SHARE PURCHASE AGREEMENT
BETWEEN
ASAHI TELECOM COMPANY, LTD
AND
LINK PLUS CORPORATION
OCTOBER 12, 1993
SHARE PURCHASE AGREEMENT
------------------------
SHARE PURCHASE AGREEMENT made and entered into on the 12th day
of October, 1993 by and between ASAHI TELECOM COMPANY, LTD. ("ASAHI"), a
corporation existing under the laws of Japan, and having offices at 0-00-0
Xxxxxxx, Xxxxxx-Xx, Xxxxx, X000, and Link Plus Corporation ("LPC"), a
corporation existing under the laws of the State of Delaware, and having
offices at 0000 Xxx Xxxxxxxxx xxxx, Xxxxxxxxx Xxxxxxxx, 00000.
WHEREAS, LPC desires to issue and sell shares of its capital
stock to ASAHI and ASAHI desires to purchase such shares; and
WHEREAS, LPC is in the business of designing, developing,
manufacturing, marketing and supporting Lincompex components and systems and is
a licensee and owner of numerous Lincompex and related United States patents as
disclosed in Exhibit #1, and patent applications in Japan based upon the four
United States Patents so indicated on Exhibit #1; and
WHEREAS, ASAHI desires to be the sole and exclusive
representative and distributor of LPC's Lincompex products in Japan and to
negotiate with LPC for the license to manufacture Lincomplex products; and
WHEREAS, LPC desires to have ASAHI develop the various markets
for its Lincompex products in Japan; and
WHEREAS, the parties anticipate entering into negotiations for
the establishment of a joint venture for the manufacture and sale of LPC's
Lincompex products in Japan and other parts of the world as may be agreed;
THEREFORE, in consideration of the mutual provisions herein
contained, ASAHI and LPC agree as follows:
ARTICLE I
---------
Definitions
-----------
1.1 Certain Definitions. The terms defined in this Section 1.1
shall, for all purposes of this Agreement, have the meanings herein specified,
unless the context expressly or by necessary implication otherwise requires:
(a) "Agreement" or "this Agreement" means this
instrument and any Schedules and Exhibits hereto, as originally executed and
delivered, or, is amended or supplemented, as so amended or supplemented.
(b) "Shares" means those authorized shares of
capital stock of LPC to be sold to ASAHI as defined in Article ii.
1.2 Other Definitions.- In addition to the terms defined in
Section 1.1, certain other terms are defined elsewhere in this Agreement, and,
whenever such terms are used in the Agreement, they shall have their respective
defined meanings, unless the context expressly or by necessary implication
otherwise requires.
ARTICLE II
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Authorization and Sale of Shares
--------------------------------
2.1 Authorization. LPC has authorized the sale and issuance of
883 shares of its common stock (the "Shares"), having the rights, restrictions,
privileges and preferences as set forth in LPC's Certificate of Incorporation.
2.2 Sale of Shares. Subject to the terms and conditions hereof,
LPC will issue and sell to ASAHI and ASAHI will buy from LPC, the Shares at a
cash purchase price of $2,378.26 per share for an aggregate consideration of
$2,100,000 (the "Purchase Price"). Payment shall be in installments as
disclosed in Exhibit #2.
ARTICLE III
-----------
Delivery
--------
3.1 Delivery of Shares. LPC shall deliver certificates for the
Shares registered in the name of ASAHI, to ASAHI by international courier
service, upon receipt by LPC of the installments of the purchase price as set
forth on Exhibit #2, which shall be paid by wire transfer to Mellon Bank,
Pittsburgh, Pennsylvania, ABA Routing No. 000-000-000, credit to Xxxxxxx Xxxxx
Acct. No. 101-1730, with further credit to LINK PLUS Corporation Acct. No.
519-07478.
3.2 Taxes. LPC will pay any taxes or other governmental
charges, however designated, which are assessed or levied upon the sale or
transfer of the Shares to ASAHI hereunder.
ARTICLE IV
----------
Representations and Warranties of LPC
-------------------------------------
LPC represents, warrants and covenants that:
4.1 Organization and Good Standing
(a) LPC. LPC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
all requisite corporate authority to carry on
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the business as it is now carried on and conducted and to operate and own or
lease the assets, properties and business now owned or leased and operated by
it.
(b) Capitalization.- The authorized capital stock of
LPC consists of ten thousand (10,000) shares of common stock, without par
value, of which five thousand (5,000) shares are issued and outstanding. All
such issued and outstanding shares have been duly authorized and validly
issued, and are fully paid and nonassessable. LPC has reserved 883 shares of
common stock for issuance hereunder. Said 883 shares shall constitute
approximately fifteen percent (15%) of the 5,883 shares outstanding. Except as
otherwise provided for in Article XII of the Bylaws of LPC, all shares of LPC
common stock issued to ASAHI pursuant to the terms of the Agreement shall have
the rights, preferences, privileges and restrictions (including the
restrictions set forth in Article XIV of the Bylaws of LPC, a copy of which has
been delivered to ASAHI and reviewed by it) set forth in the Certificate of
Incorporation and Bylaws of LPC. All outstanding LPC common stock was issued in
compliance with all federal and state securities laws.
The shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid, nonassessable, and free of
any liens or encumbrances.
4.2 Validity of Agreement. All corporate action on the part of
LPC, its directors and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement by LPC, the authorization, sale,
issuance and delivery of the Shares and the performance of LPC's obligations
hereunder has been taken or will be taken prior to the Closing. This Agreement,
when executed and delivered by LPC, shall constitute the valid and binding
obligation of LPC enforceable in accordance with its terms.
4.3 Copies of Certain Documents. LPC has heretofore delivered,
or made available, to ASAHI true and complete copies of:
(a) the Certificate of Incorporation and Bylaws or
other governing documents of LPC as amended to the date hereof; and
(b) a list of the directors and officers of LPC.
4.4 Brokers or Finders. LPC has not incurred, and will not
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
4.5 Disclosure. Neither this Agreement nor any written
document, certificate or statement furnished by or on behalf of LPC to ASAHI in
connection with the transactions contemplated
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price which LPI will pay for such Products will be the original cost to
Distributor, less a fair adjustment for obsolescence and physical condition.
(e) Notices: All notices and communications required or permitted to be given
under this Agreement will be deemed to be given three (3) days after
transmission by facsimile message or telex confirmed by letter deposited in the
official mail as registered or certified airmail, postage prepaid and addressed
to the other party at their respective addresses set forth below (unless by
such notice a different person or address shall have been designated):
If to Distributor: ASAHI TELECOM COMPANY, LTD.
0-00-0 Xxxxxxx
Xxxxxx-Xx Xxxxx X000, Xxxxx
Attn: Xxxxx Xxxxxx, President
If to LPI: LINK PLUS INTERNATIONAL, INC.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx.
Chairman, CEO
6. Miscellaneous
(a) Agreement: This Agreement is executed simultaneously with a Share Purchase
Agreement between Distributor and LPI. This Agreement and the Share Purchase
Agreement contains the entire agreement of the parties and cancels all prior
agreements, oral related to the subject matter hereof. This agreement may not
be modified except by an instrument in writing executed by both parties. This
Agreement will be deemed for all purposes to have been made and entered into in
Columbia, Maryland, U.S.A.
(b) Waiver: No waiver of any right or remedy in respect of any occurrence or
event on one occasion by either party hereto will be deemed a waiver of such
right or remedy in respect to such an occurrence or event on any other occasion
by such party.
(c) Severability: Any provision of this Agreement which is prohibited by or
unlawful or unenforceable under any applicable law of any jurisdiction will be
ineffective as to such jurisdiction without affecting any other provision of
this Agreement.. To the full extent, however, that the provisions of such
applicable law may be waived, they are hereby waived, to the end that this
Agreement be deemed to be a valid and binding Agreement enforceable in
accordance with its terms.
(d) Force Maieure: Performance by each party shall be excused for failure to
conform to this Agreement for reasons beyond its control, including (without
limitation) force majeure, labor disputes or strikes, floods, civil commotions,
war, riots, acts of God, government rules, laws or actions, fires, embargoes,
or other unavoidable causes.
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ARTICLE VI
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Covenants and Agreements of LPC
-------------------------------
6.1 Fulfillment of Conditions and Covenants. LPC will not
voluntarily take any course of action inconsistent with satisfaction of the
requirements or conditions applicable to it as set forth in this Agreement, and
shall promptly do all such acts and take such measures as may be appropriate to
enable it to perform, as early as possible, the obligations herein provided to
be performed by it.
ARTICLE VII
-----------
Covenants and Agreements of ASAHI
---------------------------------
7.1 Fulfillment of Conditions and covenants. ASAHI will not
voluntarily undertake any course of action inconsistent with satisfaction of
the requirements or conditions applicable to it as set forth in this Agreement,
and shall promptly do all such acts and take such measures as may be
appropriate to enable it to perform, as early as possible, the obligations
herein provided to be performed by it.
ARTICLE VIII
------------
Conditions on Obligations of LPC
--------------------------------
The obligations of LPC to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, to the
reasonable satisfaction of LPC, and its counsel, of the following conditions,
except as LPC may waive same in writing in accordance with Section 10.2:
8.1 Representations and Warranties Correct. The
representations, warranties and covenants of ASAHI herein contained shall be
correct in all material respects as of the date hereof, except as affected by
the consummation of the transactions contemplated hereby.
8.2 Performance.- ASAHI shall have performed and complied in all
material respects, with all agreements and conditions required under this
Agreement to be performed and complied with by it, and shall have made each of
the payments to LPC, in accordance with Exhibit #2.
ARTICLE IX
----------
Conditions on Obligations of ASAHI
----------------------------------
The obligations of ASAHI to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, to the
reasonable satisfaction of ASAHI and its counsel, of the following conditions,
except as ASAHI may waive the same in writing in accordance with Section 10.2:
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9.1 Representations and Warranties Correct. The
representations, warranties and covenants of LPC herein contained shall be true
and correct in all material respects as of the date hereof, except as affected
by the consummation of the transactions contemplated hereby.
9.2 Performance. LPC shall have performed and complied in all
material respects, with all covenants, agreements and conditions required under
this Agreement to be performed and complied with by it.
ARTICLE X
---------
Termination, Waiver and Modification
------------------------------------
10.1 Waiver any provision of this Agreement may be waived in
writing at any time by the party which is entitled to the benefit of such
provision.
10.2 Modification. Any provisions of this Agreement may be
modified at any time by agreement in writing between the parties hereto,
executed in the same manner, but not necessarily by the same persons, as this
Agreement.
ARTICLE XI
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Survival of Representations and Indemnification
-----------------------------------------------
11.1 Survival. All representations, warranties and agreements
made by any party to this Agreement or pursuant hereto shall survive the
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, and any investigations made by or on behalf of any party.
11.2 Indemnification of LPC. ASAHI agrees to indemnify and hold
harmless LPC, its successors and assigns, from and against any damage, loss,
liability, cost or expense, including, without limitation, reasonable
attorneys' fees, incurred in connection with such damage, loss, liability, cost
or expense or in connection with the enforcement of this Agreement
(collectively, "Costs"), resulting from, arising out of or incurred in
connection with any misrepresentation or breach of any representation or
warranty made by ASAHI, or any breach, nonfulfillment or nonperformance of any
covenant, agreement or condition to be performed, complied with or fulfilled by
ASAHI, under this Agreement.
11.3 Indemnification of ASAHI.- LPC agrees to indemnify and
hold harmless ASAHI, it successor and assigns, from and against any costs
resulting from, arising out of or incurred in connection with any
misrepresentation or breach of any representation or warranty made by LPC, or
any breach,
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nonfulfillment or nonperformance of any covenant, agreement or condition to be
performed, complied with or fulfilled by LPC under this Agreement.
ARTICLE XII
-----------
Covenants of LPC and ASAHI
--------------------------
12.1 Financial Information. LPC covenants and agrees to furnish
the following reports to ASAHI for so long as ASAHI is a holder of the Shares:
(a) As soon as practicable after the end of each
fiscal year, and in any event within one hundred twenty (120) days thereafter,
the balance sheet of LPC, as of the end of such fiscal year, and statements of
income, and statements of changes in financial position of LPC, for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and certified or reviewed by independent
public accountants of national standing selected by LPC.
(b) as soon as practicable after the end of the first,
second and third quarterly accounting periods in each fiscal year of LPC and in
any event within sixty (60) days thereafter, a balance sheet of LPC, as of the
end of each such quarterly period, and statements of income and statements of
changes in financial condition of LPC for such period and for the current
fiscal year to date, all in reasonable detail and signed, subject to changes
resulting from year-end audit adjustments, by the principal financial or
accounting officer of LPC.
(c) With reasonable promptness, such other information
and data (including, without limitation, current and future business plans)
with respect to. LPC as ASAHI may from time to time reasonably request.
12.2 Inspection. For so long as ASAHI is eligible to receive
reports under Section 12.1 above, LPC covenants and agrees that ASAHI shall
also have the right, at its expense, to visit and inspect any of the properties
of LPC, and to discuss their affairs, finances and accounts with their
officers, all at such reasonable times and as-often as they may be reasonably
requested.
12.3 Confidentiality Agreement. ASAHI covenants and agrees that
any information which LPC disclosed to ASAHI under Sections 12.1 and 12.2
hereof, but not made generally available to the public, is confidential and for
ASAHI internal use only.
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ARTICLE XIII
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Right to Purchase
-----------------
LPC hereby grants to ASAHI the right to purchase, pro rata, all
(or any part) of "New Securities" (as defined in this Article XIV) that LPC may
propose to sell and issue. ASAHI's pro rata share, for purposes of this right
of first refusal, is the ratio of (x) the common stock of LPC owned by ASAHI to
(y) the total number of shares of common stock owned by all stockholders of LPC
immediately prior to the issuance of the New Securities. This right of first
refusal shall be subject to the following provisions:
(a) "New Securities" shall mean any common stock and
preferred stock of LPC whether or not authorized on the date hereof, and
rights, options, or warrants to purchase such common stock or preferred stock
and securities of any type whatsoever that are, or may become, convertible into
common stock or preferred stock; provided, however, that "New Securities" does
not include shares of any capital stock, or options to purchase capital stock,
issued or granted to officers, directors and employees of LPC pursuant to '
stock plans, option plans or bonus plans approved by the Board of directors.
(b) In the event that LPC proposes to undertake an
issuance of New Securities, it shall give ASAHI written notice of its
intention, describing the type of New Securities, the price, and the general
terms upon which LPC proposes to issue the same. ASAHI shall have twenty (20)
business days after receipt of such notice to agree to purchase its pro rata
share of such New Securities at the price and upon the terms specified in the
notice by giving written notice to LPC and stating therein the quantity of New
Securities to be purchased.
(c) In the event that ASAHI fails to exercise in full
the right of first refusal within the twenty (20) business day period specified
above, LPC shall have one hundred twenty (120) days thereafter to sell (or
enter into an agreement pursuant to which the sale of New Securities covered
thereby shall be closed, if at all, within sixty (60) days from the date of
each agreement) the New Securities respecting which ASAHI's rights were not
exercised at a price and upon terms no more favorable to the purchasers thereof
than specified in LPC's notice. In the event LPC has not sold the New
Securities within such one hundred twenty (120) day period (or sold and issued
New Securities in accordance with the foregoing within sixty (60) days from the
date of such agreement) LPC shall not thereafter issue or sell any New
Securities, without first offering such New Securities to ASAHI in the manner
provided above.
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ARTICLE XIV
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Miscellaneous
-------------
14.1 Expenses. ASAHI and LPC shall each bear its respective
legal, accounting and other expenses in connection with this Agreement.
14.2 Assignment. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other party. All of the
terms of this Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties and their respective successors and assigns.
14.3 Notices. All notices and other communications hereunder
shall be in writing and shall be delivered or mailed by registered or certified
first class mail, postage prepaid addressed to a party hereto (with a copy to
such party's counsel) at the respective addresses set forth below:
If to ASAHI, to: ASAHI TELECOM COMPANY, LTD.
0-00-0 Xxxxxxx
Xxxxxx-Xx, Xxxxx X000, Xxxxx
Attn: Xx. Xxxxxxxxx Xxxxxx
Consultant
With a copy to: XXXXXXXXX & MITSUKI
912 Iino Building
1-1 Xxxxxxxxxx-Xxx 0-Xxxxx
Xxxxxxx-Xx, Xxxxx 000, Xxxxx
Attn: Xxxxxxxx Xxxxx
If To LPC, to: LINK PLUS CORPORATION
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Chairman & CEO
with a copy to: XXXXXXXX AND GREEN
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Attn: Xxxxxx Xxxxxx, Esq.
14.4 Severability. In case one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or nonenforceable provisions had
never been contained herein.
14.5 ASAHI Delegations. All references in this Agreement to the
directors of ASAHI shall be deemed to be references to such directors or the
Executive Committee of the directors of ASAHI.
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14.6 Further Assurances. Subject to the terms and conditions of
this Agreement, each of the parties hereto shall use all reasonable efforts to
cause the transactions contemplated hereby to occur with all reasonable
dispatch, and no party shall undertake any course of action inconsistent with
such intended result.
14.7 Miscellaneous. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Maryland,
United States of America. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. This Agreement
constitutes the entire agreement between the parties, and there are no other
agreements or commitments except as set forth herein or therein. This Agreement
can be amended only by an instrument in writing executed and authorized as
provided herein. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof. This
Agreement may be executed simultaneously in several counterparts, each of which
shall be deemed an original, buy all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
fully executed as of the date and year first above written.
ATTEST: ASAHI TELECOM COMPANY, LTD.
By: /s/ Xxxxx Xxxxxx (SEAL)
----------------
Xxxxx Xxxxxx
President
LINK PLUS CORPORATION
By: /s/ Xxxxxx X. Xxxxx (SEAL)
-------------------
Xxxxxx X. Xxxxx
Chairman & CEO
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EXHIBIT #l
PATENTS
-------
FILING ISSUE EXPIRATION PATENT
DATE DATE DATE NUMBER
---- ---- ---- ------
Basic Digital Lincompex 07/12/78 06/02/81 06/02/98 4,271,499
*DSP Lincompex 05/20/88 06/12/89 06/12/06 4,839,906
Trunk Dialer 04/28/88 09/19/89 09/19/06 4,868,861
*Complex Waveform 09/12/88 03/06/90 03/06/07 4,907,217
*Autosilence 02/02/89 07/24/90 07/24/07 4,944,024
*Autocalibrate 06/09/89 11/12/91 11/12/08 5,065,451
Trunk Dialer 11 07/03/89 07/04/91 07/04/08 5,022,055
FM Lincompex 08/25/89 10/15/91 10/15/08 5,058,202
AM Modulation of C-T 08/20/90 03/10/92 03/10/09 5,095,539
*Applications for patents are pending in Japan based upon these U.S. Patents.
EXHIBIT # 2
PAYMENT SCHEDULE
----------------
PAYMENT DATE DOLLAR AMOUNT SHARES
------------ ------------- ------
1. October 31, 1993 $ 210,000 88
2. November 30, 1993 210,000 88
3. December 31, 1993 210,000 88
4. January 31, 1994 210,000 88
5. February 28, 1994 210,000 88
6. March 31, 1994 210,000 88
7. April 30, 1994 210,000 88
8. May 31, 1994 210,000 88
9. June 30, 1994 210,000 88
10. July 31, 1994 210,000 88
---------- ----------
TOTALS $2,100,000 883
SHARE PURCHASE AMENDMENT
AMENDMENT dated July 10, 1995, to the SHARE PURCHASE AGREEMENT made
October 12, 1993, ("the Agreement") between ASAHI TELECOM COMPANY LTD.
("ASAHI"). a corporation existing under the laws of Japan, and having offices
at 0-00-0 Xxxxxxx,Xxxxxx-Xx, Xxxxx 130, and LINK PLUS CORPORATION (LPC), a
corporation existing under the laws of the State of Delaware, and having
offices at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
The parties desire to amend the Agreement to increase the shares
purchased by ASAHI by an amount equal to the total amount consisting of
$28,794.64 which has already been paid on Dec. 29, 1994 and $241,504.68
currently owe to SUMISHO LEASING CORPORATION OF AMERICA ("SUMISHO") pursuant to
the lease agreement No. SN-93-006 executed by LPC and SUMISHO on January 13,
1994, andof which ASAHI is Guarantor.
Accordingly, the parties hereto, for valuable consideration and
intending to be legally bound, hereby agrees as follows:
1. ASAHI shall pay SUMISHO $241,504.68 which is the total amount due as of
June 1, 1995 and overdue interest as of July 10, 1995. See Exhibit 1.
2. Subject to the terms and conditions of Agreement, LPC will issue to
ASAHI, the shares at the price set forth in Article II, Section 2.2 of the
Agreement of $2,378.26 per share for an aggregate consideration of $270,299.32
(the amount owed and paid to the SUMISHO - See Exhibit 1) for a total of 113.65
shares.
3. Except as expressly amended hereby, the Agreement shall remain in full
force and effect in accordance with the terms and provisions thereof.
4. This Amendment may be executed in two or more counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Amendment as of the day and year first written above.
ASARI TELECOM COMPANY LTD
by: /s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
President
LINK PLUS CORPORATION
by:/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Xx.
Chairman C.E.O.
