EXHIBIT 10.48
AGREEMENT AND PLAN OF MERGER
DATED OCTOBER 15, 1999
AMONG
ACCESS ONE COMMUNICATIONS CORP.
OMNICALL ACQUISITION CORP.,
AND
OMNICALL, INC.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND CONSTRUCTION ....................................................................... 1
1.1 Definitions ........................................................................................ 1
1.2 Construction ....................................................................................... 6
ARTICLE II THE MERGER ......................................................................................... 6
2.1 The Merger ......................................................................................... 6
2.2 Common Stock of Newco to Become Common Stock of Surviving Corp. .................................... 7
2.3 Conversion or Cancellation of Capital Stock of OmniCall ............................................ 7
2.4 Issuance of Merger Consideration ................................................................... 8
2.5 Stock Transfer Books ............................................................................... 8
2.6 Tax-Free Reorganization ............................................................................ 8
2.7 Dealer Stock Deferral .............................................................................. 8
2.8 OmniCall Employee Options .......................................................................... 8
2.9 Earn Out Payment; Determination and Payment; Timing ................................................ 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF OMNICALL AND THE PRINCIPAL SHAREHOLDERS .......................... 10
3.1 Corporation Organization ........................................................................... 10
3.2 Capitalization ..................................................................................... 10
3.3 Subsidiaries ....................................................................................... 11
3.4 No Commitments to Issue Capital Stock .............................................................. 11
3.5 Authorization; Execution and Delivery .............................................................. 11
3.6 Governmental Approvals and Filings ................................................................. 12
3.7 No Conflict ........................................................................................ 12
3.8 Financial Statements; Absence of Undisclosed Liabilities; Receivables; Supplies .................... 12
3.9 Absence of Changes ................................................................................. 13
3.10 Tax Matters ........................................................................................ 15
3.11 Relations with Employees and Sales Agents; Benefit Plans ........................................... 16
3.12 Properties ......................................................................................... 17
3.13 Compliance with Laws; Legal Proceedings ............................................................ 17
3.14 Brokers ............................................................................................ 18
3.15 Patents, Trademarks and Names ...................................................................... 18
3.16 Insurance .......................................................................................... 18
3.17 Contracts, Etc ..................................................................................... 19
3.18 Permits, Authorizations, Etc ....................................................................... 20
3.19 Environmental Matters .............................................................................. 21
3.20 OmniCall Acquisitions .............................................................................. 22
3.21 Books and Records .................................................................................. 22
3.22 Accuracy of Information ............................................................................ 22
3.23 Year 2000 Compliance ............................................................................... 22
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ACCESS ONE, NEWCO, AND ▇▇▇▇▇▇ .................................... 23
4.1 Corporate Organization ............................................................................. 23
4.2 Authorization; Execution and Delivery .............................................................. 23
4.3 Governmental Approvals and Filings ................................................................. 23
4.4 No Conflict ........................................................................................ 23
4.5 Brokers ............................................................................................ 24
4.6 Access One Common Stock ............................................................................ 24
4.7 Financial Statements; Absence of Undisclosed Liabilities; Receivables; Supplies .................... 24
4.8 Tax Matters ........................................................................................ 25
4.9 Compliance with Laws; Legal Proceedings ............................................................ 25
4.10 Absence of Certain Changes ......................................................................... 26
4.11 Capitalization ..................................................................................... 28
4.12 Subsidiaries ....................................................................................... 29
4.13 No Commitments to Issue Capital Stock .............................................................. 29
4.14 Relations With Employees and Sales Agents; Benefit Plans ........................................... 29
4.15 Environmental Matters .............................................................................. 31
4.16 Access One Information ............................................................................. 31
4.17 Year 2000 Compliance ............................................................................... 31
4.18 Books and Records .................................................................................. 31
4.19 Accuracy of Information ............................................................................ 31
4.20 Acknowledgment ..................................................................................... 32
4.21 Financial Arrangements ............................................................................. 32
ARTICLE V COVENANTS OF OMNICALL .............................................................................. 32
5.1 Regular Course of Business ......................................................................... 32
5.2 Restricted Activities and Transactions ............................................................. 32
5.3 Consents, Approvals and Filings .................................................................... 34
5.4 Access to Records and Properties ................................................................... 34
ARTICLE VI COVENANTS OF ACCESS ONE ............................................................................ 34
6.1 Consents, Approvals and Filings .................................................................... 34
6.2 Access to Records and Properties ................................................................... 34
6.3 Board of Directors ................................................................................. 35
6.4 Regular Course of Business ......................................................................... 35
6.5 Funding and Reimbursement Obligations After August 25, 1999 ........................................ 35
6.6 Payment of OmniCall Debt ........................................................................... 35
6.7 Restricted Activities and Transactions ............................................................. 36
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ARTICLE VII MUTUAL COVENANTS ................................................................................... 37
7.1 Expenses ........................................................................................... 37
7.2 Confidentiality; Public Announcements .............................................................. 37
7.3 Further Assurances ................................................................................. 38
7.4 Preparation of Required Filings .................................................................... 38
7.5 Representations To Remain Accurate ................................................................. 38
7.6 Best Efforts ....................................................................................... 38
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF ACCESS ONE, NEWCO, AND ▇▇▇▇▇▇ ......................................... 38
8.1 Representations and Warranties ..................................................................... 39
8.2 Performance of Covenants ........................................................................... 39
8.3 Update Certificate ................................................................................. 39
8.4 No Governmental or Other Proceeding or Litigation .................................................. 39
8.5 Approvals and Consents ............................................................................. 39
8.6 Opinion of Counsel ................................................................................. 39
8.7 Shareholder Approval ............................................................................... 40
8.8 Material Adverse Change ............................................................................ 40
ARTICLE IX CONDITIONS TO OMNICALL'S AND THE PRINCIPAL SHAREHOLDERS' OBLIGATIONS ............................... 40
9.1 Representations and Warranties ..................................................................... 40
9.2 Performance of Covenants ........................................................................... 40
9.3 Update Certificate ................................................................................. 40
9.4 No Governmental of Other Proceeding or Litigation .................................................. 40
9.5 Approvals and Consents ............................................................................. 40
9.6 Opinion of Counsel ................................................................................. 40
9.7 Shareholder Approval ............................................................................... 41
9.8 Material Adverse Change ............................................................................ 41
ARTICLE X CLOSING; CLOSING DATE .............................................................................. 41
ARTICLE XI TERMINATION ........................................................................................ 41
ARTICLE XII INDEMNIFICATION .................................................................................... 42
12.1 Survival of Representations ........................................................................ 42
12.2 Indemnification of Access One and Newco by OmniCall and Principal Shareholders ..................... 42
12.3 Access One's, ▇▇▇▇▇▇'▇ and Newco's Indemnification of OmniCall and the Principal Shareholders ...... 42
12.4 Certain Limitations on Indemnification ............................................................. 43
ARTICLE XIII MISCELLANEOUS PROVISIONS ........................................................................... 43
13.1 Entirety of Agreement .............................................................................. 43
13.2 Notices ............................................................................................ 43
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13.3 Amendment .......................................................................................... 44
13.4 Non-Waiver ......................................................................................... 44
13.5 Counterparts ....................................................................................... 44
13.6 Assignment; Binding Nature; No Beneficiaries ....................................................... 44
13.7 Headings ........................................................................................... 44
13.8 Governing Law; Consent to Jurisdiction ............................................................. 44
13.9 Specific Performance ............................................................................... 45
13.10 Severability ....................................................................................... 45
13.11 No Shop Restriction ................................................................................ 46
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated October 15,
1999, among Access One Communications Corp. ("Access One"), a New Jersey
corporation; ▇▇▇ ▇▇▇▇▇▇, a principal shareholder of Access One ("▇▇▇▇▇▇");
OmniCall Acquisition Corp. ("Newco"), a Florida corporation; OmniCall, Inc.
("OmniCall"), a South Carolina corporation; and the OmniCall shareholders (the
"Principal Shareholders") listed on the signature pages of this Agreement.
WHEREAS, the Boards of Directors of Access One and OmniCall, deeming it
advisable and for the respective benefit of Access One, Newco, and OmniCall, and
their shareholders, have approved and adopted the merger of Newco with and into
OmniCall on the terms and conditions hereinafter set forth (the "Merger"), and
have approved and adopted this Agreement and authorized the transactions
contemplated hereby; and
WHEREAS, the Board of Directors of OmniCall has recommended to all of
OmniCall's shareholders (the "OmniCall Shareholders") that the Merger and this
Agreement be approved and adopted; and
WHEREAS, Access One, Newco, and OmniCall desire to make certain
representations, warranties, and agreements in connection with, and establish
various conditions precedent to, the Merger; and
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.1 Definitions. The following terms shall have the definitions
indicated:
Access One. A corporation organized and existing under the laws of New
Jersey;
Access One Common Stock. The common stock, par value $0.001 per share,
of Access One;
Affiliated Person means with respect to OmniCall, any (i) officer or
director of OmniCall; (ii) any OmniCall Shareholder that owns, or has the right
to acquire, more than five percent (5%) of OmniCall Common Stock on a fully
diluted basis; (iii) Person that, directly or indirectly, alone or together with
others, controls, is controlled by or is under common control with OmniCall;
(iv) Person that, directly or indirectly, alone or together with others, is
controlled by or under common control with any officer or director of OmniCall
or any Principal Shareholder or (v) Teleco, Inc.; With respect to Access One,
Affiliated Person means any (i) officer or director of Access One; (ii) Person
that, directly or indirectly, alone or together with others, controls, is
controlled by, or is under
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common control with Access One; or (iii) Person that, directly or indirectly,
alone or together with others, is controlled by, or under common control with
any officer or director of Access One;
Agreement. This Agreement and Plan of Merger, including all
schedules, appendices and exhibits attached hereto;
Applicable Benefits Law refers to the legal requirements imposed upon
employee benefit plans by the United States or any political subdivision thereof
(including any requirements enforced by the Internal Revenue Service with
respect to employee benefit plans intended to confer tax benefits on OmniCall or
its employees);
Articles of Merger. The Articles of Merger to be executed by Access
One, Newco, and OmniCall in a form appropriate for filing with the Secretary of
State of New Jersey, Florida, and South Carolina, and relating to the effective
consummation of the Merger as contemplated by the Plan of Merger.
Closing; Closing Date. The terms "Closing" and "Closing Date" shall
have the meanings ascribed to them in Article X hereof;
Code. The Internal Revenue Code of 1986, as amended, including, if the
context permits, the applicable regulations promulgated pursuant thereto;
Confidential Information. The term "Confidential Information" shall
mean all information of any kind concerning a party hereto that is furnished by
such party or on its behalf pursuant to this Agreement as a result of the
transactions contemplated herein, and the discussions leading to this Agreement,
except information (i) ascertainable or obtained from public or published
information, (ii) received from a third party not known to the recipient of
Confidential Information to be under an obligation to keep such information
confidential, (iii) which is or becomes known to the public (other than through
a breach of this Agreement), (iv) of which the recipient was in possession prior
to disclosure thereof in connection with the Merger, or (v) which was
independently developed by the recipient without the benefit of Confidential
Information;
Derivative Contract. Any exchange-traded or over-the-counter swap,
forward, future, option, cap, floor or collar financial contract or any other
contract not included on a balance sheet which is a derivative contract
(including various combinations thereof);
Effective Time. The date and time which the Merger becomes effective as
set forth in the Articles of Merger. Subject to the terms and conditions hereof,
the Effective Time shall be such time on such date as Access One shall notify
OmniCall in writing not less than five (5) days prior thereto, which date shall
not be more than thirty (30) days after all conditions have been satisfied or
waived in writing;
Employee Benefit Plan shall mean executive compensation, deferred
compensation, stock ownership, stock purchase, stock option, restricted stock,
performance share, bonus and other
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incentive plans, pension, profit sharing, savings, thrift or retirement plans,
employee stock ownership plans, life, health, dental and disability plans,
vacation, severance pay, sick leave, dependent care, cafeteria and tuition
reimbursement plans, and any other "employee benefit plans" within the meaning
of the ERISA, whether or not in writing, currently maintained by OmniCall or
Access One or with respect to which OmniCall or Access One may have any
liability or obligation (direct, indirect, contingent or otherwise) to any
employee, former employee, director or former director (or any dependents or
beneficiaries) of OmniCall or Access One or to any governmental entity;
ERISA. The Employee Retirement Income Security Act of 1974, as amended;
Equity Participation Plan. The Equity Participation arrangements (or
whatever form and type) that OmniCall has in place with its dealers and other
Affiliated Persons;
Equity Participations. The rights to receive equity under the Equity
Participation Plan;
FBCA. The Florida Business Corporation Act of 1989, as amended;
GAAP. Generally accepted accounting principles consistently applied;
IRS. The Internal Revenue Service;
Knowledge. When used in the phrase "to the knowledge" or a similar
phrase, shall mean the actual knowledge of the executive officers of the
referenced party or parties, as applicable, after reasonable inquiry of the
other executive officers and the directors of the parties and the Persons
responsible for the day-to-day operations of the parties or their subsidiaries
(although this definition shall not give rise to any duty of any independent
verification or confirmation by members of senior management or board of
directors of the entity making the representation or warranty from other
Persons);
Lien. Any lien, claim, encumbrance, security interest, assessment,
charge, restriction (including restriction on voting rights or rights of
disposition), mortgage, deed of trust, equity of any character, third party
right of whatever nature or other similar or like charge;
Material Adverse Event; Material Adverse Effect. This shall mean an
event, effect, occurrence or circumstance which, alone or when taken with other
breaches, events, effects, occurrences or circumstances existing concurrently
therewith (including without limitation, any breach of a representation or
warranty contained herein by such party) (i) has or is reasonably expected to
have a material adverse effect on the properties, financial condition, results
of operations, or business of such party and its subsidiaries, or (ii) would
materially prevent such party's, or any affiliated party's, ability to perform
its obligations under this Agreement or the consummation of any of the
transactions contemplated hereby; provided, however, that in determining whether
a Material Adverse Effect or Material Adverse Event has occurred, there shall be
excluded any effect the cause of which is (a) any change in banking, tax and
similar laws of
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general applicability or interpretations thereof by courts or governmental
authorities, (b) any change in GAAP or regulatory accounting requirements
applicable to the parties hereto, (c) any action or omission of OmniCall or
Access One or a subsidiary thereof taken with the prior written consent of
Access One or OmniCall, as applicable, in contemplation of the transaction
contemplated herein, (d) any changes in general economic conditions affecting
financial institutions generally, including but not limited to changes in
interest rates.
Merger. The merger described in Section 2.1 hereof;
Newco. OmniCall Acquisition Corporation, a Florida corporation and a
wholly-owned subsidiary of Access One;
NJBCA. The New Jersey Business Corporate Act of 1983, as amended;
OmniCall. OmniCall, Inc., a corporation organized and existing under
the laws of the State of South Carolina;
OmniCall Benefit Plans. All Benefit Plans, and all other material
fringe benefit plans or programs, sponsored or maintained by OmniCall or under
which OmniCall may be obligated;
OmniCall Common Stock. The common stock, no par value per share, of
OmniCall;
OmniCall Debt. OmniCall Debt shall mean all indebtedness, obligations
or other liabilities of OmniCall (i) for borrowed money or evidenced by debt
securities, notes or other similar instruments, including any money borrowed
pursuant to any credit facility and any accrued interest, fees and charges
relating thereto; (ii) with respect to letters of credit issued for OmniCall's
account; (iii) with respect to lease obligations, including but not limited to
those leases where Teleco acted as lessee for equipment currently used by
OmniCall; (iv) to pay the deferred purchase price of property or services; (v)
secured by a Lien on any property of OmniCall; or (vi) that certain line of
credit in the original amount of Two Million Dollars ($2,000,000.00) in the name
of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ at SouthTrust Bank, N.A., which has been utilized for
OmniCall's benefit, including any accrued interests thereon. The OmniCall Debt
shall be set forth on Schedule 1.1;
OmniCall Shareholders. The Shareholders of OmniCall existing as of the
date of Closing and as identified on Schedule 3.2(c);
OmniCall Shareholder Approvals. This term shall mean the approval by
the requisite vote of the shareholders of OmniCall at the OmniCall Shareholders'
Meeting, all in accordance with this Agreement and the Plan of Merger;
OmniCall Shareholders' Meeting. The meeting of OmniCall shareholders at
which the Merger will be voted upon;
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Person. An individual, a partnership, a corporation, a commercial bank,
an industrial bank, a savings association, a savings bank, a limited liability
company, an association, a joint stock company, a trust, a business trust, a
joint venture, an unincorporated organization, a governmental entity (or any
department, agency, or political subdivision thereof) or other entity;
Proxy Statement. The joint proxy statement/prospectus which may be
furnished to the OmniCall Shareholders in connection with the OmniCall
Shareholders' Meeting and the matters contemplated hereby;
Regulations. The regulations issued by the IRS under the Code;
Regulatory Approvals. The order of any federal or state Regulatory
Authority approving the Merger;
Regulatory Authority. Any federal or state governmental agency or
authority charged with the supervision or regulation of telecommunications
businesses;
Rights. Rights shall mean (whether or not fully vested) warrants,
calls, commitments, options, rights (whether stock appreciation rights,
conversion rights, exchange rights, profit participation rights, or otherwise),
securities or obligations convertible into or exchangeable for, or giving any
Person any right to subscribe for or acquire, and other arrangements or
commitments which obligate a Person to issue, otherwise cause to become
outstanding, sell, transfer, pledge, or otherwise dispose of any of its capital
stock or other ownership interests, or any voting rights thereof or therein, or
to pay monetary sums by reference to the existence or market valuation, or in
lieu and place, of any of its capital stock or ownership interests therein;
SCBCA. The South Carolina Business Corporation Act of 1988, as amended;
Working Capital shall mean the amount equal to the current assets of
OmniCall minus the current liabilities of OmniCall, as determined in accordance
GAAP; and
Year 2000 Compliant means that (a) the services, products or other
item(s) at issue accurately process, provide and/or receive all date/time data
(including calculating, comparing, sequencing, processing and outputting)
within, from, into and between centuries (including the twentieth and
twenty-first centuries and the years 1999 and 2000), including leap year
calculations, and (b) neither the performance nor the functionality nor the
business' provision of the services, products and other item(s) at issue will be
affected by any dates/times prior to, on, after or spanning January 1, 2000. The
design of the services, products and other item(s) at issue to ensure compliance
with the "year 2000" representations and warranties and covenants contained in
this Agreement includes proper date/time data century recognition and
recognition of 1999 and 2000, calculations that accommodate single century and
multi-century formulae and date/time values before, on, after and spanning
January 1, 2000, and date/time data interface values that reflect the century,
1999 and 2000. In particular, but without limitation, such design means that (i)
no value for current date/time will cause
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any error, interruption or decreased performance in or for such services,
products and other item(s), (ii) all manipulations of date and time related data
(including calculating, comparing, sequencing processing and outputting) will
produce correct results for all valid dates and times when used independently or
in combination with other services, products and/or items, (iii) date/time
elements in interfaces and data storage will specify the century to eliminate
date ambiguity without human intervention, including leap year calculations,
(iv) where any date/time element is represented without a century, the correct
century will be unambiguous for all manipulations involving that element, (v)
authorization codes, passwords and zaps (purge functions) will function normally
and in the same manner during, prior to, on and after January 1, 2000, including
the manner in which they function with respect to expiration dates and CPU
serial numbers, and (vi) the business' supply of the services, products and
other item(s) will not be interrupted, delayed, decreased or otherwise affected
by the advent of the year 2000.
SECTION 1.2 Construction. In this Agreement words denoting the singular
include the plural and vice versa, (ii) "it" or "its" or words denoting any
gender include all genders, (iii) the word "including" shall mean "including
without limitation", whether or not expressed, (iv) any reference to a statute
shall mean the statute and any regulations thereunder in force as of the date of
this Agreement or the Closing Date, as applicable, unless otherwise expressly
provided, (v) any reference herein to a Section, Article, Schedule or Exhibit
refers to a Section or Article of or a Schedule or Exhibit to this Agreement,
unless otherwise stated, and (vi) when calculating the period of time within or
following which any act is to be done or steps taken, the date which is the
reference day in calculating such period shall be excluded and if the last day
of such period is not a business day, then the period shall end on the next day
which is a business day.
ARTICLE II
THE MERGER
SECTION 2.1 The Merger. Subject to the terms and conditions of this
Agreement, including the fulfillment (or waiver) of all conditions to the
obligations of the parties contained herein, at the Effective Time of the Merger
and pursuant to the SCBCA, NJBCA, and FBCA, the following shall occur:
(a) Newco shall be merged with and into OmniCall, which shall be the
surviving corporation (the "Surviving Corporation"). The separate existence of
Newco shall cease at the Effective Time of the Merger, and thereupon OmniCall
and Newco shall be a single corporation and the title to all real estate and
other property owned by OmniCall and Newco shall be vested in OmniCall as the
Surviving Corporation without reversion or impairment and the Surviving
Corporation shall have all liabilities of Newco and OmniCall. Without limiting
the generality of the foregoing, upon the Effective Time of Merger the Surviving
Corporation shall possess all the rights, privileges, powers and franchises as
well of a public as of a private nature, subject to all the restrictions,
disabilities and duties of OmniCall and Newco; and all and singular, the rights,
privileges, powers and franchises of OmniCall and Newco, and all property, real,
personal and mixed, and all debts due to OmniCall or Newco on whatever account,
as well for stock subscriptions
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as all other things in action or belonging to each of OmniCall and Newco shall
be vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of OmniCall
and Newco, and the title to any real estate vested by deed or otherwise in
OmniCall or Newco shall not revert or be in any way impaired; but all rights of
creditors and all liens upon any property of OmniCall or Newco shall be
preserved unimpaired, and all debts, liabilities and duties of OmniCall and
Newco shall thenceforth attach to the Surviving Corporation, and may be enforced
against it to the same extent as if said debts, liabilities and duties had been
incurred or contracted by it.
(b) The Articles of Incorporation of OmniCall, in the form attached
hereto as Exhibit A, shall be the articles of incorporation of the Surviving
Corporation until amended as permitted by law.
(c) The Bylaws of OmniCall, in the form attached hereto as Exhibit B,
shall be the bylaws of the Surviving Corporation until amended as permitted by
law.
As soon as practicable after the terms and conditions of this Agreement have
been satisfied, articles of merger, substantially in the form attached hereto as
Exhibit C and properly executed in accordance with the SCBCA, NJBCA, and FBCA
(the "Articles of Merger"), shall be filed with the office of the Secretary of
State of the State of South Carolina, the State of New Jersey, and the State of
Florida. The Merger shall become effective when the Articles of Merger are so
filed. The date and time when the Merger is effective is referred to in this
Agreement as the "Effective Time of the Merger."
SECTION 2.2 Common Stock of Newco to Become the Common Stock of
OmniCall. At the Effective Time of the Merger, by virtue of the Merger and
without any action on the part of any holder thereof, each share of common stock
of Newco issued and outstanding immediately prior to the Effective Time of the
Merger shall be converted into one fully paid and nonassessable share of the
common stock, no par value per share, of OmniCall.
SECTION 2.3 Conversion or Cancellation of Capital Stock of OmniCall. At
the Effective Time of the Merger, by virtue of the Merger and without any action
on the part of any holder thereof:
(a) Each share of OmniCall Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger shall be converted into a
number of shares of common stock, par value $0.001 per share of Access One (the
"Access One Common Stock) equal to six million four hundred ninety-three
thousand, seven hundred seventy-six (6,493,776) shares divided by the number of
OmniCall's shares outstanding at the Effective Time (the "Conversion Ratio").
The Conversion Ratio will be subject to appropriate adjustment for any stock
splits or combinations after the date hereof and on or prior to the Effective
Time of the Merger; provided, however, the Access One Common Stock may be
increased pursuant to the provisions of Section 2.9.
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(b) Shares of OmniCall Common Stock owned by a holder who (i) shall not
have voted in favor of the Merger, and (ii) shall have delivered to OmniCall a
written notice of his intent to demand payment for his shares if the Merger is
effectuated in the manner provided in Section ▇▇-▇▇-▇▇▇ et seq. of the SCBCA
(collectively, the "Dissenting Shareholders"), shall not be converted as
provided above, but shall be entitled to receive such consideration as shall be
provided in such Sections of the SCBCA, except that shares of any Dissenting
Shareholder who shall thereafter not perfect his right to appraisal as provided
in such Sections of the SCBCA shall thereupon be deemed to have been converted
as of the Effective Time of the Merger into shares of Access One Common Stock,
as provided above.
(c) Each authorized but unissued share of OmniCall Preferred Stock and
OmniCall Common Stock shall cease to exist.
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SECTION 2.4 Issuance of Merger Consideration.
(a) Subject to the provisions of this Section 2.4(a), at or as soon as
practicable after the Effective Time of the Merger, Access One shall issue and
deliver, upon surrender by an OmniCall Shareholder of one or more certificates
("Old Certificates") representing OmniCall Common Stock for cancellation, to a
holder that surrenders Old Certificates, one or more certificates ("New
Certificates"), registered in the name of such holder, for the appropriate
number of shares of Access One Common Stock based on the Conversion Ratio.
(b) No dividends or other distributions declared on shares of Access
One Common Stock that are to be represented by New Certificates shall be paid to
any Person otherwise entitled to receive the same until Old Certificates have
been surrendered in exchange for such New Certificates in the manner herein
provided, and upon such surrender such dividends or other distributions shall be
paid to such Persons in accordance with their terms. In no event shall the
Persons entitled to receive such dividends or other distributions be entitled to
receive interest on such dividends or other distributions.
(c) Access One shall pay any transfer taxes in connection with the
exchange of Old Certificates for New Certificates, except that if any New
Certificate is to be issued in a name other than that in which the Old
Certificate surrendered in exchange therefor is registered, it shall be a
condition of such exchange that the Person requesting such exchange shall pay to
Access One any transfer or other taxes required by reason of the issuance of the
New Certificate in a name other than the registered holder of such Old
Certificate, or shall establish to the satisfaction of Access One that such tax
has been paid or is not applicable.
SECTION 2.5 Stock Transfer Books. At the close of business on the day
prior to the Effective Time of the Merger, the stock transfer books of OmniCall
shall be closed and no transfer of OmniCall Common Stock shall thereafter be
made on such stock transfer books.
SECTION 2.6 Tax-Free Reorganization. The parties intend that the Merger
qualify as a tax-free reorganization pursuant to Section 368 of the Code.
SECTION 2.7 Dealer Stock Deferral. All OmniCall dealers who
participated in OmniCall's Equity Participation Program may have their Access
One share issuance deferred until the earlier of: two (2) years from the date of
this Agreement, or thirty (30) days after a public offering or initial public
offering is made for the Access One stock. A copy of said stock deferral
agreement is attached hereto as Exhibit D. A copy of the Equity Participation
Program is attached hereto as Schedule 2.7. All shares of stock which are to be
issued to dealers, as set forth on Schedule 2.7, shall be treated as issued and
outstanding shares of OmniCall, regardless of whether or not their actual
issuance is deferred, for purposes of computing the Conversion Ratio under
Section 2.3(a).
SECTION 2.8 OmniCall Employee Options. Access One shall grant to the
employees of OmniCall the right to continue their current Stock Option Plan
under Access One upon the same
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prices; however, the options shall be re-drafted to allow for one-third (1/3)
vesting upon the Closing, one-third (1/3) vesting on January 1, 2001, and the
remaining one-third (1/3) vesting on January 1, 2002. Nothing contained in this
Section 2.8 shall be construed to prohibit an employee from immediately
exercising his or her currently vested options prior to five o'clock eastern
standard time (5:00 p.m. EST) on Monday, October 11, 1999.
SECTION 2.9 Earn Out Payment; Determination and Payment; Timing.
(a) Earn Out Payment. In addition to the transfer of the Access One
Common Stock, OmniCall Shareholders may be entitled to receive additional shares
of Access One Common Stock (the "Earn Out Payment") based upon the performance
of the division of OmniCall known as OmniWeb or BizKick ("BizKick") which
markets and sells web sites, data services, Internet services, bundled telecom
services sold through Internet channels, and license . The Earn Out Payment
shall be based upon the gross sales of BizKick during the period beginning on
the date of Closing and ending December 31, 2000 (the "Earn Out Period"), as set
forth in subparagraph(b) of this Section 2.9.
(b) Calculation and Form of Earn Out Payment. The Earn Out Payment to
be made pursuant to this Section 2.9 shall be evidenced by the issuance of
Access One Common Stock to OmniCall Shareholders, in an amount to be determined
as follows:
(i) In the event BizKick's gross sales are less than One
Million Dollars ($1,000,000.00) or OmniCall fails to acquire twelve thousand
(12,000) additional customer lines (as customarily defined in the
telecommunications industry) during the Earn Out Period, Access One shall have
no obligation to make any Earn Out Payment to OmniCall Shareholders. It is
understood and agreed among the parties hereto that the number of additional
customer lines to be acquired by OmniCall has been determined based upon the
existing rules and regulations promulgated by the Federal Communications
Commission and individual State regulatory agencies. It is therefore agreed
that, in the event such rules and regulations are subsequently amended or
revised and such amendment or revision has a material adverse effect on
OmniCall's ability to secure the twelve thousand (12,000) additional customer
lines, such condition shall be of no effect and not be required.
(ii) In the event BizKick's gross sales are equal to or
greater than Three Million Dollars ($3,000,000.00) (the "Target Earn Out")
during the Earn Out Period, Access One shall cause to be issued, and delivered
to OmniCall Shareholders, one million, six hundred thirty-six thousand, five
hundred thirty-six (1,636,536) additional shares of Access One Common Stock;
provided, however, that in the event BizKick's gross sales during the Earn Out
Period are equal to or greater than One Million Dollars ($1,000,000.00) but less
than the Target Earn Out, Access One shall cause to be issued and delivered to
OmniCall Shareholders that number of shares of Access One Common Stock equal to
the percentage of BizKick's gross sales as compared to the Target Earn Out. For
example, if BizKick's gross sales during the Earn Out Period equal to
seventy-five percent (75%) of the Target Earn Out, the OmniCall Shareholders
shall be entitled to and shall receive one million,
10
two hundred twenty-seven thousand, four hundred two (1,227,402) additional
shares of Access One Common Stock.
(c) Time of Earn Out Payment The Earn Out Payment, if any, shall be
evidenced by the delivery to the OmniCall Shareholders of the additional Access
One Common Stock no later than thirty (30) days after receipt of year-end
financial statements of BizKick for the fiscal year ended December 31, 2000,
unless the parties disagree as to the computation of the Earn Out Payment for
the Earn Out Period, in which event the Earn Out Payment shall be made within
two (2) business days following resolution of any such disagreement. The
additional Access One Common Stock issued to the OmniCall Shareholders pursuant
to this Section 2.9 shall be divided pro-rata among the OmniCall Shareholders in
accordance with their respective ownership interests in the common stock of
OmniCall on the date of Closing.
(d) Spin-Off on Sale Event. In the event Access One determines that
it would be in its best interests to spin-off, sell, or otherwise dispose of
BizKick prior to December 31, 2000, then and in such event, the OmniCall
Shareholders shall collectively receive in cash an amount equal to (i)
thirty-six percent (36%) of the gross proceeds of sale of BizKick, including any
consideration paid or to be paid under any ancillary agreements with respect to
said sale, and without reduction for any applicable taxes assessed with regard
thereto or; (ii) thirty-six percent (36%) of the spin-off valuation of BizKick,
including any consideration paid or to be paid under any ancillary agreements
with respect to said spin-off, and without reduction for any applicable taxes
assessed with regard thereto.
(e) Cessation of Business. The board of directors of Access One may
determine, in their sole discretion, to cease all operations of BizKick. In such
event, all software and source codes to the software, and other assets relating
thereto, shall revert to the OmniCall Shareholders or such other entity as the
OmniCall Shareholders shall direct. All of the then current obligations relating
to the HHT debt, as presently reflected on Schedule 1.1 hereof, shall be assumed
by the OmniCall Shareholders or such other entity as the OmniCall Shareholders
shall direct.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OMNICALL AND THE PRINCIPAL SHAREHOLDERS
The Principal Shareholders and OmniCall jointly and severally, , hereby
represent and warrant to Access One and Newco as follows:
SECTION 3.1 Corporate Organization. OmniCall is a corporation duly
organized, validly existing and in good standing under the laws of the State of
South Carolina and has all requisite corporate power and authority to own,
operate and lease its properties and assets as and where the same are owned,
operated or leased and to conduct its business as it is now being conducted.
OmniCall is in good standing and duly qualified or licensed as a foreign
corporation to do business in those jurisdictions listed on Schedule 3.1 hereto,
such jurisdictions being the only jurisdictions in which the location of the
property and assets owned, operated or leased by OmniCall or the nature of
11
the business conducted by OmniCall makes such qualification or licensing
necessary. OmniCall has heretofore delivered to Access One complete and correct
copies of OmniCall's articles of incorporation and by-laws, as amended to and as
in effect on the date hereof.
SECTION 3.2 Capitalization.
(a) The authorized capital stock of OmniCall consists of fifty million
(50,000,000) shares of OmniCall Common Stock and ten million (10,000,000) shares
of preferred stock. As of the date hereof, twelve million two hundred sixty-nine
thousand (12,269,000) shares of OmniCall Common Stock are currently issued and
outstanding. No shares of preferred stock are issued and outstanding.
(b) All outstanding shares of OmniCall Common Stock are validly issued,
fully paid and nonassessable; and, except as set forth in OmniCall's Articles of
Incorporation, or in the agreements pursuant to which OmniCall Preferred Stock
was issued, there are no preemptive or similar rights in respect of OmniCall
Common Stock. All shares of OmniCall Common Stock issuable upon the exercise of
options or granted under the Equity Participation Plan, will, when issued in
accordance therewith, be validly issued, fully paid and nonassessable. All
outstanding shares of OmniCall Common Stock issued since formation were issued
in compliance with all requirements of all applicable federal and state
securities laws and OmniCall has otherwise complied in all material respects
with federal and state securities laws.
(c) Schedule 3.2(c) hereto sets forth a complete and correct list of
each holder of outstanding shares of OmniCall Common Stock, the number of shares
of OmniCall Common Stock owned by each such holder and residence address of such
holders.
(d) Schedule 3.2(d) hereto also sets forth a complete and correct list
of all options ("Stock Options") granted under OmniCall's Stock Option Plan,
indicating as to each holder thereof, the number of shares of OmniCall Common
Stock subject thereto and the exercisability, exercise price and termination
date therefor.
(e) Schedule 3.2(e) hereto also sets forth a complete and correct list
of all Persons with an Equity Participation and a complete and correct statement
of the extent of the Equity Participation of each Person, including without
limitation the number of shares of OmniCall Common Stock and/or other
consideration such Person is entitled to receive hereunder.
SECTION 3.3 Subsidiaries. OmniCall does not own twenty percent (20%) or
more of the outstanding voting securities or other equity interests of any other
entity.
SECTION 3.4 No Commitments to Issue Capital Stock. Except for the
Equity Participations providing for the issuance of approximately one million,
ninety thousand, seven hundred seventy-four (1,090,774) voting shares, and Stock
Options to purchase a maximum of one hundred two thousand, five hundred
(102,500) shares, there are no outstanding options, warrants, calls, convertible
securities or other rights, agreements, commitments or other instruments
pursuant
12
to which OmniCall is or may become obligated to authorize, issue or transfer any
shares of its capital stock. Except as set forth on Schedule 3.4 hereto, there
are no agreements or understandings in effect among any of the shareholders of
OmniCall or with any other Person with respect to the voting, transfer,
disposition or registration under the Securities Act of 1933, as amended, of any
shares of capital stock of OmniCall.
SECTION 3.5 Authorization; Execution and Delivery. OmniCall has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement by OmniCall and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all requisite corporate action
on the part of OmniCall, except that OmniCall's shareholders are required to
approve and adopt the Merger and this Agreement. This Agreement has been duly
executed and delivered by OmniCall and, subject to such shareholder approval,
constitutes the legal, valid and binding obligation of OmniCall, enforceable
against OmniCall in accordance with its terms.
SECTION 3.6 Governmental Approvals and Filings. No approval,
authorization, consent, license, clearance or order of, declaration or
notification to, or filing or registration with any governmental or regulatory
authority is required in order (a) to permit OmniCall to consummate the Merger
or perform its obligations under this Agreement, or (b) to prevent the
termination of, or materially and adversely affect, any governmental right,
privilege, authority, franchise, license, permit or certificate of OmniCall to
provide its services or carry on its business ("Governmental Licenses"), or to
prevent any material loss or disadvantage to OmniCall's business, by reason of
the Merger, except for (i) filing and recording of the Articles of Merger as
required by the SCBCA, and (ii) as set forth in Schedule 3.6 hereto.
SECTION 3.7 No Conflict. Subject to compliance with the governmental
requirements described in Section 3.6 and obtaining the other consents and
waivers that are set forth and described on Schedule 3.7 hereto (the "Private
Consents"), neither the execution, delivery and performance of this Agreement by
OmniCall, nor the consummation by OmniCall of the transactions contemplated
hereby, will (i) conflict with, or result in a breach or violation of, any
provision of the articles of incorporation or by-laws of OmniCall; (ii) conflict
with, result in a breach or violation of, give rise to a default, or result in
the acceleration of performance, or permit the acceleration or performance,
under (whether or not after the giving of notice or lapse of time or both) any
note, bond, indenture, guaranty, lease, license, agreement or other instrument,
writ, injunction, order, judgment or decree to which OmniCall or any of its
respective properties or assets is subject; (iii) give rise to a declaration or
imposition of any material Lien upon any of the properties or assets of
OmniCall; or (iv) materially impair OmniCall's business or adversely affect any
Governmental License necessary to enable OmniCall to carry on its business as
presently conducted.
SECTION 3.8 Financial Statements; Absence of Undisclosed Liabilities;
Receivables; Supplies.
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(a) OmniCall has heretofore delivered to Access One complete and
correct copies of the following financial statements (collectively, the
"Financial Statements"), all of which have been prepared from the books and
records of OmniCall in accordance with GAAP and fairly present in all material
respects the financial condition of OmniCall as at their respective dates and
the results of their operations for the periods covered thereby:
(i) audited balance sheets at December 31, 1998, and audited
statements of income, cash flows and shareholders' equity of OmniCall for the
fiscal year then ended, audited by KPMG Peat Marwick LLP, independent certified
public accountants, as set forth on Schedule 3.8(a); and
(ii) unaudited balance sheet (the "Interim Balance Sheet") of
OmniCall as at July 31, 1999 (the "Interim Balance Sheet Date") and statements
of income and cash flows for the seven (7) months then ended, as set forth on
Schedule 3.8(a).
Such statements of income do not contain any items of special or nonrecurring
revenue or income or any revenue or income not earned in the ordinary course of
business, except as expressly specified therein.
(b) Except as and to the extent reflected or reserved against on the
Interim Balance Sheet, OmniCall did not have, as of the Interim Balance Sheet
Date, any material liabilities, debts or obligations (whether absolute, accrued,
contingent or otherwise) of any nature that would be required as of such date to
have been included on a balance sheet prepared in accordance with GAAP. Since
the Interim Balance Sheet Date, there has been no material adverse change in the
business, operations, assets, condition (financial or otherwise), liabilities,
results of operations or prospects of OmniCall, and no event has occurred which
is reasonably likely to cause any such material adverse change.
(c) All receivables of OmniCall (including accounts receivable, loans
receivable and advances) which are reflected in the Interim Balance Sheet, and
all such receivables which arise thereafter and prior to the Closing Date, have
arisen or will have arisen only from bona fide transactions in the ordinary
course of business and shall be fully collectible at the aggregate recorded
amounts thereof (except to the extent of appropriate reserves therefor
established in accordance with prior practice and GAAP), and to the best of
OmniCall's knowledge, are not and will not be subject to defense, counterclaim
or offset.
(d) All items of supplies and other consumables reflected on the
Interim Balance Sheet, and all such items of supplies and other consumables that
are acquired thereafter and prior to the Closing Date, are or will be useable in
the ordinary course of business. OmniCall has and will through the Closing Date
maintain a sufficient but not an excessive quantity of each type of such
supplies and other consumables in order to meet the normal requirements of its
businesses and operations.
14
SECTION 3.9 Absence of Changes. Except as set forth in Schedule 3.9
hereto or as expressly previously consented to in writing by Access One, since
the Interim Balance Sheet Date, OmniCall has conducted its business only in the
ordinary course, and OmniCall has not:
(a) amended or otherwise modified its Articles of Incorporation or
By-laws (or similar organizational documents);
(b) issued or sold or authorized for issuance or sale, or granted any
options or made other agreements (other than this Agreement) of the type
referred to in Section 3.4 with respect to any shares of its capital stock or
any other of its securities, or altered any term of any of its outstanding
securities or made any change in its outstanding shares of capital stock or
other ownership interests or its capitalization, whether by reason of a
reclassification, recapitalization, stock split or combination, exchange or
readjustment of shares, stock dividend or otherwise or redeemed, purchased or
otherwise acquired any of its capital stock;
(c) incurred any obligation or liability, absolute, accrued, contingent
or otherwise, whether due or to become due, except current liabilities for trade
or business obligations incurred in the ordinary course of business and
consistent with prior practice;
(d) recorded or accrued any item of revenue, except as a result of the
provision of local, long distance and Internet telecommunications service in the
ordinary course of business and consistent with prior practice;
(e) been subjected to any Lien or other restriction any of its
properties, business or assets;
(f) discharged or satisfied any Lien, or paid any obligation or
liability, absolute, accrued, contingent or otherwise, whether due or to become
due, other than current liabilities shown on the Interim Balance Sheet and
current liabilities incurred since the Interim Balance Sheet Date in the
ordinary course of business and consistent with prior practice;
(g) declared or made any payment of dividends or other distribution to
its shareholders upon or in respect of any shares of its capital stock, or
purchased, retired or redeemed, or obligated itself to purchase, retire or
redeem, any shares of capital stock or other securities;
(h) sold, transferred, leased to others or otherwise disposed of any
properties or assets or purchased, leased from others or otherwise acquired any
properties or assets except in the ordinary course of business;
(i) canceled or compromised any debt or claim or waived or released any
right of substantial value;
(j) transferred or granted any rights under, or entered into any
settlement regarding the breach or infringement of, any United States or foreign
license, patent, copyright, trademark, trade
15
name, service ▇▇▇▇, brand ▇▇▇▇, brand name, invention or similar rights or with
respect to any know-how, or modified any existing rights with respect thereto;
(k) made any change in the rate of compensation, commission, bonus or
other remuneration payable, or paid or agreed or orally promised to pay,
conditionally or otherwise, any bonus, extra compensation, pension or severance
or vacation pay, to any shareholder, director, officer, employee, salesman,
distributor or agent of OmniCall except in the ordinary course of business
consistent with prior practice pursuant to or in accordance with OmniCall's
severance plan described on Schedule 3.9 hereto or plans in effect as of
December 31, 1998 and not in contemplation of the Merger;
(l) made any increase in or commitment to increase any employee
benefits, adopted or made any commitment to adopt any additional Employee
Benefit Plan or made any contribution, other than regularly scheduled
contributions, to any Employee Benefit Plan;
(m) engaged in any transaction with any shareholder, director, officer,
employee, salesman, distributor or agent of OmniCall other than (i) normal
compensation and other fees earned in their capacity as such in accordance with
past practice, (ii) transactions in the ordinary course of business not
involving an expenditure in excess of an aggregate of One Thousand Dollars
($1,000.00) per individual, EXCEPT for advanced made by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and
(iii) transactions in accordance with the provisions of Contracts (as
hereinafter defined in Section 3.17(b) with any such Person that are disclosed
on Schedule 3.17 hereto) or made any loans or advances to any director, officer,
employee, salesman, distributor or agent other than travel and entertainment
advances in the ordinary course of business consistent with prior practice;
(n) made any loan or advance to any Person other than travel and other
similar routine advances in the ordinary course of business consistent with past
practice, or acquired any capital stock or other securities of any other
corporation or any ownership interest in any other business enterprise;
(o) changed its banking or safe deposit arrangements;
(p) instituted, settled or agreed to settle any litigation, action or
proceeding before any court or governmental body relating to OmniCall or its
respective properties or assets;
(q) entered into any transaction, contract or commitment other than in
the ordinary course of business;
(r) changed any accounting practices or principles utilized in the
preparation of the Financial Statements;
(s) suffered any change, event or condition that, in any case or in the
aggregate, has had or is reasonably likely to result in a Material Adverse
Effect;
16
(t) entered into any agreement or made any commitment to take any of
the types of action described in subparagraphs (a) through (s) above; or
(u) received notice from any OmniCall Shareholder that they are
exercising their dissenters rights as provided in Section ▇▇-▇▇-▇▇▇ et. seq. of
the SCBCA.
SECTION 3.10 Tax Matters. Except as set forth on Schedule 3.10 hereto:
(a) OmniCall has timely filed with the appropriate taxing authorities
all returns in respect of Taxes of OmniCall required to be filed (taking into
account any extension of time to file granted to or on behalf of such entity).
The information on such returns is complete and accurate in all respects.
OmniCall has paid on a timely basis all Taxes of OmniCall (whether or not shown
on any Tax return) due and payable. No returns for income taxes have been
examined by the Internal Revenue Service or other taxing authority.
(b) No unpaid deficiencies for Taxes have been claimed proposed or
assessed by any taxing or other governmental authority with respect to OmniCall
for any period ending on or prior to the date hereof, and there are no pending
or threatened audits, investigations or claims for or relating to any liability
in respect of Taxes of OmniCall. OmniCall has not requested any extension of
time within which to file any currently unfiled returns in respect of any Taxes
and no extension of a statute of limitations relating to any Taxes is in effect
with respect to OmniCall.
SECTION 3.11 Relations with Employees and Sales Agents; Benefit Plans.
(1) Except as set forth in Schedule 3.11(a) hereto:
(i) OmniCall has satisfactory relationships with its employees
and sales agents.
(ii) OmniCall is in material compliance with all applicable
laws respecting employment and employment practices, terms and conditions of
employment, and wages and hours and OmniCall is not engaged in any unfair labor
practices.
(iii) No collective bargaining agreement with respect to the
business of OmniCall is currently in effect or being negotiated. OmniCall has no
obligation to negotiate any such collective bargaining agreement, and there is
no indication that the employees of OmniCall desire to be covered by a
collective bargaining agreement.
(iv) There are no strikes, slowdowns or work stoppages pending
knowledge, been threatened since its inception. There is no representation claim
or petition pending before the National Labor Relations Board or any state or
local labor agency and, to the best of OmniCall's or, to the best of OmniCall's
knowledge, threatened with respect to the employees of OmniCall, nor has any
such strike, slowdown or work stoppage occurred or, to the best of OmniCall's
17
knowledge, no question concerning representation has been raised or threatened
since its inception respecting the employees of OmniCall.
(v) There are no complaints or charges against OmniCall
pending before the National Labor Relations Board or any state or local labor
agency and, to the best of OmniCall's knowledge, no Person has threatened since
its inception to file any complaint or charge against OmniCall with any such
board or agency.
(vi) To the best of OmniCall's knowledge, no charges with
respect to or relating to the business of OmniCall are pending before the Equal
Employment Opportunity Commission, or any state or local agency responsible for
the prevention of unlawful employment practices.
(vii) Since its inception, OmniCall has not received notice of
the intent of any federal, state, local or foreign agency responsible for the
enforcement of labor or employment laws to conduct an investigation of OmniCall,
and, to the best of OmniCall's knowledge, no such investigation is in progress.
(b) Each Employee Benefit Plan (and each related trust, insurance
contract and fund) is in compliance in all material respects in form and in
operation with all applicable requirements of Applicable Benefits Law (including
ERISA and the Code), and is being administered in all material respects in
accordance with all relevant plan documents to the extent consistent with
Applicable Benefits Law. There has been no prohibited transaction with respect
to any Employee Benefit Plan which would result in the imposition of any
material unpaid excise tax. No Employee Benefit Plan is under investigation or
audit of OmniCall. There are no legal actions or suits pending or, to the best
OmniCall's knowledge, threatened against any Employee Benefit Plan or the assets
of any Employee Benefit Plan or against any fiduciary of any Employee Benefit
Plan and OmniCall has no knowledge of any facts that could give rise to any such
actions. There has not occurred any circumstance by reason of which OmniCall may
be liable for an act or a failure to act by a fiduciary with respect to an
Employee Benefit Plan. There has been full compliance in all material respects
with the notice and continuation requirements of Section 4980B of the code
applicable to any Employee Benefit Plan.
SECTION 3.12 Properties.
(a) Schedule 3.12 hereto contains a complete and correct list of all
real property owned, leased or licensed by OmniCall, together with a description
of each lease, sublease, license or any other instrument under which OmniCall
claims or holds such leasehold or other interest or the right to the use thereof
or pursuant to which OmniCall has assigned, sublet or granted any rights
therein, identifying the parties thereto, the rental or other payment terms,
expiration date and cancellation and renewal terms thereof. Except as set forth
in said Schedule 3.12, to the best of OmniCall's knowledge, all improvements on
such real property (i) conform in all material respects to applicable federal,
state, local and foreign laws and zoning and building ordinances (and the
properties are zoned for the various purposes for which such real estate is
presently used), and (ii) are in good
18
condition and repair, normal wear and tear excepted, and there does not exist
any condition or conditions that, individually or in the aggregate, materially
interferes with the economic value or use thereof.
(b) All material items of personal property owned or leased by OmniCall
or used in its business is in reasonably good operating condition and repair,
normal wear and tear excepted, and is suitable for the purpose for which it is
utilized, and there does not exist any condition that materially interferes with
the economic value or use thereof.
(c) All real and personal properties and assets owned, leased or
licensed by OmniCall or used in its business are adequate and sufficient for all
current operations of OmniCall. Except as set forth in Schedule 3.12 hereto,
OmniCall has good and marketable title to or another valid right to use all such
real and personal property and assets, free and clear of all Liens, except Liens
and imperfections of title that do not materially detract from the value, or
materially interfere with the present use, of such properties or assets.
SECTION 3.13 Compliance with Laws; Legal Proceedings.
(a) OmniCall, to the best of its knowledge, is not in violation of, or
in default with respect to, (i) any applicable statute, regulation, ordinance,
writ, injunction, order, judgment or decree which violation or default has had
or is reasonably likely to result in a Material Adverse Effect, or (ii) any
Governmental License. Without limiting the generality of the foregoing, (i)
OmniCall has not received any citation from the Occupational Safety and Health
Administration or any Occupational Safety and Health Act ("OSHA") inspector
setting forth any material respect in which the facilities or operations of
OmniCall are not in compliance with OSHA, and (ii) neither OmniCall nor any
officer, director, employee or agent of any thereof has violated the Foreign
Corrupt Practices Act of 1977, as amended.
(b) Except as set forth in Schedule 3.13 hereto, there is no order,
writ, injunction, judgment or decree outstanding and no legal, administrative,
arbitration or other governmental proceeding or investigation pending or, to the
best of OmniCall's knowledge, threatened, and there are no claims (including
unasserted claims of which OmniCall is aware) against or relating to OmniCall or
any of their respective properties, assets or businesses that could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect.
SECTION 3.14 Brokers. Except for the Equity Participations, no broker,
finder or investment advisor acted directly or indirectly as such for OmniCall
or any of the Principal Shareholders in connection with this Agreement, the
Merger or the other transactions contemplated hereby, and no broker, finder,
investment advisor or other Person is entitled to any fee or other commission,
or other remuneration, in respect thereof based in any way on any action,
agreement, arrangement or understanding taken or made by or on behalf of
OmniCall or any of the Principal Shareholders.
19
SECTION 3.15 Patents, Trademarks and Names. Schedule 3.15 hereto
contains a complete and correct list of (i) all trademarks, trademark
registrations and applications therefor, service marks, service ▇▇▇▇
registrations and applications therefor, trade names, copyrights, patents and
applications for patents, or other proprietary rights wholly or partially owned
or held by or registered in the name of OmniCall, or used in the operation of
the business of OmniCall, and (ii) all names under which OmniCall does business.
OmniCall has all rights under all patents, trademarks, service marks, trade
names or copyrights (or any applications or registrations respecting any
thereof), discoveries, improvements, formulas, know-how, data, plans,
specifications, trade secrets, computer software (including, without limitation,
computer programs and data bases), drawings or the like that OmniCall requires
in order to conduct its business as it is currently being conducted.
SECTION 3.16 Insurance. Schedule 3.16 hereto contains a complete and
correct list of all policies of liability, theft, fidelity, life and other forms
of insurance held by OmniCall (specifying the insurer, amount of coverage,
annual premium, type of insurance, policy number, any pending claims thereunder
and any other claims that were made thereunder during the past year). The
policies listed in Schedule 3.16 are outstanding and fully in force and all
premiums due with respect to such policies have been paid. Except as set forth
in Schedule 3.16, such policies are with reputable insurers, provide adequate
coverage for all normal risks incident to OmniCall's and the Subsidiaries'
assets, properties and business operations and are in character and amount at
least equivalent to that carried by Persons engaged in a business subject to the
same or similar perils or hazards. Except as set forth in such Item, OmniCall
has not, during the past three fiscal years, been denied or had revoked or
rescinded any policy of insurance.
SECTION 3.17 Contracts; etc.
(a) Set forth on Schedule 3.17 hereto is a complete and correct list of
each of the following Contracts, Government Licenses and other instruments to
which OmniCall is a party or by which OmniCall or their respective properties or
assets are bound (reasonably expected to involve more than Fifty Thousand
Dollars ($50,000.00);
(i) each service or other similar type of agreement under
which services are provided by any other Person to OmniCall;
(ii) each agreement that restricts the operation of the
business of OmniCall as presently conducted and each agreement that
restricts the ability of OmniCall to retain agents or distributors or
to solicit customers or employees;
(iii) each agreement with an Affiliated Person;
(iv) each operating lease (as lessor, lessee, sublessor or
sublessee) of any real property;
20
(v) each operating lease (as lessor, lessee, sublessor or
sublessee) of any tangible personal property or assets (except for
leases calling for payment of less than Five Thousand Dollars ($5,000)
per year and/or having a term of less than one (1) year);
(vi) each license (as licensor, licensee, sublicensor or
sublicensee) of any patents, trademarks or other item of property
described in Section 3.15 (other than customary, non-negotiated
licenses of computer software);
(vii) each agreement under which services are provided by
OmniCall to any material customer;
(viii) each written agreement for the purchase of supplies or
product which calls for performance by OmniCall over a period of more
than six (6) months or with respect to which there exists an aggregate
future liability of OmniCall in excess of Twenty-Five Thousand Dollars
($25,000);
(ix) each agreement under which any money has been or may be
borrowed or loaned or any note, bond, indenture, or other evidence of
indebtedness has been issued or assumed (other than those under which
there remain no ongoing obligations of OmniCall), and each guaranty of
any evidence of indebtedness or other obligation, or of the net worth,
of any Person (other than endorsements for the purpose of collection in
the ordinary course of business);
(x) each mortgage, deed of trust, security agreement, purchase
money agreement, conditional sales contract or capital lease (other
than any mortgage, purchase money agreement, conditional sales contract
or capital lease evidencing Liens solely on tangible personal property
or assets under which there exists an aggregate future liability of
OmniCall not in excess of Ten Thousand Dollars ($10,000.00) per
mortgage, agreement, contract or lease);
(xi) each partnership, joint venture or similar agreement;
(xii) each agreement containing restrictions with respect to
the payment of dividends or other distributions in respect of
OmniCall's capital stock;
(xiii) each agreement to make unpaid capital expenditures in
excess of Twenty-Five Thousand Dollars ($25,000); and
(xiv) each other agreement having an indefinite term or a term
of more than one (1) year (other than those that are terminable at will
or upon not more than thirty (30) days' notice by OmniCall without
penalty) or requiring payments by OmniCall of more than Ten Thousand
Dollars ($10,000.00) per year.
21
A complete and correct copy of each written agreement, lease, license, mortgage,
deed of trust, instrument, contract or other type of document required to be
disclosed pursuant to this Section 3.17(a) has been delivered to Access One.
(b) Each agreement, lease, license, mortgage, deed of trust,
instrument, contract or other type of document required to be disclosed pursuant
to Section 3.11(a) and Section 3.17(a) to which OmniCall is a party or by which
OmniCall or its respective properties or assets are bound (collectively, the
"Contracts"), except for Contracts, the loss of which has not had, and is not
reasonably likely to result in, a Material Adverse Effect, is valid, binding and
in full force and effect and is believed to be enforceable by OmniCall in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium and other similar laws affecting creditors'
rights generally and by general principles of equity. OmniCall is not (with or
without the lapse of time or the giving of notice, or both) in material breach
of or in material default under any of the Contracts, and, to the best of
OmniCall's knowledge, no other party to any of the Contracts is (with or without
the lapse of time or the giving of notice, or both) in breach of or in material
default under any of the Contracts. None of OmniCall's existing or completed
agreements is subject to renegotiation with any governmental body.
SECTION 3.18 Permits, Authorizations, etc. Schedule 3.18 hereto sets
forth all Governmental Licenses and each other material approval, authorization,
consent, license, certificate of public convenience, order or other permit of
all governmental agencies, whether federal, state, local or foreign, necessary
to enable OmniCall or the Subsidiaries to own, operate and lease their
properties and assets as and where such properties and assets are owned, leased
or operated and to provide service and carry on their business as presently
provided and conducted (collectively the "Permits") or required to permit the
continued conduct of such business following the Closing Date in the manner
conducted on the date of this Agreement (indicating in each case whether or not
the consent of any Person is required for the consummation of the transactions
contemplated hereby). OmniCall has all necessary Permits of all governmental
agencies, whether federal, state, local or foreign, all of which are valid and
in good standing with the issuing agencies and not subject to any proceedings
for suspension, modification or revocation. All reports required by law are
believed to have been filed with regulatory agencies having appropriate
jurisdiction and there is no action pending before any regulatory agency or, to
the best of OmniCall's knowledge, threatened by any regulatory agency that is
reasonably likely to materially affect the validity and full use by OmniCall of
any Permit.
SECTION 3.19 Environmental Matters.
(a) For purposes of this Agreement, the capitalized terms defined below
shall have the meanings ascribed to them below.
(i) "Environment" means all air, surface water, groundwater,
drinking water or land, including land surface or subsurface.
22
(ii) "Environmental Law(s)" means all federal, state or local
environmental, land use, health, chemical use, safety and sanitation
laws, statutes, ordinances, rules, regulations and codes (including
without limitation specific Governmental Licenses, permits,
authorizations, directives, approvals or consents, court orders,
injunctions or decrees, or agreements with governmental agencies), as
in effect on the date hereof, relating to health, safety or the
protection of the Environment and/or governing the discharge of
pollutants or the use, storage, treatment, generation, transportation,
processing, handling, production or disposal of Hazardous Substances
and all statutes similar to or based upon the foregoing.
(iii) "Environmental Permits" means all approvals,
authorizations, consents, permits, licenses, registrations and
certificates required by any applicable Environmental Law relating to:
(a) pollution or the protection of the Environment, including without
limitation those relating to the emission, Release or discharge of any
Hazardous Substances into the Environment, (b) the use, treatment,
storage disposal, generation, transport or handling of Hazardous
Substances, or (c) the cleanup or remediation of Hazardous Substances
from any real property.
(iv) "Hazardous Substance(s)" means, without limitation, any
flammable explosives, radioactive materials, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and petroleum products
(including but not limited to waste petroleum and petroleum products),
methane, hazardous materials, hazardous wastes, pollutants,
contaminants and hazardous or toxic substances, as defined in or
regulated under any applicable Environmental Laws.
(v) "Release" means any past or present spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing of a Hazardous Substance into the
Environment.
(b) OmniCall has obtained all Environmental Permits that are presently
required for the lawful operation of its business, and Schedule 3.19 hereto sets
forth a complete and correct list of all Environmental Permits possessed by
OmniCall or the Subsidiaries. OmniCall (i) is in compliance with all terms and
conditions of its Environmental Permits and is in compliance with and not in
default under any applicable Environmental Law, and (ii) has not received
written notice of any violation by or claim against OmniCall under any
Environmental Law.
(c) There have been no Releases by OmniCall of any Hazardous Substances
(i) into, on or under any of the properties owned or operated (or formerly owned
or operated) by OmniCall, or (ii) into, on or under any other properties,
including landfills in which Hazardous Substances have been Released or
properties on or under which OmniCall has performed services, in any case in
such a way as to create any material unpaid liability (including the costs of
required remediation) under any applicable Environmental Law.
(d) To the best of OmniCall's knowledge, there are no underground
storage tanks,
23
abandoned ▇▇▇▇▇ or landfills on any real property owned or leased by OmniCall.
SECTION 3.20 OmniCall Acquisitions. OmniCall has never acquired nor
agreed to acquire all or any part of the stock or assets (including any customer
list) of any Person, other than HHT Enterprises, Inc. and property acquired in
the ordinary course of business which is currently a division of OmniCall known
as OmniWeb or BizKick.
SECTION 3.21 Books and Records. All accounts, books, ledgers and
official and other records prepared and kept by OmniCall have been truthfully
and properly kept and completed in all respects, and there are no material
inaccuracies or discrepancies of any kind contained or reflected therein.
SECTION 3.22 Accuracy of Information. No statement in this Article III
or in any Schedule or certificate delivered or to be delivered by OmniCall
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 necessary to make
the statements contained therein not misleading. The information about OmniCall,
the Merger, this Agreement and the transactions contemplated hereby included by
OmniCall in material soliciting approval of the Merger by the shareholders of
OmniCall, and all other information contained therein, other than written
information supplied by Access One specifically for use therein, will not, on
the date such material is first mailed to shareholders of OmniCall or on the
date of the shareholder meeting, as amended or supplemented, contain any untrue
statement of a material fact, or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
SECTION 3.23 Year 2000 Compliance. OmniCall has (a) initiated a review
and assessment of all areas within its business and operations (including those
affected by suppliers and vendors) that could reasonably be expected to be
relevant to whether OmniCall is Year 2000 Compliant, (b) developed a plan and
time line for ensuring that OmniCall is Year 2000 Compliant (except for such
instances as individually or in the aggregate would not have a Material Adverse
Effect) on a timely basis, and (c) to date, implemented that plan in accordance
with that timetable. Based upon the foregoing, OmniCall believes that it is Year
2000 Compliant as of the date hereof except to the extent described in Schedule
3.23 and except for such instances as individually or in the aggregate would not
have a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACCESS ONE, NEWCO AND ▇▇▇▇▇▇
Access One, Newco, and ▇▇▇▇▇▇ jointly and severally,, hereby represent
and warrant to OmniCall and the Principal Shareholders as follows:
SECTION 4.1 Corporate Organization. Access One and Newco are
corporations duly organized, validly existing and in good standing under the
laws of the State of New Jersey and the State of Florida, respectively, and each
has all requisite corporate power and authority to own,
24
operate and lease its properties and assets as and where the same are owned,
operated or leased and to conduct it business as it is now being conducted.
Access One is in good standing and duly qualified or licensed as a foreign
corporation to do business in those jurisdictions listed on Schedule 4.1 hereto,
such jurisdictions being the only jurisdictions in which the location of the
property and assets owned, operated or leased by Access One or the nature of the
business conducted by Access One makes such qualification or licensing
necessary. Newco was incorporated in October 1999, has conducted no business and
has no material assets or liabilities on the date hereof. Access One and Newco
have heretofore delivered to OmniCall true and correct copies of their
respective certificates of incorporation and by-laws as amended to and as in
effect on the date hereof.
SECTION 4.2 Authorization; Execution and Delivery. Each of Access One
and Newco has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement and all other agreements to be
executed by Access One and Newco pursuant hereto. The execution, delivery and
performance of this Agreement by Access One and Newco, and the consummation of
the transactions contemplated hereby and thereby, have been duly authorized by
all requisite corporate action on the part of Access One and Newco. This
Agreement has been duly executed and delivered by Access One , Newco, and ▇▇▇▇▇▇
and constitutes the legal, valid and binding obligations of Access One, Newco,
and ▇▇▇▇▇▇, enforceable against Access One, Newco, and ▇▇▇▇▇▇ in accordance with
their respective terms.
SECTION 4.3 Governmental Approvals and Filings. No approval,
authorization, consent, license, clearance or order of, declaration or
notification to, or filing or registration with, any governmental or regulatory
authority is required in order (a) to permit Access One and Newco to perform
their respective obligations under this Agreement, or (b) to prevent the
termination of, or materially and adversely affect , any governmental right,
privilege, authority, franchise, license permit or certificate of Access One and
Newco to provide its services or carry on its business ("Governmental
Licenses"), or to prevent any material loss or disadvantage to Access One and
Newco's business, by reason of the Merger, except for (i) filing and recording
of the Articles of Merger as required by the NJBCA and FBCA, and (ii) as set
forth in Schedule 4.3 hereto.
SECTION 4.4 No Conflict. Subject to compliance with the governmental
requirements referred to in Section 4.3 and obtaining the other consents and
waivers that are set forth and described on Schedule 4.4 hereto ("Access
One/Newco Private Consents"), neither the execution, delivery and performance of
this Agreement by Access One and Newco, nor the consummation by Access One and
Newco of the transactions contemplated hereby or thereby, will (i) conflict
with, or result in a breach or violation of, any provision of the articles of
incorporation or by-laws of Access One or Newco; (ii) conflict with, or result
in breach or violation of, give rise to a default under, or result in the
acceleration of performance under (whether or not after the giving of notice or
lapse of time or both) any note, bond, indenture, guaranty, lease, license,
agreement or other instrument, writ, injunction, order, judgment or decree to
which Access One or Newco or any of their respective properties or assets is
subject so as to materially impair Access One's or Newco's ability to perform
its obligations under this Agreement, (iii) give rise to a declaration or
imposition of any material Lien upon any of the properties or assets of
OmniCall; or (iv) or to cause a Material Adverse Effect on
25
Access One.
SECTION 4.5 Brokers. No broker or finder has acted directly or
indirectly as such for Access One or Newco in connection with this Agreement,
the Merger or the other transactions contemplated hereby, and no broker, finder,
investment advisor or other Person is entitled to any fee or other commission,
or other remuneration, in respect thereof based in any way on any action,
agreement, arrangement or understanding taken or made by or on behalf of Access
One or Newco.
SECTION 4.6 Access One Common Stock. All shares of Access One Common
Stock to be issued in connection with, the Merger or pursuant to Section 2.4
will, upon such issuance, be validly issued and outstanding, fully paid and
nonassessable.
SECTION 4.7 Financial Statements; Absence of Undisclosed Liabilities;
Receivables; Supplies.
(a) Access One has heretofore delivered to OmniCall complete and
correct copies of the following financial statements (collectively, the
"Financial Statements"), all of which have been prepared from the books and
records of Access One in accordance with GAAP and fairly present in all material
respects the financial condition of Access One as at their respective dates and
the results of their operations for the periods covered thereby:
(i) audited consolidated balance sheets at October 31, 1998,
and audited consolidated statements of income, cash flows and
shareholders' equity of Access One for the fiscal year then ended,
audited by Nussabaum, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., independent certified
public accountants; and
(ii) unaudited consolidated balance sheet (the "Interim
Balance Sheet") of Access One as at July 31, 1999 (the "Interim Balance
Sheet Date") and consolidated statements of income and cash flows for
the seven (7) months then ended, as set forth on Schedule 4.7(a).
Such statements of income do not contain any items of special or nonrecurring
revenue or income or any revenue or income not earned in the ordinary course of
business, except as expressly specified therein.
(b) Except as and to the extent reflected or reserved against on the
Interim Balance Sheet, Access One did not have, as of the Interim Balance Sheet
Date, any material liabilities, debts or obligations (whether absolute, accrued,
contingent or otherwise) of any nature that would be required as of such date to
have been included on a balance sheet prepared in accordance with GAAP. Since
the Interim Balance Sheet Date, other than as disclosed on Schedule 4.7(b),
there has been no material adverse change in the business, operations, assets,
condition (financial or otherwise), liabilities, results of operations or
prospects of Access One, and no event has occurred which is reasonably likely to
cause any such material adverse change.
26
(c) All receivables of Access One (including accounts receivable, loans
receivable and advances) which are reflected in the Interim Balance Sheet, and
all such receivables which arise thereafter and prior to the Closing Date, have
arisen or will have arisen only from bona fide transactions in the ordinary
course of business and shall be fully collectible at the aggregate recorded
amounts thereof (except to the extent of appropriate reserves therefor
established in accordance with prior practice and GAAP) and are not and will not
be subject to defense, counterclaim or offset.
(d) All items of supplies and other consumables reflected on the
Interim Balance Sheet, and all such items of supplies and other consumables that
are acquired thereafter and prior to the Closing Date, are or will be useable in
the ordinary course of business. Access One has and will through the Closing
Date maintain a sufficient but not an excessive quantity of each type of such
supplies and other consumables in order to meet the normal requirements of its
businesses and operations.
SECTION 4.8 Tax Matters. Except as set forth on Schedule 4.8 hereto:
(a) Access One has timely filed with the appropriate taxing authorities
all returns in respect of Taxes of Access One required to be filed (taking into
account any extension of time to file granted to or on behalf of such entity).
The information on such returns is complete and accurate in all respects. Access
One has paid on a timely basis all Taxes of Access One (whether or not shown on
any Tax return) due and payable. No returns for income taxes have been examined
by the Internal Revenue Service or other taxing authority.
(b) No unpaid deficiencies for Taxes have been claimed, proposed or
assessed by any taxing or other governmental authority with respect to Access
One for any period ending on or prior to the date hereof, and there are no
pending or threatened audits, investigations or claims for or relating to any
liability in respect of Taxes of Access One. Access One has not requested any
extension of time within which to file any currently unfiled returns in respect
of any Taxes and no extension of a statute of limitations relating to any Taxes
is in effect with respect to Access One.
SECTION 4.9 Compliance with Laws; Legal Proceedings.
(a) Access One is not in violation of, or in default with respect to,
(i) any applicable statute, regulation, ordinance, writ, injunction, order,
judgment or decree which violation or default has had or is reasonably likely to
result in Material Adverse Effect, or (ii) any Governmental License. Without
limiting the generality of the foregoing, (i) Access One has not received any
citation from the Occupational Safety and Health Administration or any
Occupational Safety and Health Act ("OSHA") inspector setting forth any material
respect in which the facilities or operations of Access One are not in
compliance with OSHA, and (ii) neither Access One nor any officer, director,
employee or agent of any thereof has violated the Foreign Corrupt Practices Act
of 1977, as amended.
27
(b) Except as set forth in Schedule 4.9 hereto, there is no order,
writ, injunction, judgment or decree outstanding and no legal, administrative,
arbitration or other governmental proceeding or investigation pending or, to the
best of Access One's knowledge, threatened, and there are no claims (including
unasserted claims of which Access One is aware) against or relating to Access
One or any of its subsidiaries or any of their respective properties, assets or
businesses that could reasonably be expected, individually or in the aggregate,
to result in a material adverse effect on Access One and its subsidiaries taken
as a whole.
SECTION 4.10 Absence of Certain Changes. Except as set forth in
Schedule 4.10 hereto or as expressly previously consented to in writing by
OmniCall, since the Interim Balance Sheet Date, there has not been any material
adverse change in the condition (financial or otherwise), properties, assets,
liabilities or business prospects of Access One and its subsidiaries. Without
limiting the foregoing, Access One has conducted its business only in the
ordinary course, and Access One has not:
(a) amended or otherwise modified its Articles of Incorporation or
By-laws (or similar organizational documents);
(b) issued or sold or authorized for issuance or sale, or granted any
options or made other agreements (other than this Agreement) of the type
referred to in Section 4.11 with respect to any shares of its capital stock or
any other of its securities, or altered any term of any of its outstanding
securities or made any change in its outstanding shares of capital stock or
other ownership interests or its capitalization, whether by reason of a
reclassification, recapitalization, stock split or combination, exchange or
readjustment of shares, stock dividend or otherwise or redeemed, purchased or
otherwise acquired any of its capital stock;
(c) incurred any obligation or liability, absolute, accrued, contingent
or otherwise, whether due or to become due, except current liabilities for trade
or business obligations incurred in the ordinary course of business and
consistent with prior practice;
(d) recorded or accrued any item of revenue, except as a result of the
provision of local, long distance and Internet telecommunications service in the
ordinary course of business and consistent with prior practice;
(e) been subjected to any Lien or other restriction any of its
properties, business or assets;
(f) discharged or satisfied any Lien, or paid any obligation or
liability, absolute, accrued, contingent or otherwise, whether due or to become
due, other than current liabilities shown on the Interim Balance Sheet and
current liabilities incurred since the Interim Balance Sheet Date in the
ordinary course of business and consistent with prior practice;
28
(g) declared or made any payment of dividends or other distribution to
its shareholders upon or in respect of any shares of its capital stock, or
purchased, retired or redeemed, or obligated itself to purchase, retire or
redeem, any shares of capital stock or other securities;
(h) sold, transferred, leased to others or otherwise disposed of any
properties or assets or purchased, leased from others or otherwise acquired any
properties or assets except in the ordinary course of business;
(i) canceled or compromised any debt or claim or waived or released any
right of substantial value;
(j) transferred or granted any rights under, or entered into any
settlement regarding the breach or infringement of, any United States or foreign
license, patent, copyright, trademark, trade name, service ▇▇▇▇, brand ▇▇▇▇,
brand name, invention or similar rights or with respect to any know-how, or
modified any existing rights with respect thereto;
(k) made any change in the rate of compensation, commission, bonus or
other remuneration payable, or paid or agreed or orally promised to pay,
conditionally or otherwise, any bonus, extra compensation, pension or severance
or vacation pay, to any shareholder, director, officer, employee, salesman,
distributor or agent of Access One except in the ordinary course of business
consistent with prior practice pursuant to or in accordance with Access One's
severance plan described on Schedule 4.10 hereto or plans in effect as of
December 31, 1998 and not in contemplation of the Merger;
(l) made any increase in or commitment to increase any employee
benefits, adopted or made any commitment to adopt any additional Employee
Benefit Plan or made any contribution, other than regularly scheduled
contributions, to any Employee Benefit Plan;
(m) engaged in any transaction with any shareholder, director, officer,
employee, salesman, distributor or agent of Access One other than (i) normal
compensation and other fees earned in their capacity as such in accordance with
past practice, (ii) transactions in the ordinary course of business not
involving an expenditure in excess of an aggregate of One Thousand Dollars
($1,000.00) per individual, and (iii) transactions in accordance with the
provisions of Contracts (as defined in Section 3.17 with any such Person that
are disclosed on Schedule 4.10 hereto) or made any loans or advances to any
director, officer, employee, salesman, distributor or agent other than travel
and entertainment advances in the ordinary course of business consistent with
prior practice;
(n) made any loan or advance to any Person other than travel and other
similar routine advances in the ordinary course of business consistent with past
practice, or acquired any capital stock or other securities of any other
corporation or any ownership interest in any other business enterprise;
(o) changed its banking or safe deposit arrangements;
29
(p) instituted, settled or agreed to settle any litigation, action or
proceeding before any court or governmental body relating to Access One or its
respective properties or assets;
(q) entered into any transaction, contract or commitment other than in
the ordinary course of business;
(r) changed any accounting practices or principles utilized in the
preparation of the Financial Statements;
(s) suffered any change, event or condition that, in any case or in the
aggregate, has had or is reasonably likely to result in a Material Adverse
Effect; or
(t) entered into any agreement or made any commitment to take any of
the types of action described in subparagraphs (a) through (s) above.
SECTION 4.11 Capitalization.
(a) The authorized capital stock of Access One consists of fifty
million (50,000,000) shares of Access One Common Stock and seven million five
hundred thousand (7,500,000) shares of preferred stock. As of the date hereof,
fourteen million, four hundred fifty-three thousand eight hundred ninety-nine
(14,453,899) shares of Access One Common Stock are issued and outstanding as set
forth on Schedule 4.11(a) attached hereto, and no shares of preferred stock are
issued and outstanding, (collectively, the "Access One Capital Stock"). At the
date hereof, options, warrants and other obligations are outstanding providing
for the issuance of an additional two million, six hundred twenty-five thousand
(2,625,000) shares of Access One Common Stock. These options, warrants and other
obligations, in the aggregate, have a weighted average exercise price of One and
2/100 Dollars ($1.02) per share.
(b) All outstanding shares of Access One Capital Stock are validly
issued, fully paid and nonassessable; and, except as set forth in Access One's
Articles of Incorporation or in the agreements pursuant to which Access One
preferred stock was issued, there are no preemptive or similar rights in respect
of Access One Common Stock. All outstanding shares of Access One Capital Stock
issued since 1991 were issued in compliance with all requirements of all
applicable federal and state securities laws. Access One has otherwise complied
in all material respects with federal and state securities laws.
(c) Schedule 4.11(c) hereto also sets forth a complete and correct list
of all options ("Stock Options") granted under Access One's Stock Option Plan,
indicating as to each holder thereof, the number of shares of Access One Common
Stock subject thereto and the exercisability, exercise price and termination
date therefor.
30
SECTION 4.12 Subsidiaries.
(a) Except for the subsidiaries listed in Schedule 4.12 hereto
(collectively, the "Subsidiaries" and, individually, a "Subsidiary"), there are
no entities twenty percent (20%) or more of whose outstanding voting securities
or other equity interests are owned, directly or indirectly through one or more
intermediaries, by Access One. Each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own,
operate and lease its properties and assets as and where the same are owned,
operated or leased by such Subsidiary and to conduct its business as it is now
being conducted. Each Subsidiary is in good standing and duly qualified or
licensed as a foreign corporation to do business in each of the jurisdictions in
which such qualification or licensing is necessary. Access One has heretofore
delivered to OmniCall complete and correct copies of each Subsidiary's articles
of incorporation and by-laws, in each case as amended to and as in effect on the
date hereof.
(b) Each of the Subsidiaries is wholly-owned by Access One except as
stated on Schedule 4.12(b). Except as set forth on Schedule 4.12(b), Access One
or such Subsidiary has good and valid title to all such shares free and clear of
all Liens. All of the outstanding shares of capital stock of each Subsidiary are
validly issued, fully paid and nonassessable, and there are no preemptive or
similar rights in respect of any shares of capital stock of any Subsidiary.
SECTION 4.13 No Commitments to Issue Capital Stock. Except as set forth
on Schedule 4.11(c) hereto, there are no outstanding options, warrants, calls,
convertible securities or other rights, agreements, commitments or other
instruments pursuant to which Access One or any Subsidiary is or may become
obligated to authorize, issue or transfer any shares of its capital stock.
SECTION 4.14 Relations with Employees and Sales Agents; Benefit Plans.
(2) Except as set forth in Schedule 4.14(a) hereto:
(i) Access One has satisfactory relationships with its
employees and sales agents.
(ii) Access One is in material compliance with all
applicable laws respecting employment and employment
practices, terms and conditions of employment, and
wages and hours and Access One is not engaged in any
unfair labor practices.
(iii) No collective bargaining agreement with respect to
the business of Access One is currently in effect or
being negotiated. Access One has no obligation to
negotiate any such collective bargaining agreement,
and there is no indication that the employees of
Access One desire to be covered by a collective
bargaining agreement.
31
(iv) There are no strikes, slowdowns or work stoppages
pending or, to the best of Access One's knowledge,
threatened with respect to the employees of Access
One, nor has any such strike, slowdown or work
stoppage occurred or, to the best of Access One's
knowledge, been threatened since its inception. There
is no representation claim or petition pending before
the National Labor Relations Board or any state or
local labor agency and, to the best of Access One's
knowledge, no question concerning representation has
been raised or threatened since its inception
respecting the employees of Access One.
(v) There are no complaints or charges against Access One
pending before the National Labor Relations Board or
any state or local labor agency and, to the best of
Access One's knowledge, no Person has threatened
since its inception to file any complaint or charge
against Access One with any such board or agency.
(vi) To the best of Access One's knowledge, no charges
with respect to or relating to the business of Access
One are pending before the Equal Employment
Opportunity Commission, or any state or local agency
responsible for the prevention of unlawful employment
practices.
(vii) Since its inception, Access One has not received
notice of the intent of any federal, state, local or
foreign agency responsible for the enforcement of
labor or employment laws to conduct an investigation
of Access One, and, to the best of Access One's
knowledge, no such investigation is in progress.
(b) Each Employee Benefit Plan (and each related trust, insurance
contract and fund) is in compliance in all material respects in form and in
operation with all applicable requirements of Applicable Benefits Law (including
ERISA and the Code), and is being administered in all material respects in
accordance with all relevant plan documents to the extent consistent with
Applicable Benefits Law. There has been no prohibited transaction with respect
to any Employee Benefit Plan which would result in the imposition of any
material unpaid excise tax. No Employee Benefit Plan of Access One is under
investigation or audit. There are no legal actions or suits pending or, to the
best Access One's knowledge, threatened against any Employee Benefit Plan or the
assets of any Employee Benefit Plan or against any fiduciary of any Employee
Benefit Plan and Access One has no knowledge of any facts that could give rise
to any such actions. There has not occurred any circumstance by reason of which
Access One may be liable for an act or a failure to act by a fiduciary with
respect to an Employee Benefit Plan. There has been full compliance in all
material respects with the notice and continuation requirements of Section 4980B
of the Code applicable to any Employee Benefit Plan.
32
SECTION 4.15 Environmental Matters.
(a) Access One has obtained all Environmental Permits that are
presently required for the lawful operation of its business, and Schedule 4.15
hereto sets forth a complete and correct list of all Environmental Permits
possessed by Access One or the subsidiaries. Access One (i) is in compliance
with all terms and conditions of its Environmental Permits and is in compliance
with and not in default under any applicable Environmental Law, and (ii) has not
received written notice of any violation by or claim against Access One under
any Environmental Law.
(b) There have been no Releases by Access One of any Hazardous
Substances (i) into, on or under any of the properties owned or operated (or
formerly owned or operated) by Access One, or (ii) into, on or under any other
properties, including landfills in which Hazardous Substances have been Released
or properties on or under which Access One has performed services, in any case
in such a way as to create any material unpaid liability (including the costs of
required remediation) under any applicable Environmental Law.
(c) To the best of Access One's knowledge, there are no underground
storage tanks, abandoned ▇▇▇▇▇ or landfills on any real property owned or leased
by Access One.
SECTION 4.16 Access One Information. The written information with
respect to Access One and Newco, and their officers, directors and affiliates,
which will be supplied by Access One or Newco, or any of their accountants,
counsel or other authorized representatives, specifically for use in soliciting
approval of the Merger by shareholders of OmniCall will not, on the date the
offering materials are first mailed to shareholders of OmniCall or on the date
of the shareholders meeting, as amended or supplemented, 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 were made, not misleading.
SECTION 4.17 Year 2000 Compliance. Access One has (a) initiated a
review and assessment of all areas within its business and operations (including
those affected by suppliers and vendors) that could reasonably be expected to be
relevant to whether Access One is Year 2000 Compliant, (b) developed a plan and
time line for ensuring that Access One is Year 2000 Compliant (except for such
instances as individually or in the aggregate would not have a Material Adverse
Effect) on a timely basis, and (c) to date, implemented that plan in accordance
with that timetable. Based upon the foregoing, Access One believes that it is
Year 2000 Compliant as of the date hereof except to the extent described in
Schedule 4.17 and except for such instances as individually or in the aggregate
would not have a Material Adverse Effect.
SECTION 4.18 Books and Records. All accounts, books, ledgers and
official and other records prepared and kept by Access One have been truthfully
and properly kept and completed in all respects, and there are no material
inaccuracies or discrepancies of any kind contained or reflected therein.
33
SECTION 4.19 Accuracy of Information. No statement in this Article IV
or in any Schedule or certificate delivered or to be delivered by Access One
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 necessary to make
the statements contained therein not misleading. The information about Access
One, the Merger, this Agreement and the transactions contemplated hereby
included by Access One in material soliciting approval of the Merger by the
shareholders of Access One, and all other information contained therein, other
than written information supplied by OmniCall specifically for use therein, will
not, on the date such material is first mailed to shareholders of Access One or
on the date of the shareholder meeting, as amended or supplemented, contain any
untrue statement of a material fact, or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
SECTION 4.20 Acknowledgment. An Affiliated Person of Access One owns
and operates a web base Internet product known as "WebQuill" which may be in
competition with BizKick; however, Access One will not divert business to
WebQuill to the extent where such diversion frustrates the intent of Section 2.9
hereof.
SECTION 4.21 Financial Arrangements. Nothing contained in this
Agreement conflicts with or is prohibited by any financial arrangement or
agreement which Access One has with any financial institution including, without
limitation, MCG Finance Corporation. No such agreement shall hinder Access One
from complying with the terms and conditions of this Agreement including,
without limitation, the provisions of Section 6.6 hereof. The Subordination
Agreement required by MCG Finance Corporation in connection with this
transaction is attached as Exhibit G.
ARTICLE V
COVENANTS OF OMNICALL
SECTION 5.1 Regular Course of Business. Except as otherwise stated
herein or consented to in writing by Access One, prior to the Effective Time of
the Merger OmniCall shall carry on its business diligently and in the ordinary
course only and, without limiting the generality of the foregoing, OmniCall
shall use its and its best efforts to: preserve its present business
organization intact; keep available the services of its and their present
executive officers and any management personnel and preserve its present
relationships with distributors, customers, suppliers and other persons having
business dealings with it; maintain its and their properties and assets (other
than those disposed of in the ordinary course) in good repair and condition,
except for ordinary wear and tear and damage by unavoidable casualty; and
maintain its books of account and records in accordance with GAAP and in the
usual, regular and ordinary manner and consistent with past practice.
SECTION 5.2 Restricted Activities and Transactions. Except as otherwise
consented to in writing by Access One, prior to the Effective Time of the
Merger, OmniCall shall not take any of the following actions (and OmniCall
represents that except as set forth on Schedule 5.2, none of the
34
following actions have been taken since April 1, 1999):
(a) amend its articles of incorporation or by-laws;
(b) issue, sell or deliver, or agree to issue, sell or deliver, any
shares of any class of capital stock of OmniCall, any securities convertible
into any such shares or convertible into securities in turn so convertible or
any options, warrants or other rights calling for the issuance, sale or delivery
of any such shares or convertible securities, except upon exercise of stock
options referenced in Section 3.2 or pursuant to the Equity Participation Plan;
(c) encumber any of its properties or assets;
(d) except in the ordinary course of business (and consistent with past
practice), (i) borrow, or agree to borrow, any funds or voluntarily incur,
assume or become subject to, whether directly or by way of guaranty or
otherwise, any obligation or liability (absolute or contingent), (ii) cancel or
agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise
transfer, agree to lease, sublease, sell or otherwise transfer, or grant or
agree to grant any preferential rights to lease or otherwise acquire, any of its
properties or assets, (iv) make or agree to make any capital expenditure in
excess of Twenty-Five Thousand Dollars ($25,000.00) in any individual case or
Fifty Thousand Dollars ($50,000.00) in the aggregate, or (v) make or permit any
amendment or termination of any Contract;
(e) grant any increase in compensation to any employee (except in the
ordinary course of business and consistent with past practice), officer or
director of OmniCall or any sales agent, terminate any employment agreement or
sales agency agreement with any sales agent listed on Schedule 3.11(a) hereto or
enter into any agreement to make any special bonus payment to or severance
arrangement with any employee (except in the ordinary course of business and
consistent with past practice), officer, director or sales agent listed on
Schedule 3.11(a) hereto;
(f) enter into or make any change in any employee benefit program,
except as required by law;
(g) acquire control or ownership of any Person, or acquire control or
ownership of the customer list or any other substantial portion of the assets of
any Person, or merge, consolidate or otherwise combine with any other Person, or
enter into any agreement providing for any of the foregoing;
(h) change in any material respect any arrangement with any sales
agent, distributor or material customer or change the accounting practices and
principles utilized in the preparation of the Financial Statements or the method
of recognition of revenue;
(i) except in the ordinary course of business, enter into or agree to
enter into any transaction material to the business of OmniCall;
35
(j) declare or pay any dividend or make any distribution on its capital
stock in cash, stock or property, redeem, repurchase or otherwise acquire any
shares of OmniCall Common Stock;
(k) fail duly and timely (by the due date or any duly granted extension
thereof) to file any Tax reports or Tax returns required to be filed with
federal, state, local, foreign and other authorities;
(l) unless it is contesting the same in good faith and, if appropriate,
has established reasonable reserves therefor, fail either (i) promptly to pay
any Taxes that are shown on such returns or otherwise lawfully levied or
assessed upon or payable by it or on or with respect to any of its properties or
assets, or (ii) to withhold, collect and pay to the proper governmental
authorities, or hold in separate bank accounts for such payment, any Taxes and
other assessments that are required by law to be so withheld, collected and paid
or so held;
(m) take any action, a primary purpose of which is to reduce the
OmniCall Debt, unless such action is clearly in accordance with past OmniCall
practice and good business practices.
SECTION 5.3 Consents, Approvals and Filings. OmniCall shall use its
best efforts and work with Access One to (i) comply as promptly as practicable
with the governmental requirements specified in Section 3.6 and obtain on or
before the Closing Date all necessary approvals, authorizations, consents,
licenses, clearances or orders of governmental and regulatory authorities
referred to in Section 3.6, and (ii) obtain on or before the Closing Date the
Private Consents referred to in Section 3.7.
SECTION 5.4 Access to Records and Properties. Prior to the Effective
Time of the Merger, OmniCall shall (a) provide Access One access to the books,
records (including Tax returns filed or in preparation), properties and
personnel of OmniCall, (b) cause its independent public accountants to provide
Access One and its employees, agents and representatives full access to the
audit work papers and their other records relating to OmniCall, and (c) provide
to Access One such other information concerning the business, operation and
financial condition of OmniCall as Access One may reasonably request. Neither
any investigation by Access One, nor the receipt by Access One of any data or
information from OmniCall, nor any knowledge Access One obtains as a result
thereof or otherwise, shall affect any right of Access One or Newco to rely upon
the representations or warranties made in this Agreement or in any Schedule or
certificate delivered pursuant to this Agreement or to terminate this Agreement
pursuant to Article XI.
ARTICLE VI
COVENANTS OF ACCESS ONE
SECTION 6.1 Consents, Approvals and Filings. Access One shall use its
best efforts to comply as promptly as practicable with the governmental
requirements specified in Section 4.3 and to obtain on or before the Closing
Date (or as soon as reasonably practicable thereafter) all necessary approvals,
authorizations, consents, licenses, clearances or orders of governmental and
regulatory authorities referred to in Section 4.3; and (ii) obtain on or before
the Closing Date the Access
36
One/Newco Private Consents referred to in Section 4.4.
SECTION 6.2 Access to Records and Properties. Prior to the Effective
Time of the Merger, Access One shall (a) provide OmniCall access to the books,
records (including Tax returns filed or in preparation), properties and
personnel of Access One, (b) cause its independent public accountants to provide
OmniCall and its employees, agents and representatives full access to the audit
work papers and their other records relating to Access One, and (c) provide to
OmniCall such other information concerning the business, operation and financial
condition of Access One as OmniCall may reasonably request. Neither any
investigation by OmniCall, nor the receipt by OmniCall of any data or
information from Access One, nor any knowledge OmniCall obtains as a result
thereof or otherwise, shall affect any right of OmniCall to rely upon the
representations or warranties made in this Agreement or in any Schedule or
certificate delivered pursuant to this Agreement or to terminate this Agreement
pursuant to Article XI.
SECTION 6.3 Board of Directors. OmniCall shall be assured of at least
one (1) seat on the Board of Directors of Access One.
SECTION 6.4 Regular Course of Business. Except as otherwise stated
herein or consented to in writing by OmniCall, prior to the Effective Time of
the Merger Access One shall carry on its business diligently and in the ordinary
course only and, without limiting the generality of the foregoing, Access One
shall use its and its best efforts to: preserve its present business
organization intact; keep available the services of its and their present
executive officers and any management personnel and preserve its present
relationships with distributors, customers, suppliers and other persons having
business dealings with it; maintain its and their properties and assets (other
than those disposed of in the ordinary course) in good repair and condition,
except for ordinary wear and tear and damage by unavoidable casualty; and
maintain its books of account and records in accordance with GAAP and in the
usual, regular and ordinary manner and consistent with past practice.
SECTION 6.5 Funding and Reimbursement Obligations after August 25,
1999.
Since August 25, 1999, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") has contributed
monies in the form of loans to OmniCall over and above the OmniCall Debt (the
"Post-August Advances") to operate OmniCall's business in accordance with past
practices, all of which are listed on Schedule 6.5. In order to satisfy the
indebtedness of OmniCall to ▇▇▇▇▇▇, OmniCall shall, with Access One's
unqualified consent and agreement, pursue collection of an arbitration dispute
with e-spire Communications, Inc., formerly known as ACSI Local Switched
Services, Inc., in regard to that certain Switch Partition Agreement dated
September 30, 1997, a copy of which has been provided to Access One. Any and all
proceeds received by OmniCall as a result of these collection procedures shall
be immediately assigned, transferred and delivered to ▇▇▇▇▇▇ in full
satisfaction of the Post-August Advances together with interest accrued thereon.
Attorney fees and costs of the collection process, after Closing, shall be the
sole responsibility of ▇▇▇▇▇▇. Neither OmniCall nor Access One shall have any
liability to ▇▇▇▇▇▇ for Post-August Advances, whether or not a recovery is made
from
37
e-spire Communications, Inc.; the assignment of these rights and liabilities
associated with e-spire Communications, Inc. shall be and is a full release of
any liability to ▇▇▇▇▇▇ for Post-August Advances, including any interest
thereon. Similarly, OmniCall and Access One shall have no rights or interest in
the benefits or assets associated with the Switch Partition Agreement.
SECTION 6.6 Payment of OmniCall Debt. The OmniCall leases in the name
of Teleco shall be assumed simultaneously with the Closing, and the OmniCall
Debt shall be paid as follows:
(a) The line of credit, in the initial amount of Two Million Dollars
($2,000,000.00), in the name of ▇▇▇▇▇▇ at SouthTrust Bank, N.A. shall be paid in
full at Closing;
(b) The payment of Three Million Dollars ($3,000,000) loaned to
OmniCall by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, including any renewals thereof (the "Note")
attached as Schedule 6.6(b), shall be deferred and subordinated pursuant to the
terms of the MCG Finance Corporation Subordination Agreement attached as Exhibit
G (with the exception of interest on the Note which shall be paid by Access One
on the first day of each month), until the earlier of: (i) a change of control
of Access One as it exists after this merger; or (ii) an initial public offering
of Access One, at which time the then outstanding balance shall be due and
payable in full. In the event that neither (i) nor (ii) of this Section 6.6
shall have occurred on or before October 1, 2000, then beginning January 31,
2001, payments of Seven Hundred Fifty Thousand Dollars ($750,000.00) plus
interest due shall be made by Access One, and such payments shall continue every
three (3) months thereafter until either (i) or (ii) occurs, at which time the
unpaid balance of the Note, together with any interest accrued but unpaid, shall
be paid in full by Access One.
In consideration of the deferral of payment of the Note, , Access One
shall, at Closing, grant to ▇▇▇▇▇▇ warrants for the purchase of up to five
hundred thousand (500,000) shares of Access One Common Stock at a price of One
and 55/100 Dollars ($1.55) per share. The warrants shall expire on October 1,
2004, provided that Access One is not default of its obligations under this
Section 6.6. The warrants shall otherwise be in a form substantially identical
to those given to other holders of Access One warrants.
(c) all other debt including, but not limited to current debt, shall be
paid as and when the same becomes due, in accordance with the respective terms
thereof.
SECTION 6.7 Restricted Activities and Transactions. Except as otherwise
consented to in writing by OmniCall, prior to the Effective Time of the Merger,
Access One shall not take any of the following actions (and Access One and
▇▇▇▇▇▇ represent that except as set forth on Schedule 6.7, none of the following
actions have been taken since April 1, 1999):
(a) amend its articles of incorporation or by-laws;
(b) issue, sell or deliver, or agree to issue, sell or deliver, any
shares of any class of capital stock of Access One, any securities convertible
into any such shares or convertible into securities in turn so convertible or
any options, warrants or other rights calling for the issuance, sale
38
or delivery of any such shares or convertible securities, except upon exercise
of stock options referenced in Section 4.11(c);
(c) encumber any of its properties or assets;
(d) except in the ordinary course of business (and consistent with past
practice), (i) borrow, or agree to borrow, any funds or voluntarily incur,
assume or become subject to, whether directly or by way of guaranty or
otherwise, any obligation or liability (absolute or contingent), (ii) cancel or
agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise
transfer, agree to lease, sublease, sell or otherwise transfer, or grant or
agree to grant any preferential rights to lease or otherwise acquire, any of its
properties or assets, (iv) make or agree to make any capital expenditure in
excess of Twenty-Five Thousand Dollars ($25,000.00) in any individual case or
Fifty Thousand Dollars ($50,000.00) in the aggregate, or (v) make or permit any
amendment or termination of any Contract;
(e) grant any increase in compensation to any employee (except in the
ordinary course of business and consistent with past practice), officer or
director of Access One or any sales agent, terminate any employment agreement or
sales agency agreement with any sales agent listed on Schedule 6.7 hereto or
enter into any agreement to make any special bonus payment to or severance
arrangement with any employee (except in the ordinary course of business and
consistent with past practice), officer, director or sales agent listed on
Schedule 6.7 hereto;
(f) enter into or make any change in any employee benefit program,
except as required by law;
(g) acquire control or ownership of any Person, or acquire control or
ownership of the customer list or any other substantial portion of the assets of
any Person, or merge, consolidate or otherwise combine with any other Person, or
enter into any agreement providing for any of the foregoing;
(h) change in any material respect any arrangement with any sales
agent, distributor or material customer or change the accounting practices and
principles utilized in the preparation of the Financial Statements or the method
of recognition of revenue;
(i) except in the ordinary course of business, enter into or agree to
enter into any transaction material to the business of Access One;
(j) declare or pay any dividend or make any distribution on its capital
stock in cash, stock or property, redeem, repurchase or otherwise acquire any
shares of Access One Common Stock or Access One Capital Stock;
(k) fail duly and timely (by the due date or any duly granted extension
thereof) to file any Tax reports or Tax returns required to be filed with
federal, state, local, foreign and other authorities;
39
(l) unless it is contesting the same in good faith and, if appropriate,
has established reasonable reserves therefor, fail either (i) promptly to pay
any Taxes that are shown on such returns or otherwise lawfully levied or
assessed upon or payable by it or on or with respect to any of its properties or
assets, or (ii) to withhold, collect and pay to the proper governmental
authorities, or hold in separate bank accounts for such payment, any Taxes and
other assessments that are required by law to be so withheld, collected and paid
or so held.
40
ARTICLE VII
MUTUAL COVENANTS
SECTION 7.1 Expenses. Each of the parties hereto shall pay all costs
and expenses incurred by such party in connection with the transactions
contemplated by this Agreement, whether or not the transactions contemplated
hereby are consummated.
SECTION 7.2 Confidentiality; Public Announcements. Each party will and
will cause its employees and agents to hold in strict confidence, unless
disclosure is compelled by judicial or administrative process, or in the opinion
of its counsel, by other requirements of law, all Confidential Information and
will not disclose the same to any Person. The party gaining access to such
Confidential Information shall exercise the same degree of care with respect
thereto that any such party uses to preserve and safeguard its own confidential
proprietary information. Confidential Information shall be used only for the
purpose of and in connection with consummating the transaction contemplated
herein. If this Agreement is terminated, each party hereto will promptly return
all documents received by it from each other party containing Confidential
Information. None of the parties hereto shall make any disclosure to the public
or concerning the Merger, this Agreement or the transactions contemplated hereby
other than with the express written consent of the other parties hereto, except
as may be required by law, or by rule, regulation or announcement of a
governmental or quasi-governmental agency. To the extent reasonably practicable,
any press release proposed to be issued by any party hereto shall be submitted
to the other parties hereto for approval, which approval shall not be
unreasonably withheld or delayed.
SECTION 7.3 Further Assurances. Each party hereto agrees to execute and
deliver such instruments and take such other actions as any other such party may
reasonably request in order to carry out the intent of this Agreement.
SECTION 7.4 Preparation of Required Filings. Access One and Newco, on
the one hand, and OmniCall, on the other hand, shall (a) cooperate with one
another in determining whether any filings are required to be made or consents
or approvals are required to be obtained in any Jurisdiction in connection with
the consummation of the transactions contemplated hereby and in making any such
filings promptly and in seeking to obtain in a timely fashion any such consents
or approvals, and (b) use their best efforts to cause the satisfaction of the
conditions within their control to the others' obligation at the Closing. The
respective parties shall each furnish to one another and to one another's
counsel all such information as may be required in order to fulfill the
foregoing obligations.
SECTION 7.5 Representations to Remain Accurate. None of the parties
hereto will take, agree to take, or knowingly permit to be taken any action or
do or knowingly permit to be done anything in the conduct of its business, or
otherwise, which would cause any of the respective representations of the
parties contained herein to be or become untrue in any material respect on or
41
before Closing.
SECTION 7.6 Best Efforts. Each of the parties hereto will utilize their
respective best efforts to cause all conditions to Closing for which they are
responsible to be satisfied on or before Closing.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF
ACCESS ONE, NEWCO, AND ▇▇▇▇▇▇
The obligations of Access One, Newco, and ▇▇▇▇▇▇ under this Agreement
to consummate the Merger shall be subject to the satisfaction, or to the waiver
by them in the manner provided by Section 13.4, on or before the Closing Date,
of each of the following conditions:
SECTION 8.1 Representations and Warranties. The representations and
warranties of OmniCall and the Principal Shareholders contained in this
Agreement or in any Schedule or certificate delivered pursuant hereto shall be
complete and correct as of the date when made, shall be deemed repeated at and
as of the Closing Date as if made on the Closing Date and shall then be complete
and correct.
SECTION 8.2 Performance of Covenants. OmniCall and the Principal
Shareholders shall have performed and complied in all material respects with
each covenant, agreement and condition required by this Agreement to be
performed or complied with by them prior to or on the Closing Date.
SECTION 8.3 Update Certificate. Access One and Newco shall have
received favorable certificates, dated the Closing Date, signed by OmniCall and
each of the Principal Shareholders as to the matters set forth in Sections 8.1
and 8.2.
SECTION 8.4 No Governmental or Other Proceeding or Litigation. No order
of any court or administrative agency shall be in effect that restrains or
prohibits any transaction contemplated hereby or that would limit or affect
Access One's or Newco's ownership or operation of the business of OmniCall; no
suit, action, investigation, inquiry or proceeding by any governmental body or
other person or entity shall be pending or threatened against Access One, Newco
or OmniCall that challenges the validity or legality, or that seeks to restrain
the consummation, of the transactions contemplated hereby or that seeks to limit
or otherwise affect Access One's or Newco's right to own or operate the business
of OmniCall; and no written advice shall have been received by Access One,
Newco, OmniCall or by any of their respective counsel from any governmental
body, and remain in effect, stating that an action or proceeding will, if the
Merger is consummated or sought to be consummated, be filed seeking to
invalidate or restrain the Merger or limit or otherwise affect Access One's or
Newco's ownership or operation of the business of OmniCall.
SECTION 8.5 Approvals and Consents. All approvals of applications to
public
42
authorities, federal, state, local or foreign, and all consents or approvals of
any non-governmental persons (including the Private Consents) who are parties to
Contracts to which OmniCall is a party or to which properties or assets of
OmniCall are subject, the granting of which is necessary for the consummation of
the Merger or for preventing the termination of any material right, privilege,
license or agreement of OmniCall or any material loss or disadvantage to Access
One or the business of OmniCall by reason of the Merger, shall have been
obtained, and no such consent or approval shall have imposed a condition to such
consent or approval that, in the reasonable opinion of Access One, will have a
material adverse effect on the consolidated financial position or operations of
Access One or on the business of OmniCall.
SECTION 8.6 Opinion of Counsel. OmniCall shall have delivered to Access
One, Newco, and ▇▇▇▇▇▇ an opinion of Hunter & ▇▇▇▇▇▇▇▇, P.A., dated the Closing
Date and addressed to Access One, Newco, and ▇▇▇▇▇▇, as to the matters set forth
on Exhibit E hereto, in form and substance reasonably acceptable to Access One
and its counsel.
SECTION 8.7 Shareholder Approval. This Agreement shall have been duly
approved and adopted at or prior to the Effective Time of the Merger by the
requisite vote of the shareholders of OmniCall in accordance with the SCBCA.
SECTION 8.8 Material Adverse Change. No Material Adverse Change with
respect to OmniCall shall have occurred after the date hereof (including any
Material Adverse Change) resulting from the failure of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to fund
the operations of OmniCall after August 25, 1999 as contemplated in Section 6.5
above.
ARTICLE IX
CONDITIONS TO OMNICALL'S AND THE PRINCIPAL SHAREHOLDERS' OBLIGATIONS
The obligations of OmniCall and the Principal Shareholders under this
Agreement to consummate the Merger shall be subject to the satisfaction, or to
the waiver by OmniCall in the manner contemplated by Section 13.4, on or before
the Closing Date, of each of the following conditions:
SECTION 9.1 Representations and Warranties. The representations and
warranties of Access One and Newco contained in this Agreement or in any
Schedule or certificate delivered pursuant hereto shall be complete and correct
as of the date when made, shall be deemed repeated at and as of the Closing Date
as if made on the Closing Date and shall then be complete and correct.
SECTION 9.2 Performance of Covenants. Access One and Newco shall have
performed and complied in all material respects with each covenant, agreement
and condition required by this Agreement to be performed or complied with by
them prior to or on the Closing Date.
SECTION 9.3 Update Certificate. OmniCall shall have received a
favorable certificate, dated the Closing Date, signed by Access One and Newco as
to the matters set forth in Section 9.1
43
and 9.2.
SECTION 9.4 No Governmental or Other Proceeding or Litigation. No order
of any court or administrative agency shall be in effect that restrains or
prohibits the Merger; no suit, action, investigation, inquiry or proceeding by
an governmental body or other person or entity shall be pending or threatened
against Access One, Newco or OmniCall that challenges the validity or legality,
or that seeks to restrain the consummation of the Merger; and no written advice
shall have been received by Access One, Newco, OmniCall or their respective
counsel from any governmental body, and remain in effect, stating that an action
or proceeding will, if the Merger is consummated or sought to be consummated, be
filed seeking to invalidate or restrain the Merger.
SECTION 9.5 Approvals and Consents. All approvals of applications to
public authorities, federal, state local or foreign, the granting of which is
necessary for the consummation of the Merger, shall have been obtained.
SECTION 9.6 Opinion of Counsel. Access One shall have delivered to
OmniCall and the Principal Shareholders an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP dated
the Closing Date and addressed to OmniCall and the Principal Shareholders, as to
the matters set forth on Exhibit F hereto in form and substance reasonably
acceptable to OmniCall, the Principal Shareholders, and their counsel.
SECTION 9.7 Shareholder Approval. This Agreement shall have been duly
approved and adopted at or prior to the Effective Time of the Merger by the
requisite vote of the shareholders of Access One in accordance with the NJBCA
and Newco in accordance with the FBCA.
SECTION 9.8 Material Adverse Change. No Material Adverse Change with
respect to Access One shall have occurred after the date hereof.
ARTICLE X
CLOSING; CLOSING DATE
Unless this Agreement shall have been terminated and the Merger herein
contemplated shall have been abandoned pursuant to Article XI, and
notwithstanding anything in this Agreement to the contrary, the Closing shall be
held as soon as practicable after the obtaining of all consents and approvals
required pursuant to Sections 8.5 and 9.5 (to the extent the obtaining thereof
has not been waived by the party or other entity entitled to grant such waiver)
at the offices of Access One. At such time (the "Closing Date") and place the
documents referred to in Section 2.7 and Articles VIII and IX shall be exchanged
by the parties and, as soon as practicable thereafter, the Articles of Merger
shall be filed with the offices of the Secretary of State of the State of South
Carolina, New Jersey, and Florida; provided, however, that if any of the
conditions provided for in Article VIII or IX shall not have been met or waived
by the date on which the Closing is otherwise scheduled, then the party whose
obligations are subject to the satisfaction of such condition shall be entitled
to postpone the Closing by notice to the other parties until such condition or
conditions shall have been met (which such other parties shall seek to cause to
happen at the earliest practicable date) or waived.
44
ARTICLE XI
TERMINATION
This Agreement may be terminated and the Merger may be abandoned before
the Effective Time of the Merger, notwithstanding any approval of this Agreement
by the shareholders of OmniCall or by Access One, in its capacity as the sole
shareholder of Newco:
(a) by the mutual consent in writing of Access One, Newco and OmniCall;
(b) by Access One and Newco, or by OmniCall, at any time after January
31, 2000 (or such later date as shall have been agreed to in writing by Access
One and OmniCall), if at the time notice of such termination is given the Merger
shall not have become effective other than as a result of a breach of this
Agreement by any of the parties giving such notice of termination;
(c) by Access One or Newco if there has been a material
misrepresentation by OmniCall or the Principal Shareholders, or a material
breach on the part of OmniCall or the Principal Shareholders of any of their
warranties or covenants set forth herein, or a material failure on the part of
OmniCall or the Principal Shareholders to comply with any of their other
obligations hereunder; or by OmniCall if there has been a material
misrepresentation by Access One or Newco, or a material breach on the part of
Access One or Newco of any of their warranties or covenants set forth herein, or
a material failure on the part of Access One or Newco to comply with any of
their other obligations hereunder.
The exercise of the power of termination provided in this Article XI shall be
effective only after written notice thereof, signed on behalf of the party
exercising such power by its duly authorized officer, shall have been given to
the other parties. If this Agreement is terminated in accordance with this
Article XI, the Merger shall be abandoned without further action by OmniCall,
Newco, or Access One.
ARTICLE XII
INDEMNIFICATION
SECTION 12.1 Survival of Representations. All representations,
warranties, covenants and agreements of the parties hereto shall survive, the
execution and delivery of this Agreement, and any Closing hereunder for a period
of eighteen (18) months.
SECTION 12.2 Indemnification of Access One and Newco by OmniCall and
the Principal Shareholders. OmniCall and the Principal Shareholders hereby
indemnify and agree to hold Access One and Newco and their respective officers,
directors and employees (an "Access One Indemnified Person") harmless from,
against and in respect of :
(a) any and all loss, liability or damage suffered or incurred by such
Access One
45
Indemnified Person by reason of any untrue representation, breach of warranty or
nonfulfillment of any material covenant by OmniCall contained herein or in any
Schedule, certificate, document or instrument delivered by OmniCall to Access
One or Newco pursuant hereto or in connection herewith; and
(b) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses including, reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
SECTION 12.3 Access One's, ▇▇▇▇▇▇'▇ and Newco's Indemnification of
OmniCall and the Principal Shareholders. Access One, ▇▇▇▇▇▇, and Newco, jointly
and severally, hereby indemnify and agree to hold OmniCall and the Principal
Shareholders and their respective officers, directors, and employees harmless
from, against and in respect of :
(a) any and all loss, liability or damage suffered or incurred by
OmniCall, a Principal Shareholder or any such officer, director or employee by
reason of any untrue representation, breach of warranty or nonfulfillment of any
covenant by Access One or Newco contained herein or in any Schedule,
certificate, document or instrument delivered by Access One or Newco to OmniCall
or such Principal Shareholder pursuant hereto or in connection herewith; and
(b) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
SECTION 12.4 Certain Limitations on Indemnification.(a) Notwithstanding
anything to the contrary contained in this Article XII, no claim for
indemnification under Section 12.2 or 12.3 shall be made unless any single claim
or group of claims (whether or not related) exceeds One Hundred Thousand Dollars
($100,000.00), and in the case of claims in excess of One Hundred Thousand
Dollars ($100,000.00), the initial One Hundred Thousand Dollars ($100,000.00)
shall be subject to indemnification.
(b) A Principal Shareholder or ▇▇▇▇▇▇ shall be entitled to satisfy any
obligations of indemnification hereunder, in whole or in part, by surrendering
shares of Access One Common Stock as appropriate.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 Entirety of Agreement. This Agreement (including all
Schedules and Exhibits hereto), together with the other documents and
certificates delivered hereunder, state the entire agreement of the parties,
merge all prior negotiations, agreements and understandings, if any,
46
and state in full all representations, warranties and agreements which have
induced this Agreement, except that any confidentiality agreements heretofore
executed and delivered by the parties hereto shall not be so merged and shall
continue in full force and effect. Each party agrees that in dealing with third
parties no contrary representations will be made.
SECTION 13.2 Notices. All notices and demands of any kind which any
party hereto may be required or desire to serve upon another party under the
terms of this Agreement shall be in writing and shall be served upon such other
party, and their legal counsel: (a) by personal service upon such other party at
such other party's address set forth on the signature pages of this Agreement;
or (b) by mailing a copy thereof by certified or registered mail, postage
prepaid, with return receipt requested, addressed to such other party at the
address of such other party set forth on the signature pages of this Agreement;
or (c) by sending a copy thereof by Federal Express or equivalent courier
service, addressed to such other party at the address of such other party set
forth on the signature pages of this Agreement; or (d) by sending a copy thereof
by facsimile to such other party at the facsimile number, if any, of such other
party set forth on the signature pages of this Agreement.
In case of service by Federal Express or equivalent courier service or
by facsimile or by personal service, such service shall be deemed complete upon
receipt. In the case of service by mail, such service shall be deemed complete
upon reasonable proof of receipt. The addresses and facsimile numbers to which,
and persons to whose attention, notices and demands shall be delivered or sent
may be changed from time to time by notice served, as hereinabove provided, by
any party upon the other parties.
SECTION 13.3 Amendment. Subject to the provisions of the SCBCA, NJBCA,
and FBCA, this Agreement may be modified or amended only by an instrument in
writing, duly executed by all of the parties hereto.
SECTION 13.4 Non-waiver. No waiver by any party of any term, provision,
covenant, representation or warranty contained in this Agreement (or any breach
thereof) shall be effective unless it is in writing executed by the party
against which such waiver is to be enforced; no waiver shall be deemed or
construed as a further or continuing waiver of any such term, provision,
covenant, representation or warranty (or breach) on any other occasion or as a
waiver of any other term, provision, covenant, representation or warranty (or of
the breach of any other term, provision, covenant, representation or warranty)
contained in this Agreement on the same or any other occasion.
SECTION 13.5 Counterparts. For the convenience of the parties, any
number of counterparts hereof may be executed, each such executed counterpart
shall be deemed an original and all such counterparts together shall constitute
one and the same instrument.
SECTION 13.6 Assignment; Binding Nature; No Beneficiaries. This
Agreement may not be assigned by any party hereto without the written consent of
the other parties. This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the parties hereto and their respective heirs,
personal representatives, legatees, successors and permitted assigns. Except as
otherwise
47
expressly provided in Article XII, this Agreement shall not confer any rights or
remedies upon any person other than the parties hereto and their respective
successors, heirs, personal representatives, legatees and permitted assigns.
SECTION 13.7 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
SECTION 13.8 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Florida applicable to contracts made and to be entirely performed
therein. In the event of any controversy or claim arising out of or relating to
this Agreement, or the breach or alleged breach hereof, each of the parties
hereto irrevocably (i) submits to the non-exclusive jurisdiction of the U.S.
District Court for the District of Florida (or, if such court does not have
jurisdiction, the courts of the State of Florida), (ii) waives any objection
which it may have at any time to the laying of venue of any action or proceeding
brought in any such court, (iii) waives any claim that such action or proceeding
has been brought in an inconvenient forum, and (iv) agrees that service of
process or of any other papers upon such party by registered mail at the address
to which notices are required to be sent to such party under Section 13.2 shall
be deemed good, proper and effective service upon such party.
SECTION 13.9 Specific Performance. Each of the parties hereto
acknowledges and agrees that the other parties would be damaged irreparably in
the event any of the covenants contained in this Agreement, in the Investment
Undertaking are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the parties hereto agrees that the
other parties shall be entitled to an injunction or injunctions to prevent
breaches of the covenants contained in this Agreement, or in the Investment
Undertaking and to enforce specifically this Agreement, and the Investment
Undertaking in addition to any other remedy to which such other parties may be
entitled at law or in equity, without proving damages or that monetary damages
would not be an adequate remedy for such breach. The remedies provided for or
permitted by this Agreement shall be cumulative and the exercise by any party of
any remedy provided for herein or available hereunder shall not preclude the
assertion or exercise by such party of any other right or remedy provided for
herein or available hereunder.
SECTION 13.10 Severability. Any term or provision of this Agreement
that is declared invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction declares that any term or
provision hereof is invalid or unenforceable, the parties hereto agree that the
court making the determination of invalidity or unenforceability shall have the
power, and is hereby directed, to reduce the scope, duration or area of the term
or provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid
and unenforceable term or provision, and this Agreement shall be enforceable as
so modified after the expiration of the time within which the judgement may be
48
appealed.
SECTION 13.11 No Shop Restriction. From the date of execution of this
Agreement, until January 31, 2000 or until the earlier termination of this
Agreement, whichever shall first occur, neither OmniCall nor the Principal
Shareholders will, directly or indirectly, without the prior written consent of
Access One and ▇▇▇▇▇▇, entertain, encourage, participate in, or initiate
discussions or accept any offer or engage in negotiations with any corporation,
partnership, person or entity other than Access One, Newco, and ▇▇▇▇▇▇,
concerning any possible proposal regarding any transaction involving the sale,
merger, or disposition of all or any part of OmniCall or any of its assets.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Plan of Merger to be duly executed this the day and year first above written.
In the presence of: ACCESS ONE COMMUNICATIONS CORP.
------------------------------- By /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
President
------------------------------- And
--------------------------------
Secretary
Address: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------- /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇ ▇▇▇▇▇▇, individually
-------------------------------
Address: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Continuation of Signature Page to Agreement and Plan of Merger Dated
October 15, 1999 Among Access One Communications Corp. OmniCall Acquisition
Corp., and OmniCall, Inc.
OMNICALL ACQUISITION CORP.
49
------------------------------- By /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
President
-------------------------------
And /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Secretary
Address: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
OMNICALL, INC.
------------------------------- By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
President
-------------------------------
And /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Secretary
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
OMNICALL, INC. PRINCIPAL SHAREHOLDERS:
------------------------------- /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ Family Investments, L.P., by
------------------------------- ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, President of ▇▇▇▇▇▇
Family Investments, LLC, its General
Partner
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Continuation of Signature Page to Agreement and Plan of Merger Dated
October 15, 1999 Among Access One Communications Corp. OmniCall Acquisition
Corp., and OmniCall, Inc.
50
------------------------------- /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇--Partner
---------------------------------------
▇▇▇▇▇▇ Family Properties, L.P., by ▇▇▇▇▇
------------------------------- ▇. ▇▇▇▇▇▇, President of ▇▇▇▇▇▇ Family
Management Company, LLC, its General
Partner
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------- /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------- /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Continuation of Signature Page to Agreement and Plan of Merger Dated
October 15, 1999 Among Access One Communications Corp. OmniCall Acquisition
Corp., and OmniCall, Inc.
51