EXHIBIT B
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT
DATED AS OF
JUNE 30, 2000
AMONG
OLD NIGHT, INC.
INTERNATIONAL LONG DISTANCE CORPORATION
AND
THE STOCKHOLDERS OF
INTERNATIONAL LONG DISTANCE CORPORATION LISTED ON
THE SIGNATURE PAGES OF THIS AGREEMENT
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TABLE OF CONTENTS
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PAGE
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ARTICLE I - DEFINITIONS
Section 1.1 Definitions..................................................................................1
ARTICLE II - EXCHANGE OF SHARES
Section 2.1 Exchange of Shares...........................................................................2
Section 2.2 Closing......................................................................................2
Section 2.3 FIRPTA Withholding...........................................................................3
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF ILDC
Section 3.1 Corporate Existence and Power................................................................3
Section 3.2 Corporate Authorization......................................................................3
Section 3.3 Governmental Authorization...................................................................3
Section 3.4 Non-Contravention............................................................................3
Section 3.5 Capitalization...............................................................................3
Section 3.6 Subsidiaries.................................................................................3
Section 3.7 Financial Statements.........................................................................4
Section 3.8 Absence of Certain Changes...................................................................4
Section 3.9 No Undisclosed or Contingent Liabilities.....................................................5
Section 3.10 Material Contracts..........................................................................5
Section 3.11 Litigation..................................................................................6
Section 3.12 Compliance with Laws and Court Orders.......................................................6
Section 3.13 Title to Properties: Encumbrances...........................................................6
Section 3.14 Equipment..................................................................................6
Section 3.15 Taxes.......................................................................................6
Section 3.16 Consents and Approvals......................................................................6
Section 3.17 Insurance...................................................................................6
Section 3.18 Customers and Suppliers.....................................................................7
Section 3.19 Accounts Receivable.........................................................................7
Section 3.20 Certain Interests...........................................................................7
Section 3.21 Intellectual Property......................................................................7
Section 3.22 Employee Benefit Plans......................................................................8
Section 3.23 Labor Matters...............................................................................8
Section 3.24 Licences and Permits........................................................................8
Section 3.25 Personnel..................................................................................8
Section 3.26 Bank Accounts...............................................................................8
Section 3.27 Environmental Matters.......................................................................8
Section 3.28 Disclosure..................................................................................9
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS AS TO THEMSELVES
Section 4.1 Capacity.....................................................................................9
Section 4.2 Title........................................................................................9
Section 4.3 Valid Agreement..............................................................................9
Section 4.4 Litigation...................................................................................9
Section 4.5 Trust Constitution and Power.................................................................9
Section 4.6 Governmental Authorization; Consents.........................................................9
Section 4.7 Non-Contravention...........................................................................10
Section 4.8 Acquisition for Investment; Informed Decision...............................................10
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF OLD NIGHT
Section 5.1 Corporate Existence and Power...............................................................10
Section 5.2 Corporate Authorization.....................................................................10
Section 5.3 Governmental Authorization..................................................................10
Section 5.4 Non-Contravention...........................................................................10
Section 5.5 Capitalization..............................................................................11
Section 5.6 Reports and Financial Statements............................................................11
Section 5.7 Litigation..................................................................................12
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Section 5.8 Validity of Stock...........................................................................12
Section 5.9 No Undisclosed or Contingent Liabilities...................................................12
Section 5.10 Absence of Certain Changes...............................................................12
Section 5.11 Litigation. Orders.........................................................................12
Section 5.12 Title to Properties: Encumbrances..........................................................12
Section 5.13 Equipment..................................................................................12
Section 5.14 Compliance with Law.......................................................................12
Section 5.16 Consents and Approvals.....................................................................13
Section 5.17 Contracts, Commitments and Returns.........................................................13
Section 5.18 Insurance.................................................................................13
Section 5.19 Accounts Receivable........................................................................13
Section 5.20 Certain Interests..........................................................................13
Section 5.21 Employee Benefit Plans....................................................................13
Section 5.22 Labor Matters..............................................................................13
Section 5.23 Personnel..................................................................................13
Section 5.24 Environmental..............................................................................13
Section 5.25 Securities Laws............................................................................13
Section 5.26 Disclosure.................................................................................14
ARTICLE VI - COVENANTS OF ILDC AND THE STOCKHOLDERS
Section 6.1 Conduct of ILDC.............................................................................14
Section 6.2 ILDC Common Shares..........................................................................16
Section 6.3 Access to Information.......................................................................16
ARTICLE VII - ADDITIONAL COVENANTS OF THE PARTIES
Section 7.1 Best Efforts................................................................................16
Section 7.2 Old Night Annual Stockholder Meeting; Information Statement.................................16
Section 7.3 Certain Filings.............................................................................17
Section 7.4 Public Announcements........................................................................17
Section 7.5 Notices of Certain Events...................................................................17
ARTICLE VIII - CONDITIONS TO CLOSING
Section 8.1 Conditions to Obligations of Old Night and the Stockholders.................................17
Section 8.2 Conditions to Obligation of Old Night.......................................................18
Section 8.3 Conditions to Obligations of Stockholders...................................................18
ARTICLE IX - TERMINATION
Section 9.1 Grounds for Termination.....................................................................19
Section 9.2 Effect of Termination.......................................................................19
ARTICLE X - MISCELLANEOUS
Section 10.1 Survival...................................................................................20
Section 10.2 Notices....................................................................................20
Section 10.3 Amendments and Waivers.....................................................................21
Section 10.4 Expenses...................................................................................21
Section 10.5 Successors and Assigns.....................................................................21
Section 10.6 Governing Law..............................................................................21
Section 10.7 Jurisdiction...............................................................................21
Section 10.8 Counterparts; Third Party Beneficiaries....................................................21
Section 10.9 Entire Agreement...........................................................................22
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SHARE EXCHANGE AGREEMENT
THIS AGREEMENT dated as of June 30, 2000 among Old Night,
Inc., a Nevada corporation ("Old Night"), International Long Distance
Corporation, a North Carolina corporation ("ILDC"), and the Stockholders of ILDC
listed on the signature pages of this Agreement (each a "Stockholder" and
collectively, the "Stockholders").
WHEREAS, each Stockholder is the owner of the number of shares
of common stock, par value $1.00 per share, of ILDC ("ILDC Common Shares") set
forth next to the name of such Stockholder on the signature pages of this
Agreement, such shares representing in the aggregate 80% of the issued and
outstanding ILDC Common Shares;
WHEREAS, the Stockholders and Old Night desire to effect an
exchange (the "Exchange") of ILDC Common Shares for shares of common stock, par
value $0.001 per share, of Old Night (the " Old Night Common Shares"), on the
terms and subject to the conditions set forth in this Agreement;
WHEREAS, for federal income tax purposes, it is intended that
the Exchange shall qualify as a reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code")
WHEREAS, the obligation of the Stockholders to consummate the
Exchange is subject to the approval by the stockholders of Old Night of the
appointment of Messrs. Anthony Overman, Don Spears and Mark Sampson to the Board
of Directors of Old Night and the amendment to the Old Night Charter to change
its name to NxGen Networks, Inc., such appointments and name change to take
effect only if the Exchange is consummated; and
WHEREAS, the Board of Directors of Old Night (the "Board of
Directors") has approved this Agreement, subject to the approval thereof by the
stockholders of Old Night in accordance with this Agreement, the requirements of
Nevada corporate law.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
(a) The following terms, as used herein, have the following
meanings:
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or
under common control with such Person; PROVIDED that for
purposes of this Agreement, unless express provision is made
to the contrary, (i) neither ILDC nor any of its Subsidiaries
nor any Stockholder shall be considered an Affiliate of Old
Night and (ii) neither Old Night nor any of its Subsidiaries
shall be considered an Affiliate of ILDC.
"Balance Sheet" means the consolidated balance sheet of ILDC
and its Subsidiaries as of December 31, 1999.
"Balance Sheet Date" means December 31, 1999.
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"Benefit Arrangements" means all life and health insurance,
hospitalization, savings, bonus, deferred compensation,
incentive compensation, holiday, vacation, severance pay, sick
pay, sick leave, disability, retirement benefits, tuition
refund, service award, company car, scholarship, relocation,
fringe benefit, contracts, collective bargaining agreements,
workers' compensation, individual employment, consultancy or
severance contracts and other policies (whether written or
oral) or practices of providing employee or executive
compensation or benefits to employees which in any such case
is or was maintained, administered or contributed to by ILDC
or its Subsidiaries or in which ILDC or its Subsidiaries
participates or participated and which provides benefits to
current or former employees of ILDC or its Subsidiaries, other
than Employee Benefit Plans.
"Closing Date" means the date of the Closing.
"Material Adverse Effect" means an effect that would (i)
result in ILDC and its Subsidiaries having, as of or after the
Closing, any liabilities that would result or could reasonably
be expected to result in any liability that is material to
ILDC and its Subsidiaries, taken as a whole, other than
liabilities as to which ILDC has disclosed to Old Night, or
(ii) adversely affect or delay in any material respect the
consummation of the transactions contemplated by this
Agreement.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership,
association, trust or other entity or organization, including
a government or political subdivision or an agency or
instrumentality thereof.
"Pro Rata Share" means with respect to any Stockholder, the
ratio determined by dividing the number of ILDC Common Shares
owned by such Stockholder as of the Closing by the number of
ILDC Common Shares owned by all Stockholders as of the
Closing.
"Subsidiary" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by such Person.
ARTICLE II
EXCHANGE OF SHARES
Section 2.1 Exchange of Shares. On the terms and subject to the conditions of
this Agreement, each Stockholder agrees to exchange ILDC Common Shares owned by
it for the number of Old Night Common Shares set forth opposite such
Stockholder's name on the signature page of this Agreement.
Section 2.2 Closing. The closing (the "Closing") of the Exchange shall take
place at the offices of ILDC, Global Tech Center, Hertford, North Carolina, as
soon as possible, but in no event sooner than five business days nor later than
10 business days, after satisfaction of the conditions set forth in Article IX,
or at such other time or place as Old Night and the Stockholders may agree. At
the Closing:
(a) Each Stockholder shall deliver to Old Night certificates for ILDC
Common Shares being exchanged by such Stockholder duly endorsed or
accompanied by stock powers duly endorsed in blank, with any required
transfer stamps affixed thereto.
(b) ILDC shall deliver to Old Night:
(i) a certificate, dated as of the Closing Date and executed by an
authorized officer of ILDC certifying the fulfillment of the
conditions specified in Article VIII, and
(ii) a certificate, dated as of the Closing Date and executed by the
Secretary of ILDC certifying ILDC's articles of incorporation and
all amendments, bylaws and resolutions of ILDC's board of
directors attached to the certificate.
(c) Old Night shall deliver to ILDC:
(i) a certificate, dated as of the Closing Date and executed by an
authorized officer of Old Night certifying the fulfillment of the
conditions specified in Article VIII, and
(ii) a certificate, dated as of the Closing Date and executed by the
Secretary of Old Night certifying Old Night's articles of
incorporation and all amendments, bylaws and resolutions of Old
Night's board of directors attached to the certificate.
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Old Night shall deliver to each Stockholder appropriately legended certificates
for the number of Old Night Common Shares contemplated by Section 2.1 no later
than five days from Closing.
Section 2.3 FIRPTA Withholding. Unless Old Night shall have received from each
of the Stockholders certification signed by such Stockholder to the effect that
such Stockholder is not a "foreign person" as defined in Section 1445 of the
Code, Old Night shall withhold and remit to the Internal Revenue Service the
amount required by Section 1445 of the Code to be withheld with respect to such
Stockholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ILDC
ILDC represents and warrants to Old Night that:
Section 3.1 Corporate Existence and Power. ILDC is a corporation duly
incorporated, validly existing and in good standing under the laws of North
Carolina and has all corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. ILDC has heretofore delivered to Old Night true and
complete copies of its certificate of incorporation and bylaws as currently in
effect. Except as set forth on Schedule 3.1, ILDC does not do business as a
foreign corporation in any jurisdiction where the failure to be qualified as a
foreign corporation would have a material adverse effect on the operations,
condition (financial or other), assets, liabilities, earnings or prospects of
ILDC.
Section 3.2 Corporate Authorization. The execution, delivery and performance by
ILDC of this Agreement are within ILDC's corporate powers and have been duly
authorized by all necessary corporate action on the part of ILDC. This Agreement
constitutes a valid and binding agreement of ILDC.
Section 3.3 Governmental Authorization. The execution, delivery and performance
by ILDC of this Agreement require no action by or in respect of, or filing with,
any governmental body, agency or official or any other applicable requirements.
Section 3.4 Non-Contravention. The execution, delivery and performance by ILDC
of this Agreement do not and will not:
(a) violate the certificate of incorporation or bylaws of each of
ILDC and its Subsidiaries,
(b) assuming compliance with the matters referred to in Section 3.3
and 4.6, violate in any material respect any applicable law,
rule, regulation, judgment, injunction, order or decree, or
(c) require any consent or other action by any Person under, other
than set out in Schedules 3.4, 3.10 and 3.13, or constitute a
default under, or give rise to any right of termination,
cancellation or acceleration of any right or obligation of ILDC
or any of its Subsidiaries or to a loss of any benefit to which
ILDC or any of its Subsidiaries is entitled under, any material
agreement or other instrument binding on ILDC or any of its
Subsidiaries or any material license, franchise, permit or other
similar authorization held by ILDC or any of its Subsidiaries.
Section 3.5 Capitalization. The authorized capital stock of ILDC consists of
11,000,000 shares of Common Stock with a par value of $1.00 per share of which
5,500,000 shares are outstanding as of the date of this Agreement. All
outstanding shares of capital stock of ILDC have been duly authorized and
validly issued and are fully paid and non-assessable. None of the outstanding
shares of capital stock of ILDC has been issued in violation of, or is subject
to, any preemptive or subscription rights. Except as set forth in Schedule 3.7
(with respect to the options which may be granted to BDR, Inc.), there are no
outstanding subscriptions, stock options, stock warrants, options or other
rights to acquire from ILDC, or other obligation of ILDC to issue, any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of ILDC. A complete list of the stockholders
of ILDC and the number and class of shares held is shown on Schedule 3.5.
There are no outstanding obligations of ILDC to repurchase, redeem or otherwise
acquire any ILDC Shares.
Section 3.6 Subsidiaries. ILDC has no subsidiaries. ILDC has, or has had, equity
investments in the entities referenced in Schedule 3.6.
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Section 3.7 Financial Statements. ILDC has delivered to Old Night copies of the
regularly-prepared consolidated balance sheet of ILDC and its Subsidiaries as of
December 31, 1999 and the related regularly-prepared consolidated statements of
income and changes in retained earnings for each of the years ended December 31,
1998 and 1997. Such financial statements present fairly the financial position
of ILDC and its Subsidiaries as of the dates thereof and their results of
operations and changes in retained earnings for the periods then ended, in each
case prepared on a tax basis, except as set forth on Schedule 3.7.
Section 3.8 Absence of Certain Changes. Except as set forth on Schedule 3.8,
since the date of the ILDC Balance Sheet, ILDC has conducted its business only
in the ordinary course and consistent with part practice, and has not:
(a) Suffered any material adverse change in its operations, condition
(financial or otherwise), assets, liabilities, earnings, working
capital or prospects;
(b) Incurred any liabilities or obligations (absolute, accrued, contingent
or otherwise) except immaterial items incurred in the ordinary course
of business and consistent with past practice (including obligations
or liabilities arising from one transaction or a series of related or
similar transactions, and all periodic installments or payments under
any lease of other agreement providing for periodic installments or
payments, as a single obligation or liability), or increased, or
experienced any change in any assumptions underlying or methods of
calculating, any bad debt, contingency or other reserves;
(c) Paid, discharged or satisfied any claims, liabilities or obligations
(absolute, accrued, contingent or otherwise) other than the payment,
discharge or satisfaction in the ordinary course of business and
consistent with past practice of liabilities and obligations reflected
or reserved against in the ILDC Balance Sheet or incurred in the
ordinary course of business and consistent with past practice since
the date of the ILDC balance Sheet;
(d) Permitted or allowed any of its assets to be subjected to any
mortgage, pledge, lien, security interest encumbrance, restriction or
charge of any kind;
(e) Written down the value of any inventory or written off as
uncollectible any notes or accounts receivable;
(f) Canceled any debts or waived any claims or rights or substantial
value;
(g) Sold, transferred or otherwise disposed of any of its properties or
assets, except in the ordinary course of business and consistent with
past practice;
(h) Disposed of or permitted to lapse any rights to the use of any patent,
trademark, trade name, service mark or copyright, or disposed of or
disclosed to any person any trade secret, formula, process or know-how
not therefore a matter of public knowledge;
(i) Granted any general increase in the compensation of employees
(including any such increase pursuant to any bonus, pension, profit
sharing or other plan or commitment) or any increase in the
compensation payable or to become payable to any employee, and not such
increase is customary on a periodic basis or required by agreement or
understanding;
(j) Made any capital expenditure or commitment for additions to its
property, equipment or intangible capital assets in excess of
$100,000;
(k) Made any change in any method of accounting or accounting practice or
failed to maintain its books, accounts and records in the ordinary
course of business and consistent with past practice;
(l) Failed to maintain any properties or equipment in good operating
condition and repair;
(m) Failed to maintain in full force and affect all existing policies of
insurance at least at such levels as were in effect prior to such date
or canceled any such insurance or taken or failed to take any action
that would enable the insurers under such policies to avoid liability
for claims arising out of occurrences prior to the Closing;
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(n) Entered into any transaction or made or entered into any material
contract or commitment, or terminated or amended any material contract
or commitment, except in the ordinary course of business and
consistent with past practice, and not in excess of current
requirements;
(o) Taken any action that could have a material adverse effect on its
business organization or its current relationships with its employees,
suppliers, distributors, advertisers, subscribers or others having
business relationships with it;
(p) Declared, paid or set aside for payment and dividend or other
distribution in respect of its capital stock or redeemed, purchased or
otherwise acquired, directly or indirectly, any shares of its capital
stock or other securities; or
(q) Agreed in writing or otherwise to take any action with respect to any
of the matters described in this Section 3.8.
Section 3.9 No Undisclosed or Contingent Liabilities. Except as set forth on
Schedule 3.9, ILDC has no liabilities or obligations of any nature (whether
absolute, accrued, contingent or otherwise and whether due or to become due)
that are not fully reflected on the ILDC Balance Sheet, except for liabilities
and obligations incurred in the ordinary course of business since the date
thereof, and there is no basis for the assertion against ILDC of any liability
or obligation of any nature whatsoever not fully reflected on the ILDC Balance
Sheet.
Section 3.10 Material Contracts.
(a) Except as disclosed in Schedule 3.10, ILDC is not a party to or bound
by:
(i) any lease (whether of real or personal property), other than
leases which in the aggregate provide for annual payments of less
than $50,000;
(ii) any agreement for the purchase of materials, supplies, goods,
services, equipment or other assets that will continue in effect
after the Closing other than such agreements which in the
aggregate provide for payments of less than $50,000;
(iii)any sales, distribution or other similar agreements providing
for the sale by ILDC or any of its Subsidiaries of materials,
supplies, goods, services, equipment or other assets that will
continue in effect after the Closing involving payments in the
aggregate in excess of $25,000;
(iv) any partnership, joint venture or other similar agreement or
arrangement;
(v) any agreement relating to the acquisition or disposition of any
business (whether by merger, sale of stock, sale of assets or
otherwise);
(vi) any agreement relating to indebtedness for borrowed money or the
deferred purchase price of property (in either case, whether
incurred, assumed, guaranteed or secured by any asset);
(vii)any license, franchise or similar agreement other than licenses,
franchises or agreements which in the aggregate provide for
payments of less than $50,000;
(viii) any agency, dealer, sales representative, marketing or other
similar agreements that will continue in effect after the Closing
involving payments in excess of $25,000;
(ix) any agreement that limits the freedom of ILDC or any of its
Subsidiaries to compete in any line of business or with any
Person or in any area or which would so limit the freedom of ILDC
or any of its Subsidiaries after the Closing Date;
(x) any material agreement with: (A) any Stockholder or any of its
Affiliates, (B) any Person 5% or more of whose outstanding voting
securities are directly or indirectly owned, controlled or held
with power to vote by ILDC, or (C) any director or officer of
ILDC or any of its Affiliates or any "associates" or members of
the "immediate family" (as such terms are respectively defined in
Rule 12b-2 and Rule 16a-1 of the 1934 Act) of any such director
or officer; or
(xi) any other material agreement, commitment, arrangement or plan
involving ILDC or any of its Subsidiaries that will continue
after the Closing.
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(b) Neither ILDC nor any of its Subsidiaries nor, to the knowledge of ILDC
or any Stockholder, any other party to any agreement, contract, plan,
lease, license, franchise, permit or other authorization, arrangement
or commitment disclosed in any Schedule to this Agreement or required
to be disclosed pursuant to this Section is in default or breach in any
material respect under the terms of any such agreement, contract, plan,
lease, license, franchise, permit or other authorization, arrangement
or commitment.
Section 3.11 Litigation. Except as disclosed on Schedule 3.11, there is no
action, suit, investigation or proceeding pending by or against or, to the
knowledge of ILDC, threatened against or affecting, ILDC or any of its
Subsidiaries or any of their respective properties (whether now or previously
owned) before any court or arbitrator or any governmental body, agency or
official, which could reasonably be expected to result in a material liability
to ILDC or any of its Subsidiaries or which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement.
Section 3.12 Compliance with Laws and Court Orders. To the best of its knowledge
ILDC is not in violation in any material respect of, and has not since inception
violated in any material respect, any applicable law, rule, regulation,
judgment, injunction, order or decree.
Section 3.13 Title to Properties: Encumbrances. Except as set forth on Schedule
3.13, ILDC does not own or lease any real property. ILDC has good, marketable
and defensible title to all of its properties and assets, including any
vehicles, free and clear of all liens, charges and encumbrances, except liens
for taxes not yet due and payable and such liens or other imperfections of
title, if any, that do not materially detract from the value of or interfere
with the present use of the property affected thereby or that would not and are
not reasonably likely to have a Material Adverse Effect, and all leases pursuant
to which ILDC leases other real or personal property, including any vehicles,
are in good standing, valid and effective in accordance with their respective
terms, and there is not under any such lease any existing default or event of
default (or to ILDC's knowledge any event which with notice or lapse of time, or
both, would constitute a default).
Section 3.14 Equipment. The equipment of ILDC has no known material defects and
is in good operating condition and repair (ordinary wear and tear excepted) and
is adequate for its current uses. None of such equipment is in need of known
maintenance or repairs except for ordinary routine maintenance and repairs that
are not material in nature or cost.
Section 3.15 Taxes.
(a) ILDC has timely filed (including any applicable extension periods) all
tax reports, returns and forms required to be filed by applicable
federal, state, local or foreign tax laws, and all such reports,
returns and forms are correct and complete; copies of all tax returns
for ILDC in respect of all years not barred by the statute of
limitations have been delivered by ILDC to Old Night. None of ILDC's
tax returns have been examined or audited by the Internal Revenue
Service or any other state or local taxing authority.
(b) Except as set forth in Schedule 3.15, ILDC has timely paid all federal,
state, local and foreign income payroll, withholding, excise, sales,
use, real and personal property, use and occupancy, business and
occupancy, business and occupation, mercantile, real estate, capital
stock and franchise or other tax due or claimed to be due from ILDC by
the Internal Revenue Service or any Authority. No tax liens have been
filed on any property or assets of ILDC and no claims are being
asserted with respect to any taxes.
(c) ILDC has complied with all applicable laws, rules and regulations
relating to the payment and withholding of taxes and has withheld all
amounts required by law to be withheld from the wages or salaries of
its employees, and is not liable for any taxes or other charges for
failure to comply with such laws, rules and regulations.
Section 3.16 Consents and Approvals. Except as set forth on Schedule 3.16, ILDC
is not required to obtain, transfer or cause to be transferred any consent,
approval, license, permit or authorization of, or make any declaration, filing
or registration with, any third party or any governmental or regulatory
authority in connection with (a) the execution and delivery of this Agreement,
(b) the execution and delivery of any agreement contemplated hereby, (c) the
consummation of the transactions contemplated hereby or thereby or (d) the
ownership and operation by Old Night of ILDC.
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Section 3.17 Insurance. All policies of fire, medical, life, liability, product
liability, workmen's compensation, health and other forms of insurance currently
in effect with respect to ILDC's business are in full force and effect, all
premiums with respect thereto covering all periods up to and including the
Closing Date have been paid, and no notice of cancellation, termination or
non-renewal has been received with respect to any such policy. Such policies are
sufficient for compliance with all requirements of law and of all agreements to
which ILDC is a party, are valid, outstanding and enforceable policies; provide
adequate insurance coverage for ILDC's business; and the coverage provided
thereby, with respect to any act or event occurring on or prior to the Closing
Date, will not in any way be affected by or terminate or lapse by reason of the
transactions contemplated by this Agreement. No risks with respect to the ILDC's
business are or have been designated by ILDC as being self-insured.
Section 3.18 Customers and Suppliers. No material adverse change has occurred in
the business relationship of ILDC with any of its significant customers or
suppliers and, to ILDC's knowledge, no facts exist and no events have occurred
that could reasonably be expected to result in a material adverse change to any
such relationship.
Section 3.19 Accounts Receivable. All accounts receivable of ILDC, whether
reflected on the ILDC Balance Sheet or subsequently created through the Closing
Date, represent sales actually made or services actually performed in the
ordinary course of business and are current and either have been collected in
full or to ILDC's knowledge will be collectable in full, without any setoff of
counterclaim.
Section 3.20 Certain Interests. Except as set forth on Schedule 3.20, neither
ILDC nor any officer, director or shareholder thereof, nor any of their
respective affiliates, has:
(a) any direct or indirect interest (other than the ownership of less than
one percent of the outstanding securities of a publicly held company)
in any corporation or business that competes with ILDC, or
(b) any direct or indirect interest in any property or assets used by, or
relating to ILDC or its business, except through the ownership of
ILDC's capital stock.
Section 3.21 Intellectual Property.
(a) ILDC owns, free and clear of all liens, mortgages, security interests,
charges and encumbrances and has good and marketable title to, or holds
adequate licenses or otherwise possess all rights necessary to use, all
patents, trademarks, service marks, trade names, copyrights (including
any applications for any of the foregoing), inventions, discoveries,
processes, know-how, trade secrets, scientific, technical, engineering
and marketing data, object and source codes, and techniques used or
proposed to be used in, or necessary for, the conduct of ILDC's
business as now conducted or proposed to be conducted (collectively,
the "Intellectual Property"). The attached Schedule 3.21 contains a
correct and complete list of all such Intellectual Property and any
applications pending or that have been denied.
(b) All applications for the registration of patents, trademarks and
copyrights constituting a part of the Intellectual Property are valid
and subsisting, and are duly recorded and being prosecuted in the name
of ILDC.
(c) ILDC to its knowledge has the sole and exclusive right to use all of
the Intellectual Property in all jurisdictions in which ILDC conducts
or proposes to be conducting its business, and the consummation of the
transactions contemplated hereby will not alter or impair any such
rights.
(d) No claims have been asserted by any person challenging or questioning
the ownership, validity, enforceability or use by ILDC of any of the
Intellectual Property and, to the knowledge of ILDC, there is not valid
basis for such claim, and to the knowledge of ILDC, the use or other
exploitation of the Intellectual Property by ILDC does not infringe on
or dilute the rights of any person; and to the knowledge of ILDC, no
other person is infringing on the rights of ILDC with respect to any of
the Intellectual Property.
(e) ILDC has taken reasonable security measures to protect the secrecy,
confidentiality and value of its trade secrets and other confidential
information.
<PAGE>
(f) ILDC has delivered to Old Night all documents with respect to any
invention, process, design, computer program or other know-how or trade
secret included in the Intellectual Property, which documents are
accurate in all material respects and reasonably sufficient in detail
and content to identify and explain such invention, process, design,
computer program or other know-how or trade secret and to facilitate
its full and proper use without reliance on the special knowledge or
memory of any person.
Section 3.22 Employee Benefit Plans. Schedule 3.22 sets forth a list of all
Employee Benefit Plans, Benefit Arrangements and Options. Except as set forth on
Schedule 3.22, no employee of ILDC or any of its Subsidiaries will be entitled
to any retirement, severance or similar benefit from ILDC or any of its
Subsidiaries after the Closing or will become entitled to any such benefit from
ILDC or any of its Subsidiaries after the Closing as a result of the
transactions contemplated by this Agreement. No Employee Benefit Plan is subject
to Title IV of ERISA and neither ILDC nor any of its Subsidiaries has incurred
any liability under Title IV of ERISA (whether direct, indirect, actual or
contingent).
Section 3.23 Labor Matters.
(a) ILDC has and is currently complying in al material respects with all
applicable laws relating to employment and employment practices, terms
and conditions of employment, and wages and hours, and is not engaged
in any unfair labor practice or unlawful employment practice;
(b) There is no unfair labor practice charge or complaint against ILDC
pending or threatened before the National Labor Relations Board nor, to
the knowledge of ILDC, is there any basis for any such charge or
complaint;
(c) There is no labor strike, slowdown or work stoppage pending or
threatened against ILDC;
(d) ILDC has not experienced any significant work stoppages or been a party
to any proceedings before the National Labor Relations Board involving
any significant issues or been a party to any arbitration proceedings
arising out of or under collective bargaining agreements; and
(e) There is no charge or complaint pending or threatened against ILDC
before the Equal Employment Opportunity Commission or the Department of
Labor or any state or local agency of similar jurisdiction. No
employees of ILDC are represented by any labor union and there is no
collective bargaining agreement in effect with respect to such
employees. To the knowledge of ILDC, no labor union has engaged in any
organizing activities with respect to ILDC's employees.
Section 3.24 Licences and Permits. ILDC has obtained, and is in compliance in
all material respects with, all necessary and material Governmental
Authorizations required by all federal, state, local and other governmental or
regulatory authorities and all courts and other tribunals for the conduct of the
business and operations of ILDC as now conducted (collectively, the "Permits").
To ILDC's knowledge: (i) there are no proceedings currently pending or
threatened which will validly result in the revocation, cancellation or
suspension, or any adverse modification, of any such Permits such that it will
materially and adversely affect ILDC and its business and/or assets, (ii) there
are no disciplinary actions under any such Permits against ILDC, pending or
threatened and there are no prior proceedings or disciplinary actions which have
resulted in materially adverse action against ILDC and (iii) no governmental or
regulatory authority has refused to grant or denied any license or permit
application filed by ILDC and such refusal or denial has become final and
nonappealable. The attached Schedule 3.24 contains a correct and complete list
of all such Permits and any Permit applications pending or that have been
denied.
Section 3.25 Personnel. Schedule 3.25 contains an accurate and complete list of
(a) the names, titles and current salaries of all officers of ILDC and (b) the
wage rates of non-salaried and non-executive salaried employees of ILDC by
classification. ILDC is not in default with respect to any obligation to any of
its employees.
Section 3.26 Bank Accounts. Schedule 3.26 sets forth the names and locations of
all banks, trust companies, savings and loan associations and other financial
institutions at which ILDC has accounts or safe deposit boxes and the names of
all persons authorized to draw thereon or to have access thereto.
<PAGE>
Section 3.27 Environmental Matters.
(a) ILDC, to the knowledge of ILDC, is not required to obtain any permits,
licenses or other authorizations under federal, state of local laws,
rules and regulations relating to pollution or protection of the
environment (collectively, the "Environmental Laws").
(b) ILDC has not received any notice alleging non-compliance with any
Environmental Laws. There is no civil, criminal or administrative
action, suit, demand, claim, investigation, proceeding, notice or
demand letter pending or threatened against ILDC relating in any way to
any Environmental Laws.
(c) There are no past or present events or conditions relating to ILDC and
caused by ILDC that may interfere with or prevent compliance with any
Environmental Laws or that may give rise to any common law or other
legal liability thereunder.
Section 3.28 Disclosure. No representation or warranty by ILDC contained in this
Agreement, and no statement contained in any document, list, certificate or
other writing furnished or to be furnished by or on behalf of ILDC to Old Night
or any of its representatives in connection with the transactions contemplated
hereby, contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary, in light of the
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading. For purposes of this Agreement,
disclosure on one or more schedules will be deemed disclosure on any other
schedule which may require said disclosure.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS AS TO THEMSELVES
Each Stockholder hereby represents and warrants to Old Night, as to such
Stockholder and no other Stockholder, that:
Section 4.1 Capacity. Such Stockholder is either an individual, corporation or
a trust.
Section 4.2 Title. Such Stockholder is the record and beneficial owner of, and
has full right, title and interest in and to, ILDC Common Shares listed on the
signature pages hereof adjacent to such Stockholder's name, free and clear of
any Lien. Except for the voting trust agreement attached in Schedule 4.2, the
ILDC Common Shares are not subject to any other contract, agreement,
arrangement, commitment or understanding restricting or otherwise relating to
the voting, dividend rights or disposition of such ILDC Common Shares. At the
Closing, such Stockholder will transfer and deliver to Old Night valid title to,
and all of such Stockholder's right, title and interest in and to, such ILDC
Common Shares free and clear of any Lien or any claim in respect of such shares,
including under any applicable community property law.
Section 4.3 Valid Agreement. This Agreement has been duly authorized, executed
and delivered by such Stockholder and constitutes a valid and binding agreement
of such Stockholder.
Section 4.4 Litigation. There is no action, suit or proceeding pending or, to
the knowledge of such Stockholder, threatened against or affecting such
Stockholder or such Stockholder's properties before any court, arbitrator or
governmental body, agency or official which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement.
Section 4.5 Trust Constitution and Power. If such Stockholder is a trust:
(a) such Stockholder will prior to Closing, deliver to Old Night a true
and complete copy of such Stockholder's trust agreement or other
constitution document as currently in effect, and
(b) the execution, delivery and performance by such Stockholder of this
Agreement, and the consummation by such Stockholder of the transaction
contemplated hereby are within such Stockholder's powers and have been
duly authorized by all necessary action of such Stockholder's trustees
or other relevant parties.
<PAGE>
Section 4.6 Governmental Authorization; Consents.
(a) The execution, delivery and performance by such Stockholder of this
Agreement require no action by or in respect of, or filing with, any
governmental body, agency, official or authority.
(b) No consent, approval, waiver or other action by any Person (other than
any governmental body, agency, official or authority referred to in
Section 4.6(a) above) under any contract, agreement, indenture, lease,
instrument or other document to which such Stockholder is a party or
by which such Stockholder is bound is required for the execution,
delivery and performance of this Agreement by such Stockholder or the
consummation by the Stockholder of the transactions contemplated
hereby.
Section 4.7 Non-Contravention. The execution, delivery and performance by such
Stockholder of this Agreement do not and will not:
(a) if such Stockholder is a trust, contravene or conflict with the trust
agreement or other constitution document, as applicable, of such
Stockholder,
(b) assuming compliance with the matters referred to in Section 4.6(a),
contravene or conflict with or constitute a violation of any provision
of any law, regulation, judgment, injunction, order or decree binding
on or applicable to such Stockholder,
(c) constitute a default under or give rise to any right of termination,
cancellation or acceleration of any right or obligation of such
Stockholder under any material agreement, contract or other instrument
binding on such Stockholder or under any material license, franchise,
permit or other similar authorization held by such Stockholder, or
(d) result in the creation or imposition of any Lien on ILDC Common Shares
held by such Stockholder.
Section 4.8 Acquisition for Investment; Informed Decision. Such Stockholder is
acquiring the Old Night Common Shares for its own account and not with a view
to, or for sale in connection with, any distribution thereof. Such Stockholder
has sufficient knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of its acquisition of the Old
Night Common Shares in accordance with this Agreement, and of its decision to
enter into and perform this Agreement. Such Stockholder has been given an
opportunity to ask questions and receive answers from ILDC and Old Night
concerning the business and financial condition of ILDC and Old Night,
concerning the terms and conditions of this Agreement, and concerning such other
matters that such Stockholder deemed relevant in connection with its decision to
enter into this Agreement. In particular, such Stockholder acknowledges that
such Stockholder's rights under this Agreement may not be assigned without Old
Night's written consent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OLD NIGHT
Old Night represents and warrants to each Stockholder that:
Section 5.1 Corporate Existence and Power. Old Night is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Nevada and has all corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. A copy of the Articles of Incorporation of Old Night
has been delivered to ILDC and such copy is complete and correct in full force
and effect on the date of this Agreement.
Section 5.2 Corporate Authorization. Except for the approval by the shareholders
of Old Night of this Agreement and the Amendment, the execution, delivery and
performance by Old Night of this Agreement are within the corporate powers of
Old Night and have been duly authorized by the disinterested directors of the
Board of Directors and by all other necessary corporate action on the part of
Old Night. This Agreement constitutes a valid and binding agreement of Old
Night.
<PAGE>
Section 5.3 Governmental Authorization. The execution, delivery and performance
by Old Night of this Agreement require no action by or in respect of, or filing
with, any governmental body, agency or official other than the filing of the
Information Statement being delivered to the stockholders of Old Night.
Section 5.4 Non-Contravention. The execution, delivery and performance by Old
Night of this Agreement do not and will not:
(a) violate the charter or bylaws of Old Night, or
(b) assuming compliance with the matters referred to in Section 5.3,
violate any applicable law, rule, regulation, judgment, injunction,
order or decree which, singly or in the aggregate:
(i) is reasonably likely to have a material adverse effect on the
condition, financial or otherwise, or the earnings or business
affairs of Old Night and its Subsidiaries, considered as one
enterprise, or
(ii) would adversely affect in any material respect the
consummation of the transactions contemplated by this
Agreement.
(c) violate, conflict with, or constitute a default (or an event or
condition that, with notice or lapse of time or both, would constitute
a default) under, or result in the termination of, or accelerate the
performance required by, or cause the acceleration of the maturity of
any liability or obligation pursuant to, or result in the creation or
imposition of any security interest, lien, charge or other encumbrance
upon any of the property or assets of Old Night under any note, bond,
mortgage, indenture, deed of trust, license, lease, contract,
commitment, understanding, arrangement, agreement or restriction of any
kind or character to which Old Night is a party or by which Old Night
may be bound or affected or to which any of the property or assets of
Old Night may be subject.
Section 5.5 Capitalization. The authorized capital stock of Old Night consists
of 50,000,000 Old Night Common Shares (of which as of June 26, 2000, 5,460,400
shares were outstanding). Old Night has no other class of shares. The Old Night
Common Shares to be issued pursuant to this Agreement are duly authorized and,
when delivered by Old Night pursuant to this Agreement, will be validly issued
and fully paid and non-assessable. The issuance of the Old Night Common Shares
is not subject to preemptive or other similar rights. Old Night has no other
capital stock authorized, issued or outstanding. Old Night has arranged two
private placements. The first private placement consists of 1,200,000 units at a
price of $5.00 per unit for an aggregate amount of US$ 6,000,000. The $6,000,000
shall be raised prior to the Closing and be available as cash to Old Night prior
to Closing. Each "Unit" consists of one share in the common stock of Old Night
and one share purchase warrant ("Warrant") with each Warrant entitling the
holder to purchase one common share in Old Night for US$ 5.00 per share at any
time on or before three years from the date of the acquisition of the Units by
the purchasers. In the second private placement 400,000 shares will be sold at a
purchase price of $5.00 per share. Except for the Old Night shares and warrants
to be issued pursuant to the foregoing private placements, there are no
outstanding subscriptions, stock options, warrants or other agreements or
commitments obliging Old Night to issue additional shares of its capital stock
or options, warrants or other securities convertible into or exchangeable for
shares of its capital stock. A complete list of the stockholders of Old Night
and the number of shares held is shown on Schedule 5.5.
Section 5.6 Reports and Financial Statements. Old Night has previously furnished
to ILDC true and complete copies of:
(a) Old Night's Annual Report on Form 10-KSB filed with the Securities and
Exchange Commission (the "SEC") for the year ended December 31, 1999;
(b) Old Night's Quarterly Report on Form 10-QSB filed with the SEC for the
year ended March 31, 2000 and
(b) the Form 10SB filed originally filed by Old Night with the SEC.
As of their respective dates, such reports and information statements
(collectively, the " Old Night Sec Reports")
(i) complied as to form in all material respects with the applicable
requirements of the 1934 Act, and the rules and regulations
thereunder and
<PAGE>
(ii) did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
The audited consolidated financial statements included in the Old Night SEC
Reports (including any related notes and schedules) fairly present the financial
position of Old Night and its consolidated Subsidiaries as of the dates thereof
and the consolidated results of operations and cash flows for the periods or as
of the dates then ended (subject, where appropriate, to normal year-end accrual
adjustments), in each case in accordance with past practice and generally
accepted accounting principles consistently applied during the periods involved
(except as otherwise disclosed in the notes thereto).
Section 5.7 Litigation. There is no action, suit, investigation or proceeding
pending against, or to the knowledge of Old Night, threatened against or
affecting, Old Night before any court or arbitrator or any governmental body,
agency or official which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated by this Agreement.
Section 5.8 Validity of Stock. The shares of Old Night Common Stock to be issued
in the share exchange pursuant to this Agreement will be duly authorized and,
when issued and delivered in accordance with this Agreement, will be validly
issued, fully paid and non-assessable with no personal liability attaching to
the ownership of these shares, and will not be subject to preemptive rights.
Section 5.9 No Undisclosed or Contingent Liabilities. Old Night has no
liabilities or obligations of any nature (whether absolute, accrued, contingent
or otherwise and whether due or to become due) that are not fully reflected on
the Old Night Balance Sheet, except for liabilities and obligations incurred in
the ordinary course of business since the date thereof, and there is no basis
for the assertion against Old Night of any liability or obligation of any nature
whatsoever not fully reflected on the Old Night Balance Sheet.
Section 5.10 Absence of Certain Changes. Since the date of the Old Night Balance
Sheet, Old Night has conducted its business only in the ordinary course and
consistent with past practice.
Section 5.11 Litigation. Orders. There are no claims, actions, suits,
proceedings, investigations or inquiries pending before any court, arbitrator or
governmental or regulatory official or office, or threatened against or
affecting Old Night or questioning the validity of this Agreement, the
transactions contemplated hereby or any action taken or to be taken by Old Night
pursuant to this Agreement or pursuant to any other agreement contemplated
hereby, at law or in equity, before or by any federal, state, local or foreign
governmental authority; nor is there any valid basis for any such claim, action,
suit, proceeding, inquiry or investigation. Old Night is not subject to any
judgement, order or decree entered in any lawsuit or proceeding that has had or
may have a material adverse effect on Old Nights's ability to acquire any
property for the use or benefit of Old Night or to conduct its business in any
area.
Section 5.12 Title to Properties: Encumbrances. Old Night does not own or lease
any real property.
Section 5.13 Equipment. Old Night has no equipment.
Section 5.14 Compliance with Law. Old Night is currently in compliance in all
material respects with all applicable laws (whether statutory or otherwise),
rules, regulations, orders, ordinances, judgments, decrees, writs and
injunctions of all federal, state, local or foreign governmental authorities
(collectively, "Laws"), including all Laws relating to the safe conduct of Old
Night's business, environmental protection and conservation, antitrust, taxes,
consumer protection, currency exchange, equal opportunity, health, sanitation,
fire zoning building, occupational safety, pension, securities and trademark and
copyright; and Old Night has not received notification in the last three years
of any asserted present or past failure to so comply. Old Night is not required
to obtain any permits, licenses or other authorizations under the Laws for Old
Night to conduct its business.
Section 5.15 Taxes.
<PAGE>
(a) Old Night has or will have filed by closing (including any applicable
extension periods) all tax reports, returns and forms required to be
filed by applicable federal, state, local or foreign tax laws, and all
such reports, returns and forms are correct and complete; copies of all
tax returns for Old Night in respect of all years not barred by the
statute of limitations have been delivered by Old Night to ILDC. None
of Old Night's tax returns have been examined or audited by the
Internal Revenue Service or any other state or local taxing authority.
(b) Old Night has timely paid all federal, state, local and foreign income
payroll, withholding, excise, sales, use, real and personal property,
use and occupancy, business and occupancy, business and occupation,
mercantile, real estate, capital stock and franchise or other tax due
or claimed to be due from Old Night by the Internal Revenue Service or
any authority. No tax liens have been filed on any property or assets
of Old Night and no claims are being asserted with respect to any
taxes.
(c) Old Night has complied with all applicable laws, rules and regulations
relating to the payment and withholding of taxes and has withheld all
amounts required by law to be withheld from the wages or salaries of
its employees, and is not liable for any taxes or other charges for
failure to comply with such laws, rules and regulations.
Section 5.16 Consents and Approvals. No consent, waiver, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other federal, state, county, local or
other foreign governmental authority, instrumentality, agency or commission
("Governmental Entity") or any third party, including a party to any agreement
with Old Night, is required by or with respect to Old Night in connection with
the execution and delivery of this Agreement and any related agreements to which
Old Night is a party or the consummation of the transactions contemplated hereby
and thereby, except for
(a) such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under
applicable securities laws, and which are disclosed in Schedule 5.16;
and
(b) the filing of the Articles of Amendment with the Secretary of State of
the Nevada.
Section 5.17 Contracts, Commitments and Returns. Old Night is not a party to,
nor is Old Night bound by any contracts, obligations or agreements of any kind
except for this Agreement.
Section 5.18 Insurance. Old Night has no insurance policies of any kind.
Section 5.19 Accounts Receivable. Old Night has no accounts receivable.
Section 5.20 Certain Interests. Neither Old Night nor any officer, director or
shareholder thereof, nor any of their respective affiliates, has:
(a) any direct or indirect interest (other than the ownership of less than
one percent of the outstanding securities of a publicly held company)
in any corporation or business that is involved in or competes with
Old Night, or
(b) any direct or indirect interest in any property or assets used by, or
relating to Old Night or its business, except through the ownership of
Old Night's capital stock.
Section 5.21 Employee Benefit Plans. Old Night has no employees or employee
benefit plans of any sort whatsoever.
Section 5.22 Labor Matters. Old Night has not had any employees for over 10
years or more and has no charges or complaint pending or threatened against Old
Night concerning labor matters.
Section 5.23 Personnel. Xenios Xenopoulos is the sole director and officer of
Old Night. Old Night has no employees or other personnel. Mr. Xenopoulos does
not receive any form of remuneration in connection with his services to Old
Night.
Section 5.24 Environmental.
(a) Old Night is not required to obtain any permits, licenses or other
authorizations under federal, state and local laws, rules and
regulations relating to pollution or protection of the environment
(collectively, the "Environmental Laws").
<PAGE>
(b) There is no past or present events or conditions relating to Old Night
that may interfere with or prevent compliance with any Environmental
Laws or that might give rise to any common law or other legal liability
thereunder.
Section 5.25 Securities Laws.
(a) Old Night has previously issued securities pursuant to available
exemptions under the Securities Act of 1933 (the "Securities Act"), and
is a reporting company under the Securities Exchange Act of 1934 (the
"Exchange Act"). Shares of Old Night's common stock are currently
traded on the Pink Sheets of the National Association of Securities
Dealers ("Pink Sheets") pursuant to Rule 15c2-11 under the Exchange
Act.
(b) Old Night is a corporation subject to the reporting requirements of the
Exchange Act. Old Night has filed all required reports, schedules,
forms, statements, and other documents with the SEC (the "SEC
Documents"), As of their respective dates, the SEC Documents complied
with all material respects with the requirements of the Securities Act
or the Exchange Act, as the case may be, and the rules and regulations
of the SEC promulgated thereunder applicable to such SEC Documents, and
none of the SEC Documents 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 therein, in light of the
circumstances under which they are made, not misleading. The financial
statements included or incorporated by reference by the SEC Documents
comply as to form in all material respects with applicable accounting
requirements and published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP (except in
the case of unaudited financial statements permitted by SEC Form 10QSB)
applied on a consistent basis during the period involved (except as may
be indicated in the notes thereto) and fairly present the financial
position of Old Night and its subsidiaries as of the date thereof and
their statements of operations, changes in shareholders' equity and
cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
(c) There is no known fact or circumstance that materially and adversely
has affected or is affecting or, in the reasonable opinion of Old
Night's executive officers, may reasonably be expected in the future to
materially or adversely affect, Old Night's financial condition or
results of operations.
Section 5.26 Disclosure. No representation or warranty by Old Night contained in
this Agreement, and no statement contained in any document, list, certificate or
other writing furnished or to be furnished by or on behalf of Old Night to ILDC
or any of its representatives in connection with the transactions contemplated
hereby, contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary, in light of the
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading.
ARTICLE VI
COVENANTS OF ILDC AND THE STOCKHOLDERS
Each of ILDC and each Stockholder agrees that:
Section 6.1 Conduct of ILDC. On or prior to the Closing, ILDC will:
(a) During the period from the date of this Agreement to the Closing Date,
except as expressly contemplated or permitted by this Agreement
(including the Schedules), ILDC shall:
(i) conduct its business in the ordinary course,
(ii) use its best efforts to maintain and preserve intact its business
organization, employees and advantageous business relationships
and retain the services of its key officers and key employees and
(iii)to take no action which would adversely affect or delay the
ability of either ILDC or Old Night to obtain the necessary
approvals of any third party required for the transactions
contemplated hereby or to perform its covenants and agreements
under this Agreement or to consummate the transactions
contemplated hereby and thereby.
<PAGE>
(b) During the period from the date of this Agreement to the Closing Date,
except as expressly contemplated or permitted by this Agreement, ILDC
shall not, without the prior written approval of Old Night:
(i) other than in the ordinary course of business, incur any
indebtedness for borrowed money or any indebtedness that
constitutes the deferred purchase price of any property or
assets, assume, guarantee, endorse or otherwise as an
accommodation become responsible for the obligations of any other
individual, corporation or other entity, or make any loan or
advance;
(ii) adjust, split, combine or reclassify any capital stock;
(iii)make, declare or pay any dividend (whether in cash or property),
or make any other distribution on, or directly or indirectly
redeem, purchase or otherwise acquire, any shares of its capital
stock or any securities or obligations convertible (whether
currently convertible or convertible only after the passage of
time or the occurrence of certain events) into or exchangeable
for any shares of its capital stock;
(iv) sell, transfer, mortgage, encumber or otherwise dispose of any of
its material properties or assets (including without limitation,
cash) to any individual, corporation or other entity, or cancel,
release or assign any indebtedness to any such person or any
claim held by any such person, except in the ordinary course of
business pursuant to contracts or agreements in force at the date
of this Agreement;
(v) except pursuant to contracts or agreements in force at the date
of or permitted by this Agreement, make any investment in, either
by purchase of stock or securities, contributions to capital,
property transfers, or purchase of any property or assets, any
other individual, corporation or other entity;
(vi) except for any transactions in the ordinary course of business,
terminate or waive any material provisions of, any contract, or
make any change in any instrument or agreement governing the
terms of any of its securities, or material lease or contract,
other than normal renewals of contracts and leases without
material adverse changes of terms;
(vii)increase in any manner the compensation or fringe benefits of
any of its employees or pay any pension or retirement allowance
not required by any existing plan or agreement to any such
employees or become party to, amend or commit itself to any
pension, retirement, profit-sharing or welfare benefit plan or
agreement or employment agreement with or for the benefit of any
employee other than in the ordinary course of business, or
accelerate the vesting of, or the lapsing of restrictions with
respect to, any stock options or other stock-based compensation;
(viii) solicit or encourage from any third party or enter into any
negotiations, discussions or agreement in respect of, or
authorize any individual, corporation or other entity to solicit
or encourage from any third party or enter into any negotiations,
discussions or agreement in respect of, or provide or cause to be
provided any confidential information in connection with, any
inquires or proposals relating to the conveyance, sale, lease,
transfer or other disposition of all or a substantial portion of
its business, property or assets, or the acquisition of its
capital stock or securities convertible into capital stock, or
the merger or consolidation, whether in one transaction or a
series of transactions, of it with any corporation or other
entity, other than as provided by this Agreement (and each party
shall promptly notify the other of all the relevant details
relating to all inquiries and proposals which it may receive
relating to these matters);
(ix) settle any material claim, action or proceeding involving money
damages, except in the ordinary course of business;
(x) make any material capital expenditures, make any material changes
in its current method of conducting business, or liquidate,
dissolve or suffer any liquidation or dissolution;
<PAGE>
(xi) make any material payment of principal of any debt, with a
maturity of more than one year, for borrowed money or for the
deferred purchase price of property or services except as at the
stated maturity of the debt or as required by mandatory
prepayment provisions relating thereto (subject to any
subordination provisions applicable thereto);
(xii)enter into any material agreements or become liable under any
material agreement for the lease, hire or use of any real or
personal property, or enter into any material sale/lease back
arrangement with respect to any real or personal property which
is now owned or hereafter acquired;
(xiii) incur or make optional prepayment of, or purchase, redeem or
otherwise acquire, or amend any provision pertaining to the
subordination, or the terms of payment of, any subordinated debt;
(xiv)create, incur, assume or suffer to exist any lien or encumbrance
or any kind on any of its properties, assets, income or profits,
whether borrowed or hereafter acquired;
(xv) amend its articles of incorporation of its by-laws;
(xvi)take any action that is intended or expected to result in any of
its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect at any time
prior to the Closing Date, or in any of the conditions to the
Transaction not being satisfied or in violation of any provision
of this Agreement, except, in every case, as may be required by
applicable law;
(xvii) implement or adopt any change in its accounting principles,
practices or methods, other than as may be required by general
accepted accounting principles or regulatory guidelines; or
(xviii) agree to take, make any commitment to take, or adopt any
resolutions of its board of directors in support of, any of the
actions prohibited by this Section 6.1.
Section 6.2 ILDC Common Shares. The Stockholders will not sell, transfer or
permit any Lien to exist with respect to their ILDC Common Shares.
Section 6.3 Access to Information. From the date hereof until the Closing, ILDC
will give, and will cause its Subsidiaries to give, Old Night, the Board of
Directors, its counsel, financial advisors, auditors and other authorized
representatives full access to the offices, properties, books and records of
ILDC and its Subsidiaries, will furnish to Old Night, the Board of Directors,
its counsel, financial advisors, auditors and other authorized representatives
such financial and operating data and other information as such Persons may
reasonably request and will instruct ILDC's and its Subsidiaries' employees,
counsel and financial advisors to cooperate with such Persons in their
investigation of the business of ILDC and its Subsidiaries; PROVIDED that no
investigation pursuant to this Section shall affect any representation or
warranty given by ILDC or any Stockholder to Old Night hereunder.
ARTICLE VII
ADDITIONAL COVENANTS OF THE PARTIES
The parties hereto agree that:
Section 7.1 Best Efforts. Subject to the terms and conditions of this Agreement,
each party will use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement.
Section 7.2 Old Night Annual Stockholder Meeting; Information Statement. Old
Night will include in the information statement for its 2000 Annual Meeting of
Stockholders (the "Old Night Information Statement") four proposals:
(a) To approve the amendment of the Articles of Incorporation to change
the name of the Old Night from "Old Night, Inc." to "NxGen Networks,
Inc.;"
(b) To adopt a stock option plan;
(c) To approve this share exchange agreement between Old Night, ILDC, and
certain stockholders of ILDC; and
<PAGE>
(d) To elect Messrs. Anthony Overman, Don Spears and Mark Sampson to the
Old Night's Board of Directors to serve until the next annual general
meeting of shareholders and until their respective successors are
elected and qualified.
In addition, each proposal will require the approval by the affirmative vote of
a majority of the votes cast by the holders of Old Night Common Shares . In
connection with such meeting, Old Night will promptly prepare and file with the
SEC, will use its commercially reasonable best efforts to have cleared by the
SEC and will thereafter mail to its stockholders as promptly as practicable the
Old Night Information Statement and all other proxy materials for such meeting,
will use its commercially reasonable best efforts to obtain the necessary
approvals by its stockholders of the Amendment and this Agreement and will
otherwise comply with all legal requirements applicable to such meeting.
Section 7.3 Certain Filings. Each party shall cooperate with one another:
(a) in connection with the preparation of the Old Night Information
Statement,
(b) in determining whether any action by or in respect of, or filing with,
any governmental body, agency or official, or authority is required,
or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection with
the consummation of the transactions contemplated by this Agreement,
and
(c) in seeking any such actions, consents, approvals or waivers or making
any such filings, furnishing information required in connection
therewith or with the Old Night Information Statement and seeking
timely to obtain any such actions, consents, approvals or waivers.
Section 7.4 Public Announcements. The parties will consult with each other
before issuing any press release or making any public statement with respect to
this Agreement and the transactions contemplated hereby and, except as may be
required by applicable law or any listing agreement with any national securities
exchange, will not issue any such press release or make any such public
statement prior to such consultation.
Section 7.5 Notices of Certain Events. Each party shall promptly notify each
other party of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or regulatory
agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings commenced
or, to the best of its knowledge threatened against, relating to or
involving or otherwise affecting ILDC or any of its Subsidiaries or
which relate to the consummation of the transactions contemplated by
this Agreement.
ARTICLE VIII
CONDITIONS TO CLOSING
Section 8.1 Conditions to Obligations of Old Night and the Stockholders. The
obligations of Old Night and the Stockholders to consummate the Closing are
subject to the satisfaction or waiver of the conditions that:
(a) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the
Closing.
(b) The stockholders of Old Night shall have approved this Agreement in
accordance with the requirements of Chapter 78 of the Nevada Revised
Statutes and by the affirmative vote of a majority of the votes cast
by the Old Night Common Shares.
(c) No event shall have occurred that has resulted or could reasonably be
expected to result in a material adverse change to the anticipated
benefits of the transactions contemplated hereby to Old Night, ILDC or
the Stockholders.
<PAGE>
(d) Stockholders owning not less than eighty percent (80%) of the issued
and outstanding common stock of ILDC have executed this Agreement and
all other documents required to be delivered by such Stockholders in
connection with the exchange of the ILDC shares contemplated under
this Agreement.
Section 8.2 Conditions to Obligation of Old Night. The obligation of Old Night
to consummate the Closing is subject to the satisfaction or waiver of the
following further conditions:
(a) General:
(i) ILDC and the Stockholders shall have performed in all material
respects all of their obligations hereunder required to be
performed by them on or prior to the Closing Date,
(ii) the representations and warranties of ILDC and the Stockholders
contained herein shall be true and correct at and as of the
Closing Date, as if made at and as of such date, except for such
breaches as would not have a Material Adverse Effect, and
(iii)Old Night shall have received a certificate signed by the
President of ILDC and a representative of each Stockholder to the
foregoing effect.
(b) Unless the Stockholders have waived the condition set forth in Section
8.3(a), the Amendment shall have been approved in accordance with the
requirements of Nevada law, the Old Night Charter and the affirmative
vote of a majority of the votes cast by the holders of Old Night
Common Shares, other than such Old Night Common Shares beneficially
owned by the Stockholders and their respective Affiliates, and Old
Night shall have filed Articles of Amendment with respect to the
Amendment with the Secretary of State of the State of Nevada.
(c) Old Night shall have received a legal opinion from legal counsel to
ILDC, in the form and substance reasonably satisfactory to Old Night.
(d) Each of the ILDC shareholders shall have executed a securities law
representation letter in the form acceptable to Old Night.
(e) Old Night shall have received all documents it may reasonably request
relating to the existence of ILDC and each of its Subsidiaries, and
the authority of ILDC and each Stockholder to enter into this
Agreement, all in form and substance reasonably satisfactory to Old
Night.
(f) There shall not be threatened, instituted or pending any suit, action,
investigation, inquiry or other proceeding by or before any court or
governmental or other regulatory or administrative agency or
commission requesting or looking toward an order, judgement, decree or
injunction that restrains or prohibits consummation of any of the
transactions contemplated under this Agreement or could have a
Material Adverse Effect.
(g) All licenses, permits, consents, approvals and authorizations of all
third parties and governmental bodies and agencies shall have been
obtained that are necessary, in connection with:
(i) the execution and delivery of ILDC of this Agreement,
(ii) the consummation by ILDC of the transactions contemplated hereby,
or
(iii)the control and operation by Old Night of ILDC, and copies of
all such licenses, permits, consents, approvals and
authorizations shall have been delivered to Old Night.
Section 8.3 Conditions to Obligations of Stockholders. The obligation of the
Stockholders to consummate the Closing is subject to the satisfaction or waiver
of the following further conditions:
(a) General:
(i) Old Night shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or
prior to the Closing Date,
(ii) the representations and warranties of Old Night shall be true and
correct in all material respects at and as of the Closing Date as
if made at and as of such date and
<PAGE>
(iii)ILDC shall have received a certificate signed by any Vice
Chairman, Executive Vice President or Senior Vice President of
Old Night to the foregoing effect.
(b) The appointment of Messrs. Anthony Overman, Don Spears and Mark
Sampson as directors of Old Night and the change of Old Night's name
to NxGen Networks, Inc. shall have been approved in accordance with
the requirements of Nevada law, the Old Night Charter and by the
affirmative vote of a majority of the votes cast by the holders of Old
Night Common Shares, and Old Night shall have filed Articles of
Amendment with respect to the name change with the Secretary of State
of the State of Nevada.
(c) On the Closing Date, there shall be no effective injunction, writ,
preliminary restraining order or other order issued by a court of
competent jurisdiction restraining or prohibiting the consummation of
the transactions contemplated under this Agreement.
(d) ILDC shall have received such opinions of counsel to Old Night, in the
form and substance reasonably satisfactory to ILDC.
(e) ILDC and the ILDC Stockholders shall have received such tax opinions
from independent counsel hired by Old Night, in the form and substance
reasonably satisfactory to ILDC.
(f) ILDC shall have received all documents it may reasonably request
relating to the existence of Old Night and the authority of Old Night
to enter into this Agreement, all in form and substance reasonably
satisfactory to ILDC.
(g) Old Night shall have cash and cash equivalents of not less than $1.5
million (net of previous contributions to ILDC), in excess of
outstanding liabilities or obligations as of the Closing Date.
ARTICLE IX
TERMINATION
Section 9.1 Grounds for Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual written agreement of the Stockholders and Old Night;
(b) by either the Stockholders or Old Night if the Closing shall not have
been consummated on or before August 31, 2000;
(c) by either the Stockholders or Old Night if there shall be any law or
regulation that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited or if consummation of the
transactions contemplated hereby would violate any nonappealable final
order, decree or judgment of any court or governmental body having
competent jurisdiction;
(d) by either the Stockholders or Old Night if an event shall have occurred
that has resulted or could reasonably be expected to result in a
material adverse change to the anticipated benefits of the transactions
contemplated hereby to Old Night, ILDC or the Stockholders;
(e) by either the Stockholders or Old Night if there has been a material
misrepresentation or breach of warranty on the part of Old Night (in
the case of termination by the Stockholders) or a misrepresentation or
breach of warranty by ILDC or the Stockholders which would have a
Material Adverse Effect (in the case of termination by Old Night) in
each case in the representations and warranties contained herein and
such misrepresentation or breach is not capable of being cured through
commercially reasonable best efforts prior to August 31, 2000, or any
condition to such party's obligations hereunder becomes incapable of
fulfillment through no fault of such party and is not waived by the
other party;
The party desiring to terminate this Agreement shall give notice of such
termination to the other parties.
<PAGE>
Section 9.2 Effect of Termination. If this Agreement is terminated as permitted
by Section 9.1, such termination shall be without liability of any party (or any
stockholder, director, officer, employee, agent, consultant or representative of
such party) to the other parties to this Agreement; PROVIDED that if such
termination shall result from the willful failure of any party to fulfill a
condition to the performance of the obligations of the other parties, willful
failure to perform a covenant of this Agreement or willful breach by any party
hereto of any representation or warranty or agreement contained herein, such
party shall be fully liable for any and all damages incurred or suffered by the
other party as a result of such failure or breach.
ARTICLE X
MISCELLANEOUS
Section 10.1 Survival. All statements contained in any certificate or other
instrument delivered by or on behalf of ILDC or Old Night pursuant to this
Agreement or in connection with the transactions contemplated by this Agreement
will be considered representations and warranties by ILDC and Old Night, as the
case may be, with the same force and effect as if contained in this Agreement.
All representations, warranties, covenants and agreements by ILDC or Old Night
will survive the Closing Date for a period of one (1) year after the Closing
Date notwithstanding any investigation at any time by or on behalf of any party
to which such representation or warranty was given, and will not be considered
waived by the consummation of the share exchange contemplated by this Agreement
with knowledge of any breach of misrepresentation of the parties.
Section 10.2 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
If to Old Night, to:
Old Night, Inc.
c/o Aluminum Tower 5th Floor
2 Limassol Avenue
2003 Nicosia, Cyprus
Facsimile No.: 357-233-6382
Attention: Xenios Xenopoulos, President
With a copy to:
Venture Law Corporation
688 West Hastings Street, Suite 618
Vancouver, British Columbia V6B 1P1
Facsimile No.: 604-659-9178
Attention: Alixe B. Cormick
If to ILDC:
International Long Distance Corporation
Global Tech Center
Don Juan Road
P.O. Box 218
Hertford, North Carolina 27944
Facsimile No.: 252-426-3205
Attention: Anthony Overman, Chief Executive Officer
With a copy to:
Friday, Eldredge & Clark
400 West Capital Avenue, Suite 2000
Little Rock, Arkansas 72201
Facsimile No.: 501-244-5302
Attention: Price C. Gardner, Esq.
And:
<PAGE>
Kaufman & Canoles, P.C.
One Commercial Place
Norfolk, VA 23510
P.O. Box 3037
Norfolk, VA 23514
Facsimile No.: 757-624-3169
Attention: David M. Delpierre, Esq
if to the Stockholders, to their respective addresses set forth on the signature
pages of this Agreement.
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
Section 10.3 Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived prior to the
Closing Date if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by law.
Section 10.4 Expenses. Each party to this Agreement shall bear its own costs and
expenses in connection with the transactions contemplated by this Agreement,
including without limitation, attorney fees, accounting fees and fees of any
investment bankers or other financial advisors.
Section 10.5 Successors and Assigns. The provisions of this Agreement shall be
binding on and inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto.
Section 10.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Nevada, without regard to the conflicts
of law rules of such state.
Section 10.7 Jurisdiction. The parties hereto irrevocably consent to the
jurisdiction of the United States federal courts and the state courts located in
the State of Nevada in any suit or proceeding based on or arising under this
Agreement and irrevocably agree that any and all claims arising out of this
Agreement or related to the transactions contemplated by this Agreement shall be
determined exclusively in such courts. The parties hereto irrevocably waive the
defense of an inconvenient forum to the maintenance of such suit or proceeding.
Section 10.8 Counterparts; Third Party Beneficiaries. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were on the same
instrument. No provision of this Agreement is intended to confer on any Person
other than the parties hereto any rights or remedies hereunder.
[CONTINUED ON NEXT PAGE]
<PAGE>
Section 10.9 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written, among
the parties with respect to the subject matter of this Agreement. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied on by party hereto.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed by its respective authorized officers or representatives as of the day
and year first above written.
OLD NIGHT, INC.
By:
-------------------------------------------------
Xenios Xenopoulos
President and Secretary
INTERNATIONAL LONG DISTANCE CORPORATION
By:
-----------------------------------------------
Anthony Overman
President and CEO
<TABLE>
<CAPTION>
STOCKHOLDERS:
--------------------- ------------------- --------------------------------------------------------------------------
Old Night Shares
ILDC Shares to be to be
Delivered Received Name and Address
--------------------- ------------------- --------------------------------------------------------------------------
<S> <C> <C>
26,693 26,693 Name: William Askew, Sr.
Address: P.O. Box 244, Elizabeth City, NC 27909
--------------------- ------------------- --------------------------------------------------------------------------
10,000 10,000 Name: Curtis D. Bunch, III
Address: 3095 Sentinel Parkway, Lawrenceville, GA 30043
--------------------- ------------------- --------------------------------------------------------------------------
25,000 25,000 Name: LaRonda Carr
Address: 403 Forestside Circle, Amercus, GA 31709
--------------------- ------------------- --------------------------------------------------------------------------
25,000 25,000 Name: Kevin Cordell
Address: 408 Bonn Court, Westminister NC 34457
--------------------- ------------------- --------------------------------------------------------------------------
92,800 92,800 Name: Billy Joe Dickens
Address: 1851 W. Ehringhause St., #353, Elizabeth City, NC 27909
--------------------- ------------------- --------------------------------------------------------------------------
24,000 24,000 Name: John Gimenez
Address: c/o Rock Church, 640 Kempsville Rd., Chesapeake, VA 23464
--------------------- ------------------- --------------------------------------------------------------------------
11,000 11,000 Name: Douglas A. Hamilton
Address: 215 Stockbridge Drive. Selma, NC 27576
--------------------- ------------------- --------------------------------------------------------------------------
15,940 15,940 Name: George Harrell
Address: 752 Mount Herman Church Rd., Elizabeth City, NC 27909
--------------------- ------------------- --------------------------------------------------------------------------
50,000 50,000 Name: Syed Asghar Hasan
Address: 3100 River Exchange Dr., Apt. 616, Norcross, GA 30092
--------------------- ------------------- --------------------------------------------------------------------------
50,000 50,000 Name: Syed Ashraf Hasnain
Address: 4144 Gunnin Road, Norcross, GA 30092
--------------------- ------------------- --------------------------------------------------------------------------
50,000 50,000 Name: Lennie Hughes, 1514 Cresent Dr., Eilzabeth City, NC 27909
--------------------- ------------------- --------------------------------------------------------------------------
225,000 225,000 Name: Reginald & Sharon Ibison
1212 Saddleridge Court, Kennesaw, GA 30144
--------------------- ------------------- --------------------------------------------------------------------------
60,501 60,501 Name: Carl Lewis, Jr.
Address: Rt. 5 Box 122, Hertford, NC 27944
--------------------- ------------------- --------------------------------------------------------------------------
25,000 25,000 Name: Gabriel & Ana Londono
Address: 192 Rainbow Lane, Hiram, GA 30141
--------------------- ------------------- --------------------------------------------------------------------------
15,000 15,000 Name: Vincent Losiciale
Address: 2536 Elson Green Avenue, Virginia Beach, VA 23454-6303
--------------------- ------------------- --------------------------------------------------------------------------
25,000 25,000 Name: Wyant McAvoy
Address: 570 North Temperance, Clovis, CA
--------------------- ------------------- --------------------------------------------------------------------------
11,000 11,000 Name: Harold & Pamela McLeod
Address: 9070 McNeil Road, Semmes, AL 36575
--------------------- ------------------- --------------------------------------------------------------------------
75,000 75,000 Name: Lino Morris
Address: 445 Poinciana Island, Miami Beach, FL 33160
--------------------- ------------------- --------------------------------------------------------------------------
50,000 50,000 Name: Jack Nelson
Address: 1563 Portland Avenue, St Paul MN 55104
--------------------- ------------------- --------------------------------------------------------------------------
95,000 95,000 Name: Deborah Overman
Address: 1 B Ainsley Road, Hertford, NC 27944
--------------------- ------------------- --------------------------------------------------------------------------
241,215 241,215 Name: Emerson Overman
Address: 997 John White Road, Elizabeth City, NC 27909
--------------------- ------------------- --------------------------------------------------------------------------
60,000 60,000 Name: Viola Overman
Address: 6A Ainsley Road, Hertford, NC 27944
--------------------- ------------------- --------------------------------------------------------------------------
241,215 241,215 Name: Leonard Overman, Jr.
Address: 330 Ryland Road, Tyner NC 27980
--------------------- ------------------- --------------------------------------------------------------------------
60,000 60,000 Name: Leonard Overman, Sr.
Address: 6A Ainsley Road, Hertford, NC 27944
--------------------- ------------------- --------------------------------------------------------------------------
25,000 25,000 Name: Bruce Read
Address: 1900 Bloor Street E., Suite 504, Mississauga, ON L4X 2S1
--------------------- ------------------- --------------------------------------------------------------------------
10,000 10,000 Name: Diane Rudy
Address: 98 Yellowfield Boulevard, Elkton, MD 21921
--------------------- ------------------- --------------------------------------------------------------------------
33,500 33,500 Name: Lawrence Sawyer, Sr.
Address: Rt. 2Box 67AA, Hertford, NC 27944
--------------------- ------------------- --------------------------------------------------------------------------
200,000 200,000 Name: Kulwani Shahi
Address: 1 Arborwood Court, East Winsor, NJ 8520
--------------------- ------------------- --------------------------------------------------------------------------
250,000 250,000 Name: Donald Spears
Address: P.O. Box 622, Malvern, AR 72104
--------------------- ------------------- --------------------------------------------------------------------------
200,000 200,000 Name: Gerry Spears
Address: P.O. Box 622, Malvern, AR 72104
--------------------- ------------------- --------------------------------------------------------------------------
15,667 15,667 Name: Charles Stallings
Address: 1233 Four Folks Road, Elizabeth City, NC 27909
--------------------- ------------------- --------------------------------------------------------------------------
34,000 34,000 Name: Larry & June Stallings
Address: 1018 Ryland Road, Tyner, NC 27980
--------------------- ------------------- --------------------------------------------------------------------------
17,140 17,140 Name: Don Steely
Address: 11 Sandstone Court, Little Rock, AR 72227
--------------------- ------------------- --------------------------------------------------------------------------
25,000 25,000 Name: Hugo Vilegas
Address: 192 Rainbow Lane, Hiram, GA 30141
--------------------- ------------------- --------------------------------------------------------------------------
50,000 50,000 Name: Kevin Wachter
Address: 475 Buckhead Avenue, Duluth, GA 30097
--------------------- ------------------- --------------------------------------------------------------------------
26,200 26,200 Name: Derek & Melissa Witcher
Address: 106 Jason Drive, Elizabeth City, NC 27909
--------------------- ------------------- --------------------------------------------------------------------------
1,516,083 1,516,083 Anthony C. Overman Revocable Trust
Name: ______________________________
Address: 1B Ainsley Road, Hertford, NC 27944
--------------------- ------------------- --------------------------------------------------------------------------
72,100 72,100 Atlanta Communications Investors
Name: ______________________________
Address: 1 Buckhead Plaza, Suite 1585 306, Atlanta, GA 30305
--------------------- ------------------- --------------------------------------------------------------------------
180,000 180,000 Coastal Warehouse, LLC
Name: ______________________________
Address: 23301 US Hwy 64 West, Crestwell, NC 27978
--------------------- ------------------- --------------------------------------------------------------------------
80,000 80,000 Name: William Edmundson
Address: 214 Mulberry Hill Lane, Edenton, NC 27932
--------------------- ------------------- --------------------------------------------------------------------------
55,000 55,000 Lantag Communications or its Nominees
Name: ______________________________
Address: P.O. Box 622, Malvern, AK 72104
--------------------- ------------------- --------------------------------------------------------------------------
100,000 100,000 Molly Bear Spears (Irrevocable Trust)
Name: ______________________________
Address: P.O. Box 622, Malvern, AR 72104
--------------------- ------------------- --------------------------------------------------------------------------
75,000 75,000 Name: Dean Keil
Address: 5019 80th Terrace South, Lake Worth, FL 33467
</TABLE>
<PAGE>
SCHEDULE 3.1
ILDC FOREIGN QUALIFICATIONS
ILDC is registered as a foreign corporation in the state of Georgia.
<PAGE>
SCHEDULE 3.5
ILDC STOCKHOLDERS LIST
----------------------------------------------------- -------------
Name Shares
----------------------------------------------------- -------------
123 Trust Limited 75,000
----------------------------------------------------- -------------
Abbitt, Robert B. 2,000
----------------------------------------------------- -------------
Adams, Kimberley J. 200
----------------------------------------------------- -------------
Adams Sr. Mr. & Mrs. Randolph 2,000
----------------------------------------------------- -------------
Albrecht, Craig T. 2,597
----------------------------------------------------- -------------
Albrecht, Phyllis 6,597
----------------------------------------------------- -------------
Albrecht, Jeanetta L. 4,000
----------------------------------------------------- -------------
Amato, Louis J. 2,000
----------------------------------------------------- -------------
Ambrose, Mitchell 1,000
----------------------------------------------------- -------------
Anderson, Lisa R. 200
----------------------------------------------------- -------------
Anthony C. Overman Revocable Trust 1,516,083
----------------------------------------------------- -------------
Askew Jr., William 467
----------------------------------------------------- -------------
Askew, Joseph & Judy 2,000
----------------------------------------------------- -------------
Askew, Mary 198
----------------------------------------------------- -------------
Askew, Kevin & Dawn 200
----------------------------------------------------- -------------
Askew Sr., William 26,693
----------------------------------------------------- -------------
Atkins, Bobby & Lawana 1,000
----------------------------------------------------- -------------
Atlanta Communications Investors 72,100
----------------------------------------------------- -------------
Baccus Jr., Gilbert 1,400
----------------------------------------------------- -------------
Bailey, James & Marsha 1,000
----------------------------------------------------- -------------
Bandy, Jack 1,362
---------------------------------------------------- -------------
Bass, Sandra 1,000
----------------------------------------------------- -------------
Bateman, William B. 500
----------------------------------------------------- -------------
Berry, Samuel T. & Peggy F. 1,000
----------------------------------------------------- -------------
Billy Joe's Contracting Service 8,000
----------------------------------------------------- -------------
Blanchard, Rube F. 6,000
----------------------------------------------------- -------------
Blood of Jesus Ministries 1,000
----------------------------------------------------- -------------
Boone, Willie 1,000
----------------------------------------------------- -------------
Bowman, Tommy & Sharon 2,500
----------------------------------------------------- -------------
Boyce, Robert A. & Paula S. 1,000
----------------------------------------------------- -------------
Braddy, Ricky D. 500
----------------------------------------------------- -------------
Bradham, Julian Terrell 2,300
----------------------------------------------------- -------------
Bright, C.F & Carolyn O. 1,000
----------------------------------------------------- -------------
Bright, Mark 2,000
----------------------------------------------------- -------------
Brinkley, Mr. & Mrs. John 1,000
----------------------------------------------------- -------------
Brinson, Gregory 4,000
----------------------------------------------------- -------------
Brown, Shirley 70
----------------------------------------------------- -------------
Bryant, Garry E. 1,400
----------------------------------------------------- -------------
Buchanan, Timothy L. 2,260
----------------------------------------------------- -------------
Buchanan, Cecil 3,140
----------------------------------------------------- -------------
Bunch, III, Curtis D. 10,000
----------------------------------------------------- -------------
Buzzell Family Ltd. Partnership 25,000
----------------------------------------------------- -------------
Byrd, Sharon 600
----------------------------------------------------- -------------
Byrum, Walter & Robin 1,500
----------------------------------------------------- -------------
Byrum, Leamon V. 500
----------------------------------------------------- -------------
Byrum, Harold & Betty 4,000
----------------------------------------------------- -------------
Byrum, Bobby L. & Jerry 500
----------------------------------------------------- -------------
Byrum Jr., John B. & Deborah 1,000
----------------------------------------------------- -------------
Byrum, John B. & Nina 1,300
----------------------------------------------------- -------------
Byrum, Jerry & Joyce 200
----------------------------------------------------- -------------
Carawan, Lila L. 600
----------------------------------------------------- -------------
Carr, LaRonda O. 25,000
----------------------------------------------------- -------------
Cason, William H. & Nancy S. 1,000
----------------------------------------------------- -------------
Casper Investment 1,000
----------------------------------------------------- -------------
Cerebral Trading 10,000
----------------------------------------------------- -------------
Chappell, Earl & Terry 200
----------------------------------------------------- -------------
Chappell, William & Sharon 2,000
----------------------------------------------------- -------------
Chappell Jr., John William 2,000
----------------------------------------------------- -------------
Chappell , Roger B. 200
----------------------------------------------------- -------------
Chappell, William B. 1,000
----------------------------------------------------- -------------
Clark II, Glen Mason 1,000
----------------------------------------------------- -------------
Coastal Warehouse, LLC 190,000
----------------------------------------------------- -------------
Cobb II, Larry Thomas 300
----------------------------------------------------- -------------
Coggin, Brad A. 200
----------------------------------------------------- -------------
Cole, Ralph 1,000
----------------------------------------------------- -------------
Colonna, Preston & Jacquelina 100
----------------------------------------------------- -------------
Copeland, Devolure 99
----------------------------------------------------- -------------
Copeland, Wallace 70
----------------------------------------------------- -------------
Copeland, Paul Durwood & Rhonda 200
----------------------------------------------------- -------------
Copeland, Salinas 498
----------------------------------------------------- -------------
Cordell, Kevin R. 25,000
----------------------------------------------------- -------------
Corprew, Mr. & Mrs. Anthony Wayne 1,000
----------------------------------------------------- -------------
Cowan, Michael 200
----------------------------------------------------- -------------
Crone, Robert & Gail 23,392
----------------------------------------------------- -------------
Crouse, Jon S. 7,500
----------------------------------------------------- -------------
Crouse Jr., David 1,000
----------------------------------------------------- -------------
Culbertson, Dr. Wayne E. 3,000
----------------------------------------------------- -------------
Curtice, Margene 10,000
----------------------------------------------------- -------------
Dagenhart, Robert L. 2,000
----------------------------------------------------- -------------
Daniels, Billie & Lana 1,000
----------------------------------------------------- -------------
Davis Jr., Dr. Alden 2,000
----------------------------------------------------- -------------
Davis, Gerald Wayne 2,000
----------------------------------------------------- -------------
Desert Sands Limited 10,000
----------------------------------------------------- -------------
Dickens, Billy Joe 92,800
----------------------------------------------------- -------------
Difebo, Philip 1,000
----------------------------------------------------- -------------
Drake, Amy 297
----------------------------------------------------- -------------
Drake, Jeremy 915
----------------------------------------------------- -------------
Dukes, Jerry & Sallie 500
----------------------------------------------------- -------------
Duncan Jr., James E. 1,000
----------------------------------------------------- -------------
Dunlow, Joseph N. & Amber P. 2,400
----------------------------------------------------- -------------
Dunlow, Robert M. & Julie M. 900
----------------------------------------------------- -------------
Dunlow, Bettie 1,000
----------------------------------------------------- -------------
Dunlow, Milton B. & Susan J. 1,000
----------------------------------------------------- -------------
E & S Holdings 37,898
----------------------------------------------------- -------------
Eagle, Steven 263
----------------------------------------------------- -------------
Eastern VA Conference of the IPHC 15,000
----------------------------------------------------- -------------
Edmundson, William F. 80,000
----------------------------------------------------- -------------
Eley, J. Sindey & Candice 2,000
----------------------------------------------------- -------------
Elizabeth City IPHC 1,000
----------------------------------------------------- -------------
Ellis, James 10,000
----------------------------------------------------- -------------
Evans, John T. 2,000
----------------------------------------------------- -------------
Faith Outreach 1,000
----------------------------------------------------- -------------
Farless, Lonnie Wood & Pattie 5,000
----------------------------------------------------- -------------
Feiger, Robert E. 1,788
----------------------------------------------------- -------------
Ferebee, Brad 200
----------------------------------------------------- -------------
Ferebee, Audrey 800
----------------------------------------------------- -------------
Ferebee, Maggelene 70
----------------------------------------------------- -------------
Flanagan, Franklin 2,000
----------------------------------------------------- -------------
Forehand, Carroll J. 6,000
----------------------------------------------------- -------------
Fowler, Raymond 140
----------------------------------------------------- -------------
Fox, Ron 6,000
----------------------------------------------------- -------------
Freeman, Paula S. 200
----------------------------------------------------- -------------
Garrett, Timothy James & Anita R. 200
----------------------------------------------------- -------------
Gathings Jr. Allen Wayne 2,000
----------------------------------------------------- -------------
Gerber, Bob & Charlotte 7,551
----------------------------------------------------- -------------
Gibbs, Milford 200
----------------------------------------------------- -------------
Gimenez, Anna 1,000
----------------------------------------------------- -------------
Gimenez, Anne 5,000
----------------------------------------------------- -------------
Gimenez, Anne 15,000
----------------------------------------------------- -------------
Gimenez, John 24,000
----------------------------------------------------- -------------
Godfrey, Richard T. & Elizabeth Ann 600
----------------------------------------------------- -------------
Godwin, Katrina 198
----------------------------------------------------- -------------
Graves, Paul 1,000
----------------------------------------------------- -------------
Grieco, Andre & Paula 132
----------------------------------------------------- -------------
Grieco, Darro 11,182
----------------------------------------------------- -------------
Hall, David W. 2,498
----------------------------------------------------- -------------
Halley, Joann C. 500
----------------------------------------------------- -------------
Hamilton, Mike & Lynette 400
----------------------------------------------------- -------------
Hamilton, A. Douglas 11,000
----------------------------------------------------- -------------
Hare, Jerry B. & Rhonda B. 5,000
----------------------------------------------------- -------------
Hare, Dawn 600
----------------------------------------------------- -------------
Hare, Chrystal 200
----------------------------------------------------- -------------
Hare, Carolyn 200
----------------------------------------------------- -------------
Hare, Michael R. & Mary B. 1,000
----------------------------------------------------- -------------
Hare, Andy 4,800
----------------------------------------------------- -------------
Harrell, George A. 15,940
----------------------------------------------------- -------------
Harrell, David B. & Karen P. 1,000
----------------------------------------------------- -------------
Harrell, George Kevin 1,000
----------------------------------------------------- -------------
Harris, Ryan 400
----------------------------------------------------- -------------
Harrison, Regina F. 200
----------------------------------------------------- -------------
Hasan, Syed Asghar 50,000
----------------------------------------------------- -------------
Hasnain, Syed Ashraf 50,000
----------------------------------------------------- -------------
Hayes, David E. 1,000
----------------------------------------------------- -------------
Henshaw, Stacy A. 200
----------------------------------------------------- -------------
Herriott, Jane 1,001
----------------------------------------------------- -------------
Herriott, Dan 1,376
----------------------------------------------------- -------------
Hodges, Howard & Linda 1,000
----------------------------------------------------- -------------
Hoggard, Curtis R. & Renee A. 1,000
----------------------------------------------------- -------------
Hoggard Jr., Joseph R. 2,000
----------------------------------------------------- -------------
Hoggard, Charney & Mary 300
----------------------------------------------------- -------------
Hoggard, Mark Daniel 2,000
----------------------------------------------------- -------------
Hoggard, Patrick K. 400
----------------------------------------------------- -------------
Holland, Troy W. 400
----------------------------------------------------- -------------
Holland, Anthony E. & Tamara D. 1,000
----------------------------------------------------- -------------
Holland, Ronnie W. 1,000
----------------------------------------------------- -------------
Holland, Tony W. 800
----------------------------------------------------- -------------
Holland, Robert C. & Delsie H. 1,000
----------------------------------------------------- -------------
Holloman, Vincent M. 1,000
----------------------------------------------------- -------------
Hooper Jr., Cleveland F. & Annette E. 1,400
----------------------------------------------------- -------------
Hopkins, Thomas H. 3,000
----------------------------------------------------- -------------
Hughes Jr. Percy G. & Mary F. 1,000
----------------------------------------------------- -------------
Hughes, Lennie L. 50,000
----------------------------------------------------- -------------
Hughes, Gary G. & Pamela B. 2,000
----------------------------------------------------- -------------
Ibison Reginald & Sharon 225,000
----------------------------------------------------- -------------
Integrated Global Resources 2,000
----------------------------------------------------- -------------
J.W. Harrell Construction Company 5,000
----------------------------------------------------- -------------
Jarvis, Wilma W. 1,000
----------------------------------------------------- -------------
Jemmott Jr., David 200
----------------------------------------------------- -------------
Jennings, Joseph D. 500
----------------------------------------------------- -------------
Jennings, Lucy 1,000
----------------------------------------------------- -------------
Jenson, Rod 1,001
----------------------------------------------------- -------------
Jernigan, Oressa 140
----------------------------------------------------- -------------
Johnson, Carroll & Ruthann 200
----------------------------------------------------- -------------
Johnson, John F. 1,000
----------------------------------------------------- -------------
Jolly Green Giant Trust 7,916
----------------------------------------------------- -------------
Jones, Lonnie W. & Karen D. 1,000
----------------------------------------------------- -------------
Josue Sr., Alfredo & Joan F. 1,000
----------------------------------------------------- -------------
Kearns, Thomas E. 200
----------------------------------------------------- -------------
Keil, Dean 75,000
----------------------------------------------------- -------------
Kendall, David B. 2,000
----------------------------------------------------- -------------
Killgore, Gary T. & Brenda D. 2,500
----------------------------------------------------- -------------
Klender, James 5,000
----------------------------------------------------- -------------
Klender, Crystal O. 5,000
----------------------------------------------------- -------------
Knox, Jeff L. 300
----------------------------------------------------- -------------
Lacasse, David & Melanie 1,200
----------------------------------------------------- -------------
Lachapelle III, Robert & Karen 600
----------------------------------------------------- -------------
Lamb, Dorothy 597
----------------------------------------------------- -------------
Lane, Duwood P. 1,000
----------------------------------------------------- -------------
Langley, Tony A. & Glenn C. 4,000
----------------------------------------------------- -------------
Langley, Bernice J., Tony A., & Glenn C. 200
----------------------------------------------------- -------------
Lanich, LeAnne M. 200
----------------------------------------------------- -------------
Lantag Communications or its Nominees 55,000
----------------------------------------------------- ------------
Lee, Hai Soon 2,002
----------------------------------------------------- -------------
Leggett Sr. William 200
----------------------------------------------------- -------------
Leggett Jr. William & Lonnie R. Shearin 200
----------------------------------------------------- -------------
Lewis, Jim & Wendy 200
----------------------------------------------------- -------------
Lewis, Tony 99
----------------------------------------------------- -------------
Lewis Jr., Carl W. 60,501
----------------------------------------------------- -------------
Light, Rick & Georianna 1,001
----------------------------------------------------- -------------
Lilly, Brian K. & Donna B. 1,000
----------------------------------------------------- -------------
Lilly, William Douglas 1,000
----------------------------------------------------- -------------
Lister Sr., Isaac L. 1,000
----------------------------------------------------- -------------
Londono, Gabriel J. & Ana L. 25,000
----------------------------------------------------- -------------
Losiciale, Vincent 15,000
----------------------------------------------------- -------------
Louie, Don 189
----------------------------------------------------- -------------
Marcuccio, Catherine 2,000
----------------------------------------------------- -------------
Mariano, Tanya C. 500
----------------------------------------------------- -------------
Martin, Alfred G. & Valerie A. 1,000
----------------------------------------------------- -------------
Mayo, William A. & Sylvia J. 1,000
----------------------------------------------------- -------------
McAvoy, Wyant 25,000
----------------------------------------------------- -------------
McCoy, Elnora 140
----------------------------------------------------- -------------
McLean, Ronald L. 1,000
----------------------------------------------------- -------------
McLean, Roger A. 1,000
----------------------------------------------------- -------------
McLean, Dexter 1,000
----------------------------------------------------- -------------
McLeod, Harold & Pamela 11,000
----------------------------------------------------- -------------
McPherson, Deborah & Valerie 199
----------------------------------------------------- -------------
McPherson, Valerie 99
----------------------------------------------------- -------------
McPherson, Cornell 99
----------------------------------------------------- -------------
Medway, Georgia Z. 1,000
----------------------------------------------------- -------------
Miller, Matthew 2,000
----------------------------------------------------- -------------
Miller, Ruth W. 8,686
----------------------------------------------------- -------------
Mills, Lisa T. 200
----------------------------------------------------- -------------
Mizelle, Jim L. & Peggy D. 400
----------------------------------------------------- -------------
Mizelle, Jimmy Dean 500
----------------------------------------------------- -------------
Mizelle, Dean 500
----------------------------------------------------- -------------
Molly Bea Spears (Irrevoable Trust) 100,000
----------------------------------------------------- -------------
Monsees, Charles L. 1,000
----------------------------------------------------- -------------
Monsen, Caroline 800
----------------------------------------------------- -------------
Moore, Gary C. 5,000
----------------------------------------------------- -------------
Moore, Michael S. & Sherri M. 500
----------------------------------------------------- -------------
Morris, Lino G. 75,000
----------------------------------------------------- -------------
Morris, Mary 99
----------------------------------------------------- -------------
Mulder, Marlin 5,000
----------------------------------------------------- -------------
Mulder, Mildred A. 1,600
----------------------------------------------------- -------------
N-9 of Rawlins 1,001
----------------------------------------------------- -------------
Nelson, Jack 50,000
----------------------------------------------------- -------------
Newsome, Mattie 99
----------------------------------------------------- -------------
Nichols, Johnny & Pamela 200
----------------------------------------------------- -------------
Nichols, William C. 200
----------------------------------------------------- -------------
Nicholson, R.P. 1,000
----------------------------------------------------- -------------
Nolz, Paul B. 200
----------------------------------------------------- -------------
O'Dea, Charles L. 1,000
----------------------------------------------------- -------------
O'Kelly, Christine 1,001
----------------------------------------------------- -------------
O'Neil, William E. 1,000
----------------------------------------------------- -------------
Oliver, Myrtle & Orressa Jernigan 100
----------------------------------------------------- -------------
Oliver, Faye 198
----------------------------------------------------- -------------
Olmstead, Iris Hare 1,000
----------------------------------------------------- -------------
Overman, David 5,000
----------------------------------------------------- -------------
Overman, Emerson L. 241,215
----------------------------------------------------- -------------
Overman Sr. W. Leonard 60,000
----------------------------------------------------- -------------
Overman Jr., C. Anthony 5,000
----------------------------------------------------- -------------
Overman, Brenda R. 5,000
----------------------------------------------------- -------------
Overman Jr., W. Leonard 241,215
----------------------------------------------------- -------------
Overman, Viola P. 60,000
----------------------------------------------------- -------------
Overman, Deborah L. 95,000
----------------------------------------------------- -------------
Overman, Leon B. 4,000
----------------------------------------------------- -------------
Overton Jr., Robert W. & Sue G. 11,064
----------------------------------------------------- -------------
Ozanne, Jeff J. & Darla J. 1,000
----------------------------------------------------- -------------
Ozanne, Maurice W. 1,000
----------------------------------------------------- -------------
Padgett, Dennis 6,000
----------------------------------------------------- -------------
Panorama Financial 11,522
----------------------------------------------------- -------------
Perry, Curtis R. & Joyce L. 300
----------------------------------------------------- -------------
Perry , Logan R. 200
----------------------------------------------------- -------------
Perry, Daryl L. 600
----------------------------------------------------- -------------
Perry, Luther 120
----------------------------------------------------- -------------
Perry, Robley 6,000
----------------------------------------------------- -------------
Perry, Donna J. 200
----------------------------------------------------- -------------
Perry, Joe W. 500
----------------------------------------------------- -------------
Perry, William Bryant 2,000
----------------------------------------------------- -------------
Phelps, Steven Craig 1,200
----------------------------------------------------- -------------
Phelps Jr., William T. & Patricia W. 5,000
----------------------------------------------------- -------------
Phillips Sr., Randy L. 200
----------------------------------------------------- -------------
Pierce, Carol 500
----------------------------------------------------- -------------
Pillow, Henry D. & Sarah L. 1,000
----------------------------------------------------- -------------
Pitcher, John 1,001
----------------------------------------------------- -------------
Porter, Bonnie 99
----------------------------------------------------- -------------
Poyner, Michael L. 100
----------------------------------------------------- -------------
Pranger, William E. & Joanna 500
----------------------------------------------------- -------------
Pritchard Sr., William P. 200
----------------------------------------------------- -------------
R & R Enterprises Properties, LLC 5,000
----------------------------------------------------- -------------
Ransim, Henry 5,000
----------------------------------------------------- -------------
Rawls Jr., Linwood L. 500
----------------------------------------------------- -------------
Rawls, Linwood L. & Louise W. 1,000
----------------------------------------------------- -------------
Read, Bruce 25,000
----------------------------------------------------- -------------
Redmond, Errick 1,000
----------------------------------------------------- -------------
Reuben, Dr. Allen 6,000
----------------------------------------------------- -------------
Revis, Tim W. 10,000
----------------------------------------------------- -------------
Rex Nichols Family Partnership, Ltd. 50,000
----------------------------------------------------- -------------
Riddick, James R. 8,000
----------------------------------------------------- -------------
Riggs, James S. & Beth H. 2,000
----------------------------------------------------- -------------
Rittenhouse, Rodney W. & Dianne M. 1,000
----------------------------------------------------- -------------
Roberson, Al 5,000
----------------------------------------------------- -------------
Roffo, Diane 1,000
----------------------------------------------------- -------------
Ross, Scott R. & Deborah 500
----------------------------------------------------- -------------
Rudy, Diane 10,000
----------------------------------------------------- -------------
Samame, Julio 10,000
----------------------------------------------------- -------------
Sawyer, Mark 398
----------------------------------------------------- -------------
Sawyer, Sr. Lawrence W. 33,500
----------------------------------------------------- -------------
Seawall, David 1,001
----------------------------------------------------- -------------
Self III, Mr. & Mrs. IR 400
----------------------------------------------------- -------------
Shahi, Kulwant 200,000
----------------------------------------------------- -------------
Shamis, Carolyn 4,000
----------------------------------------------------- -------------
Shaw, William H. & Reta L. 1,000
----------------------------------------------------- -------------
Shouse, Cherry 2,000
----------------------------------------------------- -------------
SHR Trust Limited 50,000
----------------------------------------------------- -------------
Simpson, Charles W. & Olga 1,000
----------------------------------------------------- -------------
Singh, Gail 4,000
----------------------------------------------------- -------------
Singh, Sarah 800
----------------------------------------------------- -------------
Smith , Patience D. 400
----------------------------------------------------- -------------
Smith, Angie K. 400
----------------------------------------------------- -------------
Smith, Rodney B. 1,000
----------------------------------------------------- -------------
Smith, Douglas B. & Aleta M. 1,000
----------------------------------------------------- -------------
Smith, Frank M. & Angie K. 3,000
----------------------------------------------------- -------------
Smith, Barbara C. 1,000
----------------------------------------------------- -------------
Smith, Kermit & Eva 1,000
----------------------------------------------------- -------------
Spear, Deborah K. 6,000
----------------------------------------------------- -------------
Spears, Gerry N. 200,000
----------------------------------------------------- -------------
Spears, Donald M. 250,000
----------------------------------------------------- -------------
Spence, Sharon 198
----------------------------------------------------- -------------
Spence, Mrs. Shelton 100
----------------------------------------------------- -------------
Stallings, Kuwarn 70
----------------------------------------------------- -------------
Stallings, Jimmy E. 2,000
----------------------------------------------------- -------------
Stallings, Edna P. & Jimmy E. 400
----------------------------------------------------- -------------
Stallings, Darryl E. Wanda C. 4,800
----------------------------------------------------- -------------
Stallings, Larry & June 34,000
----------------------------------------------------- -------------
Stallings, Alton Ray & Anna R. 200
----------------------------------------------------- -------------
Stallings, Charles 15,667
----------------------------------------------------- -------------
Starks, Grady & Judith 2,000
----------------------------------------------------- -------------
Steely, Don 17,140
----------------------------------------------------- -------------
Stepney, Mary 70
----------------------------------------------------- -------------
Stevens, Barbara S. 10,000
----------------------------------------------------- -------------
Summerford, Allen P. 31,250
----------------------------------------------------- -------------
Suter, Terry D. 300
----------------------------------------------------- -------------
Swain, Hal & Janet 400
----------------------------------------------------- -------------
Swain, Susan M. 2,000
----------------------------------------------------- -------------
Swanson, Martin 1,000
----------------------------------------------------- -------------
Taylor, George & Annie 2,430
----------------------------------------------------- -------------
Taylor, Joel V. 2,000
----------------------------------------------------- -------------
Terry, Ken & Rhonda 2,000
----------------------------------------------------- -------------
Terry, Kelvin 600
----------------------------------------------------- -------------
Terry, Keith A. & Cynthia B. 200
----------------------------------------------------- -------------
Totty, Gregory L. & Janet L. 540
----------------------------------------------------- -------------
Tribus, Paul A. 1,000
----------------------------------------------------- -------------
Trotman, Walter L. 697
----------------------------------------------------- -------------
Trotman, Diane 398
----------------------------------------------------- -------------
Trueblood, Ricky W. & Reggie W. 1,000
----------------------------------------------------- -------------
Trueblood, Carolyn D. 1,000
----------------------------------------------------- -------------
Tynch, Ricky V. 1,000
----------------------------------------------------- -------------
Tynch, Aubrey D. 2,000
----------------------------------------------------- -------------
Vaughan, Willie & Annie 2,500
----------------------------------------------------- -------------
Vaughan, Linda J. 3,500
----------------------------------------------------- -------------
Villegas, Hugo 25,000
----------------------------------------------------- -------------
Wachter, Kevin 50,000
----------------------------------------------------- -------------
Walls, Michael 1,000
----------------------------------------------------- -------------
Walls, Larry E. 1,000
----------------------------------------------------- -------------
Walls, Gregory S. 1,000
----------------------------------------------------- -------------
Ward, Harry R. & Teresa B. 600
----------------------------------------------------- -------------
Ward, H. Ivey & Jackie 200
----------------------------------------------------- -------------
Ward, Randolph & Yvonne 400
----------------------------------------------------- -------------
Ward, Dennis M. 400
----------------------------------------------------- -------------
Ware, Carlton N. & Crystal S. 2,000
----------------------------------------------------- -------------
Warren, Edward C. 1,000
----------------------------------------------------- -------------
Watson, Linda 1,000
----------------------------------------------------- -------------
WBC Family Estate Trust 5,001
----------------------------------------------------- -------------
Whidbee, Andre 764
----------------------------------------------------- -------------
White Jr., Oscar 1,000
----------------------------------------------------- -------------
White, William & Melody 1,060
----------------------------------------------------- -------------
White, Henry F. 1,500
----------------------------------------------------- -------------
White, Wallace 20,000
----------------------------------------------------- -------------
White, Namanuel 140
----------------------------------------------------- -------------
White, Oscar E. 2,000
----------------------------------------------------- -------------
Whitehurst, Beth 10,000
----------------------------------------------------- -------------
Wiggins, Gerald G. 1,000
----------------------------------------------------- -------------
Wiggins, Patricia P. 1,000
----------------------------------------------------- -------------
Williams Trust, Wendal 17,200
----------------------------------------------------- -------------
Williams, Derrick 198
----------------------------------------------------- -------------
Williams, Brenda Diane 2,000
----------------------------------------------------- -------------
Winslow, Alden & Elaine 4,000
----------------------------------------------------- -------------
Winslow, Willis B. & Evelyn L. 500
----------------------------------------------------- -------------
Winslow, Harry & Brenda W. 2,000
----------------------------------------------------- -------------
Winslow, James H. 1,000
----------------------------------------------------- -------------
Witcher, Derek D. & Melissa S. 26,200
----------------------------------------------------- -------------
Woods, Gary G. 250
----------------------------------------------------- -------------
Woods, Ronald R. & Betty E. 250
----------------------------------------------------- -------------
Worrie, Norma 1,000
----------------------------------------------------- -------------
Yoder, Alva & Susan 3,400
----------------------------------------------------- -------------
Young, Greg R. 2,000
----------------------------------------------------- -------------
Zimmerman, Judith D. 2,600
----------------------------------------------------- -------------
Zimmerman Sr., Peter R. 2,000
----------------------------------------------------- -------------
Total Investment 5,500,000
----------------------------------------------------- -------------
<PAGE>
SCHEDULE 3.6
ILDC SUBSIDIARIES
1. By Memorandum of Understanding dated November 30, 1999, StarTouch
International, Ltd. ("StarTouch") and ILDC contemplated the formation
of a joint venture corporation to be known as Custom Telecom Solutions,
Ltd. ("CTS"). ILDC has issued a Note in the amount of $2,067,407.87 to
StarTouch International, Ltd. in consideration of a like amount of
funds having been advanced to ILDC. The incorporation and
organizational documents of CTS, if prepared, were prepared by
Startouch and its counsel and ILDC has neither seen nor has in its
possession, any of such documents. Correspondence between StarTouch and
ILDC, including a letter dated March 2, 2000 from Ara F. Kalpak of
StarTouch to Anthony Overman, suggest that CTS was to be dissolved on
execution of the Promissory Note.
2. ILDC owns 150,000 shares of common stock of Airtime Technologies, Inc.,
one hundred twenty thousand (120,000) of which shares were issued on
April 3, 2000 and thirty thousand (30,000) of which were issued on
April 10, 2000.
<PAGE>
SCHEDULE 3.7
ILDC FINANCIAL STATEMENTS
ILDC has delivered December 31, 1999 unaudited financial statements to Old
Night. ILDC has not delivered January 31, 2000 audited or unaudited financial
statements. The financial statements delivered by ILDC are subject to change.
Old Night has advanced in total $2,149,000 to ILDC by way of seven separate loan
transactions on May 2, 3, 9 and 10, 2000 and June 15, 19 and 27, 2000. These
funds are evidenced by promissory notes secured by the assets of ILDC.
In February, 2000, BDR, Inc. loaned ILDC $1,500,000. This loan is evidenced by a
promissory note. The promissory note is due September 30, 2000 and is
non-interest bearing. On closing the share exchange, the amount due under the
note will be converted into a capital contribution to ILDC (the "Conversion")
and the note will be extinguished and be of no further force or effect. On the
Conversion, BDR, Inc. will be granted an option to purchase 150,000 shares of
common stock of ILDC at an exercise price of $5.00 per share. The option will be
exerciseable immediately following the Conversion but must be exercised within
five (5) years of the date of Conversion.
See discussion on Schedule 3.6 regarding Star Touch International, Ltd.
<PAGE>
SCHEDULE 3.8
DISCLOSURE OF TRANSACTIONS
NOT IN THE ORDINARY COURSE OF BUSINESS
--------------------------------------
1. ILDC currently has purchase commitments for purchases of switching
equipment as follows:
a. Purchase order dated March 6 issued to Nuera Communications, Inc. for
switching equipment with a purchase price of $555,975.
b. Purchase order dated December 3, 1999 issued to Salix Technologies,
Inc. for switching equipment with an aggregate purchase price of
$5,514,684.
c. Purchase order dated February 22, 2000 issued to Salix Technologies,
Inc. for switching equipment with an aggregate purchase price of
$4,220,580.
d. Purchase order dated February 22, issued to Salix Technologies, Inc.
for switching equipment with an aggregate purchase price of
$2,757,342.
e. Purchase order issued to Spring Tide Networks dated May 25, 2000 for
switching equipment with an aggregate purchase price of $245,700.
f. Purchase Order issued to Lucent Technologies for two switches with an
aggregate purchase price of $860,182.20. This purchase order was
amended as a result of an upgrade in the ordered equipment; the
purchase price has been increased to $921,036.96.
2. See Agreements referenced on Schedules 3.13 Title to Properties and 3.10
Contractual Commitments.
3. ILDC does not currently have any material written contracts with customers.
However, ILDC is in active discussions with four customers with whom ILDC
anticipates executing contracts within the next several weeks. Those
contracts are anticipated to involve call volume of approximately
60,000,000 minutes a month.
<PAGE>
SCHEDULE 3.9
UNDISCLOSED OR CONTINGENT LIABILITIES
See Schedule 3.11 regarding litigation.
See Agreements referenced on Schedules 3.13 Title to Property and 3.10
Contractual Commitments to the extent entered into after the date of the ILDC
Balance Sheet.
ILDC has received correspondence dated May 16, 2000 from the law firm of Brown,
Flebotte, Wilson & Horn, P.L.L.C. ("Brown") of Durham, North Carolina who
represent Charles and Olga Simpson (the "Simpsons") who previously entered into
a Joint Venture Agreement with ILDC dated November 8, 1998 (the "JV Agreement").
The Simpsons have declined ILDC's request to convert their rights and benefits
under the JV Agreement into Shares of common stock of ILDC and they have
retained Brown to protect their rights and to "take further legal action if
necessary."
See Schedules 3.6 Subsidiaries and 3.11 Litigation (with reference to StarTouch
International, Ltd.).
<PAGE>
SCHEDULE 3.10
CONTRACTUAL COMMITMENTS
1. See the Atlanta Lease, the Hertford Lease and the Atlanta Apartment Lease
referenced on Schedule 3.13 Title to Properties.
2. Various third parties have entered into equipment lease arrangements as
lessees for the benefit of ILDC. Pursuant to subscription agreements dated
April 18, 2000, such parties have received shares of common stock in ILDC
in consideration for entering into such leasing arrangements. ILDC has, and
Old Night will (as the surviving corporation after the Transaction), make
all payments under such leasing arrangements to the third party lessors.
Those leasing arrangements are as follows:
a. Carl W. Lewis, doing business as Central Insurance Agency, entered
into an Equipment Lease dated July 17, 1998 for the benefit of ILDC
with American Business Credit, as Lessor, requiring monthly lease
payments of $1,792.74, plus applicable tax. The lease has a term of 60
months. Section 24 of the lease states that the Lessee cannot assign
the lease or "permit any item of equipment . . . to be used by anyone
other than Lessee or Lessee's employees." The lease does not
specifically address share exchange transactions. This equipment lease
has been assigned to and assumed by ILDC.
b. Carl W. Lewis, doing business as Central Insurance Agency, entered
into an Equipment Lease dated July 13, 1998 for the benefit of ILDC
with Leasco, requiring monthly lease payments of $1,783.60. The lease
has a term of 60 months. Assignability of the lease cannot be
determined. This Equipment Lease has been assigned to and assumed by
ILDC.
c. Carl W. Lewis, doing business as Central Insurance Agency, entered
into an Equipment Lease dated June 4, 1998 for the benefit of ILDC
with Prepaid Cellular Services, as Lessor, requiring monthly lease
payments of $1,929.43 (including taxes). The lease has a term of 60
months. Assignability of the lease cannot be determined. This
Equipment Lease has been assigned to and assumed by ILDC.
d. Carpet and Appliance Plaza, Inc., as Lessee, entered into a Master
Equipment Lease Agreement dated October 27, 1998 for the benefit of
ILDC with Leasco, as Lessor. Such lease was also guaranteed by William
F. Edmunson on October 27, 1998. Pages 2 and 3 of the Master Equipment
Lease Agreement are not among ILDC's records. Assignability of the
lease cannot be determined. The monthly lease rate is $1,857.12. The
lease term is 60 months. This equipment lease has been assigned to and
assumed by ILDC.
e. Coastal Warehouse, LLC, as Lessee, entered into an Equipment Lease
Agreement dated March 4, 1999 for the benefit of ILDC with Leasing
Unlimited Portfolio, Inc., as Lessor. The lease was also personally
guaranteed by Fred D. Suter and Carolyn Suter. Section 17 of the lease
states "you agree you may not assign (transfer) any of your interests
under the lease to any other person or sublease any of the equipment."
The lease does not specifically address share exchange transactions.
The lease requires monthly payments of $2,300.00 over a 36 month term.
This equipment lease has been assigned to and assumed by ILDC.
f. Coastal Warehouse, LLC, as Lessee, entered into an Equipment Lease
Agreement dated March 4, 1999 for the benefit of ILDC with Leasing
Unlimited Portfolio, Inc., as Lessor. The lease was also personally
guaranteed by Fred D. Suter and Caroline Suter. Section 17 of the
lease states "you agree you may not assign (transfer) any of your
interests under the lease to any other person or sublease any of the
equipment. The lease does not specifically address share exchange
transactions. The lease requires monthly payments of $2,300.00 over a
36 month term. This equipment lease has been assigned to and assumed
by ILDC.
3. ILDC entered into a "Basic Intranet Services Agreement, Terms and
Conditions" dated April 19, 2000 with Savvis Communications Corporation,
pursuant to which Savvis provides Permanent Virtual Circuits (PVCs) to ILDC
for London, Frankfurt, Miami, Los Angeles, New York and Atlanta. Section 14
of the Agreement states
<PAGE>
SCHEDULE 3.10
CONTRACTUAL COMMITMENTS
(Continued)
that "this Agreement shall not be assignable by you except with the written
consent of Savvis, which consent shall not be unreasonably withheld.
Subject to the foregoing, this Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective successors and
assigns." The Agreement does not specifically address share exchange
transactions.
4. ILDC entered into a Telco Facilities License Agreement on May 14, 1999 with
Telx Communications Corporation providing ILDC with a license to install
certain electronic equipment to receive and deliver telephone and/or data
communications traffic in Telx Communications Corporation's facilities
located at 60 Hudson Street, Suite 2300, New York, New York. The license
was granted for a term of one year. Section 10 of the license agreement
states that "Licensee shall not enter into any sublicense agreement with
respect to the license without prior written consent from Licensor which
may or may not be granted in Licensor's sole discretion." The license
agreement does not address a change of control or share exchange
transactions.
5. ILDC currently operates through a letter agreement originally entered into
between Prepaid Cellular Services, Inc. and Equant Network Services, Inc.
which provides ILDC access to equipment which is collocated in facilities
of Equant and its affiliates located in Atlanta, Georgia, Alexandria,
Virginia, Schiller, Illinois, Miami, Florida, Bellrose, New York, El
Segundo, California, Seattle, Washington and South San Francisco,
California.
6. ILDC issued an offer of employment on April 1, 2000 to Mark Sampson
pursuant to which Sampson would serve as the Chief Executive Officer of
ILDC effective April 1, 2000. The offer of employment has not been accepted
in writing by Mark Sampson; however, Sampson has communicated to ILDC that
the terms of the offer are acceptable. A formal employment agreement is to
be prepared.
7. ILDC entered into a Sprint Enhanced Frame Relay Sales Agreement on May 9,
2000 with Carolina Telephone and Telegraph Company, dba Sprint, for frame
relays to be installed in Atlanta and Denver. The term of the contract is
for one year. Assignability of the Agreement cannot be determined. The
monthly cost of each relay is $1,324.40.
8. ILDC entered into a Contract Service Agreement for Fiber Sonet Ring
Services dated May 8, 2000 with Carolina Telephone and Telegraph Company,
dba Sprint. The Agreement requires monthly payments of $6,869.23 a month
over a 60 month term. Section 8 of the Agreement prohibits the assignment
of the Service Agreement" except on written consent of Company, which
consent shall not be unreasonably withheld." The Agreement does not address
a change of control or share exchange transactions.
9. ILDC entered into an Arrangement for Integrated Services Digital Network
dated April 14, 2000 with Carolina Telephone and Telegraph Company, dba
Sprint, pursuant to which ILDC leases ISDN-PRI services with monthly
charges of $678.00 payable over a 48 month term. Section 8 of the Agreement
prohibits the assignment of the Agreement by ILDC "except on written
consent of Company." The Agreement does not address a change of control or
share exchange transactions.
10. ILDC entered into a Sales Agreement with Carolina Telephone and Telegraph
Company, dba Sprint, pursuant to which ILDC purchased certain telephone
equipment for an aggregate purchase price of $99,522.81. ILDC made a down
payment of $25,000. The balance of the purchase price ($74,522.81) is being
financed over a 48 month period. Section 8 of Attachment B of the Sales
Agreement provides that either party may assign its rights and obligations
to any successor in interest, "provided it gives the other party advanced
written notice thereof and the assignee agrees in writing to be bound by
and assume all obligations and liability under the terms of the Agreement."
Sprint appears to have secured payment of the amount outstanding through
the filing of a UCC financing statement in North Carolina.
<PAGE>
SCHEDULE 3.10
CONTRACTUAL COMMITMENTS
(Continued)
11. ILDC entered into a Commercial Service Order Agreement dated April 14, 2000
with Media One. The Agreement, which has a month to month term, has monthly
recurring charges of $1,107.40. The Agreement states that either party may
assign the Agreement to a successor without the prior written consent of
the other party, provided that the Assignment does not increase the
obligations of the other party. The Agreement does not address a change of
control or share exchange transactions.
12. ILDC entered into a Consulting Agreement dated March 14, 2000 with BDR,
Inc. This Agreement is for a term of thirty-six months and has monthly
charge of $7,000 per month. The Agreement does not address a change of
control or share exchange transactions.
o ILDC entered into a Consulting Agreement on or about July 1, 1999 with
Venture TeleCom. The Agreement is for a term of thirty-six months and has
monthly charge of $10,000. o
<PAGE>
SCHEDULE 3.11
ILDC LITIGATION
1. Compaq Computer Corp. v. International Long Distance Corp. State Court
----------------------------------------------------------
of Dekalb County, Georgia, Civil Action No. 99-A-62685-5.
Compaq Computer Corp. has instituted an action against ILDC alleging breach
of contract and seeking damages in the principal amount of $679,071.39,
together with accrued interest of $141,321.26 (with interest accruing at 1
1/2% per month from the date of filing (12/8/99)), costs and post judgment
interest. ILDC has filed an Answer to Compaq's complaint denying any
liability or obligation to Compaq.
2. Also, See Section 3.9 regarding potential claim by Charles and Olga
Simpson.
3. StarTouch International, Ltd. V. International Long Distance Corporation
and Anthony Overman. Superior Court of Fulton County, Georgia, Civil Action
No. 2000CU24652.
ILDC's $2,067,407.87 Promissory Note issued to StarTouch International,
Ltd. ("StarTouch") on February 5, 2000 was due on June 5, 2000. Payment
has not been made. On May 26, 2000, StarTouch forwarded a letter to
ILDC confirming the June 5th payment date and the total amount
outstanding of $2,136,321.47 (including interest of $68,913.60).
StarTouch filed a Verified Complaint on Promissory Note in the Superior
Court of Fulton County, State of Georgia on June 21, 2000. Process was
served on Anthony C. Overman on July 6, 2000. StarTouch's complaint
requests the following relief:
a. judgement be entered in favor of StarTouch in the principal amount of
$2,067,407.87;
b. judgement be entered in the amount of $67,969.57 for interest through
the June 5, 2000 due date of the Note;
c. judgement be entered in a per diem amount after June 5, 2000 of
$1,989.9981 through June 30 and then each month thereafter, $566.4131
per diem plus two (2) percent of the unpaid balance; and
d. judgement be entered for reasonable attorney fees.
ILDC has not filed an answer to the complaint. An answer is due within
30 days after the date of service.
<PAGE>
SCHEDULE 3.12
COMPLIANCE WITH LAWS
ILDC is not aware of any material noncompliance with Laws.
<PAGE>
SCHEDULE 3.13
TITLE TO PROPERTIES
Hertford Lease
--------------
ILDC currently occupies approximately 10,000 sq. ft. of office space in the Don
Juan Building in Hertford, North Carolina. The property is leased by ACO
Enterprises, Inc. (an entity controlled by Anthony Overman) from Apricot, Inc.
under a 24 month lease commencing October 1, 1999. ILDC currently occupies space
pursuant to an unwritten sublease arrangement. It is anticipated that a formal
written sublease will be prepared and executed prior to the Closing Date.
Atlanta Lease
-------------
ILDC currently leases office space pursuant to a Lease Agreement between Bank
Building Limited Partnership ("Landlord") dated on or about June 9, 2000, for
leased premises (the "Atlanta Premises") located at 55 Marietta Street, Atlanta
Georgia (Suite 1740) (the "Atlanta Lease")
Pursuant to ss. 4 of Addendum III of the Atlanta Lease, Tenant may assign the
lease to "any entity which succeeds to all or substantially all of its assets
whether by merger, sale or otherwise.
Atlanta Apartment Lease
-----------------------
Leonard Overman, Jr. entered into an apartment rental agreement ("Atlanta
Apartment Lease") dated November 13, 1998 with Julian Lecraw and Co., Inc. for
Apartment 2006 located at 1280 W. Peachtree Street, Atlanta, GA. ILDC pays the
monthly rental of $1,330.00. The apartment is used by various ILDC employees
while conducting business in Atlanta. The lease's initial 12 month term
beginning November 13, 1998 ended on November 12, 1999. Pursuant to Section 6 of
the lease, the lease is currently renewed on a month to month basis.
Denver, Colorado
----------------
ILDC has entered into three Lease Agreements with Globe Business Resources, Inc.
dated May 12, 2000 for corporate apartments located in Denver, Colorado. The
term of each Lease is ninety (90) days commencing on May 15, 2000 and ending on
August 12, 2000. The total rents payable over the ninety (90) day period for
each of the three corporate apartments is $4,410, $4,410, and $5,490,
respectively. The Lease Agreements do not address a change of control or share
exchange transactions.
Vancouver Lease
---------------
[Disclosure on Vancouver lease to come]
Other
-----
On October 1, 1999, ILDC purchased equipment from Comdial for $305,509.80 which
was financed by Comdial through a Note Agreement bearing interest at 10.75%. The
current remaining balance of $127,295.75 (as of May 25, 2000) is secured by the
Comdial equipment.
See Equipment Leases referenced on Section 3.10
In January of 1999, ILDC purchased two vacant lots in Hertford, North Carolina
with the intention of building an office building. ILDC continues to own the
lots; however, there are no immediate plans to either dispose of or develop the
lots. The seller of the lot maintains a deed of trust on the property to secure
a promissory note dated January 15, 1999 in the original principal amount of
$29,000.
See lien in favor of Sprint referenced in paragraph 10 of Schedule 3.10.
<PAGE>
SCHEDULE 3.15
ILDC TAXES
----------
ILDC currently owes payroll taxes and withholdings from employees wages to the
Internal Revenue Service, State of North Carolina and ________, in the aggregate
amount of $ _______________.
<PAGE>
SCHEDULE 3.16
CONSENTS AND APPROVALS
The following third party consents and approvals may be necessary in order to
consummate the share exchange:
Consent of each of the third parties referenced in Schedules 3.13 Title
to Properties and 3.10 Contractual Commitments.
<PAGE>
SCHEDULE 3.20
INTEREST CONFLICTS TO ILDC BY DIRECTORS, OFFICERS & SHAREHOLDERS
----------------------------------------------------------------
See disclosure regarding Hertford Lease set forth in Schedule 3.13.
ILDC was affiliated with National Marketing Corporation (NMC), a marketing
organization, which is owned by the president of ILDC. ILDC advanced $1,085,448
to National Marketing Corporation during the calendar years 1998 and 1999, which
will not be repaid since operations of NMC have been discontinued. A substantial
portion of the funds advanced to NMC were forwarded to Prepaid Cellular
Services, LLC in the form of loans, advances, and direct payment of Prepaid
Cellular's liabilities. Prepaid Cellular ceased operations during 1999. As a
result, these advances to National Marketing Corporation have been reflected as
uncollectible advances to affiliate in ILDC's consolidated December 31, 1999
audited financial statements.
ILDC has advanced the president $84,060 as of December 31, 1999. No interest is
charged on the advance.
ILDC received advances from a relative of the president totaling $41,985. This
amount is included in accounts payable at December 31, 1999.
ILDC entered into various transactions with Prepaid Cellular Services, LLC (PCS)
regarding the use of the ILDC telephone switching and network services. As the
relationship with PCS progressed, the Company also made cash advances to PCS,
purchased equipment for PCS and paid operating expenses of PCS. In addition,
Anthony Overman, the president of ILDC, served for a brief period as CEO of PCS.
ILDC also attempted to acquire the stock of PCS and merge PCS into ILDC. The
acquisition of the stock was rejected and irreconcilable differences between the
companies arose. Due to the significant amount invested into PCS, ILDC continued
to fund the operations of PCS in an attempt to reach a point where revenue could
be generated or some of the investment recovered. PCS ultimately failed.
Numerous claims were made against PCS by various creditors and third parties.
Due to the close relationship of ILDC with PCS and the fact that the ILDC
president served as CEO of PCS, claims have been made against ILDC for some of
the PCS debts and obligations.
ILDC funded PCS amounts totaling $2,518,149. These amounts include advances by
ILDC to PCS, payment of PCS expenses and obligations, and a settlement of
approximately $468,000 to Garwell Limited Partnership for advances to PCS. The
Garwell claim was settled by issuance of ILDC common stock. Subsequent to
December 31, 1999, ILDC agreed to issue 200,000 shares of common stock to
Garwell or its affiliates in exchange for canceling the $468,000 claim and in
exchange for $350,000 which had previously been invested in ILDC. When PCS
ceased operations, ILDC took possession of equipment totaling $506,753. Those
stock issuances have been completed and are reflected in the ILDC shareholder
list attached as Schedule 3.1. The remaining costs related to PCS, totaling
$2,011,396, have been charged to expense as loss on failed venture.
ILDC has assumed responsibility for the portion of the debts incurred by PCS in
cases where management has determined that ILDC has financially benefited or is
ultimately liable for payment. These liabilities have been recorded in ILDC's
consolidated audited December 31, 1999 audited financial statements.
<PAGE>
SCHEDULE 3.21
INTELLECTUAL PROPERTY
ILDC is in the process of preparing a patent application to be filed in the U.S.
Patent and Trademark office to protect certain proprietary processes
<PAGE>
SCHEDULE 3.22
EMPLOYEE BENEFIT PLANS
ILDC offers basic healthcare coverage to its employees under its healthcare plan
with Blue Cross Blue Shield of Georgia, an independent licensee of the Blue
Cross and Blue Shield Association.
There are no claims by former or present employees of ILDC.
ILDC has neither adopted a stock option plan nor has issued any currently
outstanding options to purchase shares of capital stock of ILDC.
<PAGE>
SCHEDULE 3.24
LICENSES AND PERMITS
ILDC maintains a 214 License with the Federal Communications Commission.
ILDC is registered as a foreign corporation in the State of Georgia.
ILDC has been informed by the local authorities in North Carolina that no
business license is required to conduct business in Hertford, North Carolina.
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 3.23
LIST OF EMPLOYEES AND SALARIES
First Name MI Last Name Title Salary Date Hired
<S> <C> <C> <C> <C> <C>
Viola P. Overman Executive Secretary $45,000.00 8/ 1/97
Kana P. Overman Customer Service Manager $35,000.00 8/ 1/99
Rube F Blanchard CPA $40,000.00 4/27/00
William R. Neale Vice President Marketing $144,000.00 5/ 1/00
Mark Sampson CEO $250,000.00 2/ 1/00
Derek D Witcher Office Manager $45,000.00 12/ 4/99
Anthony Overman President $150,000.00
Emerson L Overman Chief of Operations $104,000.00 8/ 1/99
Brenda R Overman Secretary $20,800.00 1/20/00
Cheryl F Green Supervisor $20,800.00 2/14/00
Clifton D Jarvis Jr. Customer Service $16,120.00 2/27/00
Curtis D Bunch Technician $80,000.00 3/ 6/00
Douglas A Hamilton Network Manager $80,000.00 3/27/00
Gabriel Londono Technician $40,000.00 3/ 1/98
Syed A Hasan International Marketing $120,000.00 4/10/00
Harold L McLeod Project Manager $80,000.00 3/28/00
Hugo Villegas Technician $45,000.00 6/30/97
James M Klender Technician $28,600.00 10/ 1/99
Kevin T Wacher Techician $65,000.00 2/ 9/97
Leah M Hurley Customer Service $15,600.00 2/25/00
Leonard Overman Jr. Vice President $104,000.00 2/ 1/98
Leonard Overman Sr. Chief Advisor $52,000.00 8/ 1/97
Norva G Wills Customer Service $15,600.00 2/14/00
Mary A. Paulino Customer Service $15,900.00 2/29/00
Rebekah J Hurley Customer Service $15,600.00 2/25/00
Reginald Ibison CTO $140,000.00 11/ 1/97
Sarah K Hurley Customer Service $15,600.00 2/25/00
Stephen M Parsons Customer Service $15,900.00 2/27/00
Vincent J Losciale Supervisor $58,500.00 11/ 1/99
Lawrence W Sawyer Supervisor $52,000.00 2/ 1/98
Lawrence Sawyer, Jr. Technician $20,800.00 6/1/00
Patrick J Klender Customer Service $16,120.00 12/10/99
Lino G Morris Marketing Director $120,000.00 4/10/00
</TABLE>
<PAGE>
SCHEDULE 3.26
BANK ACCOUNTS
ILDC maintains a business checking account with First Union National Bank as
well as a business checking account with Centura Bank.
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT is effective the 15th day of
January, 2000, by and between (the "Shareholder") and Anthony C. Overman as
trustee (the "Trustee").
RECITALS
A. The Shareholder is the owner of ______shares (the "Stock") of the
outstanding common stock of International Long Distance Corporation, a
North Carolina corporation (the "Corporation");
B. The Shareholder deems it advisable and in the best interests of the
Shareholder and the Corporation to ensure continuity and stability of
management of the Corporation and to protect the Shareholder's interest in
the Corporation;
C. The Shareholder has selected the Trustee as the Shareholder's choice for
the individual best able to effectuate the purposes of this Agreement, and
the Trustee has consented to act under this Agreement for the purposes
herein provided.
AGREEMENT
In consideration of the mutual agreements of the parties and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties have agreed as follows:
ARTICLE 1.
DEPOSIT OF STOCK AND ISSUANCE
OF VOTING TRUST CERTIFICATES
1.1. Deposit of Stock. The Shareholder shall deposit with the Trustee or cause
the Corporation to issue in the name of the Trustee simultaneously with the
execution of this Agreement certificates representing the Stock. The Trustee
agrees to receive and hold the Stock and all additional stock of the Corporation
as may be transferred to it pursuant to this Agreement in trust, to be held,
used, transferred, and disposed of for the uses and purposes and upon the terms
and conditions set forth in this Agreement. The term "Stock," as used in this
Agreement, shall mean all stock now owned or hereafter acquired by any means or
at any time during the term or any renewal of this Agreement by the Shareholder
or any of the Shareholder's heirs, personal representatives, successors, or
assigns, all of which Stock hereafter acquired, the Shareholder shall, promptly
upon receipt thereof, deliver to the Trustee, as provided by this Agreement.
1.2. Trust Certificates. At the time of deposit of (or issuance to) the stock
certificates with the Trustee, the Shareholder shall transfer to the Trustees by
proper endorsement his full legal title to all Stock owned by him, and the
Trustee shall be vested with all of the rights and powers of the owner of the
Stock, with the full rights and powers of the owner, of whatever nature
necessary to enable the Trustee to exercise the powers granted to the Trustee
under this Agreement. The Trustee shall issue to the Shareholder Voting Trust
Certificates ("Trust Certificates"), in substantially the form attached to this
Agreement as Exhibit A, for all Stock transferred to the Trustee.
1.3. Issuance of New Stock Certificates. All stock certificates transferred and
delivered to the Trustee pursuant to this Agreement shall be surrendered by the
Trustee to the Corporation and the Corporation shall issue new certificates
therefor in the name of the Trustee. Each certificate issued to the Trustee
shall state that it is issued pursuant to this Voting Trust Agreement, a copy of
which shall be on file both at the Corporation's principal office and with the
Trustee.
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
1.4. Mutilated, Destroyed, Etc. Trust Certificates. In case any Trust
Certificate becomes mutilated, destroyed, stolen, or lost, the Trustee, upon the
written request of the owner of the Trust Certificate, shall issue a duplicate
Trust Certificate, which shall be so marked, and the Trustee may, as a condition
precedent to issuing the duplicate Trust Certificate, require the requesting
Shareholder to furnish satisfactory evidence of such mutilation, destruction,
theft, or loss, together with reasonable indemnity satisfactory to the Trustee.
1.5. Effect of this Agreement on Option Rights. Neither this Agreement nor the
transfer of the Stock to the Trustee shall terminate the right of any
Shareholder to acquire additional shares of the stock of the Corporation
pursuant to any subscription agreement, option agreement, employment agreement,
or otherwise. For all such purposes, a Shareholder shall be deemed to hold the
number of shares of the stock of the Corporation as are represented by his Trust
Certificate.
1.6. Additional Stock. If the Shareholder receives additional shares of stock
of the Corporation during the term of this Agreement or any renewal term, such
stock shall be transferred to the Trustee pursuant to this Article and shall be
subject to the terms and conditions of this Agreement. Any reference to Stock in
this Agreement shall include any shares of the stock of the Corporation which
become subject to this Agreement.
ARTICLE 2.
DISTRIBUTIONS, LIQUIDATION AND REORGANIZATION
2.1. Distributions Paid to Trustee. Prior to the termination of this
Agreement, the Shareholder shall be entitled to receive payments equal to the
cash dividends, if any, and property other than cash, if any, received by the
Trustee with respect to the Stock. If any dividend in respect of the Stock is
paid, in whole or in part, in stock of the Corporation, the Trustee, shall
likewise hold, subject to the terms of this Agreement, the certificates for such
stock received on account of such dividend, and the Shareholder shall be
entitled to receive Trust Certificates for the number of shares and class of
stock received as such dividend.
2.2. Distributions Paid to Shareholder. In lieu of receiving cash and property
dividends on the Stock and paying such distributions to the Shareholder, the
Trustees may, at their option, instruct the Corporation in writing to pay such
dividends to the Shareholder. Upon receiving such instructions, the Corporation
shall pay such dividends directly to the Shareholder in such amounts as they
would have received in the absence of this Agreement, based upon the interest of
the Shareholder, as it appears in the records of the Trustee. Upon the Trustee
giving such instructions to the Corporation, and until such instructions are
revoked, all liabilities of the Trustee with respect to such dividends shall
cease. The Trustee may at any time revoke such instructions and by written
notice to the Corporation direct it to make all future dividend payments to the
Trustee. Such instructions shall be effective only with respect to cash
distributions and distributions of property, but not with respect to stock
distributions. Any stock distributions shall be made to the Trustee, regardless
of any instructions delivered pursuant to this Section.
2.3. Redemption. If any shares represented by a Trust Certificate are redeemed
by the Corporation, the proceeds from the redemption shall be distributed to the
Shareholder in whose name the Trust Certificate stands upon surrender of the
Trust Certificate duly endorsed to the Trustee.
2.4. Dissolution. In the event of the dissolution or total or partial
liquidation of the Corporation, whether voluntary or involuntary, the Trustee
shall receive the moneys, securities, rights, or property to which the
Shareholder is entitled and shall distribute the same to the Shareholder in such
amounts as the Shareholder would have received in the absence of this Agreement.
2.5. Merger. In case the Corporation is merged into or consolidated with another
corporation, or all or substantially all of the assets of the Corporation are
transferred to another corporation and shares of such other
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
corporation are issued to the Trustee, then in connection with such transfer the
term "Corporation" for all purposes of this Agreement shall be taken to include
such successor corporation, and the Trustee shall receive and hold under this
Agreement any stock of the successor corporation delivered or distributed to the
Shareholder under this Agreement as a result of such merger, consolidation, or
transfer. Trust Certificates issued and outstanding under this Agreement at the
time of the merger, consolidation, or transfer may remain outstanding, or the
Trustee may substitute for the outstanding Trust Certificates new Trust
Certificates in appropriate form. The term "Stock," as used in this Agreement,
shall include any stock which may be received by the Trustee in lieu of all or
any part of the Stock of the Corporation. Any property other than stock received
by the Trustee as part of the transaction will be distributed to the Shareholder
in such amounts as they would have received in the absence of this Agreement.
ARTICLE 3.
POWERS AND OBLIGATIONS OF THE TRUSTEES
3.1. Powers of Trustee. Except as otherwise provided in this Agreement, the
Trustee in respect to the Stock shall be vested with all of the rights, powers,
and privileges of every kind and character of an owner thereof, including,
without limitation the rights to vote the Stock, either in person or by proxy,
for every purpose.
3.2. Rights of Trustee. The Trustee, individually or otherwise, may hold stock
of the Corporation and, individually or as a trustee, may vote for himself as a
director and/or officer of the Corporation and, subject to any limitations
imposed by any agreement by which the Corporation or the Shareholder is bound,
participate in fixing the amount of compensation therefor or as an employee of
the Corporation, and any Trustee, or any firm of which he is an employee, owner,
director, or agent may contract with the Corporation or the Trustee or be or
become pecuniarily interested in any matter or transaction to which the
Corporation or the Trustee may be a party, as fully as though such person were
not a Trustee hereunder.
3.3. Compensation and Reimbursement. The Trustee shall serve without
compensation. The Trustee shall have the right to incur and pay such reasonable
expenses and charges, and to employ and pay such agents, attorneys, and counsel
as the Trustee may deem necessary and proper for carrying this Agreement into
effect. Any such expenses or charges incurred by and due to the Trustee may be
deducted from the dividends or other moneys or property received by the Trustee
on the Stock.
3.4. Liability. The Trustee shall not be personally liable for any act committed
or omitted to be done under this Agreement, provided such commission or omission
does not amount to either gross negligence or willful misconduct, and provided
also that the Trustee at all times exercises good faith in all matters relating
to this Agreement. The Trustee shall not at any time be required to give or file
any bond in order to qualify or continue as Trustee hereunder.
ARTICLE 4.
VOTING
4.1. Voting By Trustees. At all meetings of the shareholders of the Corporation,
the Trustee shall vote the Stock on all issues considered in its absolute
discretion. The voting rights and powers extended to the Trustee pursuant to
this Agreement shall extend to all matters upon which the Shareholder would
otherwise be entitled to vote, including, but not limited to, the dissolution,
consolidation, or merger of the Corporation, the sale, lease, encumbrance, or
other disposition of all or substantially all of the assets of the Corporation,
either in or not in the ordinary course of its business, the authorization of
additional stock of the Corporation, the creation of new classes of stock or
reclassification of any existing class of stock, and amendment of the Articles
of Incorporation of the Corporation, regardless of whether any of such matters
may substantially and/or adversely affect the Shareholder.
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
4.2 Proxies. The Trustee shall be authorized to cast its votes at any meeting of
the shareholders of the Corporation by proxy. Any proxy given by the Trustee may
give the holder thereof discretion to vote the Stock to the same extent the
Trustee would have had discretion to vote the Stock. The Trustee shall not be
liable to the Shareholder for any action taken by the holder of any such proxy,
provided that the Trustee is not guilty of gross negligence or willful
wrongdoing in connection with appointing such holder of the proxy.
4.3 Action Without Meeting. In the event the Trustee is asked or desires to
consent to any action of the shareholders of the Corporation without a meeting,
it shall be authorized to act, consent or refuse to consent to such action, or
consent to any alternative action, in its absolute discretion.
ARTICLE 5.
RESIGNATION AND REPLACEMENT OF THE TRUSTEE
5.1. Resignation. The Trustee (and any successor Trustee) may at any time resign
by mailing to the shareholder a written resignation, to take effect ten (10)
days thereafter or upon the prior acceptance thereof.
5.2. Appointment of Successor Trustee. In the event the Trustee resigns or for
any other reason is unable to continue to perform the duties required by this
Agreement, one or more replacement Trustee shall be selected by the Shareholder.
5.3. Rights of Successor Trustees. The rights, powers, and privileges of the
Trustee named hereunder shall be possessed by all successor Trustees, with the
same effect as though such successors had originally been parties to this
Agreement. The word Trustees, as used in this Agreement, means the Trustee or
any successor Trustees acting hereunder.
ARTICLE 6.
TRANSFER OF TRUST CERTIFICATES
6.1. Addendum to Subscription Agreement. The Stock shall remain subject to the
Addendum to Subscription Agreement and Investment Intent Letter for Common Stock
of International Long Distance Corporation, effective as of January 15, 2000, by
and between the Corporation and the Shareholder ("Addendum to Subscription
Agreement") and the restrictions and obligations applicable to the Stock under
the Addendum to Subscription Agreement shall be fully applicable to the Trust
Certificates. For this purpose, the Shareholder shall be considered to be a
shareholder holding shares of the Stock equal to the number of shares
transferred to the Trustees, as shown on the Trust Certificate issued to the
Shareholder.
6.2. Procedure for Transfer. Subject to the provisions of Section 6.1 above and
the Addendum to Subscription Agreement, the Trust Certificates or portions
thereof shall be transferable at the principal office of the Corporation (or
such other place as designated by the Trustee by notice to the Shareholder) on
the books of the Trustee, by the registered owner thereof, either in person or
by duly authorized attorney, upon the surrender thereof, according to the rules
established by the Trustee from time to time. The Trustee shall not be required
to recognize any transfer of a Trust Certificate not made in accordance with the
provisions of this Article; provided that the Trustee shall be authorized, but
not required, to recognize any transfer in which the person claiming ownership
of a Trust Certificate has produced indicia of ownership satisfactory to the
Trustee and has deposited with the Trustee indemnity satisfactory to the
Trustee. Upon the transferor Shareholder complying with the requirements of this
Agreement and any other applicable agreement, the Trustee shall issue to the
transferee(s) one or more Trust Certificates, and the shares of the Stock
represented thereby shall continue to be subject to this Agreement. Provided, at
any time the Shareholder may with the prior written consent of the Trustee,
which consent shall not be unreasonably withheld, transfer all or any part of
the Trust Certificates to a third party which is not a family member or
Affiliate of the Shareholder in a bona fide arms-length sale for fair value (a
"Bona Fide Purchaser"). Upon the
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
transfer of the Stock to a Bona Fide Purchaser as provided herein, this
Agreement shall terminate with regard to the Stock transferred to the Bona Fide
Purchaser. For the purposes of this Agreement "Affiliate" shall have the meaning
ascribed to it in Rule 12b-2 of the regulations promulgated under the Securities
Exchange Act of 1934, as amended.
6.3. Voting Rights After Transfer. Any transfer of Trust Certificates not in
accordance with the terms and conditions of this Agreement shall be null and
void and of no effect. The Trustee shall continue to vote the shares of the
Stock represented by such Trust Certificate.
Upon complying with the requirements for transfer of a Trust Certificate, a
Transferee shall be entitled to:
(a) receive a new Trust Certificate;
(b) receive any distributions or dividends of the Corporation with
respect to the shares represented by his Trust Certificate;
(c) receive the shares of Stock represented by his Trust Certificate
upon the termination of this Agreement.
ARTICLE 7.
TERM OF THE TRUST; RIGHTS ON TERMINATION
7.1. Term. Except to the extent otherwise provided in Section 7.2, the term of
this Agreement shall commence on January 15, 2000 (the effective date), and
shall continue in effect for ten (10) years thereafter. At any time within one
(1) year prior to the scheduled termination date, or at any time within one year
prior to the expiration of any extension of this Agreement, the Shareholders (or
any of them) may, by agreement in writing, extend the duration of this Agreement
(with respect to the extending Shareholders) for an additional period of time
not to exceed ten years from the date the first Shareholder signs the extension
agreement.
7.2. Early Termination. This Agreement and any extension thereof, shall be
terminated at any time upon the mutual written consent of the Shareholder and
the Trustee or in accordance with the provisions of Section 6.2 above.
7.3. Delivery of Stock Certificates. Following termination of this Agreement or
any extension thereof, upon surrender of the Trust Certificates, duly endorsed
in blank by the Shareholder or the Bona Fide Purchaser in the case of a
termination under Section 6.1, and payment to the Trustee of the costs,
expenses, and disbursements incurred by the Trustee in administration of this
Agreement, the Trustee shall, within eighty (80) days after receipt of such
Trust Certificates, deliver, or cause to be delivered to the Shareholder or Bona
Fide Purchaser, as applicable certificates for shares of the Stock equal to the
number of shares represented by the surrendered Trust Certificates together with
all dividends or other distributions applicable to those shares held by the
Trustee.
ARTICLE 8.
MISCELLANEOUS
8.1. Shareholder Have Shareholder Inspection Rights in the Corporation. During
the term of this Agreement and any extension thereof, the Shareholder shall
retain all shareholder inspection and copying rights authorized by the law of
the State of North Carolina, or in the case of a merger or business combination
by the Corporation with or into another corporation which is the survivor of
such merger or business combination, the laws of the state of incorporation of
such surviving corporation.
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
8.2. Shareholder Inspection Rights of Trustees' Books. During the term of this
Agreement and any extension thereof, the Shareholder shall have the right at any
time during normal business hours to inspect and copy the records of the Trustee
with respect to this Agreement upon giving two business days advance written
notice of the request to the Trustee.
8.3. Severability. If any provision of this Agreement shall be held
unenforceable, the rest and remainder of this Agreement shall continue in effect
and be construed and enforced as if such unenforceable provision had not been
contained herein. Each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
8.4. Entire Agreement. This Agreement and to the extent referenced herein, the
Addendum to Subscription Agreement constitutes the entire agreement between the
parties with respect to the voting rights of the Shareholder and supersedes,
merges, and replaces all prior negotiations, offers, representations,
warranties, and agreements with respect to the subject matter hereof.
8.5. Modification, Waiver. This Agreement may be modified only by a writing
signed by all parties. No waiver of any of the provisions of this Agreement,
including the provisions of this paragraph, shall be binding upon the waiving
party unless set forth in a writing signed by the waiving party.
8.6. Governing Law. This Agreement, and the performance hereunder, shall be
interpreted and enforced in accordance with the laws of the State of North
Carolina, excluding its laws relating to choice of law.
8.7. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of, the Shareholder and the Shareholder's respective heirs, personal
representatives, successors and permitted assigns, provided however, that
nothing in this paragraph shall be construed to permit the assignment of the
Stock other than in accordance with the terms of this Agreement and the Addendum
to Subscription Agreement. Unless expressly provided for herein, this Agreement
and the rights, obligations and duties of the parties hereto shall not be
assignable or transferable without the express written consent of all the
parties.
8.8. Notices. Any notice or other communication required or permitted by this
Agreement shall be in writing and shall be given by hand delivery, via
facsimile, or sent by the United States Mail by certified mail, return receipt
requested, postage prepaid, and addressed to the Shareholder as his addresses
may appear in the records of the Trustee, and to the Trustee at 1B Ainsley Road,
Hertford, NC 27944, (or such other address as the parties may, by notice,
specify), and shall be deemed given when hand delivered, when transmission is
complete for a facsimile provided confirmation of receipt is retained (unless
the sender receives oral or written notice within one business day of the time
of the completion of transmission that the transmission was incomplete or
illegible), or two days after deposit with the United States Postal Service.
8.9. Headings. The headings contained in this Agreement are for the convenience
of the parties only, and shall not be deemed to be a part of the substantive
agreement of the parties or to effect the meaning or interpretation of any
provision of this Agreement in any way.
8.10. Number and Gender. When used herein, the singular shall include the
plural, the plural shall include the singular, and the use of any gender shall
include any other gender, as circumstances may require. The term person shall
include both natural persons and entities.
8.11. Third Party Beneficiaries. The provisions of this Agreement are intended
to benefit only the parties hereto. No person not a party to this Agreement
shall be deemed to be a third party beneficiary of this Agreement, nor shall any
such person be authorized or empowered to enforce the provisions hereof, except
to the extent such a person becomes a permitted assignee of one of the parties
hereto.
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
8.12. Counterparts. This Agreement may be executed in multiple counterparts.
When at least one copy of this Agreement has been executed by each party to this
Agreement, this Agreement shall be in full force and effect, and all of such
counterparts shall be read together as a single agreement.
WITNESS the following signatures and seals as of the date indicated above.
SHAREHOLDER:
---------------------------------
TRUSTEE:
---------------------------------
Andrew C. Overman
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
VOTING TRUST CERTIFICATE
INTERNATIONAL LONG DISTANCE CORPORATION
No.
Shares
THIS IS TO CERTIFY THAT is entitled to receive and enjoy all
the dividends, rights and benefits prescribed in the Voting Trust Agreement,
hereinafter referred to, with respect to shares of the common capital stock of
INTERNATIONAL LONG DISTANCE CORPORATION (the "Corporation"), a corporation duly
organized and existing under the laws of the State of North Carolina. This
Voting Trust Certificate represents the shares which have been issued,
transferred to and deposited with the undersigned Voting Trustee by on January
15, 2000.
Until the termination of the voting trust, the Voting Trustee
shall possess and be entitled to exercise all rights of every kind and
description, including the right to vote, in respect of any and all such stock,
it being expressly stipulated that no voting right on any such stock passes to
the holder hereof by or under this certificate or by or under any agreement,
expressed or implied.
This certificate is transferable only on the books which shall
be kept for that purpose by said Voting Trustee, (as defined herein) either in
person or by attorney, upon surrender hereof, properly endorsed, and upon the
payment of any transfer costs and taxes, and until so transferred said Voting
Trustee may treat the registered holder as owner hereof for all purposes
whatsoever.
This certificate is issued and held pursuant and subject to
the terms of a Voting Trust Agreement, effective January 15, 2000, made and
entered into between Anthony C. Overman, as trustee (the "Voting Trustee") and ,
the holder of shares of the common capital stock of the Corporation, imposing
certain restrictions and obligations on the sale or other disposition of the
capital stock of the corporation, providing, among other things, that any
transfer of shares in the Corporation, shall be governed by the provisions of an
Addendum to Subscription Agreement and Investment Intent Letter for the Common
Stock of the Corporation (the "Addendum to Subscription Agreement"). The Voting
Trust Agreement and the Addendum to Subscription Agreement are on file with the
Voting Trustee at the
<PAGE>
SCHEDULE 4.2
ILDC VOTING TRUST AGREEMENT
(Continued)
principal office of the corporation, and every holder and transferee hereof
assents to all of the terms of this certificate and of said agreements.
This certificate shall be surrendered to the Trustees by the
holder hereof, at the termination of the Voting Trust Agreement, upon the
delivery to such holder of the securities represented thereby.
THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE. THIS TRUST CERTIFICATE MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGE OR HYPOCATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND ANY
APPLICABLE STATE SECURITIES LAWS. ANY TRANSFER CONTRARY TO THE
ABOVE INSTRUCTIONS IS VOID.
IN WITNESS WHEREOF, said Voting Trustee has signed this certificate this 15th
day of January, 2000.
----------------------------------------
Voting Trustee, Anthony C. Overman
<PAGE>
SCHEDULE 5.5
OLD NIGHT LIST OF STOCKHOLDERS
-------------------------------- -----------------------------
Name Number of Shares
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Arnold, F. Scott 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Arnold, Greg 110,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Arnold, Charlice 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Arnold, Doug 110,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Blakely, Christine 50,160
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Butler, Arnold Norma 367,400
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Butler, Paul 367,400
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Davis, M. Christine 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Fiducia, Julie 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Geo Services, Inc. 51,040
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Gordon, Dawn 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Heidelberger, Jon 55,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Heidelberger, Loretta 44,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Johnson, Jaime 110,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Johnson, Susan 110,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Kendrick, Christy 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Lee, David 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Long, Darwin 74,800
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Long, Jackie 74,800
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Marin, N. James 440,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Moore, Marguerite 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Moore, Allen 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Neal, Tim 440,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Noerring, Lynn 3,960
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Roberts, Paul 147,400
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Sanchez, Holly 110,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Sharpe, Jared 147,400
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Tongish, Dawn 147,400
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Tongish, Dee 147,400
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Twelves, Julie 147,400
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Van Pletzen, Lynn 4,840
-------------------------------- -----------------------------
-------------------------------- -----------------------------
Williams, Anita 220,000
-------------------------------- -----------------------------
-------------------------------- -----------------------------
TOTAL: 5,460,000
-------------------------------- -----------------------------
<PAGE>
SCHEDULE 5.16
OLD NIGHT CONSENTS AND APPROVALS REQUIRED
Old Night does not require any regulatory consents or approvals in connection
with the proposed transactions under this Share Exchange Agreement.
Old Night must obtain stockholder approval for the share exchange and to change
the name of Old Night.
Old Night must file Articles of Amendment with the Secretary of State of Nevada
in order to complete the Name Change. In connection with the name change Old
Night must request a new CUSIP number from Standard and Poor's and a new stock
trading symbol from the National Association of Securities Dealers.
