Share Exchange Agreement
for the Acquisition of
Family Telecommunications Incorporated by
Medcross, Inc. (I-Link)
This Share Exchange Agreement ("Agreement") is effective as of January 1,
1997, by and among MEDCROSS, INC. (to be renamed I-LINK INCORPORATED), a
corporation organized and existing under the laws of the State of Florida
(hereafter "I-Link"), FAMILY TELECOMMUNICATIONS INCORPORATED, a corporation
organized and existing under the laws of the State of Utah (hereafter "FTI"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (hereafter individually
"▇▇▇▇▇▇▇" and "▇▇▇▇▇▇", and collectively the "FTI Shareholders").
W I T N E S S E T H:
WHEREAS, I-Link is a publicly-held corporation in the telecommunications
services business; and
WHEREAS, FTI is a privately-held corporation in the business of providing
telephone services, all of the issued and outstanding capital stock of which is
owned by the FTI Shareholders; and
WHEREAS, the parties intend by this Agreement to provide for the
acquisition of FTI by I-Link by means of an exchange with the FTI Shareholders
of all of FTI's outstanding shares for common shares of I-Link.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, it is agreed as follows:
l. Acquisition of the FTI Shares. Subject to the terms and conditions
contained herein, I-Link agrees to acquire, and the FTI Shareholders agree to
sell and transfer to I-Link all of the issued and outstanding shares of
capital stock of FTI, in exchange for the consideration described in Section 2
below, and the other covenants and consideration contained herein.
2. Consideration. In exchange for all of the issued and outstanding
stock of FTI, I-Link shall pay to the FTI Shareholders the following
consideration:
(a) Subsequent to the Closing (as defined in Section 6 below), and at
such time as all of the contingencies set forth in this Section 2(a) are
met, I-Link shall issue and deliver to ▇▇▇▇▇▇▇ 280,000 shares of the common
stock of I-Link, and shall issue and deliver to ▇▇▇▇▇▇ 120,000 shares of
the common stock of I-Link (collectively the "Shares" and further described
in Section 3 below). Issuance and delivery of the Shares shall be subject
to the completion to I-Link's reasonable satisfaction of the following (the
"Contingencies"):
(i) Completion and delivery to I-Link of an audit by Coopers &
▇▇▇▇▇▇▇ of FTI's financial statements for the twelve month period
ended December 31, 1996 and the issuance of Coopers & ▇▇▇▇▇▇▇'▇
unqualified audit opinion, confirming the existence of no material
discrepancies from the representations, warranties and exhibits made
and delivered by FTI and/or the FTI Shareholders under this Agreement;
(ii) Completion and delivery to I-Link of a formal valuation of
FTI and its assets prepared by Coopers & ▇▇▇▇▇▇▇, confirming that the
terms of the share exchange are fair to I-Link and its shareholders as
reasonably determined by I-Link;
(iii) Approval by I-Link's shareholders at I-Link's next
Shareholders' Meeting (currently scheduled for March 1997) of an
Amendment to I-Link's Articles of Incorporation increasing the number
of common shares I-Link is authorized to issue from 20,000,000 to
50,000,000; and
(iv) The existence at such time as (i), (ii) and (iii) above
shall be completed of no material breach of any of the representations
and warranties made by FTI and/or the FTI Shareholders under this
Agreement.
(b) At the Closing I-Link shall enter into employment contracts with
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ in the form attached hereto as Exhibit 2(b), which
include such employee benefits as are standard for I-Link's employees.
3. The I-Link Shares/Piggyback Registration. The Shares have not been
registered under the Securities Act of 1933, as amended (the "Act");
accordingly, the certificates representing the Shares shall bear the following
legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended ("Act"),
and may not be offered or sold except pursuant to (i) an effective
registration statement under the Act, (ii) to the extent applicable,
Rule 144 under the Act (or any similar rule under such Act relating to
the disposition of securities), or (iii) an opinion of counsel, if
such opinion shall be reasonably satisfactory to counsel to the
issuer, that an exemption from registration under such Act is
available.
If, at any time from the date hereof through December 31, 2001, I-Link
proposes to register any of its securities under the Act (other than in
connection with a merger, pursuant to Form S-8, or pursuant to the SB-2
registration statement filed with the SEC on December 16, 1996) it will give
written notice by registered mail, at least thirty (30) days prior to the
filing of each such registration statement, to each of the FTI Shareholders
of its intention to do so. If either of the FTI Shareholders notify I-Link
within twenty (20) days after receipt of any such notice of their desire to
include any of the Shares in such proposed registration statement, I-Link shall
afford the FTI Shareholders the opportunity to have any of the Shares registered
under such registration statement. Notwithstanding the foregoing, I-Link shall
have the right at any time after it shall have given written notice pursuant to
this Section 2(a) (irrespective of whether a written request for inclusion of
any of the Shares shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
4. Representations, Warranties and Agreements of Company and the FTI
Shareholders. FTI and the FTI Shareholders, jointly and severally represent and
warrant to and agree with I-Link with respect to the affairs of FTI that:
(a) FTI is duly organized and existing under the laws of the State of
Utah and is authorized and qualified to own and operate its properties and
assets and conduct its business as, and in all jurisdictions where, such
properties and assets are owned and operated and such business conducted.
FTI has duly filed any and all certificates and reports required to be
filed to date by the laws of and any other applicable law.
(b) FTI has authorized 10,000 shares of common stock, $.001 par
value, of which 1,200 shares are validly issued and outstanding to ▇▇▇▇▇▇▇
and 800 shares are validly issued and outstanding to ▇▇▇▇▇▇. There are no
outstanding options, warrants, or other rights to acquire any stock,
ownership interest, or other securities of FTI.
(c) Neither the FTI Shareholders, FTI nor its directors, officers,
fiduciaries, agents or employees, is in violation of any applicable law,
rule, regulation or requirement of any governmental authority in any way
relating to FTI's business. Consummation of the transactions contemplated
hereby, and continuation by I-Link of FTI's business in the same manner as
heretofore conducted by it will be in compliance with all presently
applicable laws, rules, regulations and requirements of all governmental
authorities without the necessity for any license or permit or other action
or permission in the nature thereof, or any registration with, or consent
of, any governmental authority.
(d) Consummation of this transaction will not have any adverse effect
on approvals, licenses and/or permits previously granted FTI by the Federal
Communications Commission ("FCC"), or any state or local regulatory
authority empowered to regulate the provision of telephone services, which
are necessary for FTI to conduct its business, nor will the consummation of
this transaction cause any such approvals, licenses and/or permits to become
in any way invalid.
(e) FTI is not in default under or in violation of any provisions of
its Articles of Incorporation or Bylaws and neither the FTI Shareholders
nor FTI is in default under or in violation of any restriction, lien,
encumbrance, indenture, contract, lease, sublease, loan agreement, note or
other obligation or liability relating to FTI's business to which any of
the FTI Shareholders or FTI is a party or by which any of the FTI
Shareholders or it is bound, or to which any of their or its assets are
subject. Neither the execution and delivery of this Agreement nor
consummation of the transactions contemplated hereby will conflict with or
result in a breach of or constitute a default under any provision of the
Articles of Incorporation or Bylaws of FTI or any restriction, lien,
encumbrance, indenture, contract, lease, sublease, loan agreement, note or
other obligation or liability to which any of the FTI Shareholders or FTI
is a party or by which any of them are bound, or to which any of their or
its assets are subject, or result in the creation of any encumbrance upon
said assets. No other party has any right to acquire any ownership
interest in or asset of FTI, nor does any party have any rights to market
and sell the products and services of FTI on an exclusive basis.
(f) The financial statements dated December 31, 1996, which are
attached hereto as Exhibit 4(f) are correct and complete and fairly
present the financial condition of FTI and its Affiliates at the dates
described therein, and have been prepared in accordance with generally
accepted accounting principles consistently applied.
(g) Other than those reflected in Exhibit 4(g), FTI does not have any
written or oral material obligation, liability, contract, agreement, lease,
sublease, commitment or understanding of any kind, nature or description,
fixed or contingent, due or to become due, existing or inchoate. FTI has
no tax liabilities.
(h) The accounts receivable of FTI shown on Exhibit 4(h) are proper
and collectible at the aggregate recorded amounts thereof less any reserves
shown thereon. Said reserves are reasonable in amount, both for the
industry of which FTI is a part, and in view of the regular business
practices of FTI, and do not exceed 5% of FTI's total accounts receivable.
(i) The properties and assets presently owned by FTI include all
properties and assets of every kind, class and description, real and
personal, tangible and intangible, known and unknown, shown on the books of
or used in the business of FTI and all properties and assets in which FTI
had any right, title or interest on December 31, 1996. FTI has good title
to and possession of all such known properties and assets free and clear
of all restrictions, liens, encumbrances, rights, title and interests in
others, except as set forth on Exhibit 4(g). No one other than FTI has any
right, title, interest, restriction, lien or encumbrance in, on or to the
businesses conducted by FTI.
(j) FTI owns no real property other than leasehold improvements. All
leasehold improvements, buildings, fixtures, and equipment owned or used by
FTI are in reasonably good and sound condition and are in compliance with
all laws, rules, regulations and requirements of governmental authorities,
including, but not limited to those dealing with the usage, storage and
disposal of hazardous wastes. There are no fuel storage tanks located on
or around any real property leased or used by FTI. FTI has never received
any notification from any local, state or federal authority of a violation
of any rule, law or ordinance dealing with the usage, storage and disposal
of hazardous wastes. FTI enjoys exclusive, peaceful and undisturbed
possession under all leases to which it is a party. All such leases are
valid, freely assignable and enforceable in accordance with their terms,
and no party thereto is in default thereunder. The Lease Agreements
(hereafter "Leases") attached hereto as Exhibit 4(j) are true and correct
copies of the Leases entered into by FTI for all of the premises occupied
by FTI, which Leases are presently in full force and effect, without
amendment.
(k) There are no suits or proceedings at law or in equity, or before
or by any governmental agency or arbitrator, pending, threatened,
anticipated or contemplated, which in any way affect FTI, and there are no
unsatisfied or outstanding judgments, orders, decrees or stipulations
affecting the FTI Shareholders, FTI or their assets or to which any of
them is or may become a party which in any way affect the them. There are
no claims against the FTI Shareholders or FTI pending, threatened,
anticipated, or contemplated which, if valid, would constitute or result
in a breach ofany representation, warranty or agreement set forth herein.
(l) Since the date of the most recent financial statement of FTI
which has been provided to I-Link, there has not been:
(i) any material adverse change in the properties, assets,
business, affairs or prospects of FTI nor, to the best of the
knowledge of FTI and the FTI Shareholders, are any such changes
threatened, anticipated, or contemplated;
(ii) any actual or threatened, anticipated, or contemplated damage,
destruction, loss, conversion, termination, cancellation, default or
taking by eminent domain or other action by governmental authority which
has affected or may hereafter affect the properties, assets, business,
affairs or prospects of FTI or;
(iii) any material and adverse dispute pending or threatened,
anticipated or contemplated of any kind with any customer, supplier,
source of financing, employee, landlord, subtenant or licensee of FTI
or any pending or threatened, anticipated or contemplated occurrence
or situation of any kind, nature or description which is reasonably
likely to result in any reduction in the amount, or any change in the
terms or conditions, of business with any substantial customer,
supplier, or source of financing;
(iv) any pending or threatened, anticipated or contemplated
occurrence or situation of any kind, nature or description peculiar
to the business of FTI and materially and adversely affecting its
properties, assets, business, affairs or prospects; or
(v) any reduction of capital, redemption of stock or dividend or
distribution with respect to stock, by FTI.
(m) FTI's Board of Directors has authorized the execution, delivery
and performance of this Agreement. All present and previous stockholders,
directors and officers of FTI will at any time or from time to time
hereafter execute whatever minutes of meetings or other instruments and
take whatever action I-Link may deem necessary or desirable to effect,
perfect or confirm of record or otherwise in I-Link, full right, title and
interest in and to the business, properties and assets of FTI, or to carry
out the intent and purposes of the transactions contemplated hereby.
(n) The corporate record books of FTI are in good order, complete,
accurate, up to date, with all necessary signatures and set forth all
meetings and actions taken by the stockholders and directors, including
all actions set forth in all certificates of votes of stockholders or
directors furnished to anyone at any time. The copies of FTI's Articles
of Incorporation and Bylaws which have been delivered to I-Link are
complete and correct.
(o) The stock transfer books and stock ledgers of FTI are in good
order, complete, accurate and up to date, and with all necessary
signatures, and set forth all stock and securities issued, transferred and
surrendered. No duplicate certificate has been issued at any time
heretofore. No transfer has been made without surrender of the proper
certificate duly endorsed. All certificates so surrendered have been duly
cancelled and are attached to the proper stubs with all necessary stock
powers attached thereto.
(p) FTI owns all copyrights, rights of reproduction, trademarks,
trade names, trademark applications, service marks, patent applications,
patents, and patent license rights, all whether registered or unregistered,
U.S. or foreign, inventions, franchises, discoveries, ideas, research,
engineering, methods, practices, processes, systems, formulae, designs,
drawings, products, projects, improvements, developments, know-how, and
trade secrets which are used in or necessary for the conduct of its
business, without conflict or infringement of any, and subject to no
restriction, lien, encumbrance, right, title or interest in others. All
of the foregoing stand solely in the name of FTI and not in the name of
any stockholder, director, officer, agent, partner or employee or anyone
else known to the FTI Shareholders, and none of the same have any right,
title, interest, restriction, lien or encumbrance therein, or thereon or
thereto.
(q) Each of the FTI Shareholders is the owner, free and clear of any
claim, lien, charge, or encumbrance or restriction, of the number of Shares
of Company stock to be sold by him pursuant to paragraph I above, and the
FTI Shareholders collectively are the owners of all of the issued and
outstanding shares of common stock of FTI and each FTI Shareholder now has
and will have, at the Closing, full power and authority and the legal right
to sell such shares to I-Link pursuant to this Agreement.
(r) FTI and the FTI Shareholders have not made any material
misstatement of fact or omitted to state any material fact necessary or
desirable to make complete, accurate and not misleading every
representation, warranty and agreement set forth herein.
(s) The assets of FTI on the Closing date shall include all of the
assets set forth on Exhibit 4(s), and any others acquired in the ordinary
course of business prior to the Closing date.
(t) Other than those listed on Exhibit 4(t), FTI has no written
contracts of employment with any of their shareholders, employees,
agents, or sales representatives; and it has no verbal contracts of
employment which cannot be terminated without default by FTI on thirty
(30) days notice. Copies of the employment agreements listed on Exhibit
4(t) are attached as part of Exhibit 4(t).
(u) FTI is not a party to nor subject to any collective bargaining
agreement, any employee bonus plan, any deferred compensation plan, or
any Pension or profit-sharing or other type of retirement plan.
(v) FTI has filed all tax returns and reports and have paid all of
their tax liabilities, including sales and payroll taxes, both federal
and in all states and foreign countries where they do business; and they
are not presently the subject of any tax audit by any taxing authority.
FTI has paid or accrued on its books of account all
taxes payable by it (including penalties and interest) and the amounts
reserved for taxes on its latest financial statements attached hereto
are sufficient for the payment of all taxes due for sales and payroll
and/or other activities through the date of such financial statements.
True and correct copies of all state and federal tax returns filed since
FTI's
inception have been provided as part of Exhibit 4(v).
(w) Each of the representations, warranties and agreements contained
in this Agreement, whether of FTI or any of the FTI Shareholders, is true
and correct in every respect as of the date hereof. The FTI Shareholders,
jointly and severally, will exonerate and indemnify I-Link and FTI against
all claims, suits, obligations, liabilities, taxes and damages, including
without limitation of the foregoing, reasonable attorneys'and accounting
fees, based upon, arising out of or resulting from any breach of any of
the representations, warranties or agreements of the FTI Shareholders or
FTI herein or any Closing Certificate delivered pursuant hereto, or
nonfulfillment of any of their undertakings hereunder, or the operations
of FTI prior to the Closing, or any actual or alleged occurrence or
situation in any way inconsistent herewith.
(x) FTI has no subsidiaries or investments in other companies,
corporations or business ventures.
(y) FTI and each of the FTI Shareholders agree to not purchase any of
the shares of I-Link from any source whatsoever at any time after the date
hereof and prior the expiration of two business days following the public
announcement of the Closing of this transaction by I-Link and the filing
by I-Link with the SEC of a description of this transaction on Form 8-K,
including the filing of all financial statements and pro-forma financial
statements that shall be required to by filed by I-Link with the SEC
pursuant to Form 8-K.
(z) Every representation, warranty and agreement of the FTI
Shareholders and FTI set forth in this Agreement, and any Closing
Certificate delivered pursuant hereto and every one of the rights and
remedies of I-Link for any one or more breaches hereof shall survive and
not be deemed waived by the Closing, and shall be effective regardless of
any investigation that may have been made at any time by or on behalf of
I-Link.
(aa) the FTI Shareholders represent that they are familiar with the
business of I-Link, that they have been provided detailed information
relating to I-Link and its businesses, including all filings made by I-Link
with the United States Securities and Exchange Commission (the "SEC") for
the last year; and further represent that they have been advised by I-Link
to review with legal counsel of their choice the terms of this agreement
and disclosure information relating to I-Link, and have had adequate
opportunity to do so.
5. Representations, Warranties and Agreements of I-Link. I-Link
represents and warrants to and agrees with the FTI Shareholders that:
(a) I-Link is duly organized and validly existing under the laws of
the State of Florida and in good standing, and is authorized and qualified
to own and operate its properties and assets and conduct its business as,
and in all jurisdictions where, such properties and assets are owned and
operated and such business conducted.
(b) I-Link has full right, power and authority to execute, deliver
and perform the terms of this Agreement. This Agreement has been duly
authorized by I-Link and constitutes the binding obligation of it,
enforceable in accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor
consummation of the transactions contemplated hereby will conflict with or
result in a breach of or constitute a default under any provision of
I-Link's Articles of Incorporation or Bylaws or any indenture, loan
agreement, or other material obligation or liability to which it is a party
or by which it is bound.
(d) The information concerning I-Link heretofore furnished to the FTI
Shareholders does not include any material misstatement or fact, nor does
it omit to state any material fact necessary to make such information not
misleading.
6. The Closing. The conveyance of all of the FTI Shareholders' shares in
FTI to I-Link shall take place at the offices of I-Link in Salt Lake City, Utah,
not later than January 31, 1997, or at such other time or place as shall be
fixed by the mutual consent of the parties. Said date of conveyance is herein
called the "Closing". At the Closing (i) the FTI Shareholders shall deliver
to I-Link certificates evidencing not less than 100% of the issued and
outstanding shares of FTI, in each case duly endorsed for transfer in blank
or accompanied by a blank stock power or with such other endorsements or
instruments of transfer as I-Link may reasonably request, together with the
Closing Certificate and other documents and matters referred to in
subparagraphs (ii), (iii), (iv), (vii), (ix), (x), and (xi) of subparagraph
8(a) below; and (ii) I-Link shall deliver to the FTI Shareholders the
employment agreements described in paragraph 2(b), and the Closing
Certificate referred to in subparagraph 8(b) below.
7. Actions Prior to Closing. After January 1, 1997, and prior to the
Closing, and except as may be first approved in writing by I-Link, or as
otherwise permitted or contemplated by this Agreement, (i) the business of
FTI shall be conducted only in the usual and ordinary course without the
creation of indebtedness for money borrowed, except in the ordinary course of
business, (ii) no change shall be made in the Articles of Incorporation or
Bylaws of FTI, (iii) no shares of stock of FTI or its Affiliates shall be
authorized for issuance or issued or delivered from treasury and no agreement
for such issuance or delivery thereof shall be entered into, (iv) no dividend
or other distribution in respect of and no redemption of any shares of stock
of any class of FTI or its Affiliates shall be made by FTI (v) no increases
shall be made in the compensation (including any commissions or bonuses)
payable or to become payable by FTI or its Affiliates to any employee, (vi)
no contract or commitment shall be entered into by or on behalf of FTI or
its Affiliates except in the ordinary course of business, (vii) FTI will
continue in effect its existing insurance coverage on all its properties,
assets, business and personnel, (viii) no general increases shall be made in
wages or benefits of any group of employees as a result of collective
bargaining or otherwise and (ix) FTI will not subject any of its property or
assets to any material lien, claim, charge, option or encumbrance nor will
it do or omit to do any act which will cause a material breach in any contract,
agreement, lease, commitment or obligation to which it is a party or by which
it is bound.
FTI and the FTI Shareholders shall also provide I-Link with information,
including financial information for the period from FTI's inception through
the Closing, prepared in accordance with generally accepted accounting
principles and acceptable to I-Link, and shall fully cooperate with I-Link's
auditors and legal counsel, in order to enable I-Link to prepare and make all
necessary state and federal filings. FTI and the FTI Shareholders shall afford
to the officers, directors, and/or the authorized representatives of I-Link
free access to their facilities, properties and records in order that I-Link
may have the full opportunity to undertake such reasonable due diligence as
I-Link shall deem prudent in confirming the representations and warranties
of FTI and in preparing said filing materials.
8. Conditions of I-Link's and the FTI Shareholders' Performance.
(a) The obligation of I-Link to consummate this Agreement is subject
to the satisfaction at the Closing, or waiver by I-Link in writing, of
each of the following conditions:
(i) All proceedings taken in connection with the transactions
contemplated herein and all instruments and documents required in
connection therewith or incident thereto shall be satisfactory in
form to Hardy & ▇▇▇▇▇, legal counsel for I-Link.
(ii) The representations and warranties of FTI and the FTI
Shareholders contained in this Agreement or in any Closing
Certificate or other document delivered to I-Link pursuant hereto
shall be deemed to have been made again at the Closing and shall then
be true in all material respects; the FTI Shareholders and FTI shall
have performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by them
prior to or at the Closing; the FTI Shareholders and FTI shall not be
in default under any of the provisions of this Agreement; and I-Link
shall have been furnished with Closing Certificates of the FTI
Shareholders dated the Closing date, certifying to the fulfillment of
the foregoing conditions and the due performance of such covenants
and agreements and further certifying that neither FTI or the FTI
Shareholders are a party to any litigation or has knowledge of any
claim, brought or threatened, seeking to recover damages or to
prevent FTI or the FTI Shareholders from continuing to use FTI's
assets or to conduct its business in the manner as the same were used
or conducted prior thereto, and which litigation or claim is likely
to result in any judgment, order, decree or settlement which will
materially and adversely affect the financial condition or business
of FTI;
(iii) I-Link shall have received the resignations of all of
the directors and officers of FTI;
(iv) Owners of not less than 100% of the issued and
outstanding shares of FTI shall have executed this Agreement;
(v) At the Closing date, no governmental agency or body, or other
person or entity, shall have instituted or threatened any action to
restrain or prohibit any of the transactions contemplated by this
Agreement;
(vi) FTI shall have entered into Employment and Non-
Competition Agreements with ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, and such of its other
employees as I-Link shall require, in substantially the same form as
set forth in the attached Exhibit 2(b); and
(vii) The business of FTI as a going concern shall not have
been adversely affected in any material way as the result of any Act
of God, fire, flood, explosion, war, labor disturbance or other
casualty or any other occurrence.
(viii) the FTI Shareholders shall deliver to I-Link within 15
days after Closing certificates of search of the Uniform Commercial
Code filings maintained at the state or county offices where such
filings are regularly maintained in each jurisdiction where any assets
or leasehold interests of FTI are located, dated not prior to Closing,
and in form and substance satisfactory to I-Link. Such certificates
shall show searches of filings with respect to each of the FTI
Shareholders, FTI and all other names under which FTI has conducted
business.
(ix) the FTI Shareholders shall cause to be executed and
delivered to I-Link at Closing an Estoppel Certificate signed by
the landlord under any real property leases under which FTI is a
tenant, in substantially the same form as attached hereto as Exhibit
8(a)(ix).
(x) Final approval of this Agreement and the transactions
contemplated herein by the Board of Directors of I-Link.
(xi) Final acceptance by I-Link's accounting firm of the
financial statements of FTI which are attached hereto as sufficient to
satisfy all of the regulatory and reporting requirements of all
securities laws applicable to I-Link.
(b) The obligation of the FTI Shareholders to consummate this Agreement
is subject to the satisfaction at the Closing, or waiver by the FTI Shareholders in
writing, of the conditions that the representations and warranties of I-Link contained
in this Agreement or in any Closing Certificate or other document delivered to the FTI
Shareholders pursuant hereto shall be deemed to have been made again at the Closing
and shall then be true in all material respects; I-Link shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing; and the FTI Shareholders shall have
been furnished with a Closing Certificate of appropriate officers of I-Link dated as of
the Closing date, certifying to the fulfillment of the foregoing conditions.
9. Non-Competition and Non-Disclosure Covenants. Each of the FTI Shareholders
hereby covenants and agrees that for a period of three (3) years from the date of
Closing that he will not within any geographic market in which I-Link or its
affiliates conduct business, directly or indirectly compete, whether as an
owner, partner, officer, director or employee, with I-Link in any business in
which I-Link or FTI is presently engaged. This covenant is entered into between
the parties hereto with full knowledge of its nature and extent. The FTI
Shareholders hereby acknowledge that this covenant is an essential part of this Agreement and
that this covenant is enforceable by injunctive relief in the event of a breach or threatened
breach hereof by the FTI Shareholders or any of them.
Each of the FTI Shareholders and FTI agrees not to disclose to any person or entity,
without the prior written consent of I-Link, (i) any of the terms of this Agreement, or (ii) any
customer lists, suppliers, manufacturing methods, sales methods, price or cost information, or
any financial information regarding FTI or this acquisition, or any other confidential or
proprietary information of FTI at any time hereafter.
10. Termination and Amendment.
(a) This Agreement may be terminated by any party upon written notice
if the Closing referred to in paragraph 5 hereof shall not have occurred on or prior to
January 31, 1997.
(b) This Agreement may be terminated by any party at any time prior to
the time fixed for Closing in paragraph 6 hereof upon written notice to the other
parties:
(i) If the representations, warranties and agreements or conditions of
this Agreement to be complied with or performed by FTI or the FTI
Shareholders (in the case of I-Link) or I-Link (in the case of the FTI
Shareholders) on or before the Closing shall not have then been complied with
or performed in some material respect and such material noncompliance or
nonperformance shall not have been waived by the party giving notice of
termination or shall not have been cured by the defaulting party, or cure
thereof commenced and diligently prosecuted thereafter by such party within
10 days after written notice of such material noncompliance or nonperformance
is given by the non-defaulting party;
(ii) If any governmental action is commenced to prevent the
consummation of the transactions contemplated hereby; or
(iii) By mutual consent of the parties.
(c) This Agreement may be terminated by I-Link subsequent to the Closing
if any of the Contingencies set forth in Subparagraph 2(a) are not fully met.
(d) Any representations, warranties, agreements or conditions of this
Agreement may be waived at any time by the party entitled to the benefit thereof by
action taken and evidenced by a written waiver executed by any such party.
11. Commissions and Fees. Each of the parties hereto represents and warrants that
it has dealt with no broker or finder in connection with any of the transactions contemplated
by this Agreement. In the event that any finder's fee or broker's commission shall become
payable by any party hereto as a result of such party's misrepresentation or breach of warranty
such fee and commission shall be the sole and exclusive responsibility and liability of such
party with no right of contribution by any other party. In the event that any finder's fee or
broker's commission shall become payable by any party, other than as set forth herein, as a
result of such party's misrepresentation or breach of warranty, the breaching party shall
indemnify, defend and hold all other parties harmless in respect of all claims, losses, expenses
and obligations (including reasonable attorney's fees) to the extent that the same arise or result
from such finder's fee or broker's commission. Each of the parties hereto will bear its own
legal fees in connection with the transactions contemplated by this Agreement; and none of
such fees shall be charged to FTI. All reasonable audit fees incurred on behalf of FTI in
connection with the transactions contemplated by this Agreement shall be charged to and paid
by I-Link.
12. Miscellaneous.
(a) Severability. If any term or provision of this Agreement including the
exhibits hereto or the application thereof to any person, property or circumstances
shall to any extent be invalid or unenforceable, the remainder of this Agreement
including the exhibits or the application of such term or provision to persons, property
or circumstances other than those as to which it is invalid and unenforceable shall not
be affected thereby, and each term and provision of this Agreement and the exhibits
shall be valid and enforced to the fullest extent permitted by law.
(b) Notices. Any notices hereunder shall be deemed given, and any
instrument delivered, upon mailing by registered or certified mail, postage prepaid, or
upon sending of such notice by straight telegram, telegraphic charges prepaid as
follows:
If to the FTI Shareholders:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to I-Link:
I-Link Incorporated
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., CFO
▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
except that any of the foregoing may from time to time by written notice to the others
designate another address which shall thereupon become its effective address for the
purposes of this paragraph.
(c) Entire Agreement and Amendments. This Agreement including the
exhibits referred to herein which are a part hereof, contains the entire understanding
of the parties hereto with respect to the subject matter contained herein and may be
amended only by a written instrument executed by the FTI Shareholders and I-Link
or their respective successors or assigns. There are no restrictions, promises, warranties,
covenants, or undertakings other than those expressly set forth herein. The paragraph
headings and table of contents contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement.
(d) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(e) Parties in Interest. This Agreement shall inure to the benefit of and be
binding upon the FTI Shareholders and I-Link and their respective successors, heirs and
assigns.
(f) Applicable Law and Choice of Forum. This Agreement shall be
governed by the laws of the State of Utah. Any legal action commenced in connection
herewith or alleging any default hereunder shall be brought in Federal Court in the
State of Utah.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective
on the date first above written.
MEDCROSS, INC. (to be renamed FAMILY TELECOMMUNICATIONS
I-LINK INCORPORATED) INCORPORATED
By: _______________________________ By: _________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President President
_________________________________ _____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Index to Exhibits
Exhibit 2(b) I-Link Employment Contracts
Exhibit 4(f) FTI Financial Statements
Exhibit 4(g) Listing of Material Obligations (Contracts, Leases, etc.)
Exhibit 4(h) FTI Accounts Receivable
Exhibit 4(j) Copies of Leases
Exhibit 4(s) List of FTI Assets
Exhibit 4(v) FTI Tax Returns
Exhibit 8(a)(ix) Estoppel Certificate (Real Property Leases)
