AGREEMENT AND PLAN OF MERGER
DATED AS OF JUNE 27, 2001
BETWEEN
ANONYMOUS DATA CORPORATION
AND
SHARECOM, INC.
TABLE OF CONTENTS
ARTICLE 1. The Merger
Section 1.1. The Merger
Section 1.2. Effective Time
Section 1.3. Closing of the Merger
Section 1.4. Effects of the Merger
Section 1.5. Board of Directors and Officers
Section 1.6. Conversion of Shares
Section 1.7. Exchange of Certificates
Section 1.8. Stock Options
Section 1.9. Taking of Necessary Action; Further Action
Section 2.0.Payment of Debt and Assignment of Intellectual Property
ARTICLE 2. Representations and Warranties of ANYD
Section 2.1. Organization and Qualification
Section 2.2. Capitalization of ANYD
Section 2.3. Authority Relative to this Agreement; Recommendation.
Section 2.4. SEC Reports; Financial Statements
Section 2.5. Information Supplied
Section 2.6. Consents and Approvals; No Violations
Section 2.7. No Default
Section 2.8. No Undisclosed Liabilities; Absence of Changes
Section 2.9. Litigation
Section 2.10. Compliance with Applicable Law
Section 2.11. Employee Benefit Plans; Labor Matters
Section 2.12. Environmental Laws and Regulations
Section 2.13. Tax Matters
Section 2.14. Title To Property
Section 2.15. Intellectual Property
Section 2.16. Insurance
Section 2.17. Vote Required
Section 2.18. Tax Treatment
Section 2.19. Affiliates
Section 2.20. Certain Business Practices
Section 2.21. Insider Interests
Section 2.22. Opinion of Financial Adviser
Section 2.23. Brokers
Section 2.24. Disclosure
Section 2.25. No Existing Discussion
Section 2.26. Material Contracts
ARTICLE 3. Representations and Warranties of SHARECOM.
Section 3.1. Organization and Qualification
Section 3.2. Capitalization of SHARECOM
Section 3.3. Authority Relative to this Agreement; Recommendation
Section 3.4. SEC Reports; Financial Statements
Section 3.5. Information Supplied
Section 3.6. Consents and Approvals; No Violations
Section 3.7. No Default
Section 3.8. No Undisclosed Liabilities; Absence of Changes
Section 3.9. Litigation
Section 3.10. Compliance with Applicable Law
Section 3.11. Employee Benefit Plans; Labor Matters
Section 3.12. Environmental Laws and Regulations
Section 3.13. Tax Matters
Section 3.14. Title to Property
Section 3.15. Intellectual Property
Section 3.16. Insurance
Section 3.17. Vote Required
Section 3.18. Tax Treatment
Section 3.19. Affiliates
Section 3.20. Certain Business Practices
Section 3.21. Insider Interests
Section 3.22. Opinion of Financial Adviser
Section 3.23. Brokers
Section 3.24. Disclosure
Section 3.25. No Existing Discussions
Section 3.26. Material Contracts
ARTICLE 4. Covenants
Section 4.1. Conduct of Business of ANYD
Section 4.2. Conduct of Business of SHARECOM
Section 4.3. Preparation of 8-K and the Proxy Statement
Section 4.4. Other Potential Acquirers
Section 4.5. Meetings of Stockholders
Section 4.6. OTC:BB Listing
Section 4.7. Access to Information
Section 4.8. Additional Agreements; Reasonable Efforts.
Section 4.9. Employee Benefits; Stock Option and Employee Purchase Plans
Section 4.10. Public Announcements
Section 4.11. Indemnification
Section 4.12. Notification of Certain Matters
ARTICLE 5. Conditions to Consummation of the Merger
Conditions to Each Party's Obligations to Effect the
Section 5.1. Merger
Section 5.2. Conditions to the Obligations of ANYD
Section 5.3. Conditions to the Obligations of SHARECOM
ARTICLE 6. Termination; Amendment; Waiver
Section 6.1. Termination
Section 6.2. Effect of Termination
Section 6.3. Fees and Expenses
Section 6.4. Amendment
Section 6.5. Extension; Waiver
ARTICLE 7. Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties
Section 7.2. Entire Agreement; Assignment
Section 7.3. Validity
Section 7.4. Notices
Section 7.5. Governing Law
Section 7.6. Descriptive Headings
Section 7.7. Parties in Interest
Section 7.8. Certain Definitions
Section 7.9. Personal Liability
Section 7.10. Specific Performance
Section 7.11. Counterparts
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of June
27, 2001, is between ANONYMOUS DATA CORPORATION, a Nevada corporation
("ANYD"), and SHARECOM, INC., an Illinois corporation ("SHARECOM").
Whereas, the Boards of Directors of ANYD and SHARECOM each have, in
light of and subject to the terms and conditions set forth herein, (i)
determined that the Merger (as defined below) is fair to their respective
stockholders and in the best interests of such stockholders and (ii) approved
the Merger in accordance with this Agreement;
Whereas, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
Whereas, ANYD and SHARECOM desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also
to prescribe various conditions to the Merger.
Now, therefore, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, ANYD and SHARECOM hereby agree as
follows:
ARTICLE I
The Merger
Section 1.1. The Merger. At the Effective Time (as defined below) and
upon the terms and subject to the conditions of this Agreement and in
accordance with the General Corporation Law of the state of Nevada (the
"NGCL"), SHARECOM shall be merged with and into ANYD (as defined below) (the
''Merger`). Following the Merger, ANYD shall continue as the surviving
corporation (the "Surviving Corporation"), shall continue to be governed by
the laws of the jurisdiction of its incorporation or organization and the
separate corporate existence of SHARECOM shall cease. Prior to the Effective
Time, the parties hereto shall mutually agree as to the name of the Surviving
Corporation; however, initially the Surviving Corporation shall be named
SHARECOM, INC., a Nevada corporation. The Merger is intended to qualify as a
tax-free reorganization under Section 368 of the Code as relates to the non-
cash exchange of stock referenced herein.
Section 1.2. Effective Time. Subject to the terms and conditions set forth in
this Agreement, a Certificate of Merger (the "Merger Certificate") shall be
duly executed and acknowledged by each of SHARECOM and ANYD, and thereafter
the Merger Certificate reflecting the Merger shall be delivered to the
Secretary of State of the State of Nevada for filing pursuant to the NGCL on
the Closing Date (as defined in Section 1.3). The Merger shall become
effective at such time as a properly executed and certified copy of the
Merger Certificate is duly filed by the Secretary of State of the State of
Nevada in accordance with the NGCL or such later time as the parties may
agree upon and set forth in the Merger Certificate (the time at which the
Merger becomes effective shall be referred to herein as the "Effective
Time").
Section 1.3. Closing of the Merger. The closing of the Merger (the
"Closing") will take place at a time and on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction of the latest to occur of the conditions set forth in Article 5
(the "Closing Date"), at the offices of the Securities Law Institute, 0000 X.
Xxxxxxxx Xx., Xxxxx 000, Xxx Xxxxx, Xxxxxx, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 1.4. Effects of the Merger. The Merger shall have the effects
set forth in the NGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights,
privileges, powers of SHARECOM shall vest in the Surviving Corporation, and
all debts, liabilities and duties of SHARECOM shall become the debts,
liabilities and duties of the Surviving Corporation.
Section 1.5. Board of Directors and Officers of ANYD. At or prior to the
Effective Time, each of SHARECOM and ANYD agrees to take such action as is
necessary (i) to cause the number of directors comprising the full Board of
Directors of ANYD to be six (6) persons and (ii) to cause (in addition to the
present board member - Xxxxxxx Xxxxxx) Xxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxx
Xxxxx, Xxxx Xxxxxxx, and Xxxx Xxxxxxxx (the "SHARECOM Designees") to be
elected as directors of ANYD. In addition, majority stockholders of ANYD
prior to the Effective Time shall take all action necessary to cause, to the
greatest extent practicable, the SHARECOM Designees to serve on ANYD's Board
of Directors. If a SHARECOM Designee, respectively, shall decline or be
unable to serve as a director prior to the Effective Time, SHARECOM shall
nominate another person to serve in such person's stead which such person
shall be subject to approval of the other party. From and after the Effective
Time, and until successors are duly elected or appointed and qualified in
accordance with applicable law, Xxxx Xxxxxxxx shall be Chief Executive
Officer, President and Chairman, Xxxxxxx Xxxxx shall be Secretary/Treasurer,
and Xxxxx Xxxxxxx shall be Vice President of Operations of ANYD.
Section 1.6. Conversion of Shares.
(a) At the Effective Time, each share of common stock, no par value per
share of SHARECOM (individually a "SHARECOM Share" and collectively, the
"SHARECOM Shares") issued and outstanding immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of
SHARECOM, ANYD, or the holder thereof, be converted into and shall become
fully paid and nonassessable ANYD common shares determined by dividing (i)
Fourteen Million (14,000,000), by (ii) the total number of shares of
SHARECOM, One Thousand (1,000) outstanding immediately prior to the Effective
Time (such quotient, the "Exchange Ratio"). The holder of one or more shares
of SHARECOM common stock shall be entitled to receive in exchange therefor a
number of shares of ANYD Common Stock equal to the product of (x) (the number
of shares of SHARECOM common stock (1,000)), times (y) (the Exchange Ratio).
ANYD Shares and SHARECOM Shares are sometimes referred to collectively herein
as "Shares." By way of example, 14,000,000 / 1,000 = 14,000 (the Exchange
Ratio). The number of shares of SHARECOM common stock held by a stockholder
(1,000) times the Exchange Ratio of 14,000 equals 14,000,000 shares of ANYD
Shares to be issued to each stockholder.
(b) At the Effective Time, each SHARECOM Share held in the treasury of
SHARECOM, immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of SHARECOM or ANYD be canceled,
retired and cease to exist and no payment shall be made with respect thereto.
Section 1.7. Exchange of Certificates.
(a) Prior to the Effective Time, ANYD shall enter into an agreement
with, and shall deposit with, the Xxxxxxxxxx Law Group, or such other agent
or agents as may be satisfactory to ANYD and SHARECOM (the "Exchange Agent"),
for the benefit of the holders of SHARECOM Shares, for exchange through the
Exchange Agent in accordance with this Article I: (i) certificates
representing the appropriate number of ANYD Shares to be issued to holders of
SHARECOM Shares issuable pursuant to Section 1.6 in exchange for outstanding
SHARECOM Shares.
(b) As soon as reasonably practicable after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding SHARECOM Shares (the "Certificates") whose shares were converted
into the right to receive ANYD Shares pursuant to Section 1.6: (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk
of loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such
other provisions as SHARECOM and ANYD may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing ANYD Shares. Upon surrender of a
Certificate to the Exchange Agent, together with such letter of transmittal,
duly executed, and any other required documents, the holder of such
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole ANYD Shares and, if applicable, a check
representing the cash consideration to which such holder may be entitled on
account of the Cash Fund, which such holder has the right to receive pursuant
to the provisions of this Article I, and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of SHARECOM
Shares which are not registered in the transfer records of SHARECOM, a
certificate representing the proper number of ANYD Shares may be issued to a
transferee if the Certificate representing such SHARECOM Shares is presented
to the Exchange Agent accompanied by all documents required by the Exchange
Agent or ANYD to evidence and effect such transfer and by evidence that any
applicable stock transfer or other taxes have been paid. Until surrendered as
contemplated by this Section 1.7, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon
such surrender the certificate representing ANYD Shares as contemplated by
this Section 1.7.
(c) No dividends or other distributions declared or made after the
Effective Time with respect to ANYD Shares with a record date after the
Effective Time shall be paid to the holder of any un-surrendered Certificate
with respect to the ANYD Shares represented thereby until the holder of
record of such Certificate shall surrender such Certificate.
(d) In the event that any Certificate for SHARECOM Shares or ANYD Shares
shall have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange therefore, upon the making of an affidavit of that fact by the
holder thereof such ANYD Shares and cash in lieu of fractional ANYD Shares,
if any, as may be required pursuant to this Agreement; provided, however,
that ANYD or the Exchange Agent, may, in its respective discretion, require
the delivery of a suitable bond, opinion or indemnity.
(e) All ANYD Shares issued upon the surrender for exchange of SHARECOM
Shares in accordance with the terms hereof shall be deemed to have been
issued in full satisfaction of all rights pertaining to such SHARECOM Shares.
There shall be no further registration of transfers on the stock transfer
books of either of SHARECOM or ANYD of the SHARECOM Shares or ANYD Shares,
which were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to ANYD for any reason, they shall
be canceled and exchanged as provided in this Article I.
(f) No fractional ANYD Shares shall be issued in the Merger, but in lieu
thereof each holder of SHARECOM Shares otherwise entitled to a fractional
ANYD Share shall, upon surrender of its, his or her Certificate or
Certificates, be entitled to receive an additional share to round up to the
nearest round number of shares.
Section 1.8. At the Effective Time, each outstanding option to purchase
SHARECOM Shares, if any (a "SHARECOM Stock Option" or collectively, "SHARECOM
Stock Options") issued pursuant to any SHARECOM Stock Option Plan or SHARECOM
Long Term Incentive Plan whether vested or un-vested, shall be cancelled.
Section 1.9. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, SHARECOM or ANYD reasonably determines that any
deeds, assignments, or instruments or confirmations of transfer are necessary
or desirable to carry out the purposes of this Agreement and to vest ANYD
with full right, title and possession to all assets, property, rights,
privileges, powers and franchises of SHARECOM, the officers and directors of
ANYD and SHARECOM are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and
necessary or desirable action.
Section 2.0 At the Effective Time the debt of ANYD in the approximate
sum of $303,427.85 will be paid off through the payment to the creditor of
$90,000 plus the assignment of all Intellectual Property Rights of ANYD.
ARTICLE 2
Representations and Warranties of ANYD
Except as set forth on the Disclosure Schedule delivered by ANYD to
SHARECOM (the "ANYD Disclosure Schedule"), ANYD hereby represents and
warrants to SHARECOM as follows:
Section 2.1. Organization and Qualification.
(a) ANYD is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization and has all
requisite power and authority to own, lease and operate its properties and to
carry on its businesses as now being conducted, except where the failure to
be so organized, existing and in good standing or to have such power and
authority would not have a Material Adverse Effect (as defined below) on
ANYD. When used in connection with ANYD, the term "Material Adverse Effect"
means any change or effect (i) that is or is reasonably likely to be
materially adverse to the business, results of operations, condition
(financial or otherwise) or prospects of ANYD, other than any change or
effect arising out of general economic conditions unrelated to any business
in which ANYD is engaged, or (ii) that may impair the ability of ANYD to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(b) ANYD has heretofore delivered to SHARECOM accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of ANYD. Except as set forth on Schedule
2.1 of the ANYD Disclosure Schedule, ANYD is duly qualified or licensed and
in good standing to do business in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification or licensing necessary, except in such jurisdictions
where the failure to be so duly qualified or licensed and in good standing
would not have a Material Adverse Effect on ANYD.
Section 2.2. Capitalization of ANYD.
(a) The authorized capital stock of ANYD consists of: (i) One Hundred
Million (100,000,000) ANYD Common Shares, $0.001 par value, of which, as of
June 27, 2001, 19,307,705 ANYD Shares were issued and outstanding, and no
ANYD Shares were held in treasury, and (ii) Twenty-Five Million (25,000,000)
Preferred Shares at $.001 par value, of which, as of May 21, 2001, there were
no issued and outstanding Preferred Shares. All of the outstanding ANYD
Shares have been duly authorized and validly issued, and are fully paid,
nonassessable and free of preemptive rights. Except as set forth herein, as
of the date hereof, there are no outstanding (i) shares of capital stock or
other voting securities of ANYD, (ii) securities of ANYD convertible into or
exchangeable for shares of capital stock or voting securities of ANYD, (iii)
options or other rights to acquire from ANYD and, except as described in the
ANYD SEC Reports (as defined below), no obligations of ANYD to issue, any
capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of ANYD, and (iv) equity
equivalents, interests in the ownership or earnings of ANYD or other similar
rights (collectively, "ANYD Securities"). As of the date hereof, except as
set forth on Schedule 2.2(a) of the ANYD Disclosure Schedule there are no
outstanding obligations of ANYD or its subsidiaries to repurchase, redeem or
otherwise acquire any ANYD Securities or stockholder agreements, voting
trusts or other agreements or understandings to which ANYD is a party or by
which it is bound relating to the voting or registration of any shares of
capital stock of ANYD. For purposes of this Agreement, ''Lien" means, with
respect to any asset (including, without limitation, any security) any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind
in respect of such asset.
(b) The ANYD Shares constitute the only class of equity securities of
ANYD registered or required to be registered under the Exchange Act.
(c) ANYD does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity, other than as specifically disclosed in the
disclosure documents.
Section 2.3. Authority Relative to this Agreement; Recommendation.
(a) ANYD has all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of ANYD (the "ANYD Board") and no other corporate
proceedings on the part of ANYD are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby, except, as referred to in
Section 2.17, the approval and adoption of this Agreement by the holders of
at least a majority of the then outstanding ANYD Shares. This Agreement has
been duly and validly executed and delivered by ANYD and constitutes a valid,
legal and binding agreement of ANYD, enforceable against ANYD in accordance
with its terms.
(b) The ANYD Board has resolved to recommend that the stockholders of
ANYD approve and adopt this Agreement.
Section 2.4. SEC Reports; Financial Statements.
(a) ANYD has filed all required forms, reports and documents with the
Securities and Exchange Commission (the "SEC") since December 31, 2000, each
of which has complied in all material respects with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the Exchange Act (and the rules and regulations promulgated
thereunder, respectively), each as in effect on the dates such forms, reports
and documents were filed. ANYD has heretofore delivered or promptly will
deliver prior to the Effective Date to SHARECOM, in the form filed with the
SEC (including any amendments thereto but excluding any exhibits), (i) its
Annual Report on Form 10-KSB for the fiscal year ended December 31, 2000,
(ii) all definitive proxy statements relating to ANYD's meetings of
stockholders (whether annual or special) held since December 31, 2000, if
any, and (iii) all other reports or registration statements filed by ANYD
with the SEC since December 31, 2000 (all of the foregoing, collectively, the
"ANYD SEC Reports"). None of such ANYD SEC Reports, including, without
limitation, any financial statements or schedules included or incorporated by
reference therein, contained, when filed, any untrue statement of a material
fact or omitted to state a material fact required to be stated or
incorporated by reference therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited financial statements of ANYD included in the ANYD
SEC Reports fairly present, in conformity with generally accepted accounting
principles applied on a consistent basis (except as may be indicated in the
notes thereto), the financial position of ANYD as of the dates thereof and
its results of operations and changes in financial position for the periods
then ended. All material agreements, contracts and other documents required
to be filed as exhibits to any of the ANYD SEC Reports have been so filed.
(b) ANYD has heretofore made available or promptly will make available
to SHARECOM a complete and correct copy of any amendments or modifications
which are required to be filed with the SEC but have not yet been filed with
the SEC, to agreements, documents or other instruments which previously had
been filed by ANYD with the SEC pursuant to the Exchange Act.
Section 2.5. Information Supplied. None of the information supplied or
to be supplied by ANYD for inclusion or incorporation by reference in
connection with the Merger (the "Proxy Statement") will at the date mailed to
stockholders of ANYD and at the times of the meeting or meetings of
stockholders of ANYD to be held in connection with the Merger, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Proxy Statement, insofar as it relates to the meeting of
ANYD's stockholders to vote on the Merger, will comply as to form in all
material respects with the provisions of the Exchange Act and the rules and
regulations thereunder.
Section 2.6. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1916, as amended (the ''HSR Act''), the rules of the National Association
of Securities Dealers, Inc. ("NASD"), the filing and recordation of the
Merger Certificate as required by the NGCL, and as set forth on Schedule 2.6
of the ANYD Disclosure Schedule no filing with or notice to, and no permit,
authorization, consent or approval of, any court or tribunal or
administrative, governmental or regulatory body, agency or authority (a
"Governmental Entity") is necessary for the execution and delivery by ANYD of
this Agreement or the consummation by ANYD of the transactions contemplated
hereby, except where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice would not
have a Material Adverse Effect on ANYD.
Except as set forth in Section 2.6 of the ANYD Disclosure Schedule,
neither the execution, delivery and performance of this Agreement by ANYD nor
the consummation by ANYD of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the respective
Certificate of Incorporation or Bylaws (or similar governing documents) of
ANYD, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration or Lien) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to
which ANYD is a party or by which any of its properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, law, statute,
rule or regulation applicable to ANYD or any of its properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults
which would not have a Material Adverse Effect on ANYD.
Section 2.7. No Default. Except as set forth in Section 2.7 of the ANYD
Disclosure Schedule, ANYD is not in breach, default or violation (and no
event has occurred which with notice or the lapse of time or both would
constitute a breach default or violation) of any term, condition or provision
of (i) its Certificate of Incorporation or Bylaws (or similar governing
documents), (ii) any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which ANYD is now a
party or by which any of its respective properties or assets may be bound or
(iii) any order, writ injunction, decree, law, statute, rule or regulation
applicable to ANYD or any of its respective properties or assets, except in
the case of (ii) or (iii) for violations, breaches or defaults that would not
have a Material Adverse Effect on ANYD. Except as set forth in Section 2.7 of
the ANYD Disclosure Schedule, each note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which ANYD
is now a party or by which its respective properties or assets may be bound
that is material to ANYD and that has not expired is in full force and effect
and is not subject to any material default thereunder of which ANYD is aware
by any party obligated to ANYD thereunder.
Section 2.8. No Undisclosed Liabilities; Absence of Changes. Except as
set forth in Section 2.8 of the ANYD Disclosure Schedule and except as and to
the extent publicly disclosed by ANYD in the ANYD SEC Reports, as of March
31, 2001, ANYD does not have any liabilities or obligations of any nature,
whether or not accrued, contingent or otherwise, that would be required by
generally accepted accounting principles to be reflected on a balance sheet
of ANYD (including the notes thereto) or which would have a Material Adverse
Effect on ANYD. Except as publicly disclosed by ANYD, since March 31, 2001,
ANYD has not incurred any liabilities of any nature, whether or not accrued,
contingent or otherwise, which could reasonably be expected to have, and
there have been no events, changes or effects with respect to ANYD having or
which reasonably could be expected to have, a Material Adverse Effect on
ANYD. Except as and to the extent publicly disclosed by ANYD in the ANYD SEC
Reports and except as set forth in Section 2.8 of the ANYD Disclosure
Schedule, since March 31, 2001, there has not been (i) any material change by
ANYD in its accounting methods, principles or practices (other than as
required after the date hereof by concurrent changes in generally accepted
accounting principles), (ii) any revaluation by ANYD of any of its assets
having a Material Adverse Effect on ANYD, including, without limitation, any
write-down of the value of any assets other than in the ordinary course of
business or (iii) any other action or event that would have required the
consent of any other party hereto pursuant to Section 4.1 of this Agreement
had such action or event occurred after the date of this Agreement.
Section 2.9. Litigation. Except as publicly disclosed by ANYD in the
ANYD SEC Reports, there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of ANYD, threatened against ANYD
or any of its subsidiaries or any of their respective properties or assets
before any Governmental Entity which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on ANYD or could
reasonably be expected to prevent or delay the consummation of the
transactions contemplated by this Agreement. Except as publicly disclosed by
ANYD in the ANYD SEC Reports, ANYD is not subject to any outstanding order,
writ, injunction or decree which, insofar as can be reasonably foreseen in
the future, could reasonably be expected to have a Material Adverse Effect on
ANYD or could reasonably be expected to prevent or delay the consummation of
the transactions contemplated hereby.
Section 2.10. Compliance with Applicable Law. Except as publicly
disclosed by ANYD in the ANYD SEC Reports, ANYD holds all permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities
necessary for the lawful conduct of their respective businesses (the `'ANYD
Permits"), except for failures to hold such permits, licenses, variances,
exemptions, orders and approvals which would not have a Material Adverse
Effect on ANYD. Except as publicly disclosed by ANYD in the ANYD SEC Reports,
ANYD is in compliance with the terms of the ANYD Permits, except where the
failure so to comply would not have a Material Adverse Effect on ANYD. Except
as publicly disclosed by ANYD in the ANYD SEC Reports, the business of ANYD
is not being conducted in violation of any law, ordinance or regulation of
any Governmental Entity except that no representation or warranty is made in
this Section 2.10 with respect to Environmental Laws (as defined in Section
2.12 below) and except for violations or possible violations which do not,
and, insofar as reasonably can be foreseen, in the future will not, have a
Material Adverse Effect on ANYD. Except as publicly disclosed by ANYD in the
ANYD SEC Reports, no investigation or review by any Governmental Entity with
respect to ANYD is pending or, to the knowledge of ANYD, threatened, nor, to
the knowledge of ANYD, has any Governmental Entity indicated an intention to
conduct the same, other than, in each case, those which ANYD reasonably
believes will not have a Material Adverse Effect on ANYD.
Section 2.11. Employee Benefit Plans; Labor Matters.
(a) Except as set forth in Section 2.11(a) of the ANYD Disclosure
Schedule with respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained or contributed to at
any time by ANYD or any entity required to be aggregated with ANYD pursuant
to Section 414 of the Code (each, a "ANYD Employee Plan"), no event has
occurred and to the knowledge of ANYD, no condition or set of circumstances
exists in connection with which ANYD could reasonably be expected to be
subject to any liability which would have a Material Adverse Effect on ANYD.
(b) (i) No ANYD Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each ANYD Employee Plan intended
to qualify under Section 401(a) of the Code and each trust intended to
qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 2.11(c) of the ANYD Disclosure Schedule sets forth a true
and complete list, as of the date of this Agreement, of each person who holds
any ANYD Stock Options, together with the number of ANYD Shares which are
subject to such option, the date of grant of such option, the extent to which
such option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 2.11(c) of the ANYD
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. ANYD has furnished SHARECOM with
complete copies of the plans pursuant to which the ANYD Stock Options were
issued. Other than the automatic vesting of ANYD Stock Options that may occur
without any action on the part of ANYD or its officers or directors, ANYD has
not taken any action that would result in any ANYD Stock Options that are
unvested becoming vested in connection with or as a result of the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(d) ANYD has made available to SHARECOM (i) a description of the terms
of employment and compensation arrangements of all officers of ANYD and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating ANYD to make
annual cash payments in an amount exceeding $60,000; (iii) a schedule listing
all officers of ANYD who have executed a non-competition agreement with ANYD
and a copy of each such agreement currently in effect; (iv) copies (or
descriptions) of all severance agreements, programs and policies of ANYD with
or relating to its employees, except programs and policies required to be
maintained by law; and (v) copies of all plans, programs, agreements and
other arrangements of ANYD with or relating to its employees which contain
change in control provisions all of which are set forth in Section 2.11(d) of
the ANYD Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any ANYD Employee
Plan or any agreement or arrangement disclosed under this Section 2.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of ANYD,
threatened, between ANYD and any of their employees, which controversies have
or could reasonably be expected to have a Material Adverse Effect on ANYD.
Neither ANYD nor any of its subsidiaries is a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by ANYD or any of its subsidiaries (and neither ANYD nor any of its
subsidiaries has any outstanding material liability with respect to any
terminated collective bargaining agreement or labor union contract), nor does
ANYD know of any activities or proceedings of any labor union to organize any
of its or employees. ANYD has no knowledge of any strike, slowdown, work
stoppage, lockout or threat thereof, by or with respect to any of its
employees.
Section 2.12. Environmental Laws and Regulations.
(a) Except as publicly disclosed by ANYD in the ANYD SEC Reports, (i)
ANYD is in material compliance with all applicable federal, state, local and
foreign laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata)
(collectively, "Environmental Laws"), except for non-compliance that would
not have a Material Adverse Effect on ANYD, which compliance includes, but is
not limited to, the possession by ANYD of all material permits and other
governmental authorizations required under applicable Environmental Laws, and
compliance with the terms and conditions thereof; (ii) ANYD has not received
written notice of, or, to the knowledge of ANYD, is the subject of, any
action, cause of action, claim, investigation, demand or notice by any person
or entity alleging liability under or non-compliance with any Environmental
Law (an ''Environmental Claim") that could reasonably be expected to have a
Material Adverse Effect on ANYD; and (iii) to the knowledge of ANYD, there
are no circumstances that are reasonably likely to prevent or interfere with
such material compliance in the future.
(b) Except as publicly disclosed by ANYD, there are no Environmental
Claims which could reasonably be expected to have a Material Adverse Effect
on ANYD that are pending or, to the knowledge of ANYD, threatened against
ANYD or, to the knowledge of ANYD, against any person or entity whose
liability for any Environmental Claim ANYD has or may have retained or
assumed either contractually or by operation of law.
Section 2.13. Tax Matters.
(a) Except as set forth in Section 2.13 of the ANYD Disclosure Schedule:
(i) ANYD has filed or has had filed on its behalf in a timely manner (within
any applicable extension periods) with the appropriate Governmental Entity
all income and other material Tax Returns (as defined herein) with respect to
Taxes (as defined herein) of ANYD and all Tax Returns were in all material
respects true, complete and correct; (ii) all material Taxes with respect to
ANYD have been paid in full or have been provided for in accordance with GAAP
on ANYD's most recent balance sheet which is part of the ANYD SEC Documents.
(iii) there are no outstanding agreements or waivers extending the statutory
period of limitations applicable to any federal, state, local or foreign
income or other material Tax Returns required to be filed by or with respect
to ANYD; (iv) to the knowledge of ANYD none of the Tax Returns of or with
respect to ANYD is currently being audited or examined by any Governmental
Entity; and (v) no deficiency for any income or other material Taxes has been
assessed with respect to ANYD which has not been abated or paid in full.
(b) For purposes of this Agreement, (i) "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including, without limitation,
income, gross receipts, sales, use, ad valorem, goods and services, capital,
transfer, franchise, profits, license, withholding, payroll, employment,
employer health, excise, estimated, severance, stamp, occupation, property or
other taxes, customs duties, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority and (ii) "Tax Return"
shall mean any report, return, documents declaration or other information or
filing required to be supplied to any taxing authority or jurisdiction with
respect to Taxes.
Section 2.14. Title to Property. ANYD has good and defensible title to
all of its properties and assets, free and clear of all liens, charges and
encumbrances except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby
or which, individually or in the aggregate, would not have a Material Adverse
Effect on ANYD; and, to ANYD's knowledge, all leases pursuant to which ANYD
leases from others real or personal property are in good standing, valid and
effective in accordance with their respective terms, and there is not, to the
knowledge of ANYD, under any of such leases, any existing material default or
event of default (or event which with notice of lapse of time, or both, would
constitute a default and in respect of which ANYD has not taken adequate
steps to prevent such a default from occurring) except where the lack of such
good standing, validity and effectiveness, or the existence of such default
or event, would not have a Material Adverse Effect on ANYD.
Section 2.15. Intellectual Property.
(a) ANYD owns, or possesses adequate licenses or other valid rights to
use, all existing United States and foreign patents, trademarks, trade names,
service marks, copyrights, trade secrets and applications therefor that are
material to its business as currently conducted (the "ANYD Intellectual
Property Rights"). However, pursuant to subsection 2.0 herein, the
Intellectual Property Rights are being exchanged for existing debt in the sum
of approximately $303,427.85.
(b) The validity of the ANYD Intellectual Property Rights and the title
thereto of ANYD is not being questioned in any litigation to which ANYD is a
party.
(c) Except as set forth in Section 2.15(c) of the ANYD Disclosure
Schedule, the conduct of the business of ANYD as now conducted does not, to
ANYD's knowledge, infringe any valid patents, trademarks, trade names,
service marks or copyrights of others. The consummation of the transactions
completed hereby will not result in the loss or impairment of any ANYD
Intellectual Property Rights.
(d) ANYD has taken steps it believes appropriate to protect and maintain
its trade secrets as such, except in cases where ANYD has elected to rely on
patent or copyright protection in lieu of trade secret protection.
(e) The ANYD Intellectual Property Rights referenced herein are being
transferred, along with the physical equipment related thereto, to the major
creditor of ANYD (in addition to the payment of $90,000) in exchange for
relieving ANYD of its obligation to repay $303,427.85 of loans. The transfer
of the Intellectual Property Rights and the relief from the liability will
occur concurrent with the Effective Date of the Merger.
Section 2.16. Insurance. ANYD currently does not maintain general
liability and other business insurance.
Section 2.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding ANYD Shares is the only vote of the
holders of any class or series of ANYD's capital stock necessary to approve
and adopt this Agreement and the Merger.
Section 2.18. Tax Treatment. Neither ANYD nor, to the knowledge of ANYD,
any of its affiliates has taken or agreed to take action that would prevent
the Merger from constituting a reorganization qualifying under the provisions
of Section 368(a) of the Code.
Section 2.19. Affiliates. Except for Principal ANYD Stockholders and the
directors and executive officers of ANYD, each of whom is listed in Section
2.19 of the ANYD Disclosure Schedule, there are no persons who, to the
knowledge of ANYD, may be deemed to be affiliates of ANYD under Rule 1-02(b)
of Regulation S-X of the SEC (the "ANYD Affiliates").
Section 2.20. Certain Business Practices. None of ANYD or any directors,
officers, agents or employees of ANYD has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or campaigns or violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended (the "FCPA"), or (iii) made any other unlawful payment.
Section 2.21. Insider Interests. Except as set forth in Section 2.21 of
the ANYD Disclosure Schedule, neither the principal ANYD shareholders nor any
officer or director of ANYD has any interest in any material property, real
or personal, tangible or intangible, including without limitation, any
computer software or ANYD Intellectual Property Rights, used in or pertaining
to the business of ANYD, expect for the ordinary rights of a stockholder or
employee stock optionholder.
Section 2.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the ANYD Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of ANYD Shares.
Section 2.23. Brokers. No broker, finder or investment banker (other
than the ANYD Financial Adviser, a true and correct copy of whose engagement
agreement has been provided to SHARECOM) is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of ANYD.
Section 2.24. Disclosure. No representation or warranty of ANYD in this
Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to SHARECOM pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 2.25. No Existing Discussions. As of the date hereof, ANYD is
not engaged, directly or indirectly, in any discussions or negotiations with
any other party with respect to any Third Party Acquisition (as defined in
Section 4.4).
Section 2.26. Material Contracts.
(a) ANYD has delivered or otherwise made available to SHARECOM true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which ANYD is a party affecting the obligations of any party thereunder) to
which ANYD is a party or by which any of its properties or assets are bound
that are, material to the business, properties or assets of ANYD taken as a
whole, including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of ANYD taken as a whole, all: (i) employment, product design or
development, personal services, consulting, non-competition, severance,
golden parachute or indemnification contracts (including, without limitation,
any contract to which ANYD is a party involving employees of ANYD); (ii)
licensing, publishing, merchandising or distribution agreements; (iii)
contracts granting rights of first refusal or first negotiation; (iv)
partnership or joint venture agreements; (v) agreements for the acquisition,
sale or lease of material properties or assets or stock or otherwise entered
into since March 31, 2001; (vi) contracts or agreements with any Governmental
Entity. and (vii) all commitments and agreements to enter into any of the
foregoing (collectively, together with any such contracts entered into in
accordance with Section 4.1 hereof, the "ANYD Contracts"). ANYD is not a
party to or bound by any severance, golden parachute or other agreement with
any employee or consultant pursuant to which such person would be entitled to
receive any additional compensation or an accelerated payment of compensation
as a result of the consummation of the transactions contemplated hereby.
(b) Each of the ANYD Contracts is valid and enforceable in accordance
with its terms, and there is no default under any ANYD Contract so listed
either by ANYD or, to the knowledge of ANYD, by any other party thereto, and
no event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by ANYD or, to the knowledge of
ANYD, any other party, in any such case in which such default or event could
reasonably be expected to have a Material Adverse Effect on ANYD.
(c) No party to any such ANYD Contract has given notice to ANYD of or
made a claim against ANYD with respect to any breach or default thereunder,
in any such case in which such breach or default could reasonably be expected
to have a Material Adverse Effect on ANYD.
ARTICLE 3
Representations and Warranties of SHARECOM
Except as set forth on the Disclosure Schedule delivered by SHARECOM to
ANYD (the "SHARECOM Disclosure Schedule"), SHARECOM hereby represents and
warrants to ANYD as follows:
Section 3.1. Organization and Qualification.
(a) Each of SHARECOM and its subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has all requisite power and authority to
own, lease and operate its properties and to carry on its businesses as now
being conducted, except where the failure to be so organized, existing and in
good standing or to have such power and authority would not have a Material
Adverse Effect (as defined below) on SHARECOM. When used in connection with
SHARECOM, the term "Material Adverse Effect'' means any change or effect (i)
that is or is reasonably likely to be materially adverse to the business,
results of operations, condition (financial or otherwise) or prospects of
SHARECOM and its subsidiaries, taken as a whole, other than any change or
effect arising out of general economic conditions unrelated to any businesses
in which SHARECOM and its subsidiaries are engaged, or (ii) that may impair
the ability of SHARECOM to consummate the transactions contemplated hereby.
(b) SHARECOM has heretofore delivered to ANYD accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of SHARECOM. Each of SHARECOM and its
subsidiaries is duly qualified or licensed and in good standing to do
business in each jurisdiction in which the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification
or licensing necessary except in such jurisdictions where the failure to be
so duly qualified or licensed and in good standing would not have a Material
Adverse Effect on SHARECOM.
Section 3.2. Capitalization of SHARECOM.
(a) As of March 31, 2001, the authorized capital stock of SHARECOM
consists of; (i) Ten Thousand (10,000) SHARECOM common Shares, no par value,
1,000 Common Shares were issued and outstanding, and (ii) no preferred shares
were authorized. All of the outstanding SHARECOM Shares have been duly
authorized and validly issued, and are fully paid, nonassessable and free of
preemptive rights.
(b) Except as set forth in Section 3.2(b) of the SHARECOM Disclosure
Schedule, SHARECOM is the record and beneficial owner of all of the issued
and outstanding shares of capital stock of its subsidiaries.
(c) Except as set forth in Section 3.2(c) of the SHARECOM Disclosure
Schedule, between March 31, 2001 and the date hereof, no shares of SHARECOM's
capital stock have been issued and no SHARECOM Stock options have been
granted. Except as set forth in Section 3.2(a) above, as of the date hereof,
there are no outstanding (i) shares of capital stock or other voting
securities of SHARECOM, (ii) securities of SHARECOM or its subsidiaries
convertible into or exchangeable for shares of capital stock or voting
securities of SHARECOM, (iii) options or other rights to acquire from
SHARECOM or its subsidiaries, or obligations of SHARECOM or its subsidiaries
to issue, any capital stock, voting securities or securities convertible into
or exchangeable for capital stock or voting securities of SHARECOM, or (iv)
equity equivalents, interests in the ownership or earnings of SHARECOM or its
subsidiaries or other similar rights (collectively, "SHARECOM Securities").
As of the date hereof, there are no outstanding obligations of SHARECOM or
any of its subsidiaries to repurchase, redeem or otherwise acquire any
SHARECOM Securities. There are no stockholder agreements, voting trusts or
other agreements or understandings to which SHARECOM is a party or by which
it is bound relating to the voting or registration of any shares of capital
stock of SHARECOM.
(d) Except as set forth in Section 3.2(d) of the SHARECOM Disclosure
Schedule, there are no securities of SHARECOM convertible into or
exchangeable for, no options or other rights to acquire from SHARECOM, and no
other contract, understanding, arrangement or obligation (whether or not
contingent) providing for the issuance or sale, directly or indirectly, of
any capital stock or other ownership interests in, or any other securities
of, any subsidiary of SHARECOM.
(e) The SHARECOM Shares constitute the only class of equity securities
of SHARECOM or its subsidiaries.
(f) Except as set forth in Section 3.2(f) of the SHARECOM Disclosure
Schedule, SHARECOM does not own directly or indirectly more than fifty
percent (50%) of the outstanding voting securities or interests (including
membership interests) of any entity.
Section 3.3. Authority Relative to this Agreement; Recommendation.
(a) SHARECOM has all necessary corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of SHARECOM (the "SHARECOM Board"), and no other
corporate proceedings on the part of SHARECOM are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby, except, as
referred to in Section 3.17, the approval and adoption of this Agreement by
the holders of at least a majority of the then outstanding SHARECOM Shares.
This Agreement has been duly and validly executed and delivered by SHARECOM
and constitutes a valid, legal and binding agreement of SHARECOM, enforceable
against SHARECOM in accordance with its terms.
(b) The SHARECOM Board has resolved to recommend that the stockholders
of SHARECOM approve and adopt this Agreement.
Section 3.4. SEC Reports; Financial Statements. SHARECOM is not required
to file forms, reports and documents with the SEC. SHARECOM has heretofore
made available or promptly will make available to ANYD a complete and correct
copy of SHARECOM's audited financial statements dated December 31, 2000, and
unaudited financial statements for the period ending March 31, 2001, to be
filed with the SEC in an 8K filing post merger.
Section 3.5. Information Supplied. None of the information supplied or
to be supplied by SHARECOM for inclusion or incorporation by reference to (i)
the 8-K will, at the time the 8-K is filed with the SEC and at the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (ii)
the Proxy Statement will, at the date mailed to stockholders of ANYD, if any,
and at the times of the meeting or meetings of stockholders of ANYD to be
held in connection with the Merger, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Proxy Statement,
insofar as it relates to the meeting of SHARECOM's stockholders to vote on
the Merger, will comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations thereunder, and
the 8-K will comply as to form in all material respects with the provisions
of the Securities Act and the rules and regulations thereunder.
Section 3.6. Consents and Approvals; No Violations. Except as set forth
in Section 3.6 of the SHARECOM Disclosure Schedule, and for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the HSR Act, the rules of the NASD, and the
filing and recordation of the Merger Certificate as required by the NGCL, no
filing with or notice to, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution and delivery by
SHARECOM of this Agreement or the consummation by SHARECOM of the
transactions contemplated hereby, except where the failure to obtain such
permits, authorizations consents or approvals or to make such filings or give
such notice would not have a Material Adverse Effect on SHARECOM.
Neither the execution, delivery and performance of this Agreement by
SHARECOM nor the consummation by SHARECOM of the transactions contemplated
hereby will (i) conflict with or result in any breach of any provision of the
respective Certificate of Incorporation or Bylaws (or similar governing
documents) of SHARECOM or any of SHARECOM's subsidiaries, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or Lien) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which SHARECOM or any of
SHARECOM's subsidiaries is a party or by which any of them or any of their
respective properties or assets may be bound or (iii) violate any order,
writ, injunction, decree, law, statute, rule or regulation applicable to
SHARECOM or any of SHARECOM's subsidiaries or any of their respective
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults which would not have a Material Adverse Effect on
SHARECOM.
Section 3.7. No Default. None of SHARECOM or any of its subsidiaries is
in breach, default or violation (and no event has occurred which with notice
or the lapse of time or both would constitute a breach, default or violation)
of any term, condition or provision of (i) its Certificate of Incorporation
or Bylaws (or similar governing documents), (ii) any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which SHARECOM or any of its subsidiaries is now a party or by
which any of them or any of their respective properties or assets may be
bound or (iii) any order, writ, injunction, decree, law, statute, rule or
regulation applicable to SHARECOM, its subsidiaries or any of their
respective properties or assets, except in the case of (ii) or (iii) for
violations, breaches or defaults that would not have a Material Adverse
Effect on SHARECOM. Each note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which SHARECOM or
any of its subsidiaries is now a party or by which any of them or any of
their respective properties or assets may be bound that is material to
SHARECOM and its subsidiaries taken as a whole and that has not expired is in
full force and effect and is not subject to any material default thereunder
of which SHARECOM is aware by any party obligated to SHARECOM or any
subsidiary thereunder.
Section 3.8. No Undisclosed Liabilities; Absence of Changes. Except as
and to the extent disclosed by SHARECOM in the SHARECOM, none of SHARECOM or
its subsidiaries had any liabilities or obligations of any nature, whether or
not accrued, contingent or otherwise, that would be required by generally
accepted accounting principles to be reflected on a consolidated balance
sheet of SHARECOM and its consolidated subsidiaries (including the notes
thereto) or which would have a Material Adverse Effect on SHARECOM. Except as
disclosed by SHARECOM, none of SHARECOM or its subsidiaries has incurred any
liabilities of any nature, whether or not accrued, contingent or otherwise,
which could reasonably be expected to have, and there have been no events,
changes or effects with respect to SHARECOM or its subsidiaries having or
which could reasonably be expected to have, a Material Adverse Effect on
SHARECOM. Except as and to the extent disclosed by SHARECOM there has not
been (i) any material change by SHARECOM in its accounting methods,
principles or practices (other than as required after the date hereof by
concurrent changes in generally accepted accounting principles), (ii) any
revaluation by SHARECOM of any of its assets having a Material Adverse Effect
on SHARECOM, including, without limitation, any write-down of the value of
any assets other than in the ordinary course of business or (iii) any other
action or event that would have required the consent of any other party
hereto pursuant to Section 4.2 of this Agreement had such action or event
occurred after the date of this Agreement.
Section 3.9. Litigation. Except as set forth in Schedule 3.9 of the
SHARECOM Disclosure Schedule there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of SHARECOM, threatened against
SHARECOM or any of its subsidiaries or any of their respective properties or
assets before any Governmental Entity which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect on
SHARECOM or could reasonably be expected to prevent or delay the consummation
of the transactions contemplated by this Agreement. Except as disclosed by
SHARECOM, none of SHARECOM or its subsidiaries is subject to any outstanding
order, writ, injunction or decree which, insofar as can be reasonably
foreseen in the future, could reasonably be expected to have a Material
Adverse Effect on SHARECOM or could reasonably be expected to prevent or
delay the consummation of the transactions contemplated hereby.
Section 3.10. Compliance with Applicable Law. Except as disclosed by
SHARECOM, SHARECOM and its subsidiaries hold all permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities
necessary for the lawful conduct of their respective businesses (the
"SHARECOM Permits"), except for failures to hold such permits, licenses,
variances, exemptions, orders and approvals which would not have a Material
Adverse Effect on SHARECOM. Except as disclosed by SHARECOM, SHARECOM and its
subsidiaries are in compliance with the terms of the SHARECOM Permits, except
where the failure so to comply would not have a Material Adverse Effect on
SHARECOM. Except as disclosed by SHARECOM, the businesses of SHARECOM and its
subsidiaries are not being conducted in violation of any law, ordinance or
regulation of any Governmental Entity except that no representation or
warranty is made in this Section 3.10 with respect to Environmental Laws and
except for violations or possible violations which do not, and, insofar as
reasonably can be foreseen, in the future will not, have a Material Adverse
Effect on SHARECOM. Except as disclosed by SHARECOM no investigation or
review by any Governmental Entity with respect to SHARECOM or its
subsidiaries is pending or, to the knowledge of SHARECOM, threatened, nor, to
the knowledge of SHARECOM, has any Governmental Entity indicated an intention
to conduct the same, other than, in each case, those which SHARECOM
reasonably believes will not have a Material Adverse Effect on SHARECOM.
Section 3.11. Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of ERISA), maintained or
contributed to at any time by SHARECOM, any of its subsidiaries or any entity
required to be aggregated with SHARECOM or any of its subsidiaries pursuant
to Section 414 of the Code (each, a "SHARECOM Employee Plan"), no event has
occurred and, to the knowledge of SHARECOM, no condition or set of
circumstances exists in connection with which SHARECOM or any of its
subsidiaries could reasonably be expected to be subject to any liability
which would have a Material Adverse Effect on SHARECOM.
(b) (i) No SHARECOM Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each SHARECOM Employee Plan
intended to qualify under Section 401(a) of the Code and each trust intended
to qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 3.11(c) of the SHARECOM Disclosure Schedule sets forth a
true and complete list, as of the date of this Agreement, of each person who
holds any SHARECOM Stock Options, together with the number of SHARECOM Shares
which are subject to such option, the date of grant of such option, the
extent to which such option is vested (or will become vested as a result of
the Merger), the option price of such option (to the extent determined as of
the date hereof), whether such option is a nonqualified stock option or is
intended to qualify as an incentive stock option within the meaning of
Section 422(b) of the Code, and the expiration date of such option. Section
3.11(c) of the SHARECOM Disclosure Schedule also sets forth the total number
of such incentive stock options and such nonqualified options. SHARECOM has
furnished ANYD with complete copies of the plans pursuant to which the
SHARECOM Stock Options were issued. Other than the automatic vesting of
SHARECOM Stock Options that may occur without any action on the part of
SHARECOM or its officers or directors, SHARECOM has not taken any action that
would result in any SHARECOM Stock Options that are unvested becoming vested
in connection with or as a result of the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(d) SHARECOM has made available to ANYD (i) a description of the terms
of employment and compensation arrangements of all officers of SHARECOM and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating SHARECOM to make
annual cash payments in an amount exceeding $60,000; (iii) a schedule listing
all officers of SHARECOM who have executed a non-competition agreement with
SHARECOM and a copy of each such agreement currently in effect; (iv) copies
(or descriptions) of all severance agreements, programs and policies of
SHARECOM with or relating to its employees, except programs and policies
required to be maintained by law; and (v) copies of all plans, programs,
agreements and other arrangements of the SHARECOM with or relating to its
employees which contain change in control provisions.
(e) Except as disclosed in Section 3.11(e) of the SHARECOM Disclosure
Schedule there shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any SHARECOM
Employee Plan or any agreement or arrangement disclosed under this Section
3.11 solely by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of SHARECOM
threatened, between SHARECOM or any of its subsidiaries and any of their
respective employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on SHARECOM. Neither SHARECOM nor
any of its subsidiaries is a party to any collective bargaining agreement or
other labor union contract applicable to persons employed by SHARECOM or any
of its subsidiaries (and neither SHARECOM nor any of its subsidiaries has any
outstanding material liability with respect to any terminated collective
bargaining agreement or labor union contract), nor does SHARECOM know of any
activities or proceedings of any labor union to organize any of its or any of
its subsidiaries' employees. SHARECOM has no knowledge of any strike,
slowdown, work stoppage, lockout or threat thereof by or with respect to any
of its or any of its subsidiaries' employees.
Section 3.12. Environmental Laws and Regulations.
(a) Except as disclosed by SHARECOM, (i) each of SHARECOM and its
subsidiaries is in material compliance with all Environmental Laws, except
for non-compliance that would not have a Material Adverse Effect on SHARECOM,
which compliance includes, but is not limited to, the possession by SHARECOM
and its subsidiaries of all material permits and other governmental
authorizations required under applicable Environmental Laws, and compliance
with the terms and conditions thereof; (ii) none of SHARECOM or its
subsidiaries has received written notice of, or, to the knowledge of
SHARECOM, is the subject of, any Environmental Claim that could reasonably be
expected to have a Material Adverse Effect on SHARECOM; and (iii) to the
knowledge of SHARECOM, there are no circumstances that are reasonably likely
to prevent or interfere with such material compliance in the future.
(b) Except as disclosed by SHARECOM, there are no Environmental Claims
which could reasonably be expected to have a Material Adverse Effect on
SHARECOM that are pending or, to the knowledge of SHARECOM, threatened
against SHARECOM or any of its subsidiaries or, to the knowledge of SHARECOM,
against any person or entity whose liability for any Environmental Claim
SHARECOM or its subsidiaries has or may have retained or assumed either
contractually or by operation of law.
Section 3.13. Tax Matters. Except as set forth in Section 3.13 of the
SHARECOM Disclosure Schedule: (i) SHARECOM and each of its subsidiaries has
filed or has had filed on its behalf in a timely manner (within any
applicable extension periods) with the appropriate Governmental Entity all
income and other material Tax Returns with respect to Taxes of SHARECOM and
each of its subsidiaries and all Tax Returns were in all material respects
true, complete and correct; (ii) all material Taxes with respect to SHARECOM
and each of its subsidiaries have been paid in full or have been provided for
in accordance with GAAP on SHARECOM's most recent balance sheet which is part
of the SHARECOM SEC Documents; (iii) there are no outstanding agreements or
waivers extending the statutory period of limitations applicable to any
federal, state, local or foreign income or other material Tax Returns
required to be filed by or with respect to SHARECOM or its subsidiaries; (iv)
to the knowledge of SHARECOM none of the Tax Returns of or with respect to
SHARECOM or any of its subsidiaries is currently being audited or examined by
any Governmental Entity; and (v) no deficiency for any income or other
material Taxes has been assessed with respect to SHARECOM or any of its
subsidiaries which has not been abated or paid in full.
Section 3.14. Title to Property. SHARECOM and each of its subsidiaries
have good and defensible title to all of their properties and assets, free
and clear of all liens, charges and encumbrances except liens for taxes not
yet due and payable and such liens or other imperfections of title, if any,
as do not materially detract from the value of or interfere with the present
use of the property affected thereby or which, individually or in the
aggregate, would not have a Material Adverse Effect on SHARECOM; and, to
SHARECOM's knowledge, all leases pursuant to which SHARECOM or any of its
subsidiaries lease from others real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not, to the knowledge of SHARECOM, under any of such leases, any
existing material default or event of default (or event which with notice or
lapse of time, or both, would constitute a material default and in respect of
which SHARECOM or such subsidiary has not taken adequate steps to prevent
such a default from occurring) except where the lack of such good standing,
validity and effectiveness, or the existence of such default or event of
default would not have a Material Adverse Effect on SHARECOM.
Section 3.15. Intellectual Property.
(a) Each of SHARECOM and its subsidiaries owns, or possesses adequate
licenses or other valid rights to use, all existing United States and foreign
patents, trademarks, trade names, services marks, copyrights, trade secrets,
and applications therefor that are material to its business as currently
conducted (the "SHARECOM Intellectual Property Rights").
(b) Except as set forth in Section 3.15(b) of the SHARECOM Disclosure
Schedule the validity of the SHARECOM Intellectual Property Rights and the
title thereto of SHARECOM or any subsidiary, as the case may be, is not being
questioned in any litigation to which SHARECOM or any subsidiary is a party.
(c) The conduct of the business of SHARECOM and its subsidiaries as now
conducted does not, to SRCis knowledge, infringe any valid patents,
trademarks, tradenames, service marks or copyrights of others. The
consummation of the transactions contemplated hereby will not result in the
loss or impairment of any SHARECOM Intellectual Property Rights.
(d) Each of SHARECOM and its subsidiaries has taken steps it believes
appropriate to protect and maintain its trade secrets as such, except in
cases where SHARECOM has elected to rely on patent or copyright protection in
lieu of trade secret protection.
Section 3.16. Insurance. SHARECOM and its subsidiaries maintain general
liability and other business insurance that SHARECOM believes to be
reasonably prudent for its business.
Section 3.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding SHARECOM Shares is the only vote of the
holders of any class or series of SHARECOM's capital stock necessary to
approve and adopt this Agreement and the Merger.
Section 3.18. Tax Treatment. Neither SHARECOM nor, to the knowledge of
SHARECOM, any of its affiliates has taken or agreed to take any action that
would prevent the Merger from constituting a reorganization qualifying under
the provisions of Section 368(a) of the Code.
Section 3.19. Affiliates. Except for the directors and executive
officers of SHARECOM, each of whom is listed in Section 3.19 of the SHARECOM
Disclosure Schedule, there are no persons who, to the knowledge of SHARECOM,
may be deemed to be affiliates of SHARECOM under Rule 1-02(b) of Regulation
S-X of the SEC (the "SHARECOM Affiliates").
Section 3.20. Certain Business Practices. None of SHARECOM, any of its
subsidiaries or any directors, officers, agents or employees of SHARECOM or
any of its subsidiaries has (i) used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the FCPA, or (iii) made any other
unlawful payment.
Section 3.21. Insider Interests. Except as set forth in Section 3.21 of
the SHARECOM Disclosure Schedule, no officer or director of SHARECOM has any
interest in any material property, real or personal, tangible or intangible,
including without limitation, any computer software or SHARECOM Intellectual
Property Rights, used in or pertaining to the business of SHARECOM or any
subsidiary, except for the ordinary rights of a stockholder or employee stock
optionholder.
Section 3.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the SHARECOM Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of SHARECOM Shares.
Section 3.23. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finders or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of SHARECOM.
Section 3.24. Disclosure. No representation or warranty of SHARECOM in
this Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to ANYD pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 3.25. No Existing Discussions. As of the date hereof, SHARECOM
is not engaged, directly or indirectly, in any discussions or negotiations
with any other party with respect to any Third Party Acquisition (as defined
in Section 5.4).
Section 3.26. Material Contracts.
(a) SHARECOM has delivered or otherwise made available to ANYD true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which SHARECOM is a party affecting the obligations of any party thereunder)
to which SHARECOM or any of its subsidiaries is a party or by which any of
their properties or assets are bound that are, material to the business,
properties or assets of SHARECOM and its subsidiaries taken as a whole,
including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of SHARECOM and its subsidiaries taken as a whole, all: (i)
employment, product design or development, personal services, consulting,
non-competition, severance, golden parachute or indemnification contracts
(including, without limitation, any contract to which SHARECOM is a party
involving employees of SHARECOM); (ii) licensing, publishing, merchandising
or distribution agreements; (iii) contracts granting rights of first refusal
or first negotiation; (iv) partnership or joint venture agreements; (v)
agreements for the acquisition, sale or lease of material properties or
assets or stock or otherwise. (vi) contracts or agreements with any
Governmental Entity; and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 5.2 hereof, the 'SHARECOM Contracts").
Neither SHARECOM nor any of its subsidiaries is a party to or bound by any
severance, golden parachute or other agreement with any employee or
consultant pursuant to which such person would be entitled to receive any
additional compensation or an accelerated payment of compensation as a result
of the consummation of the transactions contemplated hereby.
(b) Each of the SHARECOM Contracts is valid and enforceable in
accordance with its terms, and there is no default under any SHARECOM
Contract so listed either by SHARECOM or, to the knowledge of SHARECOM, by
any other party thereto, and no event has occurred that with the lapse of
time or the giving of notice or both would constitute a default thereunder by
SHARECOM or, to the knowledge of SHARECOM, any other party, in any such case
in which such default or event could reasonably be expected to have a
Material Adverse Effect on SHARECOM.
(c) No party to any such SHARECOM Contract has given notice to SHARECOM
of or made a claim against SHARECOM with respect to any breach or default
thereunder, in any such case in which such breach or default could reasonably
be expected to have a Material Adverse Effect on SHARECOM.
ARTICLE 4
Covenants
Section 4.1. Conduct of Business of ANYD. Except as contemplated by this
Agreement or as described in Section 4.1 of the ANYD Disclosure Schedule,
during the period from the date hereof to the Effective Time, ANYD will
conduct its operations in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, with no less diligence
and effort than would be applied in the absence of this Agreement, seek to
preserve intact its current business organization, keep available the service
of its current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it to the end
that goodwill and ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement or as described in Section 4.1 of the
ANYD Disclosure Schedule, prior to the Effective Time, ANYD will not, without
the prior written consent of SHARECOM:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) amend the terms of any stock of any class or any other securities
(except bank loans) or equity equivalents.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of ANYD (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person.
(iii) make any loans, advances or capital contributions to, or investments
in, any other person; (iv) pledge or otherwise encumber shares of capital
stock of ANYD; or (v) mortgage or pledge any of its material assets, tangible
or intangible, or create or suffer to exist any material Lien thereupon
(other than tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit,
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent ANYD from (i) entering into employment
agreements or severance agreements with employees in the ordinary course of
business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or amending bonus arrangements for
employees for fiscal 1999 in the ordinary course of year-end compensation
reviews consistent with past practice and paying bonuses to employees for
fiscal 1999 in amounts previously disclosed to SHARECOM (to the extent that
such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to ANYD);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions (other than in the ordinary
course of business);
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets including, without
limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to ANYD; (iii) authorize any new
capital expenditure or expenditures which, individually is in excess of
$1,000 or, in the aggregate, are in excess of $5,000; provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to ANYD;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
ANYD;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or in the
ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.1(a) through 4.1(m) or any action which would make
any of the representations or warranties of contained in this Agreement
untrue or incorrect.
Section 4.2. Conduct of Business of SHARECOM. Except as contemplated by
this Agreement or as described in Section 4.2 of the SHARECOM Disclosure
Schedule during the period from the date hereof to the Effective Time,
SHARECOM will conduct its operations in the ordinary course of business
consistent with past practice and, to the extent consistent therewith, with
no less diligence and effort than would be applied in the absence of this
Agreement, seek to preserve intact its current business organization, keep
available the service of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings
with it to the end that goodwill and ongoing businesses shall be unimpaired
at the Effective Time. Without limiting the generality of the foregoing,
except as otherwise expressly provided in this Agreement or as described in
Section 4.2 of the SHARECOM Disclosure Schedule, prior to the Effective Time,
SHARECOM will not, without the prior written consent of ANYD:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities (except bank loans) or equity
equivalents (including, without limitation, any stock options or stock
appreciation rights;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger
consolidation, restructuring, recapitalization or other reorganization of
SHARECOM (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business. (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person;
(iii) make any loans, advances or capital contributions to or investments in,
any other person; (iv) pledge or otherwise encumber shares of capital stock
of SHARECOM or its subsidiaries; or (v) mortgage or pledge any of its
material assets, tangible or intangible, or create or suffer to exist any
material Lien thereupon (other than tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent SHARECOM or its subsidiaries from (i)
entering into employment agreements or severance agreements with employees in
the ordinary course of business and consistent with past practice or (ii)
increasing annual compensation and/or providing for or amending bonus
arrangements for employees for fiscal 1999 in the ordinary course of yearend
compensation reviews consistent with past practice and paying bonuses to
employees for fiscal 1999 in amounts previously disclosed to (to the extent
that such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to
SHARECOM);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions other than in the ordinary
course of business;
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory of writing-off notes
or accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership, or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to SHARECOM; (iii) authorize any new
capital expenditure or expenditures which, individually, is in excess of
$1,000 or, in the aggregate, are in excess of $5,000: provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to SHARECOM and its subsidiaries taken as a whole;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
SHARECOM;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or except in
the ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.2(a) through 4.2(m) or any action which would make
any of the representations or warranties of the SHARECOM contained in this
Agreement untrue or incorrect.
Section 4.3. Preparation of 8-K and the Proxy Statement. ANYD shall
promptly file with the SEC a Proxy Statement pertaining to the ANYD
shareholders approval of the transaction contemplated herein. SHARECOM shall
promptly prepare and file with the SEC an 8-K, after consummation of the
Merger, which 8-K shall include all material SHARECOM information similar as
to what would be required in an initial registration statement on Form 10-SB.
Section 4.4. Other Potential Acquirers.
(a) SHARECOM, its affiliates and their respective officers, directors,
employees, representatives and agents shall immediately cease any existing
discussions or negotiations, if any, with any parties conducted heretofore
with respect to any Third Party Acquisition.
Section 4.5. Meetings of Stockholders. Each of SHARECOM and ANYD shall
take all action necessary, in accordance with the respective General
Corporation Law of its respective state, and its respective certificate of
incorporation and bylaws, to duly call, give notice of, convene and hold a
meeting of its stockholders as promptly as practicable, to consider and vote
upon the adoption and approval of this Agreement and the transactions
contemplated hereby. The stockholder votes required for the adoption and
approval of the transactions contemplated by this Agreement shall be the vote
required by the NGCL and its charter and bylaws, in the case of ANYD and the
Iowa Business Corporations Act, and its charter and bylaws, in the case of
SHARECOM. ANYD and SHARECOM will, through their respective Boards of
Directors, recommend to their respective stockholders approval of such
matters
Section 4.6. OTC:BB Listing. The parties shall use all reasonable
efforts to cause the ANYD Shares, subject to Rule 144, to be traded on the
Over-the-Counter Bulletin Board (OTC:BB).
Section 4.7. Access to Information.
(a) Between the date hereof and the Effective Time, ANYD will give
SHARECOM and its authorized representatives, and SHARECOM will give ANYD and
its authorized representatives, reasonable access to all employees, plants,
offices, warehouses and other facilities and to all books and records of
itself and its subsidiaries, will permit the other party to make such
inspections as such party may reasonably require and will cause its officers
and those of its subsidiaries to furnish the other party with such financial
and operating data and other information with respect to the business and
properties of itself and its subsidiaries as the other party may from time to
time reasonably request.
(b) Between the date hereof and the Effective Time, ANYD shall furnish
to SHARECOM, and SHARECOM will furnish to ANYD, within 45 business days after
the end of each quarter, quarterly statements prepared by such party in
conformity with its past practices) as of the last day of the period then
ended.
(c) Each of the parties hereto will hold and will cause its consultants
and advisers to hold in confidence all documents and information furnished to
it in connection with the transactions contemplated by this Agreement.
Section 4.8. Additional Agreements, Reasonable Efforts. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
(i) cooperating in the preparation and filing of the Proxy Statement and the
8-K, any filings that may be required under the HSR Act, and any amendments
to any thereof; (ii) obtaining consents of all third parties and Governmental
Entities necessary, proper or advisable for the consummation of the
transactions contemplated by this Agreement; (iii) contesting any legal
proceeding relating to the Merger and (iv) the execution of any additional
instruments necessary to consummate the transactions contemplated hereby.
Subject to the terms and conditions of this Agreement, SHARECOM and ANYD
agree to use all reasonable efforts to cause the Effective Time to occur as
soon as practicable after the stockholder votes with respect to the Merger.
In case at any time after the Effective Time any further action is necessary
to carry out the purposes of this Agreement, the proper officers and
directors of each party hereto shall take all such necessary action.
Section 4.9. Employee Benefits; Stock Option and Employee Purchase
Plans. Subject to the provisions of Section 1.6(d) hereof, prior to the
Effective Time, ANYD will take or cause to be taken all action necessary to
adopt and or revise the employment agreements of Xxxx Xxxxxxxx, Xxxxxxx
Xxxxx, and Xxxxx Xxxxxxx with ANYD. It is the parties' present intent to
provide after the Effective Time to employees of SHARECOM employee benefit
plans (other than stock option or other plans involving the potential
issuance of securities of ANYD) which, in the aggregate, are not less
favorable than those currently provided by SHARECOM. Notwithstanding the
foregoing, nothing contained herein shall be construed as requiring the
parties to continue any specific employee benefit plans.
Section 4.10. Public Announcements. SHARECOM, and ANYD will consult with
one another before issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this Agreement,
including, without limitation, the Merger, and shall not issue any such press
release or make any such public statement prior to such consultation, except
as may be required by applicable law or by obligations pursuant to any
listing agreement with the NASD Over-the-Counter Bulletin Board (OTC:BB) as
determined by SHARECOM or ANYD.
Section 4.11. Indemnification.
(a) To the extent, if any, not provided by an existing right under one
of the parties' directors and officers liability insurance policies, from and
after the Effective Time, ANYD shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now,
or has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director, officer or employee of the parties hereto or any
subsidiary thereof (each an "Indemnified Party" and, collectively, the
''Indemnified Parties") against all losses, expenses (including reasonable
attorneys' fees and expenses), claims, damages or liabilities or, subject to
the proviso of the next succeeding sentence, amounts paid in settlement
arising out of actions or omissions occurring at or prior to the Effective
Time and whether asserted or claimed prior to, at or after the Effective
Time) that are in whole or in part (i) based on, or arising out of the fact
that such person is or was a director, officer or employee of such party or a
subsidiary of such party or (ii) based on, arising out of or pertaining to
the transactions contemplated by this Agreement. In the event of any such
loss expense, claim, damage or liability (whether or not arising before the
Effective Time), (i) ANYD shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to ANYD, promptly after statements therefor are
received and otherwise advance to such Indemnified Party upon request
reimbursement of documented expenses reasonably incurred, in either case to
the extent not prohibited by the NGCL or its certificate of incorporation or
bylaws, (ii) ANYD will cooperate in the defense of any such matter and (iii)
any determination required to be made with respect to whether an Indemnified
Party's conduct complies with the standards set forth under the NGCL and
ANYD's certificate of incorporation or bylaws shall be made by independent
counsel mutually acceptable to ANYD and the Indemnified Party; provided,
however, that ANYD shall not be liable for any settlement effected without
its written consent (which consent shall not be unreasonably withheld). The
Indemnified Parties as a group may retain only one law firm with respect to
each related matter except to the extent there is, in the opinion of counsel
to an Indemnified Party, under applicable standards of professional conduct,
c conflict on any significant issue between positions of any two or more
Indemnified Parties.
(b) In the event ANYD or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity or such consolidation or merger
or (ii) transfers all or substantially all of its properties and assets to
any person, then and in either such case, proper provision shall be made so
that the successors and assigns of ANYD shall assume the obligations set
forth in this Section 4.11.
(c) To the fullest extent permitted by law, from and after the Effective
Time, all rights to indemnification now existing in favor of the employees,
agents, directors or officers of ANYD and SHARECOM and their subsidiaries
with respect to their activities as such prior to the Effective Time, as
provided in ANYD's and SHARECOM's certificate of incorporation or bylaws, in
effect on the date thereof or otherwise in effect on the date hereof, shall
survive the Merger and shall continue in full force and effect for a period
of not less than six years from the Effective Time.
(d) The provisions of this Section 4.11 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her representatives.
Section 4.12. Notification of Certain Matters. The parties hereto shall
give prompt notice to the other parties, of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Time, (ii) any material failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice of, or other communication relating to, a default
or event which, with notice or lapse of time or both, would become a default,
received by such party or any of its subsidiaries subsequent to the date of
this Agreement and prior to the Effective Time, under any contract or
agreement material to the financial condition, properties, businesses or
results of operations of such party and its subsidiaries taken as a whole to
which such party or any of its subsidiaries is a party or is subject, (iv)
any notice or other communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement, or (v) any material adverse
change in their respective financial condition, properties, businesses,
results of operations or prospects taken as a whole, other than changes
resulting from general economic conditions; provided, however, that the
delivery of any notice pursuant to this Section 4.12 shall not cure such
breach or non-compliance or limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
ARTICLE 5
Conditions to Consummation of the Merger
Section 5.1. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger
are subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) this Agreement shall have been approved and adopted by the requisite
vote of the stockholders of ANYD and SHARECOM;
(b) this Agreement shall have been approved and adopted by the Board of
Directors of ANYD and SHARECOM;
(c) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
United States court or United States governmental authority which prohibits,
restrains, enjoins or restricts the consummation of the Merger;
(d) any waiting period applicable to the Merger under the HSR Act shall
have terminated or expired, and any other governmental or regulatory notices
or approvals required with respect to the transactions contemplated hereby
shall have been either filed or received; and
(e) there shall be no more than 10% of the ANYD stockholders as
dissenting stockholders.
Section 5.2. Conditions to the Obligations of ANYD. The obligation of
ANYD to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the representations of SHARECOM contained in this Agreement or in
any other document delivered pursuant hereto shall be true and correct
(except to the extent that the breach thereof would not have a Material
Adverse Effect on SHARECOM) at and as of the Effective Time with the same
effect as if made at and as of the Effective Time (except to the extent such
representations specifically related to an earlier date, in which case such
representations shall be true and correct as of such earlier date), and at
the Closing SHARECOM shall have delivered to ANYD a certificate to that
effect;
(b) each of the covenants and obligations of SHARECOM to be performed at
or before the Effective Time pursuant to the terms of this Agreement shall
have been duly performed in all material respects at or before the Effective
Time and at the Closing SHARECOM shall have delivered to ANYD a certificate
to that effect;
(d) SHARECOM shall have obtained the consent or approval of each person
whose consent or approval shall be required in order to permit the Merger as
relates to any obligation, right or interest of SHARECOM under any loan or
credit agreement, note, mortgage, indenture, lease or other agreement or
instrument, except those for which failure to obtain such consents and
approvals would not, in the reasonable opinion of ANYD, individually or in
the aggregate, have a Material Adverse Effect on SHARECOM;
(e) there shall have been no events, changes or effects with respect to
SHARECOM or its subsidiaries having or which could reasonably be expected to
have a Material Adverse Effect on SHARECOM; and
(f) the ANYD Intellectual Property Rights referenced herein are
transferred, along with the physical equipment related thereto, to the major
creditor of ANYD (in addition to the payment of $90,000) in exchange for
relieving ANYD of its obligation to repay $303,427.85 of loans.
Section 5.3. Conditions to the Obligations of SHARECOM. The respective
obligations of SHARECOM to effect the Merger are subject to the satisfaction
at or prior to the Effective Time of the following conditions:
(a) the representations of ANYD contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on ANYD) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing ANYD
shall have delivered to SHARECOM a certificate to that effect;
(b) each of the covenants and obligations of ANYD to be performed at or
before the Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the Effective Time
and at the Closing ANYD shall have delivered to SHARECOM a certificate to
that effect;
(c) there shall have been no events, changes or effects with respect to
ANYD having or which could reasonably be expected to have a Material Adverse
Effect on ANYD; and,
(d) there shall have been a reverse split of 1:322 of ANYD's common
stock.
ARTICLE 6
Termination; Amendment; Waiver
Section 6.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after approval and adoption of this Agreement by ANYD's or
SHARECOM's stockholders:
(a) by mutual written consent of ANYD and SHARECOM;
(b) by SHARECOM or ANYD if (i) any court of competent jurisdiction in
the United States or other United States Governmental Entity shall have
issued a final order, decree or ruling or taken any other final action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action is or shall have become nonappealable or (ii)
the Merger has not been consummated by July 31, 2001; provided, however, that
no party may terminate this Agreement pursuant to this clause (ii) if such
party's failure to fulfill any of its obligations under this Agreement shall
have been the reason that the Effective Time shall not have occurred on or
before said date;
(c) by ANYD if (i) there shall have been a breach of any representation
or warranty on the part of SHARECOM set forth in this Agreement, or if any
representation or warranty of SHARECOM shall have become untrue, in either
case such that the conditions set forth in Section 5.2(a) would be incapable
of being satisfied by July 31, 2001 (or as otherwise extended), (ii) there
shall have been a breach by SHARECOM of any of their respective covenants or
agreements hereunder having a Material Adverse Effect on SHARECOM or
materially adversely affecting (or materially delaying) the consummation of
the Merger, and SHARECOM, as the case may be, has not cured such breach
within 20 business days after notice by ANYD thereof, provided that ANYD has
not breached any of its obligations hereunder, (iii) ANYD shall have convened
a meeting of its stockholders to vote upon the Merger and shall have failed
to obtain the requisite vote of its stockholders; or (iv) ANYD shall have
convened a meeting of its Board of Directors to vote upon the Merger and
shall have failed to obtain the requisite vote;
(d) by SHARECOM if (i) there shall have been a breach of any
representation or warranty on the part of ANYD set forth in this Agreement,
or if any representation or warranty of ANYD shall have become untrue, in
either case such that the conditions set forth in Section 5.3(a) would be
incapable of being satisfied by November 30, 1999 (or as otherwise extended),
(ii) there shall have been a breach by ANYD of its covenants or agreements
hereunder having a Material Adverse Effect on ANYD or materially adversely
affecting (or materially delaying) the consummation of the Merger, and ANYD,
as the case may be, has not cured such breach within twenty business days
after notice by SHARECOM thereof, provided that SHARECOM has not breached any
of its obligations hereunder, (iii) the ANYD Board shall have recommended to
ANYD's stockholders a Superior Proposal, (iv) the ANYD Board shall have
withdrawn, modified or changed its approval or recommendation of this
Agreement or the Merger or shall have failed to call, give notice of, convene
or hold a stockholders' meeting to vote upon the Merger, or shall have
adopted any resolution to effect any of the foregoing, (v) SHARECOM shall
have convened a meeting of its stockholders to vote upon the Merger and shall
have failed to obtain the requisite vote of its stockholders or (vi) ANYD
shall have convened a meeting of its stockholders to vote upon the Merger and
shall have failed to obtain the requisite vote of its stockholders.
Section 6.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part
of any party hereto or its affiliates, directors, officers or stockholders,
other than the provisions of this Section 6.2 and Sections 4.7(c) and 6.3
hereof. Nothing contained in this Section 6.2 shall relieve any party from
liability for any breach of this Agreement.
Section 6.3. Fees and Expenses. Except as specifically provided in this
Section 6.3, each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby.
Section 6.4. Amendment. This Agreement may be amended by action taken by
ANYD and SHARECOM at any time before or after approval of the Merger by the
stockholders of ANYD and SHARECOM (if required by applicable law) but, after
any such approval, no amendment shall be made which requires the approval of
such stockholders under applicable law without such approval. This Agreement
may not be amended, except by an instrument in writing signed on behalf of
the parties hereto.
Section 6.5. Extension; Waiver. At any time prior to the Effective Time,
each party hereto may (i) extend the time for the performance of any of the
obligations or other acts of any other party, (ii) waive any inaccuracies in
the representations and warranties of any other party contained herein or in
any document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by any other party with any of the agreements or conditions
contained herein. Any agreement on the part of any party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such
rights.
ARTICLE 7
Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time or a termination of this Agreement. This Section 7.1 shall not
limit any covenant or agreement of the parties hereto which by its terms
requires performance after the Effective Time.
Section 7.2. Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
Section 7.3. Validity. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby,
and to such end, the provisions of this Agreement are agreed to be severable.
Section 7.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested), to each other party as follows:
If to SHARECOM:
SHARECOM, INC.
0000 X. Xxxxxxxx Xx.
Xxxxxxxx, Xx 00000-0000
if to ANYD:
ANONYMOUS DATA CORPORATION
Xxxxxxx Xxxxxx MD.
0000 Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxxxx
Xxxxxxxxxx Law Group
Emerald Plaza
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000
(000) 000-0000
Email: xxx@xxxxxxxxx.xxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard
to the principles of conflicts of law thereof.
Section 7.6. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
Section 7.7. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Sections 4.9 and 4.11, nothing
in this Agreement, express or implied, is intended to or shall confer upon
any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 7.8. Certain Definitions. For the purposes of this Agreement,
the term:
(a) "affiliate" means (except as otherwise provided in Sections 2.19,
3.19 and 4.13) a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the first mentioned person;
(b) "business day" means any day other than a day on which Nasdaq is
closed;
(c) "capital stock" means common stock, preferred stock, partnership
interests, limited liability company interests or other ownership interests
entitling the holder thereof to vote with respect to matters involving the
issuer thereof;
(d) "knowledge'' or "known'' means, with respect to any matter in
question, if an executive officer of ANYD or SHARECOM or its subsidiaries, as
the case may be, has actual knowledge of such matter;
(e) "person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
legal entity; and
(f) "subsidiary" or "subsidiaries" of ANYD, SHARECOM or any other
person, means any corporation, partnership, limited liability company,
association, trust, unincorporated association or other legal entity of which
ANYD, SHARECOM or any such other person, as the case may be (either alone or
through or together with any other subsidiary), owns, directly or indirectly,
50% or more of the capital stock, the holders of which are generally entitled
to vote for the election of the board of directors or other governing body of
such corporation or other legal entity.
Section 7.9. Personal Liability. This Agreement shall not create or be
deemed to create or permit any personal liability or obligation on the part
of any direct or indirect stockholder of ANYD, or SHARECOM or any officer,
director, employee, agent, representative or investor of any party hereto.
Section 7.10. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder, including its failure to take all actions as are necessary on its
part to the consummation of the Merger, will cause irreparable injury to the
other parties for which damages, even if available, will not be an adequate
remedy. Accordingly, each party hereby consents to the issuance of injunctive
relief by any court of competent jurisdiction to compel performance of such
party's obligations and to the granting by any court of the remedy of
specific performance of its obligations hereunder; provided, however, that,
if a party hereto is entitled to receive any payment or reimbursement of
expenses pursuant to Sections 6.3(a), (b) or (c), it shall not be entitled to
specific performance to compel the consummation of the Merger.
Section 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
In Witness Whereof, each of the parties has caused this Agreement to be duly
executed on its behalf as of the day and year first above written.
SHARECOM, INC.
By:/s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
ANONYMOUS DATE CORP.
By:Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx MD
Title: President
ANYD DISCLOSURE SCHEDULE
Schedule 2.1 Organization See Amended
Articles/Bylaws/Minutes
Schedule 2.6 Consents & Approvals None Required
Schedule 2.7 No Default Not Applicable
Schedule 2.8 No Undisclosed Liability None Exist
Schedule 2.9 Litigation None Exist
Schedule 2.10 Compliance with Applicable Law Not Applicable - full
disclosed in 10KSB
Schedule 2.11 Employee Benefit Plans Section 2.11(a) Not Applicable -
None Exist
Section 2.11(b) No Benefit Plan Exist
Section 2.11( c)No Options Exist
Section 2.11(d) No Agreements Exist
Schedule 2.12 Environmental Laws and Regs. Not Applicable
Schedule 2.13 Tax Matters None Exist
Schedule 2.14 Title to Property None Exist
Schedule 2.15 Intellectual Property None Exist - See Recent Assignment
Effective Concurrent herewith.
Schedule 2.16 Insurance None Exist
Schedule 2.17 Vote Required See Shareholder Meeting
Certificate
Schedule 2.18 Tax Treatment Not Applicable
Schedule 2.19 Affiliates Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx
Schedule 2.20 Certain Business Practices None Exist
Schedule 2.21 Insider Interest None Exist
Schedule 2.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.1 Conduct of Business See Amended & Restated Articles
SHARECOM DISCLOSURE SCHEDULE
Schedule 3.2(b) Subsidiary Stock None Exist
Schedule 3.2(c) Capital Stock Rights None Exist other than as in
Articles
Schedule 3.2(d) Securities conversions None Exist
Schedule 3.2 (f) Subsidiaries None Exist
Schedule 3.6 Consents & Approvals None Required
Schedule 3.7 No Default Not Applicable
Schedule 3.8 No Undisclosed Liability None Exist
Schedule 3.9 Litigation None Exist
Schedule 3.10 Compliance with Applicable Law Not Applicable - full
disclosed in 10KSB
Schedule 3.11 Employee Benefit Plans Section 3.11( c)No Options Exist
Section 3.11(e) No Agreements Exist
Schedule 3.12 Environmental Laws and Regs Not Applicable
Schedule 3.13 Tax Matters None Exist
Schedule 3.14 Title to Property None Exist
Schedule 3.15(b) Intellectual Property None Exist
Schedule 3.16 Insurance None Exist
Schedule 3.17 Vote Required See Shareholder Meeting
Certificate
Schedule 3.18 Tax Treatment Not Applicable
Schedule 3.19 Affiliates Xxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxx Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxxx
Schedule 3.20 Certain Business Practices None Exist
Schedule 3.21 Insider Interest None Exist
Schedule 3.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.2 Conduct of Business See Amended & Restated Articles
June 29, 2001
