<PAGE>
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-KSB
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: February 27, 1996
DYNATEC INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0367267
---------------------------- --------------------
(State or other jurisdiction (I.R.S. Employer
or incorporation or Identification No.)
organization)
0-12806
------------------------
(Commission File Number)
3594 West 1820 South
Salt Lake City, UT 84104
--------------------- ----------
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code: (801) 973-9500
--------------
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ITEM 5. OTHER EVENTS.
On January 12, 1996, the registrant formed a Utah limited liability Company
by the name of WiTec Industries, L.L.C. ("WiTec"). Pursuant to the Operating
Agreement of WiTec, the registrant will engage in a joint venture enterprise to
market and sell electronic components consisting principally of telephone
headsets and telephone amplifier products. WiTec will also be involved in the
research and development of a new generation of products. The existing products
of WiTec are listed on Exhibit 99 attached hereto.
WiTec will draw on the experience of the principals of Weiser
Telecommunications, Inc., a California corporation, which owns a minority
position in WiTec. WiTec anticipates initiating the manufacture of a new
generation of headsets and telephone amplifier products which will be used for
similar purposes and markets as the earlier generation products of Weiser
Telecommunications. In its marketing efforts, WiTec will be able to utilize the
established telephone accessory sales distribution system of the registrant.
Based upon this distribution system, management of WiTec anticipates selling a
larger volume of products in the remaining ten months of calendar year 1996,
than Weiser Telecommunications sold in calendar year 1995.
The registrant announced the formation of WiTec and the joint venture
relationship in a press release dated January 18, 1996. A copy of the press
release is attached hereto as Exhibit 19 and is incorporated herein by this
reference.
A copy of the Articles of Organization and of the Operating Agreement of
WiTec are attached hereto as Exhibit 10. The Operating Agreement sets forth the
general terms of the joint venture relationship between the members of WiTec.
The attached Operating Agreement includes the first two schedules of the
document which describe the capital contribution of the members and the
percentage ownership of the members of WiTec. The names of the other schedules
to the Operating Agreement are included with this filing. However, the
schedules are voluminous and have not been included as attachments to this
filing. Those schedules which are not of a proprietary nature are available to
the Securities and Exchange Commission upon request of the Commission.
Pursuant to the Operating Agreement, management of WiTec shall be by a vote
of the majority of the members (see paragraph 3.5 of the Operating Agreement).
Management of day to day operations of WiTec shall be by an advisory committee
of six individuals, three of which are officers and directors of Dynatec and
three of which are officers and directors of Weiser Telecommunications (see
paragraph 3.1 of the Operating Agreement).
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The registrant's interest in WiTec is 48%, subject to adjustment as
provided below. The other members of the limited liability company are Weiser
Telecommunications (owning a 2% interest); Margaret Weiser, the President of
Weiser Telecommunications, (owning a 2% interest); and Muito Bem Ltd., an
Arizona limited partnership (owning a 48% interest, subject to adjustment as
provided below). Muito Bem is an affiliate of the CEO and Chairman of the Board
of Directors of the registrant. The registrant and Muito Bem have reserved the
right to adjust their ownership interest in WiTec based upon the evaluation of
the capital contributions of the registrant and Muito Bem, as determined by the
independent non-employee members of the Board of Directors of the registrant.
Pursuant to Article 12 of the Operating Agreement, provision is made for
the merger of WiTec into Dynatec after the conclusion of calendar year of 1997.
Under certain circumstances, the merger may take place at an earlier date.
There are material conditions to the merger based upon the performance of WiTec
and other factors. These conditions may not be satisfied and the merger may
not, in fact, be consummated.
Pursuant to the merger and the employment agreements of Isaac Weiser and
Margrette Weiser, sufficient shares of stock of Dynatec may be issued which
would technically trigger a change in the control of the registrant. Because of
the substantial contingencies, no assurance can be given that a change in
control will in fact occur. The occurrence of such event would be after the
date of the merger, if consummated.
Weiser Telecommunications has been engaged in the assembly, manufacture and
distribution of the products listed in Exhibit 99 attached hereto. The
patents, technology and trademarks of Weiser Telecommunications have been
exclusively licensed to WiTec. At the time of the merger transaction described
herein, such patents, technology and trademarks will be contributed to WiTec and
then become assets of the registrant.
In addition to securing the license to the patents, technology and
trademarks of Weiser Telecommunications, WiTec has secured employment agreements
with Margaret Weiser and Isaac Weiser. Management of the registrant believes
that such employment agreements will enable WiTec to develop the necessary
technology for a new generation of electronic components.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
a. Financial Statement: None
b. Pro Forma Financial Information: None
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WORKING DRAFT
DISCUSSION PURPOSES ONLY
The most current 10-QSB report was filed on November 10, 1995, for the
quarter ending September 30, 1995.
The registrant proposes to file a transitional report for the calendar year
ending December 31, 1995 on Form 10-KSB. Thereafter, the next regular 10-QSB
quarterly report will be based upon the new annual calendar fiscal year and will
be reported for the months of January, February and March 1996. The 10-QSB will
be filed no later than May 15, 1996 with continuing quarterly reports due each
quarter thereafter. The next regular annual report on Form 10-KSB will be filed
for the calendar year ending 1996.
Attachments:
DATED this 27 day of February, 1996.
DYNATEC INTERNATIONAL INC.
By /s/ Illegible
--------------------------
Chairman and CEO
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EXHIBIT INDEX
Page
----
Exhibit 10
Articles of Organization of WiTec Industries, L.L.C. 8
Operating Agreement of WiTec Industries, L.L.C. 11
Exhibit 19
January 18, 1996 Press Release 6
Exhibit 99
List of Products of WiTec Industries, L.L.C. 7
Page 5-40
<PAGE>
Exhibit 10
UTAH LIMITED LIABILITY COMPANY
ARTICLES OF ORGANIZATION
OF
WITEC INDUSTRIES, L.L.C.
The undersigned members do hereby adopt the following Articles of
Organization for the purpose of forming a Utah Limited Liability Company, to
wit:
1. NAME. The name of the Company shall be WiTec Industries, L.L.C.
2. DURATION. The Company shall continue for thirty (30) years from the
execution date of these Articles of Organization, unless sooner dissolved by:
(a) the affirmative vote of Members holding a ninety-eight percent
interest in the Company;
(b) the acquisition by one Member of all of the outstanding
Interests;
(c) the election of Dynatec to dissolve the Company upon thirty days
written notice to the Members, in the event (a) that as of July 31, 1996 the
financial statements of the Company, prepared in accordance with generally
accepted accounting principles, show a loss of $450,000 or more; or (b) any of
the representations of Weiser or of Margaret Weiser, as set forth in paragraphs
11.2 and 11.3 of the Operating Agreement are not true and correct as of the
date that Weiser or Margaret Weiser execute all necessary documentation to
complete their Capital Contribution to the Company (notice of this election must
be given within nine months of the formation of the Company);
(d) the expulsion, bankruptcy or dissolution of a Member or the
occurrence of any other event that terminates the continued membership of a
Member in the Company, except as provided below in this paragraph;
(e) the election of Weiser to dissolve the Company upon thirty days
written notice to the Members in the event any of the representations of
Dynatec, as set forth in paragraph 11.1 of the Operating Agreement are not true
and correct as of the date that Dynatec executes all necessary documentation to
complete its Capital Contribution to the Company (notice of this election must
be given within nine months of the formation of the Company);
Page 8-40
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(f) the completion of the merger transaction described in paragraph
twelve of the Operating Agreement; or
(g) any other event causing a dissolution of a limited liability
company under the Act.
Notwithstanding the foregoing provisions of this Article, and upon the
occurrence of an event described in paragraph 2(d), the remaining Members have
the right to continue the business of the Company, but not to exceed the maximum
period of thirty (30) years. Such right can be exercised only by the
affirmative vote of the remaining Members, holding a majority of the percentage
interests in the Company, within three (3) months after written notice to the
Company of the occurrence of an event described in paragraph 2(d). If not so
exercised, the right of the Members to continue the business of the Company
shall expire and the Company's affairs shall be wound up as provided in the
Operating Agreement of the Company.
3. BUSINESS PURPOSE. The business purpose for which the Company is
organized is to engage in the business designated in its Operating Agreement,
and to engage in any other lawful business permitted by law.
4. REGISTERED AGENT. The Company shall continuously maintain an agent in
the State of Utah for service of process who is an individual residing in said
state. The name and street address of the initial registered agent shall be
David White at 1820 North 3594 West, Salt Lake City, Utah 84104.
Acceptance of Appointment:
/s/ David White
--------------------------
The Director of the Division of Corporations and Commercial Code of the
Department of Commerce for the State of Utah is appointed the registered agent
of the Company for service of process if the registered agent has resigned, the
registered agent's authority has been revoked, or the registered agent cannot be
found or served with the exercise of reasonable diligence.
5. MANAGEMENT. The Company shall be managed by its Members and pursuant
to the terms of the Operating Agreement, or any amendments thereto. The Company
may designate a Manager with authority to act for the Members.
Psage 9-40
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6. MEMBERS. The names and street addresses of the members who shall
constitute the initial Members of the Company are as follows:
Weiser Telecommunications, Inc. Dynatec International, Inc.
a California corporation a Utah corporation
2630 Townsgate No. E 1820 North 3594 West
Westlake Village, California 91361 Salt Lake City, Utah 84104
Muito Bem Ltd. Margaret Weiser
1820 North 3594 West 4760 Corbin Avenue
Salt Lake City, Utah 84104 Tarzana, California 91356
7. CONTRIBUTIONS. No Member shall be obligated to make any contribution
to the Company except those specifically set forth in the Operating Agreement
adopted by the Members of the Company.
8. AMENDMENTS. The Articles of Organization shall be amended from time
to time as required by Section 48-2b-121, Utah Code Annotated.
9. OPERATING AGREEMENT. The Members shall enter into an Operating
Agreement which shall set forth additional terms and conditions relating to the
management, operation and ownership of the Company.
IN WITNESS WHEREOF, the undersigned execute these Articles of Organization
and certify to the truth of the facts herein stated this 12th day of January,
1996.
MUITO BEM, LTD. DYNATEC INTERNATIONAL, INC.
BY /s/Don Wood BY /s/ F. R. Jack
------------------------- --------------------------
Its: General Partner Its: President
Page 10-40
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OPERATING AGREEMENT
WITEC INDUSTRIES, L.L.C.
A UTAH LIMITED LIABILITY COMPANY
Page 11-40
<PAGE>
TABLE OF CONTENTS
1. Formation, Purpose and Definitions........................................ 1
1.1. Formation.......................................................... 1
1.2. Intent............................................................. 1
1.3. Purpose............................................................ 1
1.4. Definitions........................................................ 1
2. Capital Contributions..................................................... 2
2.1. Capital Contributions.............................................. 3
2.2. Capital Accounts................................................... 3
2.3. Non-Cash Capital Contributions..................................... 3
2.4 Redemption of Capital Contributions................................ 3
2.5. Return of Capital Contributions.................................... 4
3. Management. ............................................................... 4
3.1. General Management................................................. 4
3.2. Specific Management Responsibilities............................... 4
3.3. Bank Accounts...................................................... 5
3.4. Actions Requiring Supermajority.................................... 5
3.5. Voting............................................................. 6
3.6. Employment and Salaries of Certain Individuals..................... 6
3.7. Consulting Agreement............................................... 7
3.8. Management Fee..................................................... 7
3.9. Participation in Dynatec Management................................ 7
3.10. Non-Exclusivity................................................... 7
4. Meetings.................................................................. 7
4.1. Meetings........................................................... 7
4.2. Place of Meetings, Principal Office................................ 7
4.3. Notice of Meetings................................................. 7
4.4. Meeting of All Members............................................. 8
4.5. Record Date........................................................ 8
4.6. Quorum............................................................. 8
4.7. Proxies............................................................ 8
4.8. Action by Members Without a Meeting................................ 8
4.9. Telephonic Communication........................................... 9
4.10. Waiver of Notice.................................................. 9
4.11. Manner of Acting.................................................. 9
5. Allocation of Profits and Losses; Distributions........................... 9
5.1. Profits and Losses................................................. 9
5.2. Distributions...................................................... 9
6. Books and Records........................................................ 11
6.1. Books and Records................................................. 11
6.2. Access to books and Records....................................... 11
7. Restrictions on Transferability.......................................... 11
7.1. Transferability................................................... 11
7.2. Right of First Refusal............................................ 12
7.3. Conditions Precedent.............................................. 12
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8. Admissions and Withdrawals............................................... 13
8.1. Admissions of Members............................................. 13
8.2. No Right to Voluntarily Withdrawal................................ 13
8.3. Distribution Upon Withdrawal...................................... 13
9. Dissolution and Termination.............................................. 14
9.1. Dissolution....................................................... 14
9.2. Effect of Dissolution............................................. 15
9.3. Winding Up, Liquidation and Distribution of Assets................ 15
9.4. Articles of Termination.......................................... 16
9.5. Return of Capital Contribution................................... 16
10. Indemnity............................................................... 16
11. Representations of the Members.......................................... 17
11.1. Representations of Dynatec....................................... 17
11.2. Representations of Weiser........................................ 19
11.3. Representations of Margaret Weiser .............................. 26
12. Merger.................................................................. 31
12.1 Date of Merger..................................................... 31
12.2 Consideration for Merger.......................................... 31
12.3 Conditions for Merger............................................. 33
13. Loans by Dynatec........................................................ 34
14. Options for Key Employees............................................... 34
15. Amendment............................................................... 34
16. Arbitration............................................................. 35
17. Miscellaneous Provisions................................................ 35
17.1. Entire Agreement................................................. 35
17.2. Notices.......................................................... 35
17.3. Application of Utah Law.......................................... 35
17.4. Construction..................................................... 35
17.5. Headings......................................................... 35
17.6. Waivers.......................................................... 36
17.7. Rights and Remedies Cumulative................................... 36
17.8. Severability..................................................... 36
17.9. Heirs, Successors and Assigns.................................... 36
17.10. Creditors........................................................ 36
17.11. Attorneys' Fees.................................................. 36
17.12. Counterparts..................................................... 36
17.13. Conflicts of Interest............................................ 36
Page 13-40
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THIS OPERATING AGREEMENT ("Agreement") is made and entered into on this
_____ day of March, 1996, by and among the Members of WiTec Industries, L.L.C.,
L.L.C., as described herein.
1. FORMATION, PURPOSE AND DEFINITIONS
1.1. FORMATION. Pursuant to the Utah Limited Liability Company Act,
Sections 48-2b-101 et seq., U.C.A. (the "Act"), the parties have agreed to form
WiTec Industries, L.L.C., a Utah limited liability company (the "Company"). The
initial Members of the Company are Weiser Telecommunications, Inc. ("Weiser"),
Margaret Weiser, Dynatec International, Inc. ("Dynatec"), and Muito Bem Ltd.
("MBL"). Dynatec and MBL shall jointly be referred to as the "Dynatec Group".
Weiser and Margaret Weiser shall jointly be referred to as the "Weiser Group".
The Members (as defined in paragraph 1.4, INFRA) have executed this Agreement to
serve as the "Operating Agreement" of the Company, as that term is referred to
in Section 48-2b-126, U.C.A. Subject to any applicable restrictions set forth
in the Act, the business and affairs of the Company, and the relationships of
the Members to one another, shall be governed by the terms and conditions set
forth in this Agreement. The parties shall execute all amendments to the
Articles of Organization, and do all filings, publication, recording and other
acts as may be appropriate from time to time hereafter to comply with the
requirements of the Act.
1.2. INTENT. It is the intent of the Members that the Company shall
always be operated in a manner consistent with its treatment as a "partnership"
for federal and state income tax purposes, but that the Company shall not be
operated or treated as a "partnership" for purposes of Section 303 of the United
States Bankruptcy Code. No Member shall take any action inconsistent with the
express intents of the parties hereto.
1.3. PURPOSE. The initial purpose of the Company is to (a) manufacture
and market consumer products including but not limited to headsets, amplifiers
and other products now distributed by Weiser Telecommunications, Inc., a Member
of the Company; and (b) secure additional financing for the purposes of the
Company.
1.4. DEFINITIONS. Whenever used in this Agreement, the following terms
shall have the following meanings:
1.4.1. "Act" shall mean the Utah Limited Liability Act, as it may be
amended from time to time.
1.4.2. "Agreement" shall mean this written Operating Agreement, as
amended from time to time in the manner provided herein.
1.4.3. "Articles" shall mean the Articles of Organization of the
Company as filed with the Utah Division of Corporation and Commercial Code
as amended or restated from time to time pursuant to the Act.
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1.4.4. "Capital Account" shall mean the account established and
maintained for each Member in accordance with this Agreement and applicable
Treasury Regulations.
1.4.5. "Capital Contribution" shall mean any contribution to the
capital of the Company in cash, property or services by a Member, whenever
made.
1.4.6. "Code" and "Treasury Regulations" shall mean the Internal
Revenue Code of 1986, as amended from time to time, and regulations
promulgated thereunder.
1.4.7. "Interest" in the Company shall mean a Member's share of the
profits and losses of the Company, the right to receive distributions from
the Company and the right to vote as a Member.
1.4.8. "Majority in Interest" shall mean a simple majority of the
Percentage Interests, based upon an analysis of those Members qualified to
vote as set forth in paragraph 3.6, INFRA.
1.4.9 . "Member" shall mean each person identified in paragraph 14.2,
INFRA, and any person who is admitted as a Member in the manner provided
herein.
1.4.10. "Percentage Interest" shall be the percentage interest of a
Member in the profits and losses of the Company set forth in paragraph 5,
INFRA.
1.4.11. "Person" shall mean any individual and any legal entity, and
their respective heirs, executors, administrators, legal representatives,
successors, and assigns.
1.4.12. "Supermajority in Interest" shall mean ninety eight percent
of the Percentage Interests, based upon an analysis of those Members
qualified to vote as set forth in paragraph 3.6, INFRA.
2. CAPITAL CONTRIBUTIONS
2.1. CAPITAL CONTRIBUTIONS. The parties agree that each Member has made
the Capital Contributions to the Company, all as set forth in Schedule 2.1
attached hereto and incorporated herein by this reference. Such contributions
include cash, personal property, letters of credit, trademarks, patents,
technology and proprietary information.
2.2. CAPITAL ACCOUNTS. A Capital Account shall be maintained for each
Member in accordance with the applicable requirements of the Treasury
Regulations.
2.3. NON-CASH CAPITAL CONTRIBUTIONS. Any Capital Contribution consisting
of property or services, rather than cash,
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must be approved in advance by a Supermajority in Interest of the Members.
2.4. REDEMPTION OF CAPITAL CONTRIBUTIONS. In the event that any of the
Capital Contributions of the Members shall become subject to attachment or the
control of any person or entity other than the Company by reason of any action
or liability of the Member contributing such assets, the Members shall have the
following rights:
2.4.1. With regard to any asset contributed by the Dynatec Group, the
Dynatec Group shall have the first right to safeguard the asset for the use of
the Company by securing the release of the attachment, or purchase the asset
from the person or entity having control thereof. If the Dynatec Group fails to
exercise this right in a manner considered timely by the Weiser Group to
safeguard the asset for the use of the Company, the Weiser Group shall have the
right to secure the release of the attachment, or purchase the asset from the
person or entity having control thereof. In such later, event all compensation,
management fees and Company distributions to be made to the Dynatec Group after
such event shall be first paid to the Weiser Group to reimburse the Weiser Group
for its expenditures, including interest, attorneys fees and other costs,
expended in safeguarding the described assets for the use of the Company.
2.4.2. With regard to any asset contributed by the Weiser Group, the
Weiser Group shall have the first right to safeguard the asset for the use of
the Company by securing the release of the attachment, or purchase the asset
from the person or entity having control thereof. If the Weiser Group fails to
exercise this right in a manner considered timely by the Dynatec Group to
safeguard the asset for the use of the Company, the Dynatec Group shall have the
right to secure the release of the attachment, or purchase the asset from the
person or entity having control thereof. In such later event, all compensation,
consulting fees and Company distributions to be made to the Weiser Group, or to
Isaac Weiser or Margaret Weiser, after such event shall be first paid to the
Dynatec Group to reimburse the Dynatec Group for its expenditures, including
interest, attorneys fees and other costs, expended in safeguarding the described
assets for the use of the Company, except for any obligation owing by Weiser to
S.P. Richards as of the date of this Agreement. In the event that all such
expenditures are not fully reimbursed within one year of the date of
expenditure, Dynatec shall be entitled to cancel a sufficient number of shares
of Dynatec stock issued pursuant to the terms of this Agreement from any
recipient of shares as designated by the Dynatec Group to equal the unpaid
expenditures. The value of the Dynatec stock, for purposes of this action,
shall be the average of the bid price of the stock as quoted on NASDAQ for the
twenty trading days prior to the cancellation of the shares as provided herein.
If the Weiser Group, and Isaac Weiser and Margaret Weiser no longer own
sufficient Dynatec shares to fully reimburse these
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expenditures, then such recipients of the Dynatec shares shall be jointly and
severally liable for any unreimbursed expenditures.
2.5. RETURN OF CAPITAL CONTRIBUTIONS. In the event of a termination and
dissolution of the Company under paragraphs 9.1.1.3 or 9.1.1.5, the Members
shall receive a return of their capital contribution as described in Schedule
2.1. No Member shall have a claim for the return of (a) purchase orders that
were filled by the Company between the date of the formation of the Company and
the date of dissolution; (b) the proceeds derived therefrom; (c) equipment or
any other assets acquired by the Company after its formation; or (d) trade
names, trademarks, copyrights, patents, patent rights and trade secrets
developed by the Company prior to the date of dissolution. All such assets and
rights shall be distributed to the Members pursuant to the other dissolution
provisions of this Agreement.
3. MANAGEMENT.
3.1. GENERAL MANAGEMENT. Except as provided in paragraphs 3.2, 3.3 and
3.4, and provided that Isaac Weiser and Margaret Weiser control Weiser, and own
and have unrestricted authority to vote all of the issued and outstanding shares
of Weiser stock, all of the general decisions of the Company shall be made by
the majority vote of the Members of the Company. In the event Isaac Weiser and
Margaret Weiser shall not have such control, ownership and authority, all of
the general decisions of the Company will be made by the vote of a Majority in
Interest of the Company. The Members shall meet periodically to review business
affairs and vote on all policy decisions and to amend, alter, and direct the
instructions and authority granted to any of the Members to conduct day-to-day
affairs as defined herein. The Company shall also form a six member advisory
committee to analyze, discuss, communicate information and make non-binding
recommendations regarding the operations of the Company. No action of the
Advisory Committee shall override the authority or supervisory responsibilities
designated in paragraphs 3.1 or 3.3 hereof. Three members of the Advisory
Committee will be designated by the unanimous agreement of the Weiser Group, and
three members will be designated by the unanimous agreement of the Dynatec
Group. The initial Weiser members of the Advisory Committee are Isaac Weiser,
Margaret Weiser and Michael Weiser. The initial Dynatec members of the Advisory
Committee are Don Wood, Randy Jack and David White.
3.2. SPECIFIC MANAGEMENT RESPONSIBILITIES. Unless amended by a
Supermajority in Interest, the Members shall be obligated and authorized to
perform the following functions pursuant to the terms of the Agreement:
3.2.1. The Weiser members of the Advisory Committee shall do the
following, subject to the general management provisions of the paragraph 3.1:
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3.2.1.1. Research and develop new products, existing product ideas,
product lines and improvements in the existing products of the Company.
3.2.1.2. Consult with Dynatec and Company employees regarding
marketing, manufacturing and product assembly functions and activities of
the Company.
3.2.1.3. Have the primary responsibility to provide on-site
supervision of manufacturing, and product assembly, return and repair
functions.
3.2.1.4. Have the primary responsibility for the sourcing of
components and the purchase of components, raw materials and inventory for
the manufacturing and product assembly functions.
3.2.1.5 Have the primary responsibility for hiring and supervision of
manufacturing and product assembly.
3.2.2. The Dynatec members of the Advisory Committee shall do the
following, subject to the general management provisions of paragraph 3.1:
3.2.2.1. Conduct the hiring and supervision of sales employees and of
independent sales representatives, and supervise the marketing of the
Company, and distribution of the products of the Company.
3.2.2.2. Supervise operations regarding the development and securing
of financing for the operations of the Company.
3.2.2.3. Have the primary responsibility to provide budgeting, and
shall provide accounting functions for the Company.
3.2.2.4. Perform all record keeping and payroll functions, including
the computation of gross payroll, FICA, SUTA, FUTA, workers compensation,
insurance premiums and all other applicable government taxes and/or
assessments required to be computed against said gross payroll.
3.3 BANK ACCOUNTS. All funds advanced by the Members or borrowed on the
account of the Company, and all revenues from the business of the Company shall
be deposited directly to the account or accounts of the Company established at
such bank or banks as the Members may designate. Checks may be drawn on said
accounts by signature of David White, or his designee, and by such other persons
as may be agreed upon from time to time by a Supermajority in Interest.
3.4. ACTIONS REQUIRING APPROVAL OF A SUPERMAJORITY IN INTEREST. In
addition to those actions specified elsewhere in this
Page 5-40
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Operating Agreement, the following actions shall not occur without first
obtaining the approval of a Supermajority in Interest:
3.4.1. Pay or commit to pay any extraordinary expenses of the Company
in excess of $300,000 in the aggregate in any one calendar year;
3.4.2. Incur any indebtedness, commitment, obligation or liability in
excess of $300,000;
3.4.3. Sell all or any part of the Company's property or acquire or
sell any other property, where the value of the property sold or acquired
exceeds $50,000.
3.4.4. Sell any Interest in the Company.
3.4.5. Make distributions of net available cash, except as provided
in paragraph 5.2.1.
3.5. VOTING. Except as provided in paragraph 3.1, each Member shall have
one vote for each share of their Interest in the Company, all as set forth in
the Membership Percentage Interests, Schedule 5.1. Additionally, to be
qualified to vote a Member must be present, by person or in proxy, at a Member
meeting as set forth in paragraph 4.
3.6. EMPLOYMENT AND SALARIES OF CERTAIN INDIVIDUALS. The Members agree
that as provided herein, Isaac Weiser and Margaret Weiser shall be executive
employees of the Company and shall devote their full business time and effort to
the Company, and its interests. As employees of the Company, they will execute
the standard Confidentiality and Inventions Agreement that defines the
relationship of employees and the Company with regard to proprietary information
and inventions. As employees of the Company, they may continue to serve on
boards of directors and they may participate in charitable organizations and
activities and pursue other family business interests which are not in any way
in conflict with the business of the Company, and which do not interfere with
the performance of their duties hereunder.
3.6.1. Until the earlier of (a) the termination of the Company, or
(b) three years from the date of this Agreement, Isaac Weiser and Margaret
Weiser shall each receive a gross annual salary of $50,000 or of such other
greater amount as approved by a Supermajority in Interest, payable in equal
monthly installments. The Company shall enter into written employment
agreements which provide for the salary referred to herein and shall include
health and other benefits as deemed appropriate by the Advisory Committee.
3.6.2. Provided that during the two year period following the
execution of this Agreement Michael Weiser (a) continues to serve on the
Advisory Committee of the Company, (b) works for the Company on a part time
basis, as his school schedule permits, until the date of his graduation from the
University of
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Southern California (USC), (c) graduates from USC with an undergraduate degree
in his current major, and (d) agrees to work full time for the Company upon
graduation pursuant to a written employment agreement of at least one year in
duration, the Company will reimburse him for the tuition costs of his last
academic year at USC.
3.7. MANAGEMENT FEE. Dynatec shall receive each year a fee of $200,000 for
providing certain management functions as described in this Agreement, payable
in equal quarterly installments. Only two quarterly payments will be due and
payable from the date of the inception of the Company until August 1, 1996.
Dynatec, at its option, may elect to defer the payment of these management fees.
3.8. PARTICIPATION IN DYNATEC MANAGEMENT. At the next regularly scheduled
annual shareholders' meeting of Dynatec, Dynatec shall use its best efforts to
secure an increase in the number of Dynatec board members from five to seven.
Upon completion of such action, and during the time that either Isaac or
Margaret Weiser is an employee of the Company or of Dynatec, Dynatec shall
nominate with its proposed management slate of directors one person designated
by the Weiser Group to serve as a member of the board of directors of Dynatec.
Until formal action is taken to place a Weiser Group designee on the Dynatec
board of directors, a representative of Weiser may participate in Dynatec board
meetings as a non-voting observer.
3.9. NON-EXCLUSIVITY. Except as provided in Schedule 2.1, the Members have
no exclusive duty to the Company. Except as provided in Schedule 2.1, neither
the Company nor any Member shall have any right, solely by virtue of this
Agreement or its relationship to the Company, to share or participate in any
such other investments or activities of any other Member, or to the income or
proceeds derived therefrom.
4. MEETINGS
4.1. MEETINGS. Unless otherwise specified herein or prescribed by the
Act, meetings of the Members may be called, for any legitimate company business
purpose, by any Member. For one year from the date of this Agreement, the
Company shall hold meetings at least monthly.
4.2. PLACE OF MEETINGS, AND PRINCIPAL OFFICE. Unless changed by the vote
of a Supermajority in Interest, the place of meeting for any meeting of the
Members shall be at the general office of a Member, as designated by the Member
calling the meeting. The principal office of the Company shall be the Dynatec
corporate offices, unless changed by a Supermajority in Interest.
4.3. NOTICE OF MEETINGS. Except as provided in paragraph 4.4, INFRA,
written notice stating the date, time and place of the meeting, and the purpose
or purposes for which the meeting is called, shall be delivered either
personally or by mail not less
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than three business days, if delivered personally, or seven days if by mail, nor
more than fifty days before the date of the meeting, by or at the direction of
the Member calling the meeting, to each Member entitled to vote at such meeting.
If mailed, such notice shall be deemed to be delivered when deposited in United
States mail, postage prepaid, addressed to the Member at its address as it
appears on the books of the Company. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting, if the time
and place thereof are announced at the meeting at which the adjournment is
taken, unless the adjournment is for more than thirty days. At the adjourned
meeting the Company may transact any business which might have been transacted
at the original meeting. Notwithstanding the above, at any meeting in which an
action requiring the approval of a Supermajority in Interest is considered, the
Company shall obtain and file written confirmation of receipt of notice from the
Member, or the Member's office personnel. Absent said notice confirmation, no
action necessitating a Supermajority in Interest shall be considered at the
meeting.
4.4. MEETING OF ALL MEMBERS. If all of the Members shall meet at any time
and place, either within or outside the state of Utah or California, and consent
to the holding of a meeting at such time and place, such meeting shall be valid
without call or notice.
4.5. RECORD DATE. For the purpose of determining Members entitled to
notice of or to vote at any meeting of Members or any adjournment thereof, or
Members entitled to receive payment of any distribution, or in order to make a
determination of Members for any other purpose, the date on which notice of the
meeting is mailed or the date on which the resolution declaring such
distribution is adopted, as the case may be, shall be the record date for such
determination of Members. When a determination of Members entitled to vote at
any meeting of Members has been made as provided in this paragraph, such
determination shall apply to any adjournment thereof, unless notice of the
adjourned meeting is required to be given pursuant to paragraph 4.3., SUPRA.
4.6. QUORUM. A Majority in Interest of the Members, represented in person
or by proxy, shall constitute a quorum at any meeting of Members. Business may
be conducted once a quorum is present. If, during a duly noticed and commenced
meeting, the quorum is lost, the Members may continue to meet and confer, but no
action may be taken until the quorum is regained or at a subsequent meeting.
4.7. PROXIES. At all meetings of Members, a Member may vote in person or
by proxy executed in writing by the Member or by a duly authorized attorney-in-
fact. Such proxy shall be filed with the Company before or at the time of its
exercise. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
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4.8. ACTION BY MEMBERS WITHOUT A MEETING. Any action required or
permitted to be taken at a meeting of Members may be taken without a meeting if
the action is evidenced by one or more written consent(s) describing the action
taken, signed by a Majority in Interest of the Members (or a Supermajority, if
required under this Agreement) and delivered to the Company for inclusion in the
minutes or for filing with the Company records. Action taken under this
paragraph is effective when a Majority in Interest of the Members (or a
Supermajority, if required under this Agreement) have signed the consent, unless
the consent specifies a different effective date. The record date for
determining Members entitled to take action without a meeting shall be the date
the first Member signs a written consent.
4.9. TELEPHONIC COMMUNICATION. Members are entitled to participate in and
hold a meeting by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in such meeting shall constitute attendance and
presence in person, except where the Member participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
the meeting is not lawfully called or convened.
4.10. WAIVER OF NOTICE. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the Member entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice.
4.11. MANNER OF ACTING. The manner of acting during a meeting shall be as
that prescribed in paragraph 3, SUPRA.
5. ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS.
5.1. PROFITS AND LOSSES. Unless otherwise agreed to by the Members as set
forth in this article, the Members shall share in the profits and losses of the
Company in accordance with their respective Percentage Interests, all as set
forth in Schedule 5.1 attached hereto and incorporated herein by this reference.
The members of the Dynatec Group reserve the right to make minor adjustments
between their ownership interests without affecting their aggregate ownership of
the Company.
5.2. DISTRIBUTIONS. Unless otherwise specifically provided herein, all
distributions of cash or other property shall be made to the Members in
accordance with their Percentage Interests.
5.2.1. Within 30 days of the filing of the Company's tax return, any
net available capital of the Company may be distributed to the Members (in
accordance with their Percentage Interest), as determined by a vote of one
hundred percent of the Percentage Interests, except as otherwise provided
herein. In any event, the Company will distribute out of net available cash
sufficient funds
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to pay the tax obligations of its Members, or of the partners of its Members, on
income generated by the Company. Because these tax obligations may vary, and
because all such distributions shall be made in accordance with the Percentage
Interests of the Members, distributions of net cash available shall be
sufficient to satisfy the described tax obligations of the Member with the
greatest such obligation.
5.2.2. As used in this Agreement, the term "net available cash" at
any time shall mean cash on hand at such time, less such reserves deemed
necessary by the Company for existing and anticipated requirements of the
business; anything in the foregoing to the contrary notwithstanding, "net
available cash" shall not include any funds the distribution of which the
Company reasonably determines would not be in the best interests of the Company.
5.2.3. No Member shall be entitled to interest on the Member's
Capital Contribution or to the return of the Member's Capital Contribution,
except as otherwise specifically provided herein.
5.2.4. QUALIFIED INCOME OFFSET. In the event any Member, in such
capacity, unexpectedly receives any adjustments, allocations, or distributions
described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4) (regarding
depletion deductions), 1.704-1(b)(2)(ii)(d)(5) (regarding certain mandatory
allocations under Treasury Regulations regarding family partnerships, the so-
called varying interest rules, or certain in-kind distributions), or 1.704-
1(b)(2)(ii)(d)(6) (regarding certain distributions, to the extent they exceed
certain expected offsetting increases in a Member's Capital Account), items of
Company income and gain may, upon the approval of a Majority in Interest be
specifically allocated to such Members in an amount and a manner sufficient to
eliminate, as quickly as possible, the deficit balances in the Member's Capital
Account created by such adjustments, allocations, or distributions. Any special
allocations of items of income or gain pursuant to this subparagraph shall be
taken into account in computing subsequent allocations of profits pursuant to
this paragraph, so that the net amount of any items so allocated and the
profits, losses, or other items allocated to each member pursuant to this
paragraph shall be equal to the net amount that would have been allocated to
each such Member pursuant to this paragraph as if such unexpected adjustments,
allocations, or distributions had not occurred.
5.2.5. SECTION 704(C) ALLOCATIONS. In accordance with Section 704(c)
of the Code and the applicable Treasury Regulations issued thereunder, income,
gain, loss, and deduction with respect to any property contributed to the
capital of the Company, shall, solely for tax purposes, be allocated among the
Members so as to take account of any variation between the adjusted basis of
such property to the Company for federal income tax purposes and its initial
fair market value. In the event the fair market value of any Company property
is adjusted pursuant to this Agreement,
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subsequent allocations of income, gain, loss, and deduction with respect to such
asset shall take into account any variation between the adjusted basis of such
asset for federal income tax purposes and its fair market value in the same
manner as under Section 704(c) of the Code and the Treasury Regulations
thereunder. Any elections or other decisions relating to such allocations shall
be made by the Majority in Interest in any manner that reasonably reflects the
purpose of this Agreement. Allocations made pursuant to this subparagraph are
solely for purposes of federal, state, and local taxes and shall not affect, or
in any way be taken into account in computing, any Member's Capital Account or
share of profits, losses, other items, or distributions pursuant to any
provision of this Agreement.
6. BOOKS AND RECORDS.
6.1. BOOKS AND RECORDS. The Company shall keep at its principal place of
business the following:
6.1.1. A current list of the full name and last known business,
residence or mailing address of each Member;
6.1.2. A copy of the initial Articles of Organization and all
amendments thereto and restatements thereof;
6.1.3. Copies of the Company's federal, state, and local income tax
returns and reports, if any, for the three most recent fiscal years;
6.1.4. Copies of this Agreement and all amendments hereto or
restatements hereof;
6.1.5. Copies of any financial statements of the Company for the
three most recent fiscal years;
6.1.6. A copy of each document signed by any Member which includes a
promise to make a Capital Contribution;
6.1.7. Copies of minutes and resolutions, if any, of meetings of the
Members and all written consents obtained from Members for actions taken by
Members without a meeting; and
6.1.8. Records of the distributions of profits and losses pursuant to
paragraph 5, SUPRA.
6.2. ACCESS TO BOOKS AND RECORDS. Each Member shall have the right,
during normal business hours, to inspect and copy, at the Member's expense, the
books and records maintained by the Company pursuant to paragraph 6.1, SUPRA.
7. RESTRICTIONS ON TRANSFERABILITY.
7.1. TRANSFERABILITY. No member shall have the right to sell, transfer,
assign, give, pledge, or grant a security interest
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<PAGE>
in ("Transfer") any of its Interest in the Company except as provided in this
paragraph 7. Any sale or foreclosure on a security interest will itself
constitute a Transfer independent of the grant of security. No transferee of an
Interest shall have the right to participate in the management of the business
and affairs of the Company, or to alter the membership voting provided for in
paragraph 3.1, or to become or exercise the rights of a Member unless the
transferee is admitted as a Member in the manner provided in paragraph 8, INFRA,
of this Agreement. Notwithstanding any provision herein to the contrary, no
Member may Transfer any Interest in the Company if the Transfer would, in the
opinion of counsel to the Company, result in the termination of the Company
under Section 708 of the Code.
7.2. RIGHT OF FIRST REFUSAL. In the event a Member desires to sell or
transfer any of its Interest in the Company and such Member shall have received
a bona fide written offer to purchase its Interest in the Company, such Member
shall first offer in writing to sell its Interest in the Company to the
remaining Members on the same terms and conditions as set forth in said bona
fide offer. The remaining Members, or any of them, shall have thirty days after
receipt of such offer to accept such offer in writing. If more than one Member
accepts such offer, such Members together shall purchase the selling Member's
Interest in such proportions as such Members shall determine among themselves
and, in the absence of such an agreement, each Member shall purchase the share
of the selling Member's Interest that bears the same ratio to the selling
Member's total Interest as the purchasing Member's Percentage Interest bears to
the Percentage Interest of all purchasing Members. If one or more Members do
not purchase the Interest, the Member may sell its interest to the third-party
purchaser immediately thereafter, but only on the terms and conditions described
in the bona fide offer. If such sale does not occur within ninety days after
the offer to the Members, then the provisions of this paragraph must again be
satisfied.
7.3. CONDITIONS PRECEDENT. No Transfer of any Interest shall be binding
upon or effective against the Company unless each of the following conditions is
satisfied:
7.3.1. A duly executed and acknowledged written instrument of
assignment in a form satisfactory to the non-transferring Members is filed
with the Company;
7.3.2. The transferee agrees to be bound by the terms and conditions
of this Agreement, including without limitation this paragraph 7;
7.3.3. The Company is reimbursed for any reasonable expenses incurred
in connection with such Transfer;
7.3.4. The transferring Member and transferee shall agree in writing
to indemnify and hold the Company and the
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<PAGE>
non-transferring members harmless for, from and against any loss,
liability, claim or expense arising out of the Transfer; and
7.3.5. The affirmative vote of a Supermajority in Interest.
8. ADMISSIONS AND WITHDRAWALS.
8.1. ADMISSIONS OF MEMBERS. No person shall be admitted as a Member of
the Company after the date of formation of the Company without the approval of a
Supermajority in Interest of the Members at the time of such admission,
irrespective of whether such person has acquired or proposes to acquire an
Interest from another Member.
8.2. NO RIGHT TO VOLUNTARILY WITHDRAWAL. No Member shall have the right
to withdraw voluntarily from the Company, nor shall any Member voluntarily
commit any act that results in dissolution of the Company. Any voluntary act of
a Member that results in dissolution of the Company shall constitute a material
breach of this Agreement and the Company shall have the right to offset any
damages suffered by the Company as a result of such breach against any amounts
which would otherwise have been distributed to the withdrawn Member and to
exercise such other rights and remedies as may be available under the Act or
this Agreement.
8.3. DISTRIBUTION UPON WITHDRAWAL. Upon the occurrence of any event
resulting in dissolution of the Company, other than as a result of an assignment
of all or a portion of a Member's Interest and the admission of one or more of
the assignees as a Member, and if the remaining Members elect to continue the
Company pursuant to paragraph 9.1.1.5, INFRA, the withdrawn Member shall cease
(i) to have any right to vote its Interest on any matter, in which event that
voting right shall not be considered outstanding for any purpose, and (ii) to
participate in any allocations of profits or losses or to receive any
distributions from the Company, other than the right to receive a withdrawal
distribution equal to the value of the Members' Interest, reduced by any damages
suffered by the Company if such withdrawal resulted in a dissolution that
constituted a breach of this Agreement. The withdrawal distribution shall be
due and payable by the Company as follows: ten percent in cash within one
hundred twenty days after the event causing the withdrawal and the balance in
ten equal semi-annual installments commencing on the six-month anniversary of
such event, together with interest on the unpaid balance from time to time
outstanding until paid at the prime rate established by Chase Manhattan Bank, or
its successor, payable at the same time as and in addition to the installments
of principal. If the remaining Members do not elect to continue the Company
pursuant to paragraph 9.1.1.5, INFRA, the Member (or its successor in interest)
shall continue to participate in Company profits, losses, and distributions to
the same extent as a permitted assignee of the Member's Interest in the Company,
until the Company is wound up and
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terminated in accordance with this Agreement, reduced by any damages suffered by
the Company if the withdrawal resulted in a dissolution that constituted a
breach of this Agreement.
9. DISSOLUTION AND TERMINATION.
9.1. DISSOLUTION.
9.1.1. The Company shall be dissolved thirty (30) years from the
execution date of the Articles of Organization, or upon the occurrence of
any of the following events:
9.1.1.1. the affirmative vote of a Supermajority in Interest;
9.1.1.2. the acquisition by one Member of all of the outstanding
Interests;
9.1.1.3. the election of Dynatec to dissolve the Company upon
thirty days written notice to the Members, in the event (a) that as of July
31, 1996 the financial statements of the Company, prepared in accordance
with generally accepted accounting principles, show a loss of $450,000 or
more; or (b) any of the representations of Weiser or of Margaret Weiser, as
set forth in paragraphs 11.2 and 11.3 hereof are not true and correct as
of the date that Weiser or Margaret Weiser execute all necessary
documentation to complete their Capital Contribution to the Company (notice
of this election must be given within nine months of the formation of the
Company);
9.1.1.4. the expulsion, bankruptcy or dissolution of a Member or the
occurrence of any other event that terminates the continued membership of a
Member in the Company, except as provided below in this paragraph;
9.1.1.5. the election of Weiser to dissolve the Company upon thirty
days written notice to the Members in the event any of the representations
of Dynatec, as set forth in paragraph 11.1 hereof, are not true and correct
as of the date that Dynatec executes all necessary documentation to
complete its Capital Contribution to the Company (notice of this election
must be given within nine months of the formation of the Company);
9.1.1.6. the completion of the merger transaction described in
paragraph twelve hereof; or
9.1.1.7. any other event causing a dissolution of a limited liability
company under the Act.
9.1.2. Notwithstanding the foregoing provisions of this paragraph,
and upon the occurrence of an event described in subparagraph 9.1.1.4, the
remaining Members have the right to continue the business of the Company, but
not to exceed the maximum
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period of thirty (30) years. Such right can be exercised only by the
affirmative vote of the remaining Members, holding a Majority in Interest in the
Company, within three (3) months after written notice to the Company of the
occurrence of an event described in subparagraph 9.1.1.4. If not so exercised,
the right of the Members to continue the business of the Company shall expire
and the Company's affairs shall be wound up as provided in this paragraph.
9.1.3. As soon as possible following the occurrence of any event of
dissolution, the Members shall execute and file a Notice of Winding Up with the
Divisions of Corporations in accordance the Act.
9.2. EFFECT OF DISSOLUTION. Upon dissolution of the Company, the Company
shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but its separate existence shall continue until
Articles of Termination have been filed with the Utah Division of Corporations
or until a decree dissolving the Company has been entered by a court of
competent jurisdiction.
9.3. WINDING UP, LIQUIDATION AND DISTRIBUTION OF ASSETS.
9.3.1. Upon dissolution, an accounting shall be made of the accounts
of the Company and of the Company's assets, liabilities and operations, from the
date of the last previous accounting until the date of dissolution, and the
Members shall immediately proceed to wind up the affairs of the Company.
9.3.2. Except as otherwise provided in paragraphs 2.4, 9.1.1.4. or
9.3.3., if the Company is dissolved and its affairs are to be wound up, the
Members shall (i) sell or otherwise liquidate all of the Company's assets as
promptly as practicable (except to the extent the Members may elect to
distribute any assets in kind), (ii) allocate any profit or loss resulting from
such sales to the Members' Capital Accounts in accordance with paragraph 5.1,
SUPRA, (iii) discharge all liabilities of the Company (other than liabilities to
Members), including all costs relating to the dissolution, winding up,
liquidation as distribution of assets, (iv) establish such reserves as may be
reasonably necessary to provide for contingent liabilities of the Company (for
purposes of determining the Capital Accounts of the Members, the amounts of such
reserves shall be deemed to be an expense of the Company), (v) discharge any
liabilities of the Company to the Members other than on account of their
Interests in Company, and (vi) distribute the remaining assets in the following
order:
9.3.2.1. If any assets of the Company are to be distributed in kind,
the net fair market value of such assets as of the date of dissolution
shall be determined by independent appraisal or by agreement of the
Members. Such assets shall be deemed to have been sold as of the date of
dissolution for their fair market value, and the Capital
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Accounts of the Members shall be adjusted to reflect such deemed sale.
9.3.2.2. The positive balance of each Member's Capital Account as
determined after taking into account all Capital Account adjustments shall
be distributed to the Members, either in cash or in kind, as determined by
the Members, with any assets distributed in kind being valued for this
purpose at their fair market value as determined pursuant to the preceding
paragraph. If there are insufficient assets to fully liquidate all of the
positive Capital Accounts, distributions shall be made to Members with
positive Capital Accounts in proportion to their respective positive
Capital Accounts. Notwithstanding anything herein to the contrary, any
such distributions to the Members in respect of their Capital Accounts
shall be made in accordance with the time requirements set for in Section
1.704-1(b)(2)(ii)(b)(2) of the Treasury Regulations.
9.3.3. Notwithstanding anything herein to the contrary, upon a
liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury
Regulations, if any Member has a negative Capital Account balance (after giving
effect to all contributions, distributions, allocations and other Capital
Account adjustments for all taxable years, including the year during which such
liquidation occurs), such Member shall have no obligation to make any
contribution to the capital of the Company, and the negative balance of such
Member's Capital Account shall not be considered a debt owed by such Member
to the Company or to any other person for any purpose whatsoever.
9.3.4. The Members shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of the Company and
the final distribution of its assets.
9.4. ARTICLES OF TERMINATION. When all of the known property and assets
of the Company have been applied and distributed pursuant to the Act and this
Agreement, written Articles of Termination shall be executed on behalf of the
Company by the Members and filed with the Utah Division of Corporations in
accordance with the Act.
9.5. RETURN OF CAPITAL CONTRIBUTION. Upon dissolution, and except as
provided in paragraph 2.4, each Member shall look solely to the assets of the
Company for the return of its Capital Contribution If the Company property
remaining after the payment or discharge of the debts and liabilities of the
Company is insufficient to return the Capital Contribution of one or more
Members, such Member or Members shall have no recourse against any other Member.
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10. INDEMNITY.
10.1. The Company shall indemnify each Member who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of any actions taken by such Member on behalf of the Company or by reason
of any actions taken by such Member while serving at the request of the Company
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorneys'
fees, and against judgments, fines and amounts paid in settlement actually and
reasonably incurred by such Member in connection with such action, suit or
proceeding, provided that the acts of such Member were not committed with gross
negligence or willful misconduct, and, with respect to any criminal action or
proceeding, such Member had no reasonable cause to believe its conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or its equivalent, shall
not, in and of itself, create a presumption that the Member acted with gross
negligence or willful misconduct, or with respect to any criminal action or
proceeding, had reasonable cause to believe that its conduct was unlawful.
10.2. Any Member who is or may be entitled to indemnification shall give
timely written notice to the Company and other Members that a claim has been or
is about to be made against him or her, shall permit the Company to defend him
or her through legal counsel of its own choosing, and shall cooperate with the
Company in said defense.
10.3. The indemnification provided for herein shall apply only in the
event, and to the extend that, the person is not entitled to indemnification or
other payment from any other source (including insurance), and the Company's
indemnity obligations hereunder shall be in excess of any indemnification or
other payment provided by such other source.
10.4. The indemnification provided for herein shall continue as to a
person who has ceased to be a Member and shall inure to the benefit of the
heirs, executors and administrators of such person.
11. REPRESENTATIONS OF THE MEMBERS.
11.1 REPRESENTATIONS OF DYNATEC. Dynatec represents and warrants as
follows:
11.1.1. ORGANIZATION, GOOD STANDING AND AUTHORITY. Dynatec is a
validly organized Utah corporation, existing and in good standing under the laws
of Utah. The execution and delivery of this Agreement and the consummation of
this transaction by Dynatec have been, or prior to the formation of the Company
will have been, duly authorized, and no further corporate authorization is or
will be necessary on the part of Dynatec.
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11.1.2. AGREEMENT WILL NOT CAUSE BREACH OR VIOLATION. Neither the
entry into this Agreement nor the consummation of the transactions contemplated
hereby will result in or constitute any of the following: (i) a breach of any
term or provision of this Agreement; (ii) a default or an event that, with
notice or lapse of time, or both, would be a default, breach or violation of the
Articles of Incorporation or Bylaws of Dynatec or any lease, license, promissory
note, conditional sales contract, commitment, indenture, mortgage, deed of trust
or other agreement, instrument or arrangement to which Dynatec is a party or by
which Dynatec or Dynatec's assets are bound; (iii) an event that would permit
any party to terminate any agreement or to accelerate the maturity of any
indebtedness or other obligation of Dynatec; (iv) the creation or imposition of
any lien, charge or encumbrance on any of the assets of Dynatec; or (v) the
violation of any law, regulation, ordinance, judgment, order or decree
applicable to or affecting Dynatec.
11.1.3. PUBLIC COMPANY. Dynatec is a publicly traded corporation
which is a reporting company under the Exchange Act of 1934. Dynatec is traded
on NASDAQ under the trading symbol DYNX.
11.1.4. FINANCIAL STATEMENTS. Schedule 11.1.4-1 to this Agreement
sets forth the balance sheets of Dynatec as of June 30, 1995, and the related
statement of income and accumulated deficit for the twelve month period then
ending, certified by Messrs. Kartchner & Hunt, Dynatec's independent public
accountants, whose opinions with respect to such financial statements are
included in such Schedule. Schedule 11.1.4-2 to this Agreement sets forth
unaudited balance sheets of Dynatec as of September 30, 1995 (the "Stub Period
Date"), together with related unaudited statement of income and accumulated
deficit for the sixth month period then ending, compiled by the Dynatec's
accountants and certified by the treasurer of Dynatec. The financial statements
in Schedules 11.1.4-1 and 11.1.4-2 are referred to as the "Dynatec Financial
Statements." The Dynatec Financial Statements have been prepared in accordance
with generally accepted accounting principles consistently followed by Dynatec
throughout the periods indicated, and fairly present the financial position of
Dynatec as of the respective dates of the balance sheets included in the
Financial Statements, and the results of their operations for the respective
periods indicated.
11.1.5. ABSENCE OF SPECIFIED CHANGES. Since the quarter ending
September 30, 1995 of Dynatec there has not been any:
11.1.5.1. transaction by Dynatec except in the ordinary course of
business as conducted on that date;
11.1.5.2. capital expenditure by Dynatec exceeding $50,000.00, except
as noted in Schedule 11.1.5.2.
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11.1.5.3. material adverse change in the financial condition,
liabilities, assets, business or prospects of Dynatec;
11.1.5.4. destruction, damage to, or loss of any assets of Dynatec
(whether or not covered by insurance) that materially and adversely affects
the financial condition, business or prospects of Dynatec;
11.1.5.5. labor trouble or other event or condition of any character
materially and adversely affecting the financial condition, business,
assets or prospects of Dynatec;
11.1.5.6. change in accounting methods or practices (including,
without limitation, any change in depreciation or amortization policies or
rates) by Dynatec;
11.1.5.7. revaluation by Dynatec of any of its assets;
11.1.5.8. increase in the salary or other compensation payable or to
become payable by Dynatec to any of its officers, directors or employees,
or the declaration, payment, or commitment or obligation of any kind for
the payment by Dynatec of a bonus or other additional salary or
compensation to any such person;
11.1.5.9 sale or transfer of any asset of Dynatec, except in the
ordinary course of business;
11.1.5.10. execution, creation, amendment or termination of any
contract, agreement or license to which Dynatec is a party, except in the
ordinary course of business;
11.1.5.11. loan by Dynatec to any person or entity, or guaranty by
Dynatec of any loan;
11.1.5.12. waiver or release of any right or claim of Dynatec, except
in the ordinary course of business;
11.1.5.13. mortgage, license, pledge or other encumbrance of any
asset of Dynatec;
11.1.5.14. other event or condition of any character that has or
might reasonably have a material and adverse effect on the financial
condition, business, assets or prospects of Dynatec; or
11.1.5.15. agreement by Dynatec to do any of the things described in
the preceding clauses.
11.1.5. TAX RETURNS AND AUDITS. Within the times and in the manner
prescribed by law, Dynatec has filed all domestic and foreign, federal, state
and local tax returns required by law and
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has paid all taxes, assessments and penalties due and payable. There are no
present disputes as to taxes of any nature payable by Dynatec.
11.2 REPRESENTATIONS OF WEISER. Weiser represents and warrants as follows:
11.2.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION. Weiser is a
corporation duly organized, validly existing, and in good standing under the
laws of California, has all necessary corporate powers to own its properties and
to carry on its business as now owned and operated by it, and is duly qualified
to transact interstate business and is in good standing in all jurisdictions in
which the nature of its business or of its properties makes such qualification
necessary.
11.2.2. AGREEMENT WILL NOT CAUSE BREACH OR VIOLATION. Neither the
entry into this Agreement nor the consummation of the transactions contemplated
hereby will result in or constitute any of the following: (i) a breach of any
term or provision of this Agreement; (ii) a default or an event that, with
notice or lapse of time, or both, would be a default, breach or violation of the
Articles of Incorporation or Bylaws of Weiser or any lease, license, promissory
note, conditional sales contract, commitment, indenture, mortgage, deed of trust
or other agreement, instrument or arrangement to which Weiser is a party or by
which Weiser or its assets are bound; (iii) an event that would permit any
party to terminate any agreement or to accelerate the maturity of any
indebtedness or other obligation of Weiser; (iv) the creation or imposition of
any lien, charge or encumbrance on any of the assets of Weiser; or (v) the
violation of any law, regulation, ordinance, judgment, order or decree
applicable to or affecting Weiser or its assets.
11.2.3. CAPITAL STRUCTURE. The authorized number of shares of Weiser
is 10,000 all of one class, of which 1,000 shares (the "Shares") are issued and
outstanding, all of which are owned of record and beneficially by Isaac Weiser
and Margaret Weiser. All the Shares are validly issued, fully paid, and
nonassessable. There are no outstanding subscriptions, options, rights,
warrants, convertible securities, or other agreements or commitments obligating
Weiser to issue or to transfer from treasury any additional shares.
11.2.4. FINANCIAL STATEMENTS. Schedule 11.2.4 to this Agreement sets
forth the balance sheets of Weiser as of December 31, 1994, and the related
statement of income and accumulated deficit for the period then ending. The
financial statements in the Schedule 11.2.4 are referred to as the "Financial
Statements".The Weiser Financial Statements have been prepared in accordance
with generally accepted accounting principles consistently followed by Weiser
throughout the periods indicated, and fairly present the financial position of
Weiser as of the date of the balance sheet included in the Weiser Financial
Statements,
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and the results of their operations for the respective periods indicated.
11.2.5. ABSENCE OF SPECIFIED CHANGES. Since the last fiscal year end
of Weiser there has not been any:
11.2.5.1. transaction by Weiser except in the ordinary course of
business as conducted on that date;
11.2.5.2. capital expenditure by Weiser exceeding $10,000.00;
11.2.5.3. material adverse change in the financial condition,
liabilities, assets, business or prospects of Weiser;
11.2.5.4. destruction, damage to, or loss of any assets of Weiser
(whether or not covered by insurance) that materially and adversely affects
the financial condition, business or prospects of Weiser;
11.2.5.5. labor trouble or other event or condition of any character
materially and adversely affecting the financial condition, business,
assets or prospects of Weiser;
11.2.5.6. change in accounting methods or practices (including,
without limitation, any change in depreciation or amortization policies or
rates) by Weiser;
11.2.5.7. revaluation by Weiser of any of its assets;
11.2.5.8. increase in the salary or other compensation payable or to
become payable by Weiser to any of its officers, directors or employees, or
the declaration, payment, or commitment or obligation of any kind for the
payment by Weiser of a bonus or other additional salary or compensation to
any such person;
11.2.5.9. sale or transfer of any asset of Weiser, except in the
ordinary course of business;
11.2.5.10. execution, creation, amendment or termination of any
contract, agreement or license to which Weiser is a party, except in the
ordinary course of business;
11.2.5.11. loan by Weiser to any person or entity, or guaranty by
Weiser of any loan;
11.2.5.12. waiver or release of any right or claim of Weiser, except
in the ordinary course of business;
11.2.5.13. mortgage, pledge or other encumbrance of any asset of
Weiser;
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11.2.5.14. other event or condition of any character that has or
might reasonably have a material and adverse effect on the financial
condition, business, assets or prospects of Weiser; or
11.2.5.15. agreement by Weiser to do any of the things described in
the preceding clauses (a) through (n).
11.2.6. TAX RETURNS AND AUDITS. Within the times and in the manner
prescribed by law, Weiser has filed all domestic and foreign, federal, state and
local tax returns required by law and has paid all taxes, assessments and
penalties due and payable, except as noted in Schedule 11.2.6. There are no
present disputes as to taxes of any nature payable by Weiser.
11.2.7. OTHER TANGIBLE PERSONAL PROPERTY. The equipment described in
Schedule 11.2.7-1 of this Agreement constitutes all the items of tangible
personal property owned by, in the possession of, or used by Weiser in
connection with its business. The Equipment listed in Schedule 11.2.7-1
constitute all tangible personal property, including tooling, necessary for the
conduct by Weiser of its business as now conducted, or by the Company of its
business as now contemplated.
Except as stated in Schedule 11.2.7-2, no equipment used by Weiser in
connection with its business is held under any lease, security agreement,
conditional sales contract, or other title retention or security arrangement, or
is located other than in the possession of Weiser.
11.2.8. ACCOUNTS RECEIVABLE. The accounts receivable as of January
2, 1996 reflected in Schedule 11.2.8 are valid and genuine and arose from bona
fide sales and deliveries of goods, performance of services or other
transactions in the ordinary course of Weiser's business. Except as rated, the
accounts receivable are collectible at their full amounts.
11.2.9. TRADE NAMES, TRADEMARKS AND COPYRIGHTS. Except as set forth
in Schedule 11.2.9, Weiser does not use any trademark, service mark, trade name
or copyright in its business, or own any trademarks, trademark registrations or
applications, trade names, service marks, copyrights, or copyright registrations
or applications. No person (other than Weiser or ATI) owns any trademark,
trademark registration or application, service mark, trade name, copyright, or
copyright registration or application, the use of which is necessary or
contemplated in connection with the performance of any contract to which Weiser
is a party.
11.2.10. PATENTS AND PATENT RIGHTS. Schedule 11.2.10 to this
Agreement is a complete schedule of all patents, inventions, industrial models,
processes, designs, product ideas, formulas and applications for patents
("Intellectual Properties") owned by Weiser or in which Weiser has any rights,
licenses or immunities. The patents and applications for patents listed in
Schedule 11.2.10
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are valid and in full force and effect and are not subject to any taxes,
maintenance fees or actions falling due within 150 days after the date of the
formation of the Company. Except as set forth in Schedules 11.2.10 or 11.2.19,
there have not been any interference actions or other judicial, arbitration, or
other adversary proceedings concerning the Intellectual Properties listed in
Schedule 11.2.10. The manufacture, use or sale of the inventions, models,
designs and systems covered by the Intellectual Properties listed in Schedule
11.2.10 do not violate or infringe on any patent or any proprietary or personal
right of any person, firm or corporation, and Weiser has not infringed and is
not now infringing on any patent or other right belonging to any person, firm or
corporation. Except as set forth in Schedule 11.2.10, Weiser is not a party to
any license, agreement or arrangement, whether as licensee, licensor or
otherwise, with respect to any patent, application for patent, invention,
design, model, process, trade secret or formula. Weiser has the right and
authority to use such inventions, trade secrets, processes, models, designs and
formulas as are necessary to enable it to conduct and to continue to conduct all
phases of its business in the manner presently conducted or by the company in
the manner now contemplated, and such use does not and will not conflict with,
infringe or violate any patent or other rights of others.
11.2.11 TRADE SECRETS. Schedule 11.2.11 to this Agreement is a true
and complete list, without extensive or revealing descriptions, of trade secrets
used by Weiser in (or owned by Weiser and useful in) the operation of its
business, including all customer lists, processes, know-how and other technical
data. Specific location of each trade secret's documentation, including its
complete description, specifications, charts, procedures and other material
relating to it, is also set forth with it in such Schedule. Each trade secret's
documentation is current, accurate and sufficient in detail and content to
identify and explain it, and to allow its full and proper use by the Company
without reliance on the special knowledge or memory of others.
Weiser is the sole owner of each of these trade secrets, free and
clear of any liens, encumbrances, restrictions, or legal or equitable claims of
others, except as specifically stated in Schedule 11.2.11, Weiser has taken all
reasonable security measures to protect the secrecy, confidentiality and value
of these trade secrets; any of its employees and any other persons who, either
alone or in concert with others, developed, invented, discovered, derived,
programmed or designed these secrets, or who have knowledge or access to
information relating to them, have been put on notice and, if appropriate, have
entered into agreements that these secrets are proprietary to Weiser and not to
be divulged or misused.
All these trade secrets are presently valid and protestable, and are
not part of the public knowledge or literature, nor to Weiser's knowledge, have
they been used,
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divulged or appropriated for the benefit of any past or present employees or
other persons, or to the detriment of Weiser.
11.2.12. TITLE TO ASSETS. Weiser has good and marketable title to
all its assets and interests in assets, whether personal, tangible, and
intangible, which constitute all the assets and interests in assets that are
used in the business of Weiser. All these assets are free and clear of
mortgages, liens, pledges, charges, encumbrances, equities, claims, easements,
rights of way, covenants, conditions, or restrictions, except for (i) those
disclosed in Weiser's Financial Statements, or in the Schedules to this
Agreement; and (ii) the lien of current taxes not yet due and payable. All
tangible personal property of Weiser is in good operating condition and repair,
ordinary wear and tear excepted. Weiser is in possession of all premises leased
to it from others. Except as set forth on the appropriate Schedule listing such
assets, neither any officer, nor any director or employee of Weiser, nor any
spouse, child or other relative of any of these persons, owns, or has any
interest, directly or indirectly, in any of the personal property owned by or
leased to Weiser or any copyrights, patents, trademarks, trade names or trade
secrets licensed by Weiser. Weiser does not occupy any real property in
violation of any law, regulation or decree.
11.2.13. CUSTOMERS AND SALES. Schedule 11.2.13 to this Agreement is
a correct and current list of all customers of Weiser, together with summaries
of the sales made to each customer during the most recent fiscal year. Except
as indicated in Schedule 11.2.13, Weiser has no information and is not aware of
any facts indicating that any of these customers intend to cease doing business
with Weiser or materially alter the amount of the business that they are
presently doing with Weiser.
11.2.14. EXISTING EMPLOYMENT CONTRACTS. Schedule 11.2.14 to this
Agreement is a list of all employment contracts and collective bargaining
agreements, all pension, bonus, profit-sharing, stock option, or other
agreements or arrangements providing for employee remuneration or benefits to
which Weiser is a party or by which Weiser is bound. All these contracts and
arrangements are in full force and effect, and neither Weiser nor any other
party is in default under them. There have been no claims of defaults and, to
the best knowledge of Weiser, there are no facts or conditions which if
continued, or on notice, will result in a default under these contracts or
arrangements. There is no pending nor, to the best knowledge of Weiser,
threatened labor dispute, strike or work stoppage affecting Weiser's business.
11.2.15. INSURANCE POLICIES. Schedule 11.2.15 to this Agreement is a
description of all insurance policies held by Weiser concerning its assets. All
these policies are in the respective principal amounts set forth in Schedule
11.2.15, Weiser has maintained and now maintains (i) insurance on all of the
assets of Weiser of a type customarily insured, covering property damage and
loss of income by fire or other casualty, and (ii) adequate
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insurance protection against all liabilities, claims, and risks against which it
is customary to insure.
11.2.16. OTHER CONTRACTS. Except as set forth in Schedule 11.2.16,
Weiser is not a party to, nor are its assets bound by, any distributor's or
manufacturer's representative or agency agreement, any output or requirements
agreement, any agreement not entered into in the ordinary course of business,
any indenture, mortgage, deed of trust, lease or any agreement that is unusual
in nature, duration or amount (including, without limitation, any agreement
requiring the performance by Weiser of any obligation for a period of time
extending beyond one year from the formation of the Company or calling for
consideration of more than $10,000.00, or requiring purchases at prices in
excess of, or sales at prices lower than, prevailing market prices). The
performance by Weiser of any of the agreements described on Schedule 11.2.16
will not result in Weiser becoming bound or liable under any distributor's or
manufacturer's representative or agency agreement. There is no default or event
that with notice or lapse of time, or both, would constitute a default by any
party to any of the agreements listed in Schedule 11.2.16. Weiser has not
received notice that any party to any of the agreements listed in Schedule
11.2.16 intends to cancel or terminate any of these agreements or to exercise or
not exercise any options under any of these agreements. Weiser is not a party
to, nor is Weiser or its assets bound by, any agreement that is materially
adverse to the business, property, or financial condition of Weiser.
11.2.17. COMPLIANCE WITH LAWS. Weiser has complied with, and is not
in violation of, applicable federal, state or local statutes, laws and
regulations (including, without limitation, any applicable environmental,
health, building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business.
11.2.18. LITIGATION. Except as set forth in Schedule 11.2.18, there
is no suit, action, arbitration or legal, administrative or other proceeding, or
governmental investigation pending, or to the best knowledge of Weiser,
threatened, against or affecting Weiser, or any of its business, assets or
financial condition. Weiser has furnished or made available to Dynatec copies
of all relevant court papers and other documents relating to the matters set
forth in Schedule 11.2.18. Weiser is not in default with respect to any order,
writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality. Except as set forth in Schedule 11.2.18,
Weiser is not presently engaged in any legal action to recover moneys due to it
or damages sustained by it.
11.2.20. AUTHORITY AND CONSENTS. Weiser has the right, power, legal
capacity and authority to enter into, and perform its obligations under this
Agreement, and no approvals or consents of any persons are necessary in
connection with it. The execution and delivery of this Agreement by Weiser have
been duly authorized by
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all necessary corporate action of Weiser (including any necessary action by
Weiser's security holders), and this Agreement constitutes a legal, valid and
binding obligation of Weiser enforceable in accordance with its terms.
11.2.21. INTEREST IN CUSTOMERS, SUPPLIERS AND COMPETITORS. Neither
Weiser nor any officer, director or employee of Weiser, nor any spouse or child
of any of them has any direct or indirect interest in any competitor, supplier
or customer of Weiser or in any person with whom Weiser is doing business.
11.2.22. CORPORATE DOCUMENTS. Weiser has furnished to Dynatec for
its examination (i) copies of the Articles of Incorporation and Bylaws of Weiser
and (ii) the minute books of Weiser containing all records required to be set
forth of all proceedings, consents, actions and meetings of the shareholders and
board of directors of Weiser.
11.2.23. DOCUMENTS DELIVERED. Each copy or original of any
agreement, contract or other instrument which is identified in any exhibit
delivered by Weiser or their counsel to Dynatec (or its counsel or
representatives), whether before or after the execution hereof, is in fact what
it is purported to be by Weiser and has not been amended, cancelled or otherwise
modified.
11.2.24. FULL DISCLOSURE. None of the representations and warranties
made by Weiser or made in any letter, certificate or memorandum furnished or to
be furnished by Weiser, or on its behalf, contains or will contain any untrue
statement of a material fact, or omits any material fact the omission of which
would make the statements made misleading. There is no fact known to Weiser
which materially adversely affects, or in the future may (so far as Weiser can
now reasonably foresee) materially adversely affect the condition, assets,
liabilities, business operations or prospects of Weiser that has not been set
forth herein or heretofore communicated to Dynatec in writing pursuant hereto.
11.2.25. ESTIMATED GROSS MARGINS. Within thirty days of the date of
this agreement, Weiser will exert its best efforts to accurately estimate the
gross margins for the products listed on Schedule 11.2.25. Such information
will be inserted into Schedule 11.2.25 within the described sixty day period and
shall be made a permanent part of this Agreement.
11.2.26 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. Weiser
shall have delivered to Dynatec, as of the date of this Agreement, an executed
Proprietary Information and Inventions Agreement in the form of Schedule 11.2.26
attached hereto for each of the current employees of Weiser. Weiser further
represents that no employee whose employment was terminated within one year
prior to the date hereof had access to Proprietary Information of Weiser as
defined in the document attached hereto as Schedule 11.2.26. Such agreements
shall be assignable to the
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Company, and accrue to the benefit of the Company to protect the Company's
competitive advantage.
11.27. RETURNS. None of the Weiser products listed in Schedule
11.2.25 have experienced returns which exceeded ten (10%) for calendar year
1995.
11.3 REPRESENTATIONS OF MARGARET WEISER. Margaret Weiser represents and
warrants as follows:
11.3.1. REPRESENTATIONS OF SCHEDULES. The Chapter 7 bankruptcy
schedules of Margaret Weiser, filed in Bankruptcy No. SV95-15350-KL, are true
and correct to the knowledge, information and belief of Margaret Weiser.
11.3.2. AGREEMENT WILL NOT CAUSE BREACH OR VIOLATION. Neither the
entry into this Agreement nor the consummation of the transactions contemplated
hereby will result in or constitute any of the following: (i) a breach of any
term or provision of this Agreement; (ii) a default or an event that, with
notice or lapse of time, or both, would be a default, breach or violation of any
lease, license, promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust or other agreement, instrument or arrangement
to which Margaret Weiser is a party or by which Margaret Weiser or her assets
are bound; (iii) an event that would permit any party to terminate any
agreement or to accelerate the maturity of any indebtedness or other obligation
of Margaret Weiser; (iv) the creation or imposition of any lien, charge or
encumbrance on any of the assets of Margaret Weiser; or (v) the violation of
any law, regulation, ordinance, judgment, order or decree applicable to or
affecting Margaret Weiser or her assets.
11.3.3 TRADE SECRETS. The Margaret Weiser capital contribution set
forth in Schedule 2.1 to this Agreement is a true and complete list, without
extensive or revealing descriptions, of trade secrets for new generation product
ideas owned by Margaret Weiser and useful in the operation of the contemplated
business of the Company, including all processes, know-how and other technical
data.
Margaret Weiser is the sole owner of each of these trade secrets, free
and clear of any liens, encumbrances, restrictions, or legal or equitable claims
of others. Margaret Weiser has taken all reasonable security measures to
protect the secrecy, confidentiality and value of these trade secrets; any of
its employees and any other persons who, either alone or in concert with others,
developed, invented, discovered, derived, programmed or designed these secrets,
or who have knowledge or access to information relating to them, have been put
on notice and, if appropriate, have entered into agreements that these secrets
are proprietary to Margaret Weiser and not to be divulged or misused.
All these trade secrets are presently valid and protestable, and are
not part of the public knowledge or
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literature, nor to the knowledge of Margaret Weiser, have they been used,
divulged or appropriated for the benefit of any past or present employees or
other persons, or to the detriment of Margaret Weiser.
12. MERGER.
12.1 DATE OF MERGER. Except as provided in paragraph 2.3, the Company
will be merged into Dynatec as soon as reasonably possible after the conclusion
of calendar year 1997 in order to take advantage of Dynatec's banking
relationships and credit lines, and to facilitate raising capital in the public
markets.
12.2 CONSIDERATION FOR MERGER. In consideration for the merger described
in this paragraph 12, the Members of the Company will receive shares of the
restricted common stock of Dynatec as provided herein.
12.2.1 The number of shares of common stock issued to the Members
pursuant to the merger will be computed by multiplying the retained earnings of
the Company as of December 31, 1997 by that number of shares (the "stock
multiple"), or fraction of shares of stock, as determined by three independent
investment bankers or financial consultants (the "valuation experts"), who shall
be selected and shall make their determination as set forth in paragraph 12.2.2
below. However, the number of shares received by the Dynatec Group shall, be
limited to one half of the aggregate number of shares computed pursuant to the
foregoing formula, and the number of shares received by the Weiser Group shall
be limited to four (4%) percent of the aggregate number of shares computed
pursuant to the foregoing formula. The number of shares issuable in the merger
shall be subject to adjustment as provided in paragraph 12.2.3 below.
12.2.2 The fees of the valuation experts shall be paid by the
Company. The determination of the stock multiple shall be made within 120 days
of the formation of the Company. The first valuation expert shall be selected
by the unanimous agreement of the Weiser Group. The second valuation expert
shall be selected by the unanimous agreement of the Dynatec Group. The third
valuation expert shall be selected by the unanimous agreement of the first two
valuation experts. In the event that the three valuation experts do not agree
as to the stock multiple for the purposes of the computation provided in
paragraph 12.2.1 above, each valuation expert shall submit his proposed stock
multiple, as determined in his best judgment, and these three figures will be
averaged to determine the stock multiple to be used in the merger transaction.
12.2.3 If Dynatec shall, at any time prior to the merger, subdivide
its common stock, by stock split or otherwise, or combine its common stock, or
issue without consideration to Dynatec for such issuance, additional shares of
its common stock or securities convertible into or exercisable for common stock,
the
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number of shares issuable by reason of the merger shall forthwith be
proportionately increased in the case of a subdivision or issuance without
consideration, or proportionately decreased in the case of combination. Any
adjustment under this paragraph shall become effective at the close of business
on the date the subdivision or combination becomes effective, or as of the
record date of such stock dividend, or in the event that no record date is
fixed, upon the making of such stock dividend. In case of any reclassification,
merger, consolidation, capital reorganization or change in the common stock of
Dynatec (other than an event described above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made, and
duly executed documents evidencing the same from Dynatec or its successor shall
be delivered to the Members so that the Members shall have the right to receive
the kind and amount of shares of stock and other securities and property
receivable in connection with such reclassification, merger, consolidation,
reorganization or change by a holder of the same number of shares of common
stock as were to be available to the Members immediately prior to such
reclassification, merger, consolidation, reorganization or change. In any such
case, appropriate provisions shall be made with respect to any shares of stock
or other securities and property deliverable upon completion of the merger. Upon
the happening of any event adjusting the number of shares issuable upon the
merger, Dynatec shall forthwith give written notice thereof to the Members
stating the adjusted number of shares issuable hereunder resulting from such
event and setting forth in reasonable detail the method of calculation and the
facts upon which that calculation is based.
12.2.4. Upon the distribution of the Dynatec shares of stock to the
Weiser Group pursuant to the merger or upon the effective date of the IPO
referred to in paragraph 14 hereof, Weiser and Margaret Weiser shall transfer
to the Company, without further consideration, the unencumbered ownership
rights to all intellectual property rights which are licensed to the Company as
a portion of the Capital Contribution of Weiser and Margaret Weiser to the
Company, and as defined in Schedule 2.1 hereof together with all equipment and
tooling now used or hereafter developed by the Weiser Group. Weiser shall then
execute all documentation necessary to complete the transfer of such product
and property rights.
12.2.5. The Members agree to execute investment intent letters with
regard to the execution of this Agreement and the issuance of common stock
pursuant to the merger. The investment intent letters will include customary,
and legally required, representations of investment intent, sophistication,
receipt of material information, accredited investor status and acknowledgment
of the restrictions on transfer of the restricted common stock.
12.2.6. By the vote of a Supermajority in Interest, the Members may
accelerate the effective date of the Merger, subject to the conditions of this
Agreement.
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12.3 CONDITIONS FOR MERGER. The merger as described in this paragraph 12
shall not occur if (a) a vote of a majority of the Members disapproves of the
merger action; (b) Dynatec is not a publicly traded company on NASDAQ as of the
effective date of the merger; (c) Dynatec elects to give written notice of its
disapproval of the merger; if all of the liabilities of Weiser are not satisfied
as of the date of the merger; or (d) the Weiser Group, Isaac Weiser and Margaret
Weiser would receive Dynatec stock in the merger transaction and pursuant to the
provisions of paragraph 12.4 hereof having an aggregate value of less than Two
Million Dollars as of December 31, 1997, or any earlier effective date of the
merger, and the Weiser Group gives written notice that it disapproves of the
merger on this basis. The written notice must be given not later than the
earlier of February 1, 1998 or the effective date of the merger. For the
purposes of this paragraph 12.3, the value of the Dynatec stock shall be the
average of the bid price of the stock as quoted on NASDAQ for the twenty trading
days prior to December 31, 1997, or of any earlier effective date of the merger.
In the event that the merger does not take place by reason of any of the
conditions stated above, the Company shall immediately pay to Dynatec a ten
(10%) percent return (over all costs) on all financing received by the Company
from the date of this Agreement on credit lines guaranteed by Dynatec. Further,
all loans made by Dynatec to the Company shall immediately be due on demand by
Dynatec and Dynatec shall receive a return of twenty (20%) percent on such loans
from inception, notwithstanding any other terms regarding such loans. The
financing obtained on credit lines guaranteed by Dynatec and the loans, if any,
of Dynatec to the Company are two separate categories of lending. Therefore, in
the event that the merger does note take place by reason of condition 12.3(a)
above, the percentage returns to Dynatec referred to in this paragraph shall not
be aggregated together to provide for a thirty (30%) percent return on financing
or lending.
12.4. EMPLOYMENT CONTRACTS. Upon completion of the merger as provided
herein, the employment agreements of Isaac Weiser and Margaret Weiser with the
Company shall terminate and they shall enter into a new three year employment
arrangement with Dynatec. This employment arrangement shall be set forth in
separate employment agreements that shall also provide that Isaac and Margaret
Weiser (a) shall receive health insurance benefits comparable to those provided
to Dynatec senior management, (b) shall receive certain Dynatec Common Stock or
stock options at a purchase or exercise price of one cent per share, and (c)
shall share a Five Hundred Dollar a month car allowance. The employment
agreements referred to herein shall acknowledge the joint and several liability
of Isaac Weiser and Margaret Weiser with the other members of Weiser Group for
the obligations provided for in paragraph 2.4.2 hereof.
13. LOANS BY DYNATEC.
13.1. During the term of this Agreement, Dynatec may loan to the Company
additional funds on terms as agreed to between the
Page 30-40
<PAGE>
Company and Dynatec, as affected by the provisions of paragraph 12.3 above.
Such loans shall be secured by all of the assets of the Company and of Weiser
with a security interest junior only to the security interests granted by the
Company, to secure the credit lines to be guaranteed by Dynatec and the security
interests granted by Weiser prior to the date this Agreement. In the event of
the termination of the Company pursuant to paragraph 9.1.1.3 hereof, Dynatec
will release its security interest in the patents, trademarks tooling and
equipment existing as of the date of this Agreement.
14. OPTIONS FOR KEY EMPLOYEES.
14.1. By majority vote of the members of the Advisory Committee, the
Company may grant options to certain of its key employees, agents or consultants
to acquire interests in the Company resulting in the distribution to such
individuals of shares of common stock in Dynatec, in the event of the
consummation of the merger provided for in paragraph 12 of this Agreement, or
resulting in additional interests in the Company (or stock upon conversion of
the Company into a corporation) being offered in an IPO made by the Company.
Such options shall be effective only upon the effective date of the merger or of
the IPO, and are to be granted to recognize the performance of employees, agents
and consultants in achieving the success of the Company.
15. SATISFACTION OF WEISER LIABILITIES.
15.1. Weiser agrees that it is its intention to satisfy all of its
liabilities existing at the date hereof within 90 days of the date of this
Agreement. Until the earlier of (a) the termination of the Company under
paragraph 9.1, (b) the merger of the Company under paragraph 12, or (c) the
expiration of the initial five year term of the lease referenced in Schedule
11.2.7-2, the Company will pay the rent and utilities of Weiser under such
lease. It is expressly agreed that the Company shall not assume such lease.
The Weiser Group shall secure a subordination agreement from each of the long
term debt holders referenced in Note 3 of the December 31, 1994 Financial
Statements of Weiser, except for the obligation owing to Industrial Bank. Such
subordination agreement shall be in form and content similar to the
subordination agreement executed by Exhart Environmental Systems, Inc.
16. AMENDMENT.
16.1. This Agreement may not be amended, modified or supplemented except
by a written agreement signed by a Supermajority in Interest of the Members.
Page 31-40
<PAGE>
17. ARBITRATION.
17.1. Any dispute, controversy or claim arising out of or in connection
with or relating to a Member's relationship with the Company or this Agreement
or any breach or alleged breach thereof shall, as the exclusive method for
resolution, be determined and settled by arbitration in Salt Lake City, Utah,
pursuant to the Commercial Arbitration Rules then in effect of the American
Arbitration Association. Any award rendered shall be final and conclusive upon
the parties and a judgment thereon may be entered in the highest court or the
forum, state or federal, having jurisdiction, and shall include an award in
favor of the prevailing party to pay all reasonable costs and attorneys' fees
incurred by the prevailing party as well as the cost of the arbitration
18. MISCELLANEOUS PROVISIONS.
18.1. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties and supersedes all prior contemporaneous agreements and
understandings of the parties with respect to the subject matter hereof.
18.2. NOTICES. Unless otherwise provided herein, any notice, demand, or
communication required or permitted to be given pursuant to any provision of
this Agreement shall be deemed to have been sufficiently given or served for all
purposes if delivered personally to the party or to an executive officer of the
party to whom the same is directed or, if sent, by registered or certified mail,
postage prepaid, addressed to the party at the address set forth below, or to
such other address as the party may from time to time specify by written notice
to the Company in accordance with this paragraph. Except as otherwise provided
herein, any such notice shall be deemed to be given three business days after
the date on which the same was deposited in the United States mail, addressed
and sent as aforesaid.
Weiser Telecommunications, Inc. Dynatec International, Inc.
630 Townsgate No. E 1820 South 3594 West
Westlake Village, California 91361 Salt Lake City, Utah 84104
Margaret Weiser Muito Bem Ltd.
4760 Corbin Ave. 1820 North 3594 West
Tarzana, California 91356 Salt Lake City, Utah 84104
18.3. APPLICATION OF UTAH LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Utah.
18.4. CONSTRUCTION. Whenever the singular number is used in this
Agreement and when required by the context, the same shall include the plural,
and the masculine gender shall include the feminine and neuter genders and vice
versa.
Page 32-40
<PAGE>
18.5. HEADINGS. The headings in this Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Agreement or any provision thereof.
18.6. WAIVERS. The failure of any party to seek redress for violation of
or to insist upon the strict performance of any covenant or condition of this
Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation.
18.7. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive the right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have be law, statute, ordinance or otherwise.
18.8. SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid, illegal or unenforceable
to any extent, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected, and such
provision shall be enforceable to the fullest extend permitted by law.
18.9. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
18.10. CREDITORS. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditors of the Company.
18.11. ATTORNEYS' FEES. In the event any action or proceeding is brought
by any party to enforce the terms of this Agreement, the prevailing party in
such action or proceeding shall be entitled to recover attorneys' fees and costs
in addition to any other relief.
18.12. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same instrument.
18.13. CONFLICTS OF INTEREST. The Members acknowledge and agree that
Bruce L. Dibb ("Counsel") represents the Company solely with respect to the
formation of the Company, and that the Members have been advised to seek their
own legal and tax counsel in connection with the transactions contemplated
herein, including this Agreement and the formation of the Company. The Members
acknowledge and agree that Counsel represents Dynatec and Muito Bem, Ltd. The
members of the Weiser Group waive any conflict of interest arising by reason of
such representation and the formation of the Company. Payment of Counsel's fees
by the Company shall not
Page 33-40
<PAGE>
alter or amend any of the relationships contemplated in this paragraph.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date first written above.
WEISER TELECOMMUNICATIONS, INC. DYNATEC INTERNATIONAL, INC.
BY /S/ ISAAC WEISER BY /S/ FR JACK
------------------- --------------------------
Its: Secretary Its: President & C.O.O.
MUITO BEM LTD.
/S/ MARGARET WEISER BY /S/ DON WOOD
- --------------------- --------------------------
MARGARET WEISER Its:
STATE OF UTAH )
)ss.
County of Salt Lake )
SUBSCRIBED AND SWORN TO before me this 12th day of January, 1996 by F.R.
Jack, the duly authorized President of Dynatec International, Inc.
/S/ BRUCE L. DIBB
----------------------------
(seal) Notary Public
Page 34-40
<PAGE>
********************************************************************************
STATE OF UTAH )
)ss.
County of Salt Lake )
SUBSCRIBED AND SWORN TO before me this 12th day of January, 1996 by Isaac
Weiser, the duly authorized Secretary of Weiser Telecommunications, Inc.
/s/ Bruce L. Dibb
--------------------
(seal) Notary Public
********************************************************************************
STATE OF UTAH )
)ss.
County of Salt Lake )
SUBSCRIBED AND SWORN TO before me this 12th day of January, 1996 by
Margaret Weiser.
/s/ Bruce L. Dibb
--------------------
(seal) Notary Public
********************************************************************************
STATE OF UTAH )
)ss.
County of Salt Lake )
SUBSCRIBED AND SWORN TO before me this 12th day of January, 1996 by Don
Wood, officer of the duly authorized General Partner of Muito Bem Ltd.
/s/ Bruce L. Dibb
--------------------
(seal) Notary Public
********************************************************************************
Page 35-40
<PAGE>
SCHEDULE 2.1
CAPITAL CONTRIBUTIONS
WEISER TELECOMMUNICATIONS, INC. contributes to the Company the exclusive license
to the trade names, trademarks, copyrights, patents, patent rights and trade
secrets referred to in paragraphs 11.2.9, 11.2.10 and 11.1.11 of the Operating
Agreement, existing ideas for products and inventions not yet developed into
prototype or finished products, and the exclusive use of such rights for the
exclusive license to use, manufacture and market the products of Weiser
Telecommunications, Inc., including those products listed in Schedule 11.2.25
attached to the Operating Agreement, and those products which are subsequently
developed by Weiser and the Company, or obtained by Weiser, after the formation
of the Company. It is specifically the contemplation of the Members that this
capital contribution includes the necessary technology to develop the new
generation of products which has been discussed by the representatives of the
Members. Weiser's capital contribution shall also include the right to use,
for the Company's manufacturing, assembly and distribution functions, the Weiser
equipment and tooling referred to in paragraph 11.2.7 of the Agreement for the
duration of the existence of the Company and the leased premises currently used
by Weiser, until the termination of such lease. The use of the equipment and
tooling, as referred to herein, includes the right to pledge the equipment and
tooling for a security interest for the Dynatec line of credit that will be
used for the benefit of the Company as provided herein, subject to existing
encumbrances as of the date of this Agreement. Weiser shall secure from Isaac
Weiser and Margaret Weiser, and shall assign to the Company, an agreement
acceptable in form and terms to a Majority in Interest whereby Isaac Weiser and
Margaret Weiser shall grant a right of first refusal to manufacture and market
any products, product ideas or inventions which they own and which are not
contributed to the Company pursuant to this provision regarding capital
contributions.
MARGARET WEISER contributes an exclusive license to the new generation product
ideas and related trade secrets for the following products, which are described
more particularly on the unattached Schedule A, which has been reviewed and
initialed by the Members of the Company. The names of the new generation
products are: Cordless Speaker Telephone; Telephone Headset With Sound Board;
Telephone Headset With Message Recording; Telephone Headset Amplifier That Sits
Under Any Telephone; Headset/Modem.
DYNATEC INTERNATIONAL, INC. contributes to the Company its extensive marketing
expertise, the benefit of its established sales representative organization, its
established marketing contracts and distribution channels in the office
products, hardware and mass markets, and its established long-term banking
relationships. In this regard, Dynatec will access its bank line of credit for
the benefit of providing funding for the Company. The extent of the
Page 36-40
<PAGE>
credit drawn down in this manner will be determined by Dynatec, in its sole
discretion, based upon the needs of the Company and of Dynatec. The use of the
Dynatec line of credit is dependent upon the lending institution receiving a
first priority security interest in all of the assets of the Company, including
the Company's inventory and receivables, subject to existing encumbrances as of
the date of this Agreement. Additional financing secured by Dynatec for the
operations of the Company will not be considered a capital contribution of
Dynatec, unless approved as such by a Supermajority in Interest.
MUITO BEM LTD. contributes to the Company $100,000 in cash.
Page 37-40
<PAGE>
SCHEDULE 5.1
PERCENTAGE INTERESTS
Weiser Telecommunications, Inc..................................Two Percent (2%)
Margaret Weiser.................................................Two Percent (2%)
Dynatec International, Inc.............................Forty-Eight Percent (48%)
Muito Bem Ltd..........................................Forty-Eight Percent (48%)
Page 38-40
<PAGE>
SCHEDULE 11.1.4-1
DYNATEC YEAR END FINANCIAL STATEMENTS
********************************************************************************
SCHEDULE 11.1.4-2
DYNATEC STUB PERIOD FINANCIAL STATEMENTS
********************************************************************************
SCHEDULE 11.2.4
WEISER YEAR END FINANCIAL STATEMENTS
********************************************************************************
SCHEDULE 11.2.6
WEISER TAX OBLIGATIONS
********************************************************************************
SCHEDULE 11.2.7-1
WEISER EQUIPMENT LIST
********************************************************************************
SCHEDULE 11.2.7-2
WEISER LEASE AGREEMENT, SECURITY AGREEMENT, ETC.
LIST REGARDING EQUIPMENT
********************************************************************************
SCHEDULE 11.2.8
ACCOUNTS RECEIVABLE
********************************************************************************
SCHEDULE 11.2.9
TRADE NAMES, TRADEMARKS, AND COPYRIGHTS
********************************************************************************
SCHEDULE 11.2.10
WEISER PATENTS AND PATENT RIGHTS
********************************************************************************
Page 39-40
<PAGE>
SCHEDULE 11.2.11
TRADE SECRETS
********************************************************************************
SCHEDULE 11.2.13
CURRENT CUSTOMER LIST
********************************************************************************
SCHEDULE 11.2.14
EXISTING EMPLOYMENT CONTRACTS
********************************************************************************
SCHEDULE 11.2.15
INSURANCE POLICIES
********************************************************************************
SCHEDULE 11.2.16
CONTRACTS DESCRIBED IN PARAGRAPH 11.2.16
********************************************************************************
SCHEDULE 11.2.18
LITIGATION
********************************************************************************
SCHEDULE 11.2.25
PRODUCT MARGINS FOR THE SIX MONTH PERIOD
AFTER FORMATION OF THE COMPANY
********************************************************************************
SCHEDULE 12.26
FORM OF PROPRIETARY INFORMATION AND
INVENTIONS AGREEMENT
Page 40-40
<PAGE>
January 18, 1995
DYNATEC INTERNATIONAL INC. ANNOUNCES JOINT VENTURE AGREEMENT
Nasdaq Symbol: DYNX
DYNATEC INTERNATIONAL INC. announced a joint venture agreement today with Weiser
Telecommunications Inc. and individuals Isaac and Peggy Weiser. The Agreement
calls for Dynatec to own forty six percent (46%) of WiTec Industries, a limited
liability company formed in the State of Utah. WiTec Industries will be
involved in the manufacture and marketing of corded and cordless telephone
headsets for use in various industrial, business and personal applications. The
company will in the near future, also introduce a new line of telephone
accessory products. The advisory board and officers of the company will be made
up of individuals from Dynatec International Inc. and Weiser Telecommunications
Inc.
For further information, contact Mr. David J. White, Executive Vice-President at
1-800-722-7425.
Page 6-40
<PAGE>
Exhibit 99
PRODUCTS OF WITEC INDUSTRIES, L.L.C.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------
- --------------------------------------------------------------------
PRODUCT STOCK NUMBER
- --------------------------------------------------------------------
<S> <C>
ONE-UP-TM- BINAURAL HEADSETS
- ----------------------------
- --------------------------------------------------------------------
Daystart II RJ-TM- RJ-75
- --------------------------------------------------------------------
Daystart II-TM- 025-75
- --------------------------------------------------------------------
Headphone 1A-TM- 015-75
- --------------------------------------------------------------------
Walk-N-Talk-TM- WT-75
- --------------------------------------------------------------------
ONE-UP-TM- MONAURAL HEADSET
- --------------------------------------------------------------------
Day Start III RJ-TM- RJ-50
- --------------------------------------------------------------------
Daystart II-TM- 025-50
- --------------------------------------------------------------------
Headphone 1A-TM- 015-50
- --------------------------------------------------------------------
Walk-N-Talk-TM- WT-50
- --------------------------------------------------------------------
3-IN-1-TM- BINAURAL HEADSET
- --------------------------------------------------------------------
Daystart IIRJ-TM- RJ-25
- --------------------------------------------------------------------
Daystart II-TM- 025-25
- --------------------------------------------------------------------
Headphone 1A-TM- 015-25
- --------------------------------------------------------------------
Walk-N-Talk-TM- WT-25
- --------------------------------------------------------------------
TRILUX-TM- HEADSET
- --------------------------------------------------------------------
Daystart IIRJ-TM- RJ-05
- --------------------------------------------------------------------
Daystart II-TM- 025-05
- --------------------------------------------------------------------
Headphone 1A-TM- 015-05
- --------------------------------------------------------------------
Walk-N-Talk-TM- WT-05
- --------------------------------------------------------------------
CORDLESS HEADSETS AND HANDSETS
- --------------------------------------------------------------------
Walk-N-Talk-TM- Cordless Headset Telephone 040-75
- --------------------------------------------------------------------
Office-Mate-TM- Cordless Binaural Headset 850-75
- --------------------------------------------------------------------
Office-Mate-TM- Cordless Monaural Headset 850-50
- --------------------------------------------------------------------
Office Mate-TM- Cordless Handset 900-BGE
- --------------------------------------------------------------------
- --------------------------------------------------------------------
</TABLE>
Page 7-40
