EXHIBIT 2.10
TRANSFER AGREEMENT
BY AND AMONG
PREMIERE TECHNOLOGIES, INC.,
VT OF OHIO, INC.
AND
OWNERS OF VT OF OHIO, INC.
DATED AS OF APRIL 2, 1997
TRANSFER AGREEMENT
------------------
THIS TRANSFER AGREEMENT (this "Agreement") is entered into as of April 2,
1997 by and among Premiere Technologies, Inc., a Georgia corporation
("Premiere"), VT of Ohio, Inc., an Ohio corporation (the "Company"), and those
parties listed on the signature pages hereto as the owners of the Company (the
"Owners").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, this Agreement provides for the acquisition of the Company by
Premiere pursuant to the merger of the Company with and into a wholly owned
subsidiary of Premiere ("Merger Corp"), with Merger Corp as the surviving
corporation in such merger (the "Merger");
WHEREAS, the respective Boards of Directors of Premiere and the Company have
approved the terms and conditions set forth in this Agreement;
WHEREAS, the Owners own one hundred percent (100%) of the equity interests in
the Company;
WHEREAS, this Agreement provides for all of the Owners' equity interests in
the Company to be converted into the right to receive shares of Premiere Stock
in connection with the Merger;
WHEREAS, it is also the intention of the parties hereto that the form of the
transactions with respect to the Company, Premiere and Merger Corp shall qualify
as a "reorganization" within the meaning of Section 368(a) of the Code for
federal income tax purposes; and
WHEREAS, it is also the intention of the parties hereto that the business
combination to be effected by the Merger be accounted for as a pooling of
interests.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
I. UNIFORM TERMS AND CONDITIONS
--------------------------------
1.1 Incorporation by Reference. The Uniform Terms and Conditions attached
--------------------------
hereto as Exhibit A (the "Uniform Terms") are hereby made a part of and
---------
incorporated herein as if fully restated herein. Capitalized terms not defined
herein shall have the meanings provided in the Uniform Terms.
II. TERMS OF MERGER
--------------------
2.1 The Merger.
----------
(a) Subject to the terms and conditions of this Agreement, at the
Effective Time, the Company shall be merged with and into Merger Corp in
accordance with the provisions of the business corporation act under the laws of
the State of Ohio (the "Ohio Act") and the laws of the State of Georgia (the
"Georgia Act"). Merger Corp shall be the surviving corporation resulting from
the Merger, shall thereafter conduct the business and operations of the Company
as a wholly owned subsidiary of Premiere and shall continue to be governed by
the laws of the State of Georgia. The Merger shall be consummated pursuant to
the terms of this Agreement, which has been approved and adopted by the
respective boards of directors of Premiere, Merger Corp and the Company.
(b) Subject to the provisions of this Agreement, the parties shall
file a Certificate of Merger executed in accordance with the relevant provisions
of the Ohio Act and a Certificate of Merger executed in accordance with the
relevant provisions of the Georgia Act and shall make all other filings or
recordings required under each such Act as soon as practicable on or after the
Closing Date. The Merger and other transactions contemplated by this Agreement
shall become effective on the date and at the time the Certificate of Merger
reflecting the Merger becomes effective with the Secretary of State of the State
of Ohio and the Certificate of Merger reflecting the Merger becomes effective
with the Secretary of State of the State of Georgia (the "Effective Time").
(c) The charter and Bylaws of Merger Corp in effect immediately prior
to the Effective Time shall be the charter and Bylaws of the surviving
corporation until otherwise amended or repealed, the directors of Merger Corp
immediately prior to the Effective Time shall serve as the directors of the
surviving corporation from and after the Effective Time, and the officers of
Merger Corp in office immediately prior to the Effective Time shall serve as the
officers of the surviving corporation from and after the Effective Time.
2.2 Conversion of Shares. Subject to the provisions of this Section 2.2,
--------------------
and in consideration for the transactions contemplated hereby, at the Effective
Time, by virtue of the Merger and without any action on the part of the parties
hereto or the shareholders of any of the parties hereto, the shares of the
constituent corporations of the Merger shall be converted as follows:
(a) Each share of Premiere Stock and each share of Merger Corp common
stock issued and outstanding at the Effective Time shall remain issued and
outstanding after the Effective Time.
(b) All of the shares of the capital stock, no par value per share,
of the Company ("Company Stock") (excluding treasury shares and excluding shares
held by shareholders who perfect their statutory dissenters' rights as provided
in Section 2.4 of this Agreement) issued and outstanding at the Effective Time
shall cease to be outstanding and shall be converted into and exchanged for the
right to receive:
(i) the number of shares of Premiere Stock determined by
dividing (A) the product of .9 multiplied by the Company
Purchase Price, by (B) the Average Closing Price;
-2-
(ii) the number of shares of Premiere Stock determined by
dividing (A) the product of .1 multiplied by the Company
Purchase Price, by (B) the Average Closing Price (the
"General Escrow Amount"); and
(iii) the number of shares of Premiere Stock received by the
Company pursuant to the Agreement and Plan of Merger of
even date herewith among Premiere, PTEK Merger Corporation,
Voice-Tel Enterprises, Inc. ("VTE") and the Stockholders of
VTE (the "VTE Merger Agreement") including those held in
escrow pursuant to the General Escrow Agreement or the
Specific Escrow Agreement (as defined in the VTE Merger
Agreement); provided, however, that the number of shares of
Premiere Stock held in escrow pursuant to the VTE Merger
Agreement shall be held in escrow pursuant to the terms and
conditions of the Escrow Agreement described in Section
2.2(d) below.
all as determined in accordance with Section 2.3 below (collectively, the
"Consideration"). Subject to Section 2.2(d) below, the Consideration shall be
issuable to the Owners pro rata in accordance with their ownership of Company
Common Stock as of the Closing Date pursuant to Section 2.6, which ownership the
Owners represent has not been adjusted in contemplation of the transactions
described herein.
(c) Any and all shares of Company Common Stock held as treasury
shares by the Company shall be canceled and retired at the Effective Time, and
no consideration shall be issued in exchange therefor.
(d) Upon consummation of the Merger, the Owners shall deliver the
General Escrow Amount in negotiable form to the Escrow Agent to be held in
escrow pursuant to the terms and conditions of the Escrow Agreement in the form
attached hereto as Exhibit B, which shall be executed and delivered by Premiere
---------
and the Owners at the Closing.
2.3 Calculation of Consideration. For purposes of determining the
----------------------------
Consideration issuable to the Owners pursuant to Section 2.2(b) above, the
following shall apply:
(a) "Average Closing Price" shall be the average of the daily last
sale prices of Premiere Stock for the period consisting of twenty (20)
consecutive trading days on which such shares are actually traded on the Nasdaq
National Market (as reported by the Wall Street Journal or, if not reported
thereby, any other authoritative source selected by Premiere) ending at the
close of trading on the first trading day immediately preceding the Closing;
provided, however, that the Average Closing Price shall not be less than $22.50
-------- -------
nor more than $30.50 (collectively, $22.50 and $30.50 are referred to as the
"Average Closing Price Limitations").
(b) "Company Purchase Price" shall be the sum of (i) (A) the amount
determined by multiplying the Normalized EBITDA of the Company by the EBITDA
Stock Multiple , plus (B) the amount of cash reflected on the Closing Date
----
Balance Sheet of the Company, minus (C) the aggregate amount of principal and
-----
accrued and unpaid interest under funded debt and capital lease obligations
reflected on the Closing Date Balance Sheet of the Company, minus (D) the amount
-----
by which the Transaction Costs exceed the Deductible Amount, plus (ii) forty
----
percent (40%) of the
-3-
sum of (A) the amount determined by multiplying the Normalized EBITDA of
Columbus Voice Partners, an Ohio general partnership ("CVP") by the EBITDA Stock
Multiple, plus (B) the amount of cash reflected on the Closing Date Balance
Sheet of CVP, and minus (C) the amount of principal and accrued and unpaid
-----
interest under funded debt and capital lease obligations reflected on the
Closing Date Balance Sheet of CVP, plus (iii) sixty six and two thirds percent
----
(66.7%) of the sum of (A) the amount determined by multiplying the 1996 Revenues
of Voice Partners Company, an Ohio general partnership ("VPC"), by the Revenue
Stock Multiple, plus (B) the amount of cash reflected on the Closing Date
----
Balance Sheet of VPC, and minus (C) the amount of principal and accrued and
-----
unpaid interest under funded debt and capital lease obligations reflected on the
Closing Date Balance Sheet of VPC, and plus (iv) seventeen percent (17%) of the
----
sum of (A) the amount determined by multiplying the 1996 Revenues of Voice
Partners of Greater Mahoning Valley, an Ohio limited partnership ("VPG"), by the
Revenue Stock Multiple, plus (B) the amount of cash reflected on the Closing
----
Date Balance Sheet of VPG, and minus (C) the amount of principal and accrued and
-----
unpaid interest under funded debt and capital lease obligations reflected on the
Closing Date Balance Sheet of VPG.
(c) "Deductible Amount" shall be an amount equal to $5,000.00.
(d) "Normalized EBITDA" of the Company shall be an amount equal to
$71,109.00; and the "Normalized EBITDA" of CVP shall be an amount equal to
$367,284.00.
(e) "Registration Right" shall mean the right to include Premiere
Stock issued in the Merger in a registration statement which Premiere intends to
file promptly after the end of the first full fiscal quarter of Premiere
containing the period of post-Merger combined operations required by ASRs 130
and 135, pursuant to the terms and conditions of the Stock Restriction and
Registration Rights Agreement in the form attached hereto as of Exhibit C (the
---------
"Registration Rights Agreement") .
(f) "EBITDA Stock Multiple" shall be six (6); and "Revenue Stock
Multiple" shall be 1.7.
(g) "Transaction Costs" shall mean all amounts incurred but unpaid by
the Company in connection with (i) the negotiation and preparation of this
Agreement, (ii) the preparation of the Financial Statements, (iii) the
consummation of the Transactions and (iv) one-half of the costs and expenses of
public record searches pursuant to Section 5.9(b) of the Uniform Terms.
(h) "1996 Revenues" of VPC shall be an amount equal to $1,961,622;
and "1996 Revenues" of VPG shall be an amount equal to $96,718.
2.4 Dissenting Shareholders. Subject to Section 4.2, any holder of shares
-----------------------
of voting capital stock of the Company who perfects any available dissenters'
rights in accordance with and as contemplated by the Ohio Act shall be entitled
to receive the value of such shares in cash from the Company after the Effective
Time as determined pursuant to such provision of law; provided, that no such
payment shall be made to any dissenting shareholder unless and until such
dissenting shareholder has complied with the applicable provisions of the Ohio
Act and surrendered to the Company the certificate or certificates representing
the shares for which payment is being made. In the event that a dissenting
shareholder of the Company fails to perfect, or effectively withdraws or loses,
its right to appraisal and of payment for its shares, Premiere shall issue and
deliver the consideration to which such holder of shares of Company capital
stock is entitled under this
-4-
Article II (without interest) upon surrender of certificates representing such
shares held by such holder.
2.5 Closing. The Closing shall take place at the offices of Xxxxxx & Bird
-------
LLP, Atlanta, Georgia, at 10:00 a.m. local time, on the date set forth in the
Uniform Terms, provided all conditions set forth in Articles V and VI of the
Uniform Terms and Articles IV and V of this Agreement have been satisfied or
waived, or on such other date or at such other place and time mutually agreed
upon by the parties.
2.6 Exchange of Shares. Promptly after the Effective Time, Premiere and
------------------
Company shall cause to be mailed to the former Company shareholders appropriate
transmittal materials for the surrender of the certificate or certificates
formerly representing their shares of Company Common Stock in exchange for
shares of Premiere Stock as provided in this Agreement. Until surrendered for
exchange in accordance herewith, each certificate theretofore representing
shares of Company Common Stock shall from and after the Effective Time represent
only the right to receive the Consideration provided in this Agreement in
exchange therefor. No certificates representing fractional shares will be
issued as a result of the Merger. Each holder of shares of Company Common Stock
exchanged pursuant to the Merger who would otherwise have been entitled to
receive a fraction of a share of Premiere Common Stock shall receive, in lieu
thereof, cash (without interest) in an amount equal to such fractional part of a
share of Premiere Common Stock multiplied by the Average Closing Price.
2.7 Purchase for Investment, Etc. Each Owner, represents and warrants the
-----------------------------
following to Premiere:
(a) such Owner has accurately completed the Investor Questionnaire
required by Premiere prior to or contemporaneous with the execution of the
Transfer Agreement and the statements therein are true and correct and
acknowledges that Premiere has relied upon such statements in entering into this
Agreement;
(b) such Owner is acquiring Premiere Stock for such Owner's own
account and not with a view to or for sale in connection with any public
distribution thereof within the meaning of the Securities Act;
(c) such Owner (i) has sufficient knowledge and experience in
financial and business matters to enable him, her or it to evaluate the merits
and risks of an investment in Premiere Stock, (ii) has the ability to bear the
economic risk of acquiring Premiere Stock for an indefinite period and to afford
a complete loss thereof and (iii) has had an opportunity to ask questions of and
to receive answers from the officers of Premiere and to obtain additional
information in writing as requested, which has been made available to and
examined by such Owner or such Owner's advisors; and
(d) such Owner (i) acknowledges that Premiere Stock has not been
registered under any securities laws and cannot be resold without registration
thereunder or exemption therefrom, (ii) agrees not to transfer all or any
Premiere Stock received by such Owner unless such transfer has been registered
or is exempt from registration under applicable securities laws and (iii)
acknowledges that the certificate(s) representing Premiere Stock shall bear the
following legend with respect to the restrictions on transfer under applicable
securities laws:
-5-
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold,
transferred or otherwise disposed of unless registered with the
Securities and Exchange Commission of the United States and the
securities regulatory authorities of applicable states or unless an
exemption from such registration is available."
2.8 Accounting, Tax and Regulatory Matters. Each Owner and the Company,
--------------------------------------
jointly and severally, represents and warrants to Premiere that neither the
Company, any Owner nor any Affiliate thereof has taken or agreed to take any
action or has any knowledge of any fact or circumstance that is reasonably
likely to (i) prevent the Merger from qualifying for pooling-of-interests
accounting treatment or as a reorganization within the meaning of Section 368(a)
of the Code, or (ii) materially impede or delay receipt of any consents referred
to in Section 5.6 of the Uniform Terms or result in the imposition of a
condition or restriction of the type referred to in the last sentence of such
Section.
2.9 Ownership. Each Owner and the Company, jointly and severally,
---------
represents and warrants to Premiere that at the Closing Date (i) the Company
will own partner interests representing 40% of the equity in the earnings,
losses, assets and liabilities of CVP and partner interests representing 66.7%
of the equity in the earnings, losses, assets and liabilities of VPC and common
stock of Voice-Tel Enterprises, Inc. and (ii) VPC owns partner interests
representing 25% of the earnings, losses, assets and liabilities of VPG, and
that neither the Company nor CVP has any material Assets other than those
partner interests and the Company's ownership of common stock of Voice-Tel
Enterprises, Inc. All references in the Uniform Terms and Conditions to the
Company shall be deemed to refer to the Company and VPC: provided that Company
will also include CVP and VPG for purposes of 2.4, 2.5 (first sentence only),
2.6, 2.10 and 2.16 and CVP for purposes of Sections 2.3, 2.5 (except for the
first sentence), 2.7, 2.8, 2.9, 2.11, 2.12. , 2.13, 2.14, 2.15, 2.17, 2.18,
2.19, 2.20, 2.21 and 2.22.
III. ADDITIONAL AGREEMENTS
---------------------------
3.1 Filings with State Offices. Upon the terms and subject to the
--------------------------
conditions of this Agreement, the Company and Merger Corp shall execute and file
the Certificate of Merger with the Secretary of State of the State of Ohio and a
Certificate of Merger with the Secretary of State of the State of Georgia in
connection with the Closing.
3.2 Conditions to Closing. The Company, the Owners and Premiere agree to
---------------------
use their commercially reasonable best efforts to satisfy the closing conditions
set forth in Articles IV and V of this Agreement by the date indicated therein
or the Closing Date, as applicable.
3.3 Additional Indemnification Items. Subject to Sections 8.2 through 8.6
--------------------------------
of the Uniform Terms, the Owners and the Company, shall jointly and severally
indemnify and hold harmless Premiere, and its officers, directors, agents or
affiliates, from and against any and all Losses suffered or incurred by any such
party by reason of or arising out of any breach of Section 2.19 of the Uniform
Terms as it relates to liability for sales tax (irrespective of whether
disclosed on Schedule 2.19 or in the Financial Statements).
3.4 Tax Matters. Each of the Company, the Owners and Premiere undertakes
-----------
and agrees to use its reasonable efforts to cause the Merger, and to take no
action which would cause the Merger not, to qualify as a "reorganization" within
the meaning of Section 368(a) of the Code for federal
-6-
income tax purposes. Notwithstanding the foregoing, the Owners understand that
(i) Premiere makes no representation or warranty regarding the tax treatment of
this Agreement or the Merger, (ii) the Closing is not subject to a condition
that an Internal Revenue Service ruling or tax opinion be obtained as to the
federal income tax consequences of this Agreement or the Merger, and (iii) the
Company and the Owners shall look to their respective advisors for advice
concerning the tax consequences of this Agreement and the Merger.
3.5 Registration Rights. At the Closing, Premiere and the Owners shall
-------------------
execute and deliver the Registration Rights Agreement.
3.6 Accounting Treatment.
--------------------
(a) The Company and each of the Owners has accurately completed the
Pooling Questionnaire required by Premiere prior to or contemporaneous with the
execution of this Agreement, and the statements therein are true and correct.
(b) Premiere, the Company and each of the Owners agrees to use its
reasonable efforts to cause the Merger, and to take no action which would cause
the Merger not, to qualify for treatment as a pooling of interests for
accounting purposes. Without limiting the foregoing, the Company and each of
the Owners agrees not to sell, transfer, or otherwise dispose of his, her or its
interests in, or reduce his, her or its risk relative to, any of the shares of
Premiere Common Stock received in connection with the Merger until such time as
Premiere notifies the Company and each such Owner that the requirements of ASRs
130 and 135 have been met. The Company and each of the Owners understands that
ASRs 130 and 135 relate to the publication of financial results of at least
thirty (30) days of post-Merger combined operations of Premiere and the Company.
Premiere agrees that it shall publish such results within forty-five (45) days
after the end of the first fiscal quarter of Premiere containing the required
period of post-Merger combined operations and that it shall notify the Company
and each of the Owners promptly following such publication. Premiere shall be
entitled to place the following restrictive legend on the shares of Premiere
Stock issued pursuant to the Merger to enforce the foregoing restrictions:
"The shares represented by this certificate were issued pursuant to a
business combination which is accounted for as a "pooling of interests" and
may not be sold, nor may the owner thereof reduce his risks relative
thereto in any way, until such time as Premiere Technologies, Inc.
("Premiere") has published the financial results covering at least 30 days
of combined operations after the effective date of the merger through which
the business combination was effected."
3.7 Affiliate Agreements. The Company has disclosed in Schedule 3.7 all
-------------------- ------------
Persons whom it reasonably believes is an "affiliate" of the Company for
purposes of Rule 145 under the 1933 Act. The Company shall use its reasonable
efforts to cause each such Person to deliver to Premiere as soon as reasonably
practicable following the execution of this Agreement, a written agreement,
substantially in the form attached hereto as Exhibit D.
----------
3.8 Tax Representations. In connection with the opinion to be rendered to
-------------------
Premiere by Xxxxxx & Bird to the effect that the transactions contemplated
hereby will constitute a tax-free reorganization within the meaning of Section
368(a) of the Code, the Owners shall furnish such counsel with such
representations as to their plans for the disposition of the shares of Premiere
Stock to be received in the Transactions as such counsel shall reasonably
request.
-7-
3.9 Restricted Stock. All contractual restrictions or limitations on
----------------
transfer with respect to Company Common Stock under any plan, program, contract
or arrangement, to the extent that such restrictions or limitations have not
already lapsed (whether as a result of the Transactions or otherwise), and
except as otherwise expressly provided in such plan, program, contract or
arrangement, shall remain in full force and effect with respect to shares of
Premiere Stock into which such restricted stock is converted pursuant to Section
2.2 of this Transfer Agreement.
3.10 Exchange Listing. Premiere shall use its reasonable efforts to list,
----------------
prior to the Effective Time, on the Nasdaq National Market the shares of
Premiere Stock to be issued to the Owners pursuant to the Transactions, and
Premiere shall give all notices and make all filings with the NASD required in
connection with the Transactions.
IV. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF PREMIERE
-------------------------------------------------------
In addition to the conditions of Premiere contained in Article V of the
Uniform Terms, the obligation of Premiere to consummate the Transactions is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
4.1 Approval of Owners. The Owners shall have approved the Merger in
------------------
accordance with the requirements of the Ohio Act and the Company shall have
provided Premiere certified copies of such resolutions, and Owners holding no
more than ten percent (10%) of the Company Common Stock issued and outstanding
immediately prior to the Effective Time shall have exercised any of the rights
described in Section 2.4.
4.2 Grand Solution Documents. VTNLP, VTE, the NAP and each of the Franchisee
------------------------
Companies shall have executed and delivered Grand Solution Documents reflecting
the terms described in Exhibit E hereto in form and substance reasonable
---------
satisfactory to Premiere.
4.3 Audited Financial Statements. Premiere shall have received balance
----------------------------
sheets of the Company as of December 31, 1995 and 1996 and the related
statements of operations, cash flows and changes in owner's equity for the
fiscal years then ended (collectively, the "Audited Financial Statements")
prepared in accordance with GAAP and Regulation S-X promulgated by the
Commission, accompanied by an unqualified audit opinion of Xxxxxx Xxxxxxxx LLP
relating thereto. The Audited Financial Statements shall not reflect any
material change in the Company's financial condition or results of operations
from the condition and results reported in the Financial Statements for the
corresponding periods delivered by the Company prior to the execution of this
Agreement.
4.4 Pooling Letter. Premiere shall have received a letter, dated as of the
--------------
Effective Time, in form and substance reasonably acceptable to Premiere, from
Xxxxxx Xxxxxxxx LLP to the effect that the Merger will qualify for pooling of
interests accounting treatment, and no action shall have been taken by any
regulatory authority or any statute, rule, regulation or order enacted,
promulgated or issued by any regulatory authority, or any proposal made for any
such action by any regulatory authority which is reasonably likely to be put
into effect, that would prevent Premiere from accounting for the business
combination to be effected by the Merger as a pooling of interests.
-8-
4.5 Reorganization Opinion. Premiere shall have received an opinion of
----------------------
Xxxxxx & Bird LLP, counsel to Premiere, to the effect that the transactions
contemplated by the Agreement, including the Merger, will constitute a tax-free
reorganization within the meaning of Section 368(a) of the Code.
V. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF THE COMPANY
---------------------------------------------------------
AND THE OWNERS
--------------
In addition to the conditions of the Company and the Owners contained in
Article VI of the Uniform Terms, the obligation of the Company and the Owners to
consummate the Transactions is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
5.1 Approval of Premiere and Merger Corp. The Board of Directors of
------------------------------------
Premiere and the Board of Directors and the shareholder of Merger Corp shall
have approved the Merger in accordance with the requirement of applicable state
law. Premiere and Merger Corp shall have provided the Company certified copies
of such resolutions.
5.2 Registration Rights. Premiere and each Owner shall have executed and
-------------------
delivered a Registration Rights Agreement.
VI. MISCELLANEOUS
------------------
6.1 Notices. The addresses for notices in accordance with Section 10.1 of
-------
the Uniform Terms for the Company and the Owners are as follows:
If to the Company: With a copy to:
VT of Ohio, Inc. Benesch, Friedlander,
00 Xxxx Xxxxxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx
Xxxxxx, Xxxx 00000 0000 XX Xxxxxxxx Xxxx.
Xxxx: Xxxxxx X. Xxxxxxx 000 Xxxxxx Xxxxxx
Phone: (000) 000-0000 Xxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000 Attn: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Owners:
Xxxxxxx Enterprises, Inc. Xxxxxx Voice, Inc.
0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxx Xx.
Xxxxxx, Xxxx 00000 Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx. Attn: Xxxxxx X. Xxxxxx XX
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-9-
6.2 Owner's Representative. The Owners' Representative for purposes of
----------------------
Section 10.2 of the Uniform Terms shall be Xxxxxx X. Xxxxxxx , who shall serve
as the Owner's Representative under the terms of said Section 10.2 of the
Uniform Terms.
6.3 Certain Definitions. In addition to the terms defined elsewhere herein
-------------------
and in the Uniform Terms, as used in this Agreement:
(a) "Anticipated Closing Date" shall mean April 30, 1997.
------------------------
(b) "Knowledge" of the Company shall mean the personal knowledge
---------
after due inquiry of those facts that are known or should reasonably
have been known after due inquiry by Xxxxxx X. Xxxxxxx and the knowledge
of any such Persons obtained or which would have been obtained from a
reasonable investigation.
(c) "Outside Closing Date" shall mean June 30, 1997.
--------------------
6.4 Waiver. Notwithstanding anything herein to the contrary, the transfer
------
of the assets of Voice Tel of Ohio general partnership as described in section
2.9 and the actions related thereto, including, without limitation, any
amendment to the Company's governing documents, change in equity, issuance of
securities and acquisition of assets, shall not constitute a breach of this
Agreement, including without limitation, under Section 4.4 of the Uniform Terms.
[Signatures begin on next page.]
-10-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
PREMIERE:
PREMIERE TECHNOLOGIES, INC.,
a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx
Attest: Title: Sr. V.P.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
COMPANY:
VT OF OHIO, INC., an
Ohio corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Title: President
Attest:
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Secretary
OWNERS:
XXXXXXX ENTERPRISES, INC.
an Ohio Corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Title: President
Witness:
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
XXXXXX VOICE, INC.,
an Ohio corporation
By: /s/ Xxxxxx X. Xxxxxx, XX
---------------------------
Xxxxxx X. Xxxxxx, XX
Title: President
Witness:
By: /s/ Xxxxxxxx X'Xxxxx
------------------------------------
Xxxxxxxx X'Xxxxx, Individual
Witness: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
an individual resident of the
State of Ohio.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
Witness: /s/ Xxxxxx X. Xxxxxx, XX
---------------------------
Xxxxxx X. Xxxxxx, XX
an individual resident of the
State of Wyoming.
By: /s/ Xxxxxxxx X'Xxxxx
------------------------------------
Xxxxxxxx X'Xxxxx
Witness: /s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
an individual resident of the
State of Ohio
By:------------------------------------
Name:----------------------------------
Witness: /s/ Xxxxxxxx Xxxxxx
---------------------------
Xxxxxxxx Xxxxxx
an individual resident of the
State of California
By:------------------------------------
Name:----------------------------------
TRANSFER AGREEMENT
BY AND AMONG
PREMIERE TECHNOLOGIES, INC.,
XXXXXX VOICE, INC.,
AND
OWNERS OF XXXXXX VOICE, INC.
DATED AS OF APRIL 2, 1997
TRANSFER AGREEMENT
------------------
THIS TRANSFER AGREEMENT (this "Agreement") is entered into as of April 2,
1997 by and among Premiere Technologies, Inc., a Georgia corporation or its
wholly owned subsidiary ("Premiere") and Xxxxxx Voice, Inc., an Ohio corporation
(the "Company"), and those parties listed on the signature pages hereto as the
owners of the Company (the "Owners").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company owns a 16.7% interest (a "VPC Interest") in Voice
Partners Company, an Ohio general partnership ("VPC") and VPC is engaged in the
business of providing interactive voice messaging services pursuant to
franchises granted by Voice-Tel Enterprises, Inc. (the "Business");
WHEREAS, Warrren X. Xxxxxx, XX, Xxxxxxxx Xxxxxx and Xxxxx Xxxxxx own all of
the equity interest sin the Company;
WHEREAS, subject only to the limitations and exclusions contained in this
Agreement and on the terms and conditions hereinafter set forth, the Company
desires to sell and Premiere desires to purchase the VPC Interest; and
WHEREAS, the Board of Directors of Premiere and each of the shareholders of
the Company have approved the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
I. UNIFORM TERMS AND CONDITIONS
--------------------------------
1.1 Incorporation by Reference. The Uniform Terms and Conditions attached
--------------------------
hereto as Exhibit A (the "Uniform Terms") are hereby made a part of and
---------
incorporated herein as if fully restated herein. Capitalized terms not defined
herein shall have the meanings provided in the Uniform Terms.
II. PURCHASE AND SALE
----------------------
2.1 Transactions.
------------
At the Closing, on and subject to the terms and conditions of this
Agreement, (i) the Company shall sell, transfer, convey and assign to Premiere
all of the Transferred Assets, free and clear of all liens, charges, claims or
encumbrances of any nature whatsoever, (ii) Premiere shall receive and accept
the Transferred Assets and assume the Transferred Liabilities, and (iii) in
exchange for the Transferred Assets, Premiere shall pay the Consideration as
provided herein. The Company shall retain the Retained Liabilities.
2.2 Transferred Assets. The "Transferred Assets" shall consist of all of
------------------
the Company's right, title and interest in and to the VPC Interest.
2.3 [Reserved]
----------
2.4 Transferred Liabilities. Premiere shall assume at the Closing, all the
-----------------------
liabilities and obligations of the Company arising under or out of the VPC
Interest (the "Transferred Liabilities"). EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION 2.4, PREMIERE SHALL NOT ASSUME OR BECOME LIABLE UNDER ANY OTHER CONTRACT
OR AGREEMENT OF THE COMPANY OR FOR ANY OTHER INDEBTEDNESS, OBLIGATION OR
LIABILITY OF THE COMPANY.
2.5 Retained Liabilities. Except as specifically set forth in Section 2.4,
--------------------
the Company shall retain and satisfy any and all of its liabilities and
obligations not included in the Transferred Liabilities (the "Retained
Liabilities"), including such liabilities as may directly or indirectly arise
out of or relate to the operation of the Company on and prior to the Closing
Date, whether such liabilities are known or unknown, disclosed or undisclosed,
matured or unmatured, accrued, absolute or contingent. The Company shall pay,
satisfy and perform all of the Retained Liabilities from cash or assets other
than the Transferred Assets.
2.6 [Reserved]
--------
2.7 Purchase Price.
--------------
(a) Subject to the terms and conditions of this Agreement, the
aggregate consideration to be paid to the Company for the sale, transfer,
conveyance and assignment of the Transferred Assets and the assumption of the
Transferred Liabilities shall be determined as follows:
(i) the number of shares of Premiere Stock determined by dividing (A)
the product of .9 multiplied by the Asset Purchase Price, by (B)
the Average Closing Price; and
(ii) the number of shares of Premiere Stock determined by dividing (A)
the product of .1 multiplied by the Asset Purchase Price, by (B)
the Average Closing Price (the "General Escrow Amount").
all as determined in accordance with Section 2.8 below (collectively, the
"Consideration").
(b) At Closing, the Company shall deliver the General Escrow Amount
in negotiable form to the Escrow Agent to be held in escrow pursuant to the
terms and conditions of the Escrow Agreement in the form attached hereto as
Exhibit B.
---------
2.8 Calculation of Consideration. For purposes of determining the
----------------------------
Consideration issuable to the Company pursuant to Section 2.7(a) above, the
following shall apply:
(a) "Average Closing Price" shall be the average of the daily last
sale prices of Premiere Stock for the period consisting of twenty (20)
consecutive trading days on which such shares are actually traded on the Nasdaq
National Market (as reported by the Wall Street Journal
-2-
or, if not reported thereby, any other authoritative source selected by
Premiere) ending at the close of trading on the first trading day immediately
preceding the Closing; provided, however, that the Average Closing Price shall
-------- -------
not be less than $22.50 nor more than $30.50 (collectively, $22.50 and $30.50
are referred to as the "Average Closing Price Limitations").
(b) "Asset Purchase Price" shall be the sum of (i) sixteen and two-
thirds percent (16.7%) of the sum of (A) the amount determined by multiplying
the 1996 Revenues of VPC by the Stock Multiple, plus (B) the amount of cash
----
reflected on the Closing Date Balance Sheet of VPC, minus (C) the aggregate
-----
amount of principal and accrued and unpaid interest under funded debt and
capital lease obligations reflected on the Closing Date Balance Sheet of VPC,
and minus (ii) the amount by which the Transaction Costs exceed the Deductible
-----
Amount, plus (iii) four percent (4%) of the sum of (A) the amount determined by
----
multiplying the 1996 Revenues of Voice Partners of Greater Mahoning Valley, an
Ohio limited partnership ("VPG") by the Stock Multiple, plus (B) the amount of
----
cash on the Closing Date Balance Sheet of VPG, minus (C) the amount of principal
-----
and accrued and unpaid interest under funded debt and capital lease obligations
reflected on the Closing Date Balance Sheet of VPG.
(c) "Deductible Amount" shall be an amount equal to $2,500.00
(d) "1996 Revenues" of the VPC shall be an amount equal to
$1,961,622, and "1996 Revenues" of VPG shall mean $96,718.
(e) "Registration Right" shall mean the right to include Premiere
Stock issued as Consideration hereunder in a registration statement which
Premiere intends to file promptly after the end of the first full fiscal quarter
of Premiere containing the period of post-Merger combined operations required by
ASRs 130 and 135, pursuant to the terms and conditions of the Stock Restriction
and Registration Rights Agreement in the form attached hereto as of Exhibit C
---------
(the "Registration Rights Agreement").
(f) "Stock Multiple" shall be 1.7.
(g) "Transaction Costs" shall mean all amounts incurred but unpaid by
the Company or VPC in connection with (i) the negotiation and preparation of
this Agreement, (ii) the preparation of the Financial Statements, (iii) the
consummation of the Transactions and (iv) one-half of the costs and expenses of
public record searches pursuant to Section 5.9(b) of the Uniform Terms.
2.9 Closing. The Closing shall take place at the offices of Xxxxxx & Bird
-------
LLP, Atlanta, Georgia, at 10:00 a.m. local time, on the date set forth in the
Uniform Terms, provided all conditions set forth in Articles V and VI of the
Uniform Terms and Articles IV and V of this Agreement have been satisfied or
waived, or on such other date or at such other place and time mutually agreed
upon by the parties.
2.10 Purchase for Investment, Etc. Each Owner represents and warrants the
-----------------------------
following to Premiere:
(a) such Owner has accurately completed the Investor
Questionnaire required by Premiere prior to or contemporaneous with the
execution of the Transfer Agreement and the
-3-
statements therein are true and correct and acknowledges that Premiere has
relied upon such statements in entering into this Agreement;
(b) such Owner is acquiring Premiere Stock for such Owner's own
account and not with a view to or for sale in connection with any public
distribution thereof within the meaning of the Securities Act;
(c) such Owner (i) has sufficient knowledge and experience in
financial and business matters to enable him, her or it to evaluate the merits
and risks of an investment in Premiere Stock, (ii) has the ability to bear the
economic risk of acquiring Premiere Stock for an indefinite period and to afford
a complete loss thereof and (iii) has had an opportunity to ask questions of and
to receive answers from the officers of Premiere and to obtain additional
information in writing as requested, which has been made available to and
examined by such Owner or such Owner's advisors; and
(d) such Owner (i) acknowledges that Premiere Stock has not been
registered under any securities laws and cannot be resold without registration
thereunder or exemption therefrom, (ii) agrees not to transfer all or any
Premiere Stock received by such Owner unless such transfer has been registered
or is exempt from registration under applicable securities laws and (iii)
acknowledges that the certificate(s) representing Premiere Stock shall bear the
following legend with respect to the restrictions on transfer under applicable
securities laws:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold,
transferred or otherwise disposed of unless registered with the
Securities and Exchange Commission of the United States and the
securities regulatory authorities of applicable states or unless an
exemption from such registration is available."
2.11 Ownership. Each Owner and the Company, jointly and severally,
---------
represents and warrants to Premiere that as of the Closing Date (i) the Company
will own a partner interest representing 16.7% of the equity in the earnings,
losses, assets and liabilities of VPC and (ii) VPC owns partner interests
representing 25% of the earnings, losses, assets liabilities of VPG. All
references in the Uniform Terms and Conditions to the Company shall be deemed to
refer to the Company and VPC; provided that the Company will also include VPG
for purposes of Section 2.4, 2.5 (first sentence), 2.6, 2.10 and 2.16.
III. ADDITIONAL AGREEMENTS
---------------------------
3.1 Allocation of Purchase Price. To the extent that the Consideration, or
----------------------------
any portion thereof, is required to be allocated among the Transferred Assets
for tax or accounting purposes, an allocation shall be prepared by Premiere, and
Premiere and the Company shall thereafter execute a document setting forth the
agreed upon allocation, which document shall become a part of this Agreement.
In the event that the parties cannot reach an agreement after using commercially
reasonable efforts, the parties shall mutually engage an independent certified
public accountant to determine an allocation, and the costs of such accountant
shall be shared equally by the parties. In furtherance of the foregoing, the
parties agree to execute and deliver IRS Form 8594 reflecting such allocation.
-4-
3.2 Covenants.
---------
(a) Each Owner acknowledges and agrees that such Owner does not have
and will not claim any individual interest in the Transferred Assets.
(b) The Company covenants and agrees that it shall pay and satisfy as
and when due the Retained Liabilities (whether such payment or obligation shall
be due prior to or following the Closing Date). The Company further covenants
and agrees that it shall not take or fail to take any action the result of
which could be reasonably expected to materially adversely affect Premiere's
relationship with any of the customers or suppliers of the Business conducted by
VPC following the Closing.
3.3 Conditions to Closing. The Company, the Owners and Premiere agree to
---------------------
use their commercially reasonable best efforts to satisfy the closing conditions
set forth in Articles IV and V of this Agreement by the date indicated therein
or the Closing Date, as applicable, and if not by such time, as soon thereafter
as possible.
3.4 Additional Indemnification Items. Subject to Sections 8.2 through 8.6
--------------------------------
of the Uniform Terms, the Owners and, the Company, shall jointly and severally
indemnify and hold harmless Premiere, and its officers, directors, agents or
affiliates, from and against any and all Losses suffered or incurred by any such
party by reason of or arising out of a breach of Section 2.19 of the Uniform
Terms as it relates to liability for sales tax (irrespective of whether
disclosed on Schedule 2.19 or in the Financial Statements).
3.5 Tax Matters. The Owners understand that Premiere makes no
-----------
representation or warranty regarding the tax treatment of this Agreement and the
Company and the Owners shall look to their respective advisors for advice
concerning the tax consequences of this Agreement.
3.6 Registration Rights. At the Closing, Premiere and the Owners shall
-------------------
execute and deliver the Registration Rights Agreement.
3.7 Affiliate Agreements. The Company has disclosed in Schedule 3.7 all
-------------------- ------------
Persons whom it reasonably believes is an "affiliate" of the Company for
purposes of Rule 145 under the 1933 Act. The Company shall use its reasonable
efforts to cause each such Person to deliver to Premiere as soon as reasonably
practicable following the execution of this Agreement, a written agreement,
substantially in the form attached hereto as Exhibit D.
----------
3.8 Exchange Listing. Premiere shall use its reasonable efforts to list,
----------------
prior to the Effective Time, on the Nasdaq National Market the shares of
Premiere Stock to be issued to the Owners pursuant to the Transactions, and
Premiere shall give all notices and make all filings with the NASD required in
connection with the Transactions.
IV. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF PREMIERE
-------------------------------------------------------
In addition to the conditions of Premiere contained in Article V of the
Uniform Terms, the obligation of Premiere to consummate the Transactions is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
-5-
4.1 Approval of Owners. The Owners shall have approved the Transactions (to
------------------
the extent required) in accordance with the requirements of the Company's
articles of incorporation, the VPC and VPG partnership agreements and the laws
of the State of Ohio and the Company shall have provided Premiere certified
copies of such resolutions.
4.2 Grand Solution Documents. VTNLP, VTE, the NAP and each of the
------------------------
Franchisee Companies shall have executed and delivered Grand Solution Documents
reflecting the terms described in Exhibit E hereto in form and substance
---------
reasonable satisfactory to Premiere.
V. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF THE COMPANY
---------------------------------------------------------
AND THE OWNERS
--------------
In addition to the conditions of the Company and the Owners contained in
Article VI of the Uniform Terms, the obligation of the Company and the Owners to
consummate the Transactions is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
5.1 Registration Rights. Premiere and each Owner shall have executed and
-------------------
delivered a Registration Rights Agreement.
VI. MISCELLANEOUS
------------------
6.1 Notices. The addresses for notices in accordance with Section 10.1 of
-------
the Uniform Terms for the Company and the Owners are as follows:
If to the Company: With a copy to:
Xxxxxx Voice, Inc. Xxxxx & Xxxxxxxxx, LLP
0000 Xxxxxxxxxx Xxxx Xxxx, Xxxxx 000 0000 Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000 0000 Xxxx 0xx Xxxxxx
Attn: Xxxxxx X. Xxxxxx, XX Xxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000 or Attn: Xxxxxxx X. Xxxxxxxx, Esq.
(000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to the Owners:
Xxxxxx Voice, Inc.
0000 Xxxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, XX
Phone: (000) 000-0000 or
(000) 000-0000
Fax: (000) 000-0000
6.2 Owner's Representative. The Owners' Representative for purposes of
----------------------
Section 10.2 of the Uniform Terms shall be Xxxxxx X. Xxxxxx, XX, who shall serve
as the Owners' Representative under the terms of said Section 10.2 of the
Uniform Terms.
-6-
6.3 Certain Definitions. In addition to the terms defined elsewhere herein
-------------------
and in the Uniform Terms, as used in this Agreement:
(a) "Anticipated Closing Date" shall mean April 30, 1997.
------------------------
(b) "Knowledge" of the Company shall mean the personal knowledge
---------
after due inquiry of those facts that are known or should reasonably
have been known after due inquiry by Xxxxxx X. Xxxxxx, XX and the
knowledge of any such Persons obtained or which would have been
obtained from a reasonable investigation.
(c) "Outside Closing Date" shall mean June 30, 1997.
--------------------
[Signatures begin on next page.]
-7-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first written above.
PREMIERE:
PREMIERE TECHNOLOGIES, INC.,
a Georgia corporation
By: /s/Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Title: Sr. V.P.
Attest:
By: /s/Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
COMPANY:
XXXXXX VOICE, INC.
an Ohio corporation
By: /s/Xxxxxx X. Xxxxxx, XX
----------------------------
Xxxxxx X. Xxxxxx, XX
Attest:
By:__________________________
Title:_______________________
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
OWNERS:
/s/Xxxxxx X. Xxxxxx, XX
----------------------------
Xxxxxx X. Xxxxxx, XX
an individual resident
of the State of Wyoming
Attest:
By: /s/Xxxxxxxx X'Xxxxx
----------------------------
Xxxxxxxx X'Xxxxx
Title: Individual
/s/Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
an individual resident
of the State of Ohio
Attest:
By: /s/Xxx Xxxxxxx
----------------------------
Xxx Xxxxxxx
Title:_________________________
/s/Xxxxxxxx Xxxxxx
----------------------------
Xxxxxxxx Xxxxxx
an individual resident
of the State of California
Attest:
By: /s/Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
Title: Administrative Assistant
TRANSFER AGREEMENT
BY AND AMONG
PREMIERE TECHNOLOGIES, INC.,
XXXXXXX ENTERPRISES, INC.,
AND
OWNERS OF XXXXXXX ENTERPRISES, INC.
DATED AS OF APRIL 2, 1997
TRANSFER AGREEMENT
------------------
THIS TRANSFER AGREEMENT (this "Agreement") is entered into as of April 2,
1997 by and among Premiere Technologies, Inc., a Georgia corporation or its
wholly owned subsidiary ("Premiere") and Xxxxxxx Enterprises, Inc., an Ohio
corporation (the "Company"), and those parties listed on the signature pages
hereto as the owners of the Company(the "Owners").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company owns a 16.7% interest (a "VPC Interest") in Voice
Partners Company, an Ohio general partnership ("VPC") and VPC is engaged in the
business of providing interactive voice messaging services pursuant to
franchises granted by Voice-Tel Enterprises, Inc. (the "Business");
WHEREAS, Xxxxxx X. Xxxxxxx owns all of the equity interest in the Company;
WHEREAS, subject only to the limitations and exclusions contained in this
Agreement and on the terms and conditions hereinafter set forth, the Company
desires to sell and Premiere desires to purchase the VPC Interest; and
WHEREAS, the Board of Directors of Premiere and each of the shareholders of
the Company have approved the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
I. UNIFORM TERMS AND CONDITIONS
--------------------------------
1.1 Incorporation by Reference. The Uniform Terms and Conditions attached
--------------------------
hereto as Exhibit A (the "Uniform Terms") are hereby made a part of and
---------
incorporated herein as if fully restated herein. Capitalized terms not defined
herein shall have the meanings provided in the Uniform Terms.
II. PURCHASE AND SALE
----------------------
2.1 Transactions.
------------
At the Closing, on and subject to the terms and conditions of this
Agreement, (i) the Company shall sell, transfer, convey and assign to Premiere
all of the Transferred Assets, free and clear of all liens, charges, claims or
encumbrances of any nature whatsoever, (ii) Premiere shall receive and accept
the Transferred Assets and assume the Transferred Liabilities, and (iii) in
exchange for the Transferred Assets, Premiere shall pay the Consideration as
provided herein. The Company shall retain the Retained Liabilities.
2.2 Transferred Assets. The "Transferred Assets" shall consist of all of
------------------
the Company's right, title and interest in and to the VPC Interest.
2.3 [Reserved]
----------
2.4 Transferred Liabilities. Premiere shall assume at the Closing, all the
-----------------------
liabilities and obligations of the Company arising under or out of the VPC
Interest (the "Transferred Liabilities"). EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION 2.4, PREMIERE SHALL NOT ASSUME OR BECOME LIABLE UNDER ANY OTHER CONTRACT
OR AGREEMENT OF THE COMPANY OR FOR ANY OTHER INDEBTEDNESS, OBLIGATION OR
LIABILITY OF THE COMPANY.
2.5 Retained Liabilities. Except as specifically set forth in Section 2.4,
--------------------
the Company shall retain and satisfy any and all of its liabilities and
obligations not included in the Transferred Liabilities (the "Retained
Liabilities"), including such liabilities as may directly or indirectly arise
out of or relate to the operation of the Company on and prior to the Closing
Date, whether such liabilities are known or unknown, disclosed or undisclosed,
matured or unmatured, accrued, absolute or contingent. The Company shall pay,
satisfy and perform all of the Retained Liabilities from cash or assets other
than the Transferred Assets.
2.6 [Reserved
--------
2.7 Purchase Price.
--------------
(a) Subject to the terms and conditions of this Agreement, the
aggregate consideration to be paid to the Company for the sale, transfer,
conveyance and assignment of the Transferred Assets and the assumption of the
Transferred Liabilities shall be determined as follows:
(i) the number of shares of Premiere Stock determined by dividing (A)
the product of .9 multiplied by the Asset Purchase Price, by (B)
the Average Closing Price; and
(ii) the number of shares of Premiere Stock determined by dividing (A)
the product of .1 multiplied by the Asset Purchase Price, by (B)
the Average Closing Price (the "General Escrow Amount").
all as determined in accordance with Section 2.8 below (collectively, the
"Consideration").
(b) At Closing, the Company shall deliver the General Escrow Amount
in negotiable form to the Escrow Agent to be held in escrow pursuant to the
terms and conditions of the Escrow Agreement in the form attached hereto as
Exhibit B.
---------
2.8 Calculation of Consideration. For purposes of determining the
----------------------------
Consideration issuable to the Company pursuant to Section 2.7(a) above, the
following shall apply:
(a) "Average Closing Price" shall be the average of the daily last
sale prices of Premiere Stock for the period consisting of twenty (20)
consecutive trading days on which such
-2-
shares are actually traded on the Nasdaq National Market (as reported by the
Wall Street Journal or, if not reported thereby, any other authoritative source
selected by Premiere) ending at the close of trading on the first trading day
immediately preceding the Closing; provided, however, that the Average Closing
-------- -------
Price shall not be less than $22.50 nor more than $30.50 (collectively, $22.50
and $30.50 are referred to as the "Average Closing Price Limitations").
(b) "Asset Purchase Price" shall be the sum of (i) sixteen and two-
thirds percent (16.7%) of the sum of (A) the amount determined by multiplying
the 1996 Revenues of VPC by the Stock Multiple, plus (B) the amount of cash
----
reflected on the Closing Date Balance Sheet of VPC, minus (C) the aggregate
-----
amount of principal and accrued and unpaid interest under funded debt and
capital lease obligations reflected on the Closing Date Balance Sheet of VPC,
and minus (ii) the amount by which the Transaction Costs exceed the Deductible
-----
Amount, plus (iii) four percent (4%) of the sum of (A) the amount determined by
----
multiplying the 1996 Revenues of Voice Partners of Greater Mahoning Valley, an
Ohio limited partnership ("VPG") by the Stock Multiple, plus (B) the amount of
----
cash on the Closing Date Balance Sheet of VPG, minus (C) the amount of principal
-----
and accrued and unpaid interest under funded debt and capital lease obligations
reflected on the Closing Date Balance Sheet of VPG.
(c) "Deductible Amount" shall be an amount equal to $2,500.00
(d) "1996 Revenues" of the VPC shall be an amount equal to
$1,961,622, and "1996 Revenues" of VPG shall mean $96,718.
(e) "Registration Right" shall mean the right to include Premiere
Stock issued as Consideration hereunder in a registration statement which
Premiere intends to file promptly after the end of the first full fiscal quarter
of Premiere containing the period of post-Merger combined operations required by
ASRs 130 and 135, pursuant to the terms and conditions of the Stock Restriction
and Registration Rights Agreement in the form attached hereto as of Exhibit C
---------
(the "Registration Rights Agreement") .
(f) "Stock Multiple" shall be 1.7.
(g) "Transaction Costs" shall mean all amounts incurred but unpaid by
the Company or VPC in connection with (i) the negotiation and preparation of
this Agreement, (ii) the preparation of the Financial Statements, (iii) the
consummation of the Transactions and (iv) one-half of the costs and expenses of
public record searches pursuant to Section 5.9(b) of the Uniform Terms.
2.9 Closing. The Closing shall take place at the offices of Xxxxxx & Bird
-------
LLP, Atlanta, Georgia, at 10:00 a.m. local time, on the date set forth in the
Uniform Terms, provided all conditions set forth in Articles V and VI of the
Uniform Terms and Articles IV and V of this Agreement have been satisfied or
waived, or on such other date or at such other place and time mutually agreed
upon by the parties.
2.10 Purchase for Investment, Etc. Each Owner represents and warrants the
-----------------------------
following to Premiere:
(a) such Owner has accurately completed the Investor Questionnaire
required by Premiere prior to or contemporaneous with the execution of the
Transfer Agreement and the
-3-
statements therein are true and correct and acknowledges that Premiere has
relied upon such statements in entering into this Agreement;
(b) such Owner is acquiring Premiere Stock for such Owner's own
account and not with a view to or for sale in connection with any public
distribution thereof within the meaning of the Securities Act;
(c) such Owner (i) has sufficient knowledge and experience in
financial and business matters to enable him, her or it to evaluate the merits
and risks of an investment in Premiere Stock, (ii) has the ability to bear the
economic risk of acquiring Premiere Stock for an indefinite period and to afford
a complete loss thereof and (iii) has had an opportunity to ask questions of and
to receive answers from the officers of Premiere and to obtain additional
information in writing as requested, which has been made available to and
examined by such Owner or such Owner's advisors; and
(d) such Owner (i) acknowledges that Premiere Stock has not been
registered under any securities laws and cannot be resold without registration
thereunder or exemption therefrom, (ii) agrees not to transfer all or any
Premiere Stock received by such Owner unless such transfer has been registered
or is exempt from registration under applicable securities laws and (iii)
acknowledges that the certificate(s) representing Premiere Stock shall bear the
following legend with respect to the restrictions on transfer under applicable
securities laws:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold,
transferred or otherwise disposed of unless registered with the
Securities and Exchange Commission of the United States and the
securities regulatory authorities of applicable states or unless an
exemption from such registration is available."
2.11 Ownership. Each Owner and the Company, jointly and severally,
---------
represents and warrants to Premiere that as of the Closing Date (i) the Company
will own a partner interest representing 16.7% of the equity in the earnings,
losses, assets and liabilities of VPC and (ii) VPC owns partner interests
representing 25% of the earnings, losses, assets liabilities of VPG. All
references in the Uniform Terms and Conditions to the Company shall be deemed to
refer to the Company and VPC; provided that the Company will also include VPG
for purposes of Section 2.4, 2.5 (first sentence), 2.6, 2.10 and 2.16.
III. ADDITIONAL AGREEMENTS
---------------------------
3.1 Allocation of Purchase Price. To the extent that the Consideration, or
----------------------------
any portion thereof, is required to be allocated among the Transferred Assets
for tax or accounting purposes, an allocation shall be prepared by Premiere, and
Premiere and the Company shall thereafter execute a document setting forth the
agreed upon allocation, which document shall become a part of this Agreement.
In the event that the parties cannot reach an agreement after using commercially
reasonable efforts, the parties shall mutually engage an independent certified
public accountant to determine an allocation, and the costs of such accountant
shall be shared equally by the parties. In furtherance of the foregoing, the
parties agree to execute and deliver IRS Form 8594 reflecting such allocation.
-4-
3.2 Covenants.
---------
(a) Each Owner acknowledges and agrees that such Owner does not have
and will not claim any individual interest in the Transferred Assets.
(b) The Company covenants and agrees that it shall pay and satisfy as
and when due the Retained Liabilities (whether such payment or obligation shall
be due prior to or following the Closing Date). The Company further covenants
and agrees that it shall not take or fail to take any action the result of
which could be reasonably expected to materially adversely affect Premiere's
relationship with any of the customers or suppliers of the Business conducted by
VPC following the Closing.
3.3 Conditions to Closing. The Company, the Owners and Premiere agree to
---------------------
use their commercially reasonable best efforts to satisfy the closing conditions
set forth in Articles IV and V of this Agreement by the date indicated therein
or the Closing Date, as applicable, and if not by such time, as soon thereafter
as possible.
3.4 Additional Indemnification Items. Subject to Sections 8.2 through 8.6
--------------------------------
of the Uniform Terms, the Owners and, the Company, shall jointly and severally
indemnify and hold harmless Premiere, and its officers, directors, agents or
affiliates, from and against any and all Losses suffered or incurred by any such
party by reason of or arising out of a breach of Section 2.19 of the Uniform
Terms as it relates to liability for sales tax (irrespective of whether
disclosed on Schedule 2.19 or in the Financial Statements).
3.5 Tax Matters. The Owners understand that Premiere makes no
-----------
representation or warranty regarding the tax treatment of this Agreement and the
Company and the Owners shall look to their respective advisors for advice
concerning the tax consequences of this Agreement.
3.6 Registration Rights. At the Closing, Premiere and the Owners shall
-------------------
execute and deliver the Registration Rights Agreement.
3.7 Affiliate Agreements. The Company has disclosed in Schedule 3.7 all
-------------------- ------------
Persons whom it reasonably believes is an "affiliate" of the Company for
purposes of Rule 145 under the 1933 Act. The Company shall use its reasonable
efforts to cause each such Person to deliver to Premiere as soon as reasonably
practicable following the execution of this Agreement, a written agreement,
substantially in the form attached hereto as Exhibit D.
----------
3.8 Exchange Listing. Premiere shall use its reasonable efforts to list,
----------------
prior to the Effective Time, on the Nasdaq National Market the shares of
Premiere Stock to be issued to the Owners pursuant to the Transactions, and
Premiere shall give all notices and make all filings with the NASD required in
connection with the Transactions.
IV. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF PREMIERE
-------------------------------------------------------
In addition to the conditions of Premiere contained in Article V of the
Uniform Terms, the obligation of Premiere to consummate the Transactions is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
-5-
4.1 Approval of Owners. The Owners shall have approved the Transactions (to
------------------
the extent required) in accordance with the requirements of the Company's
articles of incorporation, the VPC and VPG partnership agreements and the laws
of the State of Ohio and the Company shall have provided Premiere certified
copies of such resolutions.
4.2 Grand Solution Documents. VTNLP, VTE, the NAP and each of the
------------------------
Franchisee Companies shall have executed and delivered Grand Solution Documents
reflecting the terms described in Exhibit E hereto in form and substance
---------
reasonable satisfactory to Premiere.
V. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF THE COMPANY
---------------------------------------------------------
AND THE OWNERS
--------------
In addition to the conditions of the Company and the Owners contained in
Article VI of the Uniform Terms, the obligation of the Company and the Owners to
consummate the Transactions is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
5.1 Registration Rights. Premiere and each Owner shall have executed and
-------------------
delivered a Registration Rights Agreement.
VI. MISCELLANEOUS
------------------
6.1 Notices. The addresses for notices in accordance with Section 10.1 of
-------
the Uniform Terms for the Company and the Owners are as follows:
If to the Company: With a copy to:
Xxxxxxx Enterprises, Inc. Benesch, Friedlander,
0000 Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx
Xxxxxx, Xxxx 00000 0000 XX Xxxxxxxx Xxxx.
Xxxx: Xxxxxx X. Xxxxxxx 000 Xxxxxx Xxxxxx
Phone: (000) 000-0000 Xxxxxxxxx, Xxxx 00000
Fax: 216) 000-0000 Attn: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Owners:
Xxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
6.2 Owner's Representative. The Owners' Representatives for purposes of
----------------------
Section 10.2 of the Uniform Terms shall be Xxxxxx X. Xxxxxxx, who shall serve as
the Owners' Representatives under the terms of said Section 10.2 of the Uniform
Terms.
-6-
6.3 Certain Definitions. In addition to the terms defined elsewhere herein
-------------------
and in the Uniform Terms, as used in this Agreement:
(a) "Anticipated Closing Date" shall mean April 30, 1997.
------------------------
(b) "Knowledge" of the Company shall mean the personal knowledge
---------
after due inquiry of those facts that are known or should reasonably
have been known after due inquiry by Xxxxxx X. Xxxxxxx and the
knowledge of any such Persons obtained or which would have been
obtained from a reasonable investigation.
(c) "Outside Closing Date" shall mean June 30, 1997.
--------------------
[Signatures begin on next page.]
-7-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
PREMIERE:
PREMIERE TECHNOLOGIES, INC.,
a Georgia corporation
By: /s/Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Title: Sr. V.P.
Attest:
By: /s/Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
COMPANY:
XXXXXXX ENTERPRISES, INC.,
an Ohio corporation
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx, President
Attest:
By: /s/Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx
Title: Assistant Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
OWNER:
/s/Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
an individual resident
of the State of Ohio
Attest:
By: /s/Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx
Title: Assistant Secretary
TRANSFER AGREEMENT
BY AND AMONG
PREMIERE TECHNOLOGIES, INC.,
XXXX ENTERPRISES, INC.
AND
OWNERS OF XXXX ENTERPRISES, INC.
DATED AS OF APRIL 2, 1997
TRANSFER AGREEMENT
------------------
THIS TRANSFER AGREEMENT (this "Agreement") is entered into as of April 2,
1997 by and among Premiere Technologies, Inc., a Georgia corporation
("Premiere"), Xxxx Enterprises, Inc., an Ohio corporation (the "Company"), and
those parties listed on the signature pages hereto as the owners of the Company
(the "Owners").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, this Agreement provides for the acquisition of the Company by
Premiere pursuant to the merger of the Company with and into a wholly owned
subsidiary of Premiere ("Merger Corp"), with Merger Corp as the surviving
corporation in such merger (the "Merger");
WHEREAS, the respective Boards of Directors of Premiere and the Company have
approved the terms and conditions set forth in this Agreement;
WHEREAS, the Owners own one hundred percent (100 %) of the equity interests
in the Company;
WHEREAS, this Agreement provides for all of the Owners' equity interests in
the Company to be converted into the right to receive shares of Premiere Stock
in connection with the Merger;
WHEREAS, it is also the intention of the parties hereto that the form of the
transactions with respect to the Company, Premiere and Merger Corp shall qualify
as a "reorganization" within the meaning of Section 368(a) of the Code for
federal income tax purposes; and
WHEREAS, it is also the intention of the parties hereto that the business
combination to be effected by the Merger be accounted for as a pooling of
interests.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
I. UNIFORM TERMS AND CONDITIONS
--------------------------------
1.1 Incorporation by Reference. The Uniform Terms and Conditions attached
--------------------------
hereto as Exhibit A (the "Uniform Terms") are hereby made a part of and
---------
incorporated herein as if fully restated herein. Capitalized terms not defined
herein shall have the meanings provided in the Uniform Terms.
II. TERMS OF MERGER
--------------------
2.1 The Merger.
----------
(a) Subject to the terms and conditions of this Agreement, at the
Effective Time, the Company shall be merged with and into Merger Corp in
accordance with the provisions of the business corporation act under the laws of
the State of Ohio (the "Ohio Act") and the laws of the State of Georgia (the
"Georgia Act"). Merger Corp shall be the surviving corporation resulting from
the Merger, shall thereafter conduct the business and operations of the Company
as a wholly owned subsidiary of Premiere and shall continue to be governed by
the laws of the State of Georgia. The Merger shall be consummated pursuant to
the terms of this Agreement, which has been approved and adopted by the
respective boards of directors of Premiere, Merger Corp and the Company.
(b) Subject to the provisions of this Agreement, the parties shall
file a Certificate of Merger executed in accordance with the relevant provisions
of the Ohio Act and a Certificate of Merger executed in accordance with the
relevant provisions of the Georgia Act and shall make all other filings or
recordings required under each such Act as soon as practicable on or after the
Closing Date. The Merger and other transactions contemplated by this Agreement
shall become effective on the date and at the time the Certificate of Merger
reflecting the Merger becomes effective with the Secretary of State of the State
of Ohio and the Certificate of Merger reflecting the Merger becomes effective
with the Secretary of State of the State of Georgia (the "Effective Time").
(c) The charter and Bylaws of Merger Corp in effect immediately prior
to the Effective Time shall be the charter and Bylaws of the surviving
corporation until otherwise amended or repealed, the directors of Merger Corp
immediately prior to the Effective Time shall serve as the directors of the
surviving corporation from and after the Effective Time, and the officers of
Merger Corp in office immediately prior to the Effective Time shall serve as the
officers of the surviving corporation from and after the Effective Time.
2.2 Conversion of Shares. Subject to the provisions of this Section 2.2,
--------------------
and in consideration for the transactions contemplated hereby, at the Effective
Time, by virtue of the Merger and without any action on the part of the parties
hereto or the shareholders of any of the parties hereto, the shares of the
constituent corporations of the Merger shall be converted as follows:
(a) Each share of Premiere Stock and each share of Merger Corp common
stock issued and outstanding at the Effective Time shall remain issued and
outstanding after the Effective Time.
(b) All of the shares of the capital stock, par value $1.00 per
share, of the Company ("Company Stock") (excluding treasury shares and excluding
shares held by shareholders who perfect their statutory dissenters' rights as
provided in Section 2.4 of this Agreement) issued and outstanding at the
Effective Time shall cease to be outstanding and shall be converted into and
exchanged for the right to receive:
(i) the number of shares of Premiere Stock determined by
dividing (A) the product of .9 multiplied by the Company
Purchase Price, by (B) the Average Closing Price; and
-2-
(ii) the number of shares of Premiere Stock determined by
dividing (A) the product of .1 multiplied by the Company
Purchase Price, by (B) the Average Closing Price (the
"General Escrow Amount");
all as determined in accordance with Section 2.3 below (collectively, the
"Consideration"). Subject to Section 2.2(d) below, the Consideration shall be
issuable to the Owners pro rata in accordance with their ownership of Company
Common Stock pursuant to Section 2.6, which ownership the Owners represent has
not been adjusted in contemplation of the transactions described herein.
(c) Any and all shares of Company Common Stock held as treasury
shares by the Company shall be canceled and retired at the Effective Time, and
no consideration shall be issued in exchange therefor.
(d) Upon consummation of the Merger, the Owners shall deliver the
General Escrow Amount in negotiable form to the Escrow Agent to be held in
escrow pursuant to the terms and conditions of the Escrow Agreement in the form
attached hereto as Exhibit B, which shall be executed and delivered by Premiere
---------
and the Owners at the Closing.
2.3 Calculation of Consideration. For purposes of determining the
----------------------------
Consideration issuable to the Owners pursuant to Section 2.2(b) above, the
following shall apply:
(a) "Average Closing Price" shall be the average of the daily last
sale prices of Premiere Stock for the period consisting of twenty (20)
consecutive trading days on which such shares are actually traded on the Nasdaq
National Market (as reported by the Wall Street Journal or, if not reported
thereby, any other authoritative source selected by Premiere) ending at the
close of trading on the first trading day immediately preceding the Closing;
provided, however, that the Average Closing Price shall not be less than $22.50
-------- -------
nor more than $30.50 (collectively, $22.50 and $30.50 are referred to as the
"Average Closing Price Limitations").
(b) "Company Purchase Price" shall be (i) sixty percent (60%) of the
sum of (A) the amount determined by multiplying the Normalized EBITDA of
Columbus Voice Partners, an Ohio general partnership ("CVP"), by the Stock
Multiple, plus (B) the amount of cash reflected on the Closing Date Balance
----
Sheet CVP, minus (C) the aggregate amount of principal and accrued and unpaid
-----
interest under funded debt and capital lease obligations reflected on the
Closing Date Balance Sheet CVP, plus (ii) the sum of the amount of cash
----
reflected in the Closing Date Balance Sheet of Xxxx Enterprises, Inc. minus
-----
(iii) the aggregate amount of principal and accrued and unpaid interest under
funded debt and capital lease obligations reflected on the Closing Date Balance
Sheet of Xxxx Enterprises, Inc. , and minus (iv) the amount by which the
-----
Transaction Costs exceed the Deductible Amount.
(c) "Deductible Amount" shall be an amount equal to $10,000.00.
(d) "Normalized EBITDA" of CVP shall be an amount equal to $367,284.
(e) "Registration Right" shall mean the right to include Premiere
Stock issued in the Merger in a registration statement which Premiere intends to
file promptly after the end of the first full fiscal quarter of Premiere
containing the period of post-Merger combined operations required by ASRs 130
and 135, pursuant to the terms and conditions of the Stock Restriction and
-3-
Registration Rights Agreement in the form attached hereto as of Exhibit C (the
---------
"Registration Rights Agreement") .
(f) "Stock Multiple" shall be six (6).
(g) "Transaction Costs" shall mean all amounts incurred but unpaid by
the Company in connection with (i) the negotiation and preparation of this
Agreement, (ii) the preparation of the Audited Financial Statements, (iii) the
consummation of the Transactions and (iv) one-half of the costs and expenses of
public record searches pursuant to Section 5.9(b) of the Uniform Terms.
2.4 Dissenting Shareholders. Subject to Section 4.2, any holder of shares
-----------------------
of voting capital stock of the Company who perfects any available dissenters'
rights in accordance with and as contemplated by the Ohio Act shall be entitled
to receive the value of such shares in cash from the Company after the Effective
Time as determined pursuant to such provision of law; provided, that no such
payment shall be made to any dissenting shareholder unless and until such
dissenting shareholder has complied with the applicable provisions of the Ohio
Act and surrendered to the Company the certificate or certificates representing
the shares for which payment is being made. In the event that a dissenting
shareholder of the Company fails to perfect, or effectively withdraws or loses,
its right to appraisal and of payment for its shares, Premiere shall issue and
deliver the consideration to which such holder of shares of Company capital
stock is entitled under this Article II (without interest) upon surrender of
certificates representing such shares held by such holder.
2.5 Closing. The Closing shall take place at the offices of Xxxxxx & Bird
-------
LLP, Atlanta, Georgia, at 10:00 a.m. local time, on the date set forth in the
Uniform Terms, provided all conditions set forth in Articles V and VI of the
Uniform Terms and Articles IV and V of this Agreement have been satisfied or
waived, or on such other date or at such other place and time mutually agreed
upon by the parties.
2.6 Exchange of Shares. Promptly after the Effective Time, Premiere and
------------------
Company shall cause to be mailed to the former Company shareholders appropriate
transmittal materials for the surrender of the certificate or certificates
formerly representing their shares of Company Common Stock in exchange for
shares of Premiere Stock as provided in this Agreement. Until surrendered for
exchange in accordance herewith, each certificate theretofore representing
shares of Company Common Stock shall from and after the Effective Time represent
only the right to receive the Consideration provided in this Agreement in
exchange therefor. No certificates representing fractional shares will be
issued as a result of the Merger. Each holder of shares of Company Common Stock
exchanged pursuant to the Merger who would otherwise have been entitled to
receive a fraction of a share of Premiere Common Stock shall receive, in lieu
thereof, cash (without interest) in an amount equal to such fractional part of a
share of Premiere Common Stock multiplied by the Average Closing Price.
2.7 Purchase for Investment, Etc. Each Owner, represents and warrants the
-----------------------------
following to Premiere:
(a) such Owner has accurately completed the Investor
Questionnaire required by Premiere prior to or contemporaneous with the
execution of the Transfer Agreement and the statements therein are true and
correct and acknowledges that Premiere has relied upon such statements in
entering into this Agreement;
-4-
(b) such Owner is acquiring Premiere Stock for such Owner's own
account and not with a view to or for sale in connection with any public
distribution thereof within the meaning of the Securities Act;
(c) such Owner (i) has sufficient knowledge and experience in
financial and business matters to enable him, her or it to evaluate the merits
and risks of an investment in Premiere Stock, (ii) has the ability to bear the
economic risk of acquiring Premiere Stock for an indefinite period and to afford
a complete loss thereof and (iii) has had an opportunity to ask questions of and
to receive answers from the officers of Premiere and to obtain additional
information in writing as requested, which has been made available to and
examined by such Owner or such Owner's advisors; and
(d) such Owner (i) acknowledges that Premiere Stock has not been
registered under any securities laws and cannot be resold without registration
thereunder or exemption therefrom, (ii) agrees not to transfer all or any
Premiere Stock received by such Owner unless such transfer has been registered
or is exempt from registration under applicable securities laws and (iii)
acknowledges that the certificate(s) representing Premiere Stock shall bear the
following legend with respect to the restrictions on transfer under applicable
securities laws:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold,
transferred or otherwise disposed of unless registered with the
Securities and Exchange Commission of the United States and the
securities regulatory authorities of applicable states or unless an
exemption from such registration is available."
2.8 Accounting, Tax and Regulatory Matters. Each Owner and the Company,
--------------------------------------
jointly and severally, represents and warrants to Premiere that neither the
Company, any Owner nor any Affiliate thereof has taken or agreed to take any
action or has any knowledge of any fact or circumstance that is reasonably
likely to (i) prevent the Merger from qualifying for pooling-of-interests
accounting treatment or as a reorganization within the meaning of Section 368(a)
of the Code, or (ii) materially impede or delay receipt of any consents referred
to in Section 5.6 of the Uniform Terms or result in the imposition of a
condition or restriction of the type referred to in the last sentence of such
Section.
2.9 Assets. The Company and the Owners, jointly and severally, represent
------
and warrant to Premiere that (i) the Company has no material Assets other than
its ownership of 60% of CVP and (ii) in no event shall CVP incur any Transaction
Costs. To the extent applicable, the term "Company" as used in the Uniform
Terms and herein shall be deemed to refer to Xxxx Enterprises, Inc. and CVP,
collectively.
III. ADDITIONAL AGREEMENTS
---------------------------
3.1 Filings with State Offices. Upon the terms and subject to the
--------------------------
conditions of this Agreement, the Company and Merger Corp shall execute and file
the Certificate of Merger with the Secretary of State of the State of Ohio and a
Certificate of Merger with the Secretary of State of the State of Georgia in
connection with the Closing.
-5-
3.2 Conditions to Closing. The Company, the Owners and Premiere agree to
---------------------
use their commercially reasonable best efforts to satisfy the closing conditions
set forth in Articles IV and V of this Agreement by the date indicated therein
or the Closing Date, as applicable.
3.3 Additional Indemnification Items. Subject to Sections 8.2 through 8.6
--------------------------------
of the Uniform Terms, the Owners and, if the Transactions involve an Asset
Transfer, the Company, shall jointly and severally indemnify and hold harmless
Premiere, and its officers, directors, agents or affiliates, from and against
any and all Losses suffered or incurred by any such party by reason of or
arising out of any of the following: a breach of Section 2.19 of the Uniform
Terms as it relates to liability for sales tax (irrespective of whether
disclosed on Schedule 2.19 or in the Financial Statements).
3.4 Tax Matters. Each of the Company, the Owners and Premiere undertakes
-----------
and agrees to use its reasonable efforts to cause the Merger, and to take no
action which would cause the Merger not, to qualify as a "reorganization" within
the meaning of Section 368(a) of the Code for federal income tax purposes.
Notwithstanding the foregoing, the Owners understand that (i) Premiere makes no
representation or warranty regarding the tax treatment of this Agreement or the
Merger, (ii) the Closing is not subject to a condition that an Internal Revenue
Service ruling or tax opinion be obtained as to the federal income tax
consequences of this Agreement or the Merger, and (iii) the Company and the
Owners shall look to their respective advisors for advice concerning the tax
consequences of this Agreement and the Merger.
3.5 Registration Rights. At the Closing, Premiere and the Owners shall
-------------------
execute and deliver the Registration Rights Agreement.
3.6 Accounting Treatment.
--------------------
(a) The Company and each of the Owners has accurately completed the
Pooling Questionnaire required by Premiere prior to or contemporaneous with the
execution of this Agreement, and the statements therein are true and correct.
(b) Premiere, the Company and each of the Owners agrees to use its
reasonable efforts to cause the Merger, and to take no action which would cause
the Merger not, to qualify for treatment as a pooling of interests for
accounting purposes. Without limiting the foregoing, the Company and each of
the Owners agrees not to sell, transfer, or otherwise dispose of his, her or its
interests in, or reduce his, her or its risk relative to, any of the shares of
Premiere Common Stock received in connection with the Merger until such time as
Premiere notifies the Company and each such Owner that the requirements of ASRs
130 and 135 have been met. The Company and each of the Owners understands that
ASRs 130 and 135 relate to the publication of financial results of at least
thirty (30) days of post-Merger combined operations of Premiere and the Company.
Premiere agrees that it shall publish such results within forty-five (45) days
after the end of the first fiscal quarter of Premiere containing the required
period of post-Merger combined operations and that it shall notify the Company
and each of the Owners promptly following such publication. Premiere shall be
entitled to place the following restrictive legend on the shares of Premiere
Stock issued pursuant to the Merger to enforce the foregoing restrictions:
"The shares represented by this certificate were issued pursuant to a
business combination which is accounted for as a "pooling of interests" and
may not be sold, nor may the owner thereof reduce his risks relative
thereto in any way, until such time as Premiere Technologies, Inc.
("Premiere") has published the financial
-6-
results covering at least 30 days of combined operations after the
effective date of the merger through which the business combination was
effected."
3.7 Affiliate Agreements. The Company has disclosed in Schedule 3.7 all
-------------------- ------------
Persons whom it reasonably believes is an "affiliate" of the Company for
purposes of Rule 145 under the 1933 Act. The Company shall use its reasonable
efforts to cause each such Person to deliver to Premiere as soon as reasonably
practicable following the execution of this Agreement, a written agreement,
substantially in the form attached hereto as Exhibit D.
----------
3.8 Tax Representations. In connection with the opinion to be rendered to
-------------------
Premiere by Xxxxxx & Bird to the effect that the transactions contemplated
hereby will constitute a tax-free reorganization within the meaning of Section
368(a) of the Code, the Owners shall furnish such counsel with such
representations as to their plans for the disposition of the shares of Premiere
Stock to be received in the Transactions as such counsel shall reasonably
request.
3.9 Restricted Stock. All contractual restrictions or limitations on
----------------
transfer with respect to Company Common Stock under any plan, program, contract
or arrangement, to the extent that such restrictions or limitations have not
already lapsed (whether as a result of the Transactions or otherwise), and
except as otherwise expressly provided in such plan, program, contract or
arrangement, shall remain in full force and effect with respect to shares of
Premiere Stock into which such restricted stock is converted pursuant to Section
2.2 of this Transfer Agreement.
3.10 Exchange Listing. Premiere shall use its reasonable efforts to list,
----------------
prior to the Effective Time, on the Nasdaq National Market the shares of
Premiere Stock to be issued to the Owners pursuant to the Transactions, and
Premiere shall give all notices and make all filings with the NASD required in
connection with the Transactions.
IV. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF PREMIERE
-------------------------------------------------------
In addition to the conditions of Premiere contained in Article V of the
Uniform Terms, the obligation of Premiere to consummate the Transactions is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
4.1 Approval of Owners. The Owners shall have approved the Merger in
------------------
accordance with the requirements of the Ohio Act and the Company shall have
provided Premiere certified copies of such resolutions, and Owners holding no
more than ten percent (10%) of the Company Common Stock issued and outstanding
immediately prior to the Effective Time shall have exercised any of the rights
described in Section 2.4.
4.2 Grand Solution Documents. VTNLP, VTE, the NAP and each of the
------------------------
Franchisee Companies shall have executed and delivered Grand Solution Documents
reflecting the terms described in Exhibit E hereto in form and substance
---------
reasonable satisfactory to Premiere.
4.3 Pooling Letter. Premiere shall have received a letter, in form and
--------------
substance satisfactory to Premiere, from the Company containing representations
related to the pooling of interests accounting treatment, in the form attached
hereto as Exhibit F.
---------
-7-
4.4 Reorganization Opinion. Premiere shall have received an opinion of
----------------------
Xxxxxx & Bird LLP, counsel to Premiere, to the effect that the transactions
contemplated by the Agreement, including the Merger, will constitute a tax-free
reorganization within the meaning of Section 368(a) of the Code.
V. SUPPLEMENTAL CONDITIONS TO OBLIGATIONS OF THE COMPANY
---------------------------------------------------------
AND THE OWNERS
--------------
In addition to the conditions of the Company and the Owners contained in
Article VI of the Uniform Terms, the obligation of the Company and the Owners to
consummate the Transactions is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
5.1 Approval of Premiere and Merger Corp. The Board of Directors of
------------------------------------
Premiere and the Board of Directors and the shareholder of Merger Corp shall
have approved the Merger in accordance with the requirement of applicable state
law. Premiere and Merger Corp shall have provided the Company certified copies
of such resolutions.
5.2 Registration Rights. Premiere and each Owner shall have executed and
-------------------
delivered a Registration Rights Agreement.
VI. MISCELLANEOUS
------------------
6.1 Notices. The addresses for notices in accordance with Section 10.1 of
-------
the Uniform Terms for the Company and the Owners are as follows:
IF TO THE COMPANY: WITH A COPY TO:
Xxxx Xxxx Xxxxxxx X. XxXxxxxx, Xx.
Xxxx Enterprise, Inc. Xxxxx & Xxxxxxxxx LLP
Columbus Voice Partners 0000 Xxxx 0xx Xxxxxx
0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000-0000
Xxxxxxxx, Xxxx 00000
Wildfire: (000) 000-0000 Phone: (216) 000- 0000
Phone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
VT: (000) 000-0000
-8-
If to the Owners: With a copy to:
______________________ ______________________
______________________ ______________________
______________________ ______________________
Attn: _______________ Attn: _______________
Phone: (___) ___-____ Phone: (___) ___-____
Fax: (___) ___-____ Fax: (___) ___-____
6.2 Owner's Representative. The Owners' Representative for purposes of
----------------------
Section 10.2 of the Uniform Terms shall be Xxxx X. Xxxx, who shall serve as the
Owner's Representative under the terms of said Section 10.2 of the Uniform
Terms.
6.3 Certain Definitions. In addition to the terms defined elsewhere herein
-------------------
and in the Uniform Terms, as used in this Agreement:
(a) "Anticipated Closing Date" shall mean April 30, 1997.
------------------------
(b) "Knowledge" of the Company shall mean the personal knowledge
---------
after due inquiry of those facts that are known or should reasonably
have been known after due inquiry by Xxxx X. Xxxx and Xxxxxxxx X. Xxxx
and the knowledge of any such Persons obtained or which would have
been obtained from a reasonable investigation.
(c) "Outside Closing Date" shall mean June 30, 1997.
--------------------
[Signatures begin on next page.]
-9-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
PREMIERE:
PREMIERE TECHNOLOGIES, INC.,
a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Xxxxxxx X. Xxxxx
Title: Sr. V.P.
Attest:
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
COMPANY:
XXXX ENTERPRISES, INC.,
an Ohio corporation
By: /s/ Xxxx X. Xxxx
--------------------------------
Xxxx X. Xxxx
Title: President
Attest:
By: /s/ Xxxxxxxx X. Xxxx
---------------------------
Xxxxxxxx x. Xxxx
Title: Secretary
OWNERS:
/s/ Xxxx X. Xxxx
---------------
Xxxx X. Xxxx,
an individual resident of the
State of Ohio
Witness:
By: /s/ Xxx X. Xxxxxxx
---------------------------
Xxx X. Xxxxxxx
[Signatures continue on next page.]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
PREMIERE:
PREMIERE TECHNOLOGIES, INC.,
a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Xxxxxxx X. Xxxxx
Title: Sr. V.P.
Attest:
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
COMPANY:
XXXX ENTERPRISES, INC.,
an Ohio corporation
By: /s/ Xxxx X. Xxxx
--------------------------------
Xxxx X. Xxxx
Title: President
Attest:
By: /s/ Xxxxxxxx X. Xxxx
---------------------------
Xxxxxxxx x. Xxxx
Title: Secretary
OWNERS:
/s/ Xxxx X. Xxxx
---------------
Xxxx X. Xxxx,
an individual resident of the
State of Ohio
Witness:
By: Xxx X. Xxxxxxx
---------------------------
Xxx X. Xxxxxxx
[Signatures continue on next page.]
/s/ Xxxxxxxx X. Xxxx
-------------------
Xxxxxxxx x. Xxxx,
an individual resident of the
State of Ohio
Witness:
By: /s/ Xxx X. Xxxxxxx
---------------------------
Xxx X. Xxxxxxx
