EXHIBIT 99.1
SHORT-FORM MERGER AGREEMENT
THIS SHORT-FORM MERGER AGREEMENT (this "Agreement"), dated as of the 2nd
day of February, 1999, is made by and among AmeriLink Corporation, an Ohio
corporation ("AmeriLink"), MCC Acquisition Corp., an Ohio corporation and wholly
owned subsidiary of AmeriLink ("MAC"), and each of Xxxxxxx Xxx Xxxxx, Xxxxxxx
Xxxxxxx and Xxxxxxx Xxxxxxxx (said individuals being hereinafter collectively
called the "Employee Shareholders" and, individually, an "Employee
Shareholder").
W I T N E S S E T H :
WHEREAS, the Employee Shareholders are the owners of common stock of
Midwest Computer Cable, Inc. (the "Company"); and
WHEREAS, Xxxxx Xxxxxxx Xxxxxx Xxxxxxx, and Xxxxx Xxxxxxx (the
"Principal Shareholders"), the Company, AmeriLink and MAC have entered into
an Agreement and Plan of Merger (the "Principal Agreement") dated as of the
date hereof ; and
WHEREAS, AmeriLink, MAC, the Company, the Principal Shareholders and
the Employee Shareholders desire to merge the Company with and into MAC (the
"Merger") upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of and in reliance upon the covenants,
conditions, representations and warranties herein contained, the parties hereto
hereby agree as follows:
1. DEFINITIONS. Capitalized terms not defined herein shall have the
meanings assigned to them in the Principal Agreement.
2. DELIVERY OF COMPANY SHARES. Each Employee Shareholder hereby
tenders his Company Shares to MAC in exchange for the Merger Consideration.
3. THE MERGER. Upon the terms and subject to the conditions of the
Principal Agreement and this Agreement, the Merger shall be completed in the
manner described in the Principal Agreement.
4. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE SHAREHOLDERS. Each
Employee Shareholder represents and warrants to MAC and AmeriLink, solely as to
such Employee Shareholder, as follows:
(a) SHAREHOLDERS' CAPACITY4.26 Shareholders' Capacity. The
execution, delivery and performance by Employee Shareholder of this
Agreement and the consummation by Employee Shareholder of the
transactions contemplated hereby are within Employee Shareholder's
capacity and no approval or consent of any other person is required in
connection therewith.
(b) SHAREHOLDERS' GOVERNMENTAL AUTHORIZATION, CONFLICTS4.27
Shareholders' Governmental Authorization, Conflicts.
(i) The execution, delivery and performance by Employee
Shareholder of this Agreement and the consummation of the Merger
require no action by or in respect of, or filing with, any
governmental body, agency, official or authority except as has
been accomplished or will be accomplished prior to the Closing
Date.
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(ii) No consent, approval, waiver or other action by any
Person under any material contract, agreement, indenture, lease,
instrument or other document to which the Company is a party or by
which it is bound is required or necessary for the execution,
delivery and performance of this Agreement by such Employee
Shareholder or the consummation of the transactions contemplated
hereby.
(c) NON-CONTRAVENTION4.28 Non-Contravention. The
execution, delivery and performance by such Employee Shareholder of this
Agreement and the consummation of the Merger do not and will not
contravene or constitute a default under or give rise to a right of
termination, cancellation or acceleration of any right or obligation of
Employee Shareholder or to a loss of any benefit to which Employee
Shareholder is entitled under any provision of applicable law or
regulation or of any agreement, judgment, injunction, order, decree,
administrative interpretation, award or other instrument binding upon
Employee Shareholder or result in the creation or imposition of any Lien
on any asset of Employee Shareholder.
(d) BINDING EFFECT4.29 Binding Effect. This Agreement
constitutes a valid and binding agreement of such Employee Shareholder,
enforceable in accordance with its terms except as limited by bankruptcy,
insolvency or other similar laws affecting the rights of creditors
generally and the application of equitable principles.
(e) TITLE TO SHARES4.30 Title to Shares. Employee Shareholder
is the record and beneficial owner of the Company Shares such Employee
Shareholder has agreed to deliver hereunder and upon delivery of the
certificates for the Company Shares by Employee Shareholder or a lost
share certificate affidavit pursuant to this Agreement, MAC will acquire
good, valid and marketable title to the Company Shares, free and clear of
any Lien.
(f) ENTIRE BUSINESS4.31 Entire Business. The Company Shares
constitute all of such Employee Shareholder's investment, direct or
indirect, in the Company and its business as currently and historically
conducted.
(g) CERTAIN INTERESTS4.32 Certain Interests. Neither
Employee Shareholder nor any of his relatives or Affiliates (other than
the Company) (i) is a party to or has an interest in any material
contracts or other arrangements relating to the business of the Company
to which the Company is a party or to which the Company or any assets
used by the Company may be subject or (ii) has any interest in any
material property, real or personal, tangible or intangible, including
Intellectual Property Rights used in or pertaining to the Company except,
in each case, for the normal rights of that Employee Shareholder as a
holder of the Company Shares owned by that Employee Shareholder.
(h) FINDERS' FEES4.33 Finders' Fees. Employee Shareholder
has not employed any investment banker, broker, finder or other
intermediary who might be entitled to any fee or commission in connection
with the transactions contemplated by this Agreement
(i) ABSENCE OF CERTAIN CHANGES4.34 Absence of Certain
Changes. Employee Shareholder has not issued or sold any securities
convertible or exchangeable for other securities of the Company or issued
or sold any options or other rights to acquire from Employee Shareholder
debt securities of the Company or securities convertible into or
exchangeable for any debt securities.
(j) INVESTMENT INTENT4.35 Investment Intent. Employee
Shareholder is acquiring the shares of AmeriLink Common Stock it receives
from AmeriLink hereunder for investment and not with a view to a sale or
distribution thereof within the meaning of the Securities Act. Employee
Shareholder has had an opportunity to ask questions of the principal
officers and representatives of AmeriLink and to obtain any additional
information necessary to permit an evaluation of the benefits and risks
associated with the investment made hereby. Employee Shareholder has had
sufficient experience in business, financial and investment matters to
evaluate the merits and risks involved in the investment made hereby and
is able to bear the economic risk of such investment for an indefinite
period of time.
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5. REPRESENTATIONS AND WARRANTIES OF AMERILINK. AmeriLink represents
and warrants as follows:
(a) CORPORATE EXISTENCE AND POWER5.1 Corporate Existence and
Power. AmeriLink is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Ohio, has all requisite
corporate power and authority to conduct its business and own its
properties as now conducted and owned, and is qualified to do business as
a foreign corporation in each jurisdiction where the failure to be so
qualified would, in the aggregate, have a material adverse effect on the
business or financial condition of AmeriLink. AmeriLink has full
corporate power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of AmeriLink, and no other corporate proceedings are necessary
to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed
and delivered by AmeriLink and constitutes a valid and binding agreement,
enforceable against it in accordance with its terms.
(b) CONSENTS AND APPROVALS; NO VIOLATION. Neither the
execution and delivery of this Agreement by AmeriLink nor the
consummation of the transactions contemplated hereby will (i) conflict
with or result in a breach of any provision of its Articles of
Incorporation or Code of Regulations, (ii) require any consent or
approval of, or filing and expiration of a waiting period or a period for
disapproval by, any governmental authority (except for filing of an
additional listing notification with The Nasdaq Stock Market, Inc.),
(iii) result in a default (or an event that might, with the passage of
time or the giving of notice or both, constitute a default) or give rise
to any right to terminate, cancel or accelerate or to any loss of benefit
under any of the terms, conditions, or provisions of any lease,
indenture, mortgage, loan or credit agreement, or other agreement or
instrument to which AmeriLink is a party or by which AmeriLink or any of
its assets may be bound, other than as previously disclosed in writing to
the Company, or (iv) violate any applicable law, rule or regulation to
which AmeriLink or any of its assets are bound.
(c) LITIGATION. Except as disclosed in the SEC Documents (as
defined below), there are no actions, suits, causes of action, claims,
litigation, arbitration, administrative hearings or other form of
proceedings or disputes pending or threatened against AmeriLink, in any
court, at law or in equity, or before any arbitration board or any
governmental department, commission, board, bureau, agency, or
instrumentality which in the aggregate would have a material adverse
effect on its business or financial condition; nor has AmeriLink been,
nor is it, subject to any orders, awards, fines, judgments, decrees, or
injunctions the effect of which in the aggregate would have a material
adverse effect on its business or financial condition.
(d) CHARTER DOCUMENTS. AmeriLink has heretofore delivered to
the Company (i) a copy of its Articles of Incorporation, as amended to
date, certified by the appropriate governmental authority, and (ii) a
copy of its Code of Regulations, as amended to date, as certified by its
Secretary or Assistant Secretary.
(e) BROKERS. Except for JPS Capital Corporation, no broker,
finder, or investment banker is entitled to any brokerage, finder's, or
other fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of or
AmeriLink.
(f) SEC FILINGS. AmeriLink has filed all required reports,
forms and other documents with the Securities and Exchange Commission
(the "SEC DOCUMENTS"). As of their respective dates (giving effect to
any amendment contained in a subsequently-filed SEC Document intended to
supplement or replace information given at any such date), the SEC
Documents complied in all material respects with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder applicable to such SEC
Documents. The financial statements of AmeriLink included in the SEC
Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Securities and Exchange
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Commission with respect thereto, have been prepared (other than the
pro forma financial statements included therein) in accordance with
GAAP (except as may be indicated in the notes thereto or, in the case
of unaudited statements, as permitted by Form 10-Q of the SEC) and
fairly present the financial position of AmeriLink and its
consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments). The pro forma combined financial statements of
the Company included in the SEC Documents, together with the related
notes thereto, present fairly the information contained therein, have
been prepared in accordance with the Securities and Exchange
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly presented on the pro forma bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
Except as set forth in the SEC Documents filed and publicly available
prior to the date of this Agreement, and except for liabilities and
obligations incurred in the ordinary course of business since the date
of the most recent pro forma combined balance sheet included in the
SEC Documents filed and publicly available prior to the date of this
Agreement and liabilities and obligations which would not,
individually or in the aggregate, have a material adverse effect on
AmeriLink, neither AmeriLink nor any of its subsidiaries has any
liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) required by GAAP to be set forth on a
consolidated balance sheet of AmeriLink and its consolidated
subsidiaries or in the notes thereto.
(g) CAPITALIZATION. AmeriLink's capitalization as of February
1, 1999 consisted of (i) 10,000,000 authorized AmeriLink Common Shares,
of which 4,031,174 such shares (exclusive of any such shares delivered
pursuant to this Agreement) are issued and outstanding, (ii) 500,000
authorized Class A Voting Preferred Shares, none of which are issued and
outstanding, (iii) 500,000 authorized Class B Nonvoting Preferred Shares,
none of which are issued and outstanding, and (iv) outstanding options
and warrants to purchase an aggregate of 773,403 AmeriLink Common Shares
(exclusive of any such options granted pursuant to the transactions
contemplated by this Agreement). AmeriLink has no other authorized
classes of capital stock.
(h) NO RIGHTS TO REGISTER STOCK. Except as described in the
SEC Documents, AmeriLink has no obligation to register any shares of
AmeriLink Common Stock under the Securities Act.
(i) AMERILINK COMMON STOCK. The AmeriLink Common Stock to be
issued pursuant to this Agreement has been duly authorized by all
necessary corporate action and, when issued and delivered by AmeriLink
pursuant to this Agreement, will be validly issued, fully paid and
non-assessable.
(j) MATERIAL ADVERSE CHANGE. There has been no material
adverse change in the financial condition, properties, business or
prospects of AmeriLink since the date of AmeriLink's most recent Form
10-Q filed with the SEC on November 11, 1998, except to the extent
disclosed in AmeriLink's filings with the SEC prior to the date hereof.
6. SHAREHOLDER COVENANTS.
(a) COMPETITION6.5 Competition.
(i) Each Employee Shareholder agrees that, for a period
of three years beginning on the Closing Date, such Employee
Shareholder will not engage or participate in any capacity in any
business other than that of the AmeriLink or one of its Affiliates
which is substantially similar to any part of the business of the
Company as of the Closing Date; provided that this Section shall
not prohibit any Employee Shareholder from owning not more than 1%
of the issued and outstanding stock of any corporation whose
shares are publicly traded on a recognized national exchange or
listed in the Nasdaq national market system. The foregoing
restriction shall extend to each state in the United States.
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(ii) Any breach of this Section 5(a) may cause
irreparable injury to AmeriLink or its Subsidiaries for which a
remedy at law may be inadequate. Therefore, AmeriLink and its
Subsidiaries shall be entitled to temporary and permanent
injunctive or other equitable relief in any court of competent
jurisdiction without the necessity of proving actual damages, in
addition to any other remedy, including money damages, available
therefor pursuant to this Agreement, at law or in equity.
(b) CONFIDENTIALITY.
(i) Employee Shareholders will hold in confidence,
unless compelled to disclose by judicial or administrative process
or by other requirements of law, all confidential documents and
information concerning the Company, except to the extent that such
information can be shown to have been (i) previously known on a
non-confidential basis by the recipient, (ii) in the public domain
through no fault of any Shareholder or (iii) later lawfully
acquired by such recipient or from sources other than any of the
Shareholders, the Company or AmeriLink.
(ii) Employee Shareholders will hold in confidence,
unless compelled to disclose by judicial or administrative
process or by other requirements of law, all confidential
documents and information concerning AmeriLink and its
Subsidiaries, except to the extent that such information can be
shown to have been (i) previously known on a non-confidential
basis by the recipient, (ii) in the public domain through no
fault of any Shareholder or (iii) later lawfully acquired by a
Shareholder from sources other than any of Shareholders or
AmeriLink. If this Agreement is terminated, such confidence
shall be maintained and Employee Shareholders will destroy or
deliver to AmeriLink, upon request, all documents and other
materials, and all copies thereof, obtained by Employee
Shareholders or on behalf of Employee Shareholders from
AmeriLink in connection with this Agreement or the Principal
Agreement that are subject to such confidence. If this
Agreement is terminated, such confidence shall be maintained
and Employee Shareholders will destroy or deliver to AmeriLink,
upon request, all documents and other materials, and all copies
thereof, obtained by any Employee Shareholder or on such
Employee Shareholder's behalf from AmeriLink in connection with
this Agreement that are subject to such confidence.
7. SURVIVAL; REMEDY FOR BREACH11.1 Survival; Remedy for Breach.
The representations and warranties contained in this Agreement shall survive the
Closing without limitation. All covenants and other agreements included in this
Agreement shall survive the Closing except as indicated therein.
8. INDEMNIFICATION 11.2 Indemnification by Shareholders.
(a) BY SHAREHOLDERS. The Employee Shareholders hereby indemnify
each AmeriLink Indemnitee (as hereinafter defined), jointly and
severally, against and agrees to hold each AmeriLink Indemnitee harmless
from any and all damage, loss, liability, penalty, assessment,
settlement, judgment and expense (including, without limitation,
reasonable expenses of investigation and attorneys' fees and expenses) in
connection with any action, suit or proceeding brought against any such
AmeriLink Indemnitee (collectively, "Claims") incurred or suffered by any
such AmeriLink Indemnitee arising out of the inaccuracy of any of the
representations or warranties or the breach of any covenant or agreement
of the Employee Shareholders hereunder.
(b) BY AMERILINK11.3 Indemnification by AmeriLink.
AmeriLink hereby indemnifies each Employee Shareholder against and agrees
to hold each Employee Shareholder harmless from any and all Claims
incurred or suffered by any such Employee Shareholder arising out of the
inaccuracy of any of the representations or warranties made by AmeriLink
in this Agreement or the breach of any covenant or agreement of AmeriLink
hereunder. AmeriLink's obligation to provide the indemnity pursuant to
this Section 8(b) shall expire on the second anniversary of the Closing
Date.
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(c) PROCEDURES11.4 Procedures.
(i) For purposes of this Section 8, the term "AmeriLink
Indemnitee" shall include AmeriLink and any of its Affiliates and,
effective at the Closing, the Surviving Corporation. For purposes
of this Section 8, the term "Indemnifying Party" shall mean
AmeriLink or Employee Shareholders, as appropriate, and
"Indemnified Party" shall mean a AmeriLink Indemnitee or an
Employee Shareholder, as appropriate.
(ii) Each Indemnified Party shall give prompt notice to
the Indemnifying Party of the assertion of any claim, or the
commencement of any suit, action or proceeding in respect of which
indemnity may be sought hereunder and of any damage, loss,
liability or expense which the Indemnified Party deems to be
within the ambit of this Section 8, specifying with reasonable
particularity the basis therefor and will give the Indemnifying
Party such information with respect thereto as the Indemnifying
Party may reasonably request. The Indemnifying Party may, at its
own expense, (i) participate in and, (ii) upon notice to the
Indemnified Party, assume the defense of any such suit, action or
proceeding; PROVIDED that (i) the Indemnifying Party's counsel is
reasonably satisfactory to the Indemnified Party, (ii) the
Indemnifying Party shall thereafter consult with the Indemnified
Party upon the Indemnified Party's reasonable request for such
consultation from time to time with respect to such suit, action
or proceeding and (iii) the Indemnifying Party shall not, without
the Indemnified Party's consent, agree to any settlement with
respect to any Tax if the effect of such settlement would be an
increase in the liability of the Indemnified Party with respect to
any Tax for any period beginning after the Closing. If the
Indemnifying Party assumes such defense, the Indemnified Party
shall have the right (but not the duty) to participate in the
defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by the Indemnifying Party. The
Indemnifying Party shall be liable for the fees and expenses of
counsel employed by the Indemnified Party for any period during
which the Indemnifying Party has not assumed the defense thereof.
Whether or not the Indemnifying Party chooses to defend or
prosecute any claim, all of the parties hereto shall cooperate in
the defense or prosecution thereof.
(iii) No Indemnifying Party shall be liable under this
Section 8 for any settlement, effected without its consent or
resulting from a proceeding in which such Indemnifying Party was
not permitted an opportunity to participate, of any claim,
litigation or proceeding in respect of which indemnity may be
sought hereunder. No investigation by any Indemnified Party at or
prior to the Closing shall relieve any Indemnifying Party of any
liability under this Section 8.
(iv) Any claim of any AmeriLink Indemnitee (other than
AmeriLink) under this Section 8 may be made and enforced by
AmeriLink on behalf of any such AmeriLink Indemnitee.
9. SUCCESSORS AND ASSIGNS12.3 Successors and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns, PROVIDED, HOWEVER, that neither
this Agreement nor any right hereunder may be assigned by any party without the
consent of the other parties hereto.
10. ENTIRE AGREEMENT; AMENDMENT12.4 Entire Agreement; Amendment.
This Agreement, including any schedules hereto, and the other instruments and
agreements referred to herein embody the entire agreement of the parties hereto
with respect to the subject matter hereof and supersede all prior agreements
with respect thereto. This Agreement may be amended but only in a writing
signed by AmeriLink and Employee Shareholders. Any provision hereof may be
waived but only in a writing signed by AmeriLink if such waiver is sought to be
enforced against AmeriLink and only in a writing signed by Employee Shareholders
if such waiver is sought to be enforced against Employee Shareholders.
11. COUNTERPARTS12.5 Counterparts. This Agreement may be executed
in any number of counterparts as may be convenient or necessary, and it shall
not be necessary that the signatures of all parties hereto or thereto
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be contained on any one counterpart hereof or thereof. Additionally, the
parties hereto agree that for purposes of facilitating the execution of this
Agreement, (a) the signature pages taken from the separate individually
executed counterparts of this Agreement may be combined to form multiple
fully executed counterparts and (b) a facsimile transmission shall be deemed
to be an original signature for all purposes. All executed counterparts of
this Agreement shall be deemed to be originals, but all such counterparts
taken together or collectively, as the case may be, shall constitute one and
the same agreement.
12. SEVERABILITY12.6 Severability. If any term, provision,
covenant or restriction of this Agreement or the application thereof to any
person or circumstance should be held by an administrative agency or court of
competent jurisdiction to be invalid, void, or unenforceable, then the remainder
of this Agreement and the application of such term, provision, covenant, or
restriction to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law. Further, it
is the intent of the parties that if any term, provision, covenant, or
restriction of the Agreement should be held to be invalid, void, or
unenforceable as applied to any person or circumstance, then such term,
provision, covenant, or restriction shall be modified to the extent necessary
in order to render the same enforceable, consistent with the expressed
objectives of the parties hereto for entering into this Agreement.
13. CAPTIONS12.7 Captions. The captions herein are inserted for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
14. GOVERNING LAW; VENUE12.8 Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of the State of Ohio
(without regard to conflict of law principles).
IN WITNESS WHEREOF, this Agreement has been executed on behalf of each of
the parties hereto as of the day and year first above written.
/s/ Xxxxxxx Xxx Xxxxx AMERILINK CORPORATION
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Xxxxxxx Xxx Xxxxx
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxxxxxx Xxxxxxx Xxxxx X. Xxxxxxx, President
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx MCC ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
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