AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") entered into as of this
28th day of May 2003, by and among ETI Corporation, a Nevada corporation
("ETI"), New ETI, Inc., a California corporation ("Newco"), Paul Lanham
("Lanham"), solely for purposes of ETI's representations and warranties and
United Communications Hub, Inc., a California corporation (the "UC Hub"). ETI,
Newco, UC Hub and Lanham are referred to collectively herein as the "Parties".
WHEREAS, ETI owns 100% of the outstanding capital stock of the Newco;
WHEREAS, ETI desires to merge Newco into UC Hub in a tax-free
reorganization pursuant to Section 368(a)(1)(A) of the Internal Revenue Code
(the "Code") through which Newco shall merge into UC Hub and the common
stockholders of UC Hub shall receive preferred stock of ETI in exchange for 100%
of the capital stock of UC Hub; and
WHEREAS, this Agreement provides for various rights and responsibilities.
NOW, THEREFORE, in consideration of the mutual promises made herein, and in
consideration of the representations, warranties, and covenants contained
herein, the Parties adopt this plan of merger and agree as follows:
1. DEFINITIONS. As used in this Agreement, the following words and phrases
have the definitions which follow:
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities, as
defined, obligations, Taxes, as defined, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and
expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction that forms or could
form the basis for any specified consequence.
"Newco" has the meaning set forth in the preface above.
"Certificate of Merger" has the meaning set forth in Section 2.02.
"Closing" has the meaning set forth in Section 2.02 below.
1
"Closing Date" has the meaning set forth in Section 2.02 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commissioner" means the Commissioner of Corporations of the State of
California.
"Dissenting Shares" has the meaning set forth in Section 2.04.
"Effective Time" has the meaning as set forth Section 2.03(i).
"ETI" has the meaning set forth in the preface above.
"Exchange Act" means the Securities Exchange Act of 1934.
"Form 10-KSB" shall mean the Form 10-KSB of ETI for the year ended
December 31, 2002 which has been filed with the SEC, as defined.
"Form 10-QSB" shall mean the Form 10-QSB of ETI for the quarter ended
March 31, 20031997 which has been or will be filed with the SEC.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Governmental Entity" means any arbitrator, court, nation, government,
any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, government.
"Investigation" means any preliminary or other inquiry or any informal
or formal investigation being conducted by any federal, state, or
local government including any administrative agency.
"Knowledge" means actual knowledge after reasonable investigation.
"Liabilities" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether
due or to become due), including any liability for Taxes, as defined.
"Material Adverse Effect" means any event, change or occurrence which,
individually or together with any other event, change, or occurrence,
insofar as can reasonably be foreseen, could result in a material
adverse effect on ETI, Newco or UC Hub, as the case may be, or
material adverse change in the business, properties, assets, financial
condition,
2
results of operations, management or future prospects of ETI, Newco or
UC Hub, as the case may be, since December 31, 2002. "Merger" has the
meaning set forth in Section 2.01.
"Merger Consideration" has the meaning set forth in Section 2.03(b).
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
quantity and frequency).
"Parties" has the meaning set forth in the preface above.
"Permit" means the Permit issued by the Commissioner authorizing the
issuance of the Merger Consideration pursuant to the terms and
conditions of this Agreement.
"Permit Application" means the Application for Permit under Section
25121 of the California Corporations Code to be filed in accordance
with Section 7.07 of this Agreement with the California Department of
Corporations, including the disclosure documents relating thereto.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a governmental
entity (or any department, agency, or political subdivision thereof).
"Preferred Stock" means the Series A Convertible Preferred stock with
S.000 par value, of ETI.
"Securities Act" means the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
"SEC Documents" means registration statements, periodic reports and
other documents filed by ETI with the SEC.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock
or has the power to vote or direct the voting of sufficient securities
to elect a majority of the directories.
"Surviving Corporation" has the meaning set forth in Section 2.01.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes
under Section 59A of the Code), customs duties, capital stock,
franchise, profits, withholding, social security (or similar),
unemployment, disability,
3
real property, personal property, sales, use, transfer, registration,
value added, alternative or add-on minimum, estimated, or other tax of
any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not. "Tax Return" means any return,
declaration, report, claim for refund, or information or statement
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"UC Hub" has the meaning set forth in the preface above.
"UC Hub Shares" means the common stock, no par value of UC Hub.
2. BASIC TRANSACTION.
2.01 The Merger. On and subject to the terms and conditions of this
Agreement, Newco shall merge with and into UC Hub (the "Merger") at the
Effective Time, as defined. UC Hub shall be the corporation surviving the
Merger (the "Surviving Corporation").
2.02 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of UC Hub's
counsel in Encino, California at 9:30 a.m., local time, on the day
following issuance of the Permit, subject to the satisfaction or waiver of
all conditions to the obligation of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to
actions, the respective Parties will take at the Closing itself), or such
other date as the Parties may mutually determine (the "Closing Date"). At
the Closing, (i) UC Hub shall deliver to ETI and Newco the various
certificates, instruments and documents referred to in this Agreement, (ii)
the UC Hub common stockholders shall deliver to Newco the instruments
referred to in this Agreement including certificates representing 100% of
UC Hub Shares duly executed with medallion guarantees, provided, however,
that if all certificates of UC Hub stockholders who do not exercise
dissenters rights are not delivered at the Closing, the Parties will
arrange to escrow the Preferred Stock to be delivered to such persons
pending their delivery, (iii) ETI and Newco shall deliver to UC Hub and its
common stockholders the various certificates, instruments, and documents
referred to in Sections 5.02 and 5.03. (iv) Newco shall deliver to the
common stockholders of UC Hub the Preferred Stock certificates referred to
in Section 2.03 , subject to the proviso in clause (ii) above, and (v) ETI
and Newco shall file with the Secretary of State of California an Agreement
of Merger and Certificates of Approval in the form attached hereto as
Exhibit A (the " Merger Documents").
4
2.03 Effect of the Merger.
(a) General. The Merger shall become effective at the time (the
"Effective Time") that Newco and UC Hub file the Merger Documents with the
Secretary of State of California. The Merger shall have the effect set
forth in the California Corporations Code. The Surviving Corporation may,
at any time after the Effective Time, take any action (including executing
and delivering any documents) in the name and on behalf of either the
Surviving Corporation or Newco in order to carry out and effectuate the
transactions contemplated by the Agreement.
(b) Conversion of the UC Hub Shares. At and as of the Effective Time,
each eight UC Hub Shares shall be converted into the right to receive an
amount equal to five shares of Preferred Stock (the "Merger
Consideration"), having the rights and preferences contained on Exhibit B,
and ETI shall receive UC Hub Shares in an amount equal to the number owned
by those who do not own Dissenting Shares. Following the Merger, the
outstanding Newco common stock shall be cancelled. At the Closing, Newco
shall deliver to the stockholders of UC Hub the stock certificates to which
they are entitled. If any UC Hub Shares are not delivered, the Parties
shall arrange to escrow the applicable Preferred Stock certificates as
provided in Section 2.02.
(c) UC Hub Series H Preferred Stock. The UC Hub Series H Preferred
Stock, unless voluntarily converted into UC Hub Shares, shall remain
outstanding and the rights and preferences shall not be impaired.
(d) Restrictions on Sale. The common stock issuable upon conversion of
the Preferred Stock shall only be saleable during the first 12 months
following the Closing in an amount equal to 1/12 each month for each
stockholder.
2.04 Dissenting Shares.
(i) Notwithstanding anything in this Agreement to the contrary, UC Hub
Shares that are issued and outstanding immediately prior to the Effective Time
and which are held by holders of UC Hub who have demanded and perfected their
demands for appraisal of such UC Hub Shares in the time and manner provided in
Chapter 13 of the California Corporations Code and, as of the Effective Time,
have neither effectively withdrawn nor lost their rights to such appraisal and
payment under the California Corporations Code (the "Dissenting Shares") shall
not be converted as described in Section 2.03, but shall, by virtue of the
Merger, be entitled to only such rights as are granted by Chapter 13 of the
California Corporations Code; provided, however, that if such holder shall have
failed to perfect or shall have effectively withdrawn or lost his, her or its
right to appraisal and payment under the California Corporations Code, such
holder's UC Hub Shares shall thereupon be deemed to have been converted, at the
Effective Time, as described in Section 2.03, into the right to receive the
applicable Merger Consideration set forth in such provisions, without any
interest thereon.
5
(ii) UC Hub shall give the ETI (1) prompt notice of any demands for
appraisal pursuant to Chapter 13 of the California Corporations Code received by
UC Hub, withdrawals of such demands, and any other instruments served pursuant
to the California Corporations Code and received by the UC Hub and (2) the
opportunity to direct all negotiations and proceedings with respect to demands
for appraisal under the Californian Corporations Code. UC Hub shall not, except
with the prior written consent of ETI or as otherwise required by applicable
law, make any payment with respect to any such demands for appraisal or offer to
settle or settle any such demands.
3. REPRESENTATIONS AND WARRANTIES OF ETI AND NEWCO. As a material
inducement to UC Hub and its stockholders to enter into this Agreement or
approve the Merger as may be applicable, ETI, Newco and Lanham represent and
warrant that the statements contained in this Section 3 are correct and complete
as of the date of this Agreement and shall be correct and complete as of the
Closing Date.
3.01. Organization. ETI and Newco are corporations duly organized, validly
existing and in good standing under the laws of the jurisdiction of their
respective incorporation, and each has all requisite power and authority to own
and lease their respective properties and assets and to conduct their respective
businesses as now conducted. Newco was organized under California law on April
30, 2003 and has not engaged in any business transactions or incurred any
liabilities except for the liabilities contained in this Agreement.
3.02. Qualifications to Do Business. Schedule 3.02 sets forth each
jurisdiction in which ETI and Newco are qualified to do business as a foreign
corporation. Neither the nature of the business carried on by ETI or Newco, nor
the properties owned or leased by either of them, require them to be qualified
to do business as a foreign corporation in any other jurisdiction, except in any
case where a failure to so qualify would not have a Material Adverse Effect on
ETI or the Newco.
3.03 Capitalization. The authorized capitalization of ETI on the Closing
Date shall consist of 100,000,000 shares of common stock, $0.001 par value, with
one vote per share; and 20,000,000 shares of preferred stock, $.001 par value,
of which 1,987,692 shares of common stock shall be issued and outstanding. Of
the outstanding shares of common stock, 1,396,004 shall be free trading and (i)
not subject to any restrictions on public sale and (ii) are not "control shares"
which would preclude transferees from immediately selling the shares under Rule
144 of the Securities Act, prior to issuance and cancellation of shares as set
forth in Section 2.03 of this Agreement. All issued and outstanding shares of
ETI are legally issued, fully paid, and non-assessable and not issued in
violation of the preemptive or other right of any person. There are no dividends
or other amounts due or payable with respect to any of the shares of capital
stock of ETI, including, but not limited to, any amounts due or payable to any
stockholder of ETI pursuant to the exercise by any ETI stockholder of appraisal
rights. Immediately prior to the Closing Date, there will be approximately
1,987,692 shares of ETI's common stock issued and
6
outstanding on a fully diluted basis. Except as disclosed in ETI's SEC Documents
or this Agreement, as of the date of this Agreement and as of the Closing Date,
there are no: outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other contracts or
commitments that could require ETI or Newco to issue, sell, or otherwise cause
to become outstanding any of their capital stock, outstanding or authorized
stock appreciation, phantom stock, profit participation, or similar rights with
respect to ETI or Newco, or voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of ETI or Newco.
3.04 Authorization. Each of ETI and Newco has all requisite power and
authority to enter into this Agreement and to carry out their respective
obligations hereunder. The board of directors of each of ETI and Newco have
approved the execution and delivery of this Agreement and the transactions
contemplated by this Agreement including the Merger in accordance with Nevada,
Delaware and California law and Newco's articles of incorporation and bylaws.
The stockholders of ETI have approved its change of domicile to Delaware and do
not have to approve the Merger. ETI, as sole stockholder of Newco, has approved
the Merger, and no other corporate proceedings on the part of ETI or Newco are
necessary to authorize the execution, delivery, and performance, and the
resolutions approving such Merger are irrevocable. This Agreement has been duly
executed and delivered by each of ETI and Newco and constitutes their valid and
binding obligations, enforceable against each of them in accordance with its
terms.
3.05. No Conflict or Violation. The execution, delivery, and performance of
this Agreement by ETI and Newco does not and shall not: (a) violate or conflict
with any provision of their respective articles of incorporation, bylaws, or
other governing document of either of them (b) violate any provision of law
(including any law pertaining to the issuance of securities) or any order,
judgment, or decree of any court or other governmental or regulatory authority
applicable to ETI or Newco; (c) violate or result in a breach of or constitute a
default under any contract, lease, loan agreement, mortgage, security agreement,
indenture, or other agreement or instrument to which either of them is a party
or by which either of them is bound or to which any of their properties or
assets is subject or which would prevent the transactions contemplated by this
Agreement from being consummated.
3.06. Consents and Approvals. No authorization, consent or approval of,
notice to, or filing with, any public body or governmental authority or any
other person is necessary or required in connection with the execution and
delivery by ETI or Newco of this Agreement or the performance by either of them
and of their respective obligations hereunder, except for the filings required
to reincorporate in Delaware, consummate the Merger and the fairness hearing
referred to in Section 7.08.
3.07. Absence of Undisclosed Liabilities. Since December 31, 2002, neither
ETI nor Newco has incurred any liabilities or obligations (whether absolute,
accrued, contingent or otherwise) of any nature, except: (i) liabilities,
obligations or contingencies which were incurred after December 31, 2002 and
were incurred in the ordinary course of business and consistent with past
practices;
7
(ii) liabilities, obligations or contingencies which (1) would not, in the
aggregate, have a Material Adverse Effect on ETI or Newco, or (2) have been
discharged or paid in full prior to the date hereof; and (iii) liabilities and
obligations which are of a nature not required to be reflected in the financial
statements of ETI or Newco prepared in accordance with GAAP consistently applied
and which were incurred in the ordinary course of business.
3.08. ETI Assets and Liabilities. Immediately prior to the Closing Date,
ETI shall have no material assets and no liabilities, other than those specified
in ETI's last periodic report filed with the SEC and delivered to UC Hub, and
all expenses related to this Agreement or otherwise shall have been paid.
3.09. Filings with the SEC. ETI has made all filings with the SEC that it
has been required to make under the Securities Act and the Exchange Act. All
documents required to be filed as exhibits to the SEC Documents have been so
filed, and all material contracts so filed as exhibits are in full force and
effect, except those which have expired in accordance with their terms, and
neither ETI nor any of its subsidiaries is in material default. Each of ETI's
SEC Documents has complied in all material respects with the Securities Act and
the Exchange Act in effect as of their respective dates. None of ETI's SEC
Documents including the Form 10-KSB and Form 10-QSB, as of their respective
dates, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
3.10. Financial Statements.
(a) Included in the Form 10-KSB are the audited balance sheet of ETI
as of December 31, 2002, and the related statements of operations,
stockholders' equity (deficit), and cash flows for the fiscal year ended
December 31, 2002, including the notes thereto, and the accompanying report
of the company's independent certified public accountant.
(b) The financial statements of ETI contained in the SEC Documents
including the Form 10-QSB have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved as explained in the notes to such financial statements. The ETI
financial statements present fairly, in all material respects, as of their
respective dates, the financial position of ETI. ETI did not have, as of
the date of any such financial statements, except as and to the extent
reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected therein in accordance
with generally accepted accounting principles, and all assets reflected
therein present fairly the assets of ETI in accordance with generally
accepted accounting principles.
8
(c) ETI has filed or shall file as of the Closing Date its tax returns
required to be filed for its two most recent fiscal years. All such returns
and reports are accurate and correct in all material respects. ETI has no
liabilities with respect to the payment of any federal, state, county,
local, or other taxes (including any deficiencies, interest, or penalties)
accrued for or applicable as of the Closing Date, and no deficiency
assessment or proposed adjustment of any such tax return is pending,
proposed or contemplated. To the Knowledge of ETI, none of such income tax
returns has been examined or is currently being examined by the Internal
Revenue Service and no deficiency assessment or proposed adjustment of any
such return is pending, proposed or contemplated. ETI has not made any
election pursuant to the provisions of any applicable tax laws (other than
elections that relate solely to methods of accounting, depreciation, or
amortization) that could reasonably be expected to have a Material Adverse
Effect on ETI. There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any tax return of ETI.
3.11. Information. The information concerning ETI set forth in this
Agreement is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading. ETI shall cause the schedules delivered by it
pursuant hereto and the instruments delivered to UC Hub hereunder to be updated
after the date hereof up to and including the Closing Date.
3.12. Absence of Certain Changes or Events. Except as set forth in this
Agreement or the schedules hereto, since the date of the most recent ETI balance
sheet described in Section 3.10:
(a) There has not been any event which could be reasonably expected to
have a Material Adverse Effect on ETI;
(b) ETI has not (i) amended its articles of incorporation or bylaws;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary or material considering the business of ETI;
(iv) made any material change in its method of accounting; (v) entered into
any oral or written agreement, or modified the terms of any existing
contract or agreement, or entered into or modified any other material
transactions other than those contemplated by this Agreement; (vi) made any
accrual or arrangement for or payment of bonuses or special compensation of
any kind or any severance or termination pay to any present or former
officer or employee; (vii) increased the rate of compensation payable or to
become payable by it to any of its officers or directors or any of its
employees whose monthly compensation exceeds $1,000; or (viii) made any
increase in any profit-sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan,
9
payment, or arrangement made to, for, or with its officers, directors, or
employees. In addition, ETI (ix) has no Liability (defined in Section
3.12(c)) and there is no Basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand
against any of them giving rise to any Liability.
(c) Except as set forth herein, ETI has not (i) granted or agreed to
grant any options, warrants, or other rights for its stocks, bonds, or
other corporate securities calling for the issuance thereof, (ii) borrowed
or agreed to borrow any funds or incurred, or become subject to, any
material obligation or liability whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due (any a "Liability" or "Liabilities") except Liabilities incurred in the
ordinary course of business; (iii) paid any material obligation or
Liability other than current Liabilities reflected in or shown on the most
recent ETI balance sheet and current liabilities incurred since that date
in the ordinary course of business; (iv) sold or transferred, or agreed to
sell or transfer, any of its material assets, properties, or rights (except
assets, properties, or rights not used or useful in its business which, in
the aggregate have a value of less than $5,000 or canceled, or agreed to
cancel, any debts or claims (except debts and claims which in the aggregate
are of a value of less than $5,000); (v) made or permitted any amendment or
termination of any contract, agreement, or license to which it is a party
if such amendment or termination is material, considering the business of
ETI; or (vi) issued, delivered, or agreed to issue or deliver any stock,
bonds, or other corporate securities including debentures (whether
authorized and unissued or held as treasury stock); and
(d) ETI has not become subject to any law or regulation which could
reasonably be expected to have a Material Adverse Effect on ETI
3.13. Litigation and Proceedings. There are no actions, suits,
administrative or other proceedings, investigations, inquiries or similar
governmental proceedings pending or, to the Knowledge of ETI or Lanham,
threatened by or against ETI or which are or could reasonably expected to have a
Material Adverse Effect on ETI, at law or in equity, before any Governmental
Entity. Neither ETI nor Lanham has any Knowledge of any default by ETI with
respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or instrumentality.
3.14. Compliance With Laws and Regulations. ETI has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance could not
reasonably be expected to have a Material Adverse Effect on ETI. To the
Knowledge of ETI and Lanham, the consummation of this transaction shall comply
with all applicable statutes and regulations, subject to the preparation and
filing of any forms required by state and federal securities laws, including the
California Corporate Disclosures Act.
10
3.15. Material Contract Defaults. ETI is not in default in any material
respect under the terms of any outstanding contract, agreement, lease, or other
commitment which could be reasonably expected to have a Material Adverse Effect
on ETI, and there is no event of default or other event which, with notice or
lapse of time or both, would constitute a default in any material respect under
any such contract, agreement, lease, or other commitment in respect of which ETI
has not taken adequate steps to prevent such a default from occurring.
3.16. Subsidiary. Except for Newco, ETI does not own, beneficially or of
record, any equity securities in any other entity. ETI does not have a
predecessor as that term is defined under generally accepted accounting
principles or Regulation S-X promulgated by the Securities and Exchange
Commission.
4. REPRESENTATIONS AND WARRANTIES OF UC HUB. UC Hub represents and warrants
to ETI and Newco that to its Knowledge, the statements contained in this Section
4 are correct and complete as of the date of this Agreement and shall be correct
and complete as of the Closing Date.
4.01 Organization. UC Hub is a corporation duly organized, validly existing
and in good standing under the laws of the State of California, and has all
requisite power and authority to own and lease its respective properties and
assets and to conduct its respective business as now conducted.
4.02 Qualifications to Do Business. Schedule 4.02 sets forth each
jurisdiction in which UC Hub is qualified to do business as a foreign
corporation. Neither the nature of the business carried on by UC Hub, nor the
properties owned or leased by it, require it to be qualified to do business as a
foreign corporation in any other jurisdiction, except in any case where a
failure to so qualify would not have a Material Adverse Effect on UC Hub.
4.03 Capitalization. The authorized capitalization of UC Hub consists of
50,000,000 UC Hub Shares of which 14,308,464 Shares are issued and outstanding;
and 5,000,000 shares of preferred stock with 2,561,864 shares of convertible
preferred stock designated as Series H Preferred Stock issued and outstanding.
In addition, UC Hub may sell additional Shares (i) in order to raise $350,000
and (ii) sell additional securities through Camden Securities, Inc. as disclosed
on Schedule 4.03. All issued and outstanding UC Hub Shares are legally issued,
fully paid, and non-assessable and not issued in violation of the preemptive or
other right of any person. There are no dividends or other amounts due or
payable with respect to any of the UC Hub Shares, except for any amounts due or
payable to any stockholder of UC Hub pursuant to the exercise by any UC Hub
stockholder of dissenters' rights. Except as disclosed on Schedule 4.03 to this
Agreement, there are no: outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require UC Hub to issue, sell, or otherwise
cause to become outstanding any of its capital stock outstanding or authorized
stock appreciation, phantom stock, profit participation, or similar rights with
respect to UC Hub, or voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of UC Hub.
11
4.04 Authorization. UC Hub has all requisite power and authority to enter
into this Agreement and to carry out its respective obligations hereunder,
subject to stockholder approval of the Merger and compliance with all applicable
Laws. The board of directors of UC Hub has approved the execution and delivery
of this Agreement and recommended the Merger contemplated by this Agreement to
the UC Hub common stockholders. This Agreement has been duly executed and
delivered by UC Hub and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms.
4.05 Information. The information concerning UC Hub set forth in this
Agreement and in the schedules delivered by UC Hub pursuant hereto is to the
best of its Knowledge complete and accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading. UC Hub shall cause the information
delivered by UC Hub pursuant hereto to ETI and Newco hereunder to be updated
after the date hereof up to and including the Closing Date.
4.06 No Conflict or Violation. The execution, delivery, and performance of
this Agreement by UC Hub does not and shall not: (a) violate or conflict with
any provision of its articles of incorporation, bylaws, or other governing
document (b) violate any provision of law (including any law pertaining to the
issuance of securities) or any order, judgment, or decree of any court or other
governmental or regulatory authority applicable to UC Hub; (c) violate or result
in a breach of or constitute a default under any contract, lease, loan
agreement, mortgage, security agreement, indenture, or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or which would prevent the transactions
contemplated by this Agreement from being consummated.
4.07 Absence of Undisclosed Liabilities. Except as disclosed on Schedule
4.07, since December 31, 2002, UC Hub has not incurred any liabilities or
obligations (whether absolute, accrued, contingent or otherwise) of any nature,
except: (i) liabilities, obligations or contingencies which were incurred after
December 31, 2002 and were incurred in the ordinary course of business and
consistent with past practices; and (ii) liabilities, obligations or
contingencies which (1) would not, in the aggregate, have a Material Adverse
Effect on UC Hub, or (2) have been discharged or paid in full prior to the date
hereof.
4.08 Litigation and Proceedings. Except as disclosed on Schedule 4.08,
there are no actions, suits, administrative or other proceedings,
investigations, inquiries or similar governmental proceedings pending or, to the
knowledge of UC Hub, threatened by or against UC Hub are or could reasonably
expected to have a Material Adverse Effect on UC Hub, at law or in equity,
before any Government Entity. UC Hub has no Knowledge of any default by UC Hub
with respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any Government Entity court, arbitrator, or governmental agency or
instrumentality.
4.09 Material Contract Defaults. Except as disclosed on Schedule 4.09, to
its
12
Knowledge, UC Hub is not in default in any material respect under the terms of
any outstanding contract, agreement, lease, or other commitment which could be
reasonably expected to have a Material Adverse Effect on UC Hub, and there is no
event of default or other event which, with notice or lapse of time or both,
would constitute a default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which UC Hub has not taken
adequate steps to prevent such a default from occurring.
4.10 Governmental Authorizations. UC Hub has all material licenses,
franchises, permits, and other governmental authorizations that are legally
required to enable it to conduct its business in all material respects as
conducted on the date of this Agreement. Except for compliance with federal and
state securities and corporation laws, as provided in this Agreement, no
authorization, approval, consent, or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection with
the execution and delivery by UC Hub of this Agreement and the consummation by
UC Hub of the transactions contemplated hereby.
4.11 Compliance With Laws and Regulations. UC Hub has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance could not
reasonably be expected to have a Material Adverse Effect on UC Hub. To the
Knowledge of UC Hub, the consummation of this Merger shall comply with all
applicable statutes and regulations, subject to the preparation and filing of
any forms required by state and federal securities laws.
4.12 Subsidiary. Except as disclosed on Schedule 4.12, UC Hub does not own,
beneficially or of record, any equity securities in any other entity. UC Hub
does not have a predecessor as that term is defined under generally accepted
accounting principles or Regulation S-X promulgated by the Securities and
Exchange Commission.
5. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF UC HUB TO CLOSE. The
obligations of UC Hub under this Agreement are subject to the following
conditions:
5.01 Stockholder Approval. The common stockholders of UC Hub must approve
the Merger in accordance with California law and UC Hub's articles of
incorporation and bylaws.
5.02 Accuracy of Representations. The representations and warranties made
by ETI and Newco in this Agreement were true when made and shall be true at the
Closing Date with the same force and effect as if such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement), and ETI and Newco shall have performed or complied
with all covenants and conditions required by this Agreement to be performed or
complied with by either or both of them prior to or at the Closing. UC Hub shall
be furnished with certificates, signed by duly authorized officers of ETI and
Newco and dated the Closing Date, to the foregoing effect.
13
5.03 Officer's Certificates. UC Hub shall have been furnished with
certificates dated the Closing Date and signed by ETI's chief executive officer
to the effect that to such officer's Knowledge, which may be based on
certificates of good standing, representations of a Governmental Entity, and
ETI's own documents and information:
(a) There are no actions, suits, administrative or other proceedings,
investigations, inquiries or similar governmental proceedings pending or,
to the Knowledge of ETI and Newco threatened by or against ETI or Newco or
which could reasonably be expected to have a Material Adverse Effect on ETI
or Newco, at law or in equity, before any Government Entity including any
which might result in an action to enjoin or prevent the consummation of
the transactions contemplated by this Agreement.
(b) This Agreement has been duly approved by ETI's and Newco's board
of directors, ETI as the sole stockholder of Newco has approved the
transactions contemplated by this Agreement, ETI does not need stockholder
approval, and this Agreement has been duly executed and delivered in the
name and on behalf of ETI and Newco by their duly authorized officer(s)
pursuant to, and in compliance with, authority granted by the board of
directors of ETI and Newco;
(c) There have been no Material Adverse Effect, as described in
Section 5.04 below relating to ETI or Newco up to and including the date of
the certificate;
(d) All conditions required by this Agreement have been met,
satisfied, or performed by ETI and Newco;
(e) All authorizations, consents, approvals, registrations, and/or
filings with any governmental body, agency, or court required in connection
with the execution and delivery of the documents by ETI and Newco have been
obtained and are in full force and effect or, if not required to have been
obtained, shall be in full force and effect by such time as may be
required; and
(f) ETI shall have reincorporated in the State of Delaware.
5.04 No Material Adverse Effect. Prior to the Closing Date, there shall
have been no event, change, or occurrence which, individually or together with
any other event, change, or occurrence, insofar as can reasonably be foreseen,
could result in a Material Adverse Effect on ETI or Newco.
14
5.05 Good Standings. UC Hub shall have received a certificate of good
standing from the appropriate authorities, dated as of the date within five days
prior to the Closing Date, certifying that ETI and Newco are each in good
standing as a corporation in the State of Delaware or California, as the case
may be.
5.06 New Officers and Directors. At the Closing, (i) ETI shall deliver the
resignations of the board of directors and officers; (ii) the individuals
specified on Schedule 5.06 shall have been nominated and appointed to the board
of directors of ETI subject to compliance with Rule 14f-1 under the Exchange
Act; and (iii) the new officers of ETI shall have been nominated and appointed
pursuant to Schedule 5.06. Lanham and Larry Wilcox shall act as sole directors
of ETI until it has complied with Rule 14f-1 at which time Lanham's resignation
shall be effective.
5.07 Regulatory Approval. The Commissioner shall have issued the Permit and
the qualification thereunder shall not be the subject of any stop order or
proceedings seeking a stop order.
5.08 Books and Records. Prior to the Closing Date, ETI and Newco shall have
delivered to UC Hub complete and accurate copies of all financial, accounting,
and banking, books and records, of ETI and Newco.
5.09 Use of Financial Statements, and Audit Reports. Prior to the Closing
Date, ETI shall deliver to UC Hub a letter from its prior auditors stating that
such prior auditors consent to the inclusion of any and all financial statements
of ETI, including the audit reports and opinion letters, in which they were
associated with, in any future SEC filing to be made by ETI or UC Hub.
5.10 Corporate Matters. ETI shall have file the Certificate of Designation
therefor with the Secretary of State of Delaware in the form as attached as
Exhibit B and changed its name to a name selected by UC Hub.
5.11 Other Items. UC Hub shall have received such other documents,
certificates, or instruments relating to the transactions contemplated hereby as
UC Hub may reasonably request, including a legal opinion from ETI's and Newco's
counsel.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF ETI AND NEWCO. The obligations of
ETI and Newco under this Agreement are subject to the following conditions:
6.01 Accuracy of Representations. The representations and warranties made
by UC Hub in this Agreement were true when made and shall be true at the Closing
Date with the same force and affect as if such representations and warranties
were made at and as of the Closing Date (except for changes therein permitted by
this Agreement), and UC Hub shall have performed or complied with all covenants
and conditions required by this Agreement to be performed or complied with by UC
Hub prior to or at the Closing. ETI and Newco shall be furnished with a
certificate, signed by a duly authorized officer of UC Hub and dated the Closing
Date, to the foregoing effect.
6.02 Officer's Certificate. ETI and Newco shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
executive officer of UC Hub to
15
the effect that to such officer's Knowledge, which may be based on certificates
of good standing, representations of government agencies, and UC Hub's own
documents and information:
(a) There are no actions, suits, administrative or other proceedings,
investigations, inquiries or similar governmental proceedings pending or,
to the Knowledge of UC Hub threatened by or against UC Hub or which could
reasonably be expected to have a Material Adverse Effect on UC Hub, at law
or in equity, before any Government Entity including any which might result
in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement.
(b) This Agreement has been duly approved by UC Hub's board of
directors and has been duly executed and delivered in the name and on
behalf of UC Hub by its duly authorized officer(s) pursuant to, and in
compliance with, authority granted by the board of directors of UC Hub;
(c) Except as provided or permitted herein, there have been no
Material Adverse Effect, as described in Section 6.03 below relating to UC
Hub up to and including the date of the certificate
(d) All authorizations, consents, approvals, registrations, and/or
filing with any governmental body, agency, or court required in connection
with the execution and delivery of the documents by UC Hub have been
obtained and are in full force and effect or, if not required to have been
obtained shall be in full force and effect by such time as may be required.
6.03 No Material Adverse Effect. Prior to the Closing Date, there
shall have been no event, change, or occurrence which, individually or
together with any other event, change, or occurrence, insofar as can
reasonably be foreseen, could have a Material Adverse Effect on UC Hub.
6.04 Stockholder Approval. The common stockholders of UC Hub have approved
the Merger as required by California law and UC Hub's articles of incorporation
and bylaws.
6.05 Regulatory Approval. The Commissioner shall have issued the Permit and
the qualification thereunder shall not be the subject of any stop order or
proceedings seeking a stop order.
6.06 Good Standing. ETI and Newco shall have received a certificate of good
standing from the appropriate authority, dated as of a date within five days
prior to the Closing Date, certifying that UC Hub is in good standing as a
corporation in the State of California.
6.07 Other Items. ETI and Newco shall have received such further documents
certificates, or instruments relating to the transactions contemplated hereby as
ETI and Newco may reasonably request including a legal opinion from UC Hub's
counsel.
16
6.08 Dissenting Shares. Holders of less than 10% of the issued and
outstanding UC Hub Shares, shall have exercised their dissenters' rights
pursuant to the California Corporations Code in connection with the Merger.
7. SPECIAL COVENANTS.
7.01 Activities of ETI, Newco and UC Hub.
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the respective schedules to be delivered by ETI,
Newco and UC Hub pursuant hereto or as permitted or contemplated by this
Agreement, ETI, Newco and UC Hub shall each:
(i) Carry on its business in substantially the same manner as it
has heretofore;
(ii) Maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by it;
(iii) Perform in all material respects all of its obligations
under material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(iv) Use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationships with its material suppliers and customers;
(v) Duly and timely file for all taxable periods ending on or
prior to the Closing Date all federal, state, county, and local tax
returns required to be filed by or on behalf of such entity or for
which such entity may be held responsible and shall pay, or cause to
pay, all taxes required to be shown as due and payable on such
returns, as well as all installments of tax due and payable during the
period commencing on the date of this Agreement and ending on the
Closing Date; and
(vi) Fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and
all rules, regulations, and orders imposed by federal or state
governmental authorities.
(b) From the date of this Agreement until the Closing Date except as
contemplated by this Agreement, ETI, Newco and UC Hub shall not:
(i) Make any change in its a charter, or bylaws;
17
(ii) Enter into or amend any material contract, agreement, or
other instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any contract,
agreement, or other instrument in the ordinary course of business;
(iii) Enter into any agreement for the sale of UC
Hub, Newco or ETI securities without the prior approval of the
other party; or
(iv) Issue or cause to be issued any press
announcements or news releases without the consent of the
other parties.
7.02 Access to Properties and Records. Until the Closing Date, UC Hub,
Newco and ETI shall afford to the other party's officers and authorized
representatives full access to the properties, books, and records of the other
party in order that each party may have full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other party and
shall furnish the other party with such additional financial and other
information as to the business and properties of UC Hub, Newco or ETI as such
party shall from time to time reasonably request.
7.03 Indemnification by UC Hub. UC Hub shall indemnify and hold harmless
ETI and Newco and their directors and officers, employees and agents, and each
person, if any, who controls ETI and Newco, within the meaning of the Securities
Act, from and against any and all losses, claims, damages, expenses,
liabilities, or actions to which any of them may become subject under applicable
law (including the Securities Act and the Exchange Act) and shall reimburse them
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any claims or actions, whether or not resulting in
liability, insofar as such losses, claims, damages, expenses, liabilities, or
actions arise out of or are based upon any breach of this Agreement by UC Hub,
or any untrue statement or alleged untrue statement of material fact made by UC
Hub contained in any application or statement filed with a governmental body or
arising out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary in order to
make the statements therein not misleading, but only insofar as any such
statement or omission was made in reliance upon and in conformity with
information furnished in writing by UC Hub expressly for use therein. The
indemnity agreement contained in this Section 7.03 shall remain operative and in
full force and effect for a period of one year. This indemnity agreement does
not cover any acts or failure to act of ETI or Newco, and their officers,
directors, employees or agents, prior to the date of this Agreement.
7.04 Indemnification by ETI, Newco and Lanham. ETI, Newco and Lanham shall
indemnify and hold harmless UC Hub, the UC Hub stockholders, UC Hub's directors
and officers, employees and agents, and each person, if any, who controls UC Hub
within the
18
meaning of the Securities Act, from and against any and all losses, claims,
damages, expenses, liabilities, or actions to which any of them may become
subject under applicable law (including the Securities Act and the Exchange Act)
and shall reimburse them for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any claims or actions,
whether or not resulting in liability, insofar as such losses, claims, damages,
expenses, liabilities, or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
application or statement filed with a governmental body or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary in order to make the statements
therein not misleading, but only insofar as any such statement or omission was
made in reliance upon and in conformity with information furnished in writing by
ETI expressly for use therein. The indemnity agreement contained in this Section
7.04 shall remain operative and in full force and effect for a period of one
year. This indemnity agreement does not cover any acts or failure to act of UC
Hub, its officers, directors, employees, or agents, prior to the date of this
Agreement.
7.05 Indemnification Procedure.
(a) Notice to the indemnifying party shall be given promptly after
receipt by any indemnified party of actual knowledge of the commencement of
any action or the assertion of any claim that will likely result in a claim
by it for indemnity pursuant to this Agreement. Such notice shall set forth
in reasonable detail the nature of such action or claim to the extent
known, and include copies of any written correspondence or pleadings from
the party asserting such claim or initiating such action. The indemnifying
party shall be entitled, at its own expense, to assume or participate in
the defense of such action or claim. In the event that the indemnifying
party assumes the defense of such action or claim, it shall be conducted by
counsel chosen by such party and approved by the party seeking
indemnification, which approval shall not be unreasonably withheld.
(b) With respect to actions as to which the indemnifying party does
not exercise its right to assume the defense, the party seeking
indemnification shall assume and control the defense of and contest such
action with counsel chosen by it and approved by the indemnifying party,
which approval shall not be unreasonably withheld. The indemnifying party
shall be entitled to participate in the defense of such action, the cost of
such participation to be at its own expense. The indemnifying party shall
be obligated to pay the reasonable attorneys' fees and expenses of the
party seeking indemnification to the extent that such fees and expenses
related to claims as to which indemnification is payable under Sections
7.03 or 7.04, as such expenses are incurred.
(c) Both the indemnifying party and the indemnified party shall
cooperate fully with one another in connection with the defense,
compromise, or settlement of any such claim or action, including, without
limitation, by making available to the other all pertinent information and
witnesses within its control. No indemnified party shall settle any action
or proceeding without the written consent of the indemnifying party, and no
indemnifying party shall settle any action or proceeding unless the
indemnified party is unconditionally released without any liability.
19
7.06 Securities Filings. ETI shall be responsible for the preparation, and
filing, of a Form 8-K filing with the Securities and Exchange Commission and
shall be responsible for filing of consolidated audited financial statements in
a separate Form 8-K filing within 75 days from the Closing Date, and shall be
responsible for any and all filings in any jurisdiction where its stockholders
reside which would require a filing with a governmental agency as a result of
the transactions contemplated in this Agreement. ETI shall also prepare and file
with the SEC all appropriate documents, including, but not limited to, Schedules
13D and 14C in conformity with Rule 14f-1 under the Exchange Act. Any such
filings will include, as necessary, a description of UC Hub's business and UC
Hub's audited and interim unaudited financial statements prepared in accordance
with GAAP and applicable regulations of the SEC. As soon as practicable
following the Closing, UC Hub shall prepare financial statements in accordance
with GAAP and applicable regulations of the SEC for the last fiscal year, and
such be audited by an independent accounting firm. Following the Closing, UC Hub
shall provide such financial statements and any additional information ETI may
require for inclusion in its filings.
7.07 Third Party Beneficiaries. The common stockholders of UC Hub who will
be receiving Preferred Stock pursuant to this Agreement are intended third-party
beneficiaries of this Agreement.
7.08 Fairness Hearing.
(a) Prior to the Closing, upon the terms and subject to the conditions
of this Agreement, the Parties will use their reasonable best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things including filing preparation and filing with the Commissioner of the
documents required by the California Corporations Code, including but not
limited to any required Permit Application, request for a hearing ("Hearing
Request") or notice of a hearing ("Hearing Notice") pursuant to Sections
25121 and 25142 of the California Corporations Code (collectively the
"Notice Materials"), in connection with the Merger and the issuance of the
Merger Consideration, in order to perfect the exemption from registration
provided by Section 3(a)(10) of the Securities Act and the preparation and
filing of all other forms, registrations and notices required to be filed
to consummate the Merger and the taking of such actions as are necessary to
obtain any requisite approvals, consents, orders, exemptions or waivers by
any third party of Governmental Entity, and (ii) the satisfaction of the
other Parties' conditions to Closing. Each Party will use reasonable
efforts to have the Permit Application, Hearing Request and Hearing Notice
declared effective under the California Corporations Code as promptly as
practicable after such filing. In addition, the parties will prepare, and
UC Hub will distribute, an information statement or proxy statement along
with the Notice Materials, as may be required by California law, at the
earliest practicable date to submit this Agreement, the Merger and the
transactions contemplated hereby, to the stockholders of UC Hub. Each of
the Parties will promptly provide all information relating to their
respective business and operations necessary for inclusion in the Notice
Materials to satisfy all requirements of applicable state and federal
securities laws.
20
Each of the Parties will be solely responsible for any statement,
information or omission in the Notice Materials relating to it or its
affiliates upon the written information furnished by it or its
representatives.
(b) Prior to the Closing, each Party will promptly consult with the
other Parties hereto with respect to all filings made by such Party with
any Governmental Entity or any other information supplied by such Party to
a Governmental Entity in connection with this Agreement and the Merger.
Each Party will promptly inform the others of any communication from any
Governmental Entity regarding the Merger. If any Party hereto or any
affiliate thereof receives a request for additional information or
documentary material from any such Governmental Entity with respect to the
Merger, then such Party will promptly notify the other Parties and endeavor
in food faith to make, or cause to be made, as soon as reasonably
practicable and after consultation with the other Parties, an appropriate
response in compliance with such request. To the extent that transfers,
amendments or modifications of permits are required as a result of the
execution of this Agreement or consummation of the Merger, UC Hub will use
reasonable best efforts to effect such transfers, amendments or
modifications.
8. MISCELLANEOUS.
8.01 Brokers. Except as provided herein, ETI, Newco and UC Hub agree that
there were no finders or brokers involved in bringing the parties together or
who were instrumental in the negotiation, execution, or consummation of this
Agreement. Further, ETI, Newco and UC Hub each agree to indemnify the other
against any claim by any third person for any commission, brokerage, or finder's
fee or other payment with respect to this Agreement or the transactions
contemplated hereby based on any alleged agreement or understanding between such
party and such third person, whether express or implied, from the actions of
such party. The covenants set forth in this section shall survive the Closing
Date and the consummation of the transactions herein contemplated.
8.02 Governing Law. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided herein or performance shall be
governed or interpreted according to the internal laws of the State of Delaware
without regard to choice of law considerations.
8.03 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered, if sent by
facsimile or telecopy transmission or other electronic communication, or if sent
by prepaid overnight courier addressed as follows:
21
If to ETI or Newco to:
ETI Corporation
28562 Oslo Parkway
Unit D
Rancho Santa Margarita, CA 92688
Attention: Mr. Paul Lanham
With a copy to:
Randall J. Lanham, Esq.
28652 Oso Parkway
Suite D
Rancho Santa Margarita, CA 92688
If to UC Hub, to:
United Communications HUB, Inc.
10390 Commerce Center Drive, Suite 250
Rancho Cucamonga, CA 91730
Attention: Mr. Larry Wilcox, Chief Executive Officer
With a copy to:
Michael D. Harris, Esq.
Michael Harris, P.A.
1555 Palm Beach Lakes Blvd.
Suite 310
West Palm Beach, FL 33401
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices, hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered or sent by facsimile or
telecopy transmission or other electronic communication, or one business day
after the date so sent by overnight courier.
8.04 Attorneys Fees. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding relating to this Agreement
is filed, the prevailing party shall be entitled to an award by the court of
reasonable attorneys' fees, costs and expenses.
8.05 Schedules. Whenever in any section of this Agreement reference is made
to information set forth in the schedules provided by ETI or UC Hub such
reference is to information specifically set forth in such schedules and clearly
marked to identify the section of this Agreement to which the information
relates.
8.06 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. All previous
agreements between the parties,
22
whether written or oral, have been merged into this Agreement. This Agreement
alone fully and completely expresses the agreement of the parties relating to
the subject matter hereof. There are no other courses of dealing,
understandings, agreements, representations, or warranties, written or oral,
except as set forth herein.
8.07 Survival. The representations, warranties, and covenants of the
respective parties shall survive the Closing Date and the consummation of the
transactions herein contemplated for a period of twelve months from the Closing
Date, unless otherwise provided herein.
8.08 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
8.09 Remedies and Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and such remedies may be enforced concurrently, and no waiver by
any party of the performance of any obligation by the other shall be construed
as a waiver of the same or any other default then, theretofore, or thereafter
occurring or existing.
8.10 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision by its severance here from
8.11 Benefit. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and their legal representatives, successors and assigns.
8.12 Oral Evidence. This Agreement constitutes the entire Agreement between
the Parties and supersedes all prior oral and written agreements between the
Parties hereto with respect to the subject matter hereof. Neither this Agreement
nor any provision hereof may be changed, waived, discharged or terminated
orally, except by a statement in writing signed by the party or parties against
which enforcement or the change, waiver discharge or termination is sought.
8.13 Section or Paragraph Headings. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
8.14 No Other Representations. ETI and Newco on one hand and UC Hub on the
other hand shall not be deemed to have made any representation or warranty other
than those as expressly made in this Agreement.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, as of the
date first above written.
United Communications, Inc.,
_____________________________ By: /s/ Larry Wilcox
------------------------------------
Larry Wilcox, Chief Executive Officer
_____________________________ ETI Corporation
_____________________________ By: /s/ Paul Lanham
-----------------------------------
Paul Lanham, President
_____________________________
New ETI, Inc.
_____________________________ By: /s/ Paul Lanham
-----------------------------------
Paul Lanham, President
_____________________________
_____________________________ /s/ Paul Lanham
---------------------------------------
Paul Lanham, individually, solely with
____________________________ respect to ETI's and Newco's
representations and warranties and
indemnifications.