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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
JUNE 21, 1995
COMPTEK RESEARCH, INC.
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(Exact Name of Registrant as Specified in Charter)
NEW YORK 1-8502 16-0959023
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(State or Other (Commission (IRS Employer
Jurisdiction of Incorporation) File Number) Identification No.)
2732 TRANSIT ROAD, BUFFALO, NEW YORK 14224-2523
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (716) 677-2523
-------------------------
NOT APPLICABLE
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(Former Name or Former Address, if Changed Since Last Year)
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ITEM 2. DISPOSITION OF ASSETS
(a) On June 6, 1995, the registrant and its wholly owned
subsidiaries, Comptek Telecommunications, Inc. (CTI),
and Industrial Systems Service, Inc. (ISS), completed
a previously announced transaction providing for the
combination of ARIA Wireless Systems, Inc. ("ARIA"),
a New York corporation, ISS, and CTI to form a new
entity known as ARIA Wireless Systems, Inc. ("New
ARIA"), a Delaware corporation. This transaction was
completed pursuant to a Reorganization Agreement
dated March 10, 1995, as amended, among ARIA, New
ARIA, Bydatel Corporation, the registrant, CTI, Rand
Capital Corporation, and Frank J. Perpiglia (the
"Reorganization Agreement"). A copy of the
Reorganization Agreement is attached as an exhibit
hereto and provides for ISS and CTI to transfer
substantially all of their operating assets and
certain liabilities to New ARIA. Such operating
assets included manufacturing equipment, contracts,
and technology rights.
Concurrent with the transfer of assets from ISS and
CTI, ARIA completed a merger into New ARIA pursuant
to statutory requirements under New York and Delaware
laws, whereby the shareholders of ARIA (Bydatel
Corporation, CTI, Rand Capital Corporation, and Frank
Perpiglia) exchange their shares of ARIA for shares
of New ARIA. Also, the Reorganization Agreement
provided for New ARIA to receive from Bydatel
Corporation full rights, title, and interest in a
U.S. patent and technology relating to a method for
wireless transmission of data.
In return for the contribution of assets, the
registrant and its subsidiaries received: 4,900
shares of New ARIA's Class A voting common stock
(representing 49% of the outstanding voting common
stock); 1,853 shares of New ARIA's Series CR-I
preferred stock with a 15% cumulative dividend, a
$1,000 per share liquidation preference, and a
mandatory redemption feature whereby the registrant,
as holder of the shares, may require New ARIA to
redeem the shares at the earlier of five years or an
initial public offering of New ARIA's stock; 48,951
shares of New ARIA's Series CR-II preferred stock
with no preferred dividend or mandatory redemption
feature, but with a $101.52 per share liquidation
preference and convertible, at the option of the
holder, into 4,895,100 shares of Class B
limited-voting common stock. The New ARIA
certificate of incorporation provides, among other
things, for full voting rights to
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vest in the Class B shares at the time of an initial
public offering of New ARIA's common stock.
In addition, the registrant is entitled to certain
annual payments (up to an aggregate of $164,285)
based upon product sales by New ARIA and holds a
promissory note payable by New ARIA in the amount of
$550,000 plus interest at the rate of prime plus 2%.
Prior to completing the transaction, CTI owned 34.5%
of the common stock of ARIA and, pursuant to a
shareholders' agreement, had the right to designate
two of ARIA's maximum of five directors. In
connection with the transaction, the registrant
received the right to designate two of New ARIA's
maximum of eight directors. Prior to completing the
transaction, Frank J. Perpiglia was President and CEO
of CTI and ISS, and also served as Chairman,
President and CEO of ARIA. In connection with the
transaction, Mr. Perpiglia was elected Chairman,
President and CEO of New ARIA, and he resigned all
positions associated with the registrant and its
subsidiaries.
The nature and amount of consideration and the
structure of the transaction was determined by
arms-length negotiations among representatives of the
registrant and its subsidiaries, Bydatel Corporation,
Rand Capital Corporation, and Mr. Perpiglia.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
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(b) Proforma Financial Information as of March 31, 1995
The transaction, as described in Item 2(a) above, provided for the
registrant and its wholly-owned subsidiaries to transfer substantially all of
the operating assets and certain liabilities of the registrant's consolidating
subsidiaries to New ARIA in exchange for shares of common and preferred stock
of New ARIA.
The Proforma Statement of Operations was computed assuming the
transaction was consummated at the beginning of the fiscal year ended March 31,
1995. The Proforma Consolidated Statement of Operations reflects adjustments
to remove from operations the commercial telecommunications subsidiary 1995
operating results. A corresponding adjustment is reflected in the equity in
net loss of affiliate as the registrant's interest in this operation is
accounted for as an equity investment. The proforma results of operations also
reflect the registrant's recording of its share of New ARIA's losses based on
the registrant's ownership of 49% of New ARIA Class A common voting shares.
The equity pick-up of New ARIA losses at this higher percentage reflects the
registrant's position as the most significant economic stakeholder of New
ARIA. The registrant expects to similarly record its share of New ARIA's
earnings at this higher percentage until such time as its investment equals its
underlying share of New ARIA equity.
The Proforma Consolidated Balance Sheet was computed assuming the
transaction was consummated at March 31, 1995, the registrant's most recent
reporting period. The Proforma Consolidated Balance Sheet reflects adjustments
for the transfer of assets to New ARIA and a corresponding increase in the
registrant's investment in affiliate.
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COMPTEK RESEARCH, INC.
PROFORMA
CONSOLIDATED CONDENSED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
PROFORMA
MARCH 31, PROFORMA MARCH 31,
1995 ADJUSTMENTS 1995
-------- ----------- ---------
<S> <C> <C> <C>
ASSETS (Unaudited) (Unaudited)
Current assets:
Cash and cash equivalents $ 71 $ 71
Receivables 4,692 (100)(1) 4,592
Costs and estimated earnings in excess of
billings on uncompleted contracts 5,750 (17)(1) 5,733
Inventories 1,703 (1,444)(1) 259
Deferred income taxes 172 172
Other 669 ( 39)(1) 630
--------- ------- ---------
Total current assets 13,057 (1,600) 11,457
--------- ------- ---------
Equipment & leasehold improvements 3,092 (1,316)(1) 1,776
--------- -------- ---------
Deferred income tax 35 340(2) 375
Other assets 4,957 2,881(1) 7,838
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Total other assets 4,992 3,221 8,213
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Total assets $ 21,141 305 $ 21,446
========= ======= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt $ 187 (187)(2) $ --
Accounts payable 2,953 (653)(2) 2,300
Accrued salaries and benefits 2,783 (150)(2) 2,633
Other current liabilities 1,699 1,295 (2) 2,994
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Total current liabilities 7,622 305 7,927
--------- ------- ---------
Long-term debt, excluding current installments 2,244 2,244
-------- --------
Shareholders' Equity:
Common stock 94 94
Additional paid-in capital 9,606 9,606
Retained earnings 2,770 2,770
Less cost of treasury shares (1,195) (1,195)
-------- --------
Total shareholders' equity 11,275 11,275
--------- --------
Total liabilities and shareholders' equity $ 21,141 305 $ 21,446
========= ======== ========
</TABLE>
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COMPTEK RESEARCH, INC.
PROFORMA
CONSOLIDATED STATEMENT OF OPERATIONS
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
YEAR ENDED PROFORMA
MARCH 31, PROFORMA MARCH 31,
1995 ADJUSTMENTS 1995
------------- ------------- ------------
(Unaudited) (Unaudited)
<S> <C> <C> <C>
Net sales $ 57,835 $ (1,814)(3) $ 56,021
------------- ------------- ------------
Costs and expenses:
Cost of sales $ 49,387 $ (1,989)(3) $ 47,398
Selling, general and administrative 6,380 (808)(3) 5,432
(140)(5)
Research and development 2,356 (1,716)(3) 640
Special charge (331) (331)
Other expense 73 (45)(3) 28
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Total costs and expenses $ 57,865 $ (4,698) $ 53,167
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Income (loss) before income taxes and equity
in net loss of affiliate $ (30) $ 2,884 $ 2,854
Income tax expense (benefit) $ (83) $ 1,182 (3) $ 1,099
-------------- ------------- -------------
Income before equity in net
loss of affiliate $ 53 $ 1,702 $ 1,755
Equity in net loss of affiliate (1,033) (1,481)(4)
$ $ (635)(4) $ (3,149)
-------------- ------------- -------------
Net loss $ (980) $ (414) $ (1,394)
-------------- ------------- -------------
Net loss per share $ (.22) $ (.10) $ (.32)
============== ============= ==============
Weighted average number of common shares
4,373 4,373 4,373
============== ============ ==============
</TABLE>
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NOTES TO PROFORMA CONSOLIDATED FINANCIAL STATEMENTS
1) As a result of the transaction, the registrant transferred assets
associated with the commercial subsidaries to New ARIA and the
adjustments are primarily to account for the transfer of these assets.
Additionally, other assets are adjusted to include the registrant's
increased investment in New ARIA. Other asset adjustment are as
follows:
<TABLE>
<CAPTION>
ADJUSTMENTS
(In 000's)
----------------------
<S> <C>
Software development costs $ (1,590)
Intangible assets arising from business acquisition (733)
Telecommunication network costs (412)
Investment and receivable due from affiliate 5,627
Other (11)
-------------
Total other assets adjustment $ 2,881
===========
</TABLE>
2) The registrant provided funds to pay for current liabilities of the
commercial telecommunications subsidiaries as of March 31, 1995.
The adjustments are primarily for the removal of these liabilities
and the addition of the Company's commitment to provide funds for
the payment of these liabilities.
3) Proforma adjustment to the Statement of Operations represent fiscal year
1995 operating results of the registrant's telecommunication subsidiary
which were transferred to New ARIA. The registrant recorded the
telecommunication subsidiary's losses through its equity in net loss of
affiliate. See note 4.
4) As a result of this transaction, New ARIA received contributed capital
from two of its equity investors. The registrant and Bydatel
Corporation are New ARIA's principal equity investors. Assuming the
transaction had occurred at the beginning of fiscal year 1995, the
registrant would have recorded 87% of New ARIA's losses for fiscal year
1995; thus the amount given is an adjustment to reflect 87% of New
ARIA's losses for fiscal year 1995.
5) The registrant received two series of preferred stock, which have an
aggregate liquidation value that exceeds New ARIA's available equity by
approximately $700,000. The excess is treated as amortizable goodwill.
This adjustment represents the amortization for fiscal 1995 had the
transaction taken place at the beginning of the fiscal year.
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(c) Exhibits
Reorganization Agreement dated March 10, 1995, as
amended (including as attachments thereto (i) the
Asset Purchase Agreement by and between Registrant,
CTI, and New ARIA dated May 9, 1995, (ii) Asset
Purchase Agreement by and between Registrant, ISS,
and New ARIA dated May 9, 1995, and (iii) Plan and
Agreement of Merger dated May 9, 1995, by and between
ARIA and New ARIA.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COMPTEK RESEARCH, INC.
Date: June 21, 1995 By: /s/ John R. Cummings
---------------------------
John R. Cummings
Chairman, President and CEO
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REINSTATEMENT AND AMENDMENT TO
REORGANIZATION AGREEMENT
DATED MARCH 10, 1995
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REINSTATEMENT AND AMENDMENT TO
REORGANIZATION AGREEMENT
DATED MARCH 10, 1995 (THE "AGREEMENT")
The undersigned are all signatories to the Agreement which provided,
in Paragraph 16 thereof, that the transactions contemplated thereby were to be
closed by 9:00 a.m. on April 7, 1995, failing which the Agreement would
forthwith become null and void and of no effect.
Notwithstanding that the Closing did not occur by April 7, 1995, and
has not yet occurred, the undersigned wish to proceed with the transactions
contemplated by the Agreement, and to also make some minor amendments to the
Agreement to reflect more current information.
Accordingly, the undersigned agree that the Agreement is hereby
reinstated as originally executed, with the following amendments:
1. The fourth paragraph of the Preamble, which currently reads:
"Whereas, Old Aria has purchased from Wolfson the shares
formerly owned by him and the Shareholders Agreement amended to
eliminate Wolfson as a party thereto, to reflect that he is no
longer a shareholder of Old Aria, to reflect that Perpiglia is
now a shareholder of Old Aria and a party to the Shareholders
Agreement, and"
IS HEREBY AMENDED TO READ AS FOLLOWS:
"Whereas, Old Aria has purchased from Wolfson the shares
formerly owned by him and the Shareholders Agreement amended to
eliminate Wolfson as a party thereto, to reflect that he is no
longer a shareholder of Old Aria, and to reflect that in
connection with the consummation of the transactions
contemplated by this Agreement Perpiglia will be purchasing
from Old Aria, certain of the shares formerly owned by Wolfson
and that Perpiglia is now a party to the Shareholders
Agreement, as amended; and"
2. That Paragraph 2 (a) of the Agreement is amended by eliminating
the words "dated March _____, 1995" in the two places where
they appear.
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3. That Paragraph 3 (a) of the Agreement is amended by changing
the words "face value of $173.00 per share and a liquidation
value of $137.00 per share" to read "face value of $134.00 per
share and a liquidation value of $101.52 per share."
4. Paragraph 3 (b) of the Agreement is amended by changing "994
Shares to read 1,853 Shares", and by changing the words
"liquidation value of $994,000" to read "liquidation value of
$1,853,000".
5. Paragraph 6 (a) (ii) of the Agreement is amended by changing
the words "liquidation value of $134.00 per share" to read
"liquidation value of $101.52 per share."
6. Paragraph 16 of the Agreement is amended by changing "April 7,
1995" to read "June 15, 1995", and by deleting the second
sentence of that paragraph.
IN WITNESS WHEREOF, this Reinstatement and Amendment has been executed
this 9th day of May, 1995.
ARIA WIRELESS SYSTEMS, INC.,
A New York Corporation
By /s/ Frank J. Perpiglia
-------------------------------------
ARIA WIRELESS SYSTEMS, INC.,
a Delaware Corporation
By /s/ Frank J. Perpiglia
-------------------------------------
BYDATEL CORPORATION,
A New York Corporation
By /s/ John C. Eckis
-------------------------------------
COMPTEK RESEARCH, INC.
By /s/ John R. Cummings
-------------------------------------
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COMPTEK TELECOMMUNICATIONS, INC.
By /s/ John R. Cummings
-------------------------------------
RAND CAPITAL CORPORATION
By /s/ Donald A. Ross
-------------------------------------
/s/ Frank J. Perpiglia
---------------------------------------
FRANK J. PERPIGLIA, INDIVIDUALLY
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REORGANIZATION AGREEMENT
DATED MARCH 10, 1995, AS AMENDED
<PAGE> 14
REORGANIZATION AGREEMENT
THIS AGREEMENT dated as of March 10, 1995, by and among:
ARIA WIRELESS SYSTEMS, INC. (f/k/a Bison Data Corporation), a New York
Corporation with its principal place of business located at 140 Mid
County Road, Orchard Park, New York 14127 ("Old Aria");
ARIA WIRELESS SYSTEMS, INC., a Delaware Corporation with its principal
place of business located at 140 Mid County Road, Orchard Park, New
York 14127 ("New Aria");
BYDATEL CORPORATION, a New York Corporation with its principal place of
business located C/O Payment Plans, 2741 Transit Road, Elma, New York
14059 ("Bydatel");
COMPTEK RESEARCH, INC., a New York Corporation with its principal office
located at 2732 Transit Road, West Seneca, New York 14224 ("CRI");
COMPTEK TELECOMMUNICATIONS, INC., a New York Corporation and a
wholly-owned subsidiary of Comptek Research, Inc., a New York
Corporation with its principal office located at 140 Mid County Road,
Orchard Park, New York 14127 ("CTI");
RAND CAPITAL CORPORATION, a New York Corporation with its principal
office located at Suite 1300, Rand Building, 14 Lafayette Square,
Buffalo, New York 14203 ("Rand"); and
FRANK J. PERPIGLIA, an individual residing at 306 Heritage Place, Devon,
Pennsylvania 19333 ("Perpiglia").
W I T N E S S E T H :
===================
WHEREAS, Old Aria, Bydatel, CTI and Rand, together with one
Joseph E. Wolfson ("Wolfson") were signatories to a certain Subscription and
Shareholders Agreement, dated September 26, 1991, dealing with the formation,
organization, operation, and financing of Old Aria ("Shareholders Agreement");
and
WHEREAS, Bydatel, CTI, Rand and Wolfson were the original
shareholders of Old Aria; and
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WHEREAS, the Shareholders Agreement provides that it may be modified,
amended or revoked by a written agreement signed by all of the current parties
thereto; and
WHEREAS, Old Aria has purchased from Wolfson the shares of Old Aria
formerly owned by him and the Shareholders Agreement amended to eliminate
Wolfson as a party thereto, to reflect that he is no longer a shareholder of
Old Aria, to reflect that Perpiglia is now a shareholder of Old Aria and a
party to the Shareholders Agreement, and
WHEREAS, the current parties to the Shareholders Agreement are Old
Aria, Bydatel, CTI, Perpiglia and Rand; and
WHEREAS, the current parties to the Shareholders Agreement wish to
effect a reorganization of Old Aria and to terminate and revoke the
Shareholders Agreement; and
WHEREAS, New Aria has been incorporated in Delaware with a view to it
being the entity which will carry on the business formerly conducted by Old
Aria and CTI; and
WHEREAS, it is the objective of the proposed reorganization to
consolidate the sales and marketing functions formerly performed by Old Aria,
with the manufacturing, engineering and technical support functions formerly
performed by CTI into a new entity, New Aria, which will be owned initially by
CRI, Rand, Bydatel and Perpiglia.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are mutually
acknowledged, the parties agree as follows:
1. ORGANIZATION.
Except with respect to those provisions thereof specifically
adopted herein, the Subscription and Shareholders Agreement dated the
26th day of September 1991, among Bison Data Corporation, Bydatel
Corporation, Comptek Telecommunications, Inc., Rand Capital
Corporation, and Joseph E. Wolfson, is hereby revoked and terminated
effective upon the closing of the transfer of assets referred to
herein.
2. TRANSFER OF ASSETS BY CTI AND ISS.
(a) At the Closing, as hereinafter defined, CTI will transfer to
New Aria substantially all of its assets, and books and records
relating thereto, including inventory currently used by CTI in the
design, manufacture and production of the wireless data system known
as Data Movers, together with contracts with third parties, cash, and
the Common Stock of Old Aria owned by it, all of which shall be
identified and transferred pursuant to an Asset Purchase Agreement
dated March _____, 1995, the basic form of which is annexed hereto as
Exhibit A. In addition, CRI, as sole shareholder of Industrial
Systems Service, Inc., a Pennsylvania Corporation ("ISS"), shall cause
ISS to transfer to New Aria substantially all of its assets, as set
forth in an Asset Purchase Agreement dated March _____, 1995, the
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basic form of which is annexed hereto as Exhibit B. In connection
with such transfers, New Aria shall assume substantially all of the
liabilities of ISS and CTI as more fully set forth in the Asset
Purchase Agreements referred to above.
(b) Notwithstanding the provisions of Paragraph 2 (a) above, there
are certain assets, because of the requirement of obtaining consents,
the ownership of which cannot be immediately transferred. These
assets include, without limitation, Multiple Address System ("MAS")
Licenses granted to CTI by the Federal Communications Commission and
listed on CTI's Balance Sheet as "Network Licenses". With respect to
these MAS Licenses, CTI shall, forthwith, after the Closing, undertake
to obtain the consent of the Federal Communications Commission to said
transfer, and pending obtaining such consents, New Aria shall have the
right to utilize said MAS Licenses, the consideration for which is set
forth in Paragraph 3(b) hereof.
(c) Among the other assets now presently listed on CTI's balance
sheet, there is certain technology consisting of "Enhanced Technology"
with respect to the wireless systems produced by CTI for Old Aria,
which "Enhanced Technology" shall be transferred to New Aria at the
Closing, the consideration for which is set forth in Paragraph 3(c)
hereof.
3. CONSIDERATION FOR TRANSFER OF ASSETS BY CTI AND ISS.
At the Closing of the transfer of assets, New Aria shall issue and
deliver to CRI:
(a) In consideration of the transfer of assets set forth in
Paragraph 2(a) above,
(i) 48,951 shares of its convertible Preferred Stock
($.01 par value) Series CR-II having a face value of $173.00
per share and a liquidation value of $137.00 per share, which
shares shall be convertible into New Aria's Class B Common
Stock at the rate of 100 shares of Class B Common Stock for
each share of Series CR-II Stock, or in the aggregate
4,895,100 shares of Class B Common Stock;
(ii) 4,800 shares of New Aria's Class A Common Stock.
(b) In consideration of the transfer of assets set forth in
Paragraph 2 (b), New Aria shall issue and deliver to CRI, 994 shares
of its non-convertible Preferred Stock ($.01 par value) Series CR-I,
having a liquidation value of $1,000.00 per share with interest
accruing at the rate of 15% per annum, payable together with its
liquidation value of $994,000, at the option of CRI after five years
from the date of issuance or upon New Aria closing a Public Offering
as hereinafter defined, whichever first occurs. For purposes of this
Reorganization Agreement, a Public Offering shall mean the
registration under the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended (the "33 Act"), of shares of
its equity securities, or securities convertible into equity
securities, and the subsequent offering and sale thereof pursuant to
such registration, in a transaction or transactions which do not
qualify for exemption from registration under said 33 Act, through an
underwriter or underwriters, on a firm commitment basis.
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(c) In consideration of the transfer of the assets set forth in
Paragraph 2(c) above, New Aria shall issue and deliver to CRI 859
shares of its Series CR-I stock.
4. TRANSFER BY BYDATEL OF CEMA PATENT, TECHNOLOGY AND LICENSE.
(a) Effective upon the Closing of the transfer of assets by CTI
and ISS referred to in Paragraph 2 above, and subject to the
conditions set forth in Paragraph 4 (c) below, Bydatel shall sell,
transfer and assign to New Aria all of Bydatel's rights, title and
interests in and to (i) United States Patent No. 4,907,244 (the
"Patent") relating to a method for transmitting data in multiple
access data communications networks utilizing a Collision-Eliminating
Multiple Access ("CEMA") protocol, (ii) all proprietary information
relating to the Patent and CEMA (the "Technology"), (iii) the License
Agreement dated October 29, 1991 with Old Aria relating to the Patent
and the Technology ("License Agreement"), and (iv) the tradename and
trademark "DataMover" (the "Tradename").
(b) In consideration for the sale, transfer and assignment of the
Patent, Technology, License Agreement and Tradename, New Aria shall
pay the following consideration to Bydatel:
(i) the issuance at Closing of 1,000 shares of Series
BC-I Stock; and
(ii) a payment of $200 per unit for each manufactured
signal transmission box which utilized the Patent, CEMA, the
Technology or the Tradename sold and shipped by New Aria, said
per unit payment shall be made within ten (10) business days
following the end of the calendar month in which the sale was
completed. These payments are to be made in lieu of payments
of Old Aria pursuant to Paragraph 14 (a) of the Shareholders
Agreement. As of March 1, 1995, Bydatel had received a total
of $470,500 pursuant to said Paragraph 14 (a) out of a maximum
payable of $1,920,000 and the maximum payable pursuant to
this Paragraph 3 (b) (iii) shall be $1,449,500.
(iii) following the completion of the total aggregate per
unit payment referred to in clause (ii) above, an annual
payment equal to one and one-half percent (1.5%) of net
product sales (gross product sales less taxes, freight,
insurance and duties) for CEMA-based products occurring in
each year for a period of five (5) years; the first year
(i.e., a twelve-month period) shall commence with the first
calendar month after the month in which the maximum per unit
payment is achieved; payment under this clause (iii) shall be
made within forty-five (45) days after the end of each
twelve-month period.
(c) Bydatel's obligation to sell, transfer and assign the Patent,
Technology, License Agreement and Tradename shall be subject to the
following conditions, which must be satisfied, or waived by Bydatel,
or on prior to the Closing:
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(i) the consent to such sale, transfer and assignment by
the New York State Science and Technology Foundation, Rand
Capital Corporation, John C. Eckis, Walter J. Panfil, Tech
Ventures III, Paul Cherin and Charles Ganim (collectively
"Bydatel's Secured Creditors") and their release of all liens,
security interests and collateral assignments in the Patent;
and
(ii) the consent of New Aria to Bydatel's grant of
security interests in the 1,000 shares of Series BC-I issued
to Bydatel to each of Bydatel's Secured Creditors.
(d) Bydatel agrees that upon the request of New Aria, it will
provide such further documentation as may be necessary to effectuate
the transfer and assignment to New Aria of the Patent Technology, the
License Agreement and the Trade Name, and shall represent and warrant
that nothing has come to its attention which would lead it to believe
that it does not have a good and marketable title to the items to be
transferred and assigned.
5. CAPITALIZATION OF NEW ARIA AS OF CLOSING.
As of the Closing of the transfer of assets, New Aria will be
authorized to issue:
(a) 10,000 shares of Class A Common Stock ($.01 par value) of
which 100 shares have been issued to CRI for cash and 4,800 shares
shall have been issued in connection with the transfer of assets as
set forth in Paragraph 3 (a) (ii) above;
(b) 19,990,000 shares of Class B Common Stock which shall be
non-voting and none of which shall have been issued;
(c) 500,000 shares of Preferred Stock ($.01 par value) which may
be issued in series as designated by the Board of Directors and of
which:
(i) 48,951 shares designated as Series CR-II Stock,
convertible into Class B Common Stock, all of which shall have
been issued to CRI in connection with the transfer of assets
as set forth in Paragraph 3 (a) (i) above;
(ii) 1,853 shares designated as Series CR-I Stock which
shall be non-convertible and all of which shall have been
issued to CRI in connection with the transfer of assets
referred to in Paragraph 3 (b) and (c) above;
(iii) 1,000 shares designated as Series BC-I Stock which
shall be non-convertible; none of this Series shall have been
issued and is intended to be issued at a later date to Bydatel
in connection with the transfer of the CEMA Technology as set
forth in Paragraph 4 (b) (i) above.
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6. RIGHTS AND PREFERENCES OF STOCK.
(a) The rights and preferences of the various Series of Preferred
Stock shall be set forth in a Certificate of Designation or Amendment
to the Certificate of Incorporation of New Aria, in form reasonably
satisfactory to counsel for New Aria, Bydatel and CRI. The basic
terms of each Series shall be:
(i) The Series CR-I Stock shall be non-voting, have a
face value of $1,000 per share and shall have a liquidation
value of $1,000 per share plus accrued but unpaid dividends.
The dividend shall be 15% or $150 per annum which shall
accrue but not be paid until liquidation or redemption. This
Series shall be redeemable at the option of the holder upon
the closing of a Public Offering by New Aria or upon five
years from date of issuance whichever first occurs. It shall
be preferred as to liquidation and dividends over all other
classes or series of New Aria's stock except with respect to
the Series BC-I Stock as to which it shall be pari passu with
respect to dividends (except as to rate) and on liquidation.
(ii) The Series CR-II Stock shall be convertible into
Class B Stock at the rate of 100 shares of Class B Stock for
each share of Series CR-II; it shall have a liquidation value
of $137.00 per share; it shall be non-voting and shall neither
accrue nor pay dividends.
(iii) The Series BC-I Stock shall be non-voting, have a
fact value of $1,000 per share plus accrued but unpaid
dividends. The dividends shall be 8% or $80 per annum, which
shall not be paid until liquidation or redemption. This
Series shall be redeemable at the option of the holder upon
the closing of a Public Offering by New Aria or upon five
years from date of issuance, whichever first occurs. It shall
be preferred as to liquidation and dividends over all other
classes or series of New Aria's stocks except with respect to
the Series CR-I Stock as to which it shall be pari passu with
respect to dividends (except as to rate) and on liquidation.
7. MERGER OF OLD ARIA AND NEW ARIA.
Effective at the Closing, Old Aria and New Aria shall enter into a
Plan of Merger in substantially the form annexed hereto as Exhibit C which
shall contain, among others, the following substantive provisions:
(a) The surviving corporation shall be New Aria.
(b) The then shareholders of Old Aria shall tender all of their
shares of Common Stock of Old Aria to New Aria as follows:
(i) Rand will tender its 23,000 shares of Old Aria Common
in exchange for 1,800 shares of New Aria Class A Common
(voting) and 1,798,200 shares of New Aria Class B Common
(non-voting).
6
<PAGE> 20
(ii) Bydatel will tender its 23,000 shares of Old Aria
Common in exchange for 1,800 shares of New Aria Class A Common
(voting) and 1,798,200 shares of New Aria Class B Common
(non-voting).
(iii) Perpiglia will tender his 12,778 shares of Old Aria
Common in exchange for 1,500 shares of New Aria Class A Common
(voting) and 998,500 shares of New Aria Class B Common
(non-voting).
(iv) CTI will tender its 31,000 shares of Old Aria Common
for cancellation.
(v) The 10,222 shares of Old Aria Common of the 23,000
shares formerly owned by Wolfson but not purchased by
Perpiglia and currently held as Treasury Stock by Old Aria
shall be cancelled.
(c) The Board of Directors shall consist of not less than five,
nor more than eleven members. The initial Directors shall consist of
the present four Directors as designated in the Incorporator's
Statement. Subsequent to the merger, a fifth Director may be
designated by CRI. Thereafter, at the Annual meeting of Shareholders,
CRI shall be entitled to nominate two Directors, and Rand, Bydatel and
Perpiglia one each. Upon such nomination, CRI, Rand, Bydatel and
Perpiglia each agree to vote their shares of Common Stock entitled to
vote for Directors, for the election of the nominees of the others.
Additional Directors may be designated by the Board of Directors in
accordance with the By-Laws. The right of a party to have a nominee
elected pursuant to this paragraph shall terminate upon such party
ceasing to be a stockholder of New Aria or upon the closing on an
initial Public Offering by New Aria.
8. EXECUTION OF PLAN OF MERGER AND FILING OF CERTIFICATE OF MERGER.
The Certificate of Merger shall not be filed with the Secretary of
State of the State of Delaware until the Plan of Merger is approved by the
Boards of Directors of CRI, Rand and Bydatel, in addition to the Boards of
Directors of Old Aria and New Aria.
9. POST-MERGER OWNERSHIP OF STOCK.
Immediately upon consummation of the merger, the following shall be
the holdings of the shareholders of New Aria:
<TABLE>
(a) Class A (Voting) Common Stock: Authorized 10,000 Shares
<CAPTION>
HOLDER NO. OF SHARES
------ -------------
<S> <C>
CRI 4,900
Rand 1,800
Bydatel 1,800
Perpiglia 1,500
TOTAL 10,000
</TABLE>
7
<PAGE> 21
<TABLE>
(b) Class B (Non-Voting) Common Stock: Authorized 19,990,000 Shares
<CAPTION>
HOLDER NO. OF SHARES
------ -------------
<S> <C>
Rand 1,798,200
Bydatel 1,798,200
Perpiglia 998,500
TOTAL 4,594,900
Reserves 4,895,100 For Conversion of CR-II
Unissued and Unreserved: 10,510,000
</TABLE>
(c) Preferred Stock, Series CR-I (non-convertible)
HOLDER NO. OF SHARES
CRI 1,853
(d) Preferred Stock, Series CR-II (Convertible into Class B Common
Stock at 100 shares
of Class
B Common per share of Series
CR-II)
HOLDER NO. OF SHARES
CRI 48,951
(e) Preferred Stock, Series BC-I (non-convertible)
Bydatel 1,000
10. EMPLOYEE BENEFIT PLANS.
Following the Closing, the parties agree to use their best efforts to
cause New Aria to adopt, for the benefit of its employees, a Stock Appreciation
Rights ("SAR") Plan having generally the following provisions:
There are intended to be 885,000 "rights" allocated to the employees
in the discretion of the Board of Directors at no cost to the
employees. Each right is related to the value of a share of New Aria
Class A Common Stock which for purposes of the SAR Plan will be deemed
to have an Initial Value of $4.00 per share. Upon exercise of a
"right" the holder will be entitled to receive cash only, and not
shares of Class A Stock, in an amount equal to its then market value
or $4.00 per share, whichever is higher, multiplied by the number of
rights he has exercised. The rights are non-transferrable and are
expected to be exercisable by the holder on January 1, 1998, or
earlier upon disability or by his estate if he dies prior to that
time. If employment is terminated prior to January 1, 1998 for any
reason other than
8
<PAGE> 22
disability or death, the "rights" will lapse. If employment is
terminated after January 1, 1998, the holder (or his estate ) would
have to exercise the "rights" within ninety days. In the event that
Class A Common Stock of New Aria were to become listed on a national
stock exchange or quoted on the National Associates of Securities
Dealers Quotation system ("NASDQ"), the holders of all rights would be
required to immediately exercise the same. The "Exercise Value" of a
"right" will be calculated at the end of each fiscal quarter of New
Aria. Until such time as New Aria's Class A Common Stock is listed on
a national stock exchange, or traded through NASDQ, the Exercise Value
of a "right" would be deemed to be two times its "book value" as of
the end of the most recent fiscal quarter as determined by the
independent outside auditors of New Aria, or of some other independent
appraiser. In the event that the Class A Common Stock of New Aria is
split or otherwise adjusted, the number of rights and their price
shall be similarly adjusted pro tanto so that the holder of rights
will receive the same economic value that he would have received but
for such split or adjustment.
Notwithstanding the present intent of the parties, the adoption of any
such plan must be done by the Board of Directors of New Aria. In the
exercise of their fiduciary duty, the members of the Board may decline
to adopt the above plan, or having adopted it, may terminate, amend or
replace it.
11. PARTICIPATION IN FUTURE FINANCINGS.
(a) If at any time (or from time to time) New Aria, prior to
closing of its initial Public Offering, proposes to raise capital by
means of a sale of equity or an incurrence of debt (a "Private
Investment Financing"), it shall give written notice to Bydatel,
Comptek and Rand. Included with such notice shall be a summary of the
material terms of the proposed Private Investment Financing. Bydatel,
Comptek and Rand shall each have the right to participate in the
proposed Private Investment Financing up to an amount equal to their
then respective percentage ownership of the New Aria Common Stocks
outstanding at the time of the proposed Private Investment Financing.
Bydatel, Comptek and Rand shall each have twenty (20) days from the
date such notice is given in which to advise New Aria in writing of
its intent to participate ("Election to Participate") in the Private
Investment Financing and the amount of their participation. If such
Election to Participate is duly given to New Aria, the electing party
shall be obligated to complete and fund its participation at closing
of the Private Investment Financing on the same terms as are offered
to and accepted by the other investors. Provided, however, if the
Private Investment Financing is not completed within ninety (90) days
of the date of the initial notice issued by New Aria, then proposed
financing shall be deemed abandoned and any further financing shall be
deemed a new proposal requiring a new notice.
(b) Notwithstanding anything to the contrary in subparagraph (a),
"Private Investment Financing" shall not be deemed to include a
line-of-credit or term loan provided by a state or federally chartered
bank which does not include equity participation or conversion.
9
<PAGE> 23
12. TERM.
This Agreement shall terminate upon the Closing by New Aria of its
initi Public Offering.
13. AMENDMENTS.
This Agreement may be modified, amended or revoked only by written
agreement signed by all of the then-current parties hereto.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York.
15. CONDITIONS TO CLOSING
The Closing of the transactions contemplated by this Reorganization
Agreement shall be subject to the fulfillment or mutual waiver of the following
conditions:
(a) Each of the corporate parties hereto shall deliver a
Secretarial Certificate indicating:
(i) in the case of Old Aria, New Aria, CRI, CTI and Rand,
that this Reorganization Agreement has been approved by their
respective Boards of Directors and that the officers having
executed this Reorganization Agreement had authority to so
execute the same, and have authority to execute such further
documents as may be necessary or desirable, upon advice of
their respective counsel, to complete the closing of said
transactions.
(ii) In the case of Bydatel, that this Reorganization
Agreement, including the provision for the transfer and
assignment of the Patent, the Technology, the License
Agreement, and the Trade Name to New Aria, have been approved
by its Board of Directors and Shareholders.
(iii) Such Secretarial Certificate shall include a copy of
the resolutions adopted, that they were so adopted at a
meeting duly called and held, that the same have not been
amended, rescinded or modified and are currently in full force
and effect.
(b) No action, in law or equity, shall have been commenced or
threatened, which places in question the validity of this
Reorganization Agreement or the transactions contemplated thereby, or
which seeks to enjoin the same;
(c) The Board of Directors of New Aria has approved an Amendment
to its Certificate of Incorporation authorizing the issuance of the
Class A and Class B Common Stock, and the Series CR-I, CR-II and BC-I
Preferred Stock as set forth in Paragraph 5 of this Reorganization
Agreement;
10
<PAGE> 24
(d) New Aria, CTI and ISS shall have executed the Asset Purchase
Agreements referred to in Paragraph 2 (a) of this Reorganization
Agreement;
(e) Old Aria and New Aria shall have had the Merger Agreement
referred to in Paragraph 7 of this Reorganization Agreement approved
by their respective Boards of Directors and Shareholders, and have
executed the same by their appropriate officers.
(f) Perpiglia shall have purchased from Old Aria 12,778 shares of
its Common Stock for $66,446 in cash or a promissory note;
(g) Bydatel and CRI shall have entered into an agreement with
respect to reimbursement of part of the moneys provided by CRI in the
settlement with Wolfson;
(h) New Aria and Perpiglia shall have entered into an Employment
Agreement on terms satisfactory to each of them.
16. CLOSING.
The Closing of the transactions contemplated by this Reorganization
Agreement shall take place at the office of New Aria at 9:00 a.m. on April 7,
1995, or at such other time and place as to which the parties may agree.
11
<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have duly signed and
acknowledged this Agreement as of the date first above written.
ARIA WIRELESS SYSTEMS, INC.,
a New York Corporation
By: /s/ Frank J. Perpiglia
------------------------
Name:
-----------------------
Title: President
---------------------
ARIA WIRELESS SYSTEMS, INC.,
a Delaware Corporation
By: /s/ Frank J. Perpiglia
-------------------------
Name:
------------------------
Title: President
-----------------------
BYDATEL CORPORATION,
a New York Corporation,
By: /s/ John C. Eckis
-------------------------
Name: John C. Eckis
-----------------------
Title: President
----------------------
COMPTEK RESEARCH, INC.
By: /s/ John R. Cummings
------------------------
Name: John R. Cummings
-----------------------
Title: President & Chief
Executive Officer
-----------------------
12
<PAGE> 26
COMPTEK TELECOMMUNICATIONS, INC.
By: /s/ John R. Cummings
------------------------
Name: John R. Cummings
-----------------------
Title: Chairman of the Board
-----------------------
RAND CAPITAL CORPORATION
By: /s/ Donald A. Ross
--------------------------
Name: Donald A. Ross
------------------------
Title: President
-----------------------
FRANK J. PERPIGLIA, INDIVIDUALLY
/s/ Frank J. Perpiglia
-----------------------------
13
<PAGE> 27
_____________________________________________
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
COMPTEK RESEARCH, INC.
AND
COMPTEK TELECOMMUNICATIONS, INC.
AND
ARIA WIRELESS SYSTEMS, INC.
DATED AS OF MAY 9, 1995
_____________________________________________
<PAGE> 28
TABLE OF CONTENTS
SECTION
PAGE
<TABLE>
<S> <C> <C>
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Sale of Properties and Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Purchase Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Preferred Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Assumed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) Litigation Support and Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) Sales Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Instruments of Transfer; Assumption of Liabilities; Further Assurances . . . . . . . . . . . . . 4
(a) Seller's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Buyer's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Cash Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Other Transfer Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Record Retention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Organization; Good Standing; Power; Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Authorization; Effective Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Title to Property and Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Agreements, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Litigation, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(f) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Representations and Warranties of the Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Organization; Good Standing; Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(c) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(d) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Covenants of the Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Sales Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Employment Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(d) Authorization and Delivery of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(e) Effective Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Bulk Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10. Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
<PAGE> 29
<TABLE>
<S> <C> <C>
12. Amendments; Waivers, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14. Public Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
15. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
16. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
17. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
18. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
19. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
20. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
22. Binding Effect; Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
ii
<PAGE> 30
LIST OF SCHEDULES
1(a) Purchased Assets
1(b) Retained Assets
1(c) Retained Liabilities
3 Allocation of Purchase Price
6(d) Agreements
6(e) Litigation, Etc.
iii
<PAGE> 31
ASSET PURCHASE AGREEMENT
Asset Purchase Agreement dated as of May 9, 1995, by and between
COMPTEK RESEARCH, INC., a New York corporation ("Comptek"), COMPTEK
TELECOMMUNICATIONS, INC., a New York corporation ("Seller"), and ARIA WIRELESS
SYSTEMS, INC., a Delaware corporation ("Buyer").
W I T N E S S E T H :
WHEREAS, Comptek is the parent corporation and sole shareholder of
Seller; and
WHEREAS, the Seller desires to sell to the Buyer, and the Buyer desires
to purchase from the Seller, substantially all of the properties and assets,
subject to certain liabilities, of Seller, all upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. DEFINITIONS. As used in this Agreement, terms defined in the
preamble and recitals of this Agreement shall have the meanings set forth
therein and the following terms shall have the meanings set forth below.
"Affiliate" shall mean, with respect to any person or entity, any
shareholder, subsidiary, officer, director or partner of such person or entity
or any other person which directly or indirectly controls, is controlled by or
is under common control with such person or entity.
"Agreement" shall mean this Asset Purchase Agreement and all Schedules
and Exhibits hereto, as the same may from time to time be amended.
"Assumed Liabilities" shall mean all Liabilities of the Seller except
for the Retained Liabilities described on Schedule 1(c) hereto.
"Closing" shall mean the closing of the transactions contemplated by
this Agreement on the Closing Date at the offices of Comptek, 2732 Transit
Road, Buffalo, New York 14224, or at such other place as the parties may
mutually agree.
"Closing Date" shall mean May 9, 1995, or such other date as may be
agreed to by the parties to this Agreement.
-1-
<PAGE> 32
"Code" shall mean the Internal Revenue Code of 1986 and all
regulations promulgated thereunder, as the same have from time to time been
amended.
"Comptek" shall mean Comptek Research, Inc., a New York corporation,
the parent and sole owner of Seller.
"Financial Statements" shall mean (a) the financial statements of
Seller as of and for the period ended March 31, 1995 (including the balance
sheet), prepared by the Seller and previously delivered to the Buyer.
"Liabilities" shall mean all debts, liabilities, taxes (including any
sales or transfer taxes on the sale of the Purchased Assets), obligations under
contracts, leases, agreements and commitments, and other obligations of every
kind and character of the Seller as the same may exist at the Closing (whether
accrued, absolute, contingent or otherwise, and whether due or to become due)
or which may arise in the future based upon events or a state of facts existing
at the Closing.
"Purchased Assets" shall mean the assets described in Schedule 1(a)
and all assets reflected on the Financial Statements or acquired by the Seller
in the ordinary course of business and consistent with past practice of the
Seller since the date of such Financial Statements, except for those assets
which have been transferred or disposed of in the ordinary course of business
and consistent with past practice of the Seller after the date of such
Financial Statements or as otherwise permitted by this Agreement): PROVIDED,
HOWEVER, that the Purchased Assets shall not include the Retained Assets.
"Retained Assets" shall mean the assets described in Schedule 1(b)
hereto.
"Retained Liabilities" shall mean the Liabilities described in
Schedule 1(c) hereto.
2. SALE OF PROPERTIES AND ASSETS. At the Closing, the Seller
will sell, transfer, assign, convey and deliver to the Buyer, and the Buyer
will purchase, accept and acquire from the Seller, all of the Purchased Assets,
"AS IS, WHERE IS."
BUYER ACKNOWLEDGES AND AGREES THAT ALL ASSETS BEING TRANSFERRED OR
LICENSED HEREUNDER ARE BEING TRANSFERRED OR LICENSED ON AN "AS IS, WHERE IS"
BASIS, AND THAT EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, SELLER IS MAKING NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, RESPECTING THE
ASSETS, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER
MATTER. BUYER ACKNOWLEDGES THAT BUYER HAS INFORMED ITSELF AS TO SELLER'S
BUSINESS OPERATIONS, AND BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER
MAKES NO REPRESENTATIONS OR WARRANTY OF ANY KIND WITH RESPECT TO THE BUSINESS
OPERATIONS.
-2-
<PAGE> 33
3. PURCHASE CONSIDERATION. The aggregate consideration to be
paid by the Buyer for the Purchased Assets shall consist of (i) Preferred and
Common Shares of Buyer as set forth in Section 3(a) hereof, (ii) the assumption
by the Buyer of the Assumed Liabilities as set forth in Section 3(b) hereof,
and (iii) the other consideration as set forth in this Section 3. The Seller
and the Buyer agree that the aggregate consideration for the Purchased Assets
shall be allocated as set forth in Schedule 3 hereto.
(a) PREFERRED SHARES. The Buyer shall issue to Seller the
following shares of its capital stock:
(i) One Thousand Eight Hundred Fifty-Three (1,853) shares
of its cumulative redeemable Preferred Stock ($.01
Par Value), Series CR-I having a face value and
liquidation preference of $1,000 per share plus
accrued dividends; and
(ii) Thirty Thousand Five Hundred Sixty-One (30,561)
shares of convertible Preferred Stock ($.01 Par
Value), Series CR-II having a face value of $134 per
share and a liquidation preference of $101.52 per
share.
(iii) Four Thousand Eight Hundred (4,800) shares of Class A
Common Stock ($.01 Par Value).
(b) ASSUMED LIABILITIES. At the Closing, the Buyer will assume
all Liabilities except the Retained Liabilities, as set forth on Schedule 1(c)
hereto. The Buyer will not assume or otherwise have any responsibility for any
of the Retained Liabilities.
(c) LITIGATION SUPPORT AND ASSISTANCE. Comptek and Seller are
currently involved in certain litigation matters related to Seller's business
operations. As a material element of consideration which is essential to the
consummation of the transaction set forth in this Agreement, Buyer agrees to
provide at no additional cost to Comptek and Seller such personnel,
administrative, logistical, and clerical support, excluding legal fees, as
Comptek and Seller may request from time to time in support of or related to
said litigation. Requests for such litigation support may be made orally or in
writing. All requests shall be directed to the attention of Buyer's president.
In the event that Buyer objects that the requested litigation support as
unreasonably burdensome or beyond its abilities to respond, it shall so advise
Comptek's chairman of the board of directors who shall determine whether or not
the request should be modified. Pending determination by Comptek's chairman of
the board of directors, Buyer shall use its best efforts to comply with all
requests.
(d) SALES TAX. The purchase price is exclusive of any sales, use,
or similar taxes arising directly out of the transfer of the Purchased Assets
to Buyer. Buyer shall be liable for the payment of such taxes, if any.
-3-
<PAGE> 34
4. INSTRUMENTS OF TRANSFER; ASSUMPTION OF LIABILITIES;
FURTHER ASSURANCES.
(a) SELLER'S DELIVERIES. Contemporaneous with the completion of
this and other related transactions, the Seller shall deliver to the Buyer:
(i) Bills of sale for the Purchased Assets;
(ii) Such other instrument or instruments of transfer, in
such form, as shall be reasonably necessary or
appropriate to vest in the Buyer good, valid, and
marketable title to the Purchased Assets, free and
clear of all liens and encumbrances other than the
Assumed Liabilities.
(b) BUYER'S DELIVERIES. Contemporaneously with the completion of
this and other related transactions, the Buyer shall deliver to Comptek and
Seller:
(i) The stock and related instruments referenced in
Section 3(a);
(ii) Assumption instruments in a form reasonably
satisfactory to the Seller whereby the Buyer agrees
to assume the Assumed Liabilities; and
(iii) Indemnification/Hold-Harmless Agreement; and
(iv) Waiver and Release of any and all existing or
potential claims, known or unknown.
(c) CASH DISTRIBUTION. Included in the Purchased Assets is the
commitment of Comptek to provide cash funding in the amount of $18,000, less
any amount provided since March 31, 1995, to be used as working capital in the
operations of Seller's business as may be required from time to time as
identified in cash flow projections prepared by Seller's controller. Buyer
acknowledges that between April 1, 1994, and March 31, 1995, Comptek has
provided $4,642,000 in funding to Seller, which funding has contributed to the
value of Seller's assets and business operations being purchased by Buyer.
Comptek recognizes Buyer as the successor in interest to the operation of
Seller's business and agrees to continue such cash funding to Buyer from time
to time on the same terms as previously provided to Seller up to the maximum
amount of $18,000, plus provide for the payment liabilities identified in
Schedule 1(c) in the aggregate amount of $1,343,000.
(d) OTHER TRANSFER INSTRUMENTS. Following the Closing, at the
reasonable request of the Buyer, the Seller shall deliver any further
instruments of transfer and take all reasonable action as may be necessary or
appropriate (i) to vest in the Buyer all of the Seller's title to the Purchased
Assets, and (ii) to transfer to the Buyer all of the Seller's rights to
licenses and permits necessary for the operation of the Purchased Assets.
-4-
<PAGE> 35
5. RECORD RETENTION. The Buyer shall retain the books and
records of the Seller acquired hereunder and, unless otherwise consented to in
writing by the Seller, the Buyer shall not, for the period of five (5) years
following the Closing, destroy or otherwise dispose of the books and records of
the Seller acquired by the Buyer hereunder. Thereafter, the Buyer shall not
destroy or otherwise dispose of such books and records without first offering
to surrender to the Seller such books and records or any portion thereof which
the Buyer may intend to destroy or dispose of. Upon reasonable notice, the
Buyer shall make such books and records available to the Seller, its attorneys,
accountants and representatives for examination and copying.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Buyer, as follows:
(a) Organization; Good Standing; Power; Etc. The Seller is a duly
organized, validly existing corporation in good standing under the laws of the
State of New York, and it has the corporate power, authority and capacity to
own, lease and operate its properties, and to carry on its business as the same
is now being conducted.
(b) Authorization; Effective Agreement. The Seller has the
requisite corporate power, authority and capacity to enter into this Agreement
and to perform all of their obligations hereunder subject only to approval and
ratification by its Board of Directors. All proceedings required to be taken
by Comptek and the Seller to authorize the execution and delivery of this
Agreement and the performance of their obligations hereunder have been duly
taken, and this Agreement constitutes the legal, valid and binding obligation
of Comptek and the Seller, enforceable against it in accordance with its terms.
The execution, delivery and performance of this Agreement by the Seller does
not and will not: (i) conflict with, violate or result in the breach of any of
the terms or conditions of, or constitute a default under, the Certificate of
Incorporation or By-Laws of the Seller, or any contract, agreement, commitment,
indenture, mortgage, pledge, note, bond, license, permit or other instrument or
obligation to which either the Seller is party, or by which the Seller or its
assets may be bound or affected, or any law, regulation, ordinance or decree to
which the Seller or its assets are subject, except for requirements for
consents of governmental authorities, persons or entities referred to in
Section 6(c) hereof; or (ii) result in the creation or imposition of any lien,
security interest, charge, encumbrance, restriction or right, including rights
of termination or cancellation, in or with respect to, or otherwise materially
adversely affect, any of the properties, assets or business of the Seller.
(c) Title to Property and Assets. To Seller's knowledge, Seller
has good and marketable title to all of its properties and assets, subject to
no mortgage, pledge, lien, security interest, lease, charge, encumbrance or
conditional sale or other title retention agreement except as provided for in
the Financial Statements. No property or asset owned or leased by the Seller
is in violation of any applicable building, zoning or environmental law in
respect thereof.
-5-
<PAGE> 36
(d) AGREEMENTS, ETC. To Seller's knowledge, set forth on Schedule
6(d) hereto is a description of all indentures, mortgages, agreements, leases,
contracts, arrangements, commitments, instruments, understandings or
obligations, oral or written, to which the Seller is a party or to which it or
any of the Purchased Assets is subject.
(e) LITIGATION, ETC. Except as set forth on Schedule 6(e), there
is no material suit, action or litigation, administrative hearing, arbitration,
labor controversy or negotiation, or other proceeding or governmental inquiry
or investigation affecting Seller or its properties (including environmental or
land use proceedings) pending or, to knowledge of Seller, threatened against
Seller. There are no judgments, consent decrees or injunctions against,
affecting or binding upon Seller or its assets or any officer or director
thereof. To Seller's knowledge, Seller is in compliance with all laws,
ordinances, requirements, orders and regulations applicable to it. None of the
foregoing will be affected by the transactions contemplated by this Agreement.
(f) COOPERATION. It shall use its best efforts to obtain all
consents and authorizations of third parties and to make all filings with and
give all notices to third parties which may be necessary or reasonably required
in order to effect the sale contemplated by this Agreement and shall take such
additional actions as the Buyer may reasonably request in writing to cooperate
so that the transactions contemplated by this Agreement may be expeditiously
consummated.
7. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
represents and warrants to the Seller as follows:
(a) ORGANIZATION; GOOD STANDING; POWER. The Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Buyer has the requisite power, authority
and capacity to own, lease and operate its properties and to carry on its
intended business.
(b) AUTHORIZATION. The Buyer has all requisite power, authority
and capacity to enter into this Agreement and to perform all of its obligations
hereunder subject only to approval and ratification by its Board of Directors.
The Buyer has taken or will have taken prior to the Closing, all necessary
action to approve this Agreement and the performance of its obligations
hereunder.
(c) CAPITALIZATION. Buyer's entire authorized capital stock
consists of (i) Twenty Million (20,000,000) shares of common stock, par value
$.01 per share, of which One Hundred (100) shares were issued and outstanding
as of March 31, 1995, and (ii) Five Hundred Thousand (500,000) shares of
preferred stock, par value $.01 per share, of which none were issued and
outstanding as of March 31, 1995.
-6-
<PAGE> 37
(d) LITIGATION. There is no material suit, action or litigation,
administrative hearing, arbitration or other proceeding or governmental inquiry
or investigation affecting the Buyer or its properties pending or, to the best
knowledge of the Buyer, threatened against the Buyer.
8. COVENANTS OF THE BUYER. The Buyer covenants and agrees that,
except as otherwise consented to in writing by the Seller or as permitted by
this Agreement:
(a) DUE DILIGENCE WAIVER. Buyer is fully familiar with the Assets
and Liabilities to be transferred, as well as the business activities of
Seller. Buyer waives any further requirements relative to a due diligence
investigation and audit with respect to Seller.
(b) SALES TAX. It shall be liable for any sales or other related
taxes which accrue as a result of the transfer of Assets pursuant to this
Agreement. Buyer shall indemnify Seller for any such sales taxes that it pays
or is required to pay. Buyer shall have the right to challenge the
appropriateness or the amount of any such tax.
(c) EMPLOYMENT OFFER. It will offer employment to certain of
Seller's employees, and obtain acceptance of such offers from a sufficient
number of Seller's employees, contingent upon the Closing, such that Seller
will be required to terminate a number of employees which does not trigger the
sixty (60) day notice requirements of the federal WARN statute.
(d) AUTHORIZATION AND DELIVERY OF SHARES. All shares of Buyer's
common and preferred stock required to be issued hereunder will be duly
authorized and validly issued, fully paid and nonassessable, free and clear of
all liens, pledges, encumbrances, claims, equities and conditions enforceable
by third parties.
(e) EFFECTIVE AGREEMENT. The execution, delivery and performance
of this Agreement by the Buyer and the consummation of the transactions
contemplated hereby do not and will not (i) conflict with, violate or result in
the breach of any of the terms or conditions of, or constitute a default under,
the Certificate of Incorporation or the By-Laws of the Buyer, or any contract,
agreement, commitment, indenture, mortgage, pledge, note, bond, license, permit
or other instrument or obligation to which the Buyer is a party or by which the
Buyer or its assets may be bound or affected, or any law, regulation, ordinance
or decree to which the Buyer or its assets are subject; or (ii) result in the
creation or imposition of any lien, security interest, charge, encumbrance,
restriction or right, including rights of termination or cancellation, in or
with respect to, or otherwise materially adversely affect, any of the
properties, assets or business of the Buyer (other than liens, security
interests, charges, encumbrances, restrictions or rights arising in connection
with the financing of the transactions contemplated hereby).
-7-
<PAGE> 38
9. BULK SALES. Buyer waives compliance by Seller with the bulk
sales law of the State of New York and any state or jurisdiction in which
Seller (i) was doing business, (ii) had property located, or (iii) had existing
creditors on the Closing Date.
10. INDEMNIFICATION BY SELLER.
(a) Seller shall defend, indemnify and hold harmless Buyer,
Buyer's directors, officers, employees and agents and all persons acting on
their behalf from and reimburse the aforesaid parties for any and all Buyer's
Damages (as defined in Section 10(b)) in the manner and to the extent set forth
in this Section 10.
(b) The term "Buyer's Damages" shall include all losses, costs,
expenses (including reasonable attorneys' fees and experts' fees and expenses
and other costs and expenses incident to any suit, action, investigation, claim
or proceeding), fees, liabilities and damages sustained by the party entitled
to indemnity prior to any reimbursement therefor:
(i) arising from any breach of a representation or
warranty of Seller contained in or made pursuant to this Agreement; and
(ii) resulting from a default in the performance of any of
the covenants or obligations that Seller is required to perform under this
Agreement;
provided, however, that Seller shall not be required to pay any of Buyer's
Damages unless the claim for such Buyer's Damages is made by Buyer and received
by Seller prior to the second anniversary of the execution of this Agreement.
Notwithstanding the foregoing provisions hereof to the contrary, it is
understood and agreed that the amount of Buyer's Damages payable by Seller to
Buyer hereunder shall in no event exceed the Purchase Price.
11. INDEMNIFICATION BY BUYER.
(a) From and after the Closing Date, Buyer shall indemnify and
hold harmless Seller, its Affiliates (as defined in Section 1) and their
directors, officers, employees and agents and all persons acting on their
behalf from and reimburse the aforesaid parties for any and all Seller's
Damages (as defined in Section 11(b)) in the manner and to the extent set forth
in this Section 11.
(b) The term "Seller's Damages" shall include all losses, costs,
expenses (including reasonable attorneys' and experts' fees and expenses and
other costs and expenses incident to any suit, action, investigation, claim or
proceeding), fees, liabilities and damages sustained by the party entitled to
indemnity prior to any reimbursement therefor:
(i) arising from any breach of a representation or
warranty of Buyer contained in or made pursuant to this Agreement;
-8-
<PAGE> 39
(ii) resulting from a default in the performance of any of
the covenants or obligations that Buyer is required to perform under this
Agreement;
(iii) resulting from or arising in connection with any
liability assumed by Buyer as contemplated by this Agreement;
(iv) resulting from or arising in connection with Buyer's
management, control, ownership or operation of the Purchased Assets or
business; or
(v) resulting from any claim which alleges that
activities of Buyer or any licensees of Buyer infringe or violate a third
party's intellectual property rights.
12. AMENDMENTS; WAIVERS, ETC. This Agreement may be amended,
modified and supplemented by written agreement approved by the Seller and the
Buyer at any time prior to the Closing Date with respect to any of the terms
contained herein. Prior to or on the Closing Date, the parties hereto may in
writing (i) extend the time for the performance of any of the obligations or
other acts of the parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
hereunder, and (iii) waive compliance with any of the agreements or conditions
contained herein.
13. EXPENSES. Each of the parties will be responsible for payment
of its own expenses (including legal fees) incurred in connection with the
transactions contemplated by this Agreement, regardless of whether or not such
transactions are consummated.
14. PUBLIC DISCLOSURE. Neither the Buyer nor the Seller shall
make any public release of information regarding the matters contemplated
herein except (i) that a press release in a mutually agreed form shall be
issued by the Seller as promptly as is practicable after the execution of this
Agreement, (ii) that the Buyer and the Seller may each continue such
communications with employees, customers, suppliers, lenders, lessors,
shareholders, and other particular groups as may be legally required or
necessary or appropriate and not inconsistent with the best interest of the
other party or the prompt consummation of the transactions contemplated by this
Agreement, and (iii) as required by law.
15. CONFIDENTIALITY. The Buyer agrees to treat all information
concerning the Seller furnished, or to be furnished, by or on behalf of the
Seller in accordance with the provisions of this Section 15 (collectively, the
"Information"), and to take, or abstain from taking, other actions set forth
herein. The Information will be used solely for the purpose of evaluating the
transaction contemplated hereby, and will be kept confidential by the Buyer and
its officers, directors, employees, representatives, agents, and advisors;
provided that (i) any of such Information may be disclosed to the Buyers'
officers, directors, employees, representatives, agents, and advisors who need
to know such information for the purpose of evaluating the transaction, (ii)
any disclosure of such information may be made to which the Seller consents in
writing and (iii) such information may be disclosed if so required by law. If
the transaction is not consummated, the Buyer will return to the Seller all
material
-9-
<PAGE> 40
containing or reflecting the information and will not retain any copies,
extracts, or other reproductions thereof. The provisions of this Section 15
shall survive the termination of this Agreement.
16. NOTICES, ETC. All notices, consents, demands, requests,
approvals and other communications which are required or may be given hereunder
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed certified first class mail, postage prepaid:
(a) If to the Buyer:
ARIA Wireless Systems, Inc.
140 Mid County Drive
Orchard Park, New York 14127
Attention: Frank J. Perpiglia
President and CEO
(b) If to the Seller:
Comptek Telecommunications, Inc.
2732 Transit Road
Buffalo, New York 14224
Attention: John R. Cummings
Chairman
or to such other person or persons at such address or addresses as may be
designated by written notice hereunder.
17. ASSIGNMENT. Except as set forth in this Agreement, neither
the Seller nor the Buyer may assign or convey this Agreement or any of their
respective rights or obligations hereunder to any other party; provided,
however, that Seller may assign its rights hereunder to Comptek or its
Affiliates.
18. APPLICABLE LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws or the State of New York.
19. ENTIRE AGREEMENT. This Agreement and all Exhibits and
Schedules hereto embody the entire agreement and understanding of the parties
hereto and supersede any prior agreement or understanding between the parties.
-10-
<PAGE> 41
20. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
21. HEADINGS. Headings of the Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
22. BINDING EFFECT; BENEFITS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns; provided, however, that nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective successors and assigns, any rights and
remedies, obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
COMPTEK TELECOMMUNICATIONS, INC. COMPTEK RESEARCH, INC.
By: /s/ John R. Cummings By: /s/ John R. Cummings
--------------------------- ----------------------
John R. Cummings
John R. Cummings Chairman
Chairman, President and CEO
ARIA WIRELESS SYSTEMS, INC.
By: /s/ Frank J. Perpiglia
---------------------------
Frank J. Perpiglia
Chairman, President and CEO
-11-
<PAGE> 42
<TABLE>
SCHEDULE 1(a)
COMPTEK TELECOMMUNICATIONS, INC.
PURCHASED ASSETS
AS OF MARCH 31, 1995
<CAPTION>
(IN $000'S)
------------
<S> <C>
ACCOUNTS RECEIVABLE $1,888
INVENTORY $84
OTHER CURRENT ASSETS $32
FIXED ASSETS (NET BOOK VALUE):
Furniture & Fixtures $14
Machinery & Equipment $578
Leasehold Improvements $174
Total $766
CASH FUNDING DUE FROM COMPTEK RESEARCH, INC. $18
OTHER ASSETS
Capital Software $1,590
Goodwill 203
Network Licenses 943
Other 10
------------
Total Balance Sheet Assets $5,534
Additional Technology Purchased $910
------------
TOTAL ASSETS $6,444
============
</TABLE>
<PAGE> 43
SCHEDULE 1(b)
COMPTEK TELECOMMUNICATIONS, INC.
RETAINED ASSETS
Seller shall retain the following assets:
1. Any and all proceeds, awards, compensation or other recovered damages
arising from or related to the litigation involving Seller, its parent
and affiliates against Poly Circuits, Inc./M~Wave, Inc., and the New
York Hospital.
2. Any and all accounts receivable, credits, claims, and debts owed to
the Seller but removed by Seller from its balance sheet prior to March
31, 1995.
<PAGE> 44
SCHEDULE 1(c)
COMPTEK TELECOMMUNICATIONS, INC.
RETAINED LIABILITIES
Seller shall retain the following liabilities:
1. Any and all liabilities, costs, and expenses arising from or related
to the litigation involving Seller, its parent and affiliate against
Poly Circuits/M~Wave, Inc.
2. Accounts Payable ($145,000 as of March 31, 1995).
3. Other Accrued Liabilities ($440,000 as of March 31, 1995).
4. Long-Term Debt of $167,000 (Note Payable to DJR NE ENTERPRISES, INC.).
5. Long-Term Deferred Tax Liability of $340,000.
<PAGE> 45
SCHEDULE 3
COMPTEK TELECOMMUNICATIONS, INC.
ALLOCATION OF PURCHASE PRICE
CUMULATIVE PREFERRED STOCK (CR-I)
- Technology 910,000
- MAS Networks 943,000 $1,853,000
CONVERTIBLE PREFERRED STOCK (CR-II) AND CLASS A COMMON
- All Other Assets 4,591,434
----------
TOTAL STOCK $6,444,434
<PAGE> 46
SCHEDULE 6(d)
COMPTEK TELECOMMUNICATIONS, INC.
AGREEMENTS
The following agreements are specifically assumed:
Employment Agreements by and between Seller and/or its parent and
James Morgan, Theodore Bosworth, Joseph Faraci, Allan Scott, and
Eugene Massucci; and
Sublease by and between Seller and Moog, Inc., dated April 25, 1994,
for the premises located at 140 Mid County Drive, Orchard Park, New
York; and
Software License and related agreements by and between Seller's parent
and Symix, Inc.; and
Marketing and Sales Assistance Agreement dated June 2, 1994, by and
between Seller and Bison Data Corporation; and
Exclusive Manufacturing and Engineering Services Agreement dated
October 29, 1991, by and between Seller and Bison Data Corporation.
<PAGE> 47
<TABLE>
SCHEDULE 6(d)
AGREEMENTS (CON'T.)
COMPTEK TELECOMMUNICATIONS, INC.
MAS SUMMARY INFORMATION
AS OF DECEMBER 23, 1994
EXISTING MULTIPLE ADDRESS SYSTEM ("MAS") STATIONS
<CAPTION>
====================================================================================================================================
MONTHLY DATA
LOCATION TOWER SITE CHARGES LEASE TERM RATE
====================================================================================================================================
<S> <C> <C> <C> <C>
AKRON, OH #1 Cascade Plaza Albany, NY $300.00 06/15/94 9.6 Kbps
Automatic one-year renewals 25 KHz
unless 30 days termination
notice is given
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Albany, NY #1 A.E. Smith State Office Bldg. $279.60 ? 09/03/97 9.6 Kbps
Albany, NY (Limited Assignability) 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Albany, NY #2 Pinnacle Road $322.80 12/15/95 9.6 Kbps
New Scotland, NY 25 KHz
(Capital Choice Television)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
ARLINGTON, VA 5217 19th Road North $650.00 11/14/94 9.6 Kbps
Arlington, VA 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
BOSTON, MA John Hancock Mutual Life $850.00 08/01/94 9.6 Kbps
Insurance Building 25 KHz
200 Clarendon Street
Boston, MA
- - - - ------------------------------------------------------------------------------------------------------------------------------------
BUFFALO, NY #1-A Marine Midland Building $600.00 10/01/94 9.6 Kbps
Buffalo, NY 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
BUFFALO, NY #1-B Marine Midland Building $600.00 10/01/94 9.6 Kbps
Buffalo, NY 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
BUFFALO, NY #2 Buffalo Crushed Stone $600.00 05/10/94 9.6 Kbps
Alden, NY 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Charlotte, NC First Union Bank of North Carolina $600.00 02/15/95 9.6 Kbps
400 South Tryon Street 25 KHz
Charlotte, NC
- - - - ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 48
<TABLE>
SCHEDULE 6(d)
AGREEMENTS (CON'T.)
<CAPTION>
====================================================================================================================================
MONTHLY DATA
LOCATION TOWER SITE CHARGES LEASE TERM RATE
====================================================================================================================================
<S> <C> <C> <C> <C>
Chicago, IL One First National Plaza $350.00 01/01/95 9.6 Kbps
Chicago, IL (Automatic renewal for one 25 KHz
additional year unless 60 days
prior notice is given)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Cincinnati, OH TBD - Site Move Application Pending TBD TBD 19.2 kbps
25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
CLEVELAND, OH Society Tower $540.00 07/30/93 (Automatic one month 9.6 Kbps
Cleveland, OH extensions thereafter) 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
COLUMBUS, OH Huntington Center $430.00 11/30/94 9.6 Kbps
41 High Street 25 KHz
Columbus, OH
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Detroit, MI-A Book Tower Building $260.00 11/01/96 9.6 Kbps
Detroit, MI 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Detroit, MI Book tower Building $230.00 11/01/96 9.6 Kbps
Detroit, MI 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
ERIE, PA Erie Summit Tower $500.00 07/31/94 9.6 Kbps
Erie, PA (Automatic renewal for two-year 25 KHz
term unless 90 days advance
written notice is given)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
HARTFORD, CT 60 Washington Street $350.00 Month to Month 9.6 Kbps
Hartford, CT 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Honolulu, HI Five Regents Condominium $200.00 02/28/95 19.2 Kbps
Installation to be Project mo 13-24 (Two additional one year 25 KHz
completed 03/94 2888 Ala Lima Street $210.00 options upon 4 months advance
Honolulu, HI mo 25-36 written notice)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
INDIANAPOLIS, IN Aul Building $570.00 Month to Month 9.6 Kbps
Indianapolis, IN 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
LAS VEGAS, NV Harrah's $500.00 12/31/94 9.6 Kbps
Las Vegas, NV (Automatic one-Year renewal 25 KHz
unless 90 days advance written
notice is given)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 49
<TABLE>
SCHEDULE 6(d)
AGREEMENTS (CON'T.)
<CAPTION>
====================================================================================================================================
MONTHLY DATA
LOCATION TOWER SITE CHARGES LEASE TERM RATE
====================================================================================================================================
<S> <C> <C> <C> <C>
Minneapolis, MN IDS Center $360.00 11/01/96 9.6 Kbps
Minneapolis, MN (Subject to termination on 25 KHz
11/01/95 if 90 days advance
written notice is given)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
ORLANDO, FL Bithlo Tower Company $610.00 11/15/94 9.6 Kbps
Bithlo, FL (Automatic one year renewal 25 KHz
unless 60 days advance written
notice given)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
PHOENIX, AZ Shaw Butte Tower $125.00 Month to Month 9.6 Kbps
Phoenix, AZ 25 KHz
(location to be moved)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Pittsburgh, PA #1 Echo 2 $475.00 06/30/98 9.6 Kbps
122 Bluebell Street (Subject to earlier termination 25 KHZ
Pittsburgh, PA on 90 days advance written
notice)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
PITTSBURGH, PA #2 QED Tower $550.00 08/01/94 9.6 Kbps
Berthoud Street (One year renewal upon 30 days 25 KHz
Pittsburgh, PA advance written notice)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
PORTLAND, OR Healy/heights $185.00 11/01/94 9.6 Kbps
Portland, OR (Renewal for up to four 25 KHz
additional one year terms upon
60 days advance written notice)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
ROCHESTER, NY #1 935 Thayer Road $660.00 07/31/94 9.6 Kbps
Fairport, NY 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Rochester #2 East Avenue 9.6 Kbps
Rochester, NY 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
St.Louis, MO Mercantile Center $287.00 07/01/96 9.6 Kbps
St. Louis, MO (Subject to 90 days notice of 25 KHz
cancellation is given)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 50
<TABLE>
SCHEDULE 6(d)
AGREEMENTS (CON'T.)
<CAPTION>
====================================================================================================================================
MONTHLY DATA
LOCATION TOWER SITE CHARGES LEASE TERM RATE
====================================================================================================================================
<S> <C> <C> <C> <C>
St.Petersburg, Southtrust Building $325.00 11/30/94 9.6 Kbps
FL(Installation to be 150 Second Avenue, North (Automatic renewal unless 90 25 KHz
completed 03/94 St. Petersburg, FL days advance written notice is
given)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
SAN ANTONIO, TX San Antonio Marriott $430.00 12/31/94 9.6 Kbps
101 Bowie Street 25 KHz
San Antonio, TX
- - - - ------------------------------------------------------------------------------------------------------------------------------------
SAN DIEGO, CA 1010 Second Avenue $495.00 12/20/94 9.6 Kbps
San Diego, CA 25 KHz
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Seattle, WA Columbia Seafirst Center $335.00 03/01/96 9.6 Kbps
701 Fifth Avenue (Self renewing from year to 25 KHz
Seattle, WA year subject to 90 days advance
written notice of cancellation)
- - - - ------------------------------------------------------------------------------------------------------------------------------------
Syracuse, NY WJD Tower $325.00 03/31/96 9.6 Kbps
409 Makyes Road 25 KHz
Onondaga, NY
- - - - ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 51
SCHEDULE 6(e)
COMPTEK TELECOMMUNICATIONS, INC.
LITIGATION
International Chamber of Commerce Arbitration brought against Seller by IVD
Corporation and Aicesa S.A. de C.V., and the related action by Seller in the
United States District Court for the Western District of New York seeking to
stay and dismiss said arbitration with respect to Seller; and
Counterclaim filed by The New York Hospital against Seller which is currently
pending before the New York State Supreme Court located in New York County.
<PAGE> 52
_____________________________________________
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
COMPTEK RESEARCH, INC.
AND
INDUSTRIAL SYSTEMS SERVICE, INC.
AND
ARIA WIRELESS SYSTEMS, INC.
DATED AS OF MAY 9, 1995
_____________________________________________
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TABLE OF CONTENTS
SECTION PAGE
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Sale of Properties and Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Purchase Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Preferred Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Assumed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) Litigation Support and Assistance . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) Sales Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Instruments of Transfer; Assumption of Liabilities; Further Assurances . . . . . . . . . . 3
(a) Seller's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Buyer's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Other Transfer Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Record Retention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Organization; Good Standing; Power; Etc. . . . . . . . . . . . . . . . . . . . . . 4
(b) Authorization; Effective Agreement. . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Title to Property and Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Agreements, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7. Representations and Warranties of the Buyer . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Organization; Good Standing; Power . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(c) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(d) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. Covenants of the Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Sales Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(c) Employment Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(d) Authorization and Delivery of Shares . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Effective Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Bulk Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11. Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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12. Amendments; Waivers, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14. Public Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
15. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
16. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
17. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
18. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
19. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
20. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
21. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
22. Binding Effect; Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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LIST OF SCHEDULES
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1(a) Purchased Assets
1(b) Retained Assets
1(c) Retained Liabilities
6(d) Agreements
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ASSET PURCHASE AGREEMENT
Asset Purchase Agreement dated as of May 9, 1995, by and between
COMPTEK RESEARCH, INC., a New York corporation ("Comptek"), INDUSTRIAL SYSTEMS
SERVICE, INC., a Pennsylvania corporation ("Seller"), and ARIA WIRELESS
SYSTEMS, INC., a Delaware corporation ("Buyer").
W I T N E S S E T H :
WHEREAS, Comptek is the parent corporation and sole shareholder of
Seller; and
WHEREAS, the Seller desires to sell to the Buyer, and the Buyer desires
to purchase from the Seller, substantially all of the properties and assets,
subject to certain liabilities, of Seller, all upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. DEFINITIONS. As used in this Agreement, terms defined in the preamble
and recitals of this Agreement shall have the meanings set forth therein and
the following terms shall have the meanings set forth below.
"Affiliate" shall mean, with respect to any person or entity, any
shareholder, subsidiary, officer, director or partner of such person or entity
or any other person which directly or indirectly controls, is controlled by or
is under common control with such person or entity.
"Agreement" shall mean this Asset Purchase Agreement and all Schedules
and Exhibits hereto, as the same may from time to time be amended.
"Assumed Liabilities" shall mean all Liabilities of the Seller except
for the Retained Liabilities described on Schedule 1(c) hereto.
"Closing" shall mean the closing of the transactions contemplated by
this Agreement on the Closing Date at the offices of Comptek, 2732 Transit Road,
Buffalo, New York 14224, or at such other place as the parties may mutually
agree.
"Closing Date" shall mean May 9, 1995, or such other date as may be
agreed to by the parties to this Agreement.
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"Code" shall mean the Internal Revenue Code of 1986 and all
regulations promulgated thereunder, as the same have from time to time been
amended.
"Comptek" shall mean Comptek Research, Inc., a New York corporation,
the parent and sole owner of Seller.
"Financial Statements" shall mean (a) the financial statements of
Seller as of and for the period ended March 31, 1995 (including the balance
sheet), prepared by the Seller and previously delivered to the Buyer.
"Liabilities" shall mean all debts, liabilities, taxes (including any
sales or transfer taxes on the sale of the Purchased Assets), obligations under
contracts, leases, agreements and commitments, and other obligations of every
kind and character of the Seller as the same may exist at the Closing (whether
accrued, absolute, contingent or otherwise, and whether due or to become due)
or which may arise in the future based upon events or a state of facts existing
at the Closing.
"Purchased Assets" shall mean the assets described in Schedule 1(a)
and all assets reflected on the Financial Statements or acquired by the Seller
in the ordinary course of business and consistent with past practice of the
Seller since the date of such Financial Statements, except for those assets
which have been transferred or disposed of in the ordinary course of business
and consistent with past practice of the Seller after the date of such
Financial Statements or as otherwise permitted by this Agreement): provided,
however, that the Purchased Assets shall not include the Retained Assets.
"Retained Assets" shall mean the assets described in Schedule 1(b)
hereto.
"Retained Liabilities" shall mean the Liabilities described in
Schedule 1(c) hereto.
2. SALE OF PROPERTIES AND ASSETS. At the Closing, the Seller will
sell, transfer, assign, convey and deliver to the Buyer, and the Buyer will
purchase, accept and acquire from the Seller, all of the Purchased Assets, "AS
IS, WHERE IS."
BUYER ACKNOWLEDGES AND AGREES THAT ALL ASSETS BEING TRANSFERRED OR
LICENSED HEREUNDER ARE BEING TRANSFERRED OR LICENSED ON AN "AS IS, WHERE IS"
BASIS, AND THAT EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, SELLER IS MAKING NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, RESPECTING THE
ASSETS, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER
MATTER. BUYER ACKNOWLEDGES THAT BUYER HAS INFORMED ITSELF AS TO SELLER'S
BUSINESS OPERATIONS, AND BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER
MAKES NO REPRESENTATIONS OR WARRANTY OF ANY KIND WITH RESPECT TO THE BUSINESS
OPERATIONS.
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3. PURCHASE CONSIDERATION. The aggregate consideration to be paid
by the Buyer for the Purchased Assets shall consist of (i) Preferred Shares of
Buyer as set forth in Section 3(a) hereof, (ii) the assumption by the Buyer of
the Assumed Liabilities as set forth in Section 3(b) hereof, and (iii) the
other consideration as set forth in this Section 3.
(a) Preferred Shares. The Buyer shall issue to Seller the
following shares of its capital stock:
Eighteen Thousand Three Hundred Ninety (18,390) shares of
convertible Preferred Stock ($.01 Par Value), Series CR-II,
having a face value of $134 per share and a liquidation
preference of $101.52 per share.
(b) Assumed Liabilities. At the Closing, the Buyer will assume all
Liabilities except the Retained Liabilities, as set forth on Schedule 1(c)
hereto. The Buyer will not assume or otherwise have any responsibility for any
of the Retained Liabilities.
(c) Litigation Support and Assistance. Comptek and Seller are
currently involved in certain litigation matters related to Seller's business
operations. As a material element of consideration which is essential to the
consummation of the transaction set forth in this Agreement, Buyer agrees to
provide at no additional cost to Comptek and Seller such personnel,
administrative, logistical, and clerical support, excluding legal fees, as
Comptek and Seller may request from time to time in support of or related to
said litigation. Requests for such litigation support may be made orally or in
writing. All requests shall be directed to the attention of Buyer's president.
In the event that Buyer objects that the requested litigation support as
unreasonably burdensome or beyond its abilities to respond, it shall so advise
Comptek's chairman of the board of directors who shall determine whether or not
the request should be modified. Pending determination by Comptek's chairman of
the board of directors, Buyer shall use its best efforts to comply with all
requests.
(d) Sales Tax. The purchase price is exclusive of any sales, use,
or similar taxes arising directly out of the transfer of the Purchased Assets
to Buyer. Buyer shall be liable for the payment of such taxes, if any.
4. INSTRUMENTS OF TRANSFER; ASSUMPTION OF LIABILITIES; FURTHER
ASSURANCES.
(a) Seller's Deliveries. Contemporaneously with the completion of
this and other related transactions, the Seller shall deliver to the Buyer:
(i) Bills of sale for the Purchased Assets;
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(ii) Such other instrument or instruments of transfer, in
such form, as shall be reasonably necessary or
appropriate to vest in the Buyer good, valid, and
marketable title to the Purchased Assets, free and
clear of all liens and encumbrances other than the
Assumed Liabilities.
(b) Buyer's Deliveries. Contemporaneously with the completion of
this and other related transactions, the Buyer shall deliver to Comptek and
Seller:
(i) The stock and related instruments referenced in
Section 3(a);
(ii) Assumption instruments in a form reasonably
satisfactory to the Seller whereby the Buyer agrees to
assume the Assumed Liabilities; and
(iii) Indemnification/Hold-Harmless Agreement; and
(iv) Waiver and Release of any and all existing or
potential claims, known or unknown.
(c) OTHER TRANSFER INSTRUMENTS. Following the Closing, at the
reasonable request of the Buyer, the Seller shall deliver any further
instruments of transfer and take all reasonable action as may be necessary or
appropriate (i) to vest in the Buyer all of the Seller's title to the Purchased
Assets, and (ii) to transfer to the Buyer all of the Seller's rights to
licenses and permits necessary for the operation of the Purchased Assets.
5. RECORD RETENTION. The Buyer shall retain the books and records
of the Seller acquired hereunder and, unless otherwise consented to in writing
by the Seller, the Buyer shall not, for the period of five (5) years following
the Closing, destroy or otherwise dispose of the books and records of the
Seller acquired by the Buyer hereunder. Thereafter, the Buyer shall not
destroy or otherwise dispose of such books and records without first offering
to surrender to the Seller such books and records or any portion thereof which
the Buyer may intend to destroy or dispose of. Upon reasonable notice, the
Buyer shall make such books and records available to the Seller, its attorneys,
accountants and representatives for examination and copying.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Buyer, as follows:
(a) ORGANIZATION; GOOD STANDING; POWER; ETC. The Seller is a duly
organized, validly existing corporation in good standing under the laws of the
State of Pennsylvania and it has the corporate power, authority and capacity to
own, lease and operate its properties, and to carry on its business as the same
is now being conducted.
(b) AUTHORIZATION; EFFECTIVE AGREEMENT. The Seller has the
requisite corporate power, authority and capacity to enter into this Agreement
and to perform all of their
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obligations hereunder subject only to approval and ratification by its Board of
Directors. All proceedings required to be taken by Comptek and the Seller to
authorize the execution and delivery of this Agreement and the performance of
their obligations hereunder have been duly taken, and this Agreement
constitutes the legal, valid and binding obligation of Comptek and the Seller,
enforceable against it in accordance with its terms. The execution, delivery
and performance of this Agreement by the Seller does not and will not: (i)
conflict with, violate or result in the breach of any of the terms or
conditions of, or constitute a default under, the Certificate of Incorporation
or By-Laws of the Seller, or any contract, agreement, commitment, indenture,
mortgage, pledge, note, bond, license, permit or other instrument or obligation
to which either the Seller is party, or by which the Seller or its assets may
be bound or affected, or any law, regulation, ordinance or decree to which the
Seller or its assets are subject, except for requirements for consents of
governmental authorities, persons or entities referred to in Section 6(c)
hereof; or (ii) result in the creation or imposition of any lien, security
interest, charge, encumbrance, restriction or right, including rights of
termination or cancellation, in or with respect to, or otherwise materially
adversely affect, any of the properties, assets or business of the Seller.
(c) TITLE TO PROPERTY AND ASSETS. To Seller's knowledge, Seller
has good and marketable title to all of its properties and assets, subject to
no mortgage, pledge, lien, security interest, lease, charge, encumbrance or
conditional sale or other title retention agreement except as provided for in
the Financial Statements. No property or asset owned or leased by the Seller
is in violation of any applicable building, zoning or environmental law in
respect thereof.
(d) AGREEMENTS, ETC. To Seller's knowledge, set forth on Schedule
6(d) hereto is a description of all indentures, mortgages, agreements, leases,
contracts, arrangements, commitments, instruments, understandings or
obligations, oral or written, to which the Seller is a party or to which it or
any of the Purchased Assets is subject.
(e) COOPERATION. It shall use its best efforts to obtain all
consents and authorizations of third parties and to make all filings with and
give all notices to third parties which may be necessary or reasonably required
in order to effect the sale contemplated by this Agreement and shall take such
additional actions as the Buyer may reasonably request in writing to cooperate
so that the transactions contemplated by this Agreement may be expeditiously
consummated.
7. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
represents and warrants to the Seller as follows:
(a) ORGANIZATION; GOOD STANDING; POWER. The Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Buyer has the requisite power, authority and capacity
to own, lease and operate its properties and to carry on its intended business.
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(b) AUTHORIZATION. The Buyer has all requisite power, authority
and capacity to enter into this Agreement and to perform all of its obligations
hereunder subject only to approval and ratification by its Board of Directors.
The Buyer has taken or will have taken prior to the Closing, all necessary
action to approve this Agreement and the performance of its obligations
hereunder.
(c) CAPITALIZATION. Buyer's entire authorized capital stock
consists of (i) Twenty Million (20,000,000) shares of common stock, par value
$.01 per share, of which One Hundred (100) shares were issued and outstanding
as of March 31, 1995, and (ii) Five Hundred Thousand (500,000) shares of
preferred stock, par value $.01 per share, of which none were issued and
outstanding as of March 31, 1995.
(d) LITIGATION. There is no material suit, action or litigation,
administrative hearing, arbitration or other proceeding or governmental inquiry
or investigation affecting the Buyer or its properties pending or, to the best
knowledge of the Buyer, threatened against the Buyer.
8. COVENANTS OF THE BUYER. The Buyer covenants and agrees that,
except as otherwise consented to in writing by the Seller or as permitted by
this Agreement:
(a) DUE DILIGENCE WAIVER. Buyer is fully familiar with the Assets
and Liabilities to be transferred, as well as the business activities of
Seller. Buyer waives any further requirements relative to a due diligence
investigation and audit with respect to Seller.
(b) SALES TAX. It shall be liable for any sales or other related
taxes which accrue as a result of the transfer of Assets pursuant to this
Agreement. Buyer shall indemnify Seller for any such sales taxes that it pays
or is required to pay. Buyer shall have the right to challenge the
appropriateness or the amount of any such tax.
(c) EMPLOYMENT OFFER. It will offer employment to certain of
Seller's employees, and obtain acceptance of such offers from a sufficient
number of Seller's employees, contingent upon the Closing, such that Seller
will be required to terminate a number of employees which does not trigger the
sixty (60) day notice requirements of the federal WARN statute.
(d) AUTHORIZATION AND DELIVERY OF SHARES. All shares of Buyer's
common and preferred stock required to be issued hereunder will be duly
authorized and validly issued, fully paid and nonassessable, free and clear of
all liens, pledges, encumbrances, claims, equities and conditions enforceable
by third parties.
(e) EFFECTIVE AGREEMENT. The execution, delivery and performance
of this Agreement by the Buyer and the consummation of the transactions
contemplated hereby do not and will not (i) conflict with, violate or result in
the breach of any of the terms or conditions of, or constitute a default under,
the Certificate of Incorporation or the By-Laws
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of the Buyer, or any contract, agreement, commitment, indenture, mortgage,
pledge, note, bond, license, permit or other instrument or obligation to which
the Buyer is a party or by which the Buyer or its assets may be bound or
affected, or any law, regulation, ordinance or decree to which the Buyer or its
assets are subject; or (ii) result in the creation or imposition of any lien,
security interest, charge, encumbrance, restriction or right, including rights
of termination or cancellation, in or with respect to, or otherwise materially
adversely affect, any of the properties, assets or business of the Buyer (other
than liens, security interests, charges, encumbrances, restrictions or rights
arising in connection with the financing of the transactions contemplated
hereby).
9. BULK SALES. Buyer waives compliance by Seller with the bulk
sales law of the State of New York and any state or jurisdiction in which
Seller (i) was doing business, (ii) had property located, or (iii) had existing
creditors on the Closing Date.
10. INDEMNIFICATION BY SELLER.
(a) Seller shall defend, indemnify and hold harmless Buyer, Buyer's
directors, officers, employees and agents and all persons acting on their
behalf from and reimburse the aforesaid parties for any and all Buyer's Damages
(as defined in Section 10(b)) in the manner and to the extent set forth in this
Section 10.
(b) The term "Buyer's Damages" shall include all losses, costs,
expenses (including reasonable attorneys' fees and experts' fees and expenses
and other costs and expenses incident to any suit, action, investigation, claim
or proceeding), fees, liabilities and damages sustained by the party entitled
to indemnity prior to any reimbursement therefor:
(i) arising from any breach of a representation or
warranty of Seller contained in or made pursuant to this Agreement;
(ii) resulting from a default in the performance of any of
the covenants or obligations that Seller is required to perform under this
Agreement; or
(iii) arising as the direct result of a final judgment
obtained by a third party pursuant to Seller's manufacture of products for
other than Comptek Telecommunications, Inc., or its customers which occurred
prior to the effective date of this Agreement;
provided, however, that Seller shall not be required to pay any of Buyer's
Damages unless the claim for such Buyer's Damages is made by Buyer and received
by Seller prior to the second anniversary of the execution of this Agreement.
Notwithstanding the foregoing provisions hereof to the contrary, it is
understood and agreed that the amount of Buyer's Damages payable by Seller to
Buyer hereunder shall in no event exceed the Purchase Price.
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11. INDEMNIFICATION BY BUYER.
(a) From and after the Closing Date, Buyer shall indemnify and hold
harmless Seller, its Affiliates (as defined in Section 1) and their directors,
officers, employees and agents and all persons acting on their behalf from and
reimburse the aforesaid parties for any and all Seller's Damages (as defined in
Section 11(b)) in the manner and to the extent set forth in this Section 11.
(b) The term "Seller's Damages" shall include all losses, costs,
expenses (including reasonable attorneys' and experts' fees and expenses and
other costs and expenses incident to any suit, action, investigation, claim or
proceeding), fees, liabilities and damages sustained by the party entitled to
indemnity prior to any reimbursement therefor:
(i) arising from any breach of a representation or
warranty of Buyer contained in or made pursuant to this Agreement;
(ii) resulting from a default in the performance of any of
the covenants or obligations that Buyer is required to perform under this
Agreement;
(iii) resulting from or arising in connection with any
liability assumed by Buyer as contemplated by this Agreement;
(iv) resulting from or arising in connection with Buyer's
management, control, ownership or operation of the Assets or business; or
(v) resulting from any claim which alleges that activities
of Buyer or any licensees of Buyer infringe or violate a third party's
intellectual property rights.
12. AMENDMENTS; WAIVERS, ETC. This Agreement may be amended,
modified and supplemented by written agreement approved by the Seller and the
Buyer at any time prior to the Closing Date with respect to any of the terms
contained herein. Prior to or on the Closing Date, the parties hereto may in
writing (i) extend the time for the performance of any of the obligations or
other acts of the parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
hereunder, and (iii) waive compliance with any of the agreements or conditions
contained herein.
13. EXPENSES. Each of the parties will be responsible for payment
of its own expenses (including legal fees) incurred in connection with the
transactions contemplated by this Agreement, regardless of whether or not such
transactions are consummated.
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14. PUBLIC DISCLOSURE. Neither the Buyer nor the Seller shall make
any public release of information regarding the matters contemplated herein
except (i) that a press release in a mutually agreed form shall be issued by
the Seller as promptly as is practicable after the execution of this Agreement,
(ii) that the Buyer and the Seller may each continue such communications with
employees, customers, suppliers, lenders, lessors, shareholders, and other
particular groups as may be legally required or necessary or appropriate and
not inconsistent with the best interest of the other party or the prompt
consummation of the transactions contemplated by this Agreement, and (iii) as
required by law.
15. CONFIDENTIALITY. The Buyer agrees to treat all information
concerning the Seller furnished, or to be furnished, by or on behalf of the
Seller in accordance with the provisions of this Section 15 (collectively, the
"Information"), and to take, or abstain from taking, other actions set forth
herein. The Information will be used solely for the purpose of evaluating the
transaction contemplated hereby, and will be kept confidential by the Buyer and
its officers, directors, employees, representatives, agents, and advisors;
provided that (i) any of such Information may be disclosed to the Buyers'
officers, directors, employees, representatives, agents, and advisors who need
to know such information for the purpose of evaluating the transaction, (ii)
any disclosure of such information may be made to which the Seller consents in
writing and (iii) such information may be disclosed if so required by law. If
the transaction is not consummated, the Buyer will return to the Seller all
material containing or reflecting the information and will not retain any
copies, extracts, or other reproductions thereof. The provisions of this
Section 15 shall survive the termination of this Agreement.
16. NOTICES, ETC. All notices, consents, demands, requests,
approvals and other communications which are required or may be given hereunder
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed certified first class mail, postage prepaid:
(a) If to the Buyer:
ARIA Wireless Systems, Inc.
140 Mid County Drive
Orchard Park, New York 14127
Attention: Frank J. Perpiglia
President and CEO
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(b) If to the Seller:
Industrial Systems Service, Inc.
2732 Transit Road
Buffalo, New York 14224
Attention: John R. Cummings
Chairman
or to such other person or persons at such address or addresses as may be
designated by written notice hereunder.
17. ASSIGNMENT. Except as set forth in this Agreement, neither the
Seller nor the Buyer may assign or convey this Agreement or any of their
respective rights or obligations hereunder to any other party; provided,
however, that Seller may assign its rights hereunder to Comptek or its
Affiliates.
18. APPLICABLE LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws or the State of New York.
19. ENTIRE AGREEMENT. This Agreement and all Exhibits and
Schedules hereto embody the entire agreement and understanding of the parties
hereto and supersede any prior agreement or understanding between the parties.
20. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
21. HEADINGS. Headings of the Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
22. BINDING EFFECT; BENEFITS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns; provided, however, that nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective successors and assigns, any rights and
remedies, obligations or liabilities under or by reason of this Agreement.
-10-
<PAGE> 66
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
INDUSTRIAL SYSTEMS SERVICE, INC. COMPTEK RESEARCH, INC.
By: By:
---------------------------- ---------------------------
John R. Cummings John R. Cummings
Chairman Chairman, President and CEO
ARIA WIRELESS SYSTEMS, INC.
By:
----------------------------
Frank J. Perpiglia
Chairman, President and CEO
-11-
<PAGE> 67
<TABLE>
SCHEDULE 1(a)
INDUSTRIAL SYSTEMS SERVICE, INC.
PURCHASED ASSETS
AS OF MARCH 31, 1995
<CAPTION>
(IN $000'S)
--------------
<S> <C> <C>
ACCOUNTS RECEIVABLE $52
INVENTORY $1,360
FIXED ASSETS (NET BOOK VALUE):
Furniture & Fixtures $6
Machinery & Equipment $544
Leasehold Improvements $0
Total $550
OTHER ASSETS
Other $6
--------------
TOTAL PURCHASED ASSETS $1,968
==============
</TABLE>
<PAGE> 68
SCHEDULE 1(b)
INDUSTRIAL SYSTEMS SERVICE, INC.
RETAINED ASSETS
Seller shall retain the following assets:
1. Any and all proceeds, awards, compensation, or other recovered damages
arising from or related to the litigation involving Seller, its parent
and affiliates against Poly Circuits, Inc./M~Wave, Inc.
2. All rights and proceeds, except for the rights to the Symix System,
arising from or related to the Erie, Pennsylvania, operations of
Seller sold to Elgin E2, Inc., pursuant to a certain Asset Purchase
Agreement dated August 11, 1994, including, without limitation:
(a) Security Agreement dated October 19, 1994, and related
promissory note, by and between Elgin E2, Inc., and Seller.
(b) Security Agreement dated October 19, 1994, and related
promissory note, by and among Key International, Inc., Elgin
E2, Inc., and Seller.
(c) Sublease Agreement dated October 19, 1994, by and between Elgin
E2, Inc., and Seller.
3. Any and all accounts receivable, credits, claims and debts owed to the
Seller but removed by Seller from its balance sheet prior to March 31,
1995.
<PAGE> 69
SCHEDULE 1(c)
INDUSTRIAL SYSTEMS SERVICE, INC.
RETAINED LIABILITIES
Seller shall retain the following liabilities:
1. Any and all liabilities, costs, and expenses arising from or related
to the litigation involving Seller, its parent and affiliate against
Poly Circuits/M~Wave, Inc.
2. All liabilities and responsibilities, except for responsibilities for
the Symix Systems, arising from or related to the Erie, Pennsylvania,
operations of Seller sold to Elgin 2, Inc., pursuant to a certain
Asset Purchase Agreement dated August 11, 1994, including, without
limitation:
(a) Sublease Agreement dated October 19, 1994, by and between Elgin
E2, Inc., and Seller.
(b) Subordination Agreement, dated October 19, 1994, by and among
Star Bank, Seller, Comptek Research, Inc., and Elgin E2, Inc.
(c) Bill of Sale dated October 19, 1994, issued by Seller to Elgin
E2, Inc.
3. Accounts Payable ($156,000 as of March 31, 1995).
4. Other Accrued Liabilities ($95,000 as of March 31, 1995).
<PAGE> 70
SCHEDULE 6(d)
INDUSTRIAL SYSTEMS SERVICE, INC.
AGREEMENTS
The following agreements and all rights and responsibilities thereunder are
specifically assumed:
1. Software License and related agreements by and between Seller and
Symix, Inc., dated January 20, 1993 (Agreement No. 93-0100227-01), as
assigned to Seller's parent corporation, Comptek Research, Inc., by
instrument dated February 14, 1994.
2. Symix System Use Agreement dated October 19, 1994, by and between
Comptek Research, Inc., and Elgin E2, Inc.
3. Contract Manufacturing Orders, as follows:
<TABLE>
<CAPTION>
DELIVERY TIME
CUSTOMER P.O. # DESCRIPTION FRAME $ VALUE
<S> <C> <C> <C> <C>
Carleton Technology L30278 CCA Shipsets 3/95 - 7/95 $81,697.00
Carleton Technology L50050 50 Servo Amp Assemblies 9/95 $17,500.00
Carleton Technology L5B031 Solderability Testing TBD $1,800.00
Cattron 80159 CCA's 5/95 - 12/95 $74,857.79
CFS 43340 CCA's 3/95 - 5/95 $935.80
CFS 43358 Test Fixture 4/95 $660.00
Control Techniques 40689 180 CCA's (1590 Series) 5/95 $35,890.00
EPS 140358A 1 CCA TBD $160.00
EPS 150116 14 CCA's 5/95 $1,432.00
OIS 06473 Flex CCA's 4/95 - 5/95 $12,884.55
Purchasing Network P95263 1850 CCA's (9500-4025) 3/95 - 7/95 $39,510.50
Purchasing Network P95262 1850 CCA's (9500-4030) 3/95 - 7/95 $10,820.50
SKC 021973-0 1000 CCA's 5/95 $18,600.00
------------
TOTAL $296,748.14
</TABLE>
<PAGE> 71
PLAN AND AGREEMENT OF MERGER BETWEEN
ARIA WIRELESS SYSTEMS, INC.,
A NEW YORK CORPORATION
AND
ARIA WIRELESS SYSTEMS, INC.,
A DELAWARE CORPORATION
<PAGE> 72
PLAN AND AGREEMENT OF MERGER BETWEEN
ARIA WIRELESS SYSTEMS, INC.,
A NEW YORK CORPORATION
AND
ARIA WIRELESS SYSTEMS, INC.,
A DELAWARE CORPORATION
AGREEMENT OF MERGER made this 9th day of May, 1995, between:
ARIA WIRELESS SYSTEMS, INC., a New York Corporation, hereinafter
called "Old Aria", and
ARIA WIRELESS SYSTEMS, INC., a Delaware Corporation, hereinafter
called "New Aria".
W I T N E S S E T H :
WHEREAS, Old Aria has authorized capital stock consisting of
One Million Five Hundred Thousand (1,500,000) Shares of Common Stock, (par
value $.01 per share), of which One Hundred Thousand (100,000) Shares have been
duly issued, and of which Eighty-Nine Thousand Seven Hundred Seventy-Eight
(89,778) Shares are now outstanding and Ten Thousand Two Hundred Twenty-Two
(10,222) Shares are held by Old Aria as Treasury Stock, and also consisting of
Five Hundred Thousand (500,000) Shares of Preferred Stock (par value $.01 per
share), none of which have been issued; and
WHEREAS, New Aria has authorized capital stock consisting of
Nineteen Million Nine Hundred Thousand (19,900,000) Shares of Class B Common
Stock, par value $.01 per share, none of which has been issued, Ten Thousand
(10,000) Shares of Class A Common Stock, of which One Hundred (100) Shares have
been duly issued and are now outstanding, and Five Hundred Thousand (500,000)
Shares of Preferred Stock ($.01 par value per share), of which 1,853 shares
have been designated as Non-Convertible Preferred Stock, Series CR-I, all of
which have been issued, and 48,951 Shares have been designated as Convertible
Preferred Stock, Series, CR-II, all of which have been issued, 1,000 Shares
have been designates as Non-Convertible Preferred Stock, Series BC-1, none of
which has been issued, and the remaining 448,196 authorized Shares of Preferred
Stock have not been designated or issued; and
WHEREAS, the Board of Directors of Old Aria and of New Aria,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their respective shareholders that Old Aria merge
with New Aria under and pursuant to the provisions
<PAGE> 73
of the New York Business Corporation Law and the General Corporation Law of the
State of Delaware.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, and the mutual benefits hereby provided, it
is agreed by and between the parties hereto as follows:
1. Merger.
Old Aria shall be and hereby is merged into New Aria.
2. Effective Date.
This Agreement of Merger shall become effective immediately upon
compliance with the laws of the States of New York and Delaware, the
time of such effectiveness being hereinafter called the Effective
Date.
3. Surviving Corporation.
New Aria shall survive the merger herein contemplated and provided for
and shall continue to be governed by the laws of the State of
Delaware, but the separate corporate existence of Old Aria shall cease
forthwith upon the Effective Date.
4. Authorized Capital.
The authorized Capital Stock of New Aria following the effective date
shall be:
a. Twenty Million (20,000,000) Shares of Common Stock (par value
$.01 per share), of which Ten Thousand (10,000) Shares shall be
Class A Common Stock and Nineteen Million Nine Hundred Thousand
(19,900,000) Shares shall be Class B Common Stock, unless or
until the same shall be changed in accordance with the laws of
the State of Delaware.
b. Five Hundred Thousand (500,000) Shares of Preferred Stock (par
value $.01 per share) of which One Thousand Eight Hundred
Fifty- Three (1,853) Shares shall be designated as
Non-Convertible Preferred Stock, Series CR-I, of which
Forty-Eight Thousand Nine Hundred Fifty-One (48,951) Shares
shall be designated as Convertible Preferred Stock, Series
CR-II, and One Thousand (1,000) Shares of Preferred Stock shall
be designated as Non-Convertible Preferred Stock Series
BC-I, unless and until the same shall be changed in accordance
with the laws of the State of Delaware.
2
<PAGE> 74
5. Certificate Of Incorporation.
The Restated Certificate of Incorporation in the form set forth as
Appendix "A" hereto, which shall be filed with the Secretary of State
of Delaware prior to the filing of the Certificate of Merger pursuant
hereto, shall be the Certificate of Incorporation of Old Aria
following the effective date unless and until the same shall be
amended or repealed in accordance with the provisions thereof, which
power to amend or repeal is hereby expressly reserved, and all rights
or powers of whatsoever nature conferred in such Certificate of
Incorporation or herein upon any shareholder or Director or Officer of
New Aria or upon any other persons whomsoever are subject to the
reserve power. Such Certificate of Incorporation, shall constitute
the Certificate of Incorporation of New Aria separate and apart from
this Agreement of Merger and may be separately certified as the
Certificate of Incorporation of New Aria.
6. By-Laws.
The By-Laws of New Aria as they exist on the effective date shall be
the By-Laws of New Aria following the Effective Date unless and until
the same shall be amended or repealed in accordance with the
provisions thereof.
7. Board Of Directors and Officers.
The members of the Board of Directors and the Officers of New Aria,
immediately after the effective time of the merger, shall be those
persons who were members of the Board of Directors and the Officers,
respectively, of New Aria immediately prior to the Effective Date, and
such persons shall serve in such offices, respectively, for the terms
provided by law or in the By-Laws, or until their respective
successors are elected and qualified.
8. Further Assurance of Title.
If at any time New Aria shall consider or be advised that any
acknowledgements or assurances in law or other similar actions are
necessary or desirable in order to acknowledge or confirm in and to
New Aria any right, title or interest of Old Aria held immediately
prior to the Effective Date, Old Aria and its proper Officers and
Directors, shall and will execute and deliver all such
acknowledgements or assurances in law and do all things necessary or
proper to acknowledge or confirm such right, title or interest in New
Aria, as shall be necessary to carry out the purposes of this
Agreement of Merger, and New Aria and the proper Officer and Directors
thereof are fully authorized to take any and all such action in the
name of Old Aria or otherwise.
3
<PAGE> 75
9. Conversion of Outstanding Stock.
Forthwith upon the Effective Date:
(a) The Thirty-One Thousand (31,000) Shares of the Common Stock of
Old Aria presently held by New Aria, received from Comptek
Telecommunications, Inc. in connection with the consummation of
a certain Asset Acquisition Agreement, shall be retired and no
shares of Common Stock of New Aria or other securities of New
Aria shall be issued in respect thereof.
(b) The Twenty-Three Thousand (23,000) Shares of Common Stock of
Old Aria currently held by Rand Capital Corporation shall be
converted into 1,800 Shares of Class A Common Stock of New Aria
and 1,798,200 Shares of Class B Common Stock of New Aria, which
shall be fully paid and non-assessable, and each certificate
nominally representing shares of Class A and Class B Common
Stock of Old Aria shall for all purposes be deemed to be
evidence of the ownership of the indicated number of shares of
Class A and Class B Common Stock of New Aria.
(c) The Twenty-Three Thousand (23,000) Shares of Common Stock of
Old Aria presently held by Bydatel Corporation shall be
converted into 1,800 Shares of Class A Common Stock of New Aria
and 1,798,200 Shares of Class B Common Stock of New Aria, which
shall be fully paid and non-assessable and each certificate
nominally representing shares of Class A and Class B Common
Stock of Old Aria shall for all purposes be deemed to evidence
the ownership of the indicated number of shares of Class A and
Class B Common Stock in New Aria.
(d) Twelve Thousand Seven Hundred Seventy-Eight (12,778) Shares of
Common Stock of Old Aria presently held by Frank J. Perpiglia
shall be converted into 1,500 shares of Class A Common Stock of
New Aria and 998,500 Shares of Class B Common Stock of New
Aria, which shall be fully-paid and non-assessable and each
certificate nominally representing shares of Class A and Class
B Common Stock of Old Aria shall for all purposes be deemed to
evidence the ownership of the indicated number of shares of
Class A and Class B Common Stock of New Aria.
The holders of such certificates shall not be required immediately to
surrender the same in exchange for certificates of Class A and Class B
Common Stock in New Aria but, as certificates nominally representing
shares of Common Stock of Old Aria are surrendered for transfer, New
Aria will cause to be issued certificates representing shares of Class
A and Class B Common Stock of New Aria, and at any time upon surrender
by any holder of certificates nominally representing shares of Common
Stock of Old Aria, New Aria will cause to be issued therefore,
certificates for an appropriate number of shares of Class A and Class
B Common Stock of Old Aria.
4
<PAGE> 76
10. Rights and Liabilities of New Aria.
At and after the Effective Date, New Aria shall succeed to and
possess, without further act or deed, all of the estate, rights,
privileges, powers and franchises, both public and private, and all of
the property, real, personal, and mixed, of each of the parties
hereto; all debts due to Old Aria of whatever account shall be vested
in New Aria; all claims, demands, property, rights, privileges, powers
and franchises, and every other interest of either of the parties
hereto, shall be as effectively the property of New Aria as they were
of the respective parties hereto; the title to any real estate vested
by deed or otherwise in Old Aria shall not revert or be in any way
impaired by reason of the merger, but shall be vested in New Aria; all
rights of creditors and all liens upon any property of either of the
parties shall be preserved unimpaired, limited in lien to the property
effected by such lien at the effective time of the merger; all debts,
liabilities and duties of the respective parties hereto, shall
henceforth attach to New Aria and may be enforced against it to the
same extent as if such debts, liabilities, and duties had been
incurred or contracted by it; and New Aria shall indemnify and hold
harmless the Officers and Directors of each of the parties hereto
against all such debts, liabilities and duties and against all claims
and demands arising out of the merger.
11. Book Entries.
The merger contemplated hereby shall be treated as a pooling of
interests and as of the Effective Date, entries shall be made upon the
books of New Aria in accordance with Generally Accepted Accounting
Principles reflecting such treatment.
12. Service of Process on New Aria.
New Aria agrees that it may be served with process in the State of New
York in any proceeding for enforcement of any obligation of Old Aria
as well as for the enforcement of any obligation of New Aria arising
from the merger, including any suit or other proceeding to enforce the
right of any shareholder as determined in appraisal proceedings
pursuant to the provisions of Section 910 of the Business Corporation
Law of the State of New York.
13. Termination.
This Agreement of Merger may be terminated and abandoned by action of
the Board of Directors of either Old Aria or New Aria at any time
prior to the effective date, whether before or after approval by the
shareholders of the two corporate parties hereto.
5
<PAGE> 77
14. Plan of Reorganization.
This Agreement of Merger constitutes a Plan of Reorganization to be
carried out in the manner, on the terms, and subject to the conditions
set forth herein, and pursuant to a certain Reorganization Agreement
dated as of March 10, 1995, as Reinstated and Amended by Agreement
dated May 9, 1995, by and among Old Aria, New Aria, and the
shareholders of each.
15. Expenses.
New Aria shall pay all expenses of carrying this Agreement of Merger
into effect and of accomplishing the merger.
IN WITNESS WHEREOF, each of the corporate parties hereto,
pursuant to authority duly granted by their respective Boards of Directors,
have caused this Agreement of Merger to be executed by their respective
Presidents and attested by their respective Secretaries, and their respective
corporate seals to be hereunto affixed.
ARIA WIRELESS SYSTEMS, INC.,
a New York Corporation
By:_____________________________________
Attest:
__________________________
ARIA WIRELESS SYSTEMS, INC.,
a Delaware Corporation
By:_____________________________________
Attest:
__________________________
6
<PAGE> 78
CERTIFICATE OF
THE SECRETARY OF ARIA WIRELESS SYSTEMS, INC.
(A Delaware Corporation)
I, Christopher A. Head, the Secretary of Aria Wireless Systems,
Inc., hereby certify that the Agreement of Merger to which this Certificate is
attached, after having been first duly signed on behalf of the corporation by
the President and Secretary under the corporate seal of said corporation, was
duly approved and adopted by written consent in lieu of a meeting dated May 9,
1995, pursuant to Section 228 of the Delaware General Corporation Law by the
holders of all the outstanding stock entitled to vote thereon.
Witness my hand and seal of said Aria Wireless Systems, Inc.
this 9th day of May, 1995.
________________________________________
Secretary
Seal
CERTIFICATE OF
THE SECRETARY OF ARIA WIRELESS SYSTEMS, INC.
(A New York Corporation)
I, Christopher A. Head, the Secretary of Aria Wireless Systems,
Inc., hereby certify that the Agreement of Merger to which this Certificate is
attached, after having been first duly signed on behalf of the corporation by
the President and Secretary under the corporate seal of said corporation, was
duly approved and adopted by written consent in lieu of a meeting dated May 9,
1995, pursuant to Section 615 of the New York Business Corporation Law by the
holders of all the outstanding stock entitled to vote thereon.
Witness my hand and seal of said Aria Wireless Systems, Inc.
this 9th day of May, 1995.
________________________________________
Secretary
Seal
7
