx, Xxxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (770) ________
Notices to Multi-Link:
Multi-Link Telecommunications, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Phone: (000) 000 0000
Fax: (000) 000-0000
With copy to:
Xxxxx X. Xxxxxxxx
FAEGRE & XXXXXX LLP
0000 Xxxxxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Notices to the Company:
VoiceLink, Inc
0000 Xxxxxxx Xxxxxx Xx, Xxxxx 000-X
Xxxxxxxx, XX 00000-0000
Attention: Van Page
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address or number, and to the attention of such other person,
as any party may designate, at any time, in a writing delivered to the other
parties in conformity with this section.
10.9 Counterparts. This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument.
10.10 Facsimile Signature. This Agreement may be executed by
telefacsimile signature and a telefacsimile signature shall constitute an
original signature for all purposes.
10.11 Applicable Law. This Agreement will be construed in accordance
with and governed by the laws of the State of Colorado.
10.12 Time is of the Essence. The parties acknowledge and agree that
time is of the essence with respect to the consummation of the transactions
contemplated by this Agreement.
10.13 No Third Party Beneficiaries. None of the terms, covenants,
obligations or rights contained in this Agreement is or will be deemed to be for
the benefit of any person other than the parties hereto, and no such third
person will under any circumstances have any right to enforce any provision of
this Agreement, it being the intent of the parties that there are no third party
beneficiaries to this Agreement.
10.14 Confidentiality; Press Releases. The parties agree to keep all
non-public information regarding the other party delivered in connection with
the transaction contemplated by this Agreement strictly confidential, except as
may be required by law or in connection with any lawsuit between or involving
the parties or any party. Further, Stockholders each agree to keep all the
terms, conditions and provisions of this Agreement strictly confidential at all
times and will not disclose or permit the disclosure of such terms and
conditions to any third party whatsoever, except for disclosures of such
information to Stockholders' professional advisors, who shall agree to keep such
information confidential at all times. Neither the Company nor Stockholders will
issue any press release or make any public announcement relating to the subject
of this Agreement without the prior written approval of Multi-Link. Multi-Link
may issue such press releases or public announcements as Multi-Link's counsel
determines may be required by law to be made by Multi-Link. The covenants of the
parties contained in this Section 10.14 shall survive the Closing or termination
of this Agreement
10.15 Affiliate. For purposes of this Agreement, "Affiliate" means,
with respect to any Person (as defined below), any Person that controls, is
controlled by or is under common control with such Person, together with its and
their respective members, immediate family, managers, partners, venturers,
directors, officers, shareholders, agents, employees, representatives and
spouses. A Person shall be presumed to have control when it possesses the power,
directly or indirectly, to direct, or cause the direction of, the management or
policies of another Person, whether through ownership of voting securities, by
contract, or otherwise. "Person" means an individual, partnership, limited
liability company, association, corporation, or other entity.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
"MULTI-LINK"
Multi-Link Telecommunications, Inc.
By: ----------------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
"PAGE"
By: ----------------------------------
L. Van Page
"XXXX"
By:
-----------------------------------
Xxxxx Xxxx
"COMPANY"
VoiceLink, Inc., a Georgia corporation
By:
-----------------------------------
Name: L. Van Page
Title:President
