EXHIBIT 7.1
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "Agreement") dated as of April _______, 2004,
by and among Minnesota Digital Universe, Inc., a Minnesota corporation, (the
"Company"), Xxxxxxx X. Deutsch, Xxxx X. Xxxxxxx, and Xxxx Xxxxxx, (the
"Shareholders" and/or "Sellers") on the one hand, and VICOM, Incorporated, a
Minnesota corporation, ("Buyer"), and New Hope Direct Acquisition Corporation, a
Minnesota corporation, ("Acquisition Sub"), together with Buyer sometimes
referred to as ("Buyers") on the other hand.
W I T N E S S E T H
WHEREAS, Company distributes television programming and services; and
WHEREAS, the parties hereto desire to enter into this Acquisition Agreement
pursuant to which Buyer will acquire all of the issued and outstanding shares of
capital stock of Company pursuant to a Merger of Acquisition Sub with and into
Company, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties herein contained, and upon the terms and subject
to the conditions hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1. AGREEMENT TO MERGE
Section 1.1 Merger. Subject to the terms and conditions hereinafter
set forth and in accordance with the applicable provisions of the state law
governing Company and Acquisition Sub, the parties to this Agreement agree to
effect a merger (the "Merger") of Acquisition Sub with and into Company, with
Company as the surviving corporation in the Merger, in accordance with the plan
of merger substantially in form attached hereto as Exhibit 1.1 (the "Plan of
Merger").
Section 1.2 Effective Time of the Merger. The merger of Acquisition
Sub with and into Company shall become effective as provided under the
applicable provisions of the Minnesota Business Corporation Act upon the time
(the "Effective Time") of the filing of articles of merger in respect of the
Merger and such other documents as may be required by applicable law and the
payment of all fees therefor, and the issuance by the Secretary of State of the
State of Minnesota of a certificate of merger in respect of the Merger. Such
filing and payment of fees shall take place on the Closing Date and shall be
made in person by an agent of the parties hereto.
Section 1.3 Effect of Merger. At the Effective Time, the separate
existence of Acquisition Sub shall cease, Company shall be the corporation
surviving the Merger (sometimes referred to herein as the "Surviving
Corporation") and shall continue its corporate existence under the name
"Minnesota Digital Universe, Inc." The Articles of Incorporation and By-Laws of
Acquisition Sub as in effect immediately prior to the Merger shall be the
Articles of Incorporation and By-Laws of the Surviving Corporation. At the
Effective Time, all outstanding shares of capital stock of Acquisition Sub shall
be automatically converted into shares of common stock of Surviving Corporation.
Also at the Effective Time, the shares of Company Common Stock issued and
outstanding immediately prior to the Effective Time shall in accordance with the
Plan of Merger, be automatically converted into the right to receive (i) the
Merger Shares (as defined below), and (ii) the Merger Cash (as defined below).
The Merger Shares shall be allocated among the Shareholders of company in
accordance with the Plan of Merger. All treasury shares of Company, if any,
shall be cancelled and cease to exist as of the Effective Time.
Section 1.4 Purchase Price. Subject to and upon the terms and
conditions of this Agreement, in reliance on the representations, warranties,
covenants, and agreements of Seller contained herein, and in full payment for
the sale, conveyance, assignment and delivery of Company Common Stock, Buyer
shall pay to Sellers the aggregate sum of Seven Million ($7,000,000.00) Dollars
("Purchase Price"), payable as follows:
(a) At Closing, as consideration for the delivery by the
Shareholders of certificates representing all of Company
Common Stock free and clear of any Liens, Buyer shall pay
Seven Million ($7,000,000.00) Dollars (the "Merger Payment"),
plus or minus any adjustments described herein, as follows:
(i) Cash payable as follows:
1) One Million ($1,000,000.00) Dollars on the Date of
Closing.
2) One Million ($1,000,000.00) Dollars ninety (90)
days from the Date of Closing.
3) One Million ($1,000,000.00) Dollars one hundred
twenty (120) days from the Date of Closing.
4) Five Hundred Thousand ($500,000.00) Dollars on
January 2, 2005.
The payments due from and after closing shall be
evidenced by Promissory Notes in the form of Exhibit 1.4
(a) (i) hereto.
2
(ii) Three Million Five Hundred Thousand
($3,500,000.00) Dollars by receipt of
two million (2,000,000) shares of VICOM
Class A Common Stock to Shareholders,
proportional to their interest in
Company. All shares issued will
self-register three hundred sixty-five
(365) days from the date of issuance.
They shall be subject to the provisions
of SEC Rule 144. If within one (1) year
from the Date of Closing, Buyer performs
additional SEC Registration of stock
shares due to a subsequent financing,
and the terms of said financing do not
expressly prohibit "piggyback
registration rights," Buyer will add the
shares paid for Company and held by
Shareholders to said registration to
eliminate the Rule 144 restrictions.
Section 1.5 Excluded Assets. Notwithstanding anything in Article 1
hereof, at or prior to the Closing, Company may transfer and distribute the
assets listed on Exhibit 1.5 hereto to Sellers (the "Excluded Assets").
Section 1.6 Cash and Accounts Receivable. Sellers covenant and agree
that as of the Closing Date, the accounts receivable, either billed or unbilled
that can properly be billed arising out of the operation of Company's business
prior to closing, and cash which Company holds, shall be equal to current (not
accrued) liabilities of Company.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF COMPANY
Except for exceptions set forth in reasonable detail in Exhibit 2 attached
hereto and referring to the warranty or warranties to which the exception
relates, Company represents and warrants to Buyer and Acquisition Sub as of the
date hereof and, except only as otherwise specifically provided herein, as of
the Closing, as if made and agreed on said date:
Section 2.1 Organization. Company is a corporation, duly organized,
validly existing, and in good standing under the laws of the State of Minnesota.
Copies of Company's Certificate of Incorporation, and all amendments thereof to
date, certified by the Secretary of the State of Minnesota and Company's By-Laws
as amended to date, certified by Company's Secretary, have been delivered to
buyer, and are complete and correct.
Section 2.2 Capitalization. The aggregate number of shares, which
Company is authorized to issue, is 2,500 common shares without par value, of
which 1,333.32 shares are issued and presently outstanding. All such issued
shares have been validly issued and are fully paid and non-assessable. At the
Closing and at the Effective Time of the Merger, Sellers represent and warrant
they have good and marketable title thereto, free and clear of all claims, liens
and encumbrances, to Company Common Stock. All shareholders are listed below:
3
NAME OF SHAREHOLDER NUMBER OF SHARES
Xxxxxxx X. Deutsch 600.00
Xxxx X. Xxxxxxx 600.00
Xxxx Xxxxxx 133.32
Section 2.3 Consents; Approvals. The execution, delivery and
performance by Company of this Agreement and the consummation of the
transactions contemplated hereby by Company requires no consent, approval or
action, by or in respect of, notices to, or filing with, any governmental body,
agency, official or authority or any third party, except as may be required by
DirectTV.
Section 2.4 Corporate Authorization. The execution, delivery and
performance by Company of this Agreement and the consummation by Company of the
transactions contemplated hereby and thereby are within Company's corporate
powers and have been duly authorized by all necessary corporate action. This
Agreement constitutes a valid and binding agreement of Company, enforceable
against Company in accordance with its terms except as such enforcement may be
subject to: (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditor's rights generally
and (b) general principles of equity (whether considered in a proceeding in
equity or at law).
Section 2.5 Subsidiaries. Company has no subsidiaries.
Section 2.6 Financial Statements. Company has delivered to Buyer
copies of the following financial statements, all of which are true and
complete: (i) balance sheet of Company as of December 31, 2003 and February 28,
2004 (the "Balance Sheet"), and unaudited statement of earnings for the twelve
month period then ending December 31, 2003, certified by Company's Treasurer,
which presents a true and complete statement, as of its date, of Company's
condition, financial and otherwise.
Section 2.7 Liabilities. Except as and to the extent reflected or
reserved against in the Balance Sheet, Company, as of February 28, 2004, had no
material liabilities of any nature, whether accrued, absolute, contingent, or
otherwise, including without limitation, tax liabilities due or to become due,
and whether incurred in respect of or measured by Company's income for any
period prior to February 28, 2004 or arising out of transactions entered into,
or any state of facts existing, prior thereto. Seller represents and warrants
that they do not know or have any grounds to know any basis for the assertion
against Company, as of February 28, 2004, of any material liability of any
nature in any amount not fully reflected or reserved against the Balance Sheet.
Section 2.8 Title to Assets. Company has good and marketable title in
and to all of its owned properties and assets, real or personal, including those
reflected in the Balance Sheet (except as since sold or otherwise disposed of in
the ordinary course of business), subject to no security interests, mortgage,
4
pledge lien, encumbrance or charge, except as shown on the Balance Sheet as
securing specific liabilities set forth therein (with respect to which no
default exists), and except for minor imperfections of title and encumbrances,
if any, which are not substantial in amount, do not materially detract from the
marketability of the properties subject thereto, or materially impair Company's
operations, and have arisen only in the ordinary course of business.
Section 2.9 Contracts. Except as reflected on the financial statement
of Company, and obligations of Company arising in the ordinary course of
business, Company has no contract or commitment extending beyond December 31,
2003 or involving payment by Company of more than Fifty Thousand ($50,000.00)
Dollars except as listed on Exhibit 2.9, other than agreements with DirectTV.
Section 2.10 Accounts Receivable and Payable. Company has delivered to
Buyer a true and complete list, certified by Company's Treasurer, of Company's
accounts receivable and payables at February 28, 2004 as reflected in the
Balance Sheet.
Section 2.11 Conditions of Buildings and Equipment. All Company
equipment is in good condition and repair, normal wear and tear excepted.
Section 2.12 Taxes. All tax and information returns required to
have been filed by Company have been filed with the appropriate authority; and
all federal, state and local taxes (including without limitation income,
franchise, property, sales, use, value-added, withholding, excise, capital or
other tax liabilities), charges, assessments, penalties and interest of Company
("Company Tax Liabilities") required to be paid on or before the date hereof
have been paid. Such returns were correct as filed. No assessments or additional
Company Tax Liabilities have been proposed or threatened against Company or any
of its assets, and Company has not executed any waiver of the statute of
limitations on the assessment or collection of any Company Tax Liabilities.
The Balance Sheet includes full and adequate provision for (i) all Company
Tax Liabilities incurred or accrued as of the date of the Balance Sheet, and
(ii) any and all Company Tax Liabilities which may hereafter be assessed or
imposed on Company with respect to time periods ending on or before the date of
the Balance Sheet. Since the date of the Balance Sheet, and through the
Effective Time of the Merger, Company has not incurred and will not incur any
Company Tax Liabilities other than in the ordinary course of business and not in
excess of amounts incurred in the ordinary course in prior periods.
Copies of Company's federal income tax returns for fiscal years 2002 and
2003 have been delivered to Buyer and all taxes related to said returns have
been paid.
Section 2.13 Litigation. Except as set forth in Exhibit 2.13 hereto,
there are no legal, administrative, arbitration or other proceedings or claims
pending or, to the best of Company's knowledge, threatened against Company, nor
5
is Company subject to any existing judgments. There is no reasonable basis for
any such proceeding or claim against Company. Company is not operating under or
subject to, or in default with respect to, or in default with respect to, any
order, writ, injunction or decree of any court or federal, state, municipal or
other governmental department, commission, board, agency or instrumentality,
domestic or foreign.
Section 2.14 Business Changes. Since February 28, 2004, there has not
been (i) any change in Company's financial condition, assets, liabilities, or
business, other than changes in the ordinary course of business, none of which
has been materially adverse; (ii) any damage, destruction or loss, whether or
not covered by insurance, materially and adversely affecting Company's
properties or business, (iii) any declaration, or setting aside, or any direct
or indirect redemption, purchase, or other acquisition of any such shares; (iv)
any increase in the compensation payable to or to become payable by Company to
any of its employees, or agents, or any bonus payment or arrangement made to or
with any of them; (v) any labor trouble, or any event or condition of any
character, materially and adversely affecting Company's business.
Section 2.15 Directors and Officers; Banks. Company has delivered to
Buyer a true and complete list, as of the date of this Agreement, certified by
Company's Treasurer, showing: (i) the names of all Company's directors and
officers; (ii) the names of all persons whose compensation from Company for 2003
equaled or exceeded Fifty Thousand ($50,000.00) Dollars, together with a
statement of the full amount paid or payable to such person for services
rendered in 2003, and the basis therefore; (iii) the name of each bank in which
Company has an account, or safe deposit bank, and the names of all persons
authorized to draw thereon, or to have access thereto; and (iv) the names of all
persons holding power of attorney from Company, and a summary of the terms
thereof.
Section 2.16 Full Disclosure. No representation or warranty made by
Company under or in connection with this Agreement, no certification furnished
or to be furnished to Buyer pursuant to this Agreement, and no agreements,
instruments or documents delivered by Company to Buyer or its counsel hereunder,
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein not misleading.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF BUYER
Except for exceptions set forth in reasonable detail in Exhibit 3 attached
hereto and referring to the warranty or warranties to which the exception
relates, Buyer represents and warrants to Company as of the date hereof and,
except only as otherwise specifically provided herein, as of the Closing, as if
made and agreed on said date:
Section 3.1 Organization. Buyer is a corporation, duly organized
validly existing, and in good standing under the laws of the State of Minnesota.
Copies of Buyer's Certificate of Incorporation, and all amendments thereof to
6
date, certified by Buyer's Secretary and Buyer's By-Laws as amended to date,
certified by Buyer's Secretary, have been delivered to Company, and are complete
and correct.
Section 3.2 Capitalization. The aggregate number of shares, which
Buyer is authorized to issue, is 50,000,000 shares of common stock, no par
value, of which __________ shares of common stock are issued and outstanding as
of February 28, 2004. All such issued shares have been validly issued, are fully
paid and non-assessable, are free from preemptive rights and were issued in
compliance with all state and federal securities laws.
Section 3.3 Consents; Approvals. The execution, delivery and
performance by Buyer of the Agreement and the consummation of the transactions
contemplated hereby by Buyer require no consent, approval or action, by or in
respect of, notices to, or filing with, any governmental body, agency, official
or authority or any third party.
Section 3.4 Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby and thereby are within Buyer's corporate powers
and have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of Buyer, enforceable against Buyer in
accordance with its terms except as such enforcement may be subject to (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditor's rights generally and (b) general
principles of equity (whether considered in a proceeding in equity or at law).
Section 3.5 Title to Assets. Buyer has good and marketable title in
and to all of its owned properties and assets, real or personal, including those
reflected in the Latest Balance Sheet (except as since sold or otherwise
disposed of in the ordinary course of business), subject to no security
interests, mortgage, pledge lien, encumbrance or charge, except as shown on the
Latest Balance Sheet as securing specific liabilities set forth therein (with
respect to which no default exists), and except for minor imperfections of title
and encumbrances, if any, which are not substantial in amount, do not materially
detract from the marketability of the properties subject thereto, or materially
impair Buyer's operations, and have arisen only in the ordinary course of
business.
Section 3.6 Taxes. All tax and information returns required to have
been filed by Buyer have been filed with the appropriate authority; and all
federal, state and local taxes (including without limitation income, franchise,
property, sales, use, value-added, withholding, excise, capital or other tax
liabilities), charges, assessments, penalties and interest of Buyer ("Buyer Tax
Liabilities") required to be paid on or before the date hereof have been paid.
Such returns were correct as filed. No assessments or additional Buyer Tax
Liabilities have been proposed or threatened against Buyer or any of its assets,
and Buyer has not executed any waiver of the statute of limitations on the
assessment or collection of any Buyer Tax Liabilities.
7
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder, individually and not jointly, hereby represents and warrants
to Buyer that:
Section 4.1 Title to Shares. Such Shareholder is the record and
beneficial owner, and has good and legal title to the shares of Company Common
Stock as set forth opposite his/her name on Schedule 4.3 (a) hereof, free and
clear of any liens.
Section 4.2 Capacity and Authority. Such Shareholder has the capacity
and authority to execute and deliver this Agreement and the other documents
contemplated hereby to which he is a party, and to consummate the transactions
contemplated hereby and thereby, without the necessity of any act or consent of
any other person whomsoever. This Agreement constitutes, and when execute and
delivered at the Closing, each other document contemplated hereby to which such
Shareholder is a party, will constitute the legal, valid and binding obligation
of such Shareholder enforceable against such Shareholder in accordance with its
terms (except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws that affect the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability).
Section 4.3 No Violation or Conflict. The execution, delivery and
performance of this Agreement and Company Documents and the consummation of the
transactions contemplated hereby and thereby, will not (i) with or without the
giving of notice or the passage of time, or both, result in a breach of, or
violate, or be in conflict with, or constitute a default under, or permit the
termination of, or require any consent or authorization under, or cause or
permit acceleration under, any agreement or instrument of any debt or obligation
to which such Shareholder is a party or to or by which such Shareholder or such
Shareholder's respective assets are subject or bound, (ii) require the consent
of any party to any agreement or commitment to which such Shareholder is a
party, or to or by which such Shareholder or such Shareholder's assets are
subject to or bound, except the DirectTV contracts, (iii) result in the creation
or imposition of any Lien upon any of the assets of such Shareholder, or (iv)
violate any law, rule or regulation or any order, judgment, decree or award of
any court, governmental authority or arbitrator to or by which such Shareholder,
or any of such Shareholder's respective assets, is subject or bound.
ARTICLE 5. COVENANTS OF COMPANY
Section 5.1 Regular Course of Business. Except as otherwise consented
to in writing by Buyer during the period commencing on the date hereof and
ending at the Effective Time of the Merger or as contemplated by this Agreement,
Company will carry on its business diligently and in the ordinary course and use
its best efforts to preserve its present business organization intact, keep
available the services of its present employees and executive officers and
preserve its present relationships with persons having business dealings with
it.
8
Section 5.2 Restricted Activities and Transactions. Except as
otherwise consented to in writing by Buyer, from the date hereof and through the
Effective Time of the Merger Company will not:
(a) amend its Articles of Incorporation or By-Laws;
(b) issue, sell or deliver, or agree to issue, sell or deliver, or
grant, or declare any stock dividend or stock split with
respect to, any shares of any class of capital stock of
Company or any securities convertible into any such shares or
convertible into securities in turn so convertible, or any
options, warrants or other rights calling for the issuance,
sale or delivery of any such shares or convertible securities;
(c) mortgage, pledge or xxxxx x xxxx upon any of its assets,
tangible or intangible;
(d) except in the ordinary course of business (and consistent with
past practice), (i) borrow, or agree to borrow, any funds or
voluntarily incur, assume or become subject to, whether
directly or by way of guarantee or otherwise, any obligation
or liability (absolute or contingent), (ii) cancel or agree to
cancel any material debts or claims, except to officers, (iii)
lease, sell or transfer, or grant or agree to grant any
preferential rights to lease or acquire, any of its material
assets, property or rights, or (iv) make or permit any
substantive amendment or termination of any material contract,
agreement, license or other right of which it is a party;
(e) materially amend or terminate any existing employee benefit
plan or adopt any new employee benefit plan;
(f) acquire control or ownership of any other corporation,
association, joint venture, partnership, business trust or
other business entity, or acquire control or ownership of all
or a substantial portion of the assets of the foregoing, or
enter into any agreement providing for any of the foregoing;
(g) directly or indirectly solicit, encourage or authorize any
individual, corporation or entity (including without
limitation its directors, officers, employees, attorneys,
accountants and investment bankers) to directly or indirectly
solicit or encourage any inquiry, proposal, offer or possible
offer from a third party relating to or enter into any
agreement for (i) the purchase of shares of any class of
capital stock of Company or any securities convertible into
any such shares or convertible into securities in turn so
convertible, or the acquisition of any option, warrant or
other right to purchase or otherwise acquire any such shares
or convertible securities, (ii) a tender or exchange offer for
9
any shares of Company Common Stock, (iii) a purchase, lease or
other acquisition of all or a substantial portion of the
assets of Company, any product line or line of business of
Company or any other material asset of Company, or (iv) a
merger, consolidation or other combination involving Company;
or provide any individual, corporation or other entity with
information or assistance or negotiate with any individual,
corporation or entity in furtherance of any such inquiry,
proposal, offer or possible offer. Company will instruct its
agents (including without limitation its directors, officers,
attorneys and accountants) not to take any action which
Company is prohibited from taking pursuant to this Section 5.2
(g).
(h) except in the ordinary course of business, enter into or agree
to enter into any transaction, or incur or discharge any
obligation or liability, material to the business of Company;
(i) redeem, purchase or otherwise acquire any shares of Company
Common Stock or any options or warrants to purchase Company
Common Stock;
(j) except in the ordinary course of business, enter into any
material licensing arrangement or other contract;
(k) settle any pending litigation in a manner that is materially
adverse to Company or commence any material litigation;
(l) except in the ordinary course of business, increase the
compensation payable to any of its employees, or accrue or pay
any bonuses or other payments other than regular compensation
to any employee or consultants, except monies which may be
paid to officers and shareholders to reduce cash and cash
equivalents to the level required by this Agreement; or
(m) take any action which will prevent any of its warranties and
representations herein from being true in all material
respects as of the Effective Time of the Merger.
Section 5.3 No Default or Violation. Except as otherwise consented to
in writing by Buyer, prior to the Effective Time of the Merger Company will use
its best efforts not to (i) violate, or commit a breach of or a default under,
any material contract, obligation or commitment to which it is a party or to
which any of its assets may be subject or (ii) violate any applicable federal or
state statutes, regulations or any injunctions, orders or judgments binding upon
Company.
10
Section 5.4 Reports; Taxes. Except as otherwise consented to in
writing by Buyer, prior to the Effective Time of the Merger:
(a) Company will duly and timely (by the due date or any duly
granted extension thereof) file all reports and returns
required to be filed with federal, state and local
authorities; and
(b) unless it is contesting the same in good faith and, if
appropriate, has established reasonable reserves therefore,
Company will (i) promptly pay all Tax Liabilities indicated by
such returns or otherwise lawfully levied or assessed upon it
or any of its properties and (ii) withhold or collect and pay
to the proper governmental authorities or hold in separate
bank accounts for such payment all taxes and other assessments
required by law to be so withheld or collected.
Section 5.5 Advice of Changes. Company will promptly advise Buyer
orally and in writing of (i) any event occurring subsequent to the date of this
Agreement and prior to the Effective Time of the Merger which would render any
representation or warranty of Company contained in this Agreement, if made on or
as of the date of such event or the Closing Date, untrue, inaccurate or
incomplete in any material respect and (ii) any material adverse change in the
working capital, financial conditions, assets, liabilities (whether absolute,
accrued contingent or otherwise), operating profits, business or prospects of
Company.
Section 5.6 Access to Records and Properties. Buyer may, prior to the
Effective Time of the Merger, through its employees, agents and representatives,
make or cause to be made a detailed review of the business and financial
condition of Company and make or cause to be made such investigation as it deems
necessary or advisable of the properties, assets, businesses, books and records
of Company. Company agrees to assist Buyer in conducting such review and
investigation and will provide, and will cause its independent public
accountants to provide Buyer and its employees, agents and representatives full
access to, and complete information concerning all aspects of the businesses of
Company, including its books, records (including tax returns filed for in
preparation), projections, personnel and premises, the audit work papers and
other records of its independent public accountants and any documents (including
any documents filed on a confidential basis) included in any report filed with
any governmental agency. Neither any investigation by Buyer nor the receipt by
Buyer of any data or information from Company nor any knowledge acquired by
Buyer shall affect the right of Buyer to terminate this Agreement as provided in
Article 11 hereof or qualify, limit or otherwise restrict any representation or
warranty made by Company hereunder.
Section 5.7 Best Efforts. Company shall use its best efforts (a) to
cause to be fulfilled and satisfied all of the conditions to the closing to be
fulfilled and satisfied by it, (b) to cause to be performed all of the matters
required of it at or prior to the Closing and (c) to achieve full compliance
with all applicable General Laws. Company shall use its best efforts to make all
11
of its warranties and representations contained in this Agreement (except those
representations and warranties which are expressly limited to a state of facts
existing at a time prior to the Closing) true and correct on all material
respects as at the Closing, with the same effect as if the same had been made
and this Agreement had been dated as at the Closing.
Section 5.8 Maintenance of Assets. Company shall keep the property and
assets used in its businesses in good order, repair and operating condition.
Section 5.9 Shareholder Meeting. Company shall call a special meeting
of its Shareholders to be held as soon as practicable for the purpose of voting
upon the transactions contemplated by this Agreement, or shall have its
shareholders act by unanimous written consent. In connection with any such
meeting or action, the members of the Board of Directors shall, subject to the
exercise of their fiduciary duties, recommend approval of such transactions, use
their best efforts to obtain such Shareholder approval and vote their shares of
Company Common Stock in favor of the Merger.
Section 5.10 Merger. Company shall take all reasonable steps necessary
for the Merger to qualify as a reorganization within the meaning of Section 368
of the Code, and shall omit from taking any action which will preclude such
accounting and/or tax treatment.
ARTICLE 6. COVENANTS OF BUYER
Section 6.1 Best Efforts. Subject to the fiduciary duties of its Board
of Directors, Buyer shall use its best efforts (a) to cause to be fulfilled and
satisfied all of the conditions to the Closing to be fulfilled and satisfied by
it, and (b) to cause to be performed all of the matters required of it at or
prior to the Closing. Buyer shall use its best efforts to make all of its
warranties and representations contained in this Agreement (except those
representations and warranties which are expressly limited to a state of facts
existing at a time prior to the Closing) true and correct in all material
respects as at the Closing, with the same effect as if the same had been made
and this Agreement had been dated as at the Closing.
Section 6.2 Consents, Approvals and Filings. Buyer will use its best
efforts to obtain as promptly as possible all necessary approvals,
authorizations, consents, licenses, clearances or orders of governmental and
regulatory authorities required in order for Buyer to perform its obligations
hereunder.
Section 6.3 Advice of Changes. Buyer will promptly advise Company
orally and in writing of (i) any event occurring subsequent to the date of this
Agreement which would render any representation or warranty of Buyer contained
in this Agreement, if made on or as of the date of such Agreement or the Closing
Date, untrue, inaccurate or incomplete in any material respect and (ii) any
material adverse change in the working capital, financial condition, assets,
liabilities (whether absolute, accrued, contingent or otherwise), operating
profits, business or prospects of Buyer.
12
Section 6.4 No Default or Violation. Except as otherwise consented to
in writing by Buyer, prior to the Effective Time of the Merger, Buyer will use
its best efforts not to (i) violate, or commit a breach of or a default under,
any material contract, obligation or commitment to which it is a party or to
which any of its assets may be subject or (ii) violate any applicable federal or
state statutes, regulations or any injunctions, orders or judgments binding upon
Buyer.
Section 6.5 Reports; Taxes. Except as otherwise consented to in
writing by Company, prior to the Effective Time of the Merger:
(a) Buyer will duly and timely (by the due date or any duly
granted extension thereof) file all reports and returns
required to be filed with federal, state and local
authorities; and
(b) unless it is contesting the same in good faith and, if
appropriate, has established reasonable reserves therefore,
Buyer will (i) promptly pay all Tax Liabilities indicated by
such returns or otherwise lawfully levied or assessed upon it
or any of its properties and (ii) withhold or collect and pay
to the proper governmental authorities or hold in separate
bank accounts for such payment all taxes and other assessments
required by law to be so withheld or collected.
Section 6.6 Access to Records and Properties. Company may, prior to
the Effective Time of the Merger, through its employees, agents and
representatives, make or cause to be made a detailed review of the business and
financial condition of Buyer and make or cause to be made such investigation as
it deems necessary or advisable of the properties, assets, businesses, books and
records of Buyer. Buyer agrees to assist Company in conducting such review and
investigation and will provide, and will cause its independent public
accountants to provide, Company and its employees, agents and representatives
full access to, and complete information concerning, all aspects of the
businesses of Buyer, including its books, records (including tax returns filed
for in preparation), projections, personnel and premises, the audit work papers
and other records of its independent public accountants and any documents
(including any documents filed on a confidential basis) included in any report
filed with any governmental agency. Neither any investigation by Company nor the
receipt by Company of any data or information from Buyer nor any knowledge
acquired by Company shall affect the right of Company to terminate this
Agreement as provided in Article 11 hereof or qualify, limit or otherwise
restrict any representation or warranty made by Purchase hereunder.
Section 6.7 Maintenance of Assets. Buyer shall keep the property and
assets used in its businesses in good order, repair and operating condition.
13
Section 6.8 Merger. Buyer shall take all reasonable steps necessary
for the Merger to qualify as a reorganization within the meaning of Section 368
of the code, and shall omit from taking any action which will preclude such
accounting and/or tax treatment.
Section 6.9 Maintain Trading Status. Buyer shall take all action
necessary to maintain its current or higher trading status.
ARTICLE 7. PURCHASER SHARES AND REGISTRATIONS
Section 7.1 Shares Not Registered; Investment Intent. Buyer Common
Shares to be issued in the Merger have not been registered under the Securities
Act of 1933 (the "Securities Act") or any state securities laws.
Such Buyer Common Shares have not been registered under the Securities Act
or any state securities laws by reason of their contemplated issuance in
transactions exempt from the registration requirements of the Securities Act.
Buyer's reliance upon these exemptions is predicated in part upon the
understanding that each recipient of Buyer Common Shares, whether through the
exchange of stock in the Merger (hereinafter a "Recipient") understands and
acknowledges that Buyer Common Shares will be acquired for each Recipient's own
account, and not with a view to, or for resale in connection with any
distribution or public offering thereof. Buyer Common Shares may not be
transferred or resold without (i) registration under the Securities Act or any
applicable state securities laws, or (ii) an exemption from the registration
requirements of the Securities Act and applicable state securities laws.
Although Rule 144 promulgated under the Securities Act by the Securities &
Exchange Commission (the "Commission") may permit sales at a future date
provided said Rule remains in effect, in any event each Recipient may not sell
any securities pursuant to Rule 144 prior to the expiration of a one-year period
after such Recipient has acquired such securities, unless otherwise provided by
Buyers. Any sales pursuant to Rule 144 can be made only in full compliance with
the provisions of Rule 144.
Buyer has not agreed to, and has no obligation to, file a registration
statement to permit sale of Buyer Common Shares received under or in connection
with this Agreement. However, if within one year from this Agreement's date,
VICOM, Incorporated performs an additional SEC registration of stock shares due
to a subsequent financing and the terms of said financing do not expressly
prohibit "piggyback registration rights," then VICOM, Incorporated will add the
Minnesota Digital Universe, Inc. shares to said registration.
At its election, Buyer may require that each Recipient of Buyer Common
Shares which have not been registered execute and deliver to Buyer an investment
letter confirming that such Buyer Common Shares are being acquired for the
Recipient's own account and not with a view to, or for resale in connection
with, any distribution or public offering thereof, and confirming that Buyer
Common Shares cannot be transferred or resold without (i) registration under the
14
Securities Act or any applicable state securities laws, or (ii) an exemption
from the requirements of the Securities Act and applicable state securities
laws.
With respect to any registration of shares or other mechanism of
distribution pursuant to the Agreement, Buyer shall bear the following fees,
costs and expenses: all registration, filing and NASD fees, printing expenses,
fees and disbursements of counsel and accountants for Buyer, fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if Buyer and/or selling security holder are required to bear such fees and
disbursements), all internal company expenses, the premiums and other costs of
policies of insurance against liability arising out of the public offering, and
all legal fees and disbursements and other expenses of complying with state
securities of blue sky laws of any jurisdiction in which the securities to be
offered are to be registered or qualified. Fees and disbursements of counsel and
accountants for Sellers, underwriting discounts and commissions and transfer
taxes for Seller and any other expenses incurred by Sellers not expressly
included above shall be borne by Sellers.
ARTICLE 8. CONDITIONS TO OBLIGATION OF BUYER AND ACQUISITION SUB
The obligations of Buyer and Acquisition Sub under this Agreement to consummate
the Merger shall be subject to the satisfaction or to the waiver by them in the
manner contemplated by Article 9 hereof, on or before the Closing Date, of the
following conditions:
Section 8.1 Representations and Warranties True. The representations
and warranties of Company contained in this Agreement shall be in all material
respects true and accurate as of the date when made, and, except as to
representations and warranties which are expressly limited to a state of facts
existing at a time prior to the Closing Date, shall be in all material respects
true and accurate at and as of the Closing Date as if made on the Closing Date.
Section 8.2 Performance of Covenants. Company shall have performed and
complied in all material respects with each and every covenant, agreement and
condition required by this Agreement to be performed or complied with by it or
them prior to or on the Closing Date.
Section 8.3 No Governmental or Other Proceeding or Litigation. No
order of any court or administrative agency shall be in effect which restrains
or prohibits any transaction contemplated hereby or which would limit or affect
Buyer's ownership of Company; no suit, action (other than the exercise of
dissenters' rights), investigation, inquiry or proceeding by any government body
or other person or entity shall be pending or threatened against Buyer,
Acquisition Sub or Company, which challenges the validity or legality, or seeks
to restrain the consummation of the transactions contemplated hereby or which
seeks to limit or otherwise affect Buyer's ownership of Company or the Surviving
Corporation; and no written advice shall have been received by Buyer,
Acquisition Sub, Company or their respective counsel from any governmental body,
and remain in effect, stating that an action or proceeding will, if the Merger
15
is consummated or sought to be consummated, be filed seeking to invalidate or
restrain the Merger or limit or otherwise affect Buyer's ownership of Company or
the Surviving Corporation.
Section 8.4 Approvals and Consents. The approval of the shareholders
of Company and all approvals of applications to public authorities, federal,
state, or local, if any, and all consents or approvals of any non-government
persons including but not limited to DirecTV, the granting of which is necessary
for the consummation of the Merger or for preventing the termination or material
breach of any right, privilege, license or agreement of Buyer or Company which
is material to the business of Buyer or Company, or for preventing any material
loss or disadvantage to Buyer or Company, by reason of the Merger, shall have
been obtained; and no such consents or approvals shall have imposed a condition
to such consent or approval which in the opinion of Buyer is unduly burdensome
to the consolidated financial condition or operations of Buyer or to Company's
business.
Section 8.5 Certificates. Company shall have furnished Buyer with a
certificate of Company, in form and substance satisfactory to Buyer, signed by
Company's President, to the effect that Company's representations and warranties
contained in this Agreement are true and correct in all material respects on and
as of the Closing Date as though such representations and warranties were made
at such time (except as contemplated in Section 8.1 hereof) and that Company has
performed and complied in all material respects with all terms, covenants and
provisions of this Agreement required to be performed or complied with by it
prior to or on the Closing Date.
Section 8.6 Operating Agreement and Default. Buyer will enter into a
sixty (60) month Operating Agreement with Pace, attached as Exhibit 8.6, to
manage Acquisition Sub's day to day business affairs. In the event of Buyer's
default in making any note payment when due, Pace, pursuant to said Operating
Agreement, shall have the right and obligation to apply Acquisition Sub's
monthly profits to pay the note.
Section 8.7 Closing Documentation. Buyer shall have received such
additional documentation at the Closing as Buyer and its counsel may reasonably
require to evidence compliance by Company with all of its obligations hereunder.
Section 8.8 Compensation Agreement. An Agreement will be entered into
with Xxxxxxx X. Deutsch, Xxxx X. Xxxxxxx, and Xxxx Xxxxxx for incentive-based
compensation based on net operating income in excess of One Million Four Hundred
Thousand ($1,400,000.00) Dollars annually, and/or an increase and rights of
entry beyond the seventy-two (72) month threshold of current contacts, such
incentive compensation and agreement to be as set forth in Exhibit 8.8 hereto.
16
ARTICLE 9. CONDITIONS TO OBLIGATIONS OF COMPANY
The obligations of Company under this Agreement to consummate the Merger shall
be subject to the satisfaction, on or before the Closing Date, of the following
conditions:
Section 9.1 Representations and Warranties True. The representations
and warranties of Buyer contained in this Agreement shall be in all material
respects true and accurate as of the date when made, and, except as to
representations and warranties which are expressly limited to a state of facts
existing at a time prior to the Closing Date, shall be in all material respects
true and accurate at and as of the Closing Date as if made on the Closing Date.
Section 9.2 Performance of Covenants. Buyer and Acquisition Sub shall
have performed and complied in all material respects with each and every
covenant, agreement and condition required by this Agreement to be performed or
complied with by them prior to or on the Closing Date.
Section 9.3 No Governmental or Other Proceedings or Litigation. No
order of any court or administrative agency shall be in effect which restrains
or prohibits any transaction contemplated hereby or which would limit or affect
Buyer's ownership of Company; no suit, action (other than the exercise of
dissenters' rights), investigation, inquiry or proceeding by any governmental
body or other person or entity shall be pending or threatened against Buyer,
Acquisition Sub or Company, which challenges the validity or legality, or seeks
to restrain the consummation of the transactions contemplated hereby or which
seeks to limit or otherwise effect Buyer's ownership of Company and no written
advice shall have been received by Buyer, Acquisition Sub, Company or their
respective counsel from any governmental body, and remain in effect, stating
that an action or proceeding will, if the Merger is consummated or sought to be
consummated, be filed seeking to invalidate or restrain the Merger or limit or
otherwise affect Buyer's ownership of Company.
Section 9.4 Approvals and Consents. Acquisition Sub's Shareholders
shall have approved the Merger by the requisite vote under the Company's
Articles of Incorporation, and all approvals of applications to public
authorities, federal, state or local, the granting of which is necessary for the
consummation of the Merger, shall have been obtained.
Section 9.5 Delivery of Payment. Buyer shall deliver at Closing Buyer
Common Shares, cash payment and Note as described in Section 1.4 of this
Agreement.
Section 9.6 Certificates. Buyer and Acquisition Sub shall have
furnished Company with certificates of Buyer and Acquisition Sub, respectively
in form and substance satisfactory to Company, signed by their respective
presidents or executive vice presidents, to the effect that the respective
representations and warranties of such corporations contained in this Agreement
are true and correct in all material respects on and as of the Closing Date as
though such representations and warranties were made at such time (except as
contemplated in Section 9.1 hereof) and that such corporations have respectively
17
performed and complied in all material respects with all terms, covenants and
provisions of this Agreement required to be performed or complied with by them
prior to or on the Closing Date.
Section 9.7 Closing Documentation. Company shall have received such
additional documentation at the Closing as Company and its counsel may
reasonably require to evidence compliance by Buyer and Acquisition Sub with all
of their obligations under this Agreement.
ARTICLE 10. CLOSING; CLOSING DATE
Unless this Agreement shall have been terminated and the Merger herein
contemplated shall have been abandoned and subject to compliance with the
conditions hereto, a closing (the "Closing") will be held on April _____, 2004,
or on such other date which is mutually acceptable to Buyer and Company at the
offices of Company's counsel, commencing at 11:00 AM. At such time and place,
the documents referred to herein will be exchanged by the parties and,
immediately thereafter, the Articles of Merger will be filed by Acquisition Sub
and Company with the Secretary of State of the State of Minnesota; provided,
however, that if any of the conditions provided for herein shall not have been
met or waived by the date on which the Closing is otherwise scheduled, then,
subject to the terms hereof, the party to this Agreement which is unable to meet
such condition or conditions shall be entitled (provided that such party is
acting in good faith) to postpone the Closing for a reasonable period of time by
notice to the other parties until such condition or conditions shall have been
met (which such notifying party will seek to cause to happen at the earliest
practicable date) or waived, but not for a period of more than sixty (60) days.
The date on which the Closing occurs is hereinafter referred to as the Closing
Date.
ARTICLE 11. TERMINATION
Section 11.1 Termination and Abandonment. This Agreement may be
terminated and the Merger may be abandoned before the Effective Time of the
Merger, notwithstanding any approval and adoption of this Agreement by the
shareholders of Company or Acquisition Sub:
(a) by mutual consent of the Board of Directors of Buyer,
Acquisition Sub and Company; or
(b) by Buyer or Company, if the shareholders of Company fail to
approve the Merger at the meeting of such Shareholders called
to vote upon the Merger; or
(c) by Buyer if there has been a material misrepresentation or
material breach on the part of Company in the representations,
warranties or covenants of Company set forth herein, or if
there has been any material failure on the part of Company to
comply with its obligations hereunder, or by Company if there
18
has been a material misrepresentation or material breach on
the part of Buyer or Acquisition Sub in the representations,
warranties or covenants of Buyer or Acquisition Sub set forth
herein, or if there has been any material failure on the part
of Buyer or Acquisition Sub to comply with their obligations
hereunder; or
(d) by the Board of Directors of either Company or Buyer, at its
discretion, if the Merger is not effective by April ______,
2004, except that a party whose breach of this Agreement has
caused a delay in the consummation of the Merger shall not be
entitled to terminate this Agreement pursuant to this Section
(d).
Section 11.2 Termination Procedures. The power of termination provided
for by this Article 11 may be exercised for Buyer, Acquisition Sub or Company
only by its respective Board of Directors and will be effective only after
written notice thereof, signed on behalf of the party for which it is given by
its Chief Executive Officer in the case of Buyer, or its President in the case
of Company, or other duly authorized officer, shall have been given to the
other. If this Agreement is terminated in accordance with this Article 11, the
Merger shall be abandoned without further action by Company, Buyer, and
Acquisition Sub.
Section 11.3 Liability Upon Termination. In the event of termination
and abandonment of the Merger pursuant to this Article 11, no party hereto shall
have any liability or further obligation to any other party hereto except a
party that is in material breach of its representations, warranties or covenants
hereunder shall be liable for damages incurred by the other parties hereto to
the extent that such damages are proximately caused by such breach.
ARTICLE 12. INDEMNIFICATION
Section 12.1 INDEMNIFICATION BY COMPANY AND SELLERS. Sellers and,
prior to Closing, Company, each, jointly and severally, hereby agree that,
notwithstanding the Closing, the delivery of instruments of conveyance, and
regardless of any investigation at any time made by or on behalf of any party
hereto or of any information any party hereto may have in respect thereof, they,
or after Closing, Sellers, will save, indemnify and hold Buyer and Acquisition
Sub and, after Closing, the Surviving Corporation, (hereinafter, collectively,
"the Indemnitees") harmless from and against any and all liabilities, losses,
damages, claims, deficiencies, costs and expenses (including, without
limitation, reasonable attorney fees and other costs and expenses incident to
any suit, action or proceeding) arising out of or resulting from and will pay to
the Indemnitees the amount of damages suffered thereby together with any amount
which they or any of them may pay or become obligated to pay on account of:
(a) the breach or inaccuracy of any warranty or representation by
Company and Sellers herein or any misstatement of a fact or
facts herein made by Company or the Principal Shareholder;
19
(b) the failure by Company or Sellers to state or disclose a
material fact herein necessary in order to make the facts
herein stated or disclosed not misleading;
(c) any failure of Company or Sellers to perform or observe any
term, provision, covenant or condition hereunder on the part
of any of them to be performed or observed; or
(d) any act performed, transaction entered into or state of facts
suffered to exist by Company or Sellers in violation of the
terms of this Agreement.
(e) any failure of Company and Sellers to perform or observe any
material term, provision, covenant or condition hereunder on
the part of Company and Sellers to be performed or observed.
In the event of any claim by Indemnitees under this Section 12.1,
Indemnitees shall be entitled to exercise all remedies provided by
law and/or equity with respect thereto. Indemnitee shall not have
the right to exercise any set off under the Promissory Notes given
to Shareholders.
If the Closing hereunder is held, Company and Surviving Corporation
will have no liability to any party with respect to indemnification
claims by the Indemnitees.
Section 12.2 LIMITATIONS. The indemnification obligations of Sellers
are subject to each of the following limitations, understandings and
qualifications:
(a) Each of the representations and warranties made by Company and
Shareholders in this Agreement shall survive for a period of
one year after the Closing Date. After the expiration date of
any representations and warranties, no claim for
indemnification based on such representations or warranties
may be asserted, except that claims first asserted in writing
with reasonable detail before the expiration date may be
pursued until they are finally resolved.
(b) The total amount recoverable from Sellers, in the aggregate,
for all claims asserted, shall not exceed One Million
($1,000,000.00) Dollars.
The foregoing limitations shall apply to any claims made by
Purchaser under or in connection with this Agreement regardless of
whether such claims are characterized as indemnification claims
under Article 12.
20
ARTICLE 13. MISCELLANEOUS PROVISIONS
Section 13.1 Amendment and Modification. To the fullest extent
permitted by applicable law, this Agreement may be amended, modified and
supplemented with respect to any of the terms contained herein by mutual consent
of the respective Boards of Directors of Company, Buyer and Acquisition Sub, or
by their respective officers duly authorized by such Boards of Directors, by an
appropriate written instrument executed at any time prior to the Effective Time
of the Merger; provided, however, that following an affirmative vote at the
Shareholders' meeting referred to herein, this Agreement may not be amended to
reduce the consideration payable in the Merger in respect of shares of Company
Common Stock without obtaining the approval of Company's Shareholders in the
manner required by law.
Section 13.2 Waiver of Compliance. To the fullest extent permitted by
law, each of Buyer, Acquisition Sub, and Company may, pursuant to action by its
respective Board of Directors, or its respective officers duly authorized by its
Board of Directors, by an instrument in writing extend the time for or waive the
performance of any of the obligations of the other or waive compliance by other
with any of the covenants, or waive any of the conditions of its obligations,
contained herein; provided, however, that the obtaining of the approval of the
Shareholders referred to herein shall not be waivable. No such extension of time
or waiver shall operate as a waiver of, or estoppel, with respect to any
subsequent or other failure.
Section 13.3 Survival of Representations, Warranties and Covenants.
The respective representations, warranties and covenants of each party hereto
contained herein shall not be deemed to be waived or otherwise affected by any
investigation made by the other parties hereto. The representations and
warranties of Buyer, Acquisition Sub, and Company contained herein or in any
document furnished pursuant hereto shall survive the Merger.
Section 13.4 No Third Party Rights. Except as otherwise provided in
this Agreement, nothing herein expressed or implied is intended, nor shall be
construed to confer upon or give any person, firm or corporation, other than
Buyer, Acquisition Sub, Company and their respective security holders, any
rights or remedies under or by reason of this Agreement.
Section 13.5 Confidentiality. Buyer and Company shall honor the
confidentiality agreements previously delivered by each such party to the other
with respect to matters pertaining to the Merger.
Section 13.6 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or when mailed by
registered or certified mail, postage prepaid, or when given by telex or
facsimile transmission (promptly confirmed in writing), as follows:
21
(a) IF TO COMPANY: Minnesota Digital Universe, Inc.
Attention: Xxxxxxx X. Deutsch
000 0xx Xxxxxx Xxxxxxxxx
P. O. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
WITH A COPY TO: Xxxxxx X. Xxxxxx
Xxxxxx & Xxxxxx, P.A.
P. O. Xxx 000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Or to such other person as Company shall designate in
writing, such writing to be delivered to Buyer in the
manner provided in this Section 13.6; and
(b) IF TO BUYER OR VICOM, Incorporated
ACQUISITION SUB Attention: Xxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxx 00000
WITH A COPY TO: VICOM, Incorporated
Attention: Xxxxxx Xxxx
0000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxx 00000
Or to such other person as Buyer shall designate in
writing, such writing to be delivered to Company in
the manner provided in this Section 13.6.
Section 13.7 Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties; provided, however, that Acquisition Sub may assign this Agreement and
its rights, interests and obligations hereunder to another directly or
indirectly wholly-owned subsidiary of Buyer without consent of Company.
Section 13.8 Governing Laws. This Agreement and the legal
relations between the parties hereto shall be governed by and construed in
accordance with the laws of the State of Minnesota.
Section 13.9 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts and by the different parties hereto
on separate counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
22
Section 13.10 Headings and References. The headings of the Sections
and Articles of this Agreement are inserted for convenience of reference only
and shall not constitute a part hereof. All references herein to Sections and
Articles are to section and articles of this Agreement, unless otherwise
indicated.
Section 13.11 Entire Agreement. This Agreement (including the
Appendixes hereto and the documents referred to herein, all of which form a part
thereof) and any confidentiality agreements delivered by Buyer and Company to
each other contain the entire understanding of the parties hereto in respect of
the subject matter contained herein and supersede all prior agreements and
understandings between the parties with respect to such subject matter.
Section 13.12 Expenses. Whether or not the transactions
contemplated hereby are consummated, each of the parties hereto shall pay its
own expenses incurred in connection with the authorization, preparation,
execution or performance of this Agreement and all transactions contemplated
hereby, including without limitation all fees and expenses of agents,
representatives, counsel and accountants.
Section 13.13 Publicity. Except as otherwise required by law, so
long as this Agreement is in effect, neither Buyer nor Company shall issue or
cause the publication of any press release with respect to the transactions
contemplated by this Agreement without the consent of the other party, which
consent shall not be unreasonably withheld or delayed.
Section 13.14 Effective Date of Agreement. To the extent
permissible by the accounting rules governing financial reporting, this
Agreement will be deemed effective on April ______, 2004 for all purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date and year first written above.
COMPANY:
Minnesota Digital Universe, Inc.,
a Minnesota corporation
By:____________________________________
Xxxxxxx X. Deutsch,
Chief Executive Officer
23
SHAREHOLDERS/SELLERS:
_______________________________________
Xxxxxxx X. Deutsch
_______________________________________
Xxxx X. Xxxxxxx
_______________________________________
Xxxx Xxxxxx
BUYER:
VICOM, Incorporated,
a Minnesota corporation
By:____________________________________
___________________,
Chief Executive Officer
ACQUISITION SUB
a Minnesota corporation
By:____________________________________
___________________,
Chief Executive Officer
24
EXHIBIT 1.1
PLAN OF MERGER
EXHIBIT 1.4(a)(i)
PROMISSORY NOTE - XXXXXXX X. DEUTSCH
EXHIBIT 1.4(a)(i)
PROMISSORY NOTE - XXXX X. XXXXXXX
EXHIBIT 1.4(a)(i)
PROMISSORY NOTE - XXXX XXXXXX
EXHIBIT 1.5
EXCLUDED ASSETS
EXHIBIT 2
EXCEPTIONS TO WARRANTY OR WARRANTIES OF COMPANY
EXHIBIT 2.9
CONTRACTS
EXHIBIT 3
EXCEPTIONS TO WARRANTY OR WARRANTIES OF BUYER
None
EXHIBIT 2.13
LITIGATION
EXHIBIT 8.6
OPERATING AGREEMENT
