UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Information Required in Proxy Statement
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by the Registrant |X|
Filed by a Party other than the Registrant |_|
Check the appropriate box:
|x | Preliminary Proxy Statement
| | Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2))
| | Definitive Proxy Statement
| | Definitive Additional Materials
| | Soliciting Material Under Rule 14a-12.
MILLENNIUM PLASTICS CORPORATIONANONYMOUS DATA CORPORATION
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
| | No fee required.
|X| Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1) Title of each class of securities to which transaction applies:
N/A
_____________________________________________
(2) Aggregate number of securities to which transaction applies:
N/A
_____________________________________________
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was determined):
$4,383
Amount represents the December 31, 2000 book value of assets and
liabilities in the proposed transaction.)
_____________________________________________
(4) Proposed maximum aggregate value of transaction:
$4,383
_____________________________________________
(5) Total fee paid:
$0.88
_____________________________________________
| | Fee paid previously with preliminary materials.
| | Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
_____________________________________________
(2) Form, Schedule or Registration Statement No.:
_____________________________________________
(3) Filing Party:
_____________________________________________
(4) Date Filed:
_____________________________________________
MILLENNIUM PLASTICS CORPORATIONANONYMOUS DATA CORPORATION
2780 South Jones, Suite E
Las Vegas, Nevada 89146
(702) 933-3713
Dear Anonymous Stockholder:
You are cordially invited to attend the Special meeting of stockholders
of Anonymous Data Corporation ("Anonymous") to be held on Monday, July 23,
2001, at 9:00 a.m., local time, at The Conference Room, Suite 111 - 1850 E.
Flamingo Road, Las Vegas, Nevada 89119. At the special meeting, you will be
asked to consider and vote upon;
1. To consider and vote upon the Merger Agreement, dated as of June 27,
2001, by and between Anonymous and ShareCom, Inc., ("ShareCom") providing for
the Merger (the "Merger") of ShareCom into Anonymous. Pursuant to the Merger,
14,000,000 restricted shares of Anonymous will be exchanged for 100% of the
issued and outstanding shares of ShareCom. Following the Merger, ShareCom
will cease to exist;
2. To elect a new board of directors for Anonymous to serve through the
next year, (current nominations are for Brad Nordling, Lynda Nordling, Jim
Dobbs, Bill Alleman, William Somers, and Doug Marrison);
3. To change the name of Anonymous to ShareCom, Inc.;
4. To cause a one share for 322 share reverse split of Anonymous common
stock (for 322 shares of Anonymous you will retain one share).
5. To transact such other business as may properly come before the Special
meeting or any adjournment or postponement.
In the spring of 2001, the board of directors determined that the
viability of the Company was dependent upon establishing orders of its then
systems which had been operational in the courts in Las Vegas, Nevada.
However, due to the inability of the court systems to be in a position to
finance such acquisitions, the Company had to terminate the utilization of
the systems by the courts. As a result of continuing loan obligations and
increasing costs to remain operational, the board of directors determined it
in the best interest of the stockholders to find a merger candidate that
would provide some value to the stockholders. After careful consideration of
numerous alternatives, including protection under the bankruptcy laws, the
board of directors concluded that a Merger proposal by ShareCom wherein
ShareCom would merge into Anonymous was the only proposal available to
Anonymous which would provide the stockholders with anything of value.
The board of directors has determined that the terms and conditions of
the Merger are fair to, and in the best interests of the Anonymous
stockholders. In reaching its decision, the board of directors considered,
among other things, the fact that: (i) ShareCom is a company producing
revenues, (ii) the stock price of Anonymous had dropped to $0.03 per share,
(iii) the inability of Anonymous to establish a market for its product, (iv)
existing loan obligations of $303,427.85, and (v) the inability to raise
equity capital. Therefore, the board of directors recommends that you vote
in favor of the Merger and the transaction contemplated thereby.
The proposed Merger is an important decision for Anonymous and its
stockholders. The Merger cannot occur unless, among other things, the Merger
agreement ("Merger Agreement") is approved by the holders of a majority of
the outstanding shares of Anonymous common stock entitled to vote at the
special meeting. The accompanying proxy statement explains the proposed
Merger and provides specific information concerning the Special meeting. We
encourage you to read this entire document carefully.
Whether or not you plan to attend the Special meeting, please take the
time to vote on the proposal submitted by completing and mailing the enclosed
proxy card to us. Please sign, date and mail your proxy card indicating how
you wish to vote. If you fail to return your proxy card, the effect will be a
vote against the Merger.
Sincerely,
/s/ William Somers
William Somers
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
The Merger and other matters voted upon have not been approved or
disapproved by the Securities and Exchange Commission (the "SEC") or any
state securities regulators nor has the SEC or any state securities regulator
passed upon the fairness or merits of the Merger or upon the accuracy or
adequacy of the information contained in this proxy statement. Any
representation to the contrary is unlawful.
This proxy statement is dated June 29, 2001, and is first being mailed
to Anonymous stockholders on or about July 10, 2001 to stockholders of record
of June 26, 2001.
MILLENNIUM PLASTICS CORPORATIONANONYMOUS DATA CORPORATION
2780 South Jones, Suite E
Las Vegas, Nevada 89146
(702) 933-3713
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON MONDAY, JULY 23, 2001
Dear Anonymous Stockholder:
We will hold the Special Meeting of Stockholders of Anonymous Data
Corporation on Monday, July 23, 2001, at 9:00 a.m., local time, at the
Conference Room, Suite 111, 1850 E. Flamingo Rd., Las Vegas, Nevada 89119,
for the following purposes:
1. To consider and vote upon the Merger Agreement, dated as of June 27,
2001, by and between Anonymous and ShareCom, providing for the Merger (the
"Merger") of ShareCom into Anonymous. Pursuant to the Merger, 14,000,000
restricted shares of Anonymous will be exchanged for 100% of the issued and
outstanding shares of ShareCom. Following the Merger, ShareCom will cease to
exist;
2. To elect a new board of directors for Anonymous to serve through the
next year, (current nominations are for Brad Nordling, Lynda Nordling, Jim
Dobbs, Bill Alleman, William Somers, and Doug Marrison);
3. To change the name of Anonymous to ShareCom, Inc.;
4. To cause a one share for 322 share reverse split of Anonymous common
stock (for 322 shares of Anonymous you will retain one share);
5. To transact such other business as may properly come before the Special
meeting or any adjournment or postponement.
The board of directors has determined that the terms and conditions of
the Merger are fair to, and in the best interests of, the Anonymous
stockholders and unanimously recommends that you vote "FOR" the Merger.
Only Anonymous stockholders of record at the close of business on June
26, 2001, are entitled to notice of and to vote at the Special meeting or any
adjournment or postponement thereof. A complete list of the stockholders
entitled to vote at the Special meeting or any adjournments or postponements
of the Special meeting will be available at and during the Special meeting.
YOUR VOTE IS IMPORTANT. TO ASSURE THAT YOUR SHARES ARE REPRESENTED AT
THE SPECIAL MEETING, YOU ARE URGED TO COMPLETE, DATE AND SIGN THE ENCLOSED
PROXY CARD AND MAIL IT PROMPTLY IN THE POSTAGE-PAID ENVELOPE PROVIDED,
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING IN PERSON. YOU MAY
REVOKE YOUR PROXY IN THE MANNER DESCRIBED IN THE ACCOMPANYING PROXY STATEMENT
ANYTIME BEFORE IT HAS BEEN VOTED AT THE SPECIAL MEETING. IF YOU RETURN A
PROXY WITHOUT SPECIFYING A CHOICE ON THE PROXY, THE PROXY WILL BE VOTED "FOR"
THE PROPOSALS. IT MAY BE POSSIBLE FOR YOU TO VOTE IN PERSON AT THE SPECIAL
MEETING EVEN IF YOU HAVE RETURNED A PROXY. PLEASE REVIEW THE PROXY STATEMENT
FOR MORE INFORMATION.
By Order of the Board of Directors
/s/ Donna Clark
Donna Clark
SECRETARY
Las Vegas, Nevada
June 29, 2001
TABLE OF CONTENTS
PAGE
SUMMARY TERM SHEET 1
Date, Time and Place 1
Purpose of the Meeting 1
Stockholders Entitled to Vote 2
Vote Required 2
The Parties 2
Terms of the Merger 2
Registration Rights 2
Exchange pf Certificates 3
Recommendation of Anonymous' Board of Directors 3
Dissenters' Rights 3
Tax Consequences 3
The Special Committee 3
Interest of Certain Persons in the Merger 4
Regulatory and Third Party Approvals 4
Conditions to the Merger 4
Termination 4
Effective Time 4
Operation of Solplax after the Merger 4
QUESTIONS AND ANSWERS ABOUT THE MERGER 5
WHO CAN HELP ANSWER YOUR QUESTIONS 6
CAUTIONARY STATEMENT CONCERNING FORWARD LOOKING STATEMENTS 6
THE SPECIAL MEETING 7
Time, Place And Date 7
Purpose Of The Meeting 7
Record Date And Voting At The Special Meeting 7
Votes Required 8
Solicitation And Proxy Solicitor 8
Revocation And Use Of Proxies 8
Adjournments Or Postponements 8
Election of Directors 9
Board of Directors Meeting 9
Identification of Executive Officers 9
Summary Compensation 9
Insider Participation in Compensation Decisions 10
Board of Directors Report on Executive Compensation 10
2000/2001 Stock Option Plan 10
Selection of Auditors 10
SPECIAL FACTORS OF MERGER 10
Background Of The Merger 10
Reasons For The Merger 10
Recommendation Of The Board Of Directors And The Special Committee 11
Certain Effects Of The Merger 12
Federal Income Tax Consequences 12
THE MERGER 12
Effective Time 13
The Merger And Merger Consideration 13
Regulatory Requirements 13
Anticipated Accounting Treatment 13
Rights Of Dissenting Stockholders 13
Fees And Expenses 13
THE MERGER AGREEMENT 14
Representations And Warranties 14
Conduct Of Business Prior To The Merger 14
Additional Agreements Of Anonymous 14
Director And Officer Indemnification 15
Cooperation And Reasonable Efforts 15
Conditions To The Merger 15
Termination Of The Merger Agreement 16
Termination Fee 17
Extension, Waiver And Amendment 17
Interest of Certain Persons in the Merger 17
Indemnification and Insurance 17
DIRECTORS AND EXECUTIVE OFFICERS OF ANONYMOUS PLASTICS 17
Executive Officers 17
Duties, Responsibilities and Experience 18
PRINCIPAL STOCKHOLDERS OF ANONYMOUS PLASTICS 18
PROPOSALS OF STOCKHOLDERS FOR 2001 SPECIAL MEETING 19
OTHER MATTERS 19
EXPENSES OF PROXY SOLICITATION 19
WHERE YOU CAN FIND MORE INFORMATION 19
APPENDICES
Appendix A - Merger Agreement A-1
Appendix B - Financials Statements of ShareCom B-1
SUMMARY TERM SHEET
Throughout this proxy statement the term "Merger" means the Merger
between ShareCom, Inc., an Illinois corporation ("ShareCom"), and Anonymous
Data Corporation, a Nevada corporation ("Anonymous"), with Anonymous being
the surviving entity. The term "Merger Agreement" means the Agreement and
Plan of Merger dated as of June 27, 2001, between ShareCom and Anonymous. A
copy of the Merger Agreement is attached as Appendix A to this proxy
statement.
This summary highlights selected information included in this proxy
statement. This summary may not contain all of the information that is
important to you. For a more complete understanding of the Merger and the
other information contained in this proxy statement, you should read this
entire proxy statement carefully, as well as the additional documents to
which it refers. For instructions on obtaining more information, see "Where
You Can Find More Information."
IN ADDITION TO CERTAIN OTHER MATTERS WHICH WILL BE VOTED ON, THE MERGER
IS OF GREAT IMPORTANCE TO THE STOCKHOLDERS OF ANONYMOUS BECAUSE, IF THE
MERGER AND EXCHANGE OF SHARES ARE CONSUMMATED, THE STOCKHOLDER'S EQUITY
INVESTMENT IN ANONYMOUS WILL BE DILUTED FOR AN EQUITY INVESTMENT IN SHARECOM.
ACCORDINGLY, STOCKHOLDERS ARE URGED TO READ AND CAREFULLY CONSIDER THE
INFORMATION SUMMARIZED BELOW AND PRESENTED ELSEWHERE IN THIS PROXY STATEMENT.
Date, Time and Place of the
Special Meeting of Anonymous
Stockholders Monday, July 23, 2001, at 9:00 a.m., Las
Vegas time, at the Conference Room, Suite
111, 1850 East Flamingo Rd., Las Vegas,
Nevada, ("the Special Meeting"). See
"INTRODUCTION")
Purpose of the Meeting 1. To consider and vote upon the Merger
Agreement, dated as of June 27, 2001, by
and between Anonymous and ShareCom,
providing for the Merger of ShareCom into
Anonymous. Pursuant to the Merger,
14,000,000 restricted shares of Anonymous
will be exchanged for 100% of the issued
and outstanding shares of ShareCom.
Following the Merger, ShareCom will cease
to exist;
2. To elect a new board of directors for
Anonymous to serve through the next year,
(current nominations are for Brad
Nordling, Lynda Nordling, Jim Dobbs, Bill
Alleman, William Somers, and Doug
Marrison);
3. To change the name of Anonymous to
ShareCom, Inc.;
4. To cause a 1:322 reverse split of the
Company's common stock. (one shares of
Anonymous for 3232 shares of Anonymous)
5. To transact such other business as
may properly come before the Special
meeting or any adjournment or
postponement.
Stockholders Entitled to Vote Only Anonymous stockholders of record at
5:00 p.m., Las Vegas time on June 26, 2001
are entitled to notice of and to vote at
the Special Meeting.
Vote Required Under Nevada law, the approval and
adoption of the Merger Agreement requires
the affirmative vote of the holders of a
majority of the Anonymous Common Stock
outstanding and entitled to vote.
Anonymous anticipates that the current
Anonymous director, officer, and principal
shareholder, William Somers, in addition
to a principal shareholder, James Beecham,
will vote their shares of Anonymous Common
Stock to approve the Merger. As of June
27, 2001, the directors and officers of
Anonymous, and the principal shareholders
beneficially owned 11,567,045 shares of
Anonymous Common Stock representing 59.90%
of the 19,307,705 outstanding shares of
Anonymous Common Stock. See
"Introduction," and "The Merger-Vote
Required."
Parties to the Merger:
Anonymous: Anonymous Data Corporation, a Nevada
corporation was formed in November 1996,
is a development stage company engaged in
the business of data management using a
biometric identification system. The
biometric identification system; (1)
archives individual data, such as medical
educational information, for access by
registered users through sorting using
scanning of a portion of the users anatomy
as a preliminary search method; and, (2)
permits a second method of identification
of individuals volunteering for payment as
plasma donors.
The principal executive offices of
Anonymous are located at 2780 South Jones,
Suite E, Las Vegas, Nevada 89146. (702)
933-3713
ShareCom, Inc.: ShareCom, Inc., an Illinois corporation
formed in January, 1999 as an Internet e-
commerce company selling electronic
products to end consumers through its
2WayTalk.com web site. ShareCom is an
early stage growth company with revenues
of approximately $32,000 per month in
2001. ShareCom is now expanding its
product lines and introducing a new web
site called WeatherRadios.com
The principal executive offices of
ShareCom, Inc. are located at 1251 N.
Sherwood Ln., Palatine, Illinois 60067-
1884.
Terms of the Merger As a result of the Merger ShareCom will
receive 14,000,000 shares of common stock,
$.001 par value, of Anonymous ("Anonymous
Common Stock") pursuant to the Merger
Agreement, after a 1:322 reverse split.
See "The Merger-Capitalization of
Anonymous and Exchange of Shares."
Exchange of Certificates If the Merger is consummated, exchange of
certificates formerly representing shares
of ShareCom Common Stock for certificates
representing the appropriate number of
shares of Anonymous Common Stock will be
made upon surrender to Securities Law
Institute, ("Exchange Agent") 1850 E.
Flamingo Rd., Suite 111, Las Vegas,
Nevada, 89119, of the certificates
formerly representing 100% of ShareCom
Common Stock.
Recommendation of Anonymous
Board of Directors; Reasons for
the Merger; Fairness The board of directors of Anonymous has
duly approved and executed the Merger
Agreement and recommends a vote in favor
of it in the belief that the Merger is in
the best interest of Anonymous
stockholders. Before giving this approval,
the Anonymous board reviewed a number of
factors, including the terms of the Merger
Agreement, the shares being issued to
ShareCom, and information regarding the
financial condition, operations and
prospects of both ShareCom and Anonymous.
The Anonymous board also found that the
value of the ShareCom Common Stock to be
issued pursuant to the Merger Agreement
compared favorably with the value of
Anonymous Common Stock, in light of the
technology being acquired as the result of
the ShareCom Merger and the current
financial condition and state of the
technology of Anonymous. See "Special
Factors of the Merger - Recommendation of
Board of Directors."
Dissenters' Rights Holders of Anonymous Common Stock who
perfect dissenters' rights pursuant to
Sections 78.471 through 78.502 of the
Nevada General Corporation Law will be
entitled to receive cash for their shares
in accordance with such sections. TO
PERFECT DISSENTERS' RIGHTS, IT IS
IMPORTANT TO FOLLOW THE PROCEDURES SET
FORTH IN THE NEVADA STATUTE. See "The
Merger - Dissenters' Rights." Anonymous is
not required to proceed with the Merger if
the holders of more than 10% of Anonymous
Common Stock assert dissenter's rights.
See "The Merger - Conditions for Merger
and Other Provisions."
Federal Income Tax Consequences For federal income tax purposes, it is
intended that the Merger constitute a
"reorganization" under Section
368(a)(2)(E) of the Internal Revenue Code
so that no gain or loss will be recognized
by Anonymous. See "Special Factors of the
Merger - Federal Income Tax Consequences."
Interests of Certain Persons in
the Merger The Merger agreement provides that
indemnification and insurance will be
maintained for Anonymous officers and
directors, and indemnification provisions
in Anonymous current articles of
incorporation and bylaws will be
continued, for six years after the Merger.
See "The Merger Agreement-Director and
Officer Indemnification" and "Interests of
Certain Persons in the Merger-
Indemnification" for further information.
Regulatory and Third Party Other than compliance with the Hart-Scott-
Approvals Rodino Antitrust Improvements Act of 1976,
no material regulatory approvals are
required. Failure to obtain
non-material governmental consents will
not prevent completion of the Merger. See
"The Merger - Regulatory Requirements."
Conditions to the Merger;
Termination Notwithstanding approval of the Merger
Agreement by Anonymous stockholders,
consummation of the Merger is subject to a
number of conditions which, if not
fulfilled or waived, permit termination of
the Merger Agreement, including the
absence of any temporary restraining
order, preliminary or permanent
injunction, or other order preventing
consummation of the Merger or any
transaction contemplated by the Merger
Agreement. The Merger Agreement will
terminate by its terms if the Merger has
not occurred on or prior to the earlier of
July 31, 2001 or five business days
following the Anonymous stockholder
approval of the Merger Agreement. The
Merger may also be abandoned by mutual
consent, and in certain other
circumstances. See "The Merger -
Conditions to the Merger."
Effective Time If the Merger Agreement is adopted and
approved at the Special Meeting, and all
other conditions to the Merger have been
met or waived, the parties expect the
Merger to be effective on Monday, July 23,
2001. See "The Merger - Conditions to the
Merger." If all conditions are not met or
waived, there could be a delay in the
Effective Time or the Merger Agreement
could be terminated.
Operation of Anonymous after the
Merger It is contemplated that, after the Merger,
Anonymous will operate through the current
facilities of ShareCom. See "The Merger."
QUESTIONS AND ANSWERS ABOUT THE MERGER
WHY SHOULD ANONYMOUS MERGE WITH SHARECOM?
ShareCom currently has approximately $45,000 in monthly revenues
(approximately $32,000 in the year 2000) as against no revenues for
Anonymous. ShareCom's business is expanding with the advent of its new web
site, WeatherRadios.com, which was recently awarded a National Partnership
with the Federal Emergency Management Agency (FEMA) to increase the use of
Weather Radios country wide. Currently Anonymous has over $303,000 in
outstanding loans, no revenues, and no indication of the ability to generate
revenues in the near future, coupled with the inability to pay its existing
staff without investment capital.
WHAT WILL HAPPEN TO ANONYMOUS AFTER THE MERGER?
If the Merger is approved by Anonymous, Anonymous will reverse split its
stock on the basis of 1 share for each 322 shares owned, and will
concurrently issue 14,000,000 shares in exchange for 100% of the shares of
ShareCom. ShareCom's board of directors are being concurrently elected to act
as the board of directors until the next shareholders meeting of Anonymous.
Further, concurrently with the merger closing, Anonymous will change its name
to ShareCom, Inc., and will move its offices to the offices of ShareCom.
ARE THERE RISKS TO BE CONSIDERED?
The Merger is contingent upon, among other things, stockholder approval
and governmental approvals. If any of these or other conditions are not
satisfied, or for some other reason the transaction does not close,
Anonymous' stock would be subject to market risks.
IF MY SHARES OF ANONYMOUS COMMON STOCK ARE HELD IN "STREET NAME" BY MY
BROKER, WILL MY BROKER VOTE MY SHARES FOR ME?
No. The law does not allow your broker to vote your shares of Anonymous
common stock on the Merger at the Special meeting without your direction. You
should follow the instructions from your broker on how to vote your shares.
Shares that are not voted because you do not instruct your broker are called
"broker non-votes," and will have the effect of a vote "AGAINST" the Merger.
IF I SEND IN MY PROXY CARD BUT DO NOT INDICATE MY VOTE, HOW WILL MY SHARES BE
VOTED?
If you sign and return your proxy card but do not indicate how to vote
your shares at the Special meeting, the shares represented by your proxy will
be voted "FOR" the Proposals.
WHAT IF I DON'T RETURN MY PROXY CARD?
Since it takes a majority of the shares outstanding to approve the
Proposals, not returning your proxy card is the same as voting against the
Merger.
WHAT SHOULD I DO NOW TO VOTE AT THE SPECIAL MEETING?
Sign, mark and mail your proxy card indicating your vote on the Merger
in the enclosed return envelope as soon as possible, so that your shares of
Anonymous common stock can be voted at the Special meeting.
MAY I CHANGE MY VOTE AFTER I MAIL MY PROXY CARD?
Yes. You may change your vote at any time before your proxy is voted at
the Special meeting. You can do this in three ways:
* You can send Anonymous a written statement that you revoke your proxy,
which to be effective must be received prior to the vote at the Special
meeting;
* You can send Anonymous a new proxy card prior to the vote at the Special
meeting, which to be effective must be received by Anonymous prior to the
vote at the Special meeting; or
* You can attend the Special meeting and vote in person. Your attendance
alone will not revoke your proxy. You must attend the Special meeting and
cast your vote at the Special meeting.
Send any revocation of a proxy or new proxy card to the attention of the
Corporate Secretary at Anonymous 2780 South Jones, Suite E, Las Vegas, Nevada
89146. (702) 933-3713. If your shares are held in street name, you must
follow the directions provided by your broker to vote your shares or to
change your instructions.
WHO CAN HELP ANSWER YOUR QUESTIONS
If you have more questions about the Merger or would like additional
copies of the proxy statement, you should contact:
Anonymous Data Corporation
2780 South Jones, Suite E
Las Vegas, Nevada 89146
Attention: William Somers
President/Treasurer
Telephone Number: (702) 933-3713
CAUTIONARY STATEMENT CONCERNING
FORWARD LOOKING STATEMENTS
This proxy statement and the documents to which we refer you to in this
proxy statement contain forward-looking statements. In addition, from time to
time, we or our representatives may make forward-looking statements orally or
in writing. We base these forward-looking statements on our expectations and
projections about future events, which we derive from the information
currently available to us. Such forward-looking statements relate to future
events or our future performance, including:
* our financial performance and projections;
* our growth in revenue and earnings; and
* our business prospects and opportunities.
You can identify forward-looking statements by those that are not
historical in nature, particularly those that use terminology such as "may,"
"will," "should," "expects," "anticipates," "contemplates," "estimates,"
"believes", "plans," "projected," "predicts," "potential" or "continue" or
the negative of these or similar terms. In evaluating these forward-looking
statements, you should consider various factors, including
* our ability to retain the business of our significant customers;
* our ability to keep pace with new technology and changing market needs;
and
* the competitive environment of our business.
These and other factors may cause our actual results to differ
materially from any forward-looking statement.
Forward-looking statements are only predictions. The forward-looking
events discussed in this proxy statement, the documents to which we refer you
and other statements made from time to time by us or our representatives, may
not occur, and actual events and results may differ materially and are
subject to risks, uncertainties and assumptions about us. We are not
obligated to publicly update or revise any forward-looking statement, whether
as a result of uncertainties and assumptions, the forward-looking events
discussed in this proxy statement, the documents to which we refer you and
other statements made from time to time by us or our representatives, might
not occur.
THE SPECIAL MEETING
TIME, PLACE AND DATE
We are furnishing this proxy statement to Anonymous stockholders in
connection with the solicitation of proxies by the Anonymous board of
directors for use at the Special meeting of stockholders of Anonymous to be
held on Monday, July 23, 2001, at 9:00 a.m., local time, at the Conference
Room, Suite 111, 1850 East Flamingo Rd., Las Vegas, Nevada, or any
adjournment or postponement thereof, pursuant to the enclosed Notice of
Special Meeting of Stockholders.
PURPOSE OF THE MEETING
At the Special meeting, holders of Anonymous common stock of record as
of the close of business on June 26, 2001 will be eligible to vote upon:
1. To consider and vote upon the Merger Agreement, dated as of June 27,
2001, by and between Anonymous and ShareCom, providing for the Merger (the
"Merger") of ShareCom into Anonymous. Pursuant to the Merger, 14,000,000
restricted shares of Anonymous will be exchanged for 100% of the issued and
outstanding shares of ShareCom. Following the Merger, ShareCom will cease to
exist;
2. To elect a new board of directors for Anonymous to serve through the
next year, (current nominations are for Brad Nordling, Lynda Nordling, Jim
Dobbs, Bill Alleman, William Somers, and Doug Marrison);
3. To change the name of Anonymous to ShareCom, Inc.;
4. To cause a one share for 322 share reverse split of the Company's common
stock;
5. To transact such other business as may properly come before the Special
meeting or any adjournment or postponement.
RECORD DATE AND VOTING AT THE SPECIAL MEETING
The board of directors has fixed the close of business on June 26, 2001,
as the record date for the determination of the stockholders entitled to
notice of, and to vote at, the Special meeting and any adjournments and
postponements of the Special meeting. On that day, there were 19,307,705
shares of Anonymous common stock outstanding, which shares were held by
approximately 400 stockholders of record. Holders of Anonymous common stock
are entitled to one vote per share.
A majority of the issued and outstanding shares of Anonymous common
stock on the record date, represented in person or by proxy, will constitute
a quorum for the transaction of business at the Special meeting. If a quorum
is not present, the Special meeting may be adjourned from time to time, until
a quorum is present. Abstentions and broker non-votes are counted as present
for purposes of determining the presence of a quorum at the Special meeting
for the transaction of business.
Any stockholder of Anonymous has the right to vote against approval of
the Merger and the Merger agreement. However, under Nevada law, because
Anonymous is a publicly traded corporation, Anonymous stockholders have no
statutory dissenters' rights of appraisal. See "Merger-Rights of Dissenting
Stockholders."
VOTES REQUIRED
Approval of any Proposal requires the affirmative vote of holders of a
majority of the outstanding shares of Anonymous common stock entitled to vote
at the Special meeting. A failure to vote, abstention from voting, or a
broker non-vote will have the same legal effect as a vote cast against
approval of any Proposal.
Brokers, and in many cases nominees, will not have discretionary power
to vote on the proposals to be presented at the Special meeting. Accordingly,
beneficial owners of shares must instruct their brokers or nominees how to
vote their shares at the Special meeting.
SOLICITATION AND PROXY SOLICITOR
Anonymous will bear all expenses of the solicitation of proxies in
connection with this proxy statement, including the cost of preparing and
mailing this proxy statement. Anonymous will reimburse brokers, fiduciaries,
custodians and their nominees for reasonable out-of-pocket expenses incurred
in sending this proxy statement and other proxy materials to, and obtaining
instructions relating to such materials from, beneficial owners of Anonymous
common stock. Anonymous stockholder proxies may be solicited by directors,
officers and employees of Anonymous in person or by telephone, facsimile or
by other means of communication. However, they will not be paid for
soliciting proxies.
REVOCATION AND USE OF PROXIES
The enclosed proxy card is solicited on behalf of the Anonymous board of
directors. A stockholder giving a proxy has the power to revoke it at any
time before it is exercised by (i) delivering a written notice revoking the
proxy to Anonymous before the vote at the Special meeting; (ii) executing a
proxy with a later date and delivering it to Anonymous before the vote at the
Special meeting; or (iii) attending the Special meeting and voting in person.
Any written notice of revocation should be delivered to the attention of the
Corporate Secretary at Anonymous, 2780 South Jones, Suite E, Las Vegas,
Nevada 89146. Attendance at the Special meeting without casting a ballot will
not, by itself, constitute revocation of a proxy.
Subject to proper revocation, all shares of Anonymous common stock
represented at the Special meeting by properly executed proxies received by
Anonymous will be voted in accordance with the instructions contained in such
proxies. Executed, but unmarked, proxies will be voted "FOR" approval of the
Proposals.
ADJOURNMENTS OR POSTPONEMENTS
Although it is not expected, the Special meeting may be adjourned or
postponed for the purpose of soliciting additional proxies. Any adjournment
or postponement of the Special meeting may be made without notice, other than
by an announcement made at the Special meeting, by approval of the holders of
a majority of the votes present in person or represented by proxy at the
Special meeting, whether or not a quorum exists. Any signed proxies received
by Anonymous will be voted in favor of an adjournment or postponement of the
Special meeting in these circumstances, unless either a written note on the
proxy delivered by the stockholder directs otherwise or the stockholder has
voted against the Merger agreement. Thus, proxies voting against the Merger
agreement will not be used to vote for adjournment of the Special meeting for
the purpose of providing additional time to solicit votes to approve the
Merger agreement. Any adjournment or postponement of the Special meeting for
the purpose of soliciting additional proxies will allow Anonymous
stockholders who have already sent in their proxies to revoke them at any
time prior to their use.
INSIDER PARTICIPATION IN COMPENSATION DECISIONS
The Company has no separate Compensation Committee; the entire Board of
Directors makes decisions regarding executive compensation. William Somers
is the President, Secretary/Treasurer and sole Director.
BOARD OF DIRECTORS REPORT ON EXECUTIVE COMPENSATION
The Board of Directors has no existing policy with respect to the
specific relationship of corporate performance to executive compensation.
The Board has set executive compensation at what the Board considered to be
the minimal levels necessary to retain and compensate the officers of the
company for their activities on the Company's behalf.
SPECIAL FACTORS OF MERGER
BACKGROUND OF THE MERGER
At a board meeting on June 15, 2001, the board of directors of Anonymous
determined that, in order to avoid a full liquidation of the Company, it was
in the best interest of the Company and its stockholders to pursue a merger
candidate interested in pursuing new business.
At the June 15, 2001 board meeting, the board of directors authorized
the President of Anonymous to pursue the Merger of ShareCom.
REASONS FOR THE MERGER
As discussed above under the caption "Background of the Merger," the
Anonymous board of directors had determined in 2000 that the Company's
current business strategy was not going to generate revenues in the near
term, if at all. This was due to the fact that the entities utilizing the
technology were not in the financial position to pay for either a lease of
the equipment or a license for the patents. In evaluating this potential
course of action, the board of directors determined that there was a
significant risk that Anonymous would be unsuccessful in implementing this
course of action and that, even if successful, there was no assurance that
these efforts would result in a meaningful increase in the price of Anonymous
common stock.
In addition, one large holder of Anonymous common stock had expressed to
Anonymous, from time to time in 2000 and continuing in 2001, his desire to
sell his Anonymous shares due to his perception that Anonymous was not
achieving its objectives of increasing stockholder value. Further, the same
shareholder was continuously loaning the Company funds to cover its limited
overhead. Since there is a relatively small number of outstanding Anonymous
shares, the sale of large numbers of shares by one or more of these
stockholders would likely result in a decrease in the market price of
Anonymous' common stock. Any such depressant effect in the market price of
Anonymous' common stock would likely have the effect of making it more
difficult for Anonymous to acquire other companies using Anonymous' common
stock as the form of consideration. As a result, any such sales of common
stock by large stockholders may have impaired Anonymous' ability to pursue
its strategic objectives of repositioning Anonymous for future growth, in
part, through Mergers. Without other catalysts to increase the market price
of Anonymous' common stock, the board of directors believed that it could
take a considerable period of time for the stock price to recover from the
effects of any such stock sales, if it were to recover at all.
As a result, due to the board of directors' belief that the prospect of
increasing stockholder value through the pursuit of a strategic plan to
reposition Anonymous involved a significant degree of uncertainty as well as
significant time to achieve, the board of directors determined in June 2001
to consider the possible merger with ShareCom as an alternative means of
providing some, although minimal, stockholder value. After careful
consideration, the board of directors concluded that a proposal for Anonymous
to merge with ShareCom was in the best interests of the Anonymous'
stockholders and, accordingly, approved the Merger. On June 28, 2001, the day
prior to the announcement of the signing of the Merger agreement with
ShareCom, the closing market price of Anonymous' common stock was $0.04 per
share with limited volume.
This discussion of the information and factors considered by Anonymous'
board of directors is not intended to be exhaustive. In view of the variety
of factors considered in connection with its evaluation of the Merger,
Anonymous' board did not find it practicable to, and did not quantify or
otherwise assign relative weight to, the specific factors considered in
reaching its determination. Further, individual members of the board of
directors may have given differing weights to differing factors.
RECOMMENDATION OF THE BOARD OF DIRECTORS
The board of directors, following the recommendation to it by the
majority shareholder, has unanimously approved the Merger Agreement, the
Merger and the transactions contemplated by the Merger agreement and
recommends that the stockholders vote "FOR" approval and adoption of the
Merger agreement and the Merger. The board of directors believes that the
consideration to be received by Anonymous stockholders is fair and in the
best interests of Anonymous stockholders.
The recommendation of the board of directors is based upon the following
factors:
(i) reviewed the Merger agreement and discussed with the principal
shareholder of Anonymous the course of negotiations with purchaser;
(ii) reviewed certain internal financial and operating information, including
financial forecasts and projections that were provided by Anonymous, taking
into account (a) the growth prospects of Anonymous and the various market
segments in which it competes, (b) the relation of projected trends to
Anonymous' historical performance and track record of meeting its forecasts,
and (c) changes in management, organization structure and management
practices;
(iii) considered the current and historical market prices of the
Anonymous common stock, as well as the limited trading volume and public
float of the Anonymous common stock;
(iv) compared the valuation in the public market of companies similar to that
of Anonymous in market, product types, and size; and,
(v) reviewed the alternative of filing for protection under the bankruptcy
laws, and full liquidation of the Company.
CERTAIN EFFECTS OF THE MERGER
Pursuant to the Merger Agreement, following approval of the Merger
Agreement and subject to the fulfillment or waiver of certain conditions,
which include the transfer of the Intellectual Property Rights in exchange
for Anonymous debt reduction, ShareCom will be merged into Anonymous, and
Anonymous will issue 14,000,000 restricted shares of its Common Stock. As a
result of the Merger Anonymous will own the business of ShareCom, and
Anonymous will change its name to ShareCom.
FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a general summary of the material United
States federal income tax consequences of the Merger. This discussion is
based upon the Internal Revenue Code of 1986, as amended (the "Code"),
regulations promulgated by the United States Treasury Department, judicial
authorities, and current rulings and administrative practice of the Internal
Revenue Service (the "Service"), as currently in effect, all of which are
subject to change at anytime, possibly with retroactive effect. This
discussion does not address all aspects of federal income taxation that might
be relevant to particular holders of Anonymous common stock in light of their
status or personal investment circumstances; nor does it discuss the
consequences to such holders who are subject to Special treatment under the
federal income tax laws such as foreign persons, dealers in securities,
regulated investment companies, life insurance companies, other financial
institutions, tax-exempt organizations, pass-through entities, taxpayers who
hold Anonymous common stock as part of a "straddle," "hedge" or "conversion
transaction" or who have a "functional currency" other than the United States
dollar or to persons who have received their Anonymous common stock as
compensation. Further, this discussion does not address the state, local or
foreign tax consequences of the Merger.
YOU SHOULD CONSULT YOUR OWN TAX ADVISOR WITH RESPECT TO THE SPECIFIC TAX
CONSEQUENCES OF THE MERGER, INCLUDING THE APPLICABILITY TO YOUR PARTICULAR
SITUATION OF THE TAX CONSIDERATIONS CONTAINED IN THIS SUMMARY AND THE
APPLICABILITY AND EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
Anonymous has not requested an opinion, nor does Anonymous intend to
request an opinion to the effect that the Merger will be treated as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code. However, Anonymous has attempted to structure the Merger as a
reorganization for tax purposes. Since Anonymous stockholders will not be
receiving shares in the Merger, management determined that it would not
request such an opinion.
If the Merger qualifies as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code, then, subject to the
assumptions, limitations and qualifications referred to herein, the Merger
should result in the following federal income tax consequence:
No gain or loss will be recognized by ShareCom in receipt of Anonymous
shares as the result of ShareCom exchanging ShareCom shares for Anonymous
shares.
A successful Internal Revenue Service challenge to the reorganization
status of the Merger would result in ShareCom stockholders recognizing
taxable gain or loss with respect to each share of ShareCom stock surrendered
equal to the difference between ShareCom's basis in such share and the fair
market value, as of the effective time of the Merger, of the Anonymous common
stock received in exchange therefor. In such event, ShareCom's aggregate
basis in the Anonymous common stock so received would equal its fair market
value as of the effective time of the Merger, and ShareCom's holding period
for such stock would begin the day after the Merger. The gain or loss
generally will be a capital gain or loss.
SELECTED PRO FORMA FINANCIAL DATA
The summary financial information set forth below is derived from the
audited financial statements of (i) Anonymous for the period ending December
31, 2000 and (ii) ShareCom for period ending December 31, 2000. This
information should be read in conjunction with such financial statements,
including the notes thereto.
PROFORMA CONDENSED CONSOLIDATED BALANCE SHEET
Historica Historic Subtotal Pro forma Pro forma
l al before Pro Adjustment Consolidat
Anonymous ShareCom forma s ed
Data , Inc. Adjustments
Corporati
on
ASSETS
Current assets:
Cash and cash
equivalents $0 $288 $288 $0 $288
Accounts
Receivable 0 46,208 46,208 0 46,208
Inventory 0 12,244 12,244 0 12,244
Prepaid expenses 161,777 0 161,777 0 161,777
Total current
assets 161,777 58,740 220,517 0 220,517
Property and
equipment, net 60,986 41,125 102,111 0 102,111
Unamortized patent
costs 118,307 0 118,307 0 118,307
Investment in
subsidiary 0 0 0 (a) 0
4,383
(c)
(4,383)
Intangible assets 0 31,125 31,125 0 31,125
Goodwill 0 0 0 (a) 647,536
681,617
0 0 0 (b)(34,081 0
)
TOTAL ASSETS $341,070 $130,990 $472,060 $647,536 $1,119,596
LIABILITIES AND
STOCKHOLDERS'
EQUITY
(DEFICIENCY)
Current
liabilities
Accounts payable
and accrued
expenses $23,024 $70,618 $93,642 $0 $93,642
Due to officer 0 55,989 55,989 0 55,989
Accrued interest 12,791 0 12,791 0 12,791
Total current
liabilities 35,815 126,607 162,422 0 162,422
Long-term debt, 376,906 0 376,906 0 376,906
officer/director
Total Liabilities 412,721 126,607 539,328 0 539,328
Stockholders'
equity
Common stock 12,895 24,000 36,895 (a)14,000 26,895
(c)(24,000
)
Additional paid
in capital 6,419,374 0 6,419,374 (a)672,000 7,091,374
Accumulated
(deficit) (6,503,92 (19,617) (6,523,537) (b)(34,081 (6,538,001
0) ) )
(c)19,617
Total
stockholders'
equity (deficit) (71,651) 4,383 (67,268) 647,536 580,268
Total liabilities
and stockholders'
equity $341,070 $130,990 $472,060 $647,536 $11,119,596
a) To record the issuance of 14,000,000 shares of the Company's common
stock. These shares were valued at the last trading price at June 1, 2001
which totaled $686,000, or $.049 per share. These shares were issued for the
purchases of ShareCom, Inc. as per the purchase agreement dated June 27,
2001.
b) To record the amortization of goodwill related to the acquisition of
ShareCom, Inc.
c) To record the elimination of the investment in ShareCom, Inc. THE MERGER
PROFORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
Subtotal
Anonymous Before
Data ShareCom, Proforma Pro Forma Pro Forma
Corporation Inc. Adjustments Adjustment Consolidated
s
REVENUE $- $380,835 $380,835 $- $380,835
COST OF GOODS
SOLD - 250,832 250,832 - 250,832
GROSS PROFIT - 130,003 130,003 - 130,003
SELLING,
GENERAL AND
ADMINISTRATIV
E EXPENSES
Research and
development 4,568,136 - 4,568,136 - 4,568,136
Domain Fees - 2,429 2,429 - 2,429
Outside
services - 27,187 27,187 - 27,187
Insurance
expense - 1,873 1,873 - 1,873
Bad debt
expense - 7,000 7,000 - 7,000
Depreciation
and
amortization
expense 38,344 12,485 50,829 (b)34,081 84,910
Professional
fees - 8,295 8,295 - 8,295
Travel and
entertainment
expense - 14,605 14,605 - 14,605
Rent expense - 12,000 12,000 - 12,000
Advertising
expense - 6,906 6,906 - 6,906
Other
general and
administrativ
e expenses 280,551 27,588 308,139 - 308,139
Total
selling,
general and
administrativ
e expenses 4,887,031 120,368 5,007,399 34,081 5,041,480
INCOME (LOSS)
FROM
OPERATIONS (4,887,031) 9,635 (4,877,396) (34,081) (4,911,477)
OTHER INCOME
(EXPENSE)
Interest
expense (37,991) (1,569) (39,560) - (39,560)
Other income 36,000 - 36,000 - 36,000
Total other
income
(expense) (1,991) (1,569) (3,560) - (3,560)
INCOME (LOSS)
BEFORE
PROVISION FOR
INCOME TAXES (4,889,022) 8,066 (4,880,956) (34,081) (4,915,037)
PROVISION FOR
INCOME TAXES - - - - -
NET INCOME
(LOSS) $(4,889,022) $8,066 $(4,880,956) $(34,081) $(4,915,037)
a) To record the issuance of 14,000,000 shares of the Company's common
stock. These shares were valued at the last trading price at June 1,
2001 which totaled $686,000, or $.049 per share. These shares were
issued for the purchases of ShareCom, Inc. as per the purchase agreement
dated June 27, 2001.
b) To record the amortization of goodwill related to the acquisition of
ShareCom, Inc.
c) To record the elimination of the investment in ShareCom, Inc. THE MERGER
THE FOLLOWING IS A BRIEF SUMMARY OF MERGER AGREEMENT, A COPY OF WHICH IS
ATTACHED AS APPENDIX A TO THIS PROXY STATEMENT AND INCORPORATED BY REFERENCE
IN THIS PROXY STATEMENT. YOU SHOULD READ THE MERGER AGREEMENT IN ITS ENTIRETY
FOR A MORE COMPLETE DESCRIPTION OF THE MERGER. IN THE EVENT OF ANY
DISCREPANCY BETWEEN THE TERMS OF THE MERGER AGREEMENT AND THE FOLLOWING
SUMMARY, THE MERGER AGREEMENT WILL CONTROL.
EFFECTIVE TIME
The Merger agreement provides that the Merger will become effective upon
the filing of the Articles of Merger with the Secretary of State of the State
of Nevada or at such other time as the parties may agree and specify in the
Articles of Merger (the "Effective Time"). If the Merger is approved at the
Special meeting by the holders of a majority of all outstanding shares of
common stock, and the other conditions to the Merger are satisfied or waived,
it is currently anticipated that the Merger will become effective as soon as
practicable after the Special meeting; however, there can be no assurance as
to the timing of the consummation of the Merger or that the Merger will be
consummated.
THE MERGER AND MERGER CONSIDERATION
At the Effective Time, ShareCom will be merged into Anonymous. Pursuant
to the Merger agreement and at the Effective Time:
* Anonymous will reverse split its shares, 1 for 322, and will issue
14,000,000 restricted shares of its Common Stock to ShareCom stockholders in
exchange for the Intellectual Property of ShareCom;
* Anonymous will assign to James Beecham the Intellectual Property of
Anonymous in exchange for approximately $303,427.85 in debt owed by Anonymous
to Beecham.
REGULATORY REQUIREMENTS
Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), certain Merger transactions may not be consummated
unless notice has been given and certain information furnished to the
Antitrust Division of the United States Department of Justice (the "Antitrust
Division") and the Federal Trade Commission (the "FTC") and specified waiting
period requirements have been satisfied, unless earlier termination has been
granted.
Anonymous and ShareCom have each made their respective determination
that the approval of the Department of Justice and the Federal Trade
Commission will not be required. Thus, the applicable waiting period will not
be required. The Department of Justice and the Federal Trade Commission, as
well as a state or private person, may challenge the Merger at any time
before or after its completion. Neither Anonymous nor ShareCom is aware of
any other material governmental or regulatory approval required for
completion of the Merger, other than compliance with applicable corporate law
of Nevada.
ANTICIPATED ACCOUNTING TREATMENT
For federal income tax purposes, it is intended that the Merger
constitute a "reorganization" under Section 368(a)(2)(E) of the Internal
Revenue Code so that no gain or loss will be recognized by ShareCom
stockholders who exchange their shares of ShareCom Common Stock in the Merger
(except with respect to cash received in lieu of fractional shares and for
shares as to which stockholders exercise dissenters' rights).
DISSENTER'S AND APPRAISAL RIGHTS
Anonymous shareholders are entitled to dissenters rights in the proposed
merger under Nevada Revised Statutes ("NRS") 92A.300 - 92A.500. A copy of the
statute is attached to this joint proxy statement/prospectus as Annex C.
Anonymous shareholders who are considering exercising dissenters rights
should review NRS 92A.300 - 92A.500 carefully, particularly the steps
required to perfect dissenters rights. No provision under Nevada law provides
a shareholder the right to later withdraw a dissent and demand for payment.
Set forth below is a summary of the steps to be taken by a holder of record
to exercise the right to appraisal. This summary should be read in
conjunction with the full text of NRS 92A.410 to 92A.480.
Under Nevada Revised Statute 92A.380, shareholders may dissent from some
corporate actions and the corporation must buy their shares. Shareholders may
dissent if a corporation wants to merge with another corporation.
To exercise your right to dissent:
* before the vote is taken, you must deliver written notice to the
Anonymous Secretary stating that you intend to demand payment for your shares
if the merger with ShareCom is completed; and
* you must NOT vote your shares in favor of the Merger either by proxy or
in person.
* If you send written notice of your intent to dissent before the vote on
the Merger, Anonymous must send you a written dissenter's notice within 10
days after the merger is effective telling you:
* where your demand for payment must be sent and where your stock
certificates must be deposited;
* what happens if you own shares but do not have the stock certificate;
and
* the date by which Anonymous must receive the demand form, which must be
between 30 and 60 days after notice delivery, and providing you:
* a form to demand payment, including the date by which you must have
acquired beneficial ownership of your shares in order to dissent; and
* the applicable sections of the Nevada Revised Statutes.
YOUR FAILURE TO DEMAND PAYMENT IN THE PROPER FORM OR DEPOSIT YOUR
CERTIFICATES AS DESCRIBED IN THE DISSENTER'S NOTICE WILL TERMINATE YOUR RIGHT
TO RECEIVE PAYMENT FOR YOUR SHARES. YOUR RIGHTS AS A SHAREHOLDER WILL
CONTINUE UNTIL THOSE RIGHTS ARE CANCELED OR MODIFIED BY THE COMPLETION OF THE
MERGER.
Within 30 days of receipt of a properly executed demand for payment,
Anonymous must pay you what it determines to be the fair market value for
your shares. Payment must be accompanied by specific financial records of
Anonymous, a statement of Anonymous' fair value estimate, information
regarding your right to challenge the fair value estimate, and copies of
relevant portions of the Nevada Revised Statutes.
Within 30 days from the receipt of the fair value payment, you may
notify Anonymous in writing of your own fair value estimate and demand the
difference. Failure to demand the difference within 30 days of receipt of
payment terminates your right to challenge Anonymous' calculation of fair
value.
If we cannot agree on fair market value within 60 days after Anonymous
receives a shareholder demand, Anonymous must commence legal action seeking
court determination of fair market value. If Anonymous fails to commence a
legal action within the 60 day period, it must pay each dissenter whose
demand remains unsettled the amount they demanded. Proceedings instituted by
Anonymous will be in the district court in Las Vegas, Nevada. Costs of legal
action will be assessed against Anonymous, unless the court finds that the
dissenters acted arbitrarily, in which case costs will be equitably
distributed. Attorneys fees may be divided in the court's discretion among
the parties.
FAILURE TO FOLLOW THE STEPS REQUIRED BY SECTION 92A-400 THROUGH 92A-480
FOR PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS (IN
WHICH EVENT A STOCKHOLDER WILL BE ENTITLED TO RECEIVE THE CONSIDERATION
RECEIVABLE WITH RESPECT TO SUCH APPRAISAL SHARES IN ACCORDANCE WITH THE
MERGER AGREEMENT). IN VIEW OF THE COMPLEXITY OF THE PROVISIONS OF SECTION
92A, ANONYMOUS STOCKHOLDERS WHO ARE CONSIDERING OBJECTING TO THE MERGER
SHOULD CONSULT THEIR OWN LEGAL ADVISORS.
FEES AND EXPENSES
We estimate that Merger-related fees and expenses, consisting primarily
of SEC filing fees, fees and expenses of attorneys and accountants and other
related charges, will total approximately $12,000.88 assuming the Merger is
completed. This amount consists of the following estimated fees:
DESCRIPTION AMOUNT
Legal fees and expenses 10,000.00
Accounting fees and expenses 1,000.00
SEC filing fee .88
Printing, solicitation and mailing costs 1,000.00
-----------
Total $12,000.88
Anonymous will be responsible for paying all of its expenses incurred in
connection with the Merger, except that fees relating to ShareCom attorneys
fees which are unknown to Anonymous.
THE MERGER AGREEMENT
THE FOLLOWING IS A BRIEF SUMMARY OF CERTAIN MATERIAL PROVISIONS OF THE
MERGER AGREEMENT THAT HAVE NOT BEEN PREVIOUSLY DISCUSSED. THIS SUMMARY DOES
NOT PURPORT TO BE COMPLETE AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
THE MERGER AGREEMENT, WHICH IS ATTACHED TO THIS PROXY STATEMENT AS APPENDIX A
AND IS INCORPORATED HEREIN BY REFERENCE.
REPRESENTATIONS AND WARRANTIES
In the Merger agreement, Anonymous made customary representations and
warranties to the other parties with respect to its business, organization,
operations and financial condition and other matters. The Merger agreement
also contains customary representations and warranties of ShareCom relating
to their business. The representations and warranties in the Merger agreement
do not survive after the Effective Time, except certain covenants and
agreements which by their terms contemplate performance following the
Effective Time.
CONDUCT OF BUSINESS PRIOR TO THE MERGER
ShareCom has agreed that, until the completion or termination of the
Merger, unless Anonymous consents in writing, ShareCom will conduct their
businesses in the ordinary course of business in substantially the manner
conducted prior to the date of the Merger agreement. Anonymous has also
agreed to, and cause its subsidiaries to, use reasonable efforts consistent
with past practice and policies to preserve intact its present business
organizations, keep available the services of its present officers and key
employees and preserve its relationships with customers, suppliers,
distributors, licensors, licensees, and others having business dealings with
it.
ADDITIONAL AGREEMENTS OF ANONYMOUS
Anonymous has further agreed, among other things specifically identified
in the Merger agreement:
* to provide ShareCom reasonable access to its facilities, records and all
other information as ShareCom may reasonably request;
* prepare and file the proxy statement with the SEC as soon as it is
reasonably practicable and use reasonable best efforts to have the proxy
statement cleared by the SEC under the Exchange Act;
* take all reasonable action to comply with the state blue sky or federal
or state securities laws in connection with the transactions contemplated by
the Merger agreement;
* cooperate with ShareCom to remove any injunction or other impediment to
the consummation of the Merger;
* to make all necessary filings and obtain any consents and approvals as
may be required in connection with the Merger agreement and the Merger; and
* to consult with ShareCom and obtain prior approval of ShareCom before
issuing any press release or making any other public disclosure regarding the
Merger agreement or the transactions contemplated thereby, except as may be
required by law, by obligations of Anonymous pursuant to any listing
agreement with any national securities exchange or relating to consultation
with its legal counsel, financial advisor or accountants relating to the
transaction contemplated by the Merger agreement.
DIRECTOR AND OFFICER INDEMNIFICATION
Pursuant to the terms of the Merger agreement, and subject to any
limitation imposed from time to time under applicable law, all rights of
indemnification available to the present and former officers and directors of
Anonymous and its subsidiaries in respect of acts or omissions occurring
prior to the Effective Time, shall remain available for six years following
the Effective Time, to the maximum extent provided under Anonymous' articles
of incorporation and by-laws, as in effect on the date of the execution of
the Merger agreement.
Pursuant to the Merger agreement, for six years after the Effective
Time, Anonymous will indemnify and hold harmless Anonymous' and ShareCom's
present and former officers and directors for acts or omissions occurring
before the Effective Time of the Merger to the extent provided under
Anonymous' articles of incorporation and by-laws in effect on the date of the
Merger agreement. See "Interests of Certain Persons in the Merger-
Indemnification and Insurance."
COOPERATION AND REASONABLE EFFORTS
Pursuant to the Merger agreement, and subject to certain conditions and
limitations described therein, the parties have agreed to cooperate with each
other and to use their respective reasonable best efforts to take all action
under the terms of the Merger agreement and to do all things necessary,
proper or advisable in order to consummate and make effective the
transactions contemplated by the Merger agreement.
CONDITIONS TO THE MERGER
Anonymous' and ShareCom's respective obligations to complete the Merger
and the related transactions are subject to the satisfaction or waiver of
each of the following conditions before completion of the Merger:
* the representations and warranties of each party must be true and
correct when made and as of the closing of the Merger, except for changes
contemplated by the Merger agreement, or where such representation or
warranty speaks of a different date or the failure to be true and correct
could not reasonably be expected to have a material adverse effect on such
party;
* each party has complied in all material respects with all of its
covenants in the Merger agreement, except where the failure to perform or
comply with such covenants could not reasonably be expected to have a
material adverse effect on such party;
* each party has received a certificate executed on behalf of the other
party's chairman of the board and chief executive officer or vice president
to the effect that the conditions set forth in the immediately preceding
bullet points have been satisfied;
* the Merger agreement and the Merger have been approved by the
affirmative vote of a majority of the holders of the issued and outstanding
shares of Anonymous' common stock;
* no order, writ, injunction or decree is in force or pending that makes
the Merger illegal or otherwise prohibits completion of the Merger; and
* all consents, approvals and authorization legally required to consummate
the Merger and the other transactions contemplated by the Merger agreement
must have been obtained from all governmental entities, including such
approvals, waivers and consents as may be required under the antitrust laws.
TERMINATION OF THE MERGER AGREEMENT
The Merger agreement may be terminated at any time before the completion
of the Merger, whether before or after approval of the matters presented in
connection with the Merger by the stockholders of Anonymous, as summarized
below:
* the Merger agreement may be terminated by mutual written consent of
ShareCom and Anonymous;
* the Merger agreement may be terminated by either Anonymous or ShareCom
if the conditions to completion of the Merger would not be satisfied because
of either (a) a material breach of an agreement or obligation in the Merger
agreement by the other party or (b) a material breach of a representation,
warranty or covenant of the other party in the Merger agreement, and such
breach shall not have been cured within 30 business days following receipt of
written notice by the non-breaching party or is otherwise incapable of being
cured;
* the Merger agreement may be terminated by either Anonymous or ShareCom
if the Merger is not completed, without the fault of the terminating party,
by July 31, 2001,
* the Merger agreement may be terminated by either Anonymous or ShareCom
if (a) a statute, rule, regulation or executive order shall have been
enacted, entered or promulgated prohibiting the consummation of the Merger or
(b) a final court or governmental order prohibiting the Merger is issued and
is final and not appealable; provided that, the party seeking to terminate
the agreement has used reasonable best efforts to remove such order;
* the Merger agreement may be terminated by ShareCom if the Merger fails
to receive requisite stockholder approval; or
The party desiring to terminate the Merger agreement shall give written
notice of such termination to the other party in accordance with the terms
thereof. In the event of termination of the Merger agreement, no party shall
have any liability or further obligation to any other party.
TERMINATION FEE
In accordance with the terms of the Merger Agreement, there are no
termination fees involved in the transaction. Each party to the Merger
Agreement has agreed to cover their own expenses.
EXTENSION, WAIVER AND AMENDMENT
The Merger agreement may be amended or its conditions precedent to
closing waived at any time before or after the Special meeting, but after the
Special meeting no amendment or waiver shall be made without the further
approval of Anonymous' stockholders which reduces the consideration payable
to the stockholders, or changes the form of such consideration. Any amendment
to the Merger agreement must be in writing and signed by all of the parties.
Either Anonymous or ShareCom may, in writing, extend the other's time
for the performance of any of the obligations or other acts under the Merger
agreement, waive any inaccuracies in the other's representations and
warranties and waive compliance by the other with any of the agreements or
conditions contained in the Merger agreement.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
In considering the recommendation of the Special Committee and the board
of directors, you should be aware that certain of Anonymous' officers and
directors have interests in the Merger described below, that present actual
or potential conflicts of interest in connection with the Merger.
Specifically, William Somers, President and Chairman of Anonymous shall
continue as a director and stockholder of Anonymous after the merger. In
exchange for $90,000 and the intellectual property, James Beecham, the
principal stockholder will forgive $303,427.85 in debt.
INDEMNIFICATION AND INSURANCE
Pursuant to the Merger agreement, for six years after the Effective
Time, Anonymous will indemnify and hold harmless Anonymous' present and
former officers and directors for acts or omissions occurring before the
Effective Time of the Merger to the extent provided under Anonymous' articles
of incorporation and by-laws in effect on the date of the Merger agreement.
ELECTION OF DIRECTORS
The directors are to be elected to the Board of Directors for one year to
serve until the 2002 Annual meeting of shareholders and until their
successors are elected and qualified.
In addition to the nomination of new directors, William Somers will remain
as a director, if elected.
If one or more of the nominees should at the time of the meeting be
unable or unwilling to serve, the shareholders may vote for other nominees
and for any substitute nominee or nominees designated by the Board of
Directors. None of the Directors knows of any reason why the nominees named
would be unavailable to serve. The following table sets forth information
regarding each nominee.
All Positions
All Positions and Offices
and Offices With Anonymous Post-
Name With Anonymous Pre-Merger Merger
Brad Nordling Director/ President
Lynda Nordling Director
William Somers, MD Director, President, Treasurer Director
Donna Clark Secretary
James Dobbs Director
Douglas Marrison Director
William Alleman Director
Brad Nordling. Brad Founded ShareCom in 1994 as Shared Computer Services.
Early services offered included Local Area Network installations and
upgrades. Wed site development started in late 1996 and online shopping
through 2 Way Talk and then WeatherRadios.com began in January 1999. Brad
has been full-time at ShareCom since October 1, 2001. Before that, he also
held outside positions, most recently at I-Jam Multimedia as Director of
Information Technology. Bad began there in July 2000, creating their e-
commerce on line presence. Before I-Jam, Brad was a Senior Developer for
PowerCerv, an ERP Software producer. Starting in April 1997, Brad was in
charge of developing and implementing customized systems for various
corporate clients including Friskars and Lutheran Brotherhood. Prior to
PowerCerv, Brad was a Senior Staff Programmer at Allstate Insurance at the
conclusion of his ten-year career there.
Lynda Nordling. Lynda is a Senior Sales Manager for Allstate Insurance,
Northbrook, IL. Her twenty-three year career there began as an Agent in
Madison, WI and has taken her to the Home Office in Northbrook, where she has
been for thirteen years. Her recent achievements include development and
implementation of new technology tools and systems for use by field sales
staff. She has been involved in the creation of the new field Sales position
from what was a standard employee to the Independent Contractor Sales
Professionals now the standard at Allstate. Lynda's earlier achievements at
Allstate include many Sales awards and honors for her personal production and
also for her management teams, which she was instrumental in helping to grow
in size to an entire territory of 226 representatives.
William M. Somers, OD has served as Director of Anonymous Data Corporation
since November, 1998. From 1994 until present William Somers, a Doctor of
Optometry has maintained a full time optometry practice in Las Vegas, Nevada.
He has held numerous committee positions throughout his career including the
Medicare Carrier Advisory Committee, the Nevada chapter of the American
Optometric Association and advisory board committee member and spokesman for
Vistakon (Johnson & Johnson contact lenses). He received his optometry degree
from the Southern California College of Optometry. James Dobbs. Jim is the
President and Founder of Woodfield Planning Corporation in Rolling Meadows,
IL., a diversified financial services company. Jim began the company 1982
and has recently opened new offices in Crystal Lake, IL. and Lombard, IL. He
currently employees 50 people. Woodfield Planning specializes in Mortgages,
Insurance, and Financial Planning.
Douglas Marrison. Doug is the President and Founder of Wireless Marketing
Corporation in Schaumburg, IL. Wireless Marketing produces and markets 2-way
radios such as CB Radios and Family Radios under the Cherokee name. They
also produce products, through licensing agreements, under the First Alert
and Coleman Electronics names. Doug started the company in 1995 after he
left his position of Vice President at Cobra Electronics in Chicago, where he
was at for ten years. Doug was in charge of sales and led Cobra through one
of the biggest growth periods in their history and helped to expand their
product lines.
William Alleman. Bill is currently the IT Manager at Boise Cascade in
Illinois. He has been there since March 2001 and has been building their new
corporate networking infrastructure. He currently left Outboard Marine
Corporation after successfully transitioning the Information Technology teams
and systems to their new owners, Bornbardier. Bill had begun at OMC in 1998
and was also responsible for their entire networking infrastructure, which
included many different countries. Prior to 1998, Bill was a consultant at
TerraSys, a major consulting firm with expertise in networking and email
systems.
There are no family relationships between any of the above persons, except to
Brad Nordling and Lynda Nordling, who are husband and wife. Executive
officers are elected Specially by the board of directors of Anonymous or a
wholly-owned subsidiary of Anonymous, as the case may be, at their
respective meetings of directors held immediately following the Special
meeting of stockholders for such company, to serve for the ensuing year or
until their successors have been elected. There are no arrangements or
understandings between any officer and any other person pursuant to which the
officer was elected.
KEY PROPOSED OFFICERS
Michele Smith, Proposed for Secretary/Treasurer. Michele started at ShareCom
in March 2000 and holds a variety of responsibilities. She is in charge of
all web site development and maintenance for the WeatherRadio.com site. In
addition to all her technical skills, she is in charge of all customer
service at ShareCom. She handles all customer follow-ups for order status
inquires and product returns. Michele duties also include keeping all
financial records for the company and working with accountants for monthly
and annual reconciliation. Prior to coming to ShareCom, Michele was customer
service specialist for American Online. She began there in 1996, handling
customer calls and monitoring various chat rooms and message boards. She
also managed the accounting for her husband's own business.
Frank Richier, Proposed for Vice President of Operations. Frank began with
ShareCom this May 2001. Prior to coming here, Frank was founding member of I-
Jam Multimedia. Frank was in charge of Directing and managing the overall
sales operation at I-Jam, which included a staff of over 30 sales persons
throughout the United States. Relationships built with major retailers like
Best Buy, Target, AOL, Sears, and Amazon.com produced first year sales for
over 12 Million dollars with one SKU (Item). Frank began with I-Jam in mid
1998 after success at I-Jam's sister company, Wireless Marketing Corporation.
Beginning there in the middle of 1996, he was Director of Sales, helping to
attain a 70% increase revenue.
BOARD OF DIRECTORS MEETING
The board of directors of Anonymous met 2 times during the fiscal year
ended March 31, 2000.
SUMMARY COMPENSATION
The compensation which the Company accrued or paid to the Officers for
services in all capacities and for the fiscal years indicated, was as
follows:
Long Term
Special Compensation Compensation
Other Restricted
Name Year Salary Bonus Special Stock Options
Compensation
William Somers 1999 -0- -0- -0- -0-
2000 -0- -0- -0- -0-
2001 -0- -0- -0- 100,000 -0-
Donna Clark 2001 23,963 -0- -0- 100,000 -0-
DIRECTORS AND EXECUTIVE OFFICERS OF ANONYMOUS
EXECUTIVE OFFICERS
William M. Somers, OD has served as Director of Anonymous Data Corporation
since November, 1998 and since May 2001 and served as President. From 1994
until present William Somers, a Doctor of Optometry has maintained a full
time optometry practice in Las Vegas, Nevada. He has held numerous committee
positions throughout his career including the Medicare Carrier Advisory
Committee, the Nevada chapter of the American Optometric Association and
advisory board committee member and spokesman for Vistakon (Johnson & Johnson
contact lenses). He received his optometry degree from the Southern
California College of Optometry.
Donna Clark has serves and Secretary of ANYD since January, 2001
PRINCIPAL STOCKHOLDERS OF ANONYMOUS
The following table sets forth as of the day after closing, the
beneficial ownership of the Anonymous common stock by (i) each person who to
the knowledge of the Company, beneficially owned or had the right to acquire
more than 5% of the Outstanding common stock, (ii) each director of the
Company and (iii) all executive officers and directors of the Company as a
group.
Number of Percent Number of Percent
Shares Pre- Of Class Shares Of Class
Name of Beneficial Owner Merger Pre- Post- Post-
(1) Merger(2) Merger Merger(2)
Brad Nordling 0 0% 12,551,000 89%
Lynda Nordling(3) 0 0% 0 0%
Michele Smith 0 0% 49,000 0%
Frank Richier 0 0% 49,000 0%
James Dobbs 0 0% 0 0%
Douglas Marrison 0 0% 0 0%
Donna Clark 110,000 1% 342 0%
William Alleman 0 0% 0 0%
Arnold P. Guttenberg 0% 749,000 5%
James E. Beecham 11,357,045 59% 35,270 0%
William Somers 210,000 1% 652 0%
All Directors & Officers
as a Group 11,677,045 60% 12,649,652 90%
(1) As used in this table, "beneficial ownership" means the sole or shared
power to vote, or to direct the voting of, a security, or the sole or shared
investment power with respect to a security (i.e., the power to dispose of,
or to direct the disposition of, a security). In addition, for purposes of
this table, a person is deemed, as of any date, to have "beneficial
ownership" of any security that such person has the right to acquire within
60 days after such date.
(2) Figures are rounded to the nearest percentage. Less than 1% is reflected
as 0%.
(3) Linda Nordling is the wife of Brad Nordling.
OTHER MATTERS
As of the date of this proxy statement, the board of directors does not
intend to bring any other business before the Special meeting of Anonymous
stockholders and, so far as is known to the board of directors, no matters
are to be brought before the Special meeting except as specified in the
notice of Special meeting. However, as to any other business that may
properly come before the Special meeting, the proxy holders intend to vote
the proxies in respect thereof in accordance with the recommendation of the
board of directors and the Special Committee.
EXPENSES OF PROXY SOLICITATION
The principal solicitation of proxies will be made by mail. However,
certain officers of the Company, none of whom will be compensated therefor,
may solicit proxies by letter, telephone or personal solicitation. Expense of
distributing this Proxy Statement to stockholders, which may include
reimbursements to banks, brokers, and other custodians for their expenses in
forwarding this Proxy Statement, will be borne exclusively by Anonymous.
WHERE YOU CAN FIND MORE INFORMATION
Anonymous files Special, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission. You may
read and copy any reports, statements or other information that Anonymous
files with the Securities and Exchange Commission at the Securities and
Exchange Commission's public reference room at the following location:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for
further information on the public reference room. These Securities and
Exchange Commission filings are also available to the public from commercial
document retrieval services and at the Internet world wide web site
maintained by the Securities and Exchange Commission at "http://www.sec.gov."
Reports, proxy statements and other information concerning Lucent may also be
inspected at the offices of the New York Stock Exchange at 20 Broad Street,
New York, New York 10005.
Anonymous filed a proxy statement on Schedule 14A on June 29, 2001 with
the Securities and Exchange Commission. As allowed by Securities and Exchange
Commission rules, this proxy statement does not contain all the information
you can find in Anonymous' 14A filing.
The Securities and Exchange Commission allows Anonymous to "incorporate
by reference" information into this proxy statement, which means that the
Anonymous can disclose important information to you by referring you to other
documents filed separately with the Securities and Exchange Commission. The
information incorporated by reference is considered part of this proxy
statement, except for any information superseded by information contained
directly in this proxy statement or in later filed documents incorporated by
reference in this proxy statement.
This proxy statement incorporates by reference the documents set forth
below that Anonymous previously filed with the Securities and Exchange
Commission. These documents contain important business and financial
information about Anonymous that is not included in or delivered with this
proxy statement.
ANONYMOUS FILINGS
(FILE NO. 0-30234 PERIOD
Registration Statement Form 10SB Filed March 10, 1999
Annual Report on Form 10-KSB Fiscal Year ended December 31, 1999 and
December 31, 2000
Quarterly Reports on Form 10-QSB Quarters ended March 31, 1999, June 31,
1999, September 30, 1999, March 31, 2000,
June 30, 2000, September 30, 2000, and
March 31, 2001
Current Reports on Form 8-K Filed November 4, 1999, November 10, 1999,
February 2, 2000, and March 22, 2001.
Anonymous also incorporates by reference additional documents that may
be filed with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act between the date of this proxy
statement and the date of the Special meeting. These include periodic
reports, such as Special Reports on Form 10-KSB, Quarterly Reports on Form 10-
QSB and Current Reports on Form 8-K, as well as proxy statements.
Anonymous has supplied all information contained or incorporated by
reference in this proxy statement relating to Anonymous and ShareCom has
supplied all such information relating to ShareCom.
You can obtain any of the documents incorporated by reference through
Anonymous, the Securities and Exchange Commission or the Securities and
Exchange Commission's Internet web site as described above. Documents
incorporated by reference are available from Anonymous without charge,
excluding all exhibits, except that if Anonymous has specifically
incorporated by reference an exhibit in this proxy statement, the exhibit
will also be provided without charge. Stockholders may obtain documents
incorporated by reference in this proxy statement by requesting them in
writing or by telephone from the Anonymous at the following address:
MILLENNIUM PLASTICS CORPORATIONANONYMOUS DATA CORPORATION
2780 South Jones, Suite E
Las Vegas, Nevada 89146
(702) 933-3713
You should rely only on the information contained or incorporated by
reference in this proxy statement. We have not authorized anyone to provide
you with information that is different from what is contained in this proxy
statement. This proxy statement is dated June 29, 2001. You should not assume
that the information contained in this proxy statement is accurate as of any
date other than that date. Neither the mailing of this proxy statement to
stockholders nor the issuance of Anonymous common stock in the merger creates
any implication to the contrary.
FRONT SIDE OF PROXY
PROXY
MILLENNIUM PLASTICS CORPORATIONANONYMOUS DATA CORPORATION
2780 South Jones, Suite E
Las Vegas, Nevada 89146
(702) 933-3713
SPECIAL MEETING OF STOCKHOLDERS
MONDAY, JULY 23, 2001
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF MILLENNIUM PLASTICS CORPORATIONANONYMOUS DATA CORPORATION
The undersigned stockholder of MILLENNIUM PLASTICS CORPORATIONANONYMOUS
DATA CORPORATION, a Nevada corporation (the "Company"), hereby appoints
William Somers, as proxies, with the power to appoint his or her substitute,
and hereby authorizes either of them to represent, and to vote as designated
on the reverse side, all the shares of common stock of Anonymous Data
Corporation held of record by the undersigned on June 26, 2001, at the
Special Meeting of Stockholders of Anonymous Data Corporation, to be held at
The Conference Room, Suite 111 - 1850 E. Flamingo Road, Las Vegas, Nevada
89119, on Monday, July 23, 2001, at 9:00 a.m. local time and at all
adjournments or postponements thereof.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY
WILL BE VOTED FOR THE BOARD OF DIRECTORS AS NOMINATED, THE APPROVAL OF THE
ACCOUNTING FIRM OF WEAVER AND MARTIN, AND THE APPROVAL OF THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY.
[X] PLEASE MARK YOUR VOTES AS INDICATED IN THIS EXAMPLE
THE BOARD OF DIRECTORS OF MILLENNIUM PLASTICS CORPORATIONANONYMOUS DATA
CORPORATION RECOMMENDS A VOTE FOR THE AGREEMENT AND PLAN OF MERGER.
1. Proposal to approve and adopt the Merger Agreement, dated as of
June 27, 2001, by and among Anonymous Data Corporation and ShareCom, Inc. as
heretofore and hereinafter amended, and the transactions contemplated
thereby:
[ ] FOR [ ] AGAINST [ ] ABSTAIN
2. Proposal to approve the following Directors: Brad Nordling, Lynda
Nordling, James Dobbs, Douglas Marrison, William Somers, and William Alleman.
Brad Nordling [ ] FOR [ ] AGAINST [ ] ABSTAIN
Lynda Nordling [ ] FOR [ ] AGAINST [ ] ABSTAIN
James Dobbs [ ] FOR [ ] AGAINST [ ] ABSTAIN
Douglas Marrison [ ] FOR [ ] AGAINST [ ] ABSTAIN
William Alleman [ ] FOR [ ] AGAINST [ ] ABSTAIN
William Somers [ ] FOR [ ] AGAINST [ ] ABSTAIN
3. To change the name of Anonymous to ShareCom, Inc.:
[ ] FOR [ ] AGAINST [ ] ABSTAIN
4. To cause a 1:322 reverse split of the Company's common stock.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
5. Proposal to transact such other business as may properly come
before the Special meeting or any adjournment or postponement:
[ ] FOR [ ] AGAINST [ ] ABSTAIN
THIS PROXY ALSO DELEGATES DISCRETIONARY AUTHORITY WITH RESPECT TO ANY OTHER
BUSINESS, WHICH MAY PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENT OR
POSTPONEMENT THEREOF AND MATTERS INCIDENT TO THE CONDUCT OF THE SPECIAL
MEETING. THE UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF THE NOTICE OF SPECIAL
MEETING AND PROXY STATEMENT.
Date: ___________________, 2001
_______________________________
(Signature)
_______________________________
(Joint Owner's Signature)
Please sign exactly as your name
appears on proxy. When signing as
attorney, guardian, executor,
administrator or trustee, please
give title. If the signer is a
corporation, give the full corporate
name and sign by a duly authorized
officer, showing the officer's
title. EACH joint owner is requested
to sign.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY
PROMPTLY USING THE ENCLOSED POSTAGE PREPAID ENVELOPE
RIGHTS OF DISSENTING OWNERS
NRS 92A.300 DEFINITIONS. As used in NRS 92A.300 to 92A.500, inclusive,
unless the context otherwise requires, the words and terms defined in NRS
92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those
sections. (Added to NRS by 1995, 2086)
NRS 92A.305 "BENEFICIAL STOCKHOLDER" DEFINED. "Beneficial stockholder"
means a person who is a beneficial owner of shares held in a voting trust or
by a nominee as the stockholder of record. (Added to NRS by 1995, 2087)
NRS 92A.310 "CORPORATE ACTION" DEFINED. "Corporate action" means the
action of a domestic corporation. (Added to NRS by 1995, 2087)
NRS 92A.315 "DISSENTER" DEFINED. "Dissenter" means a stockholder who is
entitled to dissent from a domestic corporation's action under NRS 92A.380
and who exercises that right when and in the manner required by NRS 92A.400
to 92A.480, inclusive. (Added to NRS by 1995, 2087; A 1999, 1631)
NRS 92A.320 "FAIR VALUE" DEFINED. "Fair value," with respect to a
dissenter's shares, means the value of the shares immediately before the
effectuation of the corporate action to which he objects, excluding any
appreciation or depreciation in anticipation of the corporate action unless
exclusion would be inequitable. (Added to NRS by 1995, 2087)
NRS 92A.325 "STOCKHOLDER" DEFINED. "Stockholder" means a stockholder of
record or a beneficial stockholder of a domestic corporation. (Added to NRS
by 1995, 2087)
NRS 92A.330 "STOCKHOLDER OF RECORD" DEFINED. "Stockholder of record"
means the person in whose name shares are registered in the records of a
domestic corporation or the beneficial owner of shares to the extent of the
rights granted by a nominee's certificate on file with the domestic
corporation. (Added to NRS by 1995, 2087)
NRS 92A.335 "SUBJECT CORPORATION" DEFINED. "Subject corporation" means
the domestic corporation which is the issuer of the shares held by a
dissenter before the corporate action creating the dissenter's rights becomes
effective or the surviving or acquiring entity of that issuer after the
corporate action becomes effective. (Added to NRS by 1995, 2087)
NRS 92A.340 COMPUTATION OF INTEREST. Interest payable pursuant to NRS
92A.300 to 92A.500, inclusive, must be computed from the effective date of
the action until the date of payment, at the average rate currently paid by
the entity on its principal bank loans or, if it has no bank loans, at a rate
that is fair and equitable under all of the circumstances. (Added to NRS by
1995, 2087)
NRS 92A.350 RIGHTS OF DISSENTING PARTNER OF DOMESTIC LIMITED
PARTNERSHIP. A partnership agreement of a domestic limited partnership or,
unless otherwise provided in the partnership agreement, an agreement of
merger or exchange, may provide that contractual rights with respect to the
partnership interest of a dissenting general or limited partner of a domestic
limited partnership are available for any class or group of partnership
interests in connection with any merger or exchange in which the domestic
limited partnership is a constituent entity. (Added to NRS by 1995, 2088)
NRS 92A.360 RIGHTS OF DISSENTING MEMBER OF DOMESTIC LIMITED-LIABILITY
COMPANY. The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the interest of a dissenting
member are available in connection with any merger or exchange in which the
domestic limited-liability company is a constituent entity. (Added to NRS by
1995, 2088)
NRS 92A.370 RIGHTS OF DISSENTING MEMBER OF DOMESTIC NONPROFIT CORPORATION.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his
resignation and is thereby entitled to those rights, if any, which would have
existed if there had been no merger and the membership had been terminated or
the member had been expelled.
2. Unless otherwise provided in its articles of incorporation or
bylaws, no member of a domestic nonprofit corporation, including, but not
limited to, a cooperative corporation, which supplies services described in
chapter 704 of NRS to its members only, and no person who is a member of a
domestic nonprofit corporation as a condition of or by reason of the
ownership of an interest in real property, may resign and dissent pursuant to
subsection 1. (Added to NRS by 1995, 2088)
NRS 92A.380 RIGHT OF STOCKHOLDER TO DISSENT FROM CERTAIN CORPORATE ACTIONS
AND TO OBTAIN PAYMENT FOR SHARES.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, a
stockholder is entitled to dissent from, and obtain payment of the fair value
of his shares in the event of any of the following corporate actions:
(a) Consummation of a plan of merger to which the domestic
corporation is a party:
(1) If approval by the stockholders is required for the
merger by NRS 92A.120 to 92A.160, inclusive, or the articles of incorporation
and he is entitled to vote on the merger; or (2) If the domestic corporation
is a subsidiary and is merged with its parent under NRS 92A.180.
(b) Consummation of a plan of exchange to which the domestic
corporation is a party as the corporation whose subject owner's interests
will be acquired, if he is entitled to vote on the plan.
(c) Any corporate action taken pursuant to a vote of the
stockholders to the event that the articles of incorporation, bylaws or a
resolution of the board of directors provides that voting or nonvoting
stockholders are entitled to dissent and obtain payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment under
NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate action
creating his entitlement unless the action is unlawful or fraudulent with
respect to him or the domestic corporation. (Added to NRS by 1995, 2087)
NRS 92A.390 LIMITATIONS ON RIGHT OF DISSENT: STOCKHOLDERS OF CERTAIN CLASSES
OR SERIES; ACTION OF STOCKHOLDERS NOT REQUIRED FOR PLAN OF MERGER.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and to
vote at the meeting at which the plan of merger or exchange is to be acted
on, were either listed on a national securities exchange, included in the
national market system by the National Association of Securities Dealers,
Inc., or held by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the
shares provide otherwise; or
(b) The holders of the class or series are required under the plan
of merger or exchange to accept for the shares anything except:
(1) Cash, owner's interests or owner's interests and cash in
lieu of fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the
plan of merger or exchange, were either listed on a national
securities exchange, included in the national market system by
the National Association of Securities Dealers, Inc., or held
of record by a least 2,000 holders of owner's interests of
record; or
(2) A combination of cash and owner's interests of the kind
described in sub-subparagraphs (I) and (II) of subparagraph (1) of
paragraph (b).
2. There is no right of dissent for any holders of stock of the
surviving domestic corporation if the plan of merger does not require action
of the stockholders of the surviving domestic corporation under NRS 92A.130.
(Added to NRS by 1995, 2088)
NRS 92A.400 LIMITATIONS ON RIGHT OF DISSENT: ASSERTION AS TO PORTIONS ONLY TO
SHARES REGISTERED TO STOCKHOLDER; ASSERTION BY BENEFICIAL STOCKHOLDER.
1. A stockholder of record may assert dissenter's rights as to fewer
than all of the shares registered in his name only if he dissents with
respect to all shares beneficially owned by any one person and notifies the
subject corporation in writing of the name and address of each person on
whose behalf he asserts dissenter's rights. The rights of a partial dissenter
under this subsection are determined as if the shares as to which he dissents
and his other shares were registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to shares
held on his behalf only if:
(a) He submits to the subject corporation the written consent of
the stockholder of record to the dissent not later than the time the
beneficial stockholder asserts dissenter's rights; and
(b) He does so with respect to all shares of which he is the
beneficial stockholder or over which he has power to direct the vote.
(Added to NRS by 1995, 2089)
NRS 92A.410 NOTIFICATION OF STOCKHOLDERS REGARDING RIGHT OF DISSENT.
1. If a proposed corporate action creating dissenters' rights is
submitted to a vote at a stockholders' meeting, the notice of the meeting
must state that stockholders are or may be entitled to assert dissenters'
rights under NRS 92A.300 to 92A.500, inclusive, and be accompanied by a copy
of those sections.
2. If the corporate action creating dissenters' rights is taken by
written consent of the stockholders or without a vote of the stockholders,
the domestic corporation shall notify in writing all stockholders entitled to
assert dissenters' rights that the action was taken and send them the
dissenter's notice described in NRS 92A.430. (Added to NRS by 1995, 2089; A
1997, 730)
NRS 92A.420 PREREQUISITES TO DEMAND FOR PAYMENT FOR SHARES.
1. If a proposed corporate action creating dissenters' rights is
submitted to a vote at a stockholders' meeting, a stockholder who wishes to
assert dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is
taken, written notice of his intent to demand payment for his shares if
the proposed action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. A stockholder who does not satisfy the requirements of subsection 1
and NRS 92A.400 is not entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2089; 1999, 1631)
NRS 92A.430 DISSENTER'S NOTICE: DELIVERY TO STOCKHOLDERS ENTITLED TO ASSERT
RIGHTS; CONTENTS.
1. If a proposed corporate action creating dissenters' rights is
authorized at a stockholders' meeting, the subject corporation shall deliver
a written dissenter's notice to all stockholders who satisfied the
requirements to assert those rights.
2. The dissenter's notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and
when certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates
to what extent the transfer of the shares will be restricted after the
demand for payment is received;
(c) Supply a form for demanding payment that includes the date of
the first announcement to the news media or to the stockholders of the
terms of the proposed action and requires that the person asserting
dissenter's rights certify whether or not he acquired beneficial
ownership of the shares before that date;
(d) Set a date by which the subject corporation must receive the
demand for payment, which may not be less than 30 nor more than 60 days
after the date the notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
(Added to NRS by 1995, 2089)
NRS 92A.440 DEMAND FOR PAYMENT AND DEPOSIT OF CERTIFICATES; RETENTION OF
RIGHTS OF STOCKHOLDER.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he acquired beneficial ownership of the shares
before the date required to be set forth in the dissenter's notice for
this certification; and
(c) Deposit his certificates, if any, in accordance with the terms
of the notice.
2. The stockholder who demands payment and deposits his certificates,
if any, before the proposed corporate action is taken retains all other
rights of a stockholder until those rights are canceled or modified by the
taking of the proposed corporate action.
3. The stockholder who does not demand payment or deposit his
certificates where required, each by the date set forth in the dissenter's
notice, is not entitled to payment for his shares under this chapter. (Added
to NRS by 1995, 2090; A 1997, 730)
NRS 92A.450 UNCERTIFICATED SHARES: AUTHORITY TO RESTRICT TRANSFER AFTER
DEMAND FOR PAYMENT; RETENTION OF RIGHTS OF STOCKHOLDER.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter's rights are asserted as to shares
not represented by a certificate retains all other rights of a stockholder
until those rights are canceled or modified by the taking of the proposed
corporate action. (Added to NRS by 1995, 2090)
NRS 92A.460 PAYMENT FOR SHARES: GENERAL REQUIREMENTS.
1. Except as otherwise provided in NRS 92A.470, within 30 days after
receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced
by the district court:
(a) Of the county where the corporation's registered office is
located; or
(b) At the election of any dissenter residing or having its
registered office in this state, of the county where the dissenter
resides or has its registered office. The court shall dispose of the
complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a
fiscal year ending not more than 16 months before the date of payment, a
statement of income for that year, a statement of changes in the
stockholders' equity for that year and the latest available interim
financial statements, if any;
(b) A statement of the subject corporation's estimate of the fair
value of the shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter's rights to demand payment under
NRS 92A.480; and
(e) A copy of NRS 92A.300 to 92A.500, inclusive. (Added to NRS by
1995, 2090)
NRS 92A.470 PAYMENT FOR SHARES: SHARES ACQUIRED ON OR AFTER DATE OF
DISSENTER'S NOTICE.
1. A subject corporation may elect to withhold payment from a
dissenter unless he was the beneficial owner of the shares before the date
set forth in the dissenter's notice as the date of the first announcement to
the news media or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment,
after taking the proposed action, it shall estimate the fair value of the
shares, plus accrued interest, and shall offer to pay this amount to each
dissenter who agrees to accept it in full satisfaction of his demand. The
subject corporation shall send with its offer a statement of its estimate of
the fair value of the shares, an explanation of how the interest was
calculated, and a statement of the dissenters' right to demand payment
pursuant to NRS 92A.480. (Added to NRS by 1995, 2091)
NRS 92A.480 DISSENTER'S ESTIMATE OF FAIR VALUE: NOTIFICATION OF SUBJECT
CORPORATION; DEMAND FOR PAYMENT OF ESTIMATE.
1. A dissenter may notify the subject corporation in writing of his
own estimate of the fair value of his shares and the amount of interest due,
and demand payment of his estimate, less any payment pursuant to NRS 92A.460,
or reject the offer pursuant to NRS 92A.470 and demand payment of the fair
value of his shares and interest due, if he believes that the amount paid
pursuant to NRS 92A.460 or offered pursuant to NRS 92A.470 is less than the
fair value of his shares or that the interest due is incorrectly calculated.
2. A dissenter waives his right to demand payment pursuant to this
section unless he notifies the subject corporation of his demand in writing
within 30 days after the subject corporation made or offered payment for his
shares. (Added to NRS by 1995, 2091)
NRS 92A.490 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: DUTIES OF SUBJECT
CORPORATION; POWERS OF COURT; RIGHTS OF DISSENTER.
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within
the 60-day period, it shall pay each dissenter whose demand remains unsettled
the amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the state, it
shall commence the proceeding in the county where the registered office of
the domestic corporation merged with or whose shares were acquired by the
foreign entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the
proceeding as in an action against their shares. All parties must be served
with a copy of the petition. Nonresidents may be served by registered or
certified mail or by publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one or
more persons as appraisers to receive evidence and recommend a decision on
the question of fair value. The appraisers have the powers described in the
order appointing them, or any amendment thereto. The dissenters are entitled
to the same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to
a judgment:
(a) For the amount, if any, by which the court finds the fair
value of his shares, plus interest, exceeds the amount paid by the
subject corporation; or
(b) For the fair value, plus accrued interest, of his after-
acquired shares for which the subject corporation elected to withhold
payment pursuant to NRS 92A.470. (Added to NRS by 1995, 2091)
NRS 92A.500 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: ASSESSMENT OF COSTS AND
FEES.
1. The court in a proceeding to determine fair value shall determine
all of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess the
costs against the subject corporation, except that the court may assess costs
against all or some of the dissenters, in amounts the court finds equitable,
to the extent the court finds the dissenters acted arbitrarily, vexatiously
or not in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters
if the court finds the subject corporation did not substantially comply
with the requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against either the subject corporation or a dissenter in favor
of any other party, if the court finds that the party against whom the
fees and expenses are assessed acted arbitrarily, vexatiously or not in
good faith with respect to the rights provided by NRS 92A.300 to
92A.500, inclusive.
3. If the court finds that the services of counsel for any dissenter
were of substantial benefit to other dissenters similarly situated, and that
the fees for those services should not be assessed against the subject
corporation, the court may award to those counsel reasonable fees to be paid
out of the amounts awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may
assess the costs against the subject corporation, except that the court may
assess costs against all or some of the dissenters who are parties to the
proceeding, in amounts the court finds equitable, to the extent the court
finds that such parties did not act in good faith in instituting the
proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P.
68 or NRS 17.115. (Added to NRS by 1995, 2092)
APPENDIX A
AGREEMENT AND PLAN OF MERGER
DATED AS OF JUNE 27, 2001
BETWEEN
ANONYMOUS DATA CORPORATION
AND
SHARECOM, INC.
TABLE OF CONTENTS
ARTICLE 1. The Merger
Section 1.1. The Merger
Section 1.2. Effective Time
Section 1.3. Closing of the Merger
Section 1.4. Effects of the Merger
Section 1.5. Board of Directors and Officers
Section 1.6. Conversion of Shares
Section 1.7. Exchange of Certificates
Section 1.8. Stock Options
Section 1.9. Taking of Necessary Action; Further Action
Section 2.0.Payment of Debt and Assignment of Intellectual Property
ARTICLE 2. Representations and Warranties of ANYD
Section 2.1. Organization and Qualification
Section 2.2. Capitalization of ANYD
Section 2.3. Authority Relative to this Agreement; Recommendation.
Section 2.4. SEC Reports; Financial Statements
Section 2.5. Information Supplied
Section 2.6. Consents and Approvals; No Violations
Section 2.7. No Default
Section 2.8. No Undisclosed Liabilities; Absence of Changes
Section 2.9. Litigation
Section 2.10. Compliance with Applicable Law
Section 2.11. Employee Benefit Plans; Labor Matters
Section 2.12. Environmental Laws and Regulations
Section 2.13. Tax Matters
Section 2.14. Title To Property
Section 2.15. Intellectual Property
Section 2.16. Insurance
Section 2.17. Vote Required
Section 2.18. Tax Treatment
Section 2.19. Affiliates
Section 2.20. Certain Business Practices
Section 2.21. Insider Interests
Section 2.22. Opinion of Financial Adviser
Section 2.23. Brokers
Section 2.24. Disclosure
Section 2.25. No Existing Discussion
Section 2.26. Material Contracts
ARTICLE 3. Representations and Warranties of SHARECOM.
Section 3.1. Organization and Qualification
Section 3.2. Capitalization of SHARECOM
Section 3.3. Authority Relative to this Agreement; Recommendation
Section 3.4. SEC Reports; Financial Statements
Section 3.5. Information Supplied
Section 3.6. Consents and Approvals; No Violations
Section 3.7. No Default
Section 3.8. No Undisclosed Liabilities; Absence of Changes
Section 3.9. Litigation
Section 3.10. Compliance with Applicable Law
Section 3.11. Employee Benefit Plans; Labor Matters
Section 3.12. Environmental Laws and Regulations
Section 3.13. Tax Matters
Section 3.14. Title to Property
Section 3.15. Intellectual Property
Section 3.16. Insurance
Section 3.17. Vote Required
Section 3.18. Tax Treatment
Section 3.19. Affiliates
Section 3.20. Certain Business Practices
Section 3.21. Insider Interests
Section 3.22. Opinion of Financial Adviser
Section 3.23. Brokers
Section 3.24. Disclosure
Section 3.25. No Existing Discussions
Section 3.26. Material Contracts
ARTICLE 4. Covenants
Section 4.1. Conduct of Business of ANYD
Section 4.2. Conduct of Business of SHARECOM
Section 4.3. Preparation of 8-K and the Proxy Statement
Section 4.4. Other Potential Acquirers
Section 4.5. Meetings of Stockholders
Section 4.6. OTC:BB Listing
Section 4.7. Access to Information
Section 4.8. Additional Agreements; Reasonable Efforts.
Section 4.9. Employee Benefits; Stock Option and Employee Purchase Plans
Section 4.10. Public Announcements
Section 4.11. Indemnification
Section 4.12. Notification of Certain Matters
ARTICLE 5. Conditions to Consummation of the Merger
Conditions to Each Party's Obligations to Effect the
Section 5.1. Merger
Section 5.2. Conditions to the Obligations of ANYD
Section 5.3. Conditions to the Obligations of SHARECOM
ARTICLE 6. Termination; Amendment; Waiver
Section 6.1. Termination
Section 6.2. Effect of Termination
Section 6.3. Fees and Expenses
Section 6.4. Amendment
Section 6.5. Extension; Waiver
ARTICLE 7. Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties
Section 7.2. Entire Agreement; Assignment
Section 7.3. Validity
Section 7.4. Notices
Section 7.5. Governing Law
Section 7.6. Descriptive Headings
Section 7.7. Parties in Interest
Section 7.8. Certain Definitions
Section 7.9. Personal Liability
Section 7.10. Specific Performance
Section 7.11. Counterparts
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of June
27, 2001, is between ANONYMOUS DATA CORPORATION, a Nevada corporation
("ANYD"), and SHARECOM, INC., an Illinois corporation ("SHARECOM").
Whereas, the Boards of Directors of ANYD and SHARECOM each have, in
light of and subject to the terms and conditions set forth herein, (i)
determined that the Merger (as defined below) is fair to their respective
stockholders and in the best interests of such stockholders and (ii) approved
the Merger in accordance with this Agreement;
Whereas, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
Whereas, ANYD and SHARECOM desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also
to prescribe various conditions to the Merger.
Now, therefore, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, ANYD and SHARECOM hereby agree as
follows:
ARTICLE I
The Merger
Section 1.1. The Merger. At the Effective Time (as defined below) and
upon the terms and subject to the conditions of this Agreement and in
accordance with the General Corporation Law of the state of Nevada (the
"NGCL"), SHARECOM shall be merged with and into ANYD (as defined below) (the
''Merger`). Following the Merger, ANYD shall continue as the surviving
corporation (the "Surviving Corporation"), shall continue to be governed by
the laws of the jurisdiction of its incorporation or organization and the
separate corporate existence of SHARECOM shall cease. Prior to the Effective
Time, the parties hereto shall mutually agree as to the name of the Surviving
Corporation; however, initially the Surviving Corporation shall be named
SHARECOM, INC., a Nevada corporation. The Merger is intended to qualify as a
tax-free reorganization under Section 368 of the Code as relates to the non-
cash exchange of stock referenced herein.
Section 1.2. Effective Time. Subject to the terms and conditions set forth in
this Agreement, a Certificate of Merger (the "Merger Certificate") shall be
duly executed and acknowledged by each of SHARECOM and ANYD, and thereafter
the Merger Certificate reflecting the Merger shall be delivered to the
Secretary of State of the State of Nevada for filing pursuant to the NGCL on
the Closing Date (as defined in Section 1.3). The Merger shall become
effective at such time as a properly executed and certified copy of the
Merger Certificate is duly filed by the Secretary of State of the State of
Nevada in accordance with the NGCL or such later time as the parties may
agree upon and set forth in the Merger Certificate (the time at which the
Merger becomes effective shall be referred to herein as the "Effective
Time").
Section 1.3. Closing of the Merger. The closing of the Merger (the
"Closing") will take place at a time and on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction of the latest to occur of the conditions set forth in Article 5
(the "Closing Date"), at the offices of the Securities Law Institute, 1850 E.
Flamingo Rd., Suite 111, Las Vegas, Nevada, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 1.4. Effects of the Merger. The Merger shall have the effects
set forth in the NGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights,
privileges, powers of SHARECOM shall vest in the Surviving Corporation, and
all debts, liabilities and duties of SHARECOM shall become the debts,
liabilities and duties of the Surviving Corporation.
Section 1.5. Board of Directors and Officers of ANYD. At or prior to the
Effective Time, each of SHARECOM and ANYD agrees to take such action as is
necessary (i) to cause the number of directors comprising the full Board of
Directors of ANYD to be six (6) persons and (ii) to cause (in addition to the
present board member - William Somers) Brad Nordling, Lynda Nordling, Jim
Dobbs, Bill Alleman, and Doug Marrison (the "SHARECOM Designees") to be
elected as directors of ANYD. In addition, majority stockholders of ANYD
prior to the Effective Time shall take all action necessary to cause, to the
greatest extent practicable, the SHARECOM Designees to serve on ANYD's Board
of Directors. If a SHARECOM Designee, respectively, shall decline or be
unable to serve as a director prior to the Effective Time, SHARECOM shall
nominate another person to serve in such person's stead which such person
shall be subject to approval of the other party. From and after the Effective
Time, and until successors are duly elected or appointed and qualified in
accordance with applicable law, Brad Nordling shall be Chief Executive
Officer, President and Chairman, Michele Smith shall be Secretary/Treasurer,
and Frank Richier shall be Vice President of Operations of ANYD.
Section 1.6. Conversion of Shares.
(a) At the Effective Time, each share of common stock, no par value per
share of SHARECOM (individually a "SHARECOM Share" and collectively, the
"SHARECOM Shares") issued and outstanding immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of
SHARECOM, ANYD, or the holder thereof, be converted into and shall become
fully paid and nonassessable ANYD common shares determined by dividing (i)
Fourteen Million (14,000,000), by (ii) the total number of shares of
SHARECOM, One Thousand (1,000) outstanding immediately prior to the Effective
Time (such quotient, the "Exchange Ratio"). The holder of one or more shares
of SHARECOM common stock shall be entitled to receive in exchange therefor a
number of shares of ANYD Common Stock equal to the product of (x) (the number
of shares of SHARECOM common stock (1,000)), times (y) (the Exchange Ratio).
ANYD Shares and SHARECOM Shares are sometimes referred to collectively herein
as "Shares." By way of example, 14,000,000 / 1,000 = 14,000 (the Exchange
Ratio). The number of shares of SHARECOM common stock held by a stockholder
(1,000) times the Exchange Ratio of 14,000 equals 14,000,000 shares of ANYD
Shares to be issued to each stockholder.
(b) At the Effective Time, each SHARECOM Share held in the treasury of
SHARECOM, immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of SHARECOM or ANYD be canceled,
retired and cease to exist and no payment shall be made with respect thereto.
Section 1.7. Exchange of Certificates.
(a) Prior to the Effective Time, ANYD shall enter into an agreement
with, and shall deposit with, the Stoecklein Law Group, or such other agent
or agents as may be satisfactory to ANYD and SHARECOM (the "Exchange Agent"),
for the benefit of the holders of SHARECOM Shares, for exchange through the
Exchange Agent in accordance with this Article I: (i) certificates
representing the appropriate number of ANYD Shares to be issued to holders of
SHARECOM Shares issuable pursuant to Section 1.6 in exchange for outstanding
SHARECOM Shares.
(b) As soon as reasonably practicable after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding SHARECOM Shares (the "Certificates") whose shares were converted
into the right to receive ANYD Shares pursuant to Section 1.6: (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk
of loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such
other provisions as SHARECOM and ANYD may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing ANYD Shares. Upon surrender of a
Certificate to the Exchange Agent, together with such letter of transmittal,
duly executed, and any other required documents, the holder of such
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole ANYD Shares and, if applicable, a check
representing the cash consideration to which such holder may be entitled on
account of the Cash Fund, which such holder has the right to receive pursuant
to the provisions of this Article I, and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of SHARECOM
Shares which are not registered in the transfer records of SHARECOM, a
certificate representing the proper number of ANYD Shares may be issued to a
transferee if the Certificate representing such SHARECOM Shares is presented
to the Exchange Agent accompanied by all documents required by the Exchange
Agent or ANYD to evidence and effect such transfer and by evidence that any
applicable stock transfer or other taxes have been paid. Until surrendered as
contemplated by this Section 1.7, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon
such surrender the certificate representing ANYD Shares as contemplated by
this Section 1.7.
(c) No dividends or other distributions declared or made after the
Effective Time with respect to ANYD Shares with a record date after the
Effective Time shall be paid to the holder of any un-surrendered Certificate
with respect to the ANYD Shares represented thereby until the holder of
record of such Certificate shall surrender such Certificate.
(d) In the event that any Certificate for SHARECOM Shares or ANYD Shares
shall have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange therefore, upon the making of an affidavit of that fact by the
holder thereof such ANYD Shares and cash in lieu of fractional ANYD Shares,
if any, as may be required pursuant to this Agreement; provided, however,
that ANYD or the Exchange Agent, may, in its respective discretion, require
the delivery of a suitable bond, opinion or indemnity.
(e) All ANYD Shares issued upon the surrender for exchange of SHARECOM
Shares in accordance with the terms hereof shall be deemed to have been
issued in full satisfaction of all rights pertaining to such SHARECOM Shares.
There shall be no further registration of transfers on the stock transfer
books of either of SHARECOM or ANYD of the SHARECOM Shares or ANYD Shares,
which were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to ANYD for any reason, they shall
be canceled and exchanged as provided in this Article I.
(f) No fractional ANYD Shares shall be issued in the Merger, but in lieu
thereof each holder of SHARECOM Shares otherwise entitled to a fractional
ANYD Share shall, upon surrender of its, his or her Certificate or
Certificates, be entitled to receive an additional share to round up to the
nearest round number of shares.
Section 1.8. At the Effective Time, each outstanding option to purchase
SHARECOM Shares, if any (a "SHARECOM Stock Option" or collectively, "SHARECOM
Stock Options") issued pursuant to any SHARECOM Stock Option Plan or SHARECOM
Long Term Incentive Plan whether vested or un-vested, shall be cancelled.
Section 1.9. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, SHARECOM or ANYD reasonably determines that any
deeds, assignments, or instruments or confirmations of transfer are necessary
or desirable to carry out the purposes of this Agreement and to vest ANYD
with full right, title and possession to all assets, property, rights,
privileges, powers and franchises of SHARECOM, the officers and directors of
ANYD and SHARECOM are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and
necessary or desirable action.
Section 2.0 At the Effective Time the debt of ANYD in the approximate
sum of $303,427.85 will be paid off through the payment to the creditor of
$90,000 plus the assignment of all Intellectual Property Rights of ANYD.
ARTICLE 2
Representations and Warranties of ANYD
Except as set forth on the Disclosure Schedule delivered by ANYD to
SHARECOM (the "ANYD Disclosure Schedule"), ANYD hereby represents and
warrants to SHARECOM as follows:
Section 2.1. Organization and Qualification.
(a) ANYD is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization and has all
requisite power and authority to own, lease and operate its properties and to
carry on its businesses as now being conducted, except where the failure to
be so organized, existing and in good standing or to have such power and
authority would not have a Material Adverse Effect (as defined below) on
ANYD. When used in connection with ANYD, the term "Material Adverse Effect"
means any change or effect (i) that is or is reasonably likely to be
materially adverse to the business, results of operations, condition
(financial or otherwise) or prospects of ANYD, other than any change or
effect arising out of general economic conditions unrelated to any business
in which ANYD is engaged, or (ii) that may impair the ability of ANYD to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(b) ANYD has heretofore delivered to SHARECOM accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of ANYD. Except as set forth on Schedule
2.1 of the ANYD Disclosure Schedule, ANYD is duly qualified or licensed and
in good standing to do business in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification or licensing necessary, except in such jurisdictions
where the failure to be so duly qualified or licensed and in good standing
would not have a Material Adverse Effect on ANYD.
Section 2.2. Capitalization of ANYD.
(a) The authorized capital stock of ANYD consists of: (i) One Hundred
Million (100,000,000) ANYD Common Shares, $0.001 par value, of which, as of
June 27, 2001, 19,307,705 ANYD Shares were issued and outstanding, and no
ANYD Shares were held in treasury, and (ii) Twenty-Five Million (25,000,000)
Preferred Shares at $.001 par value, of which, as of May 21, 2001, there were
no issued and outstanding Preferred Shares. All of the outstanding ANYD
Shares have been duly authorized and validly issued, and are fully paid,
nonassessable and free of preemptive rights. Except as set forth herein, as
of the date hereof, there are no outstanding (i) shares of capital stock or
other voting securities of ANYD, (ii) securities of ANYD convertible into or
exchangeable for shares of capital stock or voting securities of ANYD, (iii)
options or other rights to acquire from ANYD and, except as described in the
ANYD SEC Reports (as defined below), no obligations of ANYD to issue, any
capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of ANYD, and (iv) equity
equivalents, interests in the ownership or earnings of ANYD or other similar
rights (collectively, "ANYD Securities"). As of the date hereof, except as
set forth on Schedule 2.2(a) of the ANYD Disclosure Schedule there are no
outstanding obligations of ANYD or its subsidiaries to repurchase, redeem or
otherwise acquire any ANYD Securities or stockholder agreements, voting
trusts or other agreements or understandings to which ANYD is a party or by
which it is bound relating to the voting or registration of any shares of
capital stock of ANYD. For purposes of this Agreement, ''Lien" means, with
respect to any asset (including, without limitation, any security) any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind
in respect of such asset.
(b) The ANYD Shares constitute the only class of equity securities of
ANYD registered or required to be registered under the Exchange Act.
(c) ANYD does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity, other than as specifically disclosed in the
disclosure documents.
Section 2.3. Authority Relative to this Agreement; Recommendation.
(a) ANYD has all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of ANYD (the "ANYD Board") and no other corporate
proceedings on the part of ANYD are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby, except, as referred to in
Section 2.17, the approval and adoption of this Agreement by the holders of
at least a majority of the then outstanding ANYD Shares. This Agreement has
been duly and validly executed and delivered by ANYD and constitutes a valid,
legal and binding agreement of ANYD, enforceable against ANYD in accordance
with its terms.
(b) The ANYD Board has resolved to recommend that the stockholders of
ANYD approve and adopt this Agreement.
Section 2.4. SEC Reports; Financial Statements.
(a) ANYD has filed all required forms, reports and documents with the
Securities and Exchange Commission (the "SEC") since December 31, 2000, each
of which has complied in all material respects with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the Exchange Act (and the rules and regulations promulgated
thereunder, respectively), each as in effect on the dates such forms, reports
and documents were filed. ANYD has heretofore delivered or promptly will
deliver prior to the Effective Date to SHARECOM, in the form filed with the
SEC (including any amendments thereto but excluding any exhibits), (i) its
Annual Report on Form 10-KSB for the fiscal year ended December 31, 2000,
(ii) all definitive proxy statements relating to ANYD's meetings of
stockholders (whether annual or special) held since December 31, 2000, if
any, and (iii) all other reports or registration statements filed by ANYD
with the SEC since December 31, 2000 (all of the foregoing, collectively, the
"ANYD SEC Reports"). None of such ANYD SEC Reports, including, without
limitation, any financial statements or schedules included or incorporated by
reference therein, contained, when filed, any untrue statement of a material
fact or omitted to state a material fact required to be stated or
incorporated by reference therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited financial statements of ANYD included in the ANYD
SEC Reports fairly present, in conformity with generally accepted accounting
principles applied on a consistent basis (except as may be indicated in the
notes thereto), the financial position of ANYD as of the dates thereof and
its results of operations and changes in financial position for the periods
then ended. All material agreements, contracts and other documents required
to be filed as exhibits to any of the ANYD SEC Reports have been so filed.
(b) ANYD has heretofore made available or promptly will make available
to SHARECOM a complete and correct copy of any amendments or modifications
which are required to be filed with the SEC but have not yet been filed with
the SEC, to agreements, documents or other instruments which previously had
been filed by ANYD with the SEC pursuant to the Exchange Act.
Section 2.5. Information Supplied. None of the information supplied or
to be supplied by ANYD for inclusion or incorporation by reference in
connection with the Merger (the "Proxy Statement") will at the date mailed to
stockholders of ANYD and at the times of the meeting or meetings of
stockholders of ANYD to be held in connection with the Merger, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Proxy Statement, insofar as it relates to the meeting of
ANYD's stockholders to vote on the Merger, will comply as to form in all
material respects with the provisions of the Exchange Act and the rules and
regulations thereunder.
Section 2.6. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the Hart-Scott-Rodino Antitrust Improvements Act
of 1916, as amended (the ''HSR Act''), the rules of the National Association
of Securities Dealers, Inc. ("NASD"), the filing and recordation of the
Merger Certificate as required by the NGCL, and as set forth on Schedule 2.6
of the ANYD Disclosure Schedule no filing with or notice to, and no permit,
authorization, consent or approval of, any court or tribunal or
administrative, governmental or regulatory body, agency or authority (a
"Governmental Entity") is necessary for the execution and delivery by ANYD of
this Agreement or the consummation by ANYD of the transactions contemplated
hereby, except where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice would not
have a Material Adverse Effect on ANYD.
Except as set forth in Section 2.6 of the ANYD Disclosure Schedule,
neither the execution, delivery and performance of this Agreement by ANYD nor
the consummation by ANYD of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the respective
Certificate of Incorporation or Bylaws (or similar governing documents) of
ANYD, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration or Lien) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to
which ANYD is a party or by which any of its properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, law, statute,
rule or regulation applicable to ANYD or any of its properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults
which would not have a Material Adverse Effect on ANYD.
Section 2.7. No Default. Except as set forth in Section 2.7 of the ANYD
Disclosure Schedule, ANYD is not in breach, default or violation (and no
event has occurred which with notice or the lapse of time or both would
constitute a breach default or violation) of any term, condition or provision
of (i) its Certificate of Incorporation or Bylaws (or similar governing
documents), (ii) any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which ANYD is now a
party or by which any of its respective properties or assets may be bound or
(iii) any order, writ injunction, decree, law, statute, rule or regulation
applicable to ANYD or any of its respective properties or assets, except in
the case of (ii) or (iii) for violations, breaches or defaults that would not
have a Material Adverse Effect on ANYD. Except as set forth in Section 2.7 of
the ANYD Disclosure Schedule, each note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which ANYD
is now a party or by which its respective properties or assets may be bound
that is material to ANYD and that has not expired is in full force and effect
and is not subject to any material default thereunder of which ANYD is aware
by any party obligated to ANYD thereunder.
Section 2.8. No Undisclosed Liabilities; Absence of Changes. Except as
set forth in Section 2.8 of the ANYD Disclosure Schedule and except as and to
the extent publicly disclosed by ANYD in the ANYD SEC Reports, as of March
31, 2001, ANYD does not have any liabilities or obligations of any nature,
whether or not accrued, contingent or otherwise, that would be required by
generally accepted accounting principles to be reflected on a balance sheet
of ANYD (including the notes thereto) or which would have a Material Adverse
Effect on ANYD. Except as publicly disclosed by ANYD, since March 31, 2001,
ANYD has not incurred any liabilities of any nature, whether or not accrued,
contingent or otherwise, which could reasonably be expected to have, and
there have been no events, changes or effects with respect to ANYD having or
which reasonably could be expected to have, a Material Adverse Effect on
ANYD. Except as and to the extent publicly disclosed by ANYD in the ANYD SEC
Reports and except as set forth in Section 2.8 of the ANYD Disclosure
Schedule, since March 31, 2001, there has not been (i) any material change by
ANYD in its accounting methods, principles or practices (other than as
required after the date hereof by concurrent changes in generally accepted
accounting principles), (ii) any revaluation by ANYD of any of its assets
having a Material Adverse Effect on ANYD, including, without limitation, any
write-down of the value of any assets other than in the ordinary course of
business or (iii) any other action or event that would have required the
consent of any other party hereto pursuant to Section 4.1 of this Agreement
had such action or event occurred after the date of this Agreement.
Section 2.9. Litigation. Except as publicly disclosed by ANYD in the
ANYD SEC Reports, there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of ANYD, threatened against ANYD
or any of its subsidiaries or any of their respective properties or assets
before any Governmental Entity which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on ANYD or could
reasonably be expected to prevent or delay the consummation of the
transactions contemplated by this Agreement. Except as publicly disclosed by
ANYD in the ANYD SEC Reports, ANYD is not subject to any outstanding order,
writ, injunction or decree which, insofar as can be reasonably foreseen in
the future, could reasonably be expected to have a Material Adverse Effect on
ANYD or could reasonably be expected to prevent or delay the consummation of
the transactions contemplated hereby.
Section 2.10. Compliance with Applicable Law. Except as publicly
disclosed by ANYD in the ANYD SEC Reports, ANYD holds all permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities
necessary for the lawful conduct of their respective businesses (the `'ANYD
Permits"), except for failures to hold such permits, licenses, variances,
exemptions, orders and approvals which would not have a Material Adverse
Effect on ANYD. Except as publicly disclosed by ANYD in the ANYD SEC Reports,
ANYD is in compliance with the terms of the ANYD Permits, except where the
failure so to comply would not have a Material Adverse Effect on ANYD. Except
as publicly disclosed by ANYD in the ANYD SEC Reports, the business of ANYD
is not being conducted in violation of any law, ordinance or regulation of
any Governmental Entity except that no representation or warranty is made in
this Section 2.10 with respect to Environmental Laws (as defined in Section
2.12 below) and except for violations or possible violations which do not,
and, insofar as reasonably can be foreseen, in the future will not, have a
Material Adverse Effect on ANYD. Except as publicly disclosed by ANYD in the
ANYD SEC Reports, no investigation or review by any Governmental Entity with
respect to ANYD is pending or, to the knowledge of ANYD, threatened, nor, to
the knowledge of ANYD, has any Governmental Entity indicated an intention to
conduct the same, other than, in each case, those which ANYD reasonably
believes will not have a Material Adverse Effect on ANYD.
Section 2.11. Employee Benefit Plans; Labor Matters.
(a) Except as set forth in Section 2.11(a) of the ANYD Disclosure
Schedule with respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained or contributed to at
any time by ANYD or any entity required to be aggregated with ANYD pursuant
to Section 414 of the Code (each, a "ANYD Employee Plan"), no event has
occurred and to the knowledge of ANYD, no condition or set of circumstances
exists in connection with which ANYD could reasonably be expected to be
subject to any liability which would have a Material Adverse Effect on ANYD.
(b) (i) No ANYD Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each ANYD Employee Plan intended
to qualify under Section 401(a) of the Code and each trust intended to
qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 2.11(c) of the ANYD Disclosure Schedule sets forth a true
and complete list, as of the date of this Agreement, of each person who holds
any ANYD Stock Options, together with the number of ANYD Shares which are
subject to such option, the date of grant of such option, the extent to which
such option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 2.11(c) of the ANYD
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. ANYD has furnished SHARECOM with
complete copies of the plans pursuant to which the ANYD Stock Options were
issued. Other than the automatic vesting of ANYD Stock Options that may occur
without any action on the part of ANYD or its officers or directors, ANYD has
not taken any action that would result in any ANYD Stock Options that are
unvested becoming vested in connection with or as a result of the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(d) ANYD has made available to SHARECOM (i) a description of the terms
of employment and compensation arrangements of all officers of ANYD and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating ANYD to make
annual cash payments in an amount exceeding $60,000; (iii) a schedule listing
all officers of ANYD who have executed a non-competition agreement with ANYD
and a copy of each such agreement currently in effect; (iv) copies (or
descriptions) of all severance agreements, programs and policies of ANYD with
or relating to its employees, except programs and policies required to be
maintained by law; and (v) copies of all plans, programs, agreements and
other arrangements of ANYD with or relating to its employees which contain
change in control provisions all of which are set forth in Section 2.11(d) of
the ANYD Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any ANYD Employee
Plan or any agreement or arrangement disclosed under this Section 2.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of ANYD,
threatened, between ANYD and any of their employees, which controversies have
or could reasonably be expected to have a Material Adverse Effect on ANYD.
Neither ANYD nor any of its subsidiaries is a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by ANYD or any of its subsidiaries (and neither ANYD nor any of its
subsidiaries has any outstanding material liability with respect to any
terminated collective bargaining agreement or labor union contract), nor does
ANYD know of any activities or proceedings of any labor union to organize any
of its or employees. ANYD has no knowledge of any strike, slowdown, work
stoppage, lockout or threat thereof, by or with respect to any of its
employees.
Section 2.12. Environmental Laws and Regulations.
(a) Except as publicly disclosed by ANYD in the ANYD SEC Reports, (i)
ANYD is in material compliance with all applicable federal, state, local and
foreign laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata)
(collectively, "Environmental Laws"), except for non-compliance that would
not have a Material Adverse Effect on ANYD, which compliance includes, but is
not limited to, the possession by ANYD of all material permits and other
governmental authorizations required under applicable Environmental Laws, and
compliance with the terms and conditions thereof; (ii) ANYD has not received
written notice of, or, to the knowledge of ANYD, is the subject of, any
action, cause of action, claim, investigation, demand or notice by any person
or entity alleging liability under or non-compliance with any Environmental
Law (an ''Environmental Claim") that could reasonably be expected to have a
Material Adverse Effect on ANYD; and (iii) to the knowledge of ANYD, there
are no circumstances that are reasonably likely to prevent or interfere with
such material compliance in the future.
(b) Except as publicly disclosed by ANYD, there are no Environmental
Claims which could reasonably be expected to have a Material Adverse Effect
on ANYD that are pending or, to the knowledge of ANYD, threatened against
ANYD or, to the knowledge of ANYD, against any person or entity whose
liability for any Environmental Claim ANYD has or may have retained or
assumed either contractually or by operation of law.
Section 2.13. Tax Matters.
(a) Except as set forth in Section 2.13 of the ANYD Disclosure Schedule:
(i) ANYD has filed or has had filed on its behalf in a timely manner (within
any applicable extension periods) with the appropriate Governmental Entity
all income and other material Tax Returns (as defined herein) with respect to
Taxes (as defined herein) of ANYD and all Tax Returns were in all material
respects true, complete and correct; (ii) all material Taxes with respect to
ANYD have been paid in full or have been provided for in accordance with GAAP
on ANYD's most recent balance sheet which is part of the ANYD SEC Documents.
(iii) there are no outstanding agreements or waivers extending the statutory
period of limitations applicable to any federal, state, local or foreign
income or other material Tax Returns required to be filed by or with respect
to ANYD; (iv) to the knowledge of ANYD none of the Tax Returns of or with
respect to ANYD is currently being audited or examined by any Governmental
Entity; and (v) no deficiency for any income or other material Taxes has been
assessed with respect to ANYD which has not been abated or paid in full.
(b) For purposes of this Agreement, (i) "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including, without limitation,
income, gross receipts, sales, use, ad valorem, goods and services, capital,
transfer, franchise, profits, license, withholding, payroll, employment,
employer health, excise, estimated, severance, stamp, occupation, property or
other taxes, customs duties, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority and (ii) "Tax Return"
shall mean any report, return, documents declaration or other information or
filing required to be supplied to any taxing authority or jurisdiction with
respect to Taxes.
Section 2.14. Title to Property. ANYD has good and defensible title to
all of its properties and assets, free and clear of all liens, charges and
encumbrances except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby
or which, individually or in the aggregate, would not have a Material Adverse
Effect on ANYD; and, to ANYD's knowledge, all leases pursuant to which ANYD
leases from others real or personal property are in good standing, valid and
effective in accordance with their respective terms, and there is not, to the
knowledge of ANYD, under any of such leases, any existing material default or
event of default (or event which with notice of lapse of time, or both, would
constitute a default and in respect of which ANYD has not taken adequate
steps to prevent such a default from occurring) except where the lack of such
good standing, validity and effectiveness, or the existence of such default
or event, would not have a Material Adverse Effect on ANYD.
Section 2.15. Intellectual Property.
(a) ANYD owns, or possesses adequate licenses or other valid rights to
use, all existing United States and foreign patents, trademarks, trade names,
service marks, copyrights, trade secrets and applications therefor that are
material to its business as currently conducted (the "ANYD Intellectual
Property Rights"). However, pursuant to subsection 2.0 herein, the
Intellectual Property Rights are being exchanged for existing debt in the sum
of approximately $303,427.85.
(b) The validity of the ANYD Intellectual Property Rights and the title
thereto of ANYD is not being questioned in any litigation to which ANYD is a
party.
(c) Except as set forth in Section 2.15(c) of the ANYD Disclosure
Schedule, the conduct of the business of ANYD as now conducted does not, to
ANYD's knowledge, infringe any valid patents, trademarks, trade names,
service marks or copyrights of others. The consummation of the transactions
completed hereby will not result in the loss or impairment of any ANYD
Intellectual Property Rights.
(d) ANYD has taken steps it believes appropriate to protect and maintain
its trade secrets as such, except in cases where ANYD has elected to rely on
patent or copyright protection in lieu of trade secret protection.
(e) The ANYD Intellectual Property Rights referenced herein are being
transferred, along with the physical equipment related thereto, to the major
creditor of ANYD (in addition to the payment of $90,000) in exchange for
relieving ANYD of its obligation to repay $303,427.85 of loans. The transfer
of the Intellectual Property Rights and the relief from the liability will
occur concurrent with the Effective Date of the Merger.
Section 2.16. Insurance. ANYD currently does not maintain general
liability and other business insurance.
Section 2.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding ANYD Shares is the only vote of the
holders of any class or series of ANYD's capital stock necessary to approve
and adopt this Agreement and the Merger.
Section 2.18. Tax Treatment. Neither ANYD nor, to the knowledge of ANYD,
any of its affiliates has taken or agreed to take action that would prevent
the Merger from constituting a reorganization qualifying under the provisions
of Section 368(a) of the Code.
Section 2.19. Affiliates. Except for Principal ANYD Stockholders and the
directors and executive officers of ANYD, each of whom is listed in Section
2.19 of the ANYD Disclosure Schedule, there are no persons who, to the
knowledge of ANYD, may be deemed to be affiliates of ANYD under Rule 1-02(b)
of Regulation S-X of the SEC (the "ANYD Affiliates").
Section 2.20. Certain Business Practices. None of ANYD or any directors,
officers, agents or employees of ANYD has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or campaigns or violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended (the "FCPA"), or (iii) made any other unlawful payment.
Section 2.21. Insider Interests. Except as set forth in Section 2.21 of
the ANYD Disclosure Schedule, neither the principal ANYD shareholders nor any
officer or director of ANYD has any interest in any material property, real
or personal, tangible or intangible, including without limitation, any
computer software or ANYD Intellectual Property Rights, used in or pertaining
to the business of ANYD, expect for the ordinary rights of a stockholder or
employee stock optionholder.
Section 2.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the ANYD Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of ANYD Shares.
Section 2.23. Brokers. No broker, finder or investment banker (other
than the ANYD Financial Adviser, a true and correct copy of whose engagement
agreement has been provided to SHARECOM) is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of ANYD.
Section 2.24. Disclosure. No representation or warranty of ANYD in this
Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to SHARECOM pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 2.25. No Existing Discussions. As of the date hereof, ANYD is
not engaged, directly or indirectly, in any discussions or negotiations with
any other party with respect to any Third Party Acquisition (as defined in
Section 4.4).
Section 2.26. Material Contracts.
(a) ANYD has delivered or otherwise made available to SHARECOM true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which ANYD is a party affecting the obligations of any party thereunder) to
which ANYD is a party or by which any of its properties or assets are bound
that are, material to the business, properties or assets of ANYD taken as a
whole, including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of ANYD taken as a whole, all: (i) employment, product design or
development, personal services, consulting, non-competition, severance,
golden parachute or indemnification contracts (including, without limitation,
any contract to which ANYD is a party involving employees of ANYD); (ii)
licensing, publishing, merchandising or distribution agreements; (iii)
contracts granting rights of first refusal or first negotiation; (iv)
partnership or joint venture agreements; (v) agreements for the acquisition,
sale or lease of material properties or assets or stock or otherwise entered
into since March 31, 2001; (vi) contracts or agreements with any Governmental
Entity. and (vii) all commitments and agreements to enter into any of the
foregoing (collectively, together with any such contracts entered into in
accordance with Section 4.1 hereof, the "ANYD Contracts"). ANYD is not a
party to or bound by any severance, golden parachute or other agreement with
any employee or consultant pursuant to which such person would be entitled to
receive any additional compensation or an accelerated payment of compensation
as a result of the consummation of the transactions contemplated hereby.
(b) Each of the ANYD Contracts is valid and enforceable in accordance
with its terms, and there is no default under any ANYD Contract so listed
either by ANYD or, to the knowledge of ANYD, by any other party thereto, and
no event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by ANYD or, to the knowledge of
ANYD, any other party, in any such case in which such default or event could
reasonably be expected to have a Material Adverse Effect on ANYD.
(c) No party to any such ANYD Contract has given notice to ANYD of or
made a claim against ANYD with respect to any breach or default thereunder,
in any such case in which such breach or default could reasonably be expected
to have a Material Adverse Effect on ANYD.
ARTICLE 3
Representations and Warranties of SHARECOM
Except as set forth on the Disclosure Schedule delivered by SHARECOM to
ANYD (the "SHARECOM Disclosure Schedule"), SHARECOM hereby represents and
warrants to ANYD as follows:
Section 3.1. Organization and Qualification.
(a) Each of SHARECOM and its subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has all requisite power and authority to
own, lease and operate its properties and to carry on its businesses as now
being conducted, except where the failure to be so organized, existing and in
good standing or to have such power and authority would not have a Material
Adverse Effect (as defined below) on SHARECOM. When used in connection with
SHARECOM, the term "Material Adverse Effect'' means any change or effect (i)
that is or is reasonably likely to be materially adverse to the business,
results of operations, condition (financial or otherwise) or prospects of
SHARECOM and its subsidiaries, taken as a whole, other than any change or
effect arising out of general economic conditions unrelated to any businesses
in which SHARECOM and its subsidiaries are engaged, or (ii) that may impair
the ability of SHARECOM to consummate the transactions contemplated hereby.
(b) SHARECOM has heretofore delivered to ANYD accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of SHARECOM. Each of SHARECOM and its
subsidiaries is duly qualified or licensed and in good standing to do
business in each jurisdiction in which the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification
or licensing necessary except in such jurisdictions where the failure to be
so duly qualified or licensed and in good standing would not have a Material
Adverse Effect on SHARECOM.
Section 3.2. Capitalization of SHARECOM.
(a) As of March 31, 2001, the authorized capital stock of SHARECOM
consists of; (i) Ten Thousand (10,000) SHARECOM common Shares, no par value,
1,000 Common Shares were issued and outstanding, and (ii) no preferred shares
were authorized. All of the outstanding SHARECOM Shares have been duly
authorized and validly issued, and are fully paid, nonassessable and free of
preemptive rights.
(b) Except as set forth in Section 3.2(b) of the SHARECOM Disclosure
Schedule, SHARECOM is the record and beneficial owner of all of the issued
and outstanding shares of capital stock of its subsidiaries.
(c) Except as set forth in Section 3.2(c) of the SHARECOM Disclosure
Schedule, between March 31, 2001 and the date hereof, no shares of SHARECOM's
capital stock have been issued and no SHARECOM Stock options have been
granted. Except as set forth in Section 3.2(a) above, as of the date hereof,
there are no outstanding (i) shares of capital stock or other voting
securities of SHARECOM, (ii) securities of SHARECOM or its subsidiaries
convertible into or exchangeable for shares of capital stock or voting
securities of SHARECOM, (iii) options or other rights to acquire from
SHARECOM or its subsidiaries, or obligations of SHARECOM or its subsidiaries
to issue, any capital stock, voting securities or securities convertible into
or exchangeable for capital stock or voting securities of SHARECOM, or (iv)
equity equivalents, interests in the ownership or earnings of SHARECOM or its
subsidiaries or other similar rights (collectively, "SHARECOM Securities").
As of the date hereof, there are no outstanding obligations of SHARECOM or
any of its subsidiaries to repurchase, redeem or otherwise acquire any
SHARECOM Securities. There are no stockholder agreements, voting trusts or
other agreements or understandings to which SHARECOM is a party or by which
it is bound relating to the voting or registration of any shares of capital
stock of SHARECOM.
(d) Except as set forth in Section 3.2(d) of the SHARECOM Disclosure
Schedule, there are no securities of SHARECOM convertible into or
exchangeable for, no options or other rights to acquire from SHARECOM, and no
other contract, understanding, arrangement or obligation (whether or not
contingent) providing for the issuance or sale, directly or indirectly, of
any capital stock or other ownership interests in, or any other securities
of, any subsidiary of SHARECOM.
(e) The SHARECOM Shares constitute the only class of equity securities
of SHARECOM or its subsidiaries.
(f) Except as set forth in Section 3.2(f) of the SHARECOM Disclosure
Schedule, SHARECOM does not own directly or indirectly more than fifty
percent (50%) of the outstanding voting securities or interests (including
membership interests) of any entity.
Section 3.3. Authority Relative to this Agreement; Recommendation.
(a) SHARECOM has all necessary corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of SHARECOM (the "SHARECOM Board"), and no other
corporate proceedings on the part of SHARECOM are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby, except, as
referred to in Section 3.17, the approval and adoption of this Agreement by
the holders of at least a majority of the then outstanding SHARECOM Shares.
This Agreement has been duly and validly executed and delivered by SHARECOM
and constitutes a valid, legal and binding agreement of SHARECOM, enforceable
against SHARECOM in accordance with its terms.
(b) The SHARECOM Board has resolved to recommend that the stockholders
of SHARECOM approve and adopt this Agreement.
Section 3.4. SEC Reports; Financial Statements. SHARECOM is not required
to file forms, reports and documents with the SEC. SHARECOM has heretofore
made available or promptly will make available to ANYD a complete and correct
copy of SHARECOM's audited financial statements dated December 31, 2000, and
unaudited financial statements for the period ending March 31, 2001, to be
filed with the SEC in an 8K filing post merger.
Section 3.5. Information Supplied. None of the information supplied or
to be supplied by SHARECOM for inclusion or incorporation by reference to (i)
the 8-K will, at the time the 8-K is filed with the SEC and at the time it
becomes effective under the Securities Act, 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 not misleading and (ii)
the Proxy Statement will, at the date mailed to stockholders of ANYD, if any,
and at the times of the meeting or meetings of stockholders of ANYD to be
held in connection with the Merger, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Proxy Statement,
insofar as it relates to the meeting of SHARECOM's stockholders to vote on
the Merger, will comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations thereunder, and
the 8-K will comply as to form in all material respects with the provisions
of the Securities Act and the rules and regulations thereunder.
Section 3.6. Consents and Approvals; No Violations. Except as set forth
in Section 3.6 of the SHARECOM Disclosure Schedule, and for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the HSR Act, the rules of the NASD, and the
filing and recordation of the Merger Certificate as required by the NGCL, no
filing with or notice to, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution and delivery by
SHARECOM of this Agreement or the consummation by SHARECOM of the
transactions contemplated hereby, except where the failure to obtain such
permits, authorizations consents or approvals or to make such filings or give
such notice would not have a Material Adverse Effect on SHARECOM.
Neither the execution, delivery and performance of this Agreement by
SHARECOM nor the consummation by SHARECOM of the transactions contemplated
hereby will (i) conflict with or result in any breach of any provision of the
respective Certificate of Incorporation or Bylaws (or similar governing
documents) of SHARECOM or any of SHARECOM's subsidiaries, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or Lien) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which SHARECOM or any of
SHARECOM's subsidiaries is a party or by which any of them or any of their
respective properties or assets may be bound or (iii) violate any order,
writ, injunction, decree, law, statute, rule or regulation applicable to
SHARECOM or any of SHARECOM's subsidiaries or any of their respective
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults which would not have a Material Adverse Effect on
SHARECOM.
Section 3.7. No Default. None of SHARECOM or any of its subsidiaries is
in breach, default or violation (and no event has occurred which with notice
or the lapse of time or both would constitute a breach, default or violation)
of any term, condition or provision of (i) its Certificate of Incorporation
or Bylaws (or similar governing documents), (ii) any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which SHARECOM or any of its subsidiaries is now a party or by
which any of them or any of their respective properties or assets may be
bound or (iii) any order, writ, injunction, decree, law, statute, rule or
regulation applicable to SHARECOM, its subsidiaries or any of their
respective properties or assets, except in the case of (ii) or (iii) for
violations, breaches or defaults that would not have a Material Adverse
Effect on SHARECOM. Each note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which SHARECOM or
any of its subsidiaries is now a party or by which any of them or any of
their respective properties or assets may be bound that is material to
SHARECOM and its subsidiaries taken as a whole and that has not expired is in
full force and effect and is not subject to any material default thereunder
of which SHARECOM is aware by any party obligated to SHARECOM or any
subsidiary thereunder.
Section 3.8. No Undisclosed Liabilities; Absence of Changes. Except as
and to the extent disclosed by SHARECOM in the SHARECOM, none of SHARECOM or
its subsidiaries had any liabilities or obligations of any nature, whether or
not accrued, contingent or otherwise, that would be required by generally
accepted accounting principles to be reflected on a consolidated balance
sheet of SHARECOM and its consolidated subsidiaries (including the notes
thereto) or which would have a Material Adverse Effect on SHARECOM. Except as
disclosed by SHARECOM, none of SHARECOM or its subsidiaries has incurred any
liabilities of any nature, whether or not accrued, contingent or otherwise,
which could reasonably be expected to have, and there have been no events,
changes or effects with respect to SHARECOM or its subsidiaries having or
which could reasonably be expected to have, a Material Adverse Effect on
SHARECOM. Except as and to the extent disclosed by SHARECOM there has not
been (i) any material change by SHARECOM in its accounting methods,
principles or practices (other than as required after the date hereof by
concurrent changes in generally accepted accounting principles), (ii) any
revaluation by SHARECOM of any of its assets having a Material Adverse Effect
on SHARECOM, including, without limitation, any write-down of the value of
any assets other than in the ordinary course of business or (iii) any other
action or event that would have required the consent of any other party
hereto pursuant to Section 4.2 of this Agreement had such action or event
occurred after the date of this Agreement.
Section 3.9. Litigation. Except as set forth in Schedule 3.9 of the
SHARECOM Disclosure Schedule there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of SHARECOM, threatened against
SHARECOM or any of its subsidiaries or any of their respective properties or
assets before any Governmental Entity which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect on
SHARECOM or could reasonably be expected to prevent or delay the consummation
of the transactions contemplated by this Agreement. Except as disclosed by
SHARECOM, none of SHARECOM or its subsidiaries is subject to any outstanding
order, writ, injunction or decree which, insofar as can be reasonably
foreseen in the future, could reasonably be expected to have a Material
Adverse Effect on SHARECOM or could reasonably be expected to prevent or
delay the consummation of the transactions contemplated hereby.
Section 3.10. Compliance with Applicable Law. Except as disclosed by
SHARECOM, SHARECOM and its subsidiaries hold all permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities
necessary for the lawful conduct of their respective businesses (the
"SHARECOM Permits"), except for failures to hold such permits, licenses,
variances, exemptions, orders and approvals which would not have a Material
Adverse Effect on SHARECOM. Except as disclosed by SHARECOM, SHARECOM and its
subsidiaries are in compliance with the terms of the SHARECOM Permits, except
where the failure so to comply would not have a Material Adverse Effect on
SHARECOM. Except as disclosed by SHARECOM, the businesses of SHARECOM and its
subsidiaries are not being conducted in violation of any law, ordinance or
regulation of any Governmental Entity except that no representation or
warranty is made in this Section 3.10 with respect to Environmental Laws and
except for violations or possible violations which do not, and, insofar as
reasonably can be foreseen, in the future will not, have a Material Adverse
Effect on SHARECOM. Except as disclosed by SHARECOM no investigation or
review by any Governmental Entity with respect to SHARECOM or its
subsidiaries is pending or, to the knowledge of SHARECOM, threatened, nor, to
the knowledge of SHARECOM, has any Governmental Entity indicated an intention
to conduct the same, other than, in each case, those which SHARECOM
reasonably believes will not have a Material Adverse Effect on SHARECOM.
Section 3.11. Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of ERISA), maintained or
contributed to at any time by SHARECOM, any of its subsidiaries or any entity
required to be aggregated with SHARECOM or any of its subsidiaries pursuant
to Section 414 of the Code (each, a "SHARECOM Employee Plan"), no event has
occurred and, to the knowledge of SHARECOM, no condition or set of
circumstances exists in connection with which SHARECOM or any of its
subsidiaries could reasonably be expected to be subject to any liability
which would have a Material Adverse Effect on SHARECOM.
(b) (i) No SHARECOM Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each SHARECOM Employee Plan
intended to qualify under Section 401(a) of the Code and each trust intended
to qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 3.11(c) of the SHARECOM Disclosure Schedule sets forth a
true and complete list, as of the date of this Agreement, of each person who
holds any SHARECOM Stock Options, together with the number of SHARECOM Shares
which are subject to such option, the date of grant of such option, the
extent to which such option is vested (or will become vested as a result of
the Merger), the option price of such option (to the extent determined as of
the date hereof), whether such option is a nonqualified stock option or is
intended to qualify as an incentive stock option within the meaning of
Section 422(b) of the Code, and the expiration date of such option. Section
3.11(c) of the SHARECOM Disclosure Schedule also sets forth the total number
of such incentive stock options and such nonqualified options. SHARECOM has
furnished ANYD with complete copies of the plans pursuant to which the
SHARECOM Stock Options were issued. Other than the automatic vesting of
SHARECOM Stock Options that may occur without any action on the part of
SHARECOM or its officers or directors, SHARECOM has not taken any action that
would result in any SHARECOM Stock Options that are unvested becoming vested
in connection with or as a result of the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(d) SHARECOM has made available to ANYD (i) a description of the terms
of employment and compensation arrangements of all officers of SHARECOM and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating SHARECOM to make
annual cash payments in an amount exceeding $60,000; (iii) a schedule listing
all officers of SHARECOM who have executed a non-competition agreement with
SHARECOM and a copy of each such agreement currently in effect; (iv) copies
(or descriptions) of all severance agreements, programs and policies of
SHARECOM with or relating to its employees, except programs and policies
required to be maintained by law; and (v) copies of all plans, programs,
agreements and other arrangements of the SHARECOM with or relating to its
employees which contain change in control provisions.
(e) Except as disclosed in Section 3.11(e) of the SHARECOM Disclosure
Schedule there shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any SHARECOM
Employee Plan or any agreement or arrangement disclosed under this Section
3.11 solely by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of SHARECOM
threatened, between SHARECOM or any of its subsidiaries and any of their
respective employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on SHARECOM. Neither SHARECOM nor
any of its subsidiaries is a party to any collective bargaining agreement or
other labor union contract applicable to persons employed by SHARECOM or any
of its subsidiaries (and neither SHARECOM nor any of its subsidiaries has any
outstanding material liability with respect to any terminated collective
bargaining agreement or labor union contract), nor does SHARECOM know of any
activities or proceedings of any labor union to organize any of its or any of
its subsidiaries' employees. SHARECOM has no knowledge of any strike,
slowdown, work stoppage, lockout or threat thereof by or with respect to any
of its or any of its subsidiaries' employees.
Section 3.12. Environmental Laws and Regulations.
(a) Except as disclosed by SHARECOM, (i) each of SHARECOM and its
subsidiaries is in material compliance with all Environmental Laws, except
for non-compliance that would not have a Material Adverse Effect on SHARECOM,
which compliance includes, but is not limited to, the possession by SHARECOM
and its subsidiaries of all material permits and other governmental
authorizations required under applicable Environmental Laws, and compliance
with the terms and conditions thereof; (ii) none of SHARECOM or its
subsidiaries has received written notice of, or, to the knowledge of
SHARECOM, is the subject of, any Environmental Claim that could reasonably be
expected to have a Material Adverse Effect on SHARECOM; and (iii) to the
knowledge of SHARECOM, there are no circumstances that are reasonably likely
to prevent or interfere with such material compliance in the future.
(b) Except as disclosed by SHARECOM, there are no Environmental Claims
which could reasonably be expected to have a Material Adverse Effect on
SHARECOM that are pending or, to the knowledge of SHARECOM, threatened
against SHARECOM or any of its subsidiaries or, to the knowledge of SHARECOM,
against any person or entity whose liability for any Environmental Claim
SHARECOM or its subsidiaries has or may have retained or assumed either
contractually or by operation of law.
Section 3.13. Tax Matters. Except as set forth in Section 3.13 of the
SHARECOM Disclosure Schedule: (i) SHARECOM and each of its subsidiaries has
filed or has had filed on its behalf in a timely manner (within any
applicable extension periods) with the appropriate Governmental Entity all
income and other material Tax Returns with respect to Taxes of SHARECOM and
each of its subsidiaries and all Tax Returns were in all material respects
true, complete and correct; (ii) all material Taxes with respect to SHARECOM
and each of its subsidiaries have been paid in full or have been provided for
in accordance with GAAP on SHARECOM's most recent balance sheet which is part
of the SHARECOM SEC Documents; (iii) there are no outstanding agreements or
waivers extending the statutory period of limitations applicable to any
federal, state, local or foreign income or other material Tax Returns
required to be filed by or with respect to SHARECOM or its subsidiaries; (iv)
to the knowledge of SHARECOM none of the Tax Returns of or with respect to
SHARECOM or any of its subsidiaries is currently being audited or examined by
any Governmental Entity; and (v) no deficiency for any income or other
material Taxes has been assessed with respect to SHARECOM or any of its
subsidiaries which has not been abated or paid in full.
Section 3.14. Title to Property. SHARECOM and each of its subsidiaries
have good and defensible title to all of their properties and assets, free
and clear of all liens, charges and encumbrances except liens for taxes not
yet due and payable and such liens or other imperfections of title, if any,
as do not materially detract from the value of or interfere with the present
use of the property affected thereby or which, individually or in the
aggregate, would not have a Material Adverse Effect on SHARECOM; and, to
SHARECOM's knowledge, all leases pursuant to which SHARECOM or any of its
subsidiaries lease from others real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not, to the knowledge of SHARECOM, under any of such leases, any
existing material default or event of default (or event which with notice or
lapse of time, or both, would constitute a material default and in respect of
which SHARECOM or such subsidiary has not taken adequate steps to prevent
such a default from occurring) except where the lack of such good standing,
validity and effectiveness, or the existence of such default or event of
default would not have a Material Adverse Effect on SHARECOM.
Section 3.15. Intellectual Property.
(a) Each of SHARECOM and its subsidiaries owns, or possesses adequate
licenses or other valid rights to use, all existing United States and foreign
patents, trademarks, trade names, services marks, copyrights, trade secrets,
and applications therefor that are material to its business as currently
conducted (the "SHARECOM Intellectual Property Rights").
(b) Except as set forth in Section 3.15(b) of the SHARECOM Disclosure
Schedule the validity of the SHARECOM Intellectual Property Rights and the
title thereto of SHARECOM or any subsidiary, as the case may be, is not being
questioned in any litigation to which SHARECOM or any subsidiary is a party.
(c) The conduct of the business of SHARECOM and its subsidiaries as now
conducted does not, to SRCis knowledge, infringe any valid patents,
trademarks, tradenames, service marks or copyrights of others. The
consummation of the transactions contemplated hereby will not result in the
loss or impairment of any SHARECOM Intellectual Property Rights.
(d) Each of SHARECOM and its subsidiaries has taken steps it believes
appropriate to protect and maintain its trade secrets as such, except in
cases where SHARECOM has elected to rely on patent or copyright protection in
lieu of trade secret protection.
Section 3.16. Insurance. SHARECOM and its subsidiaries maintain general
liability and other business insurance that SHARECOM believes to be
reasonably prudent for its business.
Section 3.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding SHARECOM Shares is the only vote of the
holders of any class or series of SHARECOM's capital stock necessary to
approve and adopt this Agreement and the Merger.
Section 3.18. Tax Treatment. Neither SHARECOM nor, to the knowledge of
SHARECOM, any of its affiliates has taken or agreed to take any action that
would prevent the Merger from constituting a reorganization qualifying under
the provisions of Section 368(a) of the Code.
Section 3.19. Affiliates. Except for the directors and executive
officers of SHARECOM, each of whom is listed in Section 3.19 of the SHARECOM
Disclosure Schedule, there are no persons who, to the knowledge of SHARECOM,
may be deemed to be affiliates of SHARECOM under Rule 1-02(b) of Regulation
S-X of the SEC (the "SHARECOM Affiliates").
Section 3.20. Certain Business Practices. None of SHARECOM, any of its
subsidiaries or any directors, officers, agents or employees of SHARECOM or
any of its subsidiaries has (i) used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the FCPA, or (iii) made any other
unlawful payment.
Section 3.21. Insider Interests. Except as set forth in Section 3.21 of
the SHARECOM Disclosure Schedule, no officer or director of SHARECOM has any
interest in any material property, real or personal, tangible or intangible,
including without limitation, any computer software or SHARECOM Intellectual
Property Rights, used in or pertaining to the business of SHARECOM or any
subsidiary, except for the ordinary rights of a stockholder or employee stock
optionholder.
Section 3.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the SHARECOM Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of SHARECOM Shares.
Section 3.23. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finders or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of SHARECOM.
Section 3.24. Disclosure. No representation or warranty of SHARECOM in
this Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to ANYD pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 3.25. No Existing Discussions. As of the date hereof, SHARECOM
is not engaged, directly or indirectly, in any discussions or negotiations
with any other party with respect to any Third Party Acquisition (as defined
in Section 5.4).
Section 3.26. Material Contracts.
(a) SHARECOM has delivered or otherwise made available to ANYD true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which SHARECOM is a party affecting the obligations of any party thereunder)
to which SHARECOM or any of its subsidiaries is a party or by which any of
their properties or assets are bound that are, material to the business,
properties or assets of SHARECOM and its subsidiaries taken as a whole,
including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of SHARECOM and its subsidiaries taken as a whole, all: (i)
employment, product design or development, personal services, consulting,
non-competition, severance, golden parachute or indemnification contracts
(including, without limitation, any contract to which SHARECOM is a party
involving employees of SHARECOM); (ii) licensing, publishing, merchandising
or distribution agreements; (iii) contracts granting rights of first refusal
or first negotiation; (iv) partnership or joint venture agreements; (v)
agreements for the acquisition, sale or lease of material properties or
assets or stock or otherwise. (vi) contracts or agreements with any
Governmental Entity; and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 5.2 hereof, the 'SHARECOM Contracts").
Neither SHARECOM nor any of its subsidiaries is a party to or bound by any
severance, golden parachute or other agreement with any employee or
consultant pursuant to which such person would be entitled to receive any
additional compensation or an accelerated payment of compensation as a result
of the consummation of the transactions contemplated hereby.
(b) Each of the SHARECOM Contracts is valid and enforceable in
accordance with its terms, and there is no default under any SHARECOM
Contract so listed either by SHARECOM or, to the knowledge of SHARECOM, by
any other party thereto, and no event has occurred that with the lapse of
time or the giving of notice or both would constitute a default thereunder by
SHARECOM or, to the knowledge of SHARECOM, any other party, in any such case
in which such default or event could reasonably be expected to have a
Material Adverse Effect on SHARECOM.
(c) No party to any such SHARECOM Contract has given notice to SHARECOM
of or made a claim against SHARECOM with respect to any breach or default
thereunder, in any such case in which such breach or default could reasonably
be expected to have a Material Adverse Effect on SHARECOM.
ARTICLE 4
Covenants
Section 4.1. Conduct of Business of ANYD. Except as contemplated by this
Agreement or as described in Section 4.1 of the ANYD Disclosure Schedule,
during the period from the date hereof to the Effective Time, ANYD will
conduct its operations in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, with no less diligence
and effort than would be applied in the absence of this Agreement, seek to
preserve intact its current business organization, keep available the service
of its current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it to the end
that goodwill and ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement or as described in Section 4.1 of the
ANYD Disclosure Schedule, prior to the Effective Time, ANYD will not, without
the prior written consent of SHARECOM:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) amend the terms of any stock of any class or any other securities
(except bank loans) or equity equivalents.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of ANYD (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person.
(iii) make any loans, advances or capital contributions to, or investments
in, any other person; (iv) pledge or otherwise encumber shares of capital
stock of ANYD; or (v) mortgage or pledge any of its material assets, tangible
or intangible, or create or suffer to exist any material Lien thereupon
(other than tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit,
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent ANYD from (i) entering into employment
agreements or severance agreements with employees in the ordinary course of
business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or amending bonus arrangements for
employees for fiscal 1999 in the ordinary course of year-end compensation
reviews consistent with past practice and paying bonuses to employees for
fiscal 1999 in amounts previously disclosed to SHARECOM (to the extent that
such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to ANYD);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions (other than in the ordinary
course of business);
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets including, without
limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to ANYD; (iii) authorize any new
capital expenditure or expenditures which, individually is in excess of
$1,000 or, in the aggregate, are in excess of $5,000; provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to ANYD;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
ANYD;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or in the
ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.1(a) through 4.1(m) or any action which would make
any of the representations or warranties of contained in this Agreement
untrue or incorrect.
Section 4.2. Conduct of Business of SHARECOM. Except as contemplated by
this Agreement or as described in Section 4.2 of the SHARECOM Disclosure
Schedule during the period from the date hereof to the Effective Time,
SHARECOM will conduct its operations in the ordinary course of business
consistent with past practice and, to the extent consistent therewith, with
no less diligence and effort than would be applied in the absence of this
Agreement, seek to preserve intact its current business organization, keep
available the service of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings
with it to the end that goodwill and ongoing businesses shall be unimpaired
at the Effective Time. Without limiting the generality of the foregoing,
except as otherwise expressly provided in this Agreement or as described in
Section 4.2 of the SHARECOM Disclosure Schedule, prior to the Effective Time,
SHARECOM will not, without the prior written consent of ANYD:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities (except bank loans) or equity
equivalents (including, without limitation, any stock options or stock
appreciation rights;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger
consolidation, restructuring, recapitalization or other reorganization of
SHARECOM (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business. (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person;
(iii) make any loans, advances or capital contributions to or investments in,
any other person; (iv) pledge or otherwise encumber shares of capital stock
of SHARECOM or its subsidiaries; or (v) mortgage or pledge any of its
material assets, tangible or intangible, or create or suffer to exist any
material Lien thereupon (other than tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent SHARECOM or its subsidiaries from (i)
entering into employment agreements or severance agreements with employees in
the ordinary course of business and consistent with past practice or (ii)
increasing annual compensation and/or providing for or amending bonus
arrangements for employees for fiscal 1999 in the ordinary course of yearend
compensation reviews consistent with past practice and paying bonuses to
employees for fiscal 1999 in amounts previously disclosed to (to the extent
that such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to
SHARECOM);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions other than in the ordinary
course of business;
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory of writing-off notes
or accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership, or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to SHARECOM; (iii) authorize any new
capital expenditure or expenditures which, individually, is in excess of
$1,000 or, in the aggregate, are in excess of $5,000: provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to SHARECOM and its subsidiaries taken as a whole;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
SHARECOM;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or except in
the ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.2(a) through 4.2(m) or any action which would make
any of the representations or warranties of the SHARECOM contained in this
Agreement untrue or incorrect.
Section 4.3. Preparation of 8-K and the Proxy Statement. ANYD shall
promptly file with the SEC a Proxy Statement pertaining to the ANYD
shareholders approval of the transaction contemplated herein. SHARECOM shall
promptly prepare and file with the SEC an 8-K, after consummation of the
Merger, which 8-K shall include all material SHARECOM information similar as
to what would be required in an initial registration statement on Form 10-SB.
Section 4.4. Other Potential Acquirers.
(a) SHARECOM, its affiliates and their respective officers, directors,
employees, representatives and agents shall immediately cease any existing
discussions or negotiations, if any, with any parties conducted heretofore
with respect to any Third Party Acquisition.
Section 4.5. Meetings of Stockholders. Each of SHARECOM and ANYD shall
take all action necessary, in accordance with the respective General
Corporation Law of its respective state, and its respective certificate of
incorporation and bylaws, to duly call, give notice of, convene and hold a
meeting of its stockholders as promptly as practicable, to consider and vote
upon the adoption and approval of this Agreement and the transactions
contemplated hereby. The stockholder votes required for the adoption and
approval of the transactions contemplated by this Agreement shall be the vote
required by the NGCL and its charter and bylaws, in the case of ANYD and the
Iowa Business Corporations Act, and its charter and bylaws, in the case of
SHARECOM. ANYD and SHARECOM will, through their respective Boards of
Directors, recommend to their respective stockholders approval of such
matters
Section 4.6. OTC:BB Listing. The parties shall use all reasonable
efforts to cause the ANYD Shares, subject to Rule 144, to be traded on the
Over-the-Counter Bulletin Board (OTC:BB).
Section 4.7. Access to Information.
(a) Between the date hereof and the Effective Time, ANYD will give
SHARECOM and its authorized representatives, and SHARECOM will give ANYD and
its authorized representatives, reasonable access to all employees, plants,
offices, warehouses and other facilities and to all books and records of
itself and its subsidiaries, will permit the other party to make such
inspections as such party may reasonably require and will cause its officers
and those of its subsidiaries to furnish the other party with such financial
and operating data and other information with respect to the business and
properties of itself and its subsidiaries as the other party may from time to
time reasonably request.
(b) Between the date hereof and the Effective Time, ANYD shall furnish
to SHARECOM, and SHARECOM will furnish to ANYD, within 45 business days after
the end of each quarter, quarterly statements prepared by such party in
conformity with its past practices) as of the last day of the period then
ended.
(c) Each of the parties hereto will hold and will cause its consultants
and advisers to hold in confidence all documents and information furnished to
it in connection with the transactions contemplated by this Agreement.
Section 4.8. Additional Agreements, Reasonable Efforts. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
(i) cooperating in the preparation and filing of the Proxy Statement and the
8-K, any filings that may be required under the HSR Act, and any amendments
to any thereof; (ii) obtaining consents of all third parties and Governmental
Entities necessary, proper or advisable for the consummation of the
transactions contemplated by this Agreement; (iii) contesting any legal
proceeding relating to the Merger and (iv) the execution of any additional
instruments necessary to consummate the transactions contemplated hereby.
Subject to the terms and conditions of this Agreement, SHARECOM and ANYD
agree to use all reasonable efforts to cause the Effective Time to occur as
soon as practicable after the stockholder votes with respect to the Merger.
In case at any time after the Effective Time any further action is necessary
to carry out the purposes of this Agreement, the proper officers and
directors of each party hereto shall take all such necessary action.
Section 4.9. Employee Benefits; Stock Option and Employee Purchase
Plans. Subject to the provisions of Section 1.6(d) hereof, prior to the
Effective Time, ANYD will take or cause to be taken all action necessary to
adopt and or revise the employment agreements of Brad Nordling, Michele
Smith, and Frank Richier with ANYD. It is the parties' present intent to
provide after the Effective Time to employees of SHARECOM employee benefit
plans (other than stock option or other plans involving the potential
issuance of securities of ANYD) which, in the aggregate, are not less
favorable than those currently provided by SHARECOM. Notwithstanding the
foregoing, nothing contained herein shall be construed as requiring the
parties to continue any specific employee benefit plans.
Section 4.10. Public Announcements. SHARECOM, and ANYD will consult with
one another before issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this Agreement,
including, without limitation, the Merger, and shall not issue any such press
release or make any such public statement prior to such consultation, except
as may be required by applicable law or by obligations pursuant to any
listing agreement with the NASD Over-the-Counter Bulletin Board (OTC:BB) as
determined by SHARECOM or ANYD.
Section 4.11. Indemnification.
(a) To the extent, if any, not provided by an existing right under one
of the parties' directors and officers liability insurance policies, from and
after the Effective Time, ANYD shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now,
or has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director, officer or employee of the parties hereto or any
subsidiary thereof (each an "Indemnified Party" and, collectively, the
''Indemnified Parties") against all losses, expenses (including reasonable
attorneys' fees and expenses), claims, damages or liabilities or, subject to
the proviso of the next succeeding sentence, amounts paid in settlement
arising out of actions or omissions occurring at or prior to the Effective
Time and whether asserted or claimed prior to, at or after the Effective
Time) that are in whole or in part (i) based on, or arising out of the fact
that such person is or was a director, officer or employee of such party or a
subsidiary of such party or (ii) based on, arising out of or pertaining to
the transactions contemplated by this Agreement. In the event of any such
loss expense, claim, damage or liability (whether or not arising before the
Effective Time), (i) ANYD shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to ANYD, promptly after statements therefor are
received and otherwise advance to such Indemnified Party upon request
reimbursement of documented expenses reasonably incurred, in either case to
the extent not prohibited by the NGCL or its certificate of incorporation or
bylaws, (ii) ANYD will cooperate in the defense of any such matter and (iii)
any determination required to be made with respect to whether an Indemnified
Party's conduct complies with the standards set forth under the NGCL and
ANYD's certificate of incorporation or bylaws shall be made by independent
counsel mutually acceptable to ANYD and the Indemnified Party; provided,
however, that ANYD shall not be liable for any settlement effected without
its written consent (which consent shall not be unreasonably withheld). The
Indemnified Parties as a group may retain only one law firm with respect to
each related matter except to the extent there is, in the opinion of counsel
to an Indemnified Party, under applicable standards of professional conduct,
c conflict on any significant issue between positions of any two or more
Indemnified Parties.
(b) In the event ANYD or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity or such consolidation or merger
or (ii) transfers all or substantially all of its properties and assets to
any person, then and in either such case, proper provision shall be made so
that the successors and assigns of ANYD shall assume the obligations set
forth in this Section 4.11.
(c) To the fullest extent permitted by law, from and after the Effective
Time, all rights to indemnification now existing in favor of the employees,
agents, directors or officers of ANYD and SHARECOM and their subsidiaries
with respect to their activities as such prior to the Effective Time, as
provided in ANYD's and SHARECOM's certificate of incorporation or bylaws, in
effect on the date thereof or otherwise in effect on the date hereof, shall
survive the Merger and shall continue in full force and effect for a period
of not less than six years from the Effective Time.
(d) The provisions of this Section 4.11 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her representatives.
Section 4.12. Notification of Certain Matters. The parties hereto shall
give prompt notice to the other parties, of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Time, (ii) any material failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice of, or other communication relating to, a default
or event which, with notice or lapse of time or both, would become a default,
received by such party or any of its subsidiaries subsequent to the date of
this Agreement and prior to the Effective Time, under any contract or
agreement material to the financial condition, properties, businesses or
results of operations of such party and its subsidiaries taken as a whole to
which such party or any of its subsidiaries is a party or is subject, (iv)
any notice or other communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement, or (v) any material adverse
change in their respective financial condition, properties, businesses,
results of operations or prospects taken as a whole, other than changes
resulting from general economic conditions; provided, however, that the
delivery of any notice pursuant to this Section 4.12 shall not cure such
breach or non-compliance or limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
ARTICLE 5
Conditions to Consummation of the Merger
Section 5.1. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger
are subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) this Agreement shall have been approved and adopted by the requisite
vote of the stockholders of ANYD and SHARECOM;
(b) this Agreement shall have been approved and adopted by the Board of
Directors of ANYD and SHARECOM;
(c) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
United States court or United States governmental authority which prohibits,
restrains, enjoins or restricts the consummation of the Merger;
(d) any waiting period applicable to the Merger under the HSR Act shall
have terminated or expired, and any other governmental or regulatory notices
or approvals required with respect to the transactions contemplated hereby
shall have been either filed or received; and
(e) there shall be no more than 10% of the ANYD stockholders as
dissenting stockholders.
Section 5.2. Conditions to the Obligations of ANYD. The obligation of
ANYD to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the representations of SHARECOM contained in this Agreement or in
any other document delivered pursuant hereto shall be true and correct
(except to the extent that the breach thereof would not have a Material
Adverse Effect on SHARECOM) at and as of the Effective Time with the same
effect as if made at and as of the Effective Time (except to the extent such
representations specifically related to an earlier date, in which case such
representations shall be true and correct as of such earlier date), and at
the Closing SHARECOM shall have delivered to ANYD a certificate to that
effect;
(b) each of the covenants and obligations of SHARECOM to be performed at
or before the Effective Time pursuant to the terms of this Agreement shall
have been duly performed in all material respects at or before the Effective
Time and at the Closing SHARECOM shall have delivered to ANYD a certificate
to that effect;
(d) SHARECOM shall have obtained the consent or approval of each person
whose consent or approval shall be required in order to permit the Merger as
relates to any obligation, right or interest of SHARECOM under any loan or
credit agreement, note, mortgage, indenture, lease or other agreement or
instrument, except those for which failure to obtain such consents and
approvals would not, in the reasonable opinion of ANYD, individually or in
the aggregate, have a Material Adverse Effect on SHARECOM;
(e) there shall have been no events, changes or effects with respect to
SHARECOM or its subsidiaries having or which could reasonably be expected to
have a Material Adverse Effect on SHARECOM; and
(f) the ANYD Intellectual Property Rights referenced herein are
transferred, along with the physical equipment related thereto, to the major
creditor of ANYD (in addition to the payment of $90,000) in exchange for
relieving ANYD of its obligation to repay $303,427.85 of loans.
Section 5.3. Conditions to the Obligations of SHARECOM. The respective
obligations of SHARECOM to effect the Merger are subject to the satisfaction
at or prior to the Effective Time of the following conditions:
(a) the representations of ANYD contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on ANYD) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing ANYD
shall have delivered to SHARECOM a certificate to that effect;
(b) each of the covenants and obligations of ANYD to be performed at or
before the Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the Effective Time
and at the Closing ANYD shall have delivered to SHARECOM a certificate to
that effect;
(c) there shall have been no events, changes or effects with respect to
ANYD having or which could reasonably be expected to have a Material Adverse
Effect on ANYD; and,
(d) there shall have been a reverse split of 1:322 of ANYD's common
stock.
ARTICLE 6
Termination; Amendment; Waiver
Section 6.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after approval and adoption of this Agreement by ANYD's or
SHARECOM's stockholders:
(a) by mutual written consent of ANYD and SHARECOM;
(b) by SHARECOM or ANYD if (i) any court of competent jurisdiction in
the United States or other United States Governmental Entity shall have
issued a final order, decree or ruling or taken any other final action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action is or shall have become nonappealable or (ii)
the Merger has not been consummated by July 31, 2001; provided, however, that
no party may terminate this Agreement pursuant to this clause (ii) if such
party's failure to fulfill any of its obligations under this Agreement shall
have been the reason that the Effective Time shall not have occurred on or
before said date;
(c) by ANYD if (i) there shall have been a breach of any representation
or warranty on the part of SHARECOM set forth in this Agreement, or if any
representation or warranty of SHARECOM shall have become untrue, in either
case such that the conditions set forth in Section 5.2(a) would be incapable
of being satisfied by July 31, 2001 (or as otherwise extended), (ii) there
shall have been a breach by SHARECOM of any of their respective covenants or
agreements hereunder having a Material Adverse Effect on SHARECOM or
materially adversely affecting (or materially delaying) the consummation of
the Merger, and SHARECOM, as the case may be, has not cured such breach
within 20 business days after notice by ANYD thereof, provided that ANYD has
not breached any of its obligations hereunder, (iii) ANYD shall have convened
a meeting of its stockholders to vote upon the Merger and shall have failed
to obtain the requisite vote of its stockholders; or (iv) ANYD shall have
convened a meeting of its Board of Directors to vote upon the Merger and
shall have failed to obtain the requisite vote;
(d) by SHARECOM if (i) there shall have been a breach of any
representation or warranty on the part of ANYD set forth in this Agreement,
or if any representation or warranty of ANYD shall have become untrue, in
either case such that the conditions set forth in Section 5.3(a) would be
incapable of being satisfied by November 30, 1999 (or as otherwise extended),
(ii) there shall have been a breach by ANYD of its covenants or agreements
hereunder having a Material Adverse Effect on ANYD or materially adversely
affecting (or materially delaying) the consummation of the Merger, and ANYD,
as the case may be, has not cured such breach within twenty business days
after notice by SHARECOM thereof, provided that SHARECOM has not breached any
of its obligations hereunder, (iii) the ANYD Board shall have recommended to
ANYD's stockholders a Superior Proposal, (iv) the ANYD Board shall have
withdrawn, modified or changed its approval or recommendation of this
Agreement or the Merger or shall have failed to call, give notice of, convene
or hold a stockholders' meeting to vote upon the Merger, or shall have
adopted any resolution to effect any of the foregoing, (v) SHARECOM shall
have convened a meeting of its stockholders to vote upon the Merger and shall
have failed to obtain the requisite vote of its stockholders or (vi) ANYD
shall have convened a meeting of its stockholders to vote upon the Merger and
shall have failed to obtain the requisite vote of its stockholders.
Section 6.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part
of any party hereto or its affiliates, directors, officers or stockholders,
other than the provisions of this Section 6.2 and Sections 4.7(c) and 6.3
hereof. Nothing contained in this Section 6.2 shall relieve any party from
liability for any breach of this Agreement.
Section 6.3. Fees and Expenses. Except as specifically provided in this
Section 6.3, each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby.
Section 6.4. Amendment. This Agreement may be amended by action taken by
ANYD and SHARECOM at any time before or after approval of the Merger by the
stockholders of ANYD and SHARECOM (if required by applicable law) but, after
any such approval, no amendment shall be made which requires the approval of
such stockholders under applicable law without such approval. This Agreement
may not be amended, except by an instrument in writing signed on behalf of
the parties hereto.
Section 6.5. Extension; Waiver. At any time prior to the Effective Time,
each party hereto may (i) extend the time for the performance of any of the
obligations or other acts of any other party, (ii) waive any inaccuracies in
the representations and warranties of any other party contained herein or in
any document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by any other party with any of the agreements or conditions
contained herein. Any agreement on the part of any party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such
rights.
ARTICLE 7
Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time or a termination of this Agreement. This Section 7.1 shall not
limit any covenant or agreement of the parties hereto which by its terms
requires performance after the Effective Time.
Section 7.2. Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
Section 7.3. Validity. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby,
and to such end, the provisions of this Agreement are agreed to be severable.
Section 7.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested), to each other party as follows:
If to SHARECOM:
SHARECOM, INC.
1251 N. Sherwood Ln.
Palatine, Il 60067-1884
if to ANYD:
ANONYMOUS DATA CORPORATION
William Somers MD.
2780 South Jones
Las Vegas, Nevada 89146
with a copy to:
Donald J. Stoecklein
Stoecklein Law Group
Emerald Plaza
402 West Broadway, Suite 400
San Diego, California 92101
(619) 595-4882
(619) 595-4883
Email: djs@slgseclaw.com
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard
to the principles of conflicts of law thereof.
Section 7.6. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
Section 7.7. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Sections 4.9 and 4.11, nothing
in this Agreement, express or implied, is intended to or shall confer upon
any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 7.8. Certain Definitions. For the purposes of this Agreement,
the term:
(a) "affiliate" means (except as otherwise provided in Sections 2.19,
3.19 and 4.13) a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the first mentioned person;
(b) "business day" means any day other than a day on which Nasdaq is
closed;
(c) "capital stock" means common stock, preferred stock, partnership
interests, limited liability company interests or other ownership interests
entitling the holder thereof to vote with respect to matters involving the
issuer thereof;
(d) "knowledge'' or "known'' means, with respect to any matter in
question, if an executive officer of ANYD or SHARECOM or its subsidiaries, as
the case may be, has actual knowledge of such matter;
(e) "person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
legal entity; and
(f) "subsidiary" or "subsidiaries" of ANYD, SHARECOM or any other
person, means any corporation, partnership, limited liability company,
association, trust, unincorporated association or other legal entity of which
ANYD, SHARECOM or any such other person, as the case may be (either alone or
through or together with any other subsidiary), owns, directly or indirectly,
50% or more of the capital stock, the holders of which are generally entitled
to vote for the election of the board of directors or other governing body of
such corporation or other legal entity.
Section 7.9. Personal Liability. This Agreement shall not create or be
deemed to create or permit any personal liability or obligation on the part
of any direct or indirect stockholder of ANYD, or SHARECOM or any officer,
director, employee, agent, representative or investor of any party hereto.
Section 7.10. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder, including its failure to take all actions as are necessary on its
part to the consummation of the Merger, will cause irreparable injury to the
other parties for which damages, even if available, will not be an adequate
remedy. Accordingly, each party hereby consents to the issuance of injunctive
relief by any court of competent jurisdiction to compel performance of such
party's obligations and to the granting by any court of the remedy of
specific performance of its obligations hereunder; provided, however, that,
if a party hereto is entitled to receive any payment or reimbursement of
expenses pursuant to Sections 6.3(a), (b) or (c), it shall not be entitled to
specific performance to compel the consummation of the Merger.
Section 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
In Witness Whereof, each of the parties has caused this Agreement to be duly
executed on its behalf as of the day and year first above written.
SHARECOM, INC.
By:/s/ Brad Nordling
Name: Brad Nordling
Title: President
ANONYMOUS DATE CORP.
By:William Somers
Name: William Somers MD
Title: President
ANYD DISCLOSURE SCHEDULE
Schedule 2.1 Organization See Amended
Articles/Bylaws/Minutes
Schedule 2.6 Consents & Approvals None Required
Schedule 2.7 No Default Not Applicable
Schedule 2.8 No Undisclosed Liability None Exist
Schedule 2.9 Litigation None Exist
Schedule 2.10 Compliance with Applicable Law Not Applicable - full
disclosed in 10KSB
Schedule 2.11 Employee Benefit Plans Section 2.11(a) Not Applicable -
None Exist
Section 2.11(b) No Benefit Plan Exist
Section 2.11( c)No Options Exist
Section 2.11(d) No Agreements Exist
Schedule 2.12 Environmental Laws and Regs. Not Applicable
Schedule 2.13 Tax Matters None Exist
Schedule 2.14 Title to Property None Exist
Schedule 2.15 Intellectual Property None Exist - See Recent Assignment
Effective Concurrent herewith.
Schedule 2.16 Insurance None Exist
Schedule 2.17 Vote Required See Shareholder Meeting
Certificate
Schedule 2.18 Tax Treatment Not Applicable
Schedule 2.19 Affiliates William Somers
James Beecham
Schedule 2.20 Certain Business Practices None Exist
Schedule 2.21 Insider Interest None Exist
Schedule 2.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.1 Conduct of Business See Amended & Restated Articles
SHARECOM DISCLOSURE SCHEDULE
Schedule 3.2(b) Subsidiary Stock None Exist
Schedule 3.2(c) Capital Stock Rights None Exist other than as in
Articles
Schedule 3.2(d) Securities conversions None Exist
Schedule 3.2 (f) Subsidiaries None Exist
Schedule 3.6 Consents & Approvals None Required
Schedule 3.7 No Default Not Applicable
Schedule 3.8 No Undisclosed Liability None Exist
Schedule 3.9 Litigation None Exist
Schedule 3.10 Compliance with Applicable Law Not Applicable - full
disclosed in 10KSB
Schedule 3.11 Employee Benefit Plans Section 3.11( c)No Options Exist
Section 3.11(e) No Agreements Exist
Schedule 3.12 Environmental Laws and Regs Not Applicable
Schedule 3.13 Tax Matters None Exist
Schedule 3.14 Title to Property None Exist
Schedule 3.15(b) Intellectual Property None Exist
Schedule 3.16 Insurance None Exist
Schedule 3.17 Vote Required See Shareholder Meeting
Certificate
Schedule 3.18 Tax Treatment Not Applicable
Schedule 3.19 Affiliates Brad Nordling
Lynda Nordling
Jim Dobbs
Bill Alleman
Doug Marrison
Schedule 3.20 Certain Business Practices None Exist
Schedule 3.21 Insider Interest None Exist
Schedule 3.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.2 Conduct of Business See Amended & Restated Articles
APPENDIX B
SHARECOM, INC.
FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
SHARECOM, INC.
FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
INDEX
PAGE
NUMBER
Independent auditors' report 1
Balance sheets 2
Statements of operations 3
Statement of stockholders' equity (deficiency) 4
Statements of cash flows 5
Notes to financial statements 6 - 11
INDEPENDENT AUDITORS' REPORT
TO THE BOARD OF DIRECTORS AND STOCKHOLDERS OF
SHARECOM, INC.
We have audited the accompanying balance sheets of ShareCom, Inc. as of
December 31, 2000 and 1999, and the related statements of operations,
stockholders' equity (deficiency) and cash flows for the years then ended.
Our responsibility is to express an opinion on these financial statements
based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining,
on a test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of ShareCom, Inc. as of
December 31, 2000 and 1999, and the results of its operations and its cash
flows for the years then ended in conformity with accounting principles
generally accepted in the United States.
MERDINGER, FRUCHTER, ROSEN & CORSO, P.C.
Certified Public Accountants
Los Angeles, California
June 25, 2001
BALANCE SHEETS
December 31,
2000 1999
ASSETS
CURRENT ASSETS
Cash and cash equivalents $288 $3,604
Accounts receivable, net of allowance for
doubtful accounts of $7,000 46,208 -
Inventory 12,244 -
------- ------
Total current assets 58,740 3,604
Property and equipment, net of accumulated
depreciation of $7,115 and $855 41,125 7,695
Intangible assets, net of accumulated amortization
of $6,225 31,125 -
-------- --------
TOTAL ASSETS $130,990 $11,299
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
CURRENT LIABILITIES
Accounts payable and accrued expenses $70,618 $14,500
Due to officer 55,989 12,482
--------- --------
Total liabilities 126,607 26,982
--------- --------
Commitments and contingencies - -
STOCKHOLDERS' EQUITY (DEFICIENCY)
Common stock - no par value; 10,000 shares 24,000 12,000
authorized; 1,000 issued and outstanding
Accumulated deficit (19,617) (27,683)
--------------------
Total stockholders' equity (deficiency) 4,383 (15,683)
--------------------
TOTAL LIABILITIES AND STOCKHOLDERS'
EQUITY (DEFICIENCY) $130,990 $11,299
====================
SHARECOM, INC.
STATEMENTS OF OPERATIONS
For the Year Ended
December 31,
2000 1999
REVENUE, net $380,835 $87,817
COST OF GOODS SOLD 250,832 69,948
---------------------
GROSS PROFIT 130,003 17,869
---------------------
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Domain fees 2,429 -
Outside sevices 27,187 -
Insurance expense 1,873 -
Bad debt expense 7,000 -
Depreciation and amortization expense 12,485 855
Professional fees 8,295 4,952
Travel and entertainment expense 14,605 18,114
Rent expense 12,000 12,000
Advertising expense 6,906 1,275
Other general and administrative expenses 27,588 8,084
---------------------
Total selling, general and administrative expenses 120,368 45,280
---------------------
INCOME (LOSS) FROM OPERATIONS 9,635 (27,411)
OTHER EXPENSES
Interest expense (1,569) (272)
---------------------
INCOME (LOSS) BEFORE PROVISION FOR INCOME TAXES 8,066 (27,683)
PROVISION FOR INCOME TAXES - -
--------------------
NET INCOME (LOSS) $8,066 $(27,683)
====================
SHARECOM, INC.
STATEMENT OF STOCKHOLDERS' EQUITY (DEFICIENCY)
FOR THE YEARS ENDED DECEMBER 31, 2000 AND 1999
Total
Stockholders
Common Stock Accumulated ' Equity
Shares Amount Deficit (Deficiency)
Balance at January 1, 1999
(Inception) - $- $- $-
Net Loss for the year ended
December 31, 1999 - - (27,683) 27,683)
Capital contributions 1,000 12,000 - 12,000
-----------------------------------------
Balance at December 31, 1999 1,000 12,000 (27,683) (15,683)
Net income for the year ended
December 31, 2000 - - 8,066 8,066
Capital contributions - 12,000 - 12,000
----------------------------------------
Balance at December 31, 2000 1,000 $24,000 $ (19,617) $ 4,383
========================================
SHARECOM, INC.
STATEMENTS OF CASH FLOWS
For the Year Ended
December 31,
2000 1999
CASH FLOW FROM OPERATING ACTIVITIES
Net income (loss) $ 8,066 $(27,683)
Adjustments to reconcile net loss to net cash
(used in) provided by operating activities:
Depreciation and amortization expense 12,485 855
Bad debt expense 7,000 -
Rent expense 12,000 12,000
Changes in certain assets and liabilities:
Increase in accounts receivable (53,208) -
Increase in inventory (12,244) -
Decrease in accounts payable and accrued expenses 56,118 14,500
--------------------
Total cash provided by (used in) operating activities 30,217 (328)
--------------------
CASH FLOWS FROM INVESTING ACTIVITIES
Increase in property and equipment (39,690) (8,550)
Increase in intangible assets (37,350) -
-------------------
Total cash used in investing activities (77,040) (8,550)
-------------------
CASH FLOWS FROM FINANCING ACTIVITIES
Increase (decrease) in due to officer 43,507 12,482
-------------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (3,316) 3,604
CASH AND CASH EQUIVALENTS - BEGINNING OF YEAR 3,604 -
-------------------
CASH AND CASH EQUIVALENTS - END OF YEAR $ 288 $ 3,604
===================
CASH PAID DURING THE YEAR FOR:
Interest expense $ - $ -
===================
Income taxes $ - $ -
===================
NON CASH FINANCING ACTIVITIES:
During the years ended December 31, 2000 and 1999, the Company had $12,000 of
rent expense contributed by a Shareholder of the Company, (see Note 2).
SHARECOM, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
a) Basis of Presentation
The accompanying financial statements include the accounts of
ShareCom, Inc. (the "Company"), organized under the laws of the
State of Illinois on June 7, 2000. For the period from January
1, 1999 to June 6, 2000 the Company operated under the name 2
Way Talk, an unincorporated business.
b) Line of Business
The Company is an Internet e-commerce company selling electronic
products to end consumers through its 2WayTalk.com web site and
its WeatherRadios.com website.
c) Use of Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the
reported amounts of revenue and expenses during the periods
presented. Actual results could differ from those estimates.
d) Revenue Recognition
Revenue is recognized based upon the accrual method of
accounting. Revenue is recorded at the time of the sale,
usually upon shipment of the product.
e) Cash and Cash Equivalents
The Company considers all highly liquid investments purchased
with original maturities of three months or less to be cash
equivalents.
f) Concentration of Credit Risk
The Company places its cash in what it believes to be credit-
worthy financial institutions. However, cash balances may
exceed FDIC insured levels at various times during the year.
g) Inventory
Inventory is stated at the lower of cost or market utilizing the
first-in, first-out method ("FIFO"). Inventory consists mainly
of finished goods.
h) Property and Equipment
Property and equipment is stated at cost. Depreciation is
computed using the straight-line method based upon the estimated
useful lives of the various classes of assets.
SHARECOM, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
i) Intangible Assets
Intangible assets consist of the Company's costs for the
purchase of its domain names. The costs are being amortized
over their estimated useful lives of three years.
The Company periodically reviews the recoverability of the asset
in accordance with SFAS 121, "Accounting for the Impairment of
Long-Lived Assets and Assets to be Disposed of". The Company
believes the asset is fully recoverable at December 31, 2000.
j) Income Taxes
Income taxes are provided for based on the liability method of
accounting pursuant to Statement of Financial Accounting
Standards ("SFAS") No. 109, "Accounting for Income Taxes". The
liability method requires the recognition of deferred tax assets
and liabilities for the expected future tax consequences of
temporary differences between the reported amount of assets and
liabilities and their tax basis.
k) Advertising Costs
Advertising costs are expensed as incurred and included in
selling, general and administrative expenses. For the years
ended December 31, 2000 and 1999, advertising expense amounted
to $6,906 and $1,275, respectively.
l) Fair Value of Financial Instruments
The Company's financial instruments consist of cash, accounts
receivable, inventory, accounts payable and accrued expenses.
The carrying amounts of cash, accounts receivable and accounts
payable and accrued expenses approximate fair value due to the
highly liquid nature of these short-term instruments.
m) Long-Lived Assets
SFAS No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to be Disposed of" requires
that long-lived assets be reviewed for impairment whenever
events or changes in circumstances indicate that the carrying
amount of an asset may not be recoverable. The Company has
adopted this statement and has determined that recognition of an
impairment loss for applicable assets of continuing operations
is not necessary.
SHARECOM, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
n) Stock-Based Compensation
SFAS No. 123, "Accounting for Stock-Based Compensation",
encourages, but does not require companies to record
compensation cost for stock-based employee compensation plans at
fair value. The Company has chosen to continue to account for
stock-based compensation using the intrinsic value method
prescribed in Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees", and related
Interpretations. Accordingly, compensation cost for stock
options is measured as the excess, if any, of the quoted market
price of the Company's stock at the date of the grant over the
amount an employee must pay to acquire the stock.
o) Comprehensive Income
SFAS No. 130, "Reporting Comprehensive Income" establishes
standards for the reporting and display of comprehensive income
and its components in the financial statements. As of December
31, 2000 and 1999, the Company has no items that represent
comprehensive income and, therefore, has not included a schedule
of comprehensive income in the financial statements.
p) Computer Software Costs
Statement of Position ("SOP") No. 98-1 specifies the appropriate
accounting for costs incurred to develop or obtain computer
software for internal use. The new pronouncement provides
guidance on which costs should be capitalized, and over what
period such costs should be amortized and what disclosures
should be made regarding such costs. This pronouncement is
effective for fiscal years beginning after December 15, 1998,
but earlier application is acceptable. Previously capitalized
costs will not be adjusted. The Company believes that it is
already in substantial compliance with the accounting
requirements as set forth in this new pronouncement, and
therefore believes that adoption will not have a material effect
on financial condition or operating results.
NOTE 2 - RELATED PARTY TRANSACTIONS
As of December 31, 2000 and 1999, the Company had the following
related party transactions with a stockholder of the Company:
SHARECOM, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
NOTE 2 - RELATED PARTY TRANSACTIONS (continued)
Office and Administrative Expense
a) The Company neither owns nor leases any real or personal property. A
stockholder provided office services for $1,000 per month, for the years
ending December 31, 2000 and 1999 under an agreement expiring on January
2002. The cost of these office services, totaling $12,000 per year, has been
recorded in the statement of operations, with a corresponding contribution to
capital as of December 31, 2000 and 1999.
Due to Related Parties
b) As of December 31, 2000 and 1999, the Company has a payable
due to an officer totaling $55,989 and $12,482, respectively.
These amounts represent advances made to the Company by its
Chief Executive Officer ("CEO") for various expenses. This
payable bears interest at the rate of 5% per annum.
NOTE 3 - PROPERTY AND EQUIPMENT
Property and equipment is summarized as follows:
December 31,
2000 1999
Computer hardware and equipment $ 23,580 $ 8,550
Computer software 24,660 -
--------------------
48,240 8,550
Less: Accumulated Depreciation (7,115) (855)
--------------------
Property and Equipment, net $ 41,125 $ 7,695
====================
Depreciation expense for the years ended December 31, 2000 and 1999
was $7,115 and $855, respectively.
.
NOTE 4 - COMMITMENTS AND CONTINGENCIES
The Company leases office space in Chicagi, Illinois under an
operating lease expiring January 2002. Minimum monthly payments
under the lease total $1,000. (See note 2)
Rent expense under operating leases for the years ended December
31, 2000 and 1999, was approximately $12,000 and $12,000,
respectively. (See note 2)
SHARECOM, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
NOTE 5 - INCOME TAXES
The components of the provision for income taxes are as follows:
December 31,
2000 1999
Current Tax Expense
U.S. Federal $ - $ -
State and Local - -
Total Current - -
Deferred Tax Expense
U.S. Federal - -
State and Local - -
Total Deferred - -
Total Tax Provision (Benefit) from
Continuing Operations $ - $ -
The reconciliation of the effective income tax rate to the Federal
statutory rate is as follows for the years ended December 31, 2000
and 1999:
Federal Income Tax Rate ( 34.0)%
Effect of Valuation Allowance 34.0%
Effective Income Tax Rate 0.0%
At December 31, 2000 and 1999, the Company had net carryforward
losses of approximately $19,617 and $27,683, respectively. Because
of the current uncertainty of realizing the benefit of the tax
carryforwards, a valuation allowance equal to the tax benefit for
deferred taxes has been established. The full realization of the
tax benefit associated with the carryforwards depends predominantly
upon the Company's ability to generate taxable income during the
carryforward period.
Deferred tax assets and liabilities reflect the net tax effect of
temporary differences between the carrying amount of assets and
liabilities for financial reporting purposes and amounts used for
income tax purposes. Significant components of the Company's
deferred tax assets and liabilities are as follows:
SHARECOM, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 2000 AND 1999
NOTE 5 - INCOME TAXES (continued)
December 31,
2000 1999
Deferred Tax Assets
Loss Carryforwards $ 9,400 $ -
Less: Valuation Allowance ( 9,400) (-)
-----------------------
Net Deferred Tax Assets $ - $ -
=======================
Net operating loss carryforwards expire starting in 2007 through
2014. Per year availability is subject to change of ownership
limitations under Internal Revenue Code Section 382.
NOTE 6 - SUBSEQUENT EVENTS
On June 1, 2001, the Company entered into an agreement and plan of
merger with Anonymous Data Corporation ("ANYD"), a Nevada
corporation. Following the merger, ANYD shall continue as the
surviving corporation, shall continue to be governed by the laws of
its incorporation and the separate corporate existence of the
Company shall cease. At the time of the merger each share of the
Company's common stock shall be converted into 14,000 shares of
ANYD's common stock. As of June 25, 2001, this agreement has not
been finalized.