EXHIBIT 2.8
TRANSFER AGREEMENT
BY AND AMONG
PREMIERE TECHNOLOGIES, INC.,
DUNES COMMUNICATIONS, INC.,
SANDS COMMUNICATIONS, INC. [ARIZONA],
SANDS COMM, INC. [NEW MEXICO],
SANDSCOMM, INC.
AND
OWNER OF DUNES COMMUNICATIONS, INC.,
SANDS COMMUNICATIONS, INC. [ARIZONA],
SANDS COMM, INC. [NEW MEXICO]
AND
SANDSCOMM, INC.
DATED AS OF APRIL 2, 1997
TRANSFER AGREEMENT
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THIS TRANSFER AGREEMENT (this "Agreement") is entered into as of April 2,
1997 by and among Premiere Technologies, Inc., a Georgia corporation
("Premiere"), Dunes Communications, Inc., a California corporation ("Dunes"),
Sands Communications, Inc., an Arizona corporation ("Sands A"), Sands Comm,
Inc., a New Mexico corporation ("Sands NM"), Sandscomm, Inc., a California
corporation ("Sandscomm," and collectively with Dunes, Sands A and Sands NM, the
"Company"), and those parties listed on the signature pages hereto as the owner
of the Company (the "Owner").
W I T N E S S E T H:
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WHEREAS, this Agreement provides for the acquisition of the Company by
Premiere pursuant to the merger of Dunes, Sands A, Sands NM and Sandscomm with
and into a wholly owned subsidiary of Premiere ("Merger Corp"), with Merger Corp
as the surviving corporation in such mergers (the "Mergers");
WHEREAS, the respective Boards of Directors of Premiere, Dunes, Sands A,
Sands NM and Sandscomm have approved the terms and conditions set forth in this
Agreement;
WHEREAS, the Owner owns one hundred percent (100 %) of the equity interests
in the Company;
WHEREAS, this Agreement provides for all of the Owner's equity interests in
the Company to be converted into the right to receive shares of Premiere Stock
in connection with the Mergers;
WHEREAS, it is also the intention of the parties hereto that the form of the
transactions with respect to the Company, Premiere and Merger Corp shall qualify
as a "reorganization" within the meaning of Section 368(a) of the Code for
federal income tax purposes; and
WHEREAS, it is also the intention of the parties hereto that the business
combination to be effected by the Mergers be accounted for as a pooling of
interests.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
I. UNIFORM TERMS AND CONDITIONS
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1.1 Incorporation by Reference. The Uniform Terms and Conditions attached
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hereto as Exhibit A (the "Uniform Terms") are hereby made a part of and
incorporated herein as if fully restated herein. Capitalized terms not defined
herein shall have the meanings provided in the Uniform Terms.
II. TERMS OF MERGER
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2.1 The Mergers.
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(a) Dunes.
(i) Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined below), Dunes shall be merged with and into
Merger Corp (the "Dunes Merger") in accordance with the provisions of the
business corporation act under the laws of the State of California (the
"California Act") and the laws of the State of Georgia (the "Georgia Act").
Merger Corp shall be the surviving corporation resulting from the Merger, shall
thereafter conduct the business and operations of Dunes as a wholly owned
subsidiary of Premiere and shall continue to be governed by the laws of the
State of Georgia. The Dunes Merger shall be consummated pursuant to the terms of
this Agreement, which has been approved and adopted by the respective boards of
directors of Premiere, Merger Corp and Dunes.
(ii) Subject to the provisions of this Agreement, the
parties shall file Articles or a Certificate of Merger, as appropriate, executed
in accordance with the relevant provisions of the California Act and a
Certificate of Merger executed in accordance with the relevant provisions of the
Georgia Act and shall make all other filings or recordings required under each
such Act as soon as practicable on or after the Closing Date. The Dunes Merger
shall become effective on the date and at the time documents reflecting the
Mergers become effective with the Secretary of State of the States of Arizona,
California, Georgia and New Mexico, as appropriate (the "Effective Time").
(iii) The charter and Bylaws of Merger Corp in effect
immediately prior to the Effective Time shall be the charter and Bylaws of the
surviving corporation in the Dunes Merger until otherwise amended or repealed,
the directors of Merger Corp immediately prior to the Effective Time shall serve
as the directors of the surviving corporation in the Dunes Merger from and after
the Effective Time, and the officers of Merger Corp in office immediately prior
to the Effective Time shall serve as the officers of the surviving corporation
in the Dunes Merger from and after the Effective Time.
(b) Sands A.
(i) Subject to the terms and conditions of this Agreement,
at the Effective Time, Sands A shall be merged with and into Merger Corp (the
"Sands A Merger") in accordance with the provisions of the business corporation
act under the laws of the State of Arizona (the "Arizona Act") and the Georgia
Act. Merger Corp shall be the surviving corporation resulting from the Merger,
shall thereafter conduct the business and operations of Sands A as a wholly
owned subsidiary of Premiere and shall continue to be governed by the laws of
the State of Georgia. The Sands A Merger shall be consummated pursuant to the
terms of this Agreement, which has been approved and adopted by the respective
boards of directors of Premiere, Merger Corp and Sands A.
(ii) Subject to the provisions of this Agreement, the
parties shall file Articles or a Certificate of Merger, as appropriate, executed
in accordance with the relevant provisions of the Arizona Act and a Certificate
of Merger executed in accordance with the relevant provisions of the Georgia Act
and shall make all other filings or recordings required under each such Act as
soon
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as practicable on or after the Closing Date. The Sands A Merger shall become
effective at the Effective Time.
(iii) The charter and Bylaws of Merger Corp in effect
immediately prior to the Effective Time shall be the charter and Bylaws of the
surviving corporation in the Sands A Merger until otherwise amended or repealed,
the directors of Merger Corp immediately prior to the Effective Time shall serve
as the directors of the surviving corporation in the Sands A Merger from and
after the Effective Time, and the officers of Merger Corp in office immediately
prior to the Effective Time shall serve as the officers of the surviving
corporation in the Sands A Merger from and after the Effective Time.
(c) Sands NM.
(i) Subject to the terms and conditions of this Agreement,
at the Effective Time, Sands NM shall be merged with and into Merger Corp (the
"Sands NM Merger") in accordance with the provisions of the business corporation
act under the laws of the State of New Mexico (the "New Mexico Act") and the
Georgia Act. Merger Corp shall be the surviving corporation resulting from the
Merger, shall thereafter conduct the business and operations of Sands NM as a
wholly owned subsidiary of Premiere and shall continue to be governed by the
laws of the State of Georgia. The Sands NM Merger shall be consummated pursuant
to the terms of this Agreement, which has been approved and adopted by the
respective boards of directors of Premiere, Merger Corp and Sands NM.
(ii) Subject to the provisions of this Agreement, the
parties shall file Articles or a Certificate of Merger executed in accordance
with the relevant provisions of the New Mexico Act and a Certificate of Merger
executed in accordance with the relevant provisions of the Georgia Act and shall
make all other filings or recordings required under each such Act as soon as
practicable on or after the Closing Date. The Sands NM Merger shall become
effective at the Effective Time.
(iii) The charter and Bylaws of Merger Corp in effect
immediately prior to the Effective Time shall be the charter and Bylaws of the
surviving corporation in the Sands NM Merger until otherwise amended or
repealed, the directors of Merger Corp immediately prior to the Effective Time
shall serve as the directors of the surviving corporation in the Sands NM Merger
from and after the Effective Time, and the officers of Merger Corp in office
immediately prior to the Effective Time shall serve as the officers of the
surviving corporation in the Sands NM Merger from and after the Effective Time.
(d) Sandscomm.
(i) Subject to the terms and conditions of this Agreement,
at the Effective Time, Sandscomm shall be merged with and into Merger Corp (the
"Sandscomm Merger") in accordance with the provisions of the California Act and
the Georgia Act. Merger Corp shall be the surviving corporation resulting from
the Merger, shall thereafter conduct the business and operations of Sandscomm as
a wholly owned subsidiary of Premiere and shall continue to be governed by the
laws of the State of Georgia. The Sandscomm Merger shall be consummated pursuant
to the terms of this Agreement, which has been approved and adopted by the
respective boards of directors of Premiere, Merger Corp and Sandscomm.
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(ii) Subject to the provisions of this Agreement, the
parties shall file Articles or a Certificate of Merger executed in accordance
with the relevant provisions of the California Act and a Certificate of Merger
executed in accordance with the relevant provisions of the Georgia Act and shall
make all other filings or recordings required under each such Act as soon as
practicable on or after the Closing Date. The Sandscomm Merger shall become
effective at the Effective Time.
(iii) The charter and Bylaws of Merger Corp in effect
immediately prior to the Effective Time shall be the charter and Bylaws of the
surviving corporation in the Sandscomm Merger until otherwise amended or
repealed, the directors of Merger Corp immediately prior to the Effective Time
shall serve as the directors of the surviving corporation in the Sandscomm
Merger from and after the Effective Time, and the officers of Merger Corp in
office immediately prior to the Effective Time shall serve as the officers of
the surviving corporation in the Sandscomm Merger from and after the Effective
Time.
2.2 Conversion of Shares. Subject to the provisions of this Section 2.2,
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and in consideration for the transactions contemplated hereby, at the Effective
Time, by virtue of the Mergers and without any action on the part of the parties
hereto or the shareholders of any of the parties hereto, the shares of the
constituent corporations of the Mergers shall be converted as follows:
(a) Each share of Premiere Stock and each share of Merger Corp common
stock issued and outstanding at the Effective Time shall remain issued and
outstanding after the Effective Time.
(b) All of the shares of the capital stock of Dunes, Sands A, Sands
NM and Sandscomm ("Company Stock") (excluding treasury shares and excluding
shares held by shareholders who perfect their statutory dissenters' rights as
provided in Section 2.4 of this Agreement) issued and outstanding at the
Effective Time shall cease to be outstanding and shall be converted into and
exchanged for the right to receive:
(i) the number of shares of Premiere Stock determined by
dividing (A) the product of .9 multiplied by the
Company Purchase Price, by (B) the Average Closing
Price;
(ii) the number of shares of Premiere Stock determined by
dividing (A) the product of .1 multiplied by the
Company Purchase Price, by (B) the Average Closing
Price (the "General Escrow Amount");
all as determined in accordance with Section 2.3 below (collectively, the
"Consideration"). Subject to Section 2.2(d) below, the Consideration shall be
issuable to the Owners pro rata in accordance with their ownership of Company
Stock pursuant to Section 2.6, which ownership the Owner represents has not been
adjusted in contemplation of the transactions described herein.
(c) Any and all shares of Company Stock held as treasury shares by
the Company shall be canceled and retired at the Effective Time, and no
consideration shall be issued in exchange therefor.
(d) Upon consummation of the Merger, the Owners shall deliver the
General Escrow Amount in negotiable form to the Escrow Agent to be held in
escrow pursuant to the terms and
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conditions of the Escrow Agreements in the forms attached hereto as Exhibit B,
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which shall be executed and delivered by Premiere and the Owners at the Closing.
2.3 Calculation of Consideration. For purposes of determining the
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Consideration issuable to the Owner pursuant to Section 2.2(b) above, the
following shall apply:
(a) "Average Closing Price" shall be the average of the daily last
sale prices of Premiere Stock for the period consisting of twenty (20)
consecutive trading days on which such shares are actually traded on the Nasdaq
National Market (as reported by the Wall Street Journal or, if not reported
thereby, any other authoritative source selected by Premiere) ending at the
close of trading on the first trading day immediately preceding the Closing;
provided, however, that the Average Closing Price shall not be less than $22.50
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nor more than $30.50 (collectively, $22.50 and $30.50 are referred to as the
"Average Closing Price Limitations").
(b) "Company Purchase Price" shall be the sum of (i) the amount
determined by multiplying the Normalized EBITDA of the Company by the Stock
Multiple, plus (ii) the amount of cash reflected on the Closing Date Balance
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Sheet, minus (iii) the aggregate amount of principal and accrued and unpaid
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interest under funded debt and capital lease obligations reflected on the
Closing Date Balance Sheet, minus (iv) the amount by which the Transaction Costs
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exceed the Deductible Amount.
(c) "Deductible Amount" shall be an amount equal to $10,000.
(d) "Normalized EBITDA" of the Company shall be an amount equal to
$1,520,054.
(e) "Registration Right" shall mean the right to include Premiere
Stock issued in the Merger in a registration statement which Premiere intends to
file as soon as reasonably practicable after the end of the first full fiscal
quarter of Premiere containing the period of post-Merger combined operations
required by ASRs 130 and 135, pursuant to the terms and conditions of the Stock
Restriction and Registration Rights Agreement in the form attached hereto as of
Exhibit C (the "Registration Rights Agreement").
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(f) "Stock Multiple" shall be six (6).
(g) "Transaction Costs" shall mean all amounts incurred but unpaid by
the Company in connection with (i) the negotiation and preparation of this
Agreement, (ii) the preparation of the Audited Financial Statements, (iii) the
consummation of the Transactions and (iv) one-half of the costs and expenses of
public record searches pursuant to Section 5.9(b) of the Uniform Terms.
2.4 Dissenting Shareholders. Subject to Section 4.2, any holder of shares
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of voting capital stock of Dunes, Sands A, Sands NM or Sandscomm who perfects
any available dissenters' rights in accordance with and as contemplated by the
Arizona Act, the California Act or the New Mexico Act, as appropriate, shall be
entitled to receive the value of such shares in cash from the Company after the
Effective Time as determined pursuant to such provision of law; provided, that
no such payment shall be made to any dissenting shareholder unless and until
such dissenting shareholder has complied with the applicable provisions of the
Arizona Act, the California Act or the New Mexico Act, as appropriate, and
surrendered to the Company the certificate or certificates representing the
shares for which payment is being made. In the event that a dissenting
shareholder of Dunes, Sands A, Sands NM or Sandscomm fails to perfect, or
effectively withdraws or loses, its
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right to appraisal and of payment for its shares, Premiere shall issue and
deliver the consideration to which such holder is entitled under this Article II
(without interest) upon surrender of certificates representing such shares held
by such holder.
2.5 Closing. The Closing shall take place at the offices of Xxxxxx & Bird
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LLP, Atlanta, Georgia, at 10:00 a.m. local time, on the date set forth in the
Uniform Terms, provided all conditions set forth in Articles V and VI of the
Uniform Terms and Articles IV and V of this Agreement have been satisfied or
waived, or on such other date or at such other place and time mutually agreed
upon by the parties.
2.6 Exchange of Shares. Promptly after the Effective Time, Premiere and
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Company shall cause to be mailed to the former shareholders of Dunes, Sands A,
Sands NM and Sandscomm appropriate transmittal materials for the surrender of
the certificate or certificates formerly representing their shares of Company
Stock in exchange for shares of Premiere Stock as provided in this Agreement.
Until surrendered for exchange in accordance herewith, each certificate
theretofore representing shares of Company Stock shall from and after the
Effective Time represent only the right to receive the Consideration provided in
this Agreement in exchange therefor. No certificates representing fractional
shares will be issued as a result of the Mergers. Each holder of shares of
Company Stock exchanged pursuant to the Mergers who would otherwise have been
entitled to receive a fraction of a share of Premiere Common Stock shall
receive, in lieu thereof, cash (without interest) in an amount equal to such
fractional part of a share of Premiere Common Stock multiplied by the Average
Closing Price.
2.7 Purchase for Investment, Etc. The Owner represents and warrants the
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following to Premiere:
(a) such Owner has accurately completed the Investor
Questionnaire required by Premiere prior to or contemporaneous with the
execution of the Transfer Agreement and the statements therein are true and
correct and acknowledges that Premiere has relied upon such statements in
entering into this Agreement;
(b) such Owner is acquiring Premiere Stock for such Owner's own
account and not with a view to or for sale in connection with any public
distribution thereof within the meaning of the Securities Act;
(c) such Owner (i) has sufficient knowledge and experience in
financial and business matters to enable him, her or it to evaluate the merits
and risks of an investment in Premiere Stock, (ii) has the ability to bear the
economic risk of acquiring Premiere Stock for an indefinite period and to afford
a complete loss thereof and (iii) has had an opportunity to ask questions of and
to receive answers from the officers of Premiere and to obtain additional
information in writing as requested, which has been made available to and
examined by such Owner or such Owner's advisors; and
(d) such Owner (i) acknowledges that Premiere Stock has not been
registered under any securities laws and cannot be resold without registration
thereunder or exemption therefrom, (ii) agrees not to transfer all or any
Premiere Stock received by such Owner unless such transfer has been registered
or is exempt from registration under applicable securities laws and (iii)
acknowledges that the certificate(s) representing Premiere Stock shall bear the
following legend with respect to the restrictions on transfer under applicable
securities laws:
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"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold,
transferred or otherwise disposed of unless registered with the Securities
and Exchange Commission of the United States and the securities regulatory
authorities of applicable states or unless an exemption from such
registration is available."
2.8 Accounting, Tax and Regulatory Matters. Each Owner and the Company,
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jointly and severally, represents and warrants to Premiere that neither the
Company, any Owner nor any Affiliate thereof has taken or agreed to take any
action or has any knowledge of any fact or circumstance that is reasonably
likely to (i) prevent the Mergers from qualifying for pooling-of-interests
accounting treatment or as a reorganization within the meaning of Section 368(a)
of the Code, or (ii) materially impede or delay receipt of any consents referred
to in Section 5.6 of the Uniform Terms or result in the imposition of a
condition or restriction of the type referred to in the last sentence of such
Section.
III. ADDITIONAL AGREEMENTS
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3.1 Filings with State Offices. Upon the terms and subject to the
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conditions of this Agreement, Dunes, Sands A, Sands NM, Sandscomm and Merger
Corp shall execute and file documents reflecting the Mergers with the Secretary
of State of the States of Arizona, California, Georgia and New Mexico, as
appropriate, in connection with the Closing.
3.2 Conditions to Closing. The Company, the Owner and Premiere agree to use
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their commercially reasonable best efforts to satisfy the closing conditions set
forth in Articles IV and V of this Agreement by the date indicated therein or
the Closing Date, as applicable.
3.3 Additional Indemnification Items. Subject to Sections 8.2 through 8.6
--------------------------------
of the Uniform Terms, the Owner and, if the Transactions involve an Asset
Transfer, the Company, shall jointly and severally indemnify and hold harmless
Premiere, and its officers, directors, agents or affiliates, from and against
any and all Losses suffered or incurred by any such party by reason of or
arising out of any of the following:
(a) a breach of Section 2.19 of the Uniform Terms as it relates to
liability for sales or income tax (irrespective of whether
disclosed on Schedule 2.19 or in the Financial Statements).
3.4 Tax Matters. The Owner understands that (i) while it is the mutual
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intention of the parties hereto that the Mergers qualify as tax-free plans of
reorganization under Section 368(a) of the Code, Premiere makes no
representation or warranty regarding the tax treatment of this Agreement or the
Mergers, (ii) the Closing is not subject to a condition that an Internal Revenue
Service ruling or tax opinion be obtained as to the federal income tax
consequences of this Agreement or the Mergers, and (iii) the Company and the
Owner shall look to their respective advisors for advice concerning the tax
consequences of this Agreement and the Mergers.
3.5 Registration Rights. At the Closing, Premiere and the Owner shall
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execute and deliver the Registration Rights Agreement.
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3.6 Accounting Treatment.
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(a) The Company and each of the Owner has accurately completed the
Pooling Questionnaire required by Premiere prior to or contemporaneous with the
execution of this Agreement, and the statements therein are true and correct.
(b) Premiere, the Company and each of the Owners agrees to use its
reasonable efforts to cause the Merger, and to take no action which would cause
the Merger not, to qualify for treatment as a pooling of interests for
accounting purposes. Without limiting the foregoing, the Company and each of
the Owners agrees not to sell, transfer, or otherwise dispose of his, her or its
interests in, or reduce his, her or its risk relative to, any of the shares of
Premiere Common Stock received in connection with the Merger until such time as
Premiere notifies the Company and each such Owner that the requirements of ASRs
130 and 135 have been met. The Company and each of the Owners understands that
ASRs 130 and 135 relate to the publication of financial results of at least
thirty (30) days of post-Merger combined operations of Premiere and the Company.
Premiere agrees that it shall publish such results within forty-five (45) days
after the end of the first fiscal quarter of Premiere containing the required
period of post-Merger combined operations and that it shall notify the Company
and each of the Owners promptly following such publication. Premiere shall be
entitled to place the following restrictive legend on the shares of Premiere
Stock issued pursuant to the Merger to enforce the foregoing restrictions:
"The shares represented by this certificate were issued pursuant to a
business combination which is accounted for as a "pooling of interests" and
may not be sold, nor may the owner thereof reduce his risks relative
thereto in any way, until such time as Premiere Technologies, Inc.
("Premiere") has published the financial results covering at least 30 days
of combined operations after the effective date of the merger through which
the business combination was effected.
3.7 Affiliate Agreements. The Company has disclosed in Schedule 3.7 all
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Persons whom it reasonably believes is an "affiliate" of the Company for
purposes of Rule 145 under the 1933 Act. The Company shall use its reasonable
efforts to cause each such Person to deliver to Premiere at least 30 days prior
to the Effective Time a written agreement, substantially in the form attached
hereto as Exhibit D.
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3.8 Tax Representations. In connection with the opinion to be rendered to
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Premiere by Xxxxxx & Bird to the effect that the transactions contemplated
hereby will constitute a tax-free reorganization within the meaning of Section
368(a) of the Code, the Owner shall furnish such counsel with such
representations as to their plans for the disposition of the shares of Premiere
Stock to be received in the Transactions as such counsel shall reasonably
request.
3.9 Restricted Stock. All contractual restrictions or limitations on
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transfer with respect to Company Stock under any plan, program, contract or
arrangement, to the extent that such restrictions or limitations have not
already lapsed (whether as a result of the Transactions or otherwise), and
except as otherwise expressly provided in such plan, program, contract or
arrangement, shall remain in full force and effect with respect to shares of
Premiere Stock into which such restricted stock is converted pursuant to Section
2.2 of this Transfer Agreement.
3.10 Exchange Listing. Premiere shall use its reasonable efforts to list,
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prior to the Effective Time, on the Nasdaq National Market the shares of
Premiere Stock to be issued to the Owner
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pursuant to the Transactions, and Premiere shall give all notices and make all
filings with the NASD required in connection with the Transactions.
IV. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF PREMIERE
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In addition to the conditions of Premiere contained in Article V of the
Uniform Terms, the obligation of Premiere to consummate the Transactions is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
4.1 Approval of Owner. The Owner shall have approved the Mergers in
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accordance with the requirements of the Arizona Act, the California Act and the
New Mexico Act, as appropriate, and the Company shall have provided Premiere
certified copies of such resolutions, and Owner shall not have exercised any of
the rights described in Section 2.4.
4.2 Grand Solution Documents. VTNLP, VTE, the NAP and each of the
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Franchisee Companies shall have executed and delivered the Grand Solution
Documents reflecting the terms described in Exhibit E hereto in form and
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substance reasonably satisfactory to Premiere.
4.3 Audited Financial Statements. Premiere shall have received balance
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sheets of the Company as of December 31, 1995 and 1996 and the related
statements of operations, cash flows and changes in owner's equity for the
fiscal years then ended (collectively, the "Audited Financial Statements")
prepared in accordance with GAAP and Regulation S-X promulgated by the
Commission, accompanied by an unqualified audit opinion of Xxxxxx Xxxxxxxx LLP
relating thereto. The Audited Financial Statements shall not reflect any
material change in the Company's financial condition or results of operations
from the condition and results reported in the Financial Statements delivered by
the Company prior to the execution of this Agreement.
4.4 Pooling Letter. Premiere shall have received a letter, dated as of the
--------------
Effective Time, in form and substance reasonably acceptable to Premiere, from
Xxxxxx Xxxxxxxx LLP to the effect that the Merger will qualify for pooling of
interests accounting treatment, and no action shall have been taken by any
regulatory authority or any statute, rule, regulation or order enacted,
promulgated or issued by any regulatory authority, or any proposal made for any
such action by any regulatory authority which is reasonably likely to be put
into effect, that would prevent Premiere from accounting for the business
combination to be effected by the merger as a pooling of interests.
4.5 Reorganization Opinion. Premiere shall have received an opinion of
----------------------
Xxxxxx & Bird LLP, counsel to Premiere, to the effect that the transactions
contemplated by the Agreement, including the Mergers, will constitute a tax-free
reorganization within the meaning of Section 368(a) of the Code.
4.6 Affiliate Obligations. Any and all obligations of the Company to or in
---------------------
respect of the Company's "Wildfire" affiliates shall have been terminated.
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V. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF THE COMPANY
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AND THE OWNER
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In addition to the conditions of the Company and the Owner contained in
Article VI of the Uniform Terms, the obligation of the Company and the Owner to
consummate the Transactions is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
5.1 Approval of Premiere and Merger Corp. The Board of Directors of
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Premiere and the Board of Directors and the shareholder of Merger Corp shall
have approved the Mergers in accordance with the requirement of applicable state
law. Premiere and Merger Corp shall have provided the Company certified copies
of such resolutions.
5.2 Registration Rights. Premiere and each Owner shall have executed and
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delivered a Registration Rights Agreement.
VI. MISCELLANEOUS
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6.1 Notices. The addresses for notices in accordance with Section 10.1 of
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the Uniform Terms for the Company and the Owner are as follows:
If to the Company: With a copy to:
0000 X. Xxxxxxxxxx Xx., Xxxxx 000 Xxxxx & Xxxxxxxxx LLP
Xxxxxxxxxx, XX 00000 0000 Xxxx 0xx Xxxxxx
Attn: Xxxx Xxxxxxx Xxxxxxxxx, XX 00000-0000
Phone: (___) ___-____ Attn: Xxxxxxx X. XxXxxxxx, Xx.
Fax: (___) ___-____ Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Owner: With a copy to:
0000 X. Xxxxxxxxxx Xx., Xxxxx 000 Xxxxx & Xxxxxxxxx LLP
Xxxxxxxxxx, XX 00000 0000 Xxxx 0xx Xxxxxx
Attn: Xxxx Xxxxxxx Xxxxxxxxx, XX 00000-0000
Phone: (___) ___-____ Attn: Xxxxxxx X. XxXxxxxx, Xx.
Fax: (___) ___-____ Phone: (000) 000-0000
Fax: (000) 000-0000
6.2 Owner's Representative. The Owner's Representative for purposes of
----------------------
Section 10.2 of the Uniform Terms shall be Xxxx Xxxxxxx, who shall serve as the
Owner's Representative under the terms of said Section 10.2 of the Uniform
Terms.
6.3 Certain Definitions. In addition to the terms defined elsewhere herein
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and in the Uniform Terms, as used in this Agreement:
(a) "Anticipated Closing Date" shall mean April 30, 1997.
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(b) "Knowledge" of the Company shall mean the personal knowledge
---------
after due inquiry of those facts that are known or should reasonably
have been known after due inquiry by Xxxx Xxxxxxx and the knowledge of
any such Person obtained or which would have been obtained from a
reasonable investigation.
(c) "Outside Closing Date" shall mean June 30, 1997.
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[SIGNATURES BEGIN ON THE FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
PREMIERE:
PREMIERE TECHNOLOGIES, INC.,
a Georgia corporation
By: /s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Title: Sr. V.P.
Attest:
By: /s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
DUNES:
DUNES COMMUNICATIONS, INC.,
a California corporation
By: /s/Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Title: President
Attest:
By: /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Title: Secretary
SANDS A:
SANDS COMMUNICATIONS, INC.,
an Arizona corporation
By: /s/Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
Title: President
Attest:
By: /s/Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Title: Secretary
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE.]
SANDS NM:
SANDS COMM, INC.,
a New Mexico corporation
By: /s/Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
Title: President
Attest:
By: /s/Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Title: Secretary
SANDSCOMM:
SANDS COMM, INC.,
a California corporation
By: /s/Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
Title: President
Attest:
By: /s/Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Title: Secretary
OWNER:
/s/Xxxx Xxxxxxx
----------------------------------------
Xxxx Xxxxxxx,
an individual resident of the
State of AZ
Witness:
By: /s/Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
