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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
July 1, 1998
Date of Report (Date of earliest event reported)
TRANSACTION NETWORK SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-23856 54-1555332
(State or other jurisdiction (Commission (IRS Employer
of incorporation or organization) File No.) Identification No.)
1939 Roland Clarke Place, Reston, Virginia 20191
(Address of principal executive offices and zip code)
(703) 453-8300
(Registrant's telephone number, including area code)
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Item 2. Acquisition or Disposition of Assets.
On July 1, 1998, Transaction Network Services, Inc. (the "Company") acquired
subtatantially all of the assets and assumed certain liabilities (composed
principally of trade payables) of OmniLink Communications Corporation
("OmniLink"), a Michigan corporation. The consideration paid to OmniLink after
arm's-length negotiations was $2.5 million, composed of (a) approximately
$600,000 in cash paid by the Company and (b) approximately $1.9 million by
cancellation of OmniLink promissory notes payable to the Company in the
outstanding principal amount of $1.8 million (the "Notes") and approximately
$100,000 in accrued interest. The terms of the acquisition also include a
royalty payment from the Company to OmniLink of up to approximately 5% per unit
based upon future OmniLink product sales. The royalty agreement will terminate
upon the earlier of the date that OmniLink has received royalties aggregating
$5,000,000 or June 30, 2001.
Prior to the acquisition, OmniLink developed, manufactured and
marketed modems for electronic commerce, Internet access, telecommuting and
advanced office communications. The Company intends to continue to devote the
acquired OmniLink assets to these lines of business for the forseeable future.
The Company has also transferred certain recently acquired proprietary
technology to OmniLink for further development and integration into the OmniLink
modems; this development effort is intended to support the Company's strategy to
offer dial-up ISDN access services to both domestic and international customers
who have traditionally relied upon more expensive leased line communications to
process transactions originated at both point-of-sale (POS) locations as well as
automated teller machines (ATMs).
In November 1997, the Company loaned OmniLink $500,000, and in
1998, the Company loaned OmniLink an additional $1,025,000. Interest accrued at
13% and the Notes were to mature in November 1998. In connection with these
loans the Company received the exclusive European distribution rights to
OmniLink's products used in connection with the provision of POS and ATM
services. A limited partnership (the "Partnership"), controlled by the Company's
Chief Executive Officer, and a venture capital firm, one of whose managing
partners is also a director of the Company, are each minority shareholders of
OmniLink and are holders of subordinated notes issued by OmniLink. The
Partnership also guaranteed OmniLink's payment of the notes payable to the
Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Business Acquired.
The required financial statements for OmniLink are not
available and will be filed by amendment hereto no later than 60 days after the
date this report is required to be filed.
(b) Pro Forma Financial Information.
The required pro forma financial information will be filed at the time
the required financial statements for OmniLink are filed.
(c ) Exhibits.
Asset Purchase Agreement dated July 1, 1998 by and between
Transaction Network Services, Inc. and OmniLink Communications Corporation.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TRANSACTION NETWORK SERVICES, INC.
Dated: July 15, 1998 By: /s/ Thaddeus G. Weed
--------------------
Thaddeus G. Weed
Chief Financial Officer
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Exhibit 7 (c)
ASSET PURCHASE
AGREEMENT
BY AND BETWEEN
TRANSACTION NETWORK SERVICES, INC.
AND
OMNILINK COMMUNICATIONS CORPORATION
DATED
JULY 1, 1998
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TABLE OF CONTENTS
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ARTICLE I PURCHASE AND SALE ........................................................1
1.01 Assets Purchased.................................................1
1.02 Exclusion of Liabilities.........................................2
1.03 Non-Competition Agreement........................................2
1.04 [intentionally deleted]..........................................2
1.05 Bill of Sale and General Assignment and
Assumption Agreement ............................................3
1.06 PTO Assignment...................................................3
1.07 Lease Assignment.................................................3
1.08 Royalty Agreement................................................3
1.09 Further Assurances, Best Efforts.................................3
ARTICLE II LIABILITIES NOT BEING ASSUMED.............................................3
2.01 Liabilities Not Assumed..........................................3
2.02 Indemnity........................................................4
ARTICLE III PURCHASE PRICE............................................................5
3.01 Purchase Price...................................................5
3.02 Payment of Purchase Price at Closing.............................6
ARTICLE IV THE CLOSING...............................................................6
4.01 The Closing......................................................6
4.02 OmniLink's Deliveries at the Closing.............................6
4.03 TNS's Deliveries at the Closing..................................6
ARTICLE V REPRESENTATIONS AND WARRANTIES OF OMNILINK................................6
5.01 Organization.....................................................6
5.02 Authorization....................................................7
5.03 No Violation.....................................................7
5.04 Governmental Authorities.........................................7
5.05 Financial Statements.............................................7
5.06 No Undisclosed Liabilities.......................................8
5.07 Absence of Certain Changes.......................................8
5.08 Assets...........................................................8
5.09 Litigation.......................................................9
5.10 Tax Matters......................................................9
5.11 Proprietary Rights..............................................10
5.12 Compliance with Applicable Laws.................................10
5.13 Accounts Receivable.............................................10
5.14 Employees; Employee Benefit Plans...............................10
5.15 Labor Matters...................................................10
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5.16 Brokers.........................................................11
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF TNS....................................11
6.01 Corporate Organization..........................................11
6.02 Authorization...................................................11
6.03 No Violation....................................................11
6.04 Governmental Authorities........................................12
6.05 Brokers.........................................................12
ARTICLE VII COVENANTS OF OMNILINK AND TNS............................................12
7.01 Confidentiality.................................................12
7.02 Access..........................................................12
7.03 Employees.......................................................13
7.04 Patent Claim....................................................13
7.05 Audit...........................................................13
ARTICLE VIII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF TNS...........................13
8.01 Representations and Warranties; Performance.....................14
8.02 Opinion of Counsel..............................................14
8.03 Royalty Agreement...............................................14
8.04 Support Agreement...............................................14
8.05 Consents........................................................14
8.06 Release of Liens................................................14
8.07 Injunctions.....................................................14
8.08 Further Documentation...........................................14
ARTICLE IX CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF OMNILINK..............................................................14
9.01 Representations and Warranties; Performance.....................15
9.02 Opinion of Counsel..............................................15
9.03 Royalty Agreement...............................................15
9.04 Injunctions.....................................................15
9.05 Further Documentation...........................................15
ARTICLE X COMPETITION..............................................................15
10.01 Duration and Scope..............................................15
10.02 Prohibited Activities...........................................15
10.03 Breach..........................................................15
10.04 Intent of Parties...............................................15
ARTICLE XI INDEMNIFICATION..........................................................16
11.01 Indemnification.................................................16
11.02 Limitation......................................................16
11.03 Claims by Third Parties.........................................16
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ARTICLE XII POST-CLOSING OPERATIONS..................................................17
12.01 Post-Closing Date Operations of OmniLink........................17
ARTICLE XIII MISCELLANEOUS PROVISIONS.................................................17
13.01 Amendment and Modification......................................17
13.02 Waiver of Compliance; Consents..................................17
13.03 Investigations; Survival of Representations and Warranties......18
13.04 Notices.........................................................18
13.05 Assignment......................................................19
13.06 Counterparts....................................................19
13.07 Headings........................................................19
13.08 Governing Law...................................................19
13.09 Time of Essence.................................................19
13.10 Attorneys' Fees.................................................19
13.11 Entire Agreement................................................19
13.12 Expenses........................................................19
13.13 Severability....................................................19
Exhibits
Exhibit 1: Bill of Sale and General Assignment and Assumption Agreement
Exhibit 2: PTO Assignment
Exhibit 3: Lease Assignment
Exhibit 4: Royalty Agreement
Exhibit 5: OmniLink Disclosure Schedule
Exhibit 6: TNS Disclosure Schedule
Exhibit 7: Opinion of OmniLink's Counsel
Exhibit 8: Opinion of TNS's Counsel
Exhibit 9: Support Agreement
Exhibit 10: Release of Security Agreement
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ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made as of
July 1, 1998 by and between Transaction Network Services, Inc., a Delaware
corporation ("TNS"), and OmniLink Communications Corporation, a Michigan
corporation ("OmniLink").
R E C I T A L S:
OmniLink is engaged, among other things, in the business of
manufacturing integrated services digital network ("ISDN") products such as
modems as well as integrating ISDN products with existing communications
equipment (the "Business"). OmniLink desires to sell and TNS desires to purchase
from OmniLink certain of the assets used by OmniLink in connection with the
Business upon and subject to the terms set forth herein (the "Sale").
NOW THEREFORE, in consideration of the premises and of the
mutual provisions, agreements and covenants herein contained, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE
1.01 Assets Purchased. Subject to the terms hereof, TNS
agrees to purchase from OmniLink, and OmniLink agrees to sell to TNS free and
clear of all liabilities, security interests, leases, liens and encumbrances
whatsoever, the following assets (the "Assets"):
(a) All equipment, inventory, and other tangible
personal property identified on Schedule 1.01(a) hereto.
(b) All computer programs, products and
components used in connection with the Business and more particularly identified
on Schedule 1.01(b) hereto, including all copyrights (including rights in the
structure, sequence and organization of the Programs, all screen layouts,
command sequences and user interfaces), copyright registrations, copyright
applications and patent rights (including, without limitation, issued patents,
applications, divisions, continuations and continuations-in-part, reissues,
patents of addition, utility models and inventors' certificates) on such
programs, products and components and related software ("Programs"). The
Programs shall include (i) all present and predecessor versions of the above
programs and any versions currently under development and related source and
object code and all right to manufacture, use and sell the same and (ii) all
rights, claims and causes of action arising out of any employment,
non-competition, confidentiality or other similar agreement, obligation or
understanding between, or arising out of, any existing or former employee's
employment relationship with OmniLink, to the extent that such rights relate to
the programs described above.
(c) All existing specifications and documents for
the use and maintenance of the Programs, including but not limited to, all user
guides, installation guides, systems listings,
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narrative descriptions, file layouts, logic flow diagrams, source and load
modules, output reports, test or other data, test programs and other necessary
information that is owned, used or held by OmniLink with respect to the Programs
("Documentation").
(d) All right, title, interest and benefit of
OmniLink in, to and under the contracts, agreements, leases and licenses
identified on Schedule 1.01(d) hereto (the "Assigned Rights").
(e) All right, title and interest of OmniLink in
and to all patents, registered or unregistered tradenames, trademarks and
servicemarks and registered or unregistered copyrights and applications therefor
and goodwill associated therewith ("Rights") owned by OmniLink and all trade
secrets, proprietary information, concepts, designs, drawings, plans and
know-how, inventions and inventors' notes relating to the Programs, the
Documentation or the Business and more particularly identified on Schedule
1.01(e) hereto (collectively, the "Proprietary Rights").
(f) All rights, claims and causes of action
arising out of any employment, non-competition, confidentiality or other similar
agreement, obligation or understanding between, or arising out of, any existing
or former employee's employment relationship with OmniLink to the extent that
such rights relate to the Programs or the Proprietary Rights.
(g) All accounts receivable.
(h) All right, title, interest and benefit of
OmniLink in, to and under all orders received from customers prior to the
Closing.
(i) All of the goodwill associated with the
Business, including but not limited to, the exclusive right to use telephone
numbers (subject to the rights of the telephone company) and any and all lists
of vendors and the past procurement history from each vendor, all records of
prices and customers, and all sales literature, catalogues, and promotional
materials.
(j) All right, title, interest and benefit of
OmniLink in and to all security deposits (but not bank accounts or bank
deposits) associated with the Business, including the deposit made by OmniLink
under the Lease Agreement by and between OmniLink and Granger Park Development
L.L.C. dated December 1996 for the office located at 3101 Technology Blvd.,
Suite C, Lansing, Michigan (the "Lease").
1.02 Exclusion of Liabilities: Except as expressly provided in the
General Assignment and Assumption Agreement to be executed pursuant to Section
1.05, TNS shall not assume any liabilities of OmniLink.
1.03 Non-Competition Agreement: After the Closing, OmniLink shall not
compete with TNS, as provided in Article X.
1.04 [intentionally deleted]
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1.05 Bill of Sale and General Assignment and Assumption Agreement. At
the Closing, OmniLink and TNS shall execute a Bill of Sale and General
Assignment and Assumption Agreement, substantially in the form of Exhibit 1
hereto (the "Bill of Sale and General Assignment and Assumption Agreement").
Pursuant to the Bill of Sale and General Assignment and Assumption Agreement,
TNS shall assume, and agree to pay, perform, fulfill and discharge, the
obligations and liabilities of OmniLink identified on Schedule 1.05 attached
hereto (the "Assumed Liabilities").
1.06 PTO Assignment. At the Closing, TNS and OmniLink shall execute
Assignments, substantially in the form of Exhibit 2 hereto (the "PTO
Assignments"), assigning the Rights registered with the Patent and Trademark
Office.
1.07 Lease Assignment. At the Closing, TNS and OmniLink shall execute a
Lease Assignment, substantially in the form of Exhibit 3 hereto (the "Lease
Assignment"), assigning the Lease.
1.08 Royalty Agreement. At the Closing, TNS and OmniLink shall execute
a Royalty Agreement, substantially in the form of Exhibit 4 hereto (the "Royalty
Agreement").
1.09 Further Assurances Best Efforts. After the Closing, OmniLink and
TNS shall take such other action and execute and deliver such other documents as
may be reasonably requested by TNS or OmniLink from time to time to effectuate,
facilitate and confirm the transfer of the Assets to TNS. OmniLink shall use its
best efforts to take, or cause to be taken, all action or do, or cause to be
done, all things necessary, proper or advisable under this Agreement, applicable
laws and regulations to enable, consummate, make effective and evidence the
transactions contemplated hereby.
ARTICLE II
LIABILITIES NOT BEING ASSUMED
2.01 Liabilities Not Assumed. OmniLink agrees that, except as expressly
assumed pursuant to the Bill of Sale and General Assignment and Assumption
Agreement, TNS will not assume or pay any debts, liabilities or obligations of
OmniLink and, without limiting the generality of the foregoing, will not assume
or pay:
(a) any obligations or liabilities to OmniLink's employees arising
prior to the Closing, including without limitation, any obligation or
liability under any collective bargaining agreement, or any pension,
profit-sharing or other employee benefit plan affecting any employee or
former employee or OmniLink;
(b) any obligation or liabilities of OmniLink to third parties,
including, without limitation, (i) outstanding purchase orders not
expressly assumed by TNS pursuant
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to the Bill of Sale and General Assignment and Assumption Agreement and
(ii) any contingent liabilities based upon OmniLink's failure to perform
any agreement, contract, commitment or lease in accordance with its terms
prior to the Closing;
(c) any tax liabilities (and any interest or penalties relating
thereto) of OmniLink, including any liabilities related to or arising from
the tax lien filed by the Michigan Employment Security Agency;
(d) any tax imposed upon OmniLink by reason of the sale or transfer of
the Assets or on any income or gain derived from the Business;
(e) any liabilities or obligations incurred by OmniLink after the
Closing;
(f) any claim, regardless of when made or asserted, arising out of or
is based upon negligence, strict liability or the breach of any express or
implied representation, warranty, agreement or guarantee made by OmniLink,
or which is imposed or asserted to be imposed by operation of law, in
connection with any product sold or service provided by or on behalf of
OmniLink prior to Closing;
(g) any obligations or liabilities with respect to any federal, state or
local law or regulation, or any right of any employee or third party,
arising out of the generation, storage, use, transportation, discharge or
disposal of any hazardous waste or hazardous substance;
(h) any claim asserted by Franklin D. Tarquini with respect to OmniLink,
including, with respect to his employment by OmniLink, his investment in
OmniLink and any another aspect of his relationship with OmniLink; or
(i) any claim asserted by AmpTech, Inc. with respect to OmniLink, including
with respect to any inventory and any other aspect of AmpTech's
relationship with OmniLink.
2.02 Indemnity. The liabilities and obligations retained by OmniLink
pursuant to Section 2.01, including, without limitation, items (a) through (i)
above, are collectively referred to herein as the "Retained Liabilities." TNS
hereby waives compliance by OmniLink with the provisions of the Bulk Transfer
Law of any state, if applicable to the transactions contemplated hereby.
OmniLink hereby indemnifies and agrees to hold TNS harmless from, against and in
respect of (and on demand shall reimburse TNS for) any loss, liability, cost or
expense, including, without limitation, reasonable attorneys' fees
(collectively, a "Loss") suffered or incurred by TNS by reason of the failure of
OmniLink to pay or discharge any Retained Liabilities when the same shall become
due and payable. OmniLink may assume at its expense the defense of any claim
asserted against TNS with respect to the Retained Liabilities if it agrees in
writing that it is obligated hereunder to indemnify and hold TNS harmless in
accordance with this Section 2.02.
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ARTICLE III
PURCHASE PRICE
3.01 Purchase Price.
(a) The purchase price for the Assets is $2,500,000.
(b) The purchase price shall be subject to adjustment as follows:
(i) TNS in cooperation with OmniLink shall, by July 15, 1998, complete an
audit of the actual amount of the Assumed Liabilities and provide a
statement with respect to the results of such audit to OmniLink. Such
statement shall be prepared in accordance with Generally Accepted
Accounting Principles on a basis consistent with the OmniLink Financial
Statements (as defined in Section 5.05).
(ii) If the Assumed Liabilities as set forth in such statement shall exceed
the amount of such liabilities as set forth in the OmniLink Unaudited
Financial Statements (as defined in Section 5.05) by more than $150,000,
TNS shall be entitled to deduct from the Holdback (as defined in Section
3.02) an amount equal to the excess over the amount stated in the OmniLink
Unaudited Financial Statements.
(iii) If OmniLink shall not have paid and satisfied the tax lien in the
amount of $18,969.21 filed against OmniLink by the Michigan Employment
Security Agency plus any interest and penalties thereon by July 15, 1998,
TNS shall be entitled to deduct from the Holdback an amount equal to such
lien, interest and penalties and to apply such amount to the payment and
satisfaction of such lien, interest and penalties.
(iv) Following the payment of all amounts payable pursuant to subparagraphs
(ii) and (iii), the remainder, if any, of the Holdback promptly shall be
paid to OmniLink.
(v) Notwithstanding the foregoing, TNS shall retain all rights to indemnity
with respect to OmniLink's representations, warranties and covenants, and
TNS's remedy with respect to the inaccuracy or breach of any such
representation, warranty or covenant shall not be limited by the right to
recover the Holdback amounts. However, sums received by TNS from the
Holdback shall reduce, pro tanto, TNS's rights to indemnity with respect to
such inaccuracy or breach.
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3.02 Payment of Purchase Price at Closing. At the Closing, TNS shall
(a) pay OmniLink $395,914.69 in the form of a certified check or wire transfer,
(b) pay OmniLink $1,904,085.31 by assuming the OmniLink promissory notes in the
principal amount of $1,800,000 held by TNS Investments, Inc. (the "Notes") and
(c) hold back $200,000 (the "Holdback") to be paid to OmniLink in accordance
with Section 3.01(b).
ARTICLE IV
THE CLOSING
4.01 The Closing. Subject to the terms and conditions set forth herein,
the closing of the transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of TNS, 1939 Roland Clarke Place, Reston,
Virginia at 10:00 a.m. on Wednesday, July 1, 1998, or at such other place or
places and at such other time as the parties may agree (the "Closing Date").
4.02 OmniLink's Deliveries at the Closing. OmniLink shall deliver or
cause to be delivered to TNS at the Closing, the Bill of Sale and General
Assignment and Assumption Agreement, the PTO Assignment, the Lease Assignment,
the Royalty Agreement and the Releases (as defined in Section 8.06).
4.03 INS's Deliveries at the Closing. TNS shall deliver or cause to be
delivered to OmniLink at the Closing, a certified check or wire transfer payable
to the order of OmniLink in the amount of $395,914.69, the Bill of Sale and
General Assignment and Assumption Agreement, the PTO Assignment, the Lease
Assignment, the Royalty Agreement and a release of the liens securing the Notes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OMNILINK
OmniLink hereby represents and warrants to TNS the following, except as
stated in the disclosure schedule attached hereto as Exhibit 5 (the "OmniLink
Disclosure Schedule").
5.01 Organization. OmniLink is a corporation duly organized and validly
existing under the laws of Michigan and has full corporate power and authority
to carry on its business as it is now being conducted and to own the properties
and assets it now owns; OmniLink is duly qualified or licensed to do business as
a foreign corporation in each jurisdiction set forth on the OmniLink Disclosure
Schedule, which are the only jurisdictions in which such qualification or
authorization is required by law and in which failure so to qualify or be
authorized could have a material adverse effect on (a) the Business or (b) the
properties, condition (financial or otherwise), results of operations or
prospects of OmniLink. OmniLink has no subsidiaries nor does it own any interest
in any corporation, partnership, joint venture, limited liability company, trust
or other entity.
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5.02 Authorization. OmniLink has full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
The shareholders of OmniLink (the "Shareholders") have duly authorized and
approved the execution and delivery of this Agreement and the transactions
contemplated hereby. OmniLink has completed all other necessary actions to
authorize and approve this Agreement and the transactions contemplated hereby.
This Agreement is a legal, valid and binding obligation of OmniLink, enforceable
against OmniLink in accordance with its terms.
5.03 No Violation. Neither OmniLink nor any of its properties is
subject to or obligated under any law, rule or regulation of any governmental
authority, or any order, writ, injunction or decree, or any agreement,
instrument, license, franchise or permit, which (a) would be breached or
violated by entering into this Agreement or the consummation of the transactions
contemplated hereby and (b) which breach or violation would have a material
adverse effect on OmniLink's ability to consummate the transactions hereunder or
on (i) the Business or (ii) the properties, condition (financial or otherwise),
results of operations or prospects of OmniLink. Entering into this Agreement and
the consummation of the transactions contemplated hereby do not and will not
conflict with, result in a breach or violation of, or a default under (x)
OmniLink's articles of incorporation or bylaws, (y) any obligation under any
mortgage, lease, agreement or instrument applicable to OmniLink or any of its
properties or (z) any law, rule, regulation, judgment, order or decree of any
government or governmental or regulatory authority or court having jurisdiction
over OmniLink or any of its properties, which breach or violation would have a
material adverse effect on OmniLink's ability to consummate the transactions
hereunder or on (i) the Business or (ii) the properties, condition (financial or
otherwise), results of operations or prospects of OmniLink.
5.04 Governmental Authorities. No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
entity is required by or with respect to OmniLink in connection with entering
into this Agreement or the consummation of the transactions contemplated hereby,
except for (a) the filing of the PTO Assignments with the Patent and Trademark
Office, (b) the filing of the Releases with the Patent and Trademark Office, (c)
the filing of a UCC-3 partial release with the appropriate Michigan state and
county filing officers and (d) such other consents, authorizations, filings,
approvals and registrations which if not obtained or made would not have a
material adverse effect on (i) OmniLink's ability to consummate the transactions
hereunder, (ii) the Business or (iii) the properties, condition (financial or
otherwise), results of operations or prospects of OmniLink.
5.05 Financial Statements.
(a) OmniLink has made available to TNS true and complete copies of
OmniLink's audited, but not issued, financial statements for the year ended
December 31, 1997 (the "OmniLink Financial Statements"). The OmniLink Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the
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periods involved (except as may be indicated in the notes thereto) and fairly
present the financial position of OmniLink as of their respective dates and the
results of operations and cash flows for the periods then ended.
(b) OmniLink has provided to TNS the unaudited balance sheet, and
related unaudited statements of income, for OmniLink for the six (6) months
ended June 30, 1998 (the "OmniLink Unaudited Financial Statements"). The
OmniLink Unaudited Financial Statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis for the
periods involved (except as may be indicated in the notes thereto) and fairly
present the financial position of OmniLink as of its date and the results of
operations for the periods then ended, subject to the absence of complete
footnotes thereto. For purposes of this Agreement, the unaudited balance sheet
of OmniLink at June 30, 1998, including the notes thereto, is hereinafter
referred to as the "OmniLink Balance Sheet."
5.06 No Undisclosed Liabilities. Except for (a) liabilities and
obligations disclosed in the OmniLink Disclosure Schedule and (b) liabilities
and obligations incurred in the ordinary course of business since the date of
the OmniLink Balance Sheet and (c) the liabilities and obligations expressly set
forth in this Agreement, neither OmniLink nor any of its properties is subject
to any material liability or obligation (absolute, accrued, contingent or
otherwise) which was not fully reflected or reserved against in the OmniLink
Balance Sheet.
5.07 Absence of Certain Changes. Except as disclosed in the OmniLink
Disclosure Schedule or as contemplated or permitted by this Agreement, since the
date of the OmniLink Balance Sheet there has not been: (a) any material adverse
change in (i) the Business or (ii) the properties, condition (financial or
otherwise), operations or prospects of OmniLink; (b) any damage, destruction or
loss, whether covered by insurance or not, materially and adversely affecting
(i) the Business or (ii) the business or properties of OmniLink; (c) any
transaction by OmniLink not in the ordinary course of business materially
adversely affecting (i) the Business or (ii) OmniLink; or (d) any understanding
or agreement, whether in writing or otherwise, to take any action described in
this Section 5.07.
5.08 Assets.
(a) Except as disclosed in Section 5.08 of the OmniLink Disclosure
Schedule, OmniLink has good and marketable title to the Assets free and clear of
all mortgages, liens, pledges, charges or encumbrances of any kind or character.
The Assets constitute all of the assets reasonably necessary for TNS to conduct
the Business as it is currently conducted.
(b) All the material machinery, equipment and other tangible personal
property included in the Assets are, and at Closing will be, in good operating
condition and repair (excepting normal wear and tear, defects the cost of
repairing which would not be material and any need for ordinary, routine
maintenance and repairs), are usable in the regular and ordinary course of
conduct of the Business and are in the possession of OmniLink. No person other
than
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OmniLink owns any tangible assets which are currently used in the operation
of the Business, except for leased items disclosed in the OmniLink Disclosure
Schedule and for items of immaterial value.
(c) Except as disclosed in Section 5.08 of the OmniLink Disclosure
Schedule, OmniLink has full and exclusive right, title and interest in and to
the Programs, Documentation and Proprietary Rights, free and clear of all
claims, liens, encumbrances. OmniLink has the right to bring actions for
infringement of the Programs, the Documentation and the Proprietary Rights, and
none of the Proprietary Rights infringe the rights of any other person. OmniLink
has taken all action reasonably necessary to maintain as trade secrets the
source codes and all other proprietary portions of the Programs.
Except as set forth in the OmniLink Disclosure Schedule, no source or object
code of any software included in the Programs is subject to escrow.
(d) Schedule 1.01(d) hereto sets forth a list of all of the Assigned
Rights. Each of the Assigned Rights is in full force and effect and, except as
expressly set forth in the OmniLink Disclosure Schedule, (i) none of the
Assigned Rights has been modified, amended, cancelled or terminated; (ii)
neither OmniLink nor any other party to any of the Assigned Rights, is in
material default of any of its respective obligations thereunder; (iii) no
notice has been given or received by OmniLink under any of the Assigned Rights
alleging a default by the recipient of such notice or a claim or offset against
the enforcement of such recipient's rights under any of such Assigned Rights;
and (iv) except as disclosed in Section 5.08 of the OmniLink Disclosure
Schedule, no consent or approval of the other party under any of the Assigned
Rights or of any other party is required to permit the transactions contemplated
by this Agreement, and such transactions will not conflict with, or result in
any breach or violation of or default under, any of the Assigned Rights, entitle
the other party to cancel or terminate the same or otherwise materially
adversely affect the rights of OmniLink or TNS thereunder. The copies of the
Assigned Rights that have heretofore been delivered or made available to TNS are
true, complete and correct copies of the Assigned Rights and reflect and
constitute the entire agreement between the parties thereto with respect to the
matters covered thereby.
5.09 Litigation. Except as otherwise set forth herein, there is no
investigation, suit, action, proceeding or claim pending or, to the best
knowledge of OmniLink, threatened or contemplated, which would materially and
adversely affect (a) the Business or (b) the properties, condition (financial or
otherwise), results of operations or prospects of OmniLink. Neither OmniLink nor
any of its properties or assets is subject to any judgment, injunction or decree
that materially and adversely affects (a) the Business or (b) the business,
properties, condition (financial or otherwise), results of operations or
prospects of OmniLink.
5.10 Tax Matters. Except as otherwise set forth herein, OmniLink has,
and by the Closing will have, paid or otherwise discharged all Taxes which are
due and which, if not paid or discharged, would materially adversely affect (a)
title to the Assets, (b) the Business or (c) the properties, condition
(financial or otherwise), results of operations or prospects of OmniLink. For
purposes of this Agreement, "Taxes" shall mean all taxes, assessments, charges,
duties, fees,
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levies or other governmental charges (including interest, penalties or additions
associated therewith) (including, without limitation, federal, state, city,
county, local, foreign, or other income, franchise, capital, withholding, real
or tangible property, employment, unemployment compensation, transfer, sales,
use, excise and all other taxes of any kind) imposed by the United States or any
state, city, county, country or foreign government or subdivision or agency
thereof, whether disputed or not.
5.11 Proprietary Rights. Section 5.11 of the OmniLink Disclosure
Schedule accurately identifies all Programs and all Rights licensed to OmniLink
by third parties, the ownership as well as the registered or unregistered status
of all the foregoing being separately stated. The Programs, Documentation and
Proprietary Rights, together with all Rights licensed to OmniLink by third
parties are adequate for the conduct of the Business. To the best knowledge of
OmniLink, no director, officer, employee or shareholder of OmniLink owns,
directly or indirectly, any interest in (a) any Program, Documentation or
Proprietary Rights, or (b) any Rights, which infringe upon, conflict with, or
relate to any Program, Documentation or Proprietary Rights. All persons who have
had access to the source code or other trade secrets contained in and regarding
the Programs, Documentation or Proprietary Rights have executed a non-disclosure
agreement with OmniLink.
5.12 Compliance with Applicable Laws. OmniLink in compliance with all
federal, state or local laws, statutes, ordinances, regulations, orders, decrees
and judgments applicable to it, except for violations, which, if an enforcement
action were brought, would not have a materially adverse affect on (a) the
Business or (b) the business, properties, condition (financial or otherwise),
results of operations or prospects of OmniLink.
5.13 Accounts Receivable. Except as set forth in Section 5.13 of the
OmniLink Disclosure Schedule, the accounts receivable reflected on the OmniLink
Balance Sheet with respect to the Business arose from bona fide transactions in
the ordinary course of business (except for amounts which are not, individually
or in the aggregate, material), and OmniLink has no reason to believe that such
receivable will not be collected in full or be fully collectible at their face
amounts (less any applicable reserves reflected in the OmniLink Unaudited
Financial Statements or thereafter established on a basis consistent with the
reserves reflected on the OmniLink Unaudited Financial Statements) within 90
days after the Closing.
5.14 Employees: Employee Benefit Plans. The OmniLink Disclosure
Schedule contains a true and complete list identifying each employee of
OmniLink, each such employee's position with OmniLink and the salary and other
compensation currently payable to each such employee. All employee benefit plans
or other material arrangements under which or to which OmniLink contributes to
or for the benefit of its employees are also accurately identified in the
OmniLink Disclosure Schedule.
5.15 Labor Matters. Except as set forth in the OmniLink Disclosure
Schedule, OmniLink has complied with the Occupational Safety and Health Act, the
regulations
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promulgated thereunder and all other applicable federal, state, local and
foreign laws relating to the employment of labor, including any provisions
thereto relating to wages, bonuses, collective bargaining, equal opportunity,
equal pay and the payment of social security and similar payroll taxes, except
where the failure to so comply could have a material adverse effect on (i) the
Business or (ii) the properties, condition (financial or otherwise), results of
operations or prospects of OmniLink. No employees of OmniLink is on strike nor
has threatened to strike. Except as set forth in the OmniLink Disclosure
Schedule, no unfair labor practice charges are pending or to the best of its
knowledge are threatened or contemplated against OmniLink.
5.16 Brokers. No broker or finder has, as a representative of OmniLink,
been employed by OmniLink or has any interest in this Agreement or the
transactions contemplated hereby.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF TNS
TNS hereby represents and warrants to OmniLink the following, except as
stated in the disclosure schedule attached hereto as Exhibit 6 (the "TNS
Disclosure Schedule").
6.01 Corporate Organization. TNS is a corporation duly organized and
validly existing under the laws of Delaware and has full corporate power and
authority to carry on its business as it is now being conducted and to own the
properties and assets it now owns; TNS is duly qualified or licensed to do
business as a foreign corporation in each jurisdiction set forth on the TNS
Disclosure Schedule, which are the only jurisdictions in which such
qualification or authorization is required by law and in which failure so to
qualify or be authorized could have a material adverse effect on the business,
properties, condition (financial or otherwise), results of operations or
prospects of TNS and its subsidiaries considered as a consolidated entity.
6.02 Authorization. TNS has full corporate power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby. The
Board of Directors of TNS (the "TNS Board") has duly authorized and approved the
execution and delivery of this Agreement and the transactions contemplated
hereby. TNS has completed all other necessary actions to authorize and approve
this Agreement and the transactions contemplated hereby. This Agreement is a
legal, valid and binding obligation of TNS, enforceable against TNS in
accordance with its terms.
6.03 No Violation. Neither TNS or any of its properties nor any
subsidiary or any of its properties, is subject to or obligated under any law,
rule or regulation of any governmental authority, or any order, writ, injunction
or decree, or any agreement, instrument, license, franchise or permit, which
would be breached or violated by the performance of this Agreement and the
consummation of the transactions contemplated hereby. The performance of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not conflict with, result in a breach or violation of, or a default
under (a) TNS's certificate of incorporation or
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bylaws, (b) any obligation under any mortgage, lease, agreement or instrument
applicable to TNS or any of its properties or any subsidiary or any of its
properties or (c) any law, rule, regulation, judgment, order or decree of any
government or governmental or regulatory authority or court having jurisdiction
over TNS or any of its properties or any subsidiary or any of its properties.
6.04 Governmental Authorities. No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
entity is required by or with respect to TNS in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby, except for (a) the filing of the PTO Assignments with the
Patent and Trademark Office, (b) the filing of the Releases with the Patent and
Trademark Office, (c) the filing of a UCC-3 partial release with the appropriate
Michigan state and county filing officers, (d) such disclosures, filings,
statements and reports under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or otherwise as may be required in connection with this
Agreement and the transactions contemplated hereby to be filed with the
Securities and Exchange Commission ("SEC") and (e) such other consents,
authorizations, filings, approvals and registrations which if not obtained or
made would not have a material adverse effect on TNS's ability to consummate the
transactions hereunder.
6.05 Brokers. No broker or finder has, as a representative of TNS, been
employed by TNS or has any interest in this Agreement or the transactions
contemplated hereby.
ARTICLE VII
COVENANTS OF OMNILINK AND TNS
7.01 Confidentiality. . OmniLink and TNS shall hold and shall cause
their attorneys, accountants or other agents or authorized representatives to
hold, in strict confidence, and not disclose to any other party or use for any
purpose other than to consummate the transactions contemplated by this
Agreement, without the express prior written consent of the other party, the
information contained in the TNS Disclosure Statement, the information contained
in the OmniLink Disclosure Statement and all other confidential information
exchanged in connection with entering into this Agreement or performing the
transactions contemplated hereby, except as may be required by applicable law or
as otherwise contemplated herein. Without the express prior written consent of
the other party, neither party shall provide any person a copy of this
Agreement, or communicate to any person the contents of this Agreement, except
to its attorneys, accountants or other agents or authorized representatives on a
need to know basis (all of whom shall have agreed to comply with the provisions
of this Section 7.01) or as required by applicable law.
7.02 Access. Following the Closing, OmniLink shall provide TNS access
at all reasonable times to all of OmniLink's books and records relating to the
Business (the "Records"), including, but not limited to, all lists of customers
and mailing lists, all sales materials and records, all original contracts and
all collections and credit records and related materials, and shall permit
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TNS to duplicate or otherwise make copies of or to take extracts from the
Records. OmniLink shall preserve the Records for at least three years from the
date of the Closing at their current location or at some other reasonably
convenient location.
7.03 Employees. TNS shall not be responsible for, nor shall it assume
any responsibility or liability for any of OmniLink's employees; provided,
however, that OmniLink has granted permission to TNS to interview OmniLink's
employees listed on Schedule 7.03 with respect to possible employment with TNS.
7.04 Patent Claim. OmniLink has advised TNS that it believes that it
has a valid claim against Motorola, Inc. for the infringement of United States
patent no. 5,621,731 included among the Rights (the "Claim"), and OmniLink
confirms that the Claim is being assigned to TNS along with the Rights. All
amounts hereafter received in settlement or judgment or in any other manner
pursuant to or related to the Claim, net of all losses, liability, costs or
expense (including, without limitation, reasonable attorneys' fees) incurred or
suffered by TNS in any way related to such Claim (including, without limitation,
any counterclaims asserted by Motorola, Inc.) are referred to collectively
herein as the "Net Recovery." TNS shall be entitled to retain 70% of any Net
Recovery and shall promptly pay from time to time OmniLink 30% of any Net
Recovery as and when received by TNS. Except as may be otherwise required by
law, OmniLink shall be relieved of any and all obligations accruing after the
Closing with respect to the Claim, including but not limited to any obligation
or responsibility to litigate the Claim, but OmniLink agrees (a) that it will
provide reasonable assistance to TNS in any prosecution of the Claim, including
but not limited to reasonable access to those books and records in possession of
OmniLink related to the Claim and to those employees of OmniLink who are
familiar with the Claim or matters related thereto, and (b) that TNS shall have
the sole and exclusive right, in its absolute discretion, to determine whether
to initiate any action to pursue, or not to pursue, the Claim, and if so
pursued, to determine to discontinue such pursuit at any time.
7.05 Audit. TNS has stated that it may desire to have OmniLink's
financial statements audited at TNS's cost and expense. OmniLink agrees to
cooperate in good faith with TNS and TNS's auditors in connection with any such
audit, provided that all costs and expenses of such audit, including OmniLink's
out-of-pocket costs and expenses (but not general overhead expense), shall be
borne by TNS. OmniLink acknowledges that any audit performed pursuant to this
Section 7.05 must be performed in an expeditious manner and agrees to cooperate
with TNS so that such audit shall be completed within seventy-five (75) days of
Closing Date.
ARTICLE VIII
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF TNS
Each and every obligation of TNS under this Agreement to be performed
at or before the Closing (except for its obligations with respect to
confidentiality) shall be subject to the satisfaction, at or before the Closing,
of each of the following conditions, except to the extent that
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TNS shall have waived such satisfaction:
8.01 Representations and Warranties: Performance. Each of the
representations and warranties made by OmniLink herein shall be true and correct
in all material respects as of the Closing with the same effect as though made
at such time; and OmniLink shall have performed and complied in all material
respects with all agreements, covenants and conditions required by this
Agreement to be performed and complied with by such party prior to the Closing.
OmniLink shall have delivered to TNS a certificate certifying to the fulfillment
of the foregoing conditions.
8.02 Opinion of Counsel. TNS shall have received an opinion of counsel
to OmniLink, in form and substance reasonably satisfactory to TNS dated as of
the date of the Closing, substantially to the effect set forth in Exhibit 7
hereto.
8.03 Royalty Agreement. TNS and OmniLink shall have executed the
Royalty Agreement, substantially in the form of Exhibit 4 hereto.
8.04 Support Agreement. TNS and Gateway Partners, L.P. shall have
executed the Support Agreement, substantially in the form of Exhibit 9 hereto.
8.05 Consents. OmniLink shall have obtained all consents required to
consummate the transactions contemplated herein, including any consents required
under (a) the Assigned Rights, (b)the Lease and (c) Source Code License by and
between Telesoft International, Inc. and OmniLink dated as of August 22, 1996.
8.06 Release of Liens. OmniLink shall have obtained the release of all
liens on the Assets, including the liens listed in Section 5.08 of the OmniLink
Disclosure Schedule, substantially in the form of Exhibit 10 hereto (the
"Releases").
8.07 Injunctions. No injunction or restraining order shall be in effect
to forbid or enjoin the consummation of this Agreement or the transactions
contemplated hereby and no action shall be pending seeking such an injunction or
restraining order.
8.08 Further Documentation. TNS shall have received such further
certificates and documents as shall be reasonably requested by TNS.
ARTICLE IX
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF OMNILINK
Each and every obligation of OmniLink under this Agreement to be
performed at or before the Closing (except for its obligations with respect to
confidentiality) shall be subject to the satisfaction, at or before the Closing,
of each of the following conditions, except to the extent that
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OmniLink shall have waived such satisfaction with respect to its obligations:
9.01 Representations and Warranties: Performance. Each of the
representations and warranties made by TNS herein shall be true and correct in
all material respects as of the Closing with the same effect as though made at
such time; and TNS shall have performed and complied in all material respects
with all agreements, covenants and conditions required by this Agreement to be
performed and complied with by such party prior to the Closing. TNS shall have
delivered to OmniLink a certificate certifying to the fulfillment of the
foregoing conditions.
9.02 Opinion of Counsel. OmniLink shall have received an opinion of
counsel to TNS, in form and substance reasonably satisfactory to OmniLink dated
as of the date of the Closing, substantially to the effect set forth in Exhibit
8 hereto.
9.03 Royalty Agreement. TNS and OmniLink shall have executed the
Royalty Agreement, substantially in the form of Exhibit 4 hereto.
9.04 Injunctions. No injunction or restraining order shall be in effect
to forbid or enjoin the consummation of this Agreement or the transactions
contemplated hereby and no action shall be pending seeking such an injunction or
restraining order.
9.05 Further Documentation. OmniLink shall have received such further
certificates and documents as shall be reasonably requested by OmniLink.
ARTICLE X
COMPETITION
10.01 Duration and Scope. OmniLink shall not engage, in the United
States, in any Prohibited Activities as defined in Section 10.02 for a period of
two (2) years from the date of the Closing, except as may be otherwise agreed to
by the parties.
10.02 Prohibited Activities. OmniLink shall not in any way, without
TNS's prior written consent or other written agreement, either directly or
indirectly, engage in, represent, furnish consulting services to or have an
interest in, any business which competes with the Business as it exists on the
date of the Closing.
10.03 Breach. If OmniLink violates this restrictive covenant and TNS
brings legal action for injunctive or other relief, then TNS shall not as a
result of the time involved in obtaining the relief be deprived of the benefit
of the full period of the restrictive covenant. In such a case, the restrictive
covenant shall be deemed to have the duration specified above, computed from the
date the relief is granted, but reduced by the time between when the period
began to run and the date of the violation of the covenant by OmniLink.
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10.04 Intent of Parties. If any court of competent jurisdiction shall
determine that any restriction contained in this Article X is unenforceable, it
is the intention of the parties that the restrictive covenant set forth herein
shall not thereby be terminated, but shall be deemed amended to the extent
required to render it valid and enforceable. Such amendment shall only apply to
the operation of this Article in the jurisdiction of the court that has made the
adjudication.
ARTICLE XI
INDEMNIFICATION
11.01 Indemnification.
(a) Subject to the limitations set forth in Section 11.02,
OmniLink hereby indemnifies, defends and holds harmless TNS and its permitted
successors and assigns, officers, directors and shareholders (collectively, the
"TNS Indemnitees") from and against, and shall reimburse each of the Indemnitees
for, all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including interest, penalties, court
costs and reasonable attorneys' fees and expenses, asserted against, resulting
to, imposed upon or incurred by any of the TNS Indemnitees, directly or
indirectly, with respect to (i) any misrepresentation or breach by OmniLink of
any representation, warranty, undertaking or covenant of OmniLink contained
herein, (ii) services rendered, or omissions made in such services, by OmniLink
under the Assigned Rights or in connection with the Business prior to the
Closing and (iii) any other aspect of OmniLink's operation of the Business prior
to the Closing.
(b) Subject to the limitations set forth in Section 11.02, TNS
hereby indemnifies, defends and holds harmless OmniLink and its permitted
successors and assigns, officers, directors and shareholders (collectively, the
"OmniLink Indemnitees") from and against, and shall reimburse each of the
Indemnitees for, all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs and expenses, including interest, penalties,
court costs and reasonable attorneys' fees and expenses, asserted against,
resulting to, imposed upon or incurred by any of the OmniLink Indemnitees,
directly or indirectly, with respect to (i) any misrepresentation or breach by
TNS of any representation, warranty, undertaking or covenant of TNS contained
herein and (ii) any other aspect of TNS's operation of the Business or use of
the Assets after the Closing.
11.02 Limitation. Either party shall only be entitled to make indemnity
claims under this Article XI for claims which are $20,000 or more per
occurrence. For purposes of this Section 11.02, any series of related or
connected events shall be deemed to be an "occurrence."
11.03 Claims by Third Parties. A party claiming indemnification under
this Article XI (the "Indemnitee") shall give the other party (the "Indemnifying
Party") notice of any claim or the commencement of any action or proceeding for
which such Indemnitee seeks indemnification, and such Indemnitee shall permit
the Indemnifying Party to assume the defense of any claim or any
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litigation resulting from such claim. The failure by any Indemnitee to give an
Indemnifying Party timely notice shall not preclude any Indemnitee from seeking
indemnification from any Indemnifying Party except to the extent that such
failure has materially prejudiced the Indemnifying Party's ability to defend the
claim or litigation. No Indemnifying Party shall settle any claim for which any
Indemnitee seeks indemnification in respect of an indemnifiable claim hereunder
or consent to entry of any judgment in litigation arising from such a claim
without obtaining a release of each Indemnitee from all liability in respect of
such claim or litigation. If an Indemnifying Party shall not assume the defense
of any such claim or litigation resulting therefrom, or if injunctive relief is
sought against an Indemnitee, the Indemnitee may, but shall have no obligation
to, defend against or settle such claim or litigation in such manner as it may
deem appropriate. The Indemnifying Party shall promptly reimburse each
Indemnitee for the amount of all expenses, legal or otherwise, incurred by such
Indemnitee in connection with the defense against or settlement of such claim or
litigation. If no settlement of the claim or litigation is made, the
Indemnifying Party shall promptly reimburse each Indemnitee for the amount of
any judgment rendered with respect to such claim or in such litigation and of
all expenses, legal and otherwise, incurred by each Indemnitee, in the defense
against such claim or litigation.
ARTICLE XII
POST-CLOSING OPERATIONS
12.01 Post-Closing Date Operations of OmniLink. For eighteen months
following the Closing, OmniLink shall be entitled to utilize the services of
certain TNS employees mutually agreed upon by TNS and OmniLink to maintain the
books and records of OmniLink. OmniLink shall reimburse TNS at the rate of
$100.00 per employee per hour for such services. TNS shall bill OmniLink monthly
for the services provided pursuant to this Section 12.01. Payment to TNS for
bills issued to OmniLink shall be due by thirty (30) days from the date of the
invoice. Commencing upon the day after the due date of the bill, interest shall
be due and payable by OmniLink to TNS at the rate of 1.5% per month or the
maximum legal rate, whichever is lower, on any portion of the bill which has not
been paid. Payments will be applied first to the oldest outstanding amounts. At
the end of such eighteen month period, if OmniLink desires to continue to
receive such services, OmniLink and TNS shall negotiate in good faith in an
effort to set terms upon which TNS would continue to provide such services.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.01 Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of TNS and OmniLink.
13.02 Waiver of Compliance: Consents. Any failure of TNS or OmniLink to
comply with any obligation, covenant, agreement or condition herein may be
waived in writing by the
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other party, but no waiver shall be effective for any
purpose unless it is expressed and in writing, and any such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be effective only if
given in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 12.02.
13.03 Investigations: Survival of Representations and Warranties. The
respective representations and warranties of OmniLink and TNS contained herein
or in any certificates or other documents delivered prior to or at the Closing
shall not be deemed waived or otherwise affected by any investigation made by
any party or parties hereto. Each and every such representation and warranty,
together with the indemnification contained in Article XII hereof, shall survive
the Closing.
13.04 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, facsimile transmission or mailed first
class with postage prepaid:
(a) If to OmniLink, to:
OmniLink Communications Corporation
3101 Technology Boulevard, Suite C
Lansing, Michigan 48910-8356
with copy to:
Thompson Coburn
One Mercantile Center
St. Louis, MO 63101
Attention: Thomas A. Litz, Esq. or Halpin J. Burke, Esq.
or to such other person or address as OmniLink shall furnish to TNS in writing
pursuant to the above;
(b) If to TNS, to:
Transaction Network Services, Inc.
1939 Roland Clarke Place
Reston, Virginia 20191
Attention: General Counsel
with copy to:
Arent Fox Kintner Plotkin & Kahn, PLLC
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1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Attention: Jeffrey E. Jordan, Esq.
or to such other person or address as TNS shall furnish to the OmniLink in
writing pursuant to the above.
13.05 Assignment. This Agreement and all of the provisions hereof shall
be binding upon the parties hereto and their respective successors and assigns
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto without
the prior written consent of the other party.
13.06 Counterparts. This Agreement may be executed in two fully or
partially executed counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
13.07 Headings. The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
13.08 Governing Law. The parties agree that this Agreement shall be
governed and construed by the laws of the state of Delaware and that no
conflict-of-laws provision shall be invoked to permit the laws of any other
state or jurisdiction.
13.09 Time of Essence. Time is of the essence with respect to each
provision of this Agreement in which time is an element.
13.10 Attorney's Fees. In the event of any action instituted by any
party or parties hereto arising under this Agreement, the prevailing party or
parties shall be entitled to recover from the losing party or parties all of its
costs and expenses, including attorneys' fees, in addition to any other
available remedy.
13.11 Entire Agreement. This Agreement and the attached Schedules and
Exhibits embody the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, representations, warranties, covenants, or undertakings, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior negotiations, agreements and understandings among the parties with respect
to such subject matter.
13.12 Expenses. All costs and expenses incurred in connection with the
Agreement and the transactions contemplated hereby shall be paid by the party or
parties incurring such expenses.
13.13 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of
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this Agreement is held to be prohibited or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered, all as of the date first above written.
TRANSACTION NETWORK SERVICES, INC.
(Corporate Seal)
By:
-----------------------------------------------
John J. McDonnell, Jr.
President
OMNILINK COMMUNICATIONS CORPORATION
(Corporate Seal)
By:
-----------------------------------------------
Henry H. Graham
Executive Vice President
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