SCHEDULE 14C
(RULE 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
[ ] Preliminary Information Statement
[ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14c-5 (d) (2))
[X] Definitive Information Statement
IR Operating Corporation
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the
Registrant(s))
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on the table below per Exchange Act Rules 14c-
5(g) and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction
applies:
(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) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] 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:
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IR Operating Corporation
112 Main Street
Webster, MA 01570
INFORMATION STATEMENT
**WE ARE NOT ASKING FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY**
INTRODUCTION
This Information Statement is being furnished to the stockholders of record
of IR Operating Corporation (the "Company") as of December 27, 2000,in
connection with the adoption of the Certificate of Amendment of the Certificate
of Incorporation (the "Articles of Amendment") by the written consent of the
holders of a majority interest of the Company's voting capital stock consisting
of the Company's outstanding Common Stock, $0.001 par value (the "Common
Stock"). On December 27, 2000, the Company's Board of Directors approved and
recommended that the Certificate of Incorporation be amended and restated in
order to:
Increase the number of the Company's authorized
Common Shares, from fifty million (50,000,000) to
Two hundred million (200,000,000) shares.
In addition, on the same date, the Company's Board of Directors approved
and recommended that the Company enter into a merger agreement with Digi Link
Technologies, Inc., a Delaware corporation, on the basis of a one for one common
share exchange after which the Company would be the survivor, and its name would
be changed to Digi Link Technologies, Inc. ("Digi Link").
Also, on the same date, the Company's Directors, except for Murray Fox who
abstained, approved and recommended that the Company enter into an agreement to
sell the recycling assets of the Company to the current President of the
Company.
The Amendment of the Certificate of Incorporation and the Merger Agreement
that also incorporated the name change was approved by written consent on
December 27, 2000, by seven (7) of the stockholders owning a majority of the
outstanding Common Stock, and the Certificate of Amendment of the Certificate of
Incorporation and the Certificate of Merger will be filed and accepted by the
Delaware Secretary of State not to become effective until twenty (20) days after
the mailing date of this Information Statement to the shareholders of record.
The elimination of the need for a Special Meeting of Stockholders to
approve the Certificate of Amendment of the Certificate of Incorporation is made
possible by Delaware Corporate Law, which provides that the written consent of
the holders of outstanding shares of voting stock, having not less than the
minimum number of votes which would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted, may be substituted for such a Special Meeting. Pursuant to Sec. 228
and Sec. 251 of the Delaware Corporation Law, a majority of the outstanding
shares of voting stock entitled to vote thereon is required in order to both
amend the Company's Certificate of Incorporation and adopt an agreement of
merger.
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In order to eliminate the costs and time involved in holding a special
meeting and in order to effect the Articles of Amendment and the adoption of the
agreement of merger as early as possible in order to accomplish the purposes of
the Company as hereafter described, the Board of Directors of the Company voted
to utilize the written consent of the holders of a majority in interest of the
voting stock of the Company.
On December 27, 2000, there were 5,217,428 outstanding shares of Common
Stock issued and outstanding and approximately 334 holders of record of Common
Stock. The Company has no Preferred Stock issued or outstanding, but has
5,000,000 shares of non voting preferred stock which are authorized. The
approval of the Amendment to the Certificate of Incorporation and adoption of an
agreement of merger requires the written consent of the holders of a majority of
the outstanding shares of the Common Stock, and each share of the Common Stock
was entitled to one vote with respect to both the approval of the Amendment of
the Certificate of Incorporation and the adoption of an agreement of merger.
By written consent in lieu of a meeting, seven stockholders owning
2,839,599 shares of the Common Stock, ie., Murray Fox, Tony Conte, David Katz,
Joe Mazza, Mitchell May, Sheldon May and Ted May representing approximately
54.4% of the outstanding voting power, have approved the listed corporate
actions.
Under applicable federal securities laws, the Certificate of Amendment of
the Articles of Incorporation and the merger cannot be effected until at least
20 calendar days after this information statement is sent or given to the
stockholders of the Company. The approximate date this Information Statement is
first being sent or given to stockholders is January 12, 2001.
AMENDMENT OF CERTIFICATE OF INCORPORATION
On December 27, 2000, the Board of Directors approved, subject to the
approval of the Company's stockholders, the Amendment of the Certificate of
Incorporation, which amends and/or adds certain provisions of the Articles of
Incorporation to:
Increase the number of the Company's authorized
common shares, from fifty million (50,000,000) to
two hundred million (200,000,000) shares
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In December, 2000, stockholders owning a majority of the outstanding Common
Stock approved the Amendment of Articles of Incorporation. A copy of the
Amendment of Certificate of Incorporation is attached to this document as
Exhibit "A".
EFFECT OF THE CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
After the Amended Certificate of Incorporation becomes effective, the
Company will have two hundred million (200,000,000) Common shares authorized and
five million (5,000,000) Preferred shares authorized. This change does not
effect the relative rights or privileges of the holders of currently outstanding
Common Stock.
REASON FOR THE AMENDMENT AND RESTATED ARTICLES
The Board of Directors has unanimously approved, subject to Stockholder
approval, an amendment to the Certificate of Incorporation changing the number
of authorized Common Shares, $0.001 par value, from fifty million to two hundred
million shares.
The number of authorized Preferred Shares, $0.001 par value, remains at one
million shares. The proposed changes o the Certificate of Incorporation has been
incorporated into the proposed Amendment of the Company's Certificate of
Incorporation included as Exhibit "A".
Increasing the number of authorized shares will give the Company added
flexibility to enhance its capitalization in addition to making it possible to
enter into a merger agreement with Digi Link.
In making this decision, the Board of Directors was principally influenced
by the need to acquire a business that would add value to the Company and that
at sometime in the future, the Company may need to seek additional equity
capital in order to expand its operations. The additional number of authorized
shares will give the Company both the added Flexibility to utilize these common
shares to help it finance and capitalize the Company and the ability to complete
the merger.
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ADOPTION OF THE AGREEMENT AND PLAN OF MERGER
On December 27, 2000, the Board of Directors approved, subject to the
approval of the stockholders, an Agreement and Plan of Merger, pursuant to which
the Company will merge with Digi Link through a statutory merger with Company
the survivor and thereby acquire 100% ownership of Digi Link in return for the
issuance of approximately (98,512,500) shares of common stock of the Company to
the shareholders of Digi Link.
In December, 2000, stockholders owing a majority of the outstanding Common
Stock approved the merger agreement.
EFFECT OF THE MERGER
After the Merger becomes effective, the Company will be the Survivor and
its pre-merger shareholders will own approximately five percent (5%) of the
Company. The Company's name will be Digi Link Technologies, Inc. and will be in
the Specialized Mobile Radio ("SMR") business. Digi Link is currently engaged on
a limited basis in the ownership, development, operation and management of 220
MHz analog SMR wireless communications services. Management believes it will
derive revenues primarily from access and airtime charges for SMR system usage,
sale, and leasing of communication equipment, management, and to a lesser
extent, construction and other miscellaneous services. Although SMR operators
can offer services to virtually any customer, management anticipates that the
subscribers will be primarily businesses. After the Merger, the Company will own
all of the Digi Link assets and be liable for all of the Digi Link liabilities.
A copy of the Agreement and Plan of Merger is included as Exhibit "B". The
Company will have approximately one hundred and three million (103,000,000)
Common shares issued and outstanding upon the consummation of the merger. The
directors and officers of pre-merger Digi Link will be the directors and
officers of the Company after the merger.
REASON FOR THE MERGER
The Board of Directors has unanimously approved, subject to Stockholder
approval, the Merger. In making this decision, the Board of Directors was
principally influenced by the inability of the Company to realize its business
plan pertaining to the recycling business. Anticipated financing, market
opportunities and efficiency of its technologies did not occur. The alternative
that was available to the Company for it to enhance shareholder value was the
acquisition through merger of a business in the telecommunications industry.
Given these considerations, the Board of Directors and affirmed By 54.4%
percent of the outstanding and issued Common Stock, has decided that its would
be in the best interests of Company and its stockholders for the Company to
increase its number of its $0.001 par value, authorized Common Shares from fifty
million to 200 million shares and, to adopt the Agreement and Plan of
Reorganization (Merger).
By Order of the Board of Directors,
By:/s/Murray Fox
---------------------------
Murray Fox, President
Webster, MA
January 11, 2001
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EXHIBIT "A"
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
IR Operating Corporation
(Under Section 242 of the Corporation Law of the State of Delaware)
I (the undersigned) do hereby certify that:
1. IR Operating Corporation, Inc. (the "Corporation") is a corporation
formed under the laws of the State of Delaware, and its Certificate of
Incorporation was filed in the office of the Secretary of State on December 2,
1971.
2. The Certificate of Incorporation is hereby amended by deleting only the
existing portion pertaining to common stock and replacing only that portion
pertaining to common stock with the following amendment:
FOURTH: The Corporation shall be authorized to issue the following shares:
CLASS Number of Shares Par Value
Common 200,000,000 .001
3. This Amendment to the Certificate of Incorporation has been duly adopted
in accordance Corporation Law of the State of Delaware.
4. The number of shares of the Corporation outstanding and entitled to vote
on an amendment to the Articles of Incorporation is: 5,217,428; that the said
changes and amendment have been consented to and approved by a majority vote of
the stockholders holding at least a majority of each class of stock outstanding
and entitled to vote thereon.
5. The number of shares voted for such amendments was 2,839,599 (54.4%) and
the number voted against such amendment was 0.
The undersigned has signed this Article on December 27, 2000.
By:/s/ Murray Fox
----------------------------
Murray Fox, President
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Exhibit "B"
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 27, 2000, by and among
IR Operating Corporation, a Delaware corporation ("IROC" or the "Surviving
Corporation"), Digi Link Technologies, Inc., a Delaware corporation ("Digi
Link") located at 75 Lincoln highway, Iselin, New Jersey and Murray Fox.
WHEREAS, IROC and Digi Link desire to adopt a plan of reorganization within
the meaning of Section 368 (a) (1) (A) of the Internal Revenue Code in effect as
of the date of this agreement;
WHEREAS, IROC and Digi Link deem it advisable that Digi Link be merged into
IROC pursuant to this Agreement and in accordance with the applicable statutes
of the State of Delaware;
WHEREAS, at or prior to the Effective Date as hereinafter defined, IROC
will acquire from Digi Link the number of shares of Digi Link Common Stock
(without par value) necessary to complete the merger provided for herein; and
WHEREAS, the principal office of IROC in the State of Massachusetts is
located at 112 Main Street, Webster, MA..
Now, THEREFORE, the parties agree as follows:
Section 1. The Merger
1.1 Transfer of Property and Liabilities. Upon the Effective Date (as
defined in Section 11 hereof) of the merger, the separate existence of Digi Link
shall cease; all of the outstanding shares of stock of Digi Link shall be
exchanged for and converted into shares of stock of Surviving Corporation, as
hereinafter provided; and upon the filing of this Agreement, certified as to the
requisite stockholder approval, with the Secretary of State of the State of
Delaware, the Surviving Corporation shall possess all the rights, privileges,
immunities, powers and purposes, and all the property, real and personal, causes
of action and every other asset of Digi Link, and shall assume and be liable for
all the liabilities, obligations and penalties of Digi Link, in accordance with
Section 259 of the General Corporation Law of the State of Delaware.
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1.2 Surviving Corporation. Following the merger, the existence of the
Surviving Corporation shall continue unaffected and unimpaired by the merger,
with all the rights, privileges, immunities and powers, and subject to all the
duties and liabilities, of a corporation organized under the laws of the State
of Delaware. The Certificate of Incorporation and Bylaws of IROC, as in effect
immediately prior to the Effective Date, shall continue in full force and
effect, and, except as provided in Section 1.3, shall not be changed in any
manner by the merger. The directors of IROC immediately prior to the Effective
Date shall appoint Peter Jegou as a director and then resign as the directors of
the Surviving Corporation, and the officers of Digi Link immediately prior to
the Effective Date shall become the officers of the Surviving Corporation.
1.3 Name. The name of the Surviving Corporation shall be changed as of the
Effective Date to "Digi Link Technologies, Inc."
Section 2. Conversion of Shares
2.1 Conversion Ratio. Each share of Digi Link Common Stock issued and
outstanding immediately prior to the Effective Date (exclusive of shares held in
the treasury of Digi Link, which shares shall be canceled upon the Effective
Date) shall, without any action on the part of Surviving Corporation , IROC or
any holder of such shares, be converted by the merger into one (1) share of
IROC.
2.2 Shares of IROC. None of the issued shares of IROC shall be converted as
a result of the merger, but all of such shares shall remain issued shares of
capital stock of the Surviving Corporation.
2.3 Exchange of Certificates. As promptly as practicable after the
Effective Date, each holder of an outstanding certificate or certificates which
prior thereto represented shares of Digi Link Common Stock shall surrender the
same to IROC, and such holders shall be entitled upon such surrender to receive
in exchange therefore certificates representing the number of whole shares of
Surviving Corporation Common Stock into which the shares theretofore represented
by the certificate or certificates so surrendered shall have been converted.
Until so surrendered, each outstanding certificate which, prior to the Effective
Date, represented Digi Link Common Stock, shall be deemed for all corporate
purposes (except the payment of dividends) to evidence ownership of the number
of whole shares of Surviving Corporation Common Stock into which the shares of
Digi Link Common Stock represented thereby prior to such Effective Date shall
have been converted. After the Effective Date and until the outstanding
certificates formerly representing shares of Digi Link Common Stock are so
surrendered, no dividend payable to holders of record of the Surviving
Corporation Common Stock shall be paid to the holders of such outstanding Digi
Link certificates in respect thereof. Upon surrender of such outstanding
certificates, however, there shall be paid to the holders of the certificates
for Surviving Corporation Common Stock issued in exchange therefore the amount
of dividends, if any, which theretofore became payable with respect to such full
shares of Surviving Corporation Common Stock, but which have not theretofore
been paid on such stock. No interest shall be payable with respect to the
payment of any dividends.
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2.4 Fractional Shares. Fractional shares of Surviving Corporation Common
Stock will not be issued.
Section 3. Representation and Warranties of Digi Link
Digi Link represents and warrants that:
3.1 Corporate Organization and Good Standing. Digi Link is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and is qualified to do business as a foreign corporation in
each jurisdiction, if any, in which its property or business requires such
qualification.
3.2 Capitalization. Digi Link's authorized capital stock consists of
500,000,000 shares of Digi Link Common Stock, with $.001 par value, of which
95,000,000 shares are issued and outstanding, fully paid and nonassessable.
There are no options, warrants or rights outstanding to purchase shares of Digi
Link Common Stock from Digi Link except for the shares reflected in the
subscription agreements set forth on Schedule "A".
3.3. Subsidiaries. Digi Link has no subsidiaries.
3.4 Financial Statements. Digi Link's Balance Sheet as of September 30,
2000, ("Digi Link Balance Sheet") copies of which have been delivered by Digi
Link to IROC, fairly present the financial condition of Digi Link as of said
date in conformity with generally accepted accounting principles consistently
applied for the period covered.
3.5 Absence of Undisclosed Liabilities. Except as set forth on Schedule
"B", to the extent reflected or reserved against in the Digi Link Balance Sheet,
Digi Link did not have at that date any liabilities or obligations (secured,
unsecured, contingent or otherwise) of a nature customarily reflected in a
corporate balance sheet prepared in accordance with generally accepted
accounting principles.
3.6 Absence of Certain Changes. Except as set forth on Schedule "C", there
has been no material adverse change in the business, properties or financial
condition of Digi Link since the date of the Digi Link Balance Sheet.
3.7 Litigation, etc. Except as set forth on Schedule "D", there is no
litigation proceeding or investigation pending or, to the knowledge of Digi
Link, threatened against Digi Link which is successful might result in a
material adverse change in the business, properties or financial condition of
Digi Link or which questions the validity or legality of this Agreement or of
any action taken or to be taken by Digi Link in connection with this Agreement.
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3.8 Contracts. Except as set forth on Schedule "E", Digi Link is not a
party to any material contract not in the ordinary course of business which is
to be performed in whole or in part at or after the date of this Agreement.
3.9 Title. Digi Link has good and marketable title to all the real property
and good and valid title to all other property included in the Digi Link Balance
Sheet, other than property disposed of in the ordinary course of business after
the date of the Digi Link Balance Sheet. Except as set forth on Schedule "F" the
properties of Digi Link are not subject to any mortgage, encumbrance or lien of
any kind except minor encumbrances which do not materially interfere with the
use of the property in the conduct of the business of Digi Link.
3.10 Tax Returns. The federal income tax returns of Digi Link have not been
audited by the Internal Revenue Service for all years to and including the
taxable year ending December 31, 1999. Except as set forth on Schedule "G", the
provisions for federal and state taxes reflected in the financial statements
referred to in Section 3.4 hereof are adequate to cover any such taxes which may
be assessed against Digi Link in respect of its business and operations during
the periods covered by said financial statements and all prior periods.
3.11 No Violation. Consummation of the merger will not constitute or result
in a breach or default under any provision of any charter, bylaw, indenture,
mortgage, lease or agreement, or any order, judgment, decree, law or regulation
to which any property of Digi Link is subject or by which Digi Link is bound,
except for breaches or defaults which in the aggregate would not have a
materially adverse effect on Digi Links properties, business operations or
financial condition.
3.12 Authorization. Execution of this Agreement has been duly authorized
and approved by Digi Link's Board of Directors.
3.13 Information Provided by Digi Link The information provided and to be
provided by Digi Link to Surviving Corporation for use in shareholder notice
material, or in a Form 8K to be filed with the SEC, or in any application made
by Surviving Corporation to the SEC, to the Internal Revenue Service, or to any
other governmental or regulatory body in connection with the merger, does not
and will not contain any statement which is false or misleading with respect to
any material fact, or which omits to state any material fact necessary in order
to make the statement not false or misleading.
3.14 Intellectual Property of Digi Link. Exhibit H. sets forth all of the
patents, trademarks, licenses and copy rights owned or held by Digi Link and
their registration numbers.
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Section 4. Representations and Warranties of Surviving Corporation
Surviving Corporation represents and warrants to Digi Link as follows:
4.1 Corporate Organization, Good Standing and Capitalization Surviving
Corporation is a corporation duly organized, existing and in good standing under
the laws of the State of Delaware, with the corporate power to own its
properties and to carry on its business as now being conducted. Complete and
correct copies of Surviving Corporation's Certificate of Incorporation and
Bylaws, as amended to the date hereof, have been delivered to Digi Link.
Surviving Corporation's authorized capital stock consists of 50,000,000 shares
of common stock, with par value $.001, and 5,000,000 shares of non voting
preferred stock $.001 par of which approximately 5,217,428 shares of common
stock and no preferred stock were issued and outstanding on November 30, 2000.
There are no other securities authorized. Surviving Corporation will file a
Schedule 14C Information Statement, pursuant to Rule 14c-101 of the Securities
Exchange Act of 1934 to notify its shareholders that all of the Directors and a
majority of the shareholders have voted and consented to amending IROC's
Certificate of Incorporation to provide for the increase in its authorized
common stock to 200,000,000.
4.2 Corporate Authority. This Agreement has been approved by the Board of
Directors of Surviving Corporation. Neither the execution and delivery of this
Agreement, nor performance hereunder, will conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a default under, the
Certificate of Incorporation or Bylaws of Surviving Corporation or any agreement
or interest to which Surviving Corporation is a party or by which it is bound.
4.3 Financial Statements of Surviving Corporation and filings with the
SEC.. Surviving Corporation has furnished Digi Link with copies its Form 10KSB
for year ended December 31, 1999 and its Form 10QSB for the quarters ended March
30, 2000, June 30, 2000 and September 30, 2000 all of which are filed with the
Securities and Exchange Commission. The financial statements incorporated in the
filings present fairly the financial position of Surviving Corporation and its
consolidated subsidiaries on the dates indicated, and the results of their
operations for the periods then ended, in conformity with generally accepted
accounting principles applied on a consistent basis, except as noted therein.
All IROC filings required by the SEC are current.
4.4 Shares To Be Issued. The shares of Surviving Corporation Common Stock
to be issued and delivered pursuant to this Agreement will be duly and validly
issued, fully paid and nonassessable.
4.5 No Material Adverse Change. Since September 30, 2000 there has not been
any change in the business, assets, operations or financial condition of
Surviving Corporation or its consolidated subsidiaries that materially adversely
affects the business of Surviving Corporation and its consolidated subsidiaries
as a whole except for loses incurred since said date in the operation of the
business.
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4.6 Absence of Undisclosed Liabilities. Except as set forth on Schedule
"I", to the extent reflected or reserved against in Surviving Corporation's
balance sheet as of September 30, 2000, Surviving Corporation did not have at
that date any liabilities or obligations (secured, unsecured, contingent or
otherwise) of a nature customarily reflected in a corporate balance sheet
prepared in accordance with generally accepted accounting principles.
4.7 Litigation, etc. Except as set forth on Schedule "J", there is no
litigation, proceeding or investigation pending or, to the knowledge of IROC,
threatened against IROC which if successful might result in a material adverse
change in the business, properties or financial condition of IROC or which
questions the validity or legality of this Agreement or of any action taken or
to be taken by IROC in connection with this Agreement.
4.8 Contracts. Except as set forth on Schedule "K', IROC is not a party to
any material contract not in the ordinary course of business which is to be
performed in whole or in part at or after the date of this Agreement.
4.9 Title. IROC has good and marketable title to all property included in
the balance sheet of IROC as of September 30, 2000, other than property disposed
of in the ordinary course of business after said date. Except as set forth on
Schedule "L" the properties of IROC are not subject to any mortgage, encumbrance
or lien of any kind except minor encumbrances which do not materially interfere
with the use of the property in the conduct of the business of IROC.
4.10 Tax Returns. The federal income tax returns of IROC have not been
audited by the Internal Revenue Service for all years to and including the
taxable year ending December 31, 2000. Except as set forth on Schedule "M", the
provisions for federal and state taxes reflected in the financial statements
referred to in Section 4.3 hereof are adequate to cover any such taxes which may
be assessed against IROC in respect of its business and operations during the
periods covered by said financial statements and all prior periods.
4.11 Authorization Execution of this Agreement has been duly authorized and
approved by IROC's Board of Directors.
Section 5. Conduct of Digi Link Pending the Effective Date
Digi Link covenants and agrees that between the date of this Agreement and
the Effective Date:
5.1 Certificate of Incorporation and Bylaws. No change will be made in Digi
Links certificate of incorporation or bylaws.
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5.2 Capitalization, etc. Digi Link will not make any change in its
authorized or issued capital stock, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
capital stock.
5.3 Shareholders' Meeting or consent of Majority Shareholders. Digi Link
will submit this Agreement to the majority shareholders and with a favorable
recommendation by its Board of Directors and will use its best efforts to obtain
the requisite shareholder consent.
5.4 Conduct of Business. Digi Link will use its best efforts to maintain
and preserve its business organization, employee relationships and goodwill
intact, and will not, without the written consent of IROC, enter into any
material commitment except in the ordinary course of business or increase,
directly or indirectly, the compensation of any officer or employee.
Section 6. Conduct of IROC Pending the Effective Date
IROC covenants that between the date of this Agreement and the Effective
Date:
6.1 Certificate of Incorporation and Bylaws. No change will be made in
IROC's certificate of incorporation or bylaws except for the following changes;
Increase its authorized common shares from 50,000,000 at .001 par to
200,000,000 at .001 par.
6.2 Capitalization, etc. Except as set forth in Section 6.1, IROC will not
make any change in its authorized or issued capital stock, declare or pay any
dividend or other distribution or issue, encumber, purchase or otherwise acquire
any of its capital stock.
6.3 Shareholders' Meeting or Consent of Majority Shareholders. IROC will
submit this Agreement to the majority shareholders with a favorable
recommendation by its Board of Directors and will use its best efforts to obtain
the requisite shareholder consent.
Section 7. Access
From the date hereof to the Effective Date, Digi Link and IROC shall
provide, or arrange to provide, each other with such information and permit each
other's officer and representatives such access to its properties and books and
records as the other may from time to time reasonably request including, with
respect to IROC, such access to Surviving Corporation's properties and books and
records as the other may from time to time reasonably request. If the merger is
not consummated, all documents received in connection with this Agreement shall
be returned to the party furnishing the same, and all information so received
shall be treated as confidential.
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Section 8. Conditions Precedent to Obligation of Digi Link
Digi Link's obligation to consummate this merger shall be subject to
Fulfillment on or before the Effective Date of each of the following conditions,
unless waived in writing by Digi Link:
8.1 IROC's Representations and Warranties. The representations and
warranties of IROC set forth in Section 4 hereof shall be true and correct at
the Effective Date as though made at and as of that date, except as affected by
transactions contemplated hereby.
8.2 IROC's Covenants. IROC shall have performed all covenants required by
this Agreement to be performed by it on or before the Effective Date.
8.3 Shareholder Approval This Agreement shall have been adopted by the
necessary vote of holders of the capital stock of the Constituent Corporations
as set forth in Sections 5.3 and 6.3 hereof.
8.4 Appointment of Directors. The original IROC Directors shall appoint
individuals recommended by Digi Link to serve as Directors of IROC. The original
Directors shall resign as of the effective date.
8.5 Resignation of Officers. The officers of IROC shall resign as of the
effective date.
8.6 Filing of Schedule 14 (c). IROC shall provide satisfactory evidence to
Digi Link that the definitive Information Statement was filed with the SEC with
respect to the transaction and that no comment was received.
8.7 Transfer of IROC Shares. Certain IROC Shareholders will transfer to
IROC before the Effective Date 390,000 common shares of IROC for cancellation.
8.8 Lock up Agreement. The Officers and Directors of IROC i.e. Murray Fox,
David Katz and Tony Conte will deliver to Digi Link six (6) month lock up
agreements, that are satisfactory to Digi Link, pertaining to their respective
shares of IROC. Mr. Fox's agreement shall apply to 70% of his shares outstanding
after the redemption of his shares relating to his purchase of certain assets,
i.e. 560,252 shares of 800,360 shares. Mr. Katz's and Mr. Conte's agreements
shall apply to 100% of their shares owned on the Effective Date.
8.9 Delivery of Fox Notes. Murray Fox shall deliver to Digi Link prior to
the Effective Date promissory notes on which either he is holder or Bea Fox is
holder and IROC is obligor in the amount of approximately $440,000 for
cancellation and to be exchanged for Note referred to in Section 9.4.
9
<PAGE>
8.10 Forgiveness of Salary. Murray Fox shall deliver to Digi Link prior to
the Effective Date a written forgiveness of any salary owed to him that is on
the books of IROC on September 30, 2000.
8.11 Purchase of IROC Technology. Murray Fox shall enter into an agreement
with Digi Link for Murray Fox's purchase of assets and assumption of certain
debt of IROC plus certain indemnifications. The agreement shall be in the form
attached as Schedule "O".
Section 9. Conditions Precedent to IROC's Obligations
The obligations of IROC under this Agreement are subject to the
fulfillment, before or on the Effective Date, of each of the following
conditions, unless waived in writing by IROC.
9.1 Digi Link's Representations and Warranties. The representations and
warranties of Digi Link set forth in Section 3 hereof shall be true and correct
at the Effective Date as though made at and as of that date, except as affected
by transactions contemplated hereby.
9.2 Digi Link's Covenants. Digi Link shall have performed all covenants
required by this Agreement to be performed by it on or before the Effective
Date.
9.3 Shareholder Approval. This Agreement shall have been adopted by the
necessary vote of holders of the capital stock of the Constituent Corporations
as set forth in Section 8 hereof.
9.4 Delivery of Note and Note Payment. Receipt by Murray Fox of an executed
Note in the form attached as Schedule "N" and a principal payment of $125,000 to
the Holder of the Note Murray Fox. The Note shall reflect a principal amount of
$440,000 and the surviving corporation as the Obligor. The remaining balance due
on the note after such payment will be $315,000. The Note is evidence of and
represents the balance due on a pre merger liability to both Murray Fox and Bea
Fox that is reflected on the pre merger balance sheet. It is delivered in
consideration of the cancellation of the total amount of Notes presently held by
both Murray Fox and Bea Fox in like amount.
9.5. Dissenting Shareholders of Digi Link. The number of shares of Common
Stock of Digi Link with respect to which objections to the merger and demands
for payment of the fair value thereof shall have been made in accordance with
the provisions of Section 262 of the State of Delaware Corporation Law, and with
respect to which such demands shall not have been withdrawn with the consent of
Digi Link, shall not exceed 1 percent of the number of shares entitled to object
and make such demand.
10
<PAGE>
Section 10. Termination
10.1 Circumstances of Termination. This Agreement may be terminated
(notwithstanding approval by the shareholders of any party hereto):
(1) By the mutual consent in writing of the Boards of Directors of Digi
Link and IROC.
(2) By the Board of Directors of Digi Link, if any condition provided in
Section "8 " hereof has not been satisfied or waived on or before the
Effective Date.
(3) By the Board of Directors of IROC if any condition provided in Section
"9" hereof has not been satisfied or waived on or before the Effective
Date.
(4) By the Board of Directors of either Digi Link or IROC if the Effective
Date has not occurred by February 9, 2001, unless extended by written
mutual agreement of the parties.
10.2 Effect of Termination. In the event of a termination of this Agreement
pursuant to Section 14 hereof, each party shall pay the costs and expenses
incurred by it in connection with this Agreement and no party (or any of its
officers, directors and shareholders) shall be liable to any other party for any
costs, expenses, damage or loss of anticipated profits hereunder.
Section 11. Effective Date of Merger
After adoption and approval of this Agreement by the shareholders of Digi
Link in accordance with the requirements of applicable law, and upon
satisfaction of each of the conditions set forth in Sections 8 and 9 (unless
waived in accordance with this Agreement) and in the absence of any facts that
would give any party hereto a right to terminate this Agreement (which right has
not been waived), and at such time as shall be agreed upon in writing by
Surviving Corporation, IROC and Digi Link an executed counterpart of this
Agreement, certified as to the requisite shareholder approval, shall be
submitted for filing with the Secretary of State of the State of Delaware, The
date of the such filing, or such other date as the parties may agree upon in
writing pursuant to applicable law, is referred to in this Agreement as the
"Effective Date".
Section 12. Survival
The representations, warranties and covenants of Murray Fox, IROC or Digi
Link, or the certifications by the officers of Surviving Corporation, IROC or
Digi Link provided for in this Agreement, shall survive the Effective Date.
11
<PAGE>
Section 13. General Provisions
13.1 Further Assurances. At any time, and from time to time, after the
Effective Date, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
13.2 Waiver. Any failure on the part of either party hereto to com ply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
13.3 Brokers. Each party represents to the other party that no broker or
finder has acted for it in connection with this Agreement, and agrees to
indemnify and hold harmless the other party against any fee, loss or expense
arising out of claims by brokers or finders employed or alleged to have been
employed by it.
13.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first-class registered or certified mail, return receipt re- quested, as
follows:
If to Digi Link: Mr. Peter Jegou
Digi Link Technologies, Inc.
75 Lincoln Highway
Iselin, NJ 08830
With a copy to: Nancy Van Sant, Esq.
Sacher, Zelman, Van Sant, Paul,
Beiley, Hartman & Waldman
1401 Brickell Ave, Suite 700
Miami, Florida 33131
If to IROC: Mr. Murray Fox
IROC
112 Main Street
Webster, MA 01570
12
<PAGE>
13.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof and shall be binding on their heirs, successors and assigns.
13.6 Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.7 Governing Law and Venue. This Agreement shall be and enforced in the
Courts of the State of New Jersey with the venue in the county of Middlesex.
13.8 Assignment. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
13.9 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.10. Public Statements. None of the Shareholders, IROC nor Digi Link
shall issue any press release or other public statement concerning the
transactions contemplated by this Agreement without first providing the others
with a written copy of the text of such release or statement and obtaining the
consent of the others respecting such release or statement which shall not be
unreasonably withheld.
13.11. Number and Gender of Words. Whenever herein the singular number is
used, the same shall include the plural where appropriate, and the words of any
gender shall include each other gender where appropriate.
13.12. Invalid Provisions. If any provision hereof is held to be illegal,
invalid or unenforceable under present or future laws effective during the terms
hereof, such provision shall be fully severable; 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 no be affected by the illegal, invalid
or unenforceable provision or by its severance here from. In lieu of such
illegal, invalid or unenforceable provision there shall be added automatically
as a part hereof a provision as similar in terms of such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
13.13 Entirety of Agreement. This Agreement contains the entire agreement
among the parties. No representation, inducements, promises or agreements, oral
or otherwise, which are not embodied herein shall be of any force or effect.
13.14 Facsimile Signatures. All signatures transmitted by facsimile
machines are hereby deemed legal and binding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Digi Link Technologies, Inc.
BY:/s/Peter J. Jegou
----------------------------------
Peter J. Jegou, Chairman and
Chief Executive Officer
IR Operating Corporation
BY:/s/Murray Fox /s/Murray Fox
--------------------------- ----------------------------
Murray Fox, President Murray Fox, Individual
13
<PAGE>
Schedule "A"
List of Outstanding Digi Link, Inc. Subscription Agreements
DATE PERSON # OF
SHARES
--------------------- -------------------------------- ---------------------
9/25-10/17/00 DIANE VANROSSUM 500,000
--------------------- -------------------------------- ---------------------
10/6-11/10/00 E. MICHAEL THOMAS 500,000
--------------------- -------------------------------- ---------------------
10/12-11/10/00 MIKE W. HONEYCUTT 500,000
--------------------- -------------------------------- ---------------------
10/16/00 JOHN D. ROEHRS 250,000
--------------------- -------------------------------- ---------------------
10/17/00 ROGER E. MENDIS, MD 250,000
--------------------- -------------------------------- ---------------------
10/30/00 RITA A. KUGEL 125,000
--------------------- -------------------------------- ---------------------
11/7/00 GORDON D. WAGNER 187,500
--------------------- -------------------------------- ---------------------
11/10/00 LUMBOMYR T. ROMANKIW 1,000,000
--------------------- -------------------------------- ---------------------
TOTAL: 3,312,500
<PAGE>
Schedule "B"
Liabilities Not Disclosed On Digi Link Balance Sheet
NONE
<PAGE>
Schedule "C"
Material Changes To Digi Link Since The Date Of The Digi Link Balance Sheet
NONE
<PAGE>
Schedule "D"
Digi Link Litigation
NONE
<PAGE>
Schedule "E"
Digi Link Material Contracts Not In The Ordinary Course Of Business
NONE
<PAGE>
Schedule "F"
Digi Link Title Encumbrances
NONE
<PAGE>
Schedule "G"
Digi Link Exceptions to Adequacies of Tax Reserves
NONE
<PAGE>
Schedule "H"
Digi Link Intellectual Property and Licenses
SMR SYSTEMS
Ohio, Toledo WPCX351
North Carolina, Charlotte WPCY434
South Carolina, Columbia WPCX348
Louisiana, New Orleans WPGQ870
Satellite Earth Station E950524
North Carolina, Charlotte WPD1273
Pennsylvania, Harrisburg WPEN965
Texas, El Paso WPCD849
North Carolina, Raleigh WPCX454
North Carolina -- Raleigh, Greenville and Fayetteville SPECTRUM AUCTION AWARDED
WPOI631, 632, 633, 634, 635, 636
<PAGE>
Schedule "I"
IROC Liabilities Not Disclosed On September 30, 2000 Balance Sheet
NONE
<PAGE>
Schedule "J"
IROC Litigation
NONE
<PAGE>
Schedule "K"
IROC Contracts Not In The Ordinary Course Of Business
NONE
<PAGE>
Schedule "L"
IROC Encumbrances On Title
NONE
<PAGE>
Schedule "M"
IROC Exceptions To Adequacies Of Tax Reserves
NONE
<PAGE>
SCHEDULE "N"
PROMISSORY NOTE
$440,000 Date:_________________
FOR VALUE RECEIVED, the undersigned hereby promises to pay to MURRAY FOX
("Fox"), or order, at 112 Main Street, Webster, Mass 01570, or at such other
address as the holder may specify in writing, the principal sum of FOUR HUNDRED
AND FORTY THOUSAND AND 00/100 DOLLARS ($440,000) plus interest in the manner and
upon the terms and conditions set forth below.
1. Rate of Interest
This Promissory Note ("Note") shall bear interest at a per annum rate equal
to eight (8%) on the unpaid balance. Interest charged on this Note shall be
computed on the basis of a three hundred sixty (360) day year and charged for
actual days elapsed.
2. Schedule of Payments
Principal and interest under this Note shall be due and payable according
to the following schedule: (a) interest shall be due and payable as set forth
below commencing January 1, 2001, and continuing thereafter until this Note has
been paid in full; (b) installments of principal to be paid as follows:
$125,000 plus interest due and payable on the unpaid balance on the earlier
of, (i) February 1, 2001 or (ii) the date a Certificate of Merger is filed with
the State of Delaware by the undersigned.
$50,000 plus interest due and payable on the unpaid balance on the earlier
of, (i) March 15, 2001 or (ii) 45 days after the date on which a Certificate of
Merger is filed with the State of Delaware by the undersigned.
$50,000 plus interest due and payable on the earlier of, (i) June 15, 2001
or (ii) 90 days after a Certificate of Merger is filed with the State of
Delaware by the undersigned.
Thereafter twelve (12) payments each of interest and principal in the
amount of Eighteen Thousand seven hundred and three Dollars ($18,703), shall be
due and payable on the first (1st) day of each month commencing July 1, 2001,
and continuing thereafter until this Note is paid in full; (c ) the outstanding
principal balance of this Note, together with all accrued and unpaid interest
thereon, shall be due and payable in full on June 1, 2002.
3. Prepayment
This Note may be prepaid, in whole or in part, at any time without penalty.
Partial prepayments of principal shall be applied to scheduled payments of
principal in the inverse order of their maturity.
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4. Holder's Right of Acceleration
Upon the occurrence of an Event of Default under the Agreement (as defined
below), including, but not limited to, the failure to pay any installment of
principal or interest hereunder when due, the holder of this Note may, at its
election and without notice to the undersigned, declare the entire balance
hereof immediately due and payable.
5. Additional Rights of Holder
If any installment of principal or interest hereunder is not paid when due,
the holder shall have the following rights in addition to the rights set forth
herein, in the Agreement, and under law:
(a) the right to compound interest by adding the unpaid interest to
principal, with such amount thereafter bearing interest at the rate provided in
this Note; and
(b) if any installment is more than ten (10) days past due, the right to
collect a charge equal to the greater of Fifteen Dollars ($15) or five percent
(5.0%) of the late payment for each month in which it is late. This charge is a
result of a reasonable endeavor by the undersigned and the holder to estimate
the holder's added costs and damages resulting from the undersigned's failure to
make timely payments under Note; hence the undersigned agrees that the charge
shall be presumed to be the amount of damage sustained by the holder since it is
extremely difficult to determine the actual amount necessary to reimburse the
holder for damages.
6. Right of Set Off
The undersigned shall have the right of set off against the obligations set
forth in this Note as provided in Section 1.6 of the Asset Purchase Agreement
("Agreement") entered into between the Holder and the Undersigned in January
2001. A copy of the Agreement is attached as Exhibit "A".
7. General Provisions
(a) If this Note is not paid when due, the undersigned further promises to
pay all costs of collection, foreclosure fees, and reasonable attorney's fees
incurred by the holder, whether or not suit is filed hereon.
(b) The undersigned hereby consents to any and all renewals, replacements,
and/or extensions of time for payment of this Note before, at, or after
maturity.
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<PAGE>
(c) The undersigned hereby consents to the acceptance, release, or
substitution of security for this Note.
(d) Presentment for payment, notice of dishonor, protest, and notice of
protest are hereby expressly waived.
(e) Any waiver of any rights under this Note, the Agreement, or under any
other agreement, instrument, or paper signed by the undersigned is neither valid
nor effective unless made in writing and signed by the holder of this Note.
(f) No delay or omission on the part of the holder of this Note in
exercising any right shall operate as a waiver thereof or of any other right.
(g) A waiver by the holder of this Note upon any one occasion shall not be
construed as a bar or waiver of any right or remedy on any future occasion.
(h) Should any one or more of the provisions of this Note be determined
illegal or unenforceable, all other provisions shall nevertheless remain
effective.
(i) This Note cannot be changed, modified, amended, or terminated orally
and any modifications or amendments thereto must be in writing signed by all the
parties hereto.
8. Choice of Law and Venue
THE VALIDITY OF THIS NOTE, THE AGREEMENT OR ANY MATTER OR PROCEEDING
RELATING HERETO OR THERETO, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW JERSEY,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES AGREE THAT ALL
ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS NOTE OR THE AGREEMENT
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE
COUNTY OF MIDDLESEX, STATE OF NEW JERSEY.
IN WITNESS WHEREOF, this Note has been executed and delivered on the date
first set forth above.
By: Digi Link Technologies, Inc.
Its:____________________________
Peter Jegou, President
3
<PAGE>
SCHEDULE "O"
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, ("the Agreement") is made and entered into
as of , 2001 between Murray Fox, a resident of Massachusetts hereinafter
referred as ("Buyer") and Digi Link Technologies, Inc., ("Seller"), a Delaware
Corporation.
In consideration of the mutual covenants, agreements, representations and
warranties herein contained, and intending to be legally bound, the parties
agree as follows:
1. Purchase and Sale of Assets.
1.1 Assets to be Acquired. On the terms and subject to the conditions of
this Agreement, at the Closing (hereinafter defined), Seller shall sell and
deliver to Buyer, and Buyer shall purchase and acquire, all the certain assets,
relating to the recycling business of Seller known as IROC ("IROC") that are set
forth on Schedule "A" (the "Assets to be Acquired").
1.2 Consideration. The consideration for the Assets to be Acquired shall
consist of 825,000 shares of common stock of Digi Link Technologies, Inc. and
assumption of certain liabilities of Seller by Buyer, the aggregate total of
which shall constitute "the Purchase Price".
At the Closing, the Seller will deliver a "Closing Statement". The Closing
Statement will set forth the assets to be acquired and the liabilities to be
assumed by the Buyer.
1.3 Assumption of Liabilities. At the Closing, Buyer will assume all
obligations, liabilities, claims and demands contractual obligations of Seller
arising from, related to or associated with the Assets to be Acquired ("the
Accepted Liabilities") and Buyer agrees to pay and discharge the Accepted
Liabilities in due course and hereby agrees to save and hold Seller harmless
from the Accepted Liabilities.
1.4 Undertaking as to Obligations. At the Closing, Buyer shall assume and
agree to observe, perform and fulfill the terms and conditions to be observed,
performed and fulfilled subsequent to the Closing and hereby agrees to indemnify
and hold harmless Seller from, and against any claim or liability arising from
the contracts, agreements, leases, patents, licenses, commitments and
undertakings of Seller set forth on Schedule "A" and duly assigned to Buyer at
the Closing.
1
<PAGE>
1.5 Limitations as to Assumption and Undertaking. The provisions of
Paragraphs 1.3 and 1.4 shall not confer any rights on any person not a party to
this Agreement, and Buyer reserves all defenses, offsets or counterclaims in
respect of any liabilities assumed or undertakings made herein.
1.6 Right of Set Off. In the event the Seller suffers an out of pocket loss
arising from the Accepted Liabilities or a default of Buyer pursuant to Section
1.4 ("Loss"), the Seller shall have, in addition to its other remedies, the
right of set off the Loss against any balance due Buyer on the Note as defined
in Section 9.4 the Agreement and Plan of Reorganization dated December 27, 2000
by and between IR Operating Corporation ("Holder") and Digi Link Technologies,
Inc ("Payor"). A copy of the Note is attached hereto as Schedule "B".
2. Closing.
2.1 Time and Place of Closing. Closing hereunder (the "Closing") shall take
place at the offices of Seller, 75 Lincoln Highway, Iselin, New Jersey 08830 at
10:00 a.m. local time on such date or such other time as shall be agreed on
between the parties hereto, which shall be no later than January 31, 2001. ("the
Closing Date").
2.2 Deliveries by Seller. At the Closing, Seller shall execute and deliver
to Buyer the following:
(a) Good and sufficient bills of sale with covenants of warranty of title,
endorsements, assignments and other good and sufficient instruments of sale,
transfer and assignment, in form and substance satisfactory to Buyer with all
required state and local documentary and transfer stamps affixed, as shall be
required or as may be desirable in order to vest effectively in Buyer good,
indefeasible and marketable title to the Assets to be Acquired, free and clear
of all liens, encumbrances, security interests and other burdens.
(b) All books of account, business records, documents maintained by or for,
or necessary or useful in the operation of the recycling business of IROC.
2.3 Further Assurances. At any time and from time to time after the
Closing, Seller shall, at the request of Buyer, take all action necessary to put
Buyer in actual possession and operating control of the Assets to be acquired
and shall execute and deliver such further instruments of sale, conveyance,
transfer, assignment and consent, and use its best efforts to obtain such
further consents and take such other action, as Buyer may request in order to
more effectively sell, convey, transfer and assign to Buyer any of the Assets to
be Acquired, to confirm the title of Buyer thereto and to assist Buyer in
exercising its rights with respect thereto.
2
<PAGE>
2.4 Deliveries by Buyer. At the Closing, Buyer shall deliver to Seller the
following:
(a) The securities described in Paragraph 1.2.
(b) The assumption of liabilities and indemnification described in
Paragraph 1.3 and 1.4.
(c) The undertaking as to the obligations described in Paragraph 1.4.
2.5 Further Assurances. At any time and from time to time after the
Closing, Buyer shall, at the request of Seller, take all action necessary to
more effectively assume the obligations described in Paragraph 1.3 and 1.4
hereof.
3. Representations and Warranties of Seller.
3.1 Qualification. Seller has the power to own its properties and conduct
its business.
3.2 Authorization. Seller has the power to execute, deliver, and carry out
the terms and conditions of this Agreement and has taken all action with respect
thereto, and the Agreement has been duly authorized, executed and delivered by
Seller and constitutes their valid, legal and binding agreement and obligation
in accordance with the terms hereof, except as may be limited by applicable
bankruptcy, insolvency, reorganization or other laws and equitable principles
affecting creditors' rights generally from time to time in effect.
3.3 Title to Assets. Seller makes no warrant as to title but will transfer
all of its rights, titles and interest to Buyer "as is" and "where is" with no
warranties.
4. Survival of Representations; indemnification.
4.1 Survival of Representations. All representations and warranties made by
any party hereto in this Agreement or pursuant hereto shall survive the Closing
hereunder and any investigation at any time made by or on behalf of the other
party to this Agreement, but any claims as to a breach thereof must be asserted
by notice to the party affected within one (1) year following the date of the
Closing.
3
<PAGE>
5. Miscellaneous.
5.1 Condition Precedent. Seller's obligation to sell and Buyer's obligation
to buy are contingent on closing of the merger and reorganization agreement
between IROC and Digi Link.
5.2 Expenses. Each party agrees to be responsible for the payment of all
expenses incurred by or on behalf of it or him in connection with the
preparation, authorization, execution and performance of this Agreement,
including without limitation all fees for counsel, accountants and consultants.
5.3 Notices. All notices, demands and communications hereunder shall be in
writing and shall be deemed to be duly given if delivered upon personal delivery
or 2 days after deposit in the U.S. mail by registered or certified mail,
postage pre-paid, return receipt requested, as follows:
If to Seller: Digi Link Technologies, Inc.
75 Lincoln Highway
Iselin, New Jersey 08830
If to Buyer: Murray Fox
112 Main Street
Webster, MA
With a copy of
notice to Attorney: Nancy Van Sant, Esq.
Sacher, Zelman, Van Sant, Paul,
Beiley, Hartman & Waldman
1401 Brickell Ave, Suite 700
Miami, Florida 33131
5.4 Entire Agreement. This Agreement, and the exhibits and schedules
referred to herein or delivered pursuant hereto, contains the entire
understanding of the parties with respect to the subject matter, and supersedes
all prior agreement and understandings between the parties with reference
thereto. This Agreement may be amended only by a written instrument duly
executed by the parties.
5.5 Headings. The sections and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
interpretation of this Agreement.
4
<PAGE>
5.6 Successors and Assigns. This Agreement may not be assigned by Buyer
without the consent of Seller, except that Buyer may assign the various
covenants, representations and warranties of Seller to the extent necessary to
satisfy the requirements of any financial institution extending credit to Buyer.
Subject to the foregoing, the terms and conditions of this Agreement shall bind,
and inure to the benefit of, the parties hereto and their respective successors,
personal representatives and assigns.
5.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
5.8 Limitations. The representations and warranties set forth in this
Agreement, the schedules and exhibits hereto and the certificates to be
delivered at the Closing pursuant to this Agreement hereof constitute the only
warranties made by the parties hereto with respect to the transactions
contemplated hereby, and the property to be transferred pursuant hereto and such
warranties supersede all representations and warranties, written or oral,
previously made by the parties hereto.
5.9 Choice of Law.
This Agreement shall be interpreted and enforced pursuant to the laws of
the State of New Jersey.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
Witness:
----------------------
Witness:
----------------------
Attest:
----------------------
President
5
<PAGE>
SCHEDULE "A"
Assets To Be Acquired
a. Independent Contractor Agreement - This Independent Contractor Agreement
("Agreement") dated April 5, 2000, by and between Gary Estepp ("Consultant") and
IR Operating Corporation, a Delaware Corporation ("Company").
b. License Agreement - The Agreement dated 22nd day of December 199,
between, IR of New Jersey ("IRNJ") a New Jersey corporation and IR Operating
Corporation a Delaware corporation ("IR").
c. Lease Contract - Lease Contract dated 1st day of March, 2000 by and
between AREA JOBS DEVELOPMENT ASSOCIATION, an Illinois Not-for-Profit
Corporation with its principal office located at 231 East Broadway, Bradley,
Illinois 60915 (Landlord), and IR OPERATING CORPORATION, (Tenant) for a
commercial building located at 231 East Broadway, Bradley, Illinois.
d. Assignment - An assignment of all rights and titles to an invention of
MURRAY J. FOX and ANTHONY E. CONTE, entitled REINFORCED PLASTIC PALLET for which
application for Letters Patent of the United States were filed.
e. Assignment of Patent - Patent no. 5,169,588, Serial No. 07696157
originally filed May 6, 1991, and issued December 8, 1992.
f. Assignment of Patent for Plastic Recycling Process - Patent # 5,921,189
the Plastic Recycling Process.
g. Consulting Agreement - Agreement as of April 01, 2000, by and between IR
Operating Corporation, of 112 Main Street, Webster, Massachusetts 01570 and ARM
CP, P.O. Box 281, Bellaire, Texas 77402-0281.
h. Employment Agreement - Agreement dated 16th day of April, 1999 between
Murray Fox, residing at 386 Pompeo Road, Wilsonville, CT, (hereinafter referred
to as the "Executive") and I-ROCK Enterprises, Inc.,
i. Names and Trademarks - The names "IR Operating Corporation", "IROC",
IROC Industries, Inc., and the "Service Mark" "IROC Process".
j. Equipment - All of the equipment that is reflected in the September 31,
2000, balance sheet and is located at the Bradley Plant located at 231 East
Broadway, Bradley, Illinois.
