AMENDMENT TO SHARE EXCHANGE AGREEMENT
Exhibit
2.2
EXECUTION
VERSION
AMENDMENT
TO SHARE EXCHANGE AGREEMENT
THIS
AMENDMENT TO SHARE EXCHANGE AGREEMENT, dated as of the 21st day
of January, 2010, is made by and among BLACKBIRD CORPORATION, a Florida
corporation (“Blackbird”); MR. PREPAID, INC., a Florida corporation (“Mr.
Prepaid”); RAPID LINK, INCORPORATED, a Delaware corporation (“Rapid Link”); the
principal Blackbird stockholders identified on the signature page hereto (the
“Principal Blackbird Stockholders”); and the principal Rapid Link stockholders
identified on the signature page hereto (the “Principal Rapid Link
Stockholders”). Capitalized terms used in this Amendment and not
otherwise defined in this Amendment have the meanings assigned to them in the
Original Agreement (defined below).
RECITALS
WHEREAS, the parties entered
into that certain Share Exchange Agreement, dated as of October 13, 2009 (the
“Original Agreement”), pursuant to which, among other things, Rapid
Link agreed to acquire all Blackbird Capital Stock in exchange for an
aggregate of 520,000,000 shares of Rapid Link Common Stock, representing 80% of
the outstanding Rapid Link Common Stock giving effect to such issuance and the
transactions contemplated by the Original Agreement, all upon the terms and
conditions set forth in the Original Agreement; and
WHEREAS, the parties wish to
amend the Original Agreement as provided in this Amendment.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions.
(a) The
definitions of the terms “Closing,” “Laurus,” “Laurus Assumed Debt,” and
“Trident” as set forth in Schedule 1.1 to the
Original Agreement are hereby deleted in their entirety.
(b) Schedule 1.1 to the
Original Agreement is amended to add the following defined terms:
“Agent”
means LV Administrative Services, Inc., as administrative and collateral agent
for the Laurus Creditors.
“Closing”
means the closing of the Share Exchange transaction.
“Laurus”
means Laurus Master Fund, Ltd.
“Laurus
Creditors” means each of Valens Offshore SPV II, Corp., Valens U.S. SPVI, LLC,
Laurus Master Fund, Ltd. (In Liquidation) and Agent.
“Mr.
Prepaid” means Mr. Prepaid, Inc., a Florida corporation and wholly-owned
subsidiary of Blackbird.
“Mr.
Prepaid Capital Stock” means the shares of Mr. Prepaid common stock, par value
$.01 per share.
“New
Rapid Link” has the meaning set forth in Section 1.5(b) hereof.
“Rapid
Link Debt” has the meaning set forth in Section 5.6 hereof.
“Subsequent
Closing” has the meaning set forth in Section 1.5 hereof.
“Subsequent
Closing Date” means the date on which the Subsequent Closing
occurs.
“Trident”
has the meaning set forth in Section 5.9 hereof.
“Yak
America” means Yak America Inc., a Florida corporation and wholly-owned
subsidiary of Blackbird.
“Yak
Capital Stock” means the shares of Yak America common stock, par value $.01 per
share.
2. Additional
Amendments to Article I of the Original Agreement. Sections
1.2 through 1.6 of the Original Agreement are hereby deleted in their entirety
and replaced with the following:
1.2 Basic
Transaction. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, Rapid Link shall acquire all of the
issued and outstanding shares of Mr. Prepaid Capital Stock in exchange for the
amount of shares of Rapid Link Preferred Stock described herein, and Mr. Prepaid
will become a wholly-owned subsidiary of Rapid Link (the “Share
Exchange”). In addition, on the terms and subject to the conditions
set forth in this Agreement, at the Subsequent Closing Blackbird will also
deliver all of the issued and outstanding shares of Yak Capital Stock and the
capital stock of any other Blackbird Subsidiary to Rapid Link and the
Telenational Assets will be transferred to a wholly-owned Affiliate of Rapid
Link in accordance with the Article 9 Sale for the assumption by such transferee
of $1.85 million of indebtedness to the Laurus Creditors to be secured by such
Telenational Assets.
1.3 Exchange of
Shares.
(a) At the
Closing, Rapid Link will cause to be issued and held for delivery to Blackbird,
stock certificates representing an aggregate of 10,000,000 shares of Rapid Link
Preferred Stock, convertible into 520,000,000 shares of Rapid Link Common Stock
(and having the other rights and preferences set forth in the Certificate of
Designation of the Rapid Link Preferred Stock in the form of Exhibit D hereto),
representing 80% of the voting control of Rapid Link giving effect to such
issuance and the transactions contemplated hereby in exchange for all of the
issued and outstanding shares of Mr. Prepaid Capital Stock, which shares will be
delivered by Blackbird to Rapid Link at the Closing.
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(b) The
shares of Rapid Link Preferred Stock to be issued pursuant to paragraph (a) of
this Section 1.3 will be authorized, but theretofore unissued, shares of Rapid
Link Preferred Stock, and will be issued to Blackbird or as directed thereby as
set forth in Schedule
1.3(b) hereto.
(c) All
shares of Rapid Link Preferred Stock to be issued pursuant hereto shall be
deemed “restricted securities” as defined in paragraph (a) of Rule 144 under the
Securities Act, and Blackbird will represent in writing that it is acquiring
such shares for investment purposes only; provided, however, that Blackbird may
distribute such shares to the Blackbird Stockholders pursuant to one or more
exemptions from the registration requirements of the Securities Act following
the earlier of the Subsequent Closing or the termination of this Agreement in
accordance with the terms hereof. All shares of Rapid Link Preferred
Stock to be issued under the terms of this Agreement shall be issued pursuant to
an exemption from the registration requirements of the Securities Act, under
Section 4(2) of the Securities Act and the rules and regulations promulgated
thereunder. Certificates representing the shares of Rapid Link
Preferred Stock to be issued hereunder shall bear a restrictive legend in
substantially the following form:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF
SUCH ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION PROVISIONS, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF RAPID
LINK.
1.4 Rights to Acquire Rapid Link
Common Stock.
(a) Subject
to paragraph (c) below, on or prior to the Closing Date, Rapid Link shall use
its commercially reasonable efforts to terminate and cancel all outstanding
Derivative Securities including, without limitation, any such Derivative
Securities or other derivatives held by any of the following: (i) the Principal
Rapid Link Stockholders, (ii) all employees of Rapid Link and its subsidiaries,
and (iii) any other lender of Rapid Link except for such equity securities set
forth in Schedule
1.4. From and after the Closing Date, other than as
expressly set forth in this Section 1.4, no holder of any Derivative
Securities shall have any rights in respect thereof.
(b) Rapid
Link shall take all actions prior to or as of the Closing Date that are
necessary to the effect that any plan, program or arrangement with any current
or former employee, officer, director or consultant providing for the issuance
or grant of any interest in respect of the capital stock of Rapid Link shall
terminate as of the Closing Date. Rapid Link shall exercise commercially
reasonable efforts to ensure that following the Closing Date no current or
former employee, officer, director or consultant shall have any option to
acquire any Rapid Link Common Stock or any other equity interest in Rapid Link
under any plan, program or arrangement maintained by Rapid
Link. Notwithstanding the foregoing, the outstanding
Telenational employee stock options will automatically expire upon the transfer
of the Telenational capital stock to New Rapid Link as provided in Section
1.5(b), below.
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(c) Notwithstanding
the foregoing, the Derivative Securities listed on Schedule 1.4 shall
remain outstanding subject to the respective terms and conditions of the
instruments governing such Derivative Securities, as may be modified
hereby.
1.5 Transfer of Certain
Telenational Assets and Liabilities.
(a) All
assets of Telenational necessary to conduct the Core Business (the “Telenational
Assets”) along with the Telenational Liabilities (as hereafter defined) shall be
sold to a wholly-owned Affiliate of Rapid Link at a closing subsequent to the
Closing on terms reasonably acceptable to the Agent (the “Subsequent
Closing”). Attached as Schedule 1.5 hereto,
is a list of the Telenational Assets and the liabilities of Telenational
(“Telenational Liabilities”) to be transferred at the Subsequent
Closing. Such Telenational Liabilities shall include the indebtedness
due to the Laurus Creditors as described in Section 7.1(i) hereof. No
other liabilities or obligations of Telenational shall be assumed by any
Affiliates of Rapid Link. The transfer of the Telenational Assets
shall be accomplished through a private or public sale by the Agent under
Article 9 of the Uniform Commercial Code (the “Article 9 Sale”). If
the Article 9 Sale is a public sale, then the Telenational Assets and
Telenational Liabilities shall be sold to the highest bidder at such
sale. At the Subsequent Closing, all of the issued and outstanding
shares of Yak America Capital Stock and the capital stock of any other Blackbird
Subsidiary will be delivered by Blackbird to Rapid Link.
(b) Prior to
the Closing Date, the outstanding capital stock of Telenational and One Ring
shall be transferred from Rapid Link to a third party (“New Rapid Link”),
controlled by Principal Rapid Link Stockholder ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or another third
party designee, without recourse or liability to Rapid Link, and Telenational
and One Ring shall no longer be Subsidiaries of Rapid Link. Such
transfer of the outstanding capital stock of Telenational and One Ring shall be
pursuant to documentation reasonably acceptable to Blackbird including, without
limitation, an agreement by Telenational to indemnify and hold Rapid Link
harmless from any claims or demands made against Rapid Link or any of its
Affiliates arising from or relating to any liability, debt or other obligation
of either Telenational or Rapid Link, as the case may be, which such
indemnification obligations shall be unsecured and subordinated in favor of the
Laurus Creditors. Principal Rapid Link Stockholder ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
shall cause Telenational to enter into such indemnification
agreement.
1.6 Closings; Closing
Deliveries.
(a) Closing. Unless
this Agreement has been terminated pursuant to Section 7.1 hereof, the Closing
shall occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A., Miami, Florida (or at such
other place as the parties may mutually agree). The Closing shall
occur as soon as possible after the conditions set forth in Articles 5 and 6
have been satisfied or waived, but no earlier than two Business Days following
the filing by Rapid Link with the SEC of the Annual Report referenced in Section
5.21, below, on such date as the parties may mutually determine (the “Closing
Date”).
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(b) Blackbird Closing
Deliveries. At the Closing, Blackbird shall deliver, or cause
to be delivered, to Rapid Link the following items:
(i) Blackbird
will deliver to Rapid Link stock certificates or other documentation
representing all of the issued and outstanding shares of Mr. Prepaid Capital
Stock, duly endorsed, so as to make Rapid Link the holder thereof;
(ii) Blackbird
will deliver the documents required by the Agent to perfect its security
interest in the assets of Mr. Prepaid; and
(iii) The
documents and instruments required to be delivered by Blackbird under Section
4.9 and Article 6 hereof.
(c) Rapid Link’s Closing
Deliveries. At the Closing, Rapid Link shall deliver, or cause
to be delivered, to Rapid Link the following items:
(i) Rapid
Link will deliver to, or at the direction of, Blackbird, in accordance with
Schedule 1.3(b)
hereof, stock certificates representing an aggregate of 10,000,000 shares of
Rapid Link Preferred Stock, which certificates will bear a standard restrictive
legend in the form set forth in Section 1.3(c) above and which shares shall
represent 80% of the voting control of Rapid Link giving effect to the
transactions contemplated hereby; and
(ii) The
documents and instruments required to be delivered by Rapid Link under Sections
4.8 and 4.9 and Article 5, below.
(d) Subsequent
Closing. Unless this Agreement has been terminated pursuant to
Section 7.1 hereof, the Subsequent Closing shall occur at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇, P.A., Miami, Florida (or at such other place as the parties may mutually
agree), on such date as soon as possible after the conditions subsequent set
forth in Article 7 have been satisfied or waived, but no later than June 30,
2010, on such date as the parties may mutually determine (the “Subsequent
Closing Date”).
(e) Blackbird Subsequent Closing
Deliveries. At the Subsequent Closing, Blackbird shall
deliver, or cause to be delivered, to Rapid Link the following
items:
(i) The stock
certificates or other documentation representing all of the issued and
outstanding shares of Yak America Capital Stock, duly endorsed, so as to make
Rapid Link the holder thereof;
(ii) A duly
executed assumption agreement dated the Subsequent Closing Date and in form and
substance reasonably satisfactory to counsel to Rapid Link and the Agent, as is
reasonably necessary to transfer to Blackbird (or Rapid Link or an Affiliate
thereof) all of Telenational’s obligations under the Telenational Liabilities;
and
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(iii) The
documents and instruments required to be delivered by Blackbird under Article 7
hereof.
(f) Additional Subsequent
Closing Deliveries. At the Subsequent Closing, the following
items shall be delivered to Blackbird (or Rapid Link or an Affiliate
thereof):
(i) The Agent
shall deliver, or cause to be delivered, a duly executed ▇▇▇▇ of sale and such
other executed assignments or conveyance documents, each dated the Subsequent
Closing Date and in form and substance reasonably satisfactory to counsel to
Blackbird and the Agent, as are reasonably necessary to transfer to Blackbird
(or Rapid Link or an Affiliate thereof) all of Telenational’s right, title and
interest in, to and under the Telenational Assets, subject to the security
interest therein in favor of the Agent; and
(ii) The
Principal Rapid Link Stockholders shall deliver, or cause to be delivered, the
documents and instruments required to be delivered under Article 7,
below.
(g) Further
Assurances. At the Closing and the Subsequent Closing, each of
the parties hereto shall take, or cause to be taken, all such actions and
deliver, or cause to be delivered, all such other documents, instruments,
certificates and other items as may be required under this Agreement or
otherwise, in order to perform or fulfill all covenants and agreements on its
part to be performed at or prior to the Closing Date and the Subsequent Closing
Date, respectively.
3. Amendment
to Preamble of Article 3. The preamble of Article 3 is hereby
amended with the following sentence added at the end of the
preamble:
Blackbird
makes the following representations and warranties regarding Mr. Prepaid and Yak
America, to the extent applicable, to Rapid Link and the Principal Rapid Link
Stockholders, which representations and warranties shall be true and correct as
of the date hereof up to and through (a) the Closing Date with respect to
representations and warranties relating to Mr. Prepaid and (b) the Subsequent
Closing Date with respect to representations and warranties relating to Yak
America:
4. Amendment
to Section 3.1 of the Original Agreement. The following
provisions are hereby added at the end of Section 3.1 of the Original
Agreement:
Each
Subsidiary of Blackbird is a corporation duly organized under the state of its
organization, is validly existing, and in good standing under the laws of the
state of its incorporation and has all requisite corporate power and authority
to own, lease and operate its properties and assets and to conduct its business
as it is now being conducted.
5. Amendment
to Section 3.4 of the Original Agreement. The following
provisions are hereby added as new subsections of Section 3.4 of the Original
Agreement:
(c) The
authorized capital stock of Mr. Prepaid consists of 10,000 shares of common
stock, $.01 par value per share. As of the date hereof, 1,000 shares of Mr.
Prepaid common stock are issued and outstanding. Except as set forth above, no
shares of capital stock or other securities of Mr. Prepaid are issued, reserved
for issuance or outstanding. There are no outstanding stock
appreciation rights linked to the price of Mr. Prepaid Capital Stock. All
outstanding shares of Mr. Prepaid common stock are, and all such shares that may
be issued prior to the Closing Date will be, when issued, duly authorized,
validly issued, fully paid and non-assessable and not subject to or issued in
violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
applicable Laws, Mr. Prepaid’s articles of incorporation or bylaws or any
contract to which Mr. Prepaid is a party or otherwise
bound. Blackbird is the sole record and beneficial owner of all
issued and outstanding shares of Mr. Prepaid Capital Stock.
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(d) Schedule 3.4(d) sets
forth a true and complete list of the outstanding Derivative Securities of Mr.
Prepaid together with the number of shares of Mr. Prepaid Common Stock subject
thereto and the exercise price thereof. Except as set forth in Schedule 3.4(d),
there is no outstanding Voting Debt of Mr. Prepaid. Except as set forth above or
in Schedule
3.4(d), as of the date of this Agreement, there are no Derivative
Securities of any kind to which Mr. Prepaid or any Subsidiary thereof is a party
or by which any of them is bound (i) obligating Mr. Prepaid or any
Subsidiary thereof to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of capital stock or other equity interests in, or any
security convertible or exercisable for or exchangeable into any capital stock
of or other equity interest in, Mr. Prepaid or of any Subsidiary thereof or any
Voting Debt, (ii) obligating Mr. Prepaid or any Subsidiary thereof to
issue, grant, extend or enter into any such Derivative Security or
(iii) that give any Person the right to receive any economic benefit or
right similar to or derived from the economic benefits and rights occurring to
holders of Mr. Prepaid capital stock. As of the date of this Agreement, there
are not any outstanding contractual obligations of Mr. Prepaid or any Subsidiary
thereof to repurchase, redeem or otherwise acquire any shares of capital stock
of Mr. Prepaid or any Subsidiary thereof.
(e) The
authorized capital stock of Yak America consists of 10,000 shares of common
stock, $.01 par value per share. As of the date hereof, 1,000 shares of Yak
America common stock are issued and outstanding. Except as set forth above, no
shares of capital stock or other securities of Yak America are issued, reserved
for issuance or outstanding. There are no outstanding stock
appreciation rights linked to the price of Yak America Capital Stock. All
outstanding shares of Yak America common stock are, and all such shares that may
be issued prior to the Subsequent Closing Date will be, when issued, duly
authorized, validly issued, fully paid and non-assessable and not subject to or
issued in violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
applicable Laws, Yak America’s articles of incorporation or bylaws or any
contract to which Yak America is a party or otherwise
bound. Blackbird is the sole record and beneficial owner of all
issued and outstanding shares of Yak America Capital Stock.
(f) Schedule 3.4(f) sets
forth a true and complete list of the outstanding Derivative Securities of Yak
America together with the number of shares of Yak America Capital Stock subject
thereto and the exercise price thereof. Except as set forth in Schedule 3.4(f),
there is no outstanding Voting Debt of Yak America. Except as set forth above or
in Schedule
3.4(f), as of the date of this Agreement, there are no Derivative
Securities of any kind to which Yak America or any Subsidiary thereof is a party
or by which any of them is bound (i) obligating Yak America or any
Subsidiary thereof to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of capital stock or other equity interests in, or any
security convertible or exercisable for or exchangeable into any capital stock
of or other equity interest in, Yak America or of any Subsidiary thereof or any
Voting Debt, (ii) obligating Yak America or any Subsidiary thereof to
issue, grant, extend or enter into any such Derivative Security or
(iii) that give any Person the right to receive any economic benefit or
right similar to or derived from the economic benefits and rights occurring to
holders of Yak America capital stock. As of the date of this Agreement, there
are not any outstanding contractual obligations of Yak America or any Subsidiary
thereof to repurchase, redeem or otherwise acquire any shares of capital stock
of Yak America or any Subsidiary thereof.
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6. Amendment
to Section 3.5(a) of the Original Agreement. Section 3.5(a) of
the Original Agreement is hereby deleted in its entirety and replaced with the
following:
(a) Blackbird
has provided Rapid Link with draft copies of the unaudited balance sheets and
statements of income and cash flow as of and for the periods ended December 31,
2008 and October 31, 2009 for Blackbird, Mr. Prepaid and Yak
America. All such draft financial statements are true and correct in
all material respects and were prepared in accordance with accounting practices
and procedures historically used by Blackbird, Mr. Prepaid or Yak America, as
the case may be. In order to comply with the Form 8-K financial
statement requirements, Mr. Prepaid shall be able to have its financial
statements audited within 75 days of the Closing, and Blackbird or Yak America,
as the case may be, shall be able to have its financial statements audited
within 75 days of the Subsequent Closing.
7. Amendment
to Section 3.6 of the Original Agreement. Section 3.6 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
3.6 Securities Laws.
Blackbird is and will be at the Closing (with respect to (a), below) and the
Subsequent Closing (with respect to (b), below) eligible to (a) exchange the
shares of Mr. Prepaid Capital Stock into shares of Rapid Link Common Stock
pursuant to the exemptions from registration under the Securities Act set forth
in Regulations D or S, or similar exemption(s) promulgated under the Securities
Act, and (b) contribute the shares of Yak America Capital Stock to Rapid Link
pursuant to the exemptions from registration under the Securities Act set forth
in Regulations D or S, or similar exemption(s) promulgated under the Securities
Act.
8. Additional
Amendments to Article III of the Original Agreement. Sections
3.7 through 3.14, 3.16, 3.18, 3.19, 3.21 and 3.22 of the Original Agreement are
hereby deleted in their entirety and replaced with the following:
3.7 Litigation. Except
as set forth in Schedule 3.7, there
are no Actions pending or threatened to be brought by or before any Governmental
Authority, against Blackbird, Mr. Prepaid or Yak America or any of their
Affiliates that (i) seek to question, delay or prevent the consummation of the
transactions contemplated hereby, or (ii) would reasonably be expected to affect
adversely the ability of Blackbird, Mr. Prepaid or Yak America to fulfill their
respective obligations hereunder.
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3.8 Commissions. Except
for a commission due to Vanilla Communications, Inc., the payment of which shall
be the sole responsibility of Blackbird, there is no broker or finder or other
Person who has any valid claim against Rapid Link, any Subsidiary thereof, any
of their respective Affiliates or any of their respective assets for a
commission, finders’ fee, brokerage fee or other similar fee in connection with
this Agreement, or the transactions contemplated hereby, by virtue of any
actions taken by on or behalf of Blackbird, Mr. Prepaid or Yak America or their
respective officers, employees or agents.
3.9 Title to Assets.
Except as set forth in Schedule 3.9, each of
Blackbird, Mr. Prepaid and Yak America has good and valid title to, or, in the
case of leased properties and assets, valid leasehold interests in, all of its
tangible properties and assets, real, personal and mixed, used or held for use
in its business, free and clear of any Encumbrances except for (i) liens
imposed by law in respect of obligations not yet due which are owed in respect
of Taxes or (ii) liens which are not material in character, amount or
extent, and which do not materially detract from the value, or materially
interfere with the present use, of the property subject thereto or affected
thereby.
3.10 Intellectual
Property.
(a) To
Blackbird’s Knowledge, Blackbird, Mr. Prepaid or Yak America, as applicable,
owns or possesses or has the right to use pursuant to a valid and enforceable
written license, sublicense, agreement, or permission all Intellectual Property
necessary or desirable for the operation of their respective businesses as
presently conducted except where the failure to hold such permission would not
have a Material Adverse Effect on Blackbird, Mr. Prepaid or Yak America, as the
case may be.
(b) Except
as set forth in Schedule 3.10(b),
neither Blackbird, Mr. Prepaid nor Yak America has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any Intellectual
Property rights of third parties, and no director or officer (or employee with
responsibility for Intellectual Property matters) of Blackbird, Mr. Prepaid or
Yak America has ever received any charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or violation
(including any claim that Blackbird, Mr. Prepaid or Yak America must license or
refrain from using any Intellectual Property rights of any third party). To the
Knowledge of Blackbird, no third party has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual Property
rights of Blackbird, Mr. Prepaid or Yak America.
(c) To
the Knowledge Blackbird: (A) neither Blackbird, Mr. Prepaid nor Yak America has
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with, any Intellectual Property rights of third parties as a result of
the continued operation of its business as presently conducted; (B) there are no
facts that indicate a likelihood of any of the foregoing; and (C) no notices
regarding any of the foregoing (including, without limitation, any demands or
offers to license any Intellectual Property from any third party) have been
received.
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(d) To
the Knowledge of Blackbird, each of Blackbird, Mr. Prepaid and Yak America has
taken all necessary and desirable actions to maintain and protect all of their
respective Intellectual Property and will continue to maintain and protect all
such Intellectual Property prior to Closing so as not to adversely affect the
validity or enforceability thereof. To the Knowledge of Blackbird, the owners of
any of the Intellectual Property licensed to Blackbird, Mr. Prepaid or Yak
America have taken all necessary and desirable actions to maintain and protect
the Intellectual Property covered by such license.
(e) To
the Knowledge of Blackbird, each of Blackbird, Mr. Prepaid and Yak America has
complied with and are presently in compliance with all Laws applicable to any
Intellectual Property and each of Blackbird, Mr. Prepaid and Yak America shall
take all steps necessary to ensure such continued compliance except where such
failure to comply would not cause a Material Adverse Effect to Rapid Link and
its Subsidiaries.
3.11 Material
Contracts. Schedule 3.11 sets
forth all material contracts to which Blackbird, Mr. Prepaid or Yak America is a
party as of the date hereof. Each such material contract that is intended to be
binding upon the parties thereto is legal, valid and binding on the parties
thereto and enforceable in accordance with the terms thereof. Except
as set forth in Schedule 3.11,
Blackbird, Mr. Prepaid or Yak America, as the case may be, has performed its
obligations under each such material contract and neither Blackbird, Mr. Prepaid
nor Yak America is in default under any material contract and no condition
exists nor event has occurred which with the passage of time or the giving of
notice or both would result in a default, breach or event of noncompliance by
Blackbird, Mr. Prepaid or Yak America, as applicable, under any such material
contract, except for defaults, breaches or noncompliance that could not
reasonably be expected to have a Material Adverse Effect. To the
Knowledge of Blackbird, no other party to any of the material contracts has
breached or is in default under any material contract. Blackbird has
delivered to Rapid Link true, correct and complete copies of each material
contract and all amendments thereto and documentation or correspondence
modifying the terms thereof.
3.12 Compliance with
Law.
(a) Each
of Blackbird, Mr. Prepaid and Yak America is in compliance with all Laws
(including, without limitation, with respect to affiliate transactions) and
Governmental Orders applicable to its respective business where the failure of
which could reasonably be expected to have a Material Adverse Effect, and (ii)
neither Blackbird, Mr. Prepaid nor Yak America has been charged at any time with
a violation of any Law or any Governmental Order relating to the conduct of its
business.
(b) Neither
Blackbird, Mr. Prepaid nor Yak America, nor to the Knowledge of Blackbird, any
officer, director, agent, employee or other Person associated with or acting on
their behalf, has, directly or indirectly, materially violated any provision of
the FCPA, and to the Knowledge of Blackbird, none of them has used any corporate
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity, made, offered or authorized any
unlawful payment to foreign or domestic government officials or employees, or
made, offered or authorized any unlawful bribe, rebate, payoff, influence
payment, kickback or other similar unlawful payment. Blackbird has established
reasonable internal controls and procedures designed to ensure compliance with
the FCPA.
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3.13 Disclosure. No
representation or warranty by Blackbird contained in this Agreement nor any
statement or certificate furnished or to be furnished by or on behalf of
Blackbird, Mr. Prepaid or Yak America to Rapid Link or its representatives
pursuant to this Agreement contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact required to make
the statements contained herein or therein not misleading.
3.14 Governmental
Reports. None of the information supplied or to be supplied by
Blackbird, Mr. Prepaid or Yak America for inclusion or incorporation by
reference in any documents required to be filed with the SEC or any other
Governmental Authority by Rapid Link or Blackbird in connection with the
transactions contemplated hereunder, will, on the date of its filing, or, at the
date it is first mailed to Rapid Link’s shareholders, as applicable, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
documents required to be filed with the SEC or any other Governmental Authority
in connection with the transactions contemplated hereunder will comply as to
form in all material respects with the requirements of the Exchange Act and the
rules and regulations thereunder, or any other applicable law, except that no
representation is made by Blackbird, Mr. Prepaid or Yak America with respect to
statements made or incorporated by reference therein based on information
supplied by Rapid Link for inclusion or incorporation by reference
therein.
3.16 No Knowledge of
Breach
1.7 . As
of the date hereof, neither Blackbird, Mr. Prepaid nor Yak America has any
Knowledge (a) that Rapid Link or any Rapid Link Principal Stockholder is in
breach of their representations and warranties in this Agreement or (b) of any
facts, events or occurrences which could cause Rapid Link or any Rapid Link
Principal Stockholder to be in breach of any of their representations or
warranties in this Agreement.
3.18 Environmental
Matters. Except as would not reasonably be expected to be material to
Blackbird and its Subsidiaries, including Mr. Prepaid and Yak America, taken as
a whole:
(a) Neither
Blackbird nor any of its Subsidiaries (including Mr. Prepaid and Yak America)
has disposed of, transported, stored, sold, used, released, generated, exposed
its employees or others to, or distributed, manufactured, sold, transported or
disposed of any product containing a Hazardous Material in violation of any Laws
which prohibit, regulate or control Hazardous Materials.
(b) No
action or proceeding is pending or, to Blackbird’s Knowledge, threatened against
Blackbird or any of its Subsidiaries (including Mr. Prepaid and Yak America)
arising out of Laws relating to Hazardous Materials.
11
(c) Neither
Blackbird nor any of its Subsidiaries (including Mr. Prepaid and Yak America)
has entered into any agreement that may require it to guarantee, reimburse,
pledge, defend, hold harmless or indemnify any other party with respect to
liabilities arising out of any Laws relating to Hazardous
Materials.
3.19 Insurance. The
insurance policies covering Blackbird, its Subsidiaries (including Mr. Prepaid
and Yak America) or any of their respective employees, properties or assets,
including policies of life, property, fire, workers’ compensation, products
liability, directors’ and officers’ liability and other casualty and liability
insurance are set forth in Schedule
3.19. Except as set forth in Schedule 3.19, all
such insurance policies are in full force and effect, no notice of cancellation
has been received, and there is no existing default or event which, with the
giving of notice or lapse of time or both, would constitute a default, by any
insured thereunder, except for such defaults that would not, individually or in
the aggregate, have a Material Adverse Effect on Blackbird or any of its
Subsidiaries (including Mr. Prepaid and Yak America). There is no material claim
pending under any of such policies as to which coverage has been questioned,
denied or disputed by the underwriters of such policies and there has been no
threatened termination of, or material premium increase with respect to, any
such policies.
3.21 Customers and
Suppliers.
(a) On
the Closing Date, Blackbird will provide a list to Rapid Link of all Material
Customers of Mr. Prepaid as of the Closing Date.
(b) Neither
Blackbird nor Mr. Prepaid has received any written notice that any Material
Customer (i) has ceased, or will cease, to use Blackbird’s or Mr. Prepaid’s
services or products, (ii) has substantially reduced or will substantially
reduce, the use of services or products of Blackbird or Mr. Prepaid, or (iii)
has sought, or is seeking, to reduce the price it will pay for services or
products of Blackbird or Mr. Prepaid, including in each case after the
consummation of the transactions contemplated hereby and, in all cases,
except where such cessation or reduction could not reasonably be expected to
have a Material Adverse Effect. To the Knowledge of Blackbird, no
Material Customer has otherwise threatened in writing to take any action
described in the preceding sentence as a result of the consummation of the
transactions contemplated by this Agreement.
(c) Neither
Blackbird nor Mr. Prepaid has received any written notice that there has been
any material adverse change in the price of any materials, supplies, merchandise
or other goods or services used its business, or that any supplier with respect
to the Business will not sell materials, supplies, merchandise and other goods
to Blackbird or Mr. Prepaid at any time after the Closing Date on terms and
conditions similar to those used in its current sales to Blackbird or Mr.
Prepaid, subject to general and customary price increases. To the Knowledge of
Blackbird, no supplier of Blackbird or Mr. Prepaid has otherwise threatened in
writing to take any action described in the preceding sentence as a result of
the consummation of the transactions contemplated by this
Agreement.
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3.22 Related Party
Transactions.
(a) Except
as set forth in reasonable detail on Schedule 3.22(a), no
officer, director or employee of Blackbird or Mr. Prepaid or any of their
respective Affiliates, or any immediate family member of any of the foregoing,
provides or causes to be provided to Blackbird or Mr. Prepaid any assets,
services or real property facilities, and neither Blackbird nor Mr. Prepaid
provides or causes to be provided to any such officer, director, employee or
Affiliate, or any immediate family member of any of the foregoing, any assets,
services or real property facilities. Except as set forth in
reasonable detail on Schedule 3.22(a),
none of the Principal Blackbird Stockholders nor any of their Affiliates (other
than Blackbird) has any interest of any nature in any of the assets used in
connection with the operation of (or otherwise related to) the respective
businesses of Blackbird or Mr. Prepaid.
(b) Schedule 3.22(b) sets
forth a true and complete list and brief description of all contracts pursuant
to which the Principal Blackbird Stockholders or any of the officers, directors
or employees of Blackbird or Mr. Prepaid, or their respective Affiliates or
immediate family members, (i) have a pecuniary interest in any supplier, vendor
or customer of Blackbird or Mr. Prepaid or any Person with which Blackbird or
Mr. Prepaid is in competition (excluding shares of publicly traded stock or
securities aggregating less than three percent of the outstanding shares
thereof), (ii) is indebted to Blackbird or Mr. Prepaid, (iii) is a party to any
non-employment related contract or transaction with Blackbird or Mr. Prepaid, or
(iv) have any debts, liabilities or obligations guaranteed by Blackbird or Mr.
Prepaid, or Blackbird or Mr. Prepaid is a surety or accommodation party with
respect thereto.
9. Addition
of Section 3.23 to the Original Agreement. A new Section 3.23
shall be inserted at the end of Article 5 as follows:
3.23 Subsidiaries. Other
than as disclosed on Schedule 3.23, there
are no, and there have not been any, Persons (including any joint ventures) in
which Blackbird owns, or, has owned during the past five years, of record or
beneficially, any direct or indirect (through a subsidiary or otherwise)
interest. There are no outstanding obligations of Blackbird or its Subsidiaries
to provide funds or make any investment (in either case, in the form of a loan,
capital contribution, purchase of an equity or debt interest (whether from the
issuer or another Person) or otherwise) in, any other Person.
10. Amendment
to Preamble of Section 4.2. Mr. Prepaid shall be subject to
the obligations of Section 4.2 as if it had been included in the Original
Agreement. In this regard, the preamble of Section 4.2 is hereby
deleted in its entirety and replaced with the following:
Following
the execution of this Agreement, Blackbird, Mr. Prepaid and Rapid Link agree as
follows:
11. Amendment
to Section 4.2(a) of the Original Agreement. The following is
added to the end of Section 4.2(a) of the Original Agreement:
13
In
addition, each of the transferees of Telenational and One Ring shall generally
cooperate with Blackbird and provide such information and take such other
actions as Blackbird may reasonably request in connection with the transactions
contemplated hereby. Each of Mr. Prepaid and Yak America shall
generally cooperate with Rapid Link and the Principal Rapid Link Stockholders
and provide such information and take such other actions as either Rapid Link or
the Principal Rapid Link Stockholders may reasonably request in connection with
the transactions contemplated hereby.
12. Amendment
to Section 4.2(c) of the Original Agreement. The final
sentence of Section 4.2(c) of the Original Agreement is hereby deleted in its
entirety and replaced with the following:
In this
respect, all FCC and other applicable state and local telecommunications
authority applications for the approval of the transactions contemplated hereby
shall be filed by the parties as promptly as practicable following the Closing
Date.
13. Amendment
to Section 4.3 of the Original Agreement. Section 4.3 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
4.3 Ownership of Mr. Prepaid
Capital Stock and Yak Capital Stock. Blackbird covenants that
it currently beneficially holds and has voting control over and will hold and
have voting control over 100% of the Mr. Prepaid Capital Stock at Closing and
100% of the Yak Capital Stock at the Subsequent Closing. Blackbird
shall not transfer beneficial ownership of any of the shares of Mr. Prepaid
Capital Stock prior to the Closing or Yak Capital Stock prior to the Subsequent
Closing.
14. Amendment
to Section 4.16 of the Original Agreement. Section 4.16 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
4.16 Subordination. Except
as otherwise provided herein, the priority of security interest with respect to
any outstanding loans owed by Blackbird with respect to $1.275 million of notes
due to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or his Affiliates (“▇▇▇▇▇▇ Notes”), shall not be
subordinate to any of the Laurus Creditors’ security interests with respect to
Rapid Link following this transaction. Notwithstanding the foregoing,
Chaleo (One) Inc., an Affiliate of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, shall subordinate repayment
of the $3 million loan owed to it by Blackbird (“Chaleo Notes”) and priority of
security interest under such loan only to the $1.25 million of senior
indebtedness to be owed by Rapid Link to the Laurus Creditors in accordance with
Section 5.8, below, but such loan from Chaleo (One) Inc. and priority of
security interest shall not be subordinate to the $1.85 million of indebtedness
to be secured by the Telenational Assets in accordance with Section 7.1(i),
below. Except as set forth in Schedule 4.16,
Blackbird or any of its Subsidiaries shall have no other debt outstanding at
Closing.
15. Amendment
to Preamble of Article 5. The preamble of Article 5 is hereby
deleted in its entirety and replaced with the following:
The
obligations of Blackbird to consummate the Share Exchange transaction at the
Closing as contemplated by this Agreement are, at its option, in its sole
discretion, subject to satisfaction of each of the following
conditions:
14
16. Amendment
to Section 5.4 of the Original Agreement. Section 5.4 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
5.4 Consents; No
Objections. Rapid Link shall have procured all Rapid Link
Required Consents necessary for the consummation of the Share Exchange and all
applicable legal requirements shall have been satisfied on or prior to the
Closing Date.
17. Amendment
to Section 5.6 of the Original Agreement. Section 5.6 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
5.6 Restructuring of
Indebtedness. On or prior to the Closing Date, Rapid Link
shall have obtained the reduction of the aggregate amount owing by Rapid Link
under certain senior secured notes due to the Laurus Creditors to a maximum
principal amount of $1,250,000 (the “Rapid Link Debt”). Following the
Closing, such Rapid Link Debt shall be secured by a security interest in the
assets of Rapid Link and Mr. Prepaid subordinate to the security interest
related to the ▇▇▇▇▇▇ Notes described in Section 4.16, above.
18. Amendment
to Section 5.8 of the Original Agreement. Section 5.8 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
5.8 Indebtedness. Rapid
Link as of the Closing shall only be responsible for $1,250,000 of the Rapid
Link Debt as a senior secured obligation of Rapid Link with 8.00% accrued
interest due monthly with all remaining amounts due and payable in one balloon
payment on the third anniversary of the Closing. There shall be no
other debt or liability of Rapid Link as of the Closing. As of the
Closing, Rapid Link shall have no Subsidiaries except Mr. Prepaid which shall
become a Subsidiary upon the Closing.
19. Amendment
to Section 5.9 of the Original Agreement. Section 5.9 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
5.9 Outstanding Derivative
Securities. Except for certain outstanding Derivative Securities issued
to Laurus, Trident Growth Fund, L.P. (“Trident”) and Global Capital (a list of
which is set forth in Schedule 1.4 hereto),
all outstanding Derivative Securities including, without limitation, any such
Derivative Securities held by any of the following: (i) the Principal Rapid Link
Stockholders, (ii) all employees of Rapid Link and its Subsidiaries, and (iii)
any other lender of Rapid Link, shall have been terminated and cancelled with no
further obligation on the part of Rapid Link with respect thereto on or prior to
the Closing Date.
20. Amendment
to Section 5.13 of the Original Agreement. Section 5.13 of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
5.13 Spin-off of Telenational and
One Ring. Rapid Link shall provide written evidence to
Blackbird that all of the issued and outstanding shares of capital stock of
Telenational and One Ring have been transferred from Rapid Link to a third party
controlled by one or more of the Principal Rapid Link Stockholders without
recourse or liability to Rapid Link, and that Telenational and One Ring are no
longer Subsidiaries of Rapid Link.
15
21. Certificate
of Designation of Rapid Link Preferred Stock. A new Section
5.20 shall be inserted at the end of Article 5 as follows:
5.20 Certificate of Designation
of Rapid Link Preferred Stock. The Board of Directors of Rapid
Link shall have approved and filed with the Secretary of State of Delaware the
Certificate of Designation of the Rapid Link Preferred Stock in the form of
Exhibit D attached hereto.
22. Conduct
of Business. A new Section 5.21 shall be inserted at the end
of Article 5 as follows:
5.21 Conduct of Business Prior to
Closing. Prior to the Closing Date, each of Blackbird, Mr.
Prepaid and Yak America shall, and shall cause their respective Subsidiaries to
(i) conduct its business in the ordinary course of business and in a reasonable
and prudent manner in accordance with its past business practices under the
supervision of its board of directors, (ii) not acquire, sell, dispose of or
subject to any Encumbrance any of the material assets of Mr. Prepaid or Yak
America, except in the ordinary course of business, (iii) maintain the tangible
assets in their present condition, ordinary wear and tear excepted, (iv) not
increase the compensation or benefits of any employees or independent
contractors of Mr. Prepaid or Yak America (other than in the ordinary course of
business), (v) not declare or pay any dividends or other distributions to the
shareholders of Blackbird, (vi) not enter into any new or modify any existing
material agreements other than (A) in the ordinary course of business, (B) as
otherwise contemplated by this Agreement, (C) in a manner patently favorable to
Mr. Prepaid or Yak America (e.g., reduction in the interest rate of a loan) or
(D) with the Principal Rapid Link Stockholders’ prior written consent which may
not be unreasonably withheld or delayed, (vii) use reasonable efforts to
preserve its existing relations with its employees, customers, suppliers and
others with whom it has a business relationship, (viii) not establish any new,
or fundamentally alter any existing, employee plans, (ix) not incur any material
debt, (x) not issue any additional shares of Mr. Prepaid or Yak Capital Stock or
Derivative Securities, and (xi) not defer the payment of any accounts payable in
a manner that varies from past practices within the last 60 days without the
prior written consent of Rapid Link.
23. Filing of
Annual Report on Form 10-K. A new Section 5.21 shall be
inserted at the end of Article 5 as follows:
5.21 Annual Report on Form
10-K. Rapid Link shall have timely filed with the SEC its
Annual Report on Form 10-K for the fiscal year ended October 31, 2009 and such
Form 10-K shall in all material respects with applicable Legal
Requirements. All expenses associated with the preparation and filing
of the Form 10-K including, without limitation, the reasonable fees and costs of
Rapid Link’s independent certified public accountants and legal counsel shall
have been fully paid by Rapid Link.
24. Filing of
Schedule 14f-1. A new Section 5.22 shall be inserted at the
end of Article 5 as follows:
5.22 Change in Majority of
Directors. In connection with the change in the majority of
the directors of Rapid Link, Rapid Link shall have filed with the SEC and mailed
to each of its shareholders of record a Schedule 14f-1 not less than ten days
prior to the Closing Date.
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25. Amendment
to Preamble of Article 6. The preamble of Article 6 is hereby
deleted in its entirety and replaced with the following:
The
obligations of Rapid Link to consummate the Share Exchange transaction at the
Closing as contemplated by this Agreement are, at its option, in its sole
discretion, subject to satisfaction of each of the following
conditions:
26. Conditions
Subsequent. A new Article 7 shall be inserted as set forth
below. Articles 7 and 8 (and the section references therein) of the
Original Agreement shall be re-numbered Articles 8 and 9,
respectively.
Article
7. Conditions
Subsequent.
7.1 Obligations of
Blackbird. The obligations of Blackbird to consummate the
Subsequent Closing are, at its option, in its sole discretion, subject to
satisfaction of each of the following conditions:
(a) Occurrence of
Closing. The Closing shall have occurred with respect to the
Share Exchange in accordance with the provisions hereof.
(b) Performance by New Rapid
Link. All of the covenants and agreements to be complied with
and performed by New Rapid Link on or before the Subsequent Closing Date shall
have been complied with or performed in all material respects unless compliance
or performance with such covenants or agreements was materially affected as a
result of Blackbird’s actions or inactions under the Management Agreement or any
other Transaction Document.
(c) Certificate. New
Rapid Link shall have delivered to Blackbird a certificate, dated as of the
Subsequent Closing Date, to the effect that each of the conditions specified
above in Section 7.2 is satisfied in all respects.
(d) Consents; No
Objections. New Rapid Link shall have procured all Rapid Link
Required Consents necessary for the consummation of the Subsequent Closing and
all applicable legal requirements shall have been satisfied on or prior to the
Subsequent Closing.
(e) No
Proceedings. No Governmental Authority shall have issued an
order, decree or ruling or taken any other action, in any case having the effect
of permanently restraining, enjoining or otherwise prohibiting the occurrence of
the Subsequent Closing, which order, decree, ruling or other action is final and
non-appealable.
(f) Working Capital of Core
Business. At the time of the Subsequent Closing, the Core
Business shall have a working capital balance greater than $0.00. As used
herein, “working capital” means the sum of cash or cash equivalents plus
accounts receivable under 90 days old (whether billed or unbilled), deposits
with carriers currently in use, less any accounts payable to vendors (only with
respect to which the vendor contracts or accounts have been assumed by Rapid
Link) then currently supplying services to the Core Business whether billed or
unbilled, less any accrued liabilities of the Core Business. The
working capital number will not include the management fee due to
Blackbird.
17
(g) No Undisclosed
Liabilities. Except as set forth in Rapid Link’s public
filings with the SEC, or as otherwise set forth in the Disclosure Schedules,
there shall be no undisclosed nor contingent Liabilities of New Rapid
Link.
(h) Telenational
Assets. Laurus shall have taken all commercially reasonable
steps necessary under Article 9 of the Uniform Commercial Code, or other
applicable actions, to consummate the Article 9 Sale of the Telenational Assets
to a Subsidiary of Rapid Link and such Telenational Assets shall be free and
clear of any and all subordinate Encumbrances and subject only to the security
interest in favor of Laurus as described herein.
(i) Indebtedness. As
of the Subsequent Closing, the transferee corporation acquiring the Telenational
Assets in the Article 9 Sale shall assume: (a) $1,250,000 of indebtedness to the
Laurus Creditors to be secured by the Telenational Assets bearing interest at
8.00% per annum accrued and due monthly with all remaining amounts due and
payable in one balloon payment on the third anniversary of the Subsequent
Closing; and (b) junior indebtedness in the outstanding amount of no more than
$600,000 to be secured by the Telenational Assets bearing interest at 8.00% per
annum accrued and due monthly with all remaining amounts due and payable in one
balloon payment on the third anniversary of the Subsequent Closing.
7.2 Obligations of New Rapid
Link. The obligations of New Rapid Link to consummate the
Subsequent Closing are, at its option, in its sole discretion, subject to
satisfaction of each of the following conditions:
(a) Representations and
Warranties. The representations and warranties of Blackbird
regarding Yak America contained herein shall be true and correct in all material
respects at and as of the Subsequent Closing Date as though each such
representation and warranty were made at and as of such time, other than such
representations and warranties as are made as of a specific date, in each case
except for changes that are expressly contemplated by this
Agreement.
(b) Occurrence of
Closing. The Closing shall have
occurred with respect to the Share Exchange in accordance with the provisions
hereof.
(c) Performance by
Blackbird. All of the covenants and agreements to be complied
with and performed by Blackbird and the Principal Blackbird Stockholders on or
prior to the Subsequent Closing Date shall have been complied with or performed
in all material respects.
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(d) Certificate. Blackbird
shall have delivered to Rapid Link a certificate, dated as of the Subsequent
Closing Date, to the effect that each of the conditions specified above in
Section 7.2 is satisfied in all respects.
(e) Consents; No
Objections. Blackbird shall have procured all Blackbird Required
Consents, and any other Governmental Authority and other third party consents
necessary for the consummation of Subsequent Closing and all applicable legal
requirements shall have been satisfied.
(f) No
Proceedings. No Governmental Authority shall have issued an
order, decree or ruling or taken any other action, in any case having the effect
of permanently restraining, enjoining or otherwise prohibiting the Subsequent
Closing or the other transactions set forth herein, which order, decree, ruling
or other action is final and non-appealable.
27. Amendment
to Section 7.1 of the Original Agreement. Newly re-numbered
Section 8.1 (formerly Section 7.1 of the Original Agreement) is amended to
insert a new Section 8.1(d) as follows:
(d) Following
the Closing, this Agreement may be terminated by either party if the Subsequent
Closing has not occurred on or prior to June 30, 2010, or, earlier than June 30,
2010, if any of the conditions subsequent set forth in Article 7 have not been
satisfied or become incapable of being satisfied, so long as the terminating
party has used its commercially reasonable efforts to complete the Subsequent
Closing transaction.
28. Management
Agreement. Upon the execution of this Amendment, New Rapid
Link shall execute a joinder agreeing to be bound by the terms and conditions of
the Management Agreement.
29. Miscellaneous.
(a) The
Original Agreement is reaffirmed and ratified in all respects, except as
expressly provided herein. Further, Apex Acquisitions, Inc. is
executing this Amendment solely to reaffirm the Original Agreement and it shall
not be subject to any additional obligations or liabilities by virtue of this
Amendment.
(b) Certain
Schedules to the Original Agreement are hereby amended and restated and attached
hereto.
(c) The
parties’ representations and warranties contained in the Original Agreement are
true and correct in all respects on and as of the date hereof, as though made on
and as of such date, except to the extent that any such representation or
warranty relates solely to an earlier date, in which case such representation or
warranty is true and correct in all respects on and as of such earlier
date. Each party has performed all covenants and agreements required
to be performed pursuant to the Original Agreement in all respects on and as of
the date hereof and as of the date hereof there exists no violation or default
(or any event which with the giving of notice, or lapse of time or both, would
result in a violation or become a default) under the Original
Agreement.
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(d) In the
event of any conflict between the terms or provisions of this Amendment and the
Original Agreement, then this Amendment shall prevail in all
respects. Otherwise, the provisions of the Original Agreement shall
remain in full force and effect.
(e) The
parties shall execute and deliver any other instruments or documents and take
any further actions after the execution of this Amendment, which may be
reasonably required for the implementation of this Amendment and the
transactions contemplated hereby.
(f) Each
party shall bear its own costs, including attorney’s fees, incurred in the
negotiation of this Amendment and consummation of the transactions contemplated
herein and the corporate proceedings in contemplation hereof.
(g) This
Amendment may be executed simultaneously in two or more counterparts, each of
which will be deemed to be an original copy of this Amendment and all of which
together will be deemed to constitute one and the same agreement. A
facsimile or PDF copy of a signature shall be deemed an original
signature.
[Remainder of Page
Intentionally Left Blank]
20
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first above written.
BLACKBIRD CORPORATION, a
Florida corporation
By:
Name:
Title:
MR. PREPAID, INC., a Florida
corporation
By:
Name:
Title:
RAPID LINK, INCORPORATED, a
Delaware corporation
By:
Name:
Title:
PRINCIPAL
BLACKBIRD STOCKHOLDERS
(severally
but not jointly, solely for purposes of the applicable
provisions
of Sections 1.6(g), 1.7, 4.2, 4.4, 4.7 and 4.16 of the
Original
Agreement, as amended hereby)
By:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
By:
▇▇▇▇▇
▇▇▇▇▇
By:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
PRINCIPAL
RAPID LINK STOCKHOLDERS
(severally
but not jointly, solely for purposes of the applicable
provisions
of Sections 1.4(a)(i), 1.5, 1.6(g), 1.7, 4.2, 4.4, 4.7,
5.9(i),
5.11, 5.12, 5.17 and 7.2 of the Original Agreement, as
amended
hereby)
Apex
Acquisitions, Inc.
By:
Name:
Title:
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually and
on
behalf of New Rapid Link