EQUITY PURCHASE AGREEMENT
AMONG
COMTELCO INTERNATIONAL INC.
AND
AUGUST XXXXXXX
As of February 28, 1997
TABLE OF CONTENTS
1. Definitions
2. Purchase and Sale of Target Interests
(a) Basic Transaction
(b) Purchase Price
(c) The Closing
(d) Deliveries at the Closing
3. Representations and Warranties Concerning the Transaction
(a) Representations and Warranties of the Seller
(b) Representations and Warranties of the Buyer
4. Representations and Warranties Concerning the Targets
(a) Organization, Qualification, and Corporate Power
(b) Capitalization
(c) Noncontravention
(d) Brokers' Fees
(e) Title to Assets/Intellectual Property
(f) Subsidiaries
(g) Undisclosed Liabilities
(h) Legal Compliance
(i) Contracts
(j) Disclosure
5. Pre-Closing Covenants
(a) General
(b) Notices and Consents
(c) Operation of Business
(d) Preservation of Business
(e) Full Access
(f) Notice of Developments
(g) Exclusivity
6. Post-Closing Covenants
(a) General
(b) Litigation Support
(c) Transition
(d) Confidentiality
(e) Covenant Not to Compete
(f) Certificates
7. Conditions to Obligation to Close
(a) Conditions to Obligation of the Buyer
(b) Conditions to Obligation of the Seller
8. Remedies for Breaches of This Agreement
(a) Survival of Representations and Warranties
(b) Indemnification Provisions for Benefit of the Buyer
(c) Indemnification Provisions for Benefit of the Seller
(d) Matters Involving Third Parties
(e) Other Indemnification Provisions
9. Tax Matters
(a) Section 338(h)(10) Election
(b) Tax Periods Ending on or Before the Closing Date
(c) Tax Periods Beginning Before and Ending After the Closing Date
(d) Cooperation on Tax Matters
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(e) Tax Sharing Agreements
(f) Certain Taxes
10. Termination
(a) Termination of Agreement
(b) Effect of Termination
11. Miscellaneous
(a) Press Releases and Public Announcements
(b) No Third-Party Beneficiaries
(c) Entire Agreement
(d) Succession and Assignment
(e) Counterparts
(f) Headings
(g) Notices
(h) Governing Law
(i) Amendments and Waivers
(j) Severability
(k) Expenses
(l) Construction
(m) Incorporation of Exhibits, Annexes, and Schedules
(n) Specific Performance
(o) Submission to Jurisdiction
Disclosure Schedule -- Exceptions to Representations and Warranties Concerning
the Targets
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STOCK PURCHASE AGREEMENT
Agreement entered into as of February 28, 1997, by and among ComTelco
International Inc., a Delaware corporation (the "Buyer"), and August Xxxxxxx, an
individual (the "Seller"). The Buyer and the Seller are referred to collectively
herein as the "Parties."
The Seller owns all of the outstanding capital stock of each of ComTelco
GmbH, a German corporation ("CT Germany"), ComTelco (Research) AG, a Swiss
corporation ("CT Research"), ComTelco (Vertriebs), a Swiss corporation ("CT
Switzerland"), and ComTelco Softwareenticklungs und Vertriebs GmbH, an Austrian
corporation ("CT Austria") (each, a "Target" and collectively, the "Targets").
This Agreement contemplates a transaction in which the Buyer will purchase
from the Seller, and the Seller will sell to the Buyer, all of the shares of
capital stock or other equity interests of the Targets owned by the Seller, in
return for the Shares (as such term is hereinafter defined).
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Assets" means all of the rights and assets identified on Exhibit A
attached hereto.
"Basis" means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or could form the basis for any
specified consequence.
"Buyer" has the meaning set forth in the preface above.
"Buyer Share" means any share of the Common Stock, par value $.00001 per
share, of the Buyer.
"Closing" has the meaning set forth in ss.2i below.
"Closing Date" has the meaning set forth in ss.2i below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the businesses
and affairs of the Targets and their Subsidiaries, if any, that is not already
generally available to the public.
"Disclosure Schedule" has the meaning set forth in ss.4 below.
"Financial Statement" has the meaning set forth in ss.4(g) below.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"Indemnified Party" has the meaning set forth in ss.8(d) below.
"Indemnifying Party" has the meaning set forth in ss.8(d) below.
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals), (f) all computer software (including data and
related documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodi ments thereof (in whatever form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Purchase Price" has the meaning set forth in ss.2(b) below.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for Taxes not yet due and payable or for Taxes that the
taxpayer is contesting in good faith through appropriate proceedings,(c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Shares" has the meaning set forth in ss.2(b) below.
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"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Target" or "Targets" has the meaning set forth in the preface above.
"Target Interests" means the shares of capital stock or other equity
interests of each Target.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code ss.59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Third Party Claim" has the meaning set forth in ss.8(d) below.
2. Purchase and Sale of Target Interests.
(a) Basic Transaction. On and subject to the terms and conditions of this
Agreement, the Buyer agrees to purchase from the Seller, and the Seller agrees
to sell and transfer to the Buyer, all of the Target Interests owned by the
Seller for the consideration specified below in this ss.2.
(b) Purchase Price. In full payment for the Target Interests (the
"Purchase Price"), the Buyer agrees to issue and deliver to the Seller at the
Closing 2,500,000 shares of the Buyer Shares (the "Shares").
(c) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place commencing at 9:00 a.m. local time on
the business day following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
(other than conditions with respect to actions the respective Parties will take
at the Closing itself) or such other date as the Buyer and the Seller may
mutually determine (the "Closing Date").
(d) Deliveries at the Closing. At the Closing, (i) the Seller will deliver
to the Buyer the various certificates, instruments, and documents referred to in
ss.7(a) below, (ii) the Buyer will deliver to the Seller the various
certificates, instruments, and documents referred to in ss.7(b) below, (iii) the
Seller will deliver to the Buyer stock certificates representing all of the
Target Interests owned by the Seller, endorsed in blank or accompanied by duly
executed assignment documents (in each case with signatures guaranteed by a bank
or other institution which is acceptable as an eligible guarantor under the laws
of the applicable jurisdictions), and (iv) the Buyer will issue and deliver to
the Seller the consideration specified in ss.2(b) above.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller. The Seller represents
and warrants to the Buyer that the statements contained in this ss.3(a) are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this ss.3(a))
with respect to the Seller.
(i) Authorization of Transaction. The Seller has full power and
authority to execute and deliver this Agreement and to perform his
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of the Seller, enforceable in accordance with its terms
and conditions. The Seller need not give any
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notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate
the transactions contemplated by this Agreement.
(ii) Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Seller is
subject or (B) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to
which the Seller is a party or by which he or it is bound or to which any
of his or its assets is subject.
(iii) Brokers' Fees. The Seller has no Liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect
to the transactions contemplated by this Agreement for which the Buyer
could become liable or obligated.
(iv) Investment. The Seller (A) understands that the Shares have not
been registered under the Securities Act, or under any state securities
laws, and are being offered and sold in reliance upon federal and state
exemptions for transactions not involving any public offering, (B) is
acquiring the Shares for his own account for investment purposes, and not
with a view to the distribution thereof, (C) is a sophisticated investor
with knowledge and experience in business and financial matters, (D) has
received certain information concerning the Buyer and has had the
opportunity to obtain additional information as desired in order to
evaluate the merits and the risks inherent in holding the Shares, (E) is
able to bear the economic risk and lack of liquidity inherent in holding
the Shares, and (F) is an Accredited Investor as such term is defined in
the Securities Act.
(v) Target Interests. The Seller holds of record and owns
beneficially all of the issued and outstanding Target Interests of each of
the Targets. The Seller owns the Target Interests free and clear of any
restrictions on transfer (other than any restrictions under the Securities
Act and state securities laws), Taxes, Security Interests, options,
warrants, purchase rights, contracts, commitments, equities, claims, and
demands. The Seller is not a party to any option, warrant, purchase right,
or other contract or commitment that could require the Seller to sell,
transfer, or otherwise dispose of any capital stock of the Targets (other
than this Agreement). The Seller is not a party to any voting trust,
proxy, or other agreement or understanding with respect to the voting of
any capital stock of the Targets.
(vi) Disclosure. The representations and warranties contained in
this ss.3(a) do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
and information contained in this ss.3(a) not misleading.
(b) Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller that the statements contained in this ss.3(b) are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3(b)).
(i) Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Buyer has full power and
authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the
Buyer, enforceable in accordance with its terms and conditions. The Buyer
need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this
Agreement.
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(iii) Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Buyer is
subject or any provision of its charter or bylaws or (B) conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Buyer is a
party or by which it is bound or to which any of its assets is subject.
(iv) Brokers' Fees. The Buyer has no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which any Seller could
become liable or obligated.
(v) Investment. The Buyer is not acquiring the Target Interests with
a view to or for sale in connection with any distribution thereof within
the meaning of the Securities Act.
(vi) Disclosure. The representations and warranties contained in
this ss.4 do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and
information contained in this ss.3(b) not misleading.
4. Representations and Warranties Concerning the Targets. The Seller
represents and warrants to the Buyer that the statements contained in this ss.4
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
ss.4), except as set forth in the disclosure schedule delivered by the Seller to
the Buyer on the date hereof and initialed by the Parties (the "Disclosure
Schedule"). Nothing in the Disclosure Schedule shall be deemed adequate to
disclose an exception to a representation or warranty made herein, however,
unless the Disclosure Schedule identifies the exception with reasonable
particularity and describes the relevant facts in reasonable detail. Without
limiting the generality of the foregoing, the mere listing (or inclusion of a
copy) of a document or other item shall not be deemed adequate to disclose an
exception to a representation or warranty made herein (unless the representation
or warranty has to do with the existence of the document or other item itself).
The Disclosure Schedule will be arranged in paragraphs corresponding to the
lettered and numbered paragraphs contained in this ss.4.
(a) Organization, Qualification, and Corporate Power. Each of the Targets
and their respective Subsidiaries, if any, is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation. Each of the Targets and their respective Subsidiaries, if any, is
duly authorized to conduct business and is in good standing under the laws of
each jurisdiction where such qualification is required. Each of the Targets and
their Subsidiaries, if any, has full corporate power and authority and all
licenses, permits, and authorizations necessary to carry on the businesses in
which it is engaged and in which it presently proposes to engage and to own and
use the properties owned and used by it. Section 4(a) of the Disclosure Schedule
lists the directors and officers of each of the Targets and their Subsidiaries,
if any. The Seller has delivered to the Buyer correct and complete copies of the
charter and bylaws (as amended to date) of comparable organizational documents
of each of the Targets and their respective Subsidiaries, if any. The minute
books (containing the records of meetings of the stockholders, the board of
directors, and any committees of the board of directors), the stock certificate
books, and the stock record books of each of the Targets and their respective
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Subsidiaries, if any, are correct and complete. None of the Targets and their
respective Subsidiaries, if any, is in default under or in violation of any
provision of its charter or bylaws.
(b) Capitalization. The entire authorized and issued and outstanding
capital stock of each of the Targets is as set forth on ss.4(b) of the
Disclosure Schedule. All of the issued and outstanding Target Interests have
been duly authorized, are validly issued, fully paid, and nonassessable, and are
held of record by the Seller. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require any of the Targets
to issue, sell, or otherwise cause to become outstanding any of its capital
stock. There are no outstanding or authorized stock appreciation, phantom stock,
profit participation, or similar rights with respect to any of the Targets.
There are no voting trusts, proxies, or other agreements or understandings with
respect to the voting of the capital stock of the Targets.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any of the Targets or their Subsidiaries,
if any, is subject or any provision of the charter or bylaws of any of the
Targets and their respective Subsidiaries, if any, or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license, instrument, or
other arrangement to which any of the Targets or their respective Subsidiaries,
if any, is a party or by which any of them is bound or to which any of their
assets are subject (or result in the imposition of any Security Interest upon
any of its assets). None of the Targets or their respective Subsidiaries, if
any, needs to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
(d) Brokers' Fees. None of the Targets or their respective Subsidiaries,
if any, has any Liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement.
(e) Title to Assets/Intellectual Property. The Targets and their
respective Subsidiaries, if any, have good and marketable title to, or a valid
leasehold interest in, the Assets, free and clear of all Security Interests, and
the Assets constitute all properties, rights and assets used or held for use in
connection with the call accounting and computer telephony business as conducted
by the Seller or its Affiliates. To the extent the Assets constitute
Intellectual Property, the Seller is not aware of any claims asserted against
any party relating to the potential infringement of or conflict with such Assets
and the Seller is not aware of any proprietary rights of others which might be
infringed by such Assets.
(f) Subsidiaries. The Targets have no Subsidiaries.
(g) Undisclosed Liabilities. None of the Targets or their respective
Subsidiaries, if any, has any Liability (and there is no Basis for any present
or future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against any of them giving rise to any Liability), which have
not been disclosed in writing to the Buyer.
(h) Legal Compliance. Each of the Targets, their respective Subsidiaries,
if any, and their respective predecessors and Affiliates has complied with all
applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal, state,
local, and foreign governments (and all agencies thereof), and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
has been filed or commenced against any of them alleging any failure so to
comply.
(i) Contracts. Prior to the date of this Agreement, all material contracts
of the Targets dated prior to the date of this Agreement have been disclosed to
the Buyer, and the Targets have either delivered to the Buyer, or given the
Buyer the opportunity to review, all such material contracts.
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(j) Disclosure. The representations and warranties contained in this ss.4
do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this ss.4 not misleading.
5. Pre-Closing Covenants. The Parties agree as follows with respect to the
period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its reasonable best
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth in ss.7 below).
(b) Notices and Consents. The Seller will cause each of the Targets and
their respective Subsidiaries, if any, to give any notices to third parties, and
will cause each of the Targets and their respective Subsidiaries, if any, to use
its reasonable best efforts to obtain any third party consents, that the Buyer
reasonably may request in connection with the matters referred to in ss.4(i)
above. Each of the Parties will (and the Seller will cause each of the Targets
and their respective Subsidiaries, if any, to) give any notices to, make any
filings with, and use its reasonable best efforts to obtain any authorizations,
consents, and approvals of governments and governmental agencies in connection
with the matters referred to in ss.3(a)(ii), ss.3(b)(ii), and ss.4i above.
(c) Operation of Business. The Seller will not cause or permit any of the
Targets or their respective Subsidiaries, if any, to engage in any practice,
take any action, or enter into any transaction outside the Ordinary Course of
Business. Without limiting the generality of the foregoing, the Seller will not
cause or permit any of the Targets or their respective Subsidiaries, if any, to
(i) declare, set aside, or pay any dividend or make any distribution with
respect to its capital stock or (ii) redeem, purchase, or otherwise acquire any
of its capital stock.
(d) Preservation of Business. The Seller will cause each of the Targets
and their respective Subsidiaries, if any, to keep its business and properties
substantially intact, including its present operations, physical facilities,
working conditions, and relationships with lessors, licensors, suppliers,
customers, and employees.
(e) Full Access. The Seller will permit, and the Seller will cause each of
the Targets and their respective Subsidiaries, if any, to permit,
representatives of the Buyer to have full access at all reasonable times, and in
a manner so as not to interfere with the normal business operations of the
Targets and their respective Subsidiaries, if any, to all premises, properties,
personnel, books, records (including Tax records), contracts, and documents of
or pertaining to each of the Targets and their respective Subsidiaries, if any.
(f) Notice of Developments. The Seller will give prompt written notice to
the Buyer of any material adverse development causing a breach of any of the
representations and warranties in ss.4 above. Each Party will give prompt
written notice to the others of any material adverse development causing a
breach of any of his or its own representations and warranties in ss.3 above. No
disclosure by any Party pursuant to this ss.5(f), however, shall be deemed to
amend or supplement the Disclosure Schedule or to prevent or cure any
misrepresentation, breach of warranty, or breach of covenant.
(g) Exclusivity. The Seller will not (and the Seller will not cause or
permit any of the Targets or their respective Subsidiaries, if any, to) (i)
solicit, initiate, or encourage the submission of any proposal or offer from any
Person relating to the acquisition of any capital stock or other voting
securities, or any substantial portion of the assets of, any of the Targets or
their respective Subsidiaries, if any, (including any acquisition structured as
a merger, consolidation, or share exchange) or (ii) participate in any
discussions or negotiations regarding, furnish any information with respect to,
assist or participate in, or facilitate in any other manner any effort or
attempt by any Person to do or seek any of the foregoing. The Seller will not
vote the Target Interests in favor of any such acquisition structured as a
merger, consolidation, or share exchange. The Seller will notify the Buyer
immediately if any Person makes any proposal, offer, inquiry, or contact with
respect to any of the foregoing.
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6. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under ss.8 below). The
Seller acknowledges and agrees that from and after the Closing the Buyer will be
entitled to possession of all documents, books, records (including Tax records),
agreements, and financial data of any sort relating to the Targets and their
Subsidiaries, if any.
(b) Litigation Support. In the event and for so long as any Party actively
is contesting or defending against any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving any of the Targets or their respective Subsidiaries, if any, each of
the other Parties will cooperate with him or it and his or its counsel in the
contest or defense, make available their personnel, and provide such testimony
and access to their books and records as shall be necessary in connection with
the contest or defense, all at the sole cost and expense of the contesting or
defending Party (unless the contesting or defending Party is entitled to
indemnification therefor under ss.8 below).
(c) Transition. The Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of any of the Targets or their respective
Subsidiaries, if any, from maintaining the same business relationships with the
Targets or their respective Subsidiaries, if any, after the Closing as it
maintained with the Targets and their respective Subsidiaries, if any, prior to
the Closing. The Seller will refer all customer inquiries relating to the
businesses of the Targets and their respective Subsidiaries, if any, to the
Buyer from and after the Closing.
(d) Confidentiality. The Seller will treat and hold as such all of the
Confidential Information, refrain from using any of the Confidential Information
except in connection with this Agreement, and deliver promptly to the Buyer or
destroy, at the request and option of the Buyer, all tangible embodiments (and
all copies) of the Confidential Information which are in his or its possession.
In the event that the Seller is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any
Confidential Information, the Seller will notify the Buyer promptly of the
request or requirement so that the Buyer may seek an appropriate protective
order or waive compliance with the provisions of this ss.6(d). If, in the
absence of a protective order or the receipt of a waiver hereunder, the Seller
is, on the advice of counsel, compelled to disclose any Confidential Information
to any tribunal or else stand liable for contempt, that the Seller may disclose
the Confidential Information to the tribunal; provided, however, that the Seller
shall use his or its reasonable best efforts to obtain, at the reasonable
request of the Buyer, an order or other assurance that confidential treatment
will be accorded to such portion of the Confidential Information required to be
disclosed as the Buyer shall designate. The foregoing provisions shall not apply
to any Confidential Information which is generally available to the public
immediately prior to the time of disclosure.
(e) Covenant Not to Compete. For a period of two years from and after the
Closing Date, the Seller will not engage directly or indirectly in any business
that any of the Targets or their respective Subsidiaries, if any, conducts as of
the Closing Date in any geographic area in which any of the Targets or their
respective Subsidiaries, if any, conducts that business as of the Closing Date;
provided, however, that no owner of less than 1% of the outstanding stock of any
publicly traded corporation shall be deemed to engage solely by reason thereof
in any of its businesses. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this ss.6(e) is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
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(f) Certificates. Each certificate representing the Shares will be
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THESE SECURITIES UNDER THE SECURITIES ACT OF 1933 OR
AN OPINION OF THE COMPANY'S COUNSEL THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT.
Each holder desiring to transfer any of the Shares first must furnish the Buyer
with (i) a written opinion reasonably satisfactory to the Buyer in form and
substance from counsel reasonably satisfactory to the Buyer by reason of
experience to the effect that the holder may transfer the Shares as desired
without registration under the Securities Act and (ii) a written undertaking
executed by the desired transferee reasonably satisfactory to the Buyer in form
and substance agreeing to be bound by the recoupment provisions and the
restrictions on transfer contained herein.
(g) Further Assurances. Seller shall execute and deliver, from time to
time after the date hereof upon the request of the Buyer, such further
conveyance instruments, and take such further actions, as may be necessary or
desirable to evidence more fully the transfer of ownership of all the Target
Interests to the Buyer, or the original ownership of all the Target Interests on
the part of the Buyer, to the fullest extent possible. Seller agrees to (i)
execute, acknowledge, and deliver any affidavits or documents of assignment and
conveyance regarding the Target Interests, (ii) provide testimony in connection
with any proceeding affecting the right, title, interest, or benefit of the
Buyer in and to the Target Interests and Assets, and (iii) perform any other
acts deemed necessary to carry out the intent of this Agreement. In furtherance
of this Agreement, Seller hereby acknowledges that, from this date forward, the
Buyer has succeeded to all of Seller's right, title, and standing to (i) receive
all rights and benefits pertaining to the Target Interests and Assets, (ii)
institute and prosecute all suits and proceedings and take all actions that the
Buyer, in its sole discretion, may deem necessary or proper to collect, assert,
or enforce any claim, right, or title of any kind in and to any and all of the
Target Interests and Assets, and (iii) defend and compromise any and all such
actions, suits, or proceedings relating to such transferred and assigned rights,
title, interest, and benefits, and do all other such acts and things in relation
thereto as the Buyer, in its sole discretion, deems advisable.
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.3(a) and ss.4
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Seller shall have performed and complied with all of his
covenants hereunder in all material respects through the Closing;
(iii) the Targets and their respective Subsidiaries, if any, shall
have procured all of the third party consents specified in ss.5(b) above;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the transactions
contemplated by this Agreement, (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, (C)
affect adversely the right of the Buyer to own the Target Interests and to
control the Targets and their respective Subsidiaries, if any, or (D)
affect adversely the right of any of the Targets or their respective
Subsidiaries, if any, to own its assets and to operate its businesses (and
no such injunction, judg ment, order, decree, ruling, or charge shall be
in effect);
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(v) the Buyer shall have received the resignations, effective as of
the Closing, of each director and officer of the Targets and their
respective Subsidiaries, if any, other than those whom the Buyer shall
have specified in writing prior to the Closing;
(vi) the Board of Directors of each of the Targets shall have
adopted a resolution approving the transfer, in accordance with the
provisions of this Agreement, of the Target Interests of such Target owned
by the Seller, and such resolution shall be in full force and effect on
and as of the Closing Date; and
(vii) all actions to be taken by the Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will, unless otherwise set forth in this
Agreement, be reasonably satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this ss.7(a) if it executes a
writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the Seller
to consummate the transactions to be performed by the Seller in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.3(b) above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the transactions
contemplated by this Agreement or (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation (and
no such injunction, judgment, order, decree, ruling, or charge shall be in
effect); and
(iv) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will, unless otherwise set forth in this
Agreement, be reasonably satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this ss.7(b) if he executes a
writing so stating at or prior to the Closing.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties.
All of the representations and warranties of the Parties contained in this
Agreement shall survive the Closing hereunder (even if the damaged Party knew or
had reason to know of any misrepresentation or breach of warranty or covenant at
the time of Closing) and continue in full force and effect forever thereafter
(subject to any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event the Seller breaches (or in the event any third
party alleges facts that, if true, would mean any of the Seller has
breached) any of its representations, warranties, and covenants contained
herein (other than the covenants in ss.2(a) above and the representations
and warranties in ss.3(a) above), and, if there is an applicable
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survival period pursuant to ss.8(a) above, provided that the Buyer makes a
written claim for indemnification against any of the Seller pursuant to
ss.11(h) below within such survival period, then the Seller agrees to
indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer through and after the date of the claim
for indemnification (including any Adverse Consequences the Buyer may
suffer after the end of any applicable survival period) resulting from,
arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach).
(ii) In the event the Seller breaches (or in the event any third
party alleges facts that, if true, would mean any of the Seller has
breached) any of his covenants in ss.2(a) above or any of his
representations and warranties in ss.3(a) above, and, if there is an
applicable survival period pursuant to ss.8(a) above, provided that the
Buyer makes a written claim for indemnification against the Seller
pursuant to ss.11(h) below within such survival period, then the Seller
agrees to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer through and after the date of the claim
for indemnification (including any Adverse Consequences the Buyer may
suffer after the end of any applicable survival period) resulting from,
arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach).
(iii) The Seller agrees to indemnify the Buyer from and against the
entirety of any Adverse Consequences the Buyer may suffer resulting from,
arising out of, relating to, in the nature of, or caused by any Liability
of any of the Targets or their respective Subsidiaries, if any, (x) for
any Taxes of the Targets or their respective Subsidiaries, if any, with
respect to any Tax year or portion thereof ending on or before the Closing
Date (or for any Tax year beginning before and ending after the Closing
Date to the extent allocable (determined in a manner consistent with
ss.9(c)) to the portion of such period beginning before and ending on the
Closing Date), to the extent such Taxes are not reflected in the reserve
for Tax Liability (rather than any reserve for deferred Taxes established
to reflect timing differences between book and Tax income) shown on the
face of the Targets' most recent financial statements (rather than in any
notes thereto), as such reserve is adjusted for the passage of time
through the Closing Date in accordance with the past custom and practice
of the Targets and their respective Subsidiaries, if any, in filing their
Tax Returns.
(c) Indemnification Provisions for Benefit of the Seller. In the event the
Buyer breaches (or in the event any third party alleges facts that, if true,
would mean the Buyer has breached) any of its representations, warranties, and
covenants contained herein, and, if there is an applicable survival period
pursuant to ss.8(a) above, provided that the Seller makes a written claim for
indemnification against the Buyer pursuant to ss.11(h) below within such
survival period, then the Buyer agrees to indemnify the Seller from and against
the entirety of any Adverse Consequences the Seller may suffer through and after
the date of the claim for indemnification (including any Adverse Consequences
the Seller may suffer after the end of any applicable survival period) resulting
from, arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach).
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this ss.8, then the Indemnified Party shall
promptly notify each Indemnifying Party thereof in writing; provided,
however, that no delay on the part of the Indemnified Party in notifying
any Indemnifying Party shall relieve the Indemnifying Party from any
obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 15
days after the Indemnified Party has given notice of the Third Party Claim
that the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety of any Adverse Consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with
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evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend against the
Third Party Claim and fulfill its indemnification obligations hereunder,
(C) the Third Party Claim involves only money damages and does not seek an
injunction or other equitable relief, (D) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the good faith
judgment of the Indemni fied Party, likely to establish a precedential
custom or practice materially adverse to the continuing business interests
of the Indemnified Party, and (E) the Indemnifying Party conducts the
defense of the Third Party Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with ss.8(d)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the
prior written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in ss.8(d)(ii) above is or
becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in
connection therewith), (B) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of defending
against the Third Party Claim (including reasonable attorneys' fees and
expenses), and (C) the Indemnifying Parties will remain responsible for
any Adverse Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third
Party Claim to the fullest extent provided in this ss.8.
(e) Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for breach of representation,
warranty, or covenant. The Seller hereby agrees that he will not make any claim
for indemnification against any of the Target and its Subsidiaries by reason of
the fact that he or it was a director, officer, employee, or agent of any such
entity or was serving at the request of any such entity as a partner, trustee,
director, officer, employee, or agent of another entity (whether such claim is
for judgments, damages, penalties, fines, costs, amounts paid in settlement,
losses, expenses, or otherwise and whether such claim is pursuant to any
statute, charter document, bylaw, agreement, or otherwise) with respect to any
action, suit, proceeding, complaint, claim, or demand brought by the Buyer
against the Seller (whether such action, suit, proceeding, complaint, claim, or
demand is pursuant to this Agreement, applicable law, or otherwise).
9. Tax Matters. The following provisions shall govern the allocation of
responsibility as between the Buyer and the Seller for certain tax matters
following the Closing Date:
(a) Section 338(h)(10) Election. The Seller agrees, if so directed by the
Buyer, to join with Buyer in making an election under Section 338(h)(10) of the
Code (and any corresponding elections under state, local, or foreign tax law)
(collectively, a "Section 338(h)(10) Election") with respect to the purchase and
sale of the stock of each of the Targets hereunder. Seller will pay any Tax,
including any liability of the Targets for Tax resulting from the application to
it of Treasury Regulation ss. 1.338(h)(10)-1(f)(5), attributable to the making
of the Section 338(h)(10) Election and will indemnify the Buyer, Targets, and
their respective Subsidiaries, if any, against any Adverse Consequences arising
out of any failure to pay such Tax. The Seller will also pay any state, local,
or foreign Tax (and indemnify the Buyer, the Targets, and their respective
Subsidiaries, if any, against any Adverse Consequences arising out of any
failure to pay such Tax) attributable to an election under state, local or
foreign law similar to the election available under Section 338(g) of the Code
(or which results from the making of an election under Section 338(g) of the
Code) with respect to the purchase and sale of the stock of the Targets
hereunder.
(b) Tax Periods Ending on or Before the Closing Date. The Buyer shall
prepare or cause to be prepared and file or cause to be filed all Tax Returns
for the Targets and their respective Subsidiaries, if any, for all periods
ending on or prior
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to the Closing Date which are filed after the Closing Date other than income Tax
Returns with respect to periods for which a consolidated, unitary or combined
income Tax Return of Seller will include the operations of the Targets and their
respective Subsidiaries, if any. The Buyer shall permit the Targets and their
respective Subsidiaries, if any, to review and comment on each such Tax Return
described in the preceding sentence prior to filing. The Seller shall reimburse
the Buyer for Taxes of the Targets and their respective Subsidiaries, if any,
with respect to such periods within fifteen (15) days after payment by the Buyer
or the Target, and their respective Subsidiaries, if any, of such Taxes to the
extent such Taxes are not reflected in the reserve for Tax Liability (rather
than any reserve for deferred Taxes established to reflect timing differences
between book and Tax income) shown on the face of the last balance sheet of the
Targets prepared prior to the Closing Date.
(c) Tax Periods Beginning Before and Ending After the Closing Date. The
Buyer shall prepare or cause to be prepared and file or cause to be filed any
Tax Returns of the Targets and their respective Subsidiaries, if any, for Tax
periods which begin before the Closing Date and end after the Closing Date.
Seller shall pay to Buyer within fifteen (15) days after the date on which Taxes
are paid with respect to such periods an amount equal to the portion of such
Taxes which relates to the portion of such Taxable period ending on the Closing
Date to the extent such Taxes are not reflected in the reserve for Tax Liability
(rather than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) shown on the face of the last balance
sheet of each of the Targets prepared prior to the Closing Date. For purposes of
this Section, in the case of any Taxes that are imposed on a periodic basis and
are payable for a Taxable period that includes (but does not end on) the Closing
Date, the portion of such Tax which relates to the portion of such Taxable
period ending on the Closing Date shall (x) in the case of any Taxes other than
Taxes based upon or related to income or receipts, be deemed to be the amount of
such Tax for the entire Taxable period multiplied by a fraction the numerator of
which is the number of days in the Taxable period ending on the Closing Date and
the denominator of which is the number of days in the entire Taxable period, and
(y) in the case of any Tax based upon or related to income or receipts be deemed
equal to the amount which would be payable if the relevant Taxable period ended
on the Closing Date. Any credits relating to a Taxable period that begins before
and ends after the Closing Date shall be taken into account as though the
relevant Taxable period ended on the Closing Date. All determinations necessary
to give effect to the foregoing allocations shall be made in a manner consistent
with prior practice of the Targets and their respective Subsidiaries, if any.
(d) Cooperation on Tax Matters.
(i) The Buyer, the Targets and their respective Subsidiaries, if
any, and the Seller shall cooperate fully, as and to the extent reasonably
requested by the other party, in connection with the filing of Tax Returns
pursuant to this Section and any audit, litigation or other proceeding
with respect to Taxes. Such cooperation shall include the retention and
(upon the other party's request) the provision of records and information
which are reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually convenient basis
to provide additional information and explanation of any material provided
hereunder. The Targets and their respective Subsidiaries, if any, and the
Seller agree (A) to retain all books and records with respect to Tax
matters pertinent to the Targets and their respective Subsidiaries, if
any, relating to any taxable period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the extent
notified by the Buyer or the Seller, any extensions thereof) of the
respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) to give the
other party reasonable written notice prior to transferring, destroying or
discarding any such books and records and, if the other party so requests,
the Targets and their respective Subsidiaries, if any, or Seller, as the
case may be, shall allow the other party to take possession of such books
and records.
(ii) Buyer and Seller further agree, upon request, to use their best
efforts to obtain any certificate or other document from any governmental
authority or any other Person as may be necessary to mitigate, reduce or
eliminate any Tax that could be imposed (including, but not limited to,
with respect to the transactions contemplated hereby).
(iii) The Buyer and the Seller further agree, upon request, to
provide the other party with all information that either party may be
required to report pursuant to Section 6043 of the Code and all Treasury
Department Regulations promulgated thereunder.
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(e) Tax Sharing Agreements. All tax sharing agreements or similar
agreements with respect to or involving the Targets and their respective
Subsidiaries, if any, shall be terminated as of the Closing Date and, after the
Closing Date, the Targets and their respective Subsidiaries, if any, shall not
be bound thereby or have any liability thereunder.
(f) Certain Taxes. All transfer, documentary, sales, use, stamp,
registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement (including any New York
City Transfer Tax and any similar tax imposed in other states or subdivisions),
shall be paid by Seller when due, and Seller will, at their own expense, file
all necessary Tax Returns and other documentation with respect to all such
transfer, documentary, sales, use, stamp, registration and other Taxes and fees,
and, if required by applicable law, the Buyer will, and will cause its
affiliates to, join in the execution of any such Tax Returns and other
documentation.
10. Termination.
(a) Termination of Agreement. The Parties may terminate this Agreement as
provided below:
(i) the Buyer and the Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Seller at any time prior to the Closing (A) in the event any of the
Seller has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Buyer has
notified the Seller of the breach, and the breach has continued without
cure for a period of 30 days after the notice of breach or (B) if the
Closing shall not have occurred within 60 days of the date of this
Agreement, by reason of the failure of any condition precedent under
ss.7(a) hereof (unless the failure results primarily from the Buyer itself
breaching any representation, warranty, or covenant contained in this
Agreement); and
(iii) the Seller may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing (A) in the event the
Buyer has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Seller has
notified the Buyer of the breach, and the breach has continued without
cure for a period of 30 days after the notice of breach or (B) if the
Closing shall not have occurred within 60 days of the date of this
Agreement, by reason of the failure of any condition precedent under
ss.7(b) hereof (unless the failure results primarily from any of the
Seller themselves breaching any representation, warranty, or covenant
contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement pursuant
to ss.10(a) above, all rights and obligations of the Parties hereunder shall
terminate without any Liability of any Party to any other Party (except for any
Liability of any Party then in breach).
11. Miscellaneous.
(a) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
Buyer and the Seller; provided, however, that any Party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
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(d) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder without the prior written
approval of the Buyer and the Seller; provided, however, that the Buyer may (i)
assign any or all of its rights and interests hereunder to one or more of its
Affiliates and (ii) designate one or more of its Affiliates to perform its
obligations hereunder (in any or all of which cases the Buyer nonetheless shall
remain responsible for the performance of all of its obligations hereunder).
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient at the
addresses set forth on the signature page hereto. Any Party may send any notice,
request, demand, claim, or other communication hereunder to the intended
recipient at the address set on the signature page hereto using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT
TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(i) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Seller. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) Expenses. Each of the Parties, the Targets, and their respective
Subsidiaries, if any, will bear his or its own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby. The Seller agrees that none of the Targets nor
their respective Subsidiaries, if any, has borne or will bear any of the
Seller's costs and expenses (including any of their legal fees and expenses) in
connection with this Agreement or any of the transactions contemplated hereby.
(l) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intend
that each representation, warranty, and covenant
-15-
contained herein shall have independent significance. If any Party has breached
any representation, warranty, or covenant contained herein in any respect, the
fact that there exists another representation, warranty, or covenant relating to
the same subject matter (regardless of the relative levels of specificity) which
the Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
(m) Incorporation of Exhibits, Annexes, and Schedules. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(n) Specific Performance. Each of the Parties acknowledges and agrees that
the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter (subject to the provisions set forth in ss.10(o) below),
in addition to any other remedy to which they may be entitled, at law or in
equity.
(o) Submission to Jurisdiction. EACH OF THE PARTIES SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN KENT COUNTY, DELAWARE, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES
THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. EACH PARTY ALSO AGREES NOT TO BRING ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY OTHER COURT. EACH
OF THE PARTIES WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF
ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY, OR OTHER
SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO.
(p) Power of Attorney. To effectuate the terms of Section 6(g) hereof,
Seller hereby names and irrevocably constitutes and appoints Buyer with the full
power of substitution therein, as Seller's true and lawful attorney-in-fact to
exercise the rights assigned by Seller to Buyer under this Agreement.
-16-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
BUYER: COMTELCO INTERNATIONAL INC.
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President and CEO
Address for notice:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ August Xxxxxxx
SELLER: -----------------------------------------
Name: August Xxxxxxx
Address for notice:
August Xxxxxxx
Xxxxxx Xxxxxxx 00
XX-0000 Xx. Xxxxxx
Xxxxxxxxxxx
With a copy to:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-17-
EXHIBIT A
ASSETS
All of the machinery, equipment, tools, furniture, furnishings, office
equipment, supplies, inventory, plant, spare parts and other tangible personal
property located at all locations mentioned in the locations list below, and all
of the Intellectual Property used or held for use in connection with the
computer telephony business as conducted by Seller or any of its Affiliates,
including, without limitation, mentioned in the assets list below.
List of Assets:
Existing Products:
ComTax 2.5 (FDD & LAN) Call Accounting System
ComTax 2.6 (HW Version) Call Accounting System
ComTax 2.7 16 bit including carriers & sites, Call Accounting System
ComTax MS32 Multisite, 32bit Telemanagement & Call Accounting System
ComTax Box 1.9 Hardware System for Data mass storage.
CTI Server Server Platform for CTI Products
ComDial 1.71 PC/LAN based communication client
ComLog 1.1 Workstation based Call Logging /Recording client
CL A/D interface Hardware for use with call logging/recording system
ComList Corporate electronic communication directory and connection
system
ComFax LAN based, client/server system for fax handling over the
Internet
Projects under Development:
(Products which are past the stage of technical feasibility)
C-client New generation of communication client 16 and 32bit
ComTax 32 Graphics engine and update for ComTax MS32
ComTax junior Ultra low-cost call accounting system incl. Hw and SW
LAN based Call logging Server system for ComLog as Client/Server implementation
ComTax Duplex New hardware for bi- directional communication with PBX's
ComTax VVVVVV Report, query and retrieval system over the Internet.
ComTax Archive On-Line archiving of call records to CD or DAT
LCR Dynamic Least Cost Routing for all communication services
CSTA server CSTA/TAPI/TSAPI converter for future PBX connectivity
Trade Xxxx registrations:
ComTax Europe OMPI reg. No. 649354
ComDial Europe OMPI reg. No. 649353
Basic Research in progress:
Java Virtual Machine based call account handling
ATM bandwidth brokering
Management and accounting for all communication services
Virtual PBX
List of Tangible Assets
Room E6
Desk combination 1
Office Chair 1
Korpus 1
Rollo file cabinet 2
Personal Computer 1
Modem 1
Comfort telephone set DX 1
Plants and pictures
Room E4
Desk combination 1
Rollo file cabinet 2
Leather Chairs 2
Office Chair 1
Korpus 3
Personal Computer dev. 1
Personal Computer test systems 6
PBX Hicom 100 (for tests) 1
System Telephone set DX 2
Note Book Computer
Room E3
Table combination 2
Desk combination 2
Rollo file cabinet 3
Bookshelves 1
Office Chair 2
Leather Chair 2
Misc. CD's & Software
Library of Books
Personal Computer (dev.) 1
Personal Computer (test) 5
Colour flat bed scanner 1
Modem 2
Portable phone 1
System Telephone set DX 2
Room W2
Desk combinations 2
Leather Office Chairs 2
Conf. Table 1
Conf. Chairs 4
Korpus 2
Rollo File Cabinets 4
- 2 -
Personal Computer 1
Note Book Computer 1
System Telephone set DX 2
Handy Ericsson GSM 2
R&D Center Moscow
Desks 7
Chairs 12
Ethernet hubs 8port 2
Personal Computer (dev.) 10
Personal Computers (test) 4
File Servers 2
PBX Hicom 120 (for test) 1
Modem 1
Note Book Computer 1
R&D Center Shanghai
Desk combinations 6
Chairs 6
File Cabinets 3
Personal Computers (dev.) 4
Personal Computers (test) 3
File Server 1
Modem 1
Misc. Books Software & CD's
St. Gallen, Switzerland
Room E7
Desk combinations 2
Office Chair 2
Bookshelves 2
Rollo file cabinet 1
Personal Computer 1
Note Book Computer 2
System telephone set DX 2
Portable Phone 1
Room E8
Documentation and Leaflets
Office supplies
Room E5
Furniture for exhibition booth
Bistro standing table 3
Bistro tables 3
Wardrobe 1
Bistro chairs 7
Personal Computer (demo) 4
Plants and pictures
Kitchen East
Espresso Machine 1
Table 1
Room E10
Desk combinations 1
Korpus 2
- 3 -
Rollo file cabinets 1
Leather Chair 1
Office chair 1
Note Book Computer 1
System telephone DX 1
Portable telephone 1
Room Ell
Desk combination 1
Rollo file cabinets 2
Korpus 1
Note Book Computer 1
Office chair 1
System telephone DX 1
Room E12
Office table 2
Office chair 2
Rollo file cabinet 1
Korpus 2
Personal Computer 2
Cabling system incl. Hub 1
System telephone DX 1
Room E2
Desk combination 1
leather chair 2
Personal Computer 2
shelves 2
documentation shelves 1
Hesa Glass exhibit stand 1
System telephone DX 1
Room El
Desk combination 2
Rollo file cabinet 1
Personal Computer 1
Office chair 1
Korpus 1
Ink Jet printer 1
Leather chair 1
System telephone DX 1
Room W7
Desk combination 1
Office chair 1
Korpus 1
Rollo file cabinet 3
Photo copier 1
Laser printer 1
Personal computer 1
system telephone DX 1
Speed dial console DX 1
Room W6
Desk combination 1
Book shelf 2
Cupboard 1
- 4 -
Office chair 1
Leather chair 1
Personal Computer 2
Rollo file cabinet I
Korpus 2
System telephone DX 1
Room W9
PBX, Nitsuko DX 1
Cabling system 1
File Server 1
ComDial 1
ComTax 1
Leather chair 2
Metal cupboards 2
Desk 4
Workbench 1
Table 1
Rollo file cabinets 1
Cupboard 1
Metal shelf system 8
Korpus 1
Office chair 1
Fork lift 1
Transportation trolley 2
Personal Computer 5
System telephone DX 1
Store Room
Metal shelf system 9
Table 1
Chair 1
Inventory as audited per 28.Feb.1997
Ort ArtNr. Xxxxxxxxxxxxxxxxxxx Xxxxxx
0 Produktion
110000 ComTax Windows Software Version CTS-K D 0.00
110005 ComTax Windows Saftwareversion CTS-G F 0.00
120000 ComTax Windows Standard CTB-K D 0.00
120006 Update ComTax Version 2.5 - Version 2.6 0.00
120103 ComTax Standard A4713 CTB-K F 0.00
120300 ComTax Standard Ver. 2.6 Tald 0.00
120402 ComTax Standard PTT CTB-G D 0.00
120403 ComTax Standard PTT CTB-K F 0.00
210004 ComDiaI 50 User Lizenz 0.00
410000 Benutzerhandbuch ComTax MDE Deutsch 23.00
410001 Benutzerhandbuch ComTax MDE Franzosisch 15.00
410002 Benutzerbandbuch ComTax MDE Englisch 8.00
410004 Technikerhandbuch ComTax MDE Deutsch 13.00
410005 Technikerhandbuch ComTax MDE Franzosisch 13.00
410006 Technikerhandbuch ComTax MDE Englisch 6.00
410008 Benutzerbandbuch ComTax Xxxxxxx Xxxxxxx 00.00
000000 Xxxxxxxxxxxxxxxx XxxXxx Xxxxxxx Xxxxx. 18.00
410014 Benutzertiandbuch ComTax Ericsson Deutsch 10.00
410015 Benutzerhandbuch ComTax Ericsson Xxxxx. 0.00
- 0 -
000000 Xxxxxxxxxxxxxxxx XxxXxx Xxxx Xxxxxxx 10.00
410021 Technikerhandbuch ComTax Tald Deutsch 28.00
420000 Benutzerhandbuch ComDial MDE Deutsch 44.00
420002 Benutzerhandbuch ComDial MDE Franzosisch 20.00
420003 Benutzerbandbuch ComDial MDE Englisch 7.00
420006 Benutzerbandbuch Comfort Dial Lan xx.Xx 13.00
420012 Benutzerbandbuch ComDial Ericsson Deut. 8.00
420013 Benutzerhandbuch ComDial Ericsson Xxxxx. 0.00
420020 Benutzerhandbuch ComDial Philips 6.00
810001 Hicom Verbindungskabel 5.00
810003 Monitor Xxxxx XX 9m/f 1.8mt. 1.00
000000 XxxxxxxXxxxxxxxxxxxx (Xxx X) 0.Xx 1.00
810007 25polige 1: 1 Kabel (RS232 ST-ST) Typ B 2.00
810008 Tastaturkabel CIBM XT/AT-komp. (TypB) 3.00
810009 Tastatur-Adpter XT-Tastatur an PS/2 1.00
810103 Disketten 3.5" MF-HD formatiert 1.44M13 200.00
810400 Brucke fur Parallel DB25 Anschluss 1.00
810401 Parallel Anschluss mannlich 25 Pin 1.00
810402 Adapter Parallel DI325/R.145 1.00
810405 D-SUB-Steckverbinder-Buchse 9 polig 10.00
810406 D-SUB 25 polig Buchse Seriell wablich 17.00
810407 D-Sup 25 polig Buchse mannlich 10.00
810408 D-SUB 25polig Seriell Anschluss mannlich 23.00
810409 D-SUB-Steckverbinder 9 polig 9.00
810412 Linedriver MDEPABX-AV2.0 14.00
810414 BNC Steckverbinder T-Stuck 1.00
810415 Modular-Xxxxxxx 6. Pos. 4Kont. Flachkabel 15.00
810416 Modular-Xxxxxxx 4Pos. 4Kont. Flachkabel 12.00
810417 AT nach XTIPS/2 Adapter DB2-r--DB9 Buchse 9.00
810418 Dongle SteckerlAdapter Hasp 50.00
810419 D-Suph-Steckerverbindung 25polig 10.00
810424 JumperBox Kit DB 25mlf mit 25 Verbindern 0.00
810425 Opto Bridge ST/BU 2.00
810428 Steckverbinder BNC RG-M Xxxxxxx gerade 3.00
810430 Xxxx-Xxxxx 0-0xxx. (Typ B) 2.00
000000 Xxxx Kabel 1.00
810601 Pilot Mouse Logitech Win95 Serial-Port 3.00
810700 Data Fax Modem 19200 bps P 192MX 2.00
810800 Monitor monochrom W 5.00
810902 Netzadapter MDE 7.00
811000 Netzkabel xxxx Schweiz 1.00
811001 Netzkabel xxxxxxx Xxxxxxx 00.00
000000 Xxxxxxxxx Xxxxxxxxxxxxxxxxxxxxxx 2.00
811003 Apparate-Verbindungskabel 1.5m 2.00
811004 Bildschirmkabel RS232 gpolig ST-BU 5.00
811104 Ethernet Netzvtwk-Karte 0.00
811300 Tastatur Windows 95 Chicony 0.00
811400 PC 486f75 Datavan, 4M13 RAM, HDD - 22.00
811401 ComTax-Box MDE komplett 23.00
811402 ComTax Box Telecorn PTT komplett 29.00
811403 ComTax Box Telecom Takt komplett 28.00
811404 ComTax Box Ericsson komplett 5.00
811405 ComTax Box Alcatel komplett 5.00
- 6 -
811406 ComDial-PC MDE 2.00
811500 C. P. U. Cooler Ventilator 4.00
820000 BNC RG-58 Knickschutzhulle xxxxxxx 10.00
820500 Installation Kit 25' HardDisk Drive 6.00
840004 Xerox Telecopier 0000x0000 0.00
890000lLuftpoisterl(Uverts Innenmasse 15x24cm 40.001
890001 Stuipschachtel 30. 1 x21.3x5.5 komplett 22.00
890002 Faltbox 280x230x172 26.00
890100 Break-Out-Box 2.00
890101 Service-Kit Profi 0.00
2 Xxxxxx
310000 Xxxxx Phone Manager 20.00
310001 Voice Interface 0.00
810001 Hicom Verbindungskabei 1.00
810003 Monitor Xxxxx XX 9m/f 1.8mt. 18.00
810005 Telefon Kabel 4 Xxxx 180.00
810006 Paralleidruckerkabel (Typ A) 0.Xx 11.00
810007 AT Modemkabei 102.00
810008 Tastaturkabei x.XXX XTIAT-komp. (TypB) 1.00
810101 Floppy Drive 5 117' 1.00
810103 Disketten 3.5" MF-HD formatiert 1.44M13 1000.00
810106 3 M CD Recordable 65OMB 74. Min. 27.00
810300 Harddisk 2 117' 1 DE 20OMB 69.00
810400 Bdicke fur Parallel DB25 Anschluss 1.00
810401 Parallel Anschluss mannlich 25 Pin 1.00
810402 Adapter Parallel DB25/RJ45 1.00
810404 Switch Box Steckbrilcke 2.00
810414 BNC Steckverbinder T-Stuck 117.00
810415 Modulan-Xxxxxxx 6. Pos. 4Kont. Flachkabei 200.00
810416 Modular-Xxxxxxx 4Pos. 4Kont. Flachkabei 250.00
810417 Modular RJ45 Xxxxxxx 250.00
810500 Koax Kabel 1.00
810601 Pilot Mouse Logitech Win95 Serial-Port 2.00
810602 Mouse-Matte Antistatisch 2.00
810900 UPS 11.00
810902 Netzadapter MDE 14.00
811000 Netzkabei xxxx Schweiz 51.00
811001 Netzkabel xxxxxxx Xxxxxxx 00.00
000000 Xxxxxxxxx Xxxxxxxxxxx/Xxxxxxxxxx 62.00
811003 Apparate-Verbindungskabel 1.5m 10.00
811100 Token Ring Netzkarte 9.00
811101 Teles 1,2 FaxModemkarten 173.00
811103 Teles ISDN Card SO/16 48.00
811104 Ethernet Netzwerk-Karte 20.00
811109 Aktive-PC Karte V.24/MSV1 1.00
811301 Num. Keypad Seriell 16.00
811400 Datavan ComDial PC 61.00
811401 ComTax-Box MDE komplett 0.00
811402 ComTax Box Telecom PTT komplett 0.00
811403 ComTax Box Takt komplett 3.00
811404 ComTax Box Ericsson komplett 3.00
811406 ComDial-PC MDE 2.00
- 7 -
811410 ComDial-PC MDE Gehause 49.00
820500 Installation Kit 2,5" HardDisk Drive 40.00
840000 Toner Xxxxxxx 42001540015600 3.00
840003 Toner Laser Jet 4 HP 92298 2.00
890000 Luftpolsterkuverts Innenmasse 15x24em 300.00
890002 Faltbox 280x230x172 250.00
890003 Rillfix Versandkuverts Klebeverschluss 200.00
3 Buro Technik
710100 Kopierpapier 188000.00
000000 Xxxxx Thermobindemappen 1400.00
710500 Prospelde ComDial franzosisch 2700.00
710600 Prospekte ComDial englisch 2300.00
710700 Prospekte ComDial deutsch 300.00
720500 Prospekte ComTax xxxxx. 200.00
7206M Prospekte ComTax englisch 2500.00
720700 Prospekte ComTax deutsch 4200.00
4 Buro
890003 Rillfix Versandkuverts Klebeverschluss 28.00
5 Produktion Xxxxxxx
810100 Floppy Drive 3 1r2" 18.00
810102 CD-Rom 8x Speed, Anschluss IDE Adapi 0.00
810106 3 M CD Recordabie 65OMB 74.Min. 1.00
810300 Harddisk 2 117 IDE 20OMB 0.00
810301 Harddisk 3 117' 1 DE (Rat) 24.00
810424 JumperBox Kit 25m7f 0-Modem 18.00
810600 Pilot Xxxx seriell Muttilingual 2.00
811100 Token Ring Netzkarte 7.00
811103 Teles ISDN Card SO/16 1.00
811104 Ethernet Netzvverk-Karte 20.00
811111 Disk-Controller I DE mit Bios, ISA 1.00
811112 Teles On-Line-J Karte D 4.00
811201 Xxxxxxxx Modul zu CT13 27.00
811202 RAM Modul 1 MB 30 Pin 22.00
811207 4MB-Module 72Pin,32bit 60ns 11.00
811208 Xxxxxxxx Modul zu CTI3 32.00
811211 Prozessor Texas Instruments TMS370 25.00
811303 Tastatur CH Win95 Mitsumi 105 Tasten 1.00
811402 ComTax Box Telecom PTT komplett 5.00
820000 Dialogic 8 Port Vice Boards f. ComDial
Anlalog 3.00
000000 XX-XXX 6.22 Software komplett 14.00
890201 Windows fur Wortsg. 3.11 inid. DOS 6.22 1.00
6 Entwicklungsburo 11
8400051 Data Tapes 3M DAT 4mm 120m 15.00
7 Ersatzmaterial/Techniker Fahrzeuge (3x VW Passat)
8103001 Harddisk 2 1 IZ' 1 DE 20OMB 6.00
811100 Token Ring Netzkarte 3.001
811103 Teles ISDN Card SO/16 3.00
811104 Ethernet Netzwerk-Karte 9.00
811208 Xxxxxxxx Modul zu CTB 9.00
- 8 -
811401 ComTax-Box MDE komplett 9.00
811406 ComDial-PC MDE 9.00
8 Buro Genf
811401 ComTax-Box MDE komplett 3.00
811104 Ethernet Netzwerk-Karte 4.00
811406 ComDial-PC MDE 4.00
811100 Token Ring Netzkarte 1.00
9 Buro Xxxxxx
000000 ComTax-Box MDE komplett 6.00
811406 ComDial-PC MDE 7.00
811100 Token Ring Netzkarte 1.00
811109 Aktive-PC Karte V.24/MSV1 1.00
10 Buro Shanghai
811401 ComTax-Box MDE komplett 4.00
811406 ComDial-PC MDE 6.00
811100 Token Ring Netzkatte 1.00
11 Im Transport
8114041ComTax Box Ericsson komplett 20.001
811405 ComTax Box Alcatel komplett 10.00
- 9 -
Disclosure Schedule to the Equity Purchase Agreement
among ComTelco International, Inc. and August Xxxxxxx
As of February 28, 1997
Section 4(a): All Directors and Officers of each Target
o ComTelco (Research) AG:
- Sole Member of the Board of Directors: Xxxxxx Xxxxxxx
- Officer: August Xxxxxxx
o ComTelco (Vertriebs) AG:
- Sole Member of the Board of Directors: Xxxxxx Xxxxxxx
- Officer: August Xxxxxxx
o ComTelco Softwarevertriebs-GmbH
- Directors: There is no board of directors
- Officer/Manager: Xxxxxx Xxxxxxx
o ComTelco (Deutschland) GmbH
- Directors: There is no board of directors
- Officers/Managers: Xxxxxx Xxxxxxx, Xxxxx Xxxxxx and August Xxxxxxx
Section 4(b): Authorized and issued and outstanding cpaital of each Target
o ComTelco (Research) AG:
- Authorized capital: 100,000 Swiss Francs
- Issued and outstanding capital: 100,000 Swiss Francs
o ComTelco (Vertriebs) AG:
- Authorized capital: 100,000 Swiss Francs
- Issued and outstanding capital: 100,000 Swiss Francs
o ComTelco Softwarevertriebs-GmbH
- Authorized capital: 500,000 Austrian Shillings
- Issued and outstanding capital: 500,000 Austrian Shillings
o ComTelco (Deutschland) GmbH
- Authorized capital: 50,000 German Marks
- Issued and outstanding capital: 50,000 German Marks
