Download LANGUAGE ACCESS NETWORK, INC. (Form: 8-K

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
Date of Report (Date of earliest event reported): August 1, 2007
LANGUAGE ACCESS NETWORK, INC.
(Exact name of registrant as specified in its charter)
Nevada
(State or other jurisdiction of incorporation)
000-52374
(Commission File Number)
61-1433933
(I.R.S. Employer Identification No.)
111 W. Rich Street, Suite 150
Columbus, Ohio
(Address of principal executive offices)
43215
(Zip Code)
Registrant’s telephone number, including area code: (614) 355-0902
___________________________________________________
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
[]
Written communications pursuant to Rule 425 under the Securities Act (17CFR 230.425)
[]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
SECTION 1 - REGISTRANT’S BUSINESS AND OPERATIONS
Item 1.01 Entry into a Material Definitive Agreement
On August 1, 2007, Language Access Network, Inc., a Nevada corporation (the “Company”), executed an Agreement and Plan of Merger (the
“Merger Agreement”) by and between the Company and its wholly owned subsidiary, iBS Merger Sub LLC., an Ohio limited liability
company (“Subsidiary”) on the one hand, and iBeam Solutions, LLC, an Ohio limited liability company (“iBeam”) and the individual members
of IBeam (the “Members”) on the other hand. Pursuant to the Merger Agreement, Subsidiary merged with iBeam, with iBeam surviving the
merger and Subsidiary ceasing to exist (the “Merger”).
In addition, pursuant to the terms and conditions of the Merger Agreement:
 The Company became the holder of all of the issued and outstanding shares of capital stock of iBeam, resulting in a parent/subsidiary
relationship between the Company and iBeam; and
 The Members of iBeam converted their outstanding membership interests into the right to receive a pro rata distribution of 91,252
shares of the Company’s common stock (the “Merger Shares”).
The number of Merger Shares was derived from an agreed upon purchase price in iBeam of $1,000,000, reduced by debt in iBeam of
$726,246.43, amounting to 91,252 shares of common stock valued at $273,753.57, or roughly $3.00 per share.
Each of the parties to the Merger Agreement provided customary representations and warranties and closing conditions, including the
following agreements that were made conditions to the Merger: (a) an employment agreement between Mr. Eric V. Schmidt and iBeam for Mr.
Schmidt to serve as President, (b) an escrow agreement to facilitate the transfer of the Merger Shares, and (c) a non-competition and
non-solicitation agreement signed by the Members in favor of the Company.
SECTION 2 - FINANCIAL INFORMATION
Item 2.01 Completion of Acquisition or Disposition of Assets
The information set forth in Item 1.01 of this Current Report on Form 8-K that relates to the completion of acquisition of assets is incorporated
by reference into this Item 2.01.
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SECTION 3 - SECURITIES AND TRADING MARKETS
Item 3.02 Unregistered Sales of Equity Securities
The information set forth in Item 1.01 of this Current Report on Form 8-K that relates to the unregistered sales of equity securities is
incorporated by reference into this Item 3.02.
SECTION 8 - OTHER EVENTS
Item 8.01 Other Events
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 8.01.
A copy of the press release relating to the acquisition of iBeam, the Escrow Agreement, and Non-Competition and Non-Solicitation Agreement
are attached hereto as Exhibits 99.1, 99.2, and 99.3, respectively. The foregoing description of these Exhibits is qualified in its entirety by
reference to the full text thereto.
Section 9 - FINANCIAL STATEMENTS AND EXHIBITS
Item 9.01 Financial Statements and Exhibits
(a) Financial statements of businesses acquired
The financial statements of iBeam have not been prepared but will be filed by amendment no later than 71 calendar days after the date this
report is required to be filed, pursuant to the instructions set forth in Item 9.01 of Form 8-K.
(b) Pro forma financial information .
The pro forma financial information of iBeam have not been prepared but will be filed by amendment no later than 71 calendar days after the
date this report is required to be filed, pursuant to the instructions set forth in Item 9.01 of Form 8-K.
(d) Exhibits
Exhibit No.
2.1
99.1
99.2
99.3
Description
Agreement and Plan of Merger, dated August 1, 2007
Press release dated July 31, 2007 announcing the merger
Escrow Agreement, dated August 1, 2007
Non-Competition Agreement and Non-Solicitation Agreement, dated August 1, 2007
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Language Access Network, Inc.
By:
/ s/ Michael Guirlinger
Michael Guirlinger
Chief Executive Officer
Date: August 6, 2007
Agreement and Plan of Merger
by and among
Language Access Network, Inc.,
iBS Merger Sub LLC,
iBeam Solutions LLC
and
the Members of iBeam Solutions LLC
dated as of
August 1, 2007
TABLE OF CONTENTS
ARTICLE I - MERGER
§1.01 Merger
§1.02 Effective Time
§1.03 Effect of Merger
§1.04 Articles of Organization; Operating Agreement
§1.05 Taking Necessary Action; Further Action
§1.06 Closing
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ARTICLE II - EFFECT ON MEMBERSHIP INTERESTS
§2.01 Effect on Membership Interests
§2.02 Delivery of Merger Shares
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ARTICLE III - DEFINITIONS
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ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF COMPANY
AND MEMBERS
§4.01 Organization and Qualification; Subsidiaries
§4.02 Capitalization
§4.03 Authority; Enforceability
§4.04 Noncontravention; Required Filings and Consents
§4.05 Permits; Compliance
§4.06 Reports; Financial Statements
§4.07 Absence of Certain Changes or Events
§4.08 Litigation
§4.09 Contracts; No Default
§4.10 Employee Benefit Plans; Labor Matters
§4.11 Taxes
§4.12 Intellectual Property Rights
§4.13 Insurance
§4.14 Brokers
§4.15 Title to Properties
§4.16 Accounts Receivable
§4.17 Bank Accounts
§4.18 Environmental Matters
§4.19 Company Approval by Members
§4.20 Disclosure
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ARTICLE V - REPRESENTATIONS AND WARRANTIES OF MEMBERS
§5.01 Authority; Enforceability
§5.02 Noncontravention; Consent
§5.03 Investment Representations
§5.04 Company Membership Interests
§5.05 Disclosure
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ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF LAN AND
MERGER SUB
§6.01 Organization and Qualification; Subsidiaries
§6.02 Authority; Enforceability
§6.03 Noncontravention; Required Filings and Consents
§6.04 Brokers
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ARTICLE VII - COVENANTS RELATING TO CONDUCT OF BUSINESS
§7.01 Affirmative Covenants of Company
§7.02 Negative Covenants of Company
§7.03 Access and Information
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ARTICLE VIII - ADDITIONAL AGREEMENTS
§8.01 Appropriate Action; Consents; Filings
§8.02 Update Disclosure; Breaches
§8.03 Survival of Representations and Warranties; Indemnification
§8.04 Good Faith
§8.05 Legend
§8.06 Tax Matters
§8.07 Confidentiality
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ARTICLE IX - CLOSING CONDITIONS
§9.01 Conditions to Obligations of Company and Members
§9.02 Conditions to Obligations of LAN and Merger Sub
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ARTICLE X - TERMINATION
§10.01 Termination
§10.02 Effect of Termination
§10.03 Expenses
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ARTICLE XI - GENERAL PROVISIONS
§11.01 Notices
§11.02 Waiver
§11.03 Headings
§11.04 Severability
§11.05 Entire Agreement
§11.06 Assignment
§11.07 Parties in Interest
§11.08 Governing Law
§11.09 Counterparts; Facsimile Signatures
§11.10 Attorneys’ Fees
§11.11 Time
§11.12 Advisors
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of August 1, 2007, is by and among LANGUAGE
ACCESS NETWORK, INC., a Nevada corporation (“ LAN ”), iBS MERGER SUB LLC , an Ohio limited liability company (“ Merger Sub
”), iBEAM SOLUTIONS LLC, an Ohio limited liability company (“ Company ”), and the MEMBERS (the persons who are defined as
Members in Article III, who are all of the members of Company). Certain terms used herein are defined in Article III.
Recitals
A. Subject to the provisions of this Agreement and the satisfaction of the conditions to this Agreement, Merger Sub, a wholly
owned subsidiary of LAN, shall be merged with and into Company at the Effective Time provided for in §1.02 (the “ Merger ”), with the result
that, effective with and following the Merger, Merger Sub shall cease to exist and Company shall become and thereafter be a wholly owned
subsidiary of LAN. All membership interests of Company (the “ Company Membership Interests ”) issued and outstanding prior to the
Merger shall be converted into common stock of LAN (“ LAN Common Stock ”) pursuant to Article II.
B.
The parties desire to enter into this Agreement for the purpose of setting forth the terms and conditions relating to the Merger.
NOW, THEREFORE, in consideration of the premises and of the mutual terms, conditions and other provisions herein contained,
the parties agree as follows:
ARTICLE I
MERGER
§1.01 Merger . Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with §1705.38 et seq. of
the Ohio Limited Liability Company Law (the “ Ohio LLC Law ”), at the Effective Time (as defined below), Merger Sub shall be merged with
and into Company. As a result of the Merger, the separate existence of Merger Sub shall cease and Company shall become and thereafter
continue as the surviving limited liability company in the Merger (the “ Surviving Company ”).
§1.02 Effective Time . Concurrently with the Closing (as defined below), the parties shall cause the Merger to be consummated by
filing a certificate of merger (the “ Certificate of Merger ”) with the Secretary of State of the State of Ohio (the “ Ohio Secretary of State ”)
in such form as required by, and executed in accordance with, the relevant provisions of the Ohio LLC Law (the effective date and time of such
filing is hereinafter referred to as the “ Effective Time ”). The Certificate of Merger filing will result in the date of the Closing being the
effective date of the Merger.
§1.03 Effect of Merger . At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of the Ohio
LLC Law. Without limiting the generality of the Ohio LLC Law, and subject to its provisions, at the Effective Time, all the property, interests,
assets, rights, privileges, immunities, powers and franchises of Merger Sub and Company shall vest in the Surviving Company, and all debts,
liabilities, duties and obligations of Merger Sub and Company shall become the debts, liabilities, duties and obligations of the Surviving
Company.
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§1.04 Articles of Organization; Operating Agreement . At the Effective Time, the Articles of Organization and the Operating
Agreement of Merger Sub shall become and thereafter be the Articles of Organization and the Operating Agreement of the Surviving Company
until thereafter amended as provided by Law and such Articles of Organization and Operating Agreement of the Surviving Company.
§1.05 Taking Necessary Action; Further Action . LAN, Merger Sub, Company and the Members, respectively, shall use their
best efforts to take all such action as may be necessary or appropriate to effectuate the Merger under the Ohio LLC Law at the Effective Time.
If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the
Surviving Company with full right, title and possession to all properties, interests, assets, rights, privileges, immunities, powers and franchises
of either of Company or Merger Sub, then the officers of the Surviving Company shall be fully authorized in the name of each of Company and
Merger Sub or otherwise to take, and shall take, all such lawful and necessary action.
§1.06 Closing . The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall be held as promptly as
practicable but not more than two (2) business days following the satisfaction of, or waiver by the party entitled to satisfaction of, all conditions
precedent to the Merger specified in this Agreement, unless duly waived by the party entitled to satisfaction thereof. The Closing shall take
place at the offices of Squire, Sanders & Dempsey L.L.P., 41 South High Street, Suite 1300, Columbus, Ohio, at such time and on such date
within such period of two (2) business days as the parties may mutually agree.
ARTICLE II
EFFECT ON MEMBERSHIP INTERESTS
§2.01 Effect on Membership Interests . At the Effective Time, by virtue of the Merger and without any further action on the part
of LAN, Merger Sub, Company or the Members:
(a) All issued and outstanding membership interests of Merger Sub shall be canceled and extinguished and automatically
converted into the right to receive one hundred percent (100%) of the membership interests of the Surviving Company.
(b) One hundred percent (100%) of the Company Membership Interests issued and outstanding immediately prior to the
Effective Time and held of record by any of the Members shall be canceled and extinguished and automatically converted into the
right to receive an aggregate of 91,252 shares of LAN Common Stock (the “ Merger Shares ”), with each of the Members being
entitled to receive its, his or her pro rata share of the Merger Shares based on its, his or her proportionate share of the outstanding
Company Membership Interests being canceled and extinguished. Such number of Merger Shares has been determined based upon (i)
(A) an agreed upon purchase price payable in LAN Common Stock of $1,000,000, less (B) the outstanding net debt of Company listed
on Schedule 2.01(b) and remaining with the Surviving Company after the Merger which is in the amount of $726,246.43, which (C)
equals $273,753.57, divided by (ii) an assumed value of $3.00 per share of LAN Common Stock, with rounding up to the next whole
number of shares of LAN Common Stock for the resulting fractional share, for a total number of shares of LAN Common Stock of
91,252.
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§2.02 Delivery of Merger Shares .
(a) Within the period of ten (10) days after the Closing, each of the Members shall be entitled to receive in exchange for its,
his or her Company Membership Interests a certificate representing that number of Merger Shares provided for it, him or her in
§2.01(b), provided that all of the Merger Shares shall within such period of ten (10) days after the Closing be deposited in escrow and
held, applied and distributed pursuant to the terms of an Escrow Agreement among the Members and LAN in the form as executed at
the Closing (the “ Escrow Agreement ”).
(b) At and after the Effective Time, each of the Members shall cease to have any rights as a Member of Company. All
Merger Shares issued upon conversion of the Company Membership Interests in accordance with the terms of this Agreement shall be
deemed to have been issued and paid in full satisfaction of all rights pertaining to such Company Membership Interests.
ARTICLE III
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
“ Active Members ” means Eric V. Schmidt, Paul Bursey, Brenda Schmidt, Mathew Rowe and Randall Sims, who are all of the
employee members of Company.
“ Affiliate ” means, with respect to a given Person, a Person who controls, is controlled by or is under common control with, such
Person.
“ Affiliated Group ” has the meaning described in Section 1504 of the Code, without regard to the exceptions contained in
subsection (b) thereof.
“ Agreement ” is defined in the preamble.
“ Certificate of Merger ” is defined in §1.02.
“ Closing ” is defined in §1.06.
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Company ” is defined in the preamble.
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“ Company Balance Sheet ” is defined in §4.06(c).
“ Company Contract ” is defined in §4.09(a).
“ Company Financial Statements ” is defined in §4.06(b).
“ Company Membership Interests ” is defined in the Recitals.
“ Company Organizational Documents ” is defined in §4.01.
“ Company Permits ” is defined in §4.05.
“ Company Reports ” is defined in §4.06(a).
“ Disclosure Schedule ” is the schedule which contains exceptions to specific representations and warranties contained in this
Agreement.
“ Effective Time ” is defined in §1.02.
“ Employee Benefit Plans ” is defined in §4.10(a).
“ ERISA ” is defined in §4.10(a).
“ ERISA Affiliates ” means any trade or business (whether or not incorporated) that is part of the same controlled group, or under
common control with, or part of an affiliated service group that includes, Company within the meaning of Section 414(b), (c), (m) or (o) of the
Code.
“ Expenses ” is defined in §10.03.
“ GAAP ” is defined in §4.06(b).
“ Governmental Entity ” means any federal, state, local or foreign government or any agency thereof.
“ Hazardous Materials ” means any substances that have been designated by any Governmental Entity or by applicable federal,
state or local law to be radioactive, toxic, hazardous or otherwise a danger to health or the environment, including, without limitation, PCBs,
asbestos, petroleum, urea-formaldehyde and all substances listed as hazardous substances pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to the United States Resource
Conservation and Recovery Act of 1976, as amended, and the regulations promulgated pursuant to said laws, but excluding office and janitorial
supplies.
“ Hazardous Materials Activities ” is defined in §4.18(b).
“ Indemnified Party ” is defined in §8.03(e).
“ Indemnifying Party ” is defined in §8.03(e).
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“ Indemnity Claims ” is defined in §8.03(c).
“ Insurance Policies ” is defined in §4.13.
“ IRS ” means the Internal Revenue Service.
“ LAN ” is defined in the preamble.
“ LAN Common Stock ” is defined in the preamble.
“ Law ” means any federal, state or local law, statute, rule, ordinance or regulation (including codes, plans, judgments, injunctions,
administrative interpretations, orders or charges thereunder).
“ Material Adverse Effect ” means any change or effect that is materially adverse to the financial condition, results of operations,
businesses, properties, assets or liabilities of any Person.
“ Members ” means both the Active Members and the Passive Members, who together are all of the members of Company.
“ Merger ” is defined in the Recitals.
“ Merger Shares ” is defined in §2.01.
“ Merger Sub ” is defined in the Recitals.
“ Mr. Schmidt ” is defined in §9.02(a).
“ Ohio LLC Law ” is defined in §1.01.
“ Ohio Secretary of State ” is defined in §1.02.
“ Passive Members ” means Bricker & Eckler LLP and Rusty Blades, who are all of the non-employee members of Company.
“ Pension Plan ” means any Employee Benefit Plan which is an employee pension benefit plan as defined in Section 3(2) of ERISA
or is otherwise a pension, savings or retirement plan or a plan of deferred compensation.
“ Person ” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization
or other entity or group.
“ Returns ” means any and all returns, reports, information returns and information statements with respect to Taxes required to be
filed by Company with the IRS or any other Governmental Entity or tax authority or agency, whether domestic or foreign, including, without
limitation, consolidated, combined and unitary tax returns.
“ Securities Act ” is defined in §5.03(a).
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“ Subsidiary ” (or its plural), as used in this Agreement with respect to Company, LAN, the Surviving Company or any other
Person, shall mean any corporation, partnership, joint venture or other legal entity of which Company, LAN, the Surviving Company or such
other Person, as the case may be (either alone or through or together with any other Subsidiary), owns, directly or indirectly, fifty percent
(50%) or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors
or other governing body of such corporation or other legal entity.
“ Surviving Company ” is defined in §1.01.
“ Tax ” or “ Taxes ” means any and all taxes, charges, fees, levies and other governmental assessments and impositions of any kind,
payable to any Governmental Entity or however denominated, including any interest, penalties or other additions to tax that may become
payable in respect thereof, imposed by any taxing authority or agency, including, without limitation, income, franchise, net worth, profits, gross
receipts, minimum, alternative minimum, estimated, ad valorem, value added, sales, use, service, real or personal property, capital stock,
license, payroll, withholding, disability, employment, social security, Medicare, workers’ compensation, unemployment compensation, utility,
severance, production, excise, stamp, occupation, premiums, windfall profits, transfer and gains taxes, and interest, penalties and additions to
taxes imposed with respect thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COMPANY AND MEMBERS
Company and each of the Members, jointly and severally, represent and warrant to LAN and to Merger Sub that the statements
contained in this Article IV are correct and complete as of the date of this Agreement and will be correct and complete immediately prior to the
Effective Time (as though made then and as though the Effective Time were substituted for the date of this Agreement throughout this Article
IV). In the event that, after the date hereof and prior to the Effective Time, any of the statements contained in this Article IV becomes incorrect
or incomplete, Company and the Members shall provide notice thereof to LAN and Merger Sub pursuant to §8.02.
§4.01 Organization and Qualification; Subsidiaries . Company is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Ohio. Company has all requisite power and authority to operate its business as it has been and is
now conducted. Company is qualified to do business in those states in which qualification is necessary, except where the failure to so qualify
would not have a Material Adverse Effect with respect to Company. Company has no Subsidiaries and does not currently own, directly or
indirectly, any capital stock or other equity securities of any corporation or have direct or indirect equity or ownership interest in any
association, partnership, limited liability company, joint venture or other entity. Company has delivered or made available to LAN a true and
correct copy of its Articles of Organization and Operating Agreement, each as amended to date (collectively, the “ Company Organizational
Documents ”), and each such instrument is in full force and effect. Company is not in violation of any of the provisions of the Company
Organizational Documents.
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§4.02 Capitalization . The Company Membership Interests constitute all of the membership interests of Company. The Members own
collectively one hundred percent (100%) of the Company Membership Interests.
§4.03 Authority; Enforceability . Company has the requisite power and authority to execute and deliver this Agreement, to
perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery
of this Agreement by Company and the consummation by Company of the transactions contemplated by this Agreement have been, or will be
prior to the Closing, duly authorized by all necessary company and member action. This Agreement has been duly executed and delivered by
Company and the Members and, assuming the due authorization, execution and delivery by LAN and Merger Sub, constitutes a legal, valid and
binding obligation of Company and the Members, subject to bankruptcy, insolvency, reorganization, moratorium and other laws limiting
creditors’ rights generally and to general equitable principles.
§4.04 Noncontravention; Required Filings and Consents . Except as disclosed in Schedule 4.04 of the Disclosure Schedule, the
execution and delivery of this Agreement by Company and the Members and performance of their respective obligations under this Agreement
does not, and the consummation of the transactions contemplated by this Agreement will not, (a) conflict with, or result in any violation or
breach of, any provision of the Company Organizational Documents, (b) result in any violation or breach of, or constitute (with or without
notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any
material benefit) under, or require a consent or waiver under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, contract or other agreement, instrument or obligation to which Company is a party or by which it or any of its properties or assets may be
bound, or (c) conflict with or violate any permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Company or any of its properties or assets. No consent, approval, order or authorization of, or registration, declaration
or filing with, any Governmental Entity or other Person is required to be obtained or made by Company or the Members in connection with the
execution and delivery of this Agreement or the consummation of the Merger, except for (i) the filing of the Certificate of Merger with the
Ohio Secretary of State and appropriate documents with the relevant authorities of other states in which Company is qualified to do business,
(ii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal, foreign
and state securities (or related) laws, and the securities or antitrust laws of any foreign country, and (iii) such other consents, authorizations,
filings, approvals and registrations which if not obtained or made would not be material to Company, LAN, the Members or the Surviving
Company or have a Material Adverse Effect on the ability of the parties to consummate the Merger.
§4.05 Permits; Compliance . Except as disclosed in Schedule 4.05 of the Disclosure Schedule, Company is in possession of all
material franchises, grants, authorizations, licenses, permits, easements, variances, exemptions, consents, certificates, approvals and orders
necessary for Company to own, lease and operate its properties or to carry on its businesses substantially as they are now being conducted (the
“ Company Permits ”) except where failure to have such Company Permits would not, individually or in the aggregate, have a Material
Adverse Effect with respect to Company, and no suspension, revocation or cancellation of any of Company Permits is pending or, to the
knowledge of Company or any of the Members, threatened. Company has not operated (nor is Company currently operating) in violation of
any Law applicable to Company or by which its properties are bound or affected.
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§4.06 Reports; Financial Statements .
(a) Since its organization, Company has filed all forms, reports, statements and other documents required to be filed with
all applicable federal or state regulatory authorities (all such forms, reports, statements and other documents, including any
amendments thereto, being collectively referred to as the “ Company Reports ”). The Company Reports were prepared in all material
respects in accordance with the requirements of applicable Law.
(b) The unaudited financial statements (balance sheets, statements of income, statements of member equity and statements
of cash flows) of Company for the last two (2) fiscal years ending December 31, 2004 and December 31, 2005, and unaudited
financial statements for the eleven (11) months period ending November 30, 2006 (collectively the “ Company Financial
Statements ”), have been heretofore delivered by Company to LAN and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (“ GAAP ”). The Company Financial Statements fairly present the financial
position of Company and the results of its operations as of the dates and for the periods indicated thereon, and have been prepared in
accordance with GAAP, except as otherwise noted therein and subject, in the case of the interim financial statements, to normal
year-end adjustments and any other adjustments described therein and the absence of any notes thereto.
(c) Except as and to the extent reflected or reserved in the balance sheet which is part of the most recent Company
Financial Statement (the “ Company Balance Sheet ”) (attached as Schedule 4.06 on the Disclosure Schedule), Company does not
have any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be
reflected on, or reserved against in, a balance sheet of Company, prepared in accordance with GAAP, except for liabilities or
obligations incurred in the ordinary course of business since the date of the Company Balance Sheet.
§4.07 Absence of Certain Changes or Events . Except as disclosed in Schedule 4.07 of the Disclosure Schedule, since December
31, 2005, Company has conducted its business only in the ordinary course and in a manner
consistent with past practice and, since such date:
(a) there has not been any change which has caused, or which is reasonably likely to cause, a Material Adverse Effect
with respect to Company;
(b) Company has not increased compensation to officers, key employees or consultants or increased or created any new
bonus, insurance, pension or other employee benefit plan, payment or arrangement;
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(c) Company has not made any distribution to the Members or made any loan or advance to any officer, the Members or
any Affiliate (except for ordinary travel and business expense payments), or guaranteed or pledged collateral to support any loan or
advance made to any officer, the Members or any Affiliate;
(d) Company has not entered into any agreement, contract, lease, or license (or series of agreements, contracts, leases, or
licenses related to the same transaction or involving the same party or an affiliate thereof) involving more than $10,000 in any twelve
month period;
(e) no party has accelerated, terminated, modified or cancelled any agreement, contract, lease or license (or series of
agreements, contracts, leases or licenses related to the same transaction or involving the same party or an affiliate thereof) involving
more than $10,000 in any twelve (12) month period to which Company is a party or by which Company is bound, or notified
Company that it intends to do any of the foregoing;
(f)
Company has not made a capital expenditure (or series of related capital expenditures) involving more than $10,000;
(g) Company has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any
other Person (or series of related capital investments, loans, and acquisitions related to the same transactions or involving the same
party or an affiliate thereof) involving more than $10,000;
(h)
Company has not delayed or postponed the payment of accounts payable and other liabilities;
(i) Company has not cancelled, compromised, waived or released any right or claim (or series of related rights or claims)
involving more than $10,000;
(j) there has not been any change in the material accounting methods or practices followed by Company except as
required or permitted by GAAP; and
(k)
Company has not entered into any commitment (contingent or otherwise) to do any of the foregoing.
§4.08 Litigation . Schedule 4.08 of the Disclosure Schedule lists all claims, actions, suits, litigation, proceedings, arbitrations or
investigations of any kind against Company or involving any of its assets which are pending or, to the knowledge of Company or any of the
Members, threatened. Except as set forth in Schedule 4.08 of the Disclosure Schedule, Company is not subject to any continuing order of,
consent decree, settlement agreement or other similar written agreement with, or, to the knowledge of Company or any of the Members,
continuing investigation by, any Governmental Entity, or any judgment, order, writ, injunction, decree or award of any Governmental Entity or
arbitrator, including, without limitation, cease-and-desist orders.
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§4.09 Contracts; No Default .
(a) Schedule 4.09 of the Disclosure Schedule sets forth a list of each contract, commitment or agreement to which
Company is a party (each, a “ Company Contract ”):
(i)
concerning a partnership or joint venture with another Person;
(ii)
involving annual consideration in excess of $10,000 in any twelve (12) month period;
(iii) involving employment agreements, employment contracts or other understandings (other than understandings
with respect to “at will” employment) relating to employment to which Company is a party;
(iv)
concerning confidentiality, non-competition or non-solicitation;
(v) with any of the Members or an Affiliate of any of the Members or Person under the influence or control of or
related to any of the Members or an Affiliate of any of the Members;
(vi) involving indebtedness (other than trade payables arising in the ordinary course of business) or pursuant to
which Company has guaranteed the indebtedness of another or pursuant to which a security interest in an asset of Company
has been created;
(vii)
concerning changes of control, severance or termination payments; or
(viii) which is otherwise material to the business of Company, taken as a whole, or under which the consequences
of a default or termination could have a Material Adverse Effect with respect to Company.
(b) Company has delivered to LAN a correct and complete copy of each Company Contract listed in Schedule 4.09 of the
Disclosure Schedule. Each Company Contract is in full force and effect, is a legal, valid and binding contract or agreement of
Company, subject to bankruptcy, insolvency, reorganization, moratorium and other laws limiting creditors’ rights generally and to
general equitable principles, and there is no default (or any event known to Company or any of the Members which, with the giving of
notice or lapse of time or both, would be a default) by Company or any other party to a Company Contract, in the timely performance
of any obligation to be performed or paid under any such contract or agreement. The consummation of the transactions contemplated
hereby will not affect the status of any Company Contract as a legal, valid, binding and enforceable agreement. No party is seeking
renegotiation of a Company Contract or substitute performance thereunder nor has any party repudiated any provision thereunder or
indicated that it intends to terminate or not renew a Company Contract.
(c) Except as set forth in Schedule 4.09 of the Disclosure Schedule, there are no outstanding powers of attorney executed
on behalf of Company.
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§4.10 Employee Benefit Plans; Labor Matters .
(a) Schedule 4.10 of the Disclosure Schedule lists all pension, retirement, savings, disability, medical, dental, health, life
(including all individual life insurance policies as to which Company is the owner, beneficiary or both), death benefit, group
insurance, profit sharing, deferred compensation, bonus, incentive, vacation pay, severance pay, Code Section 401(k), Code Section
125 cafeteria or flexible benefit, or other employee benefit plan, trust, arrangement, contract, agreement, policy or commitment
(including, without limitation, all employee pension benefit plans as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended (“ ERISA ”), and all employee welfare benefit plans as defined in Section 3(1) of ERISA), under
which current or former employees of Company or its ERISA Affiliates are entitled to participate by reason of their employment with
Company or its ERISA Affiliates, whether or not any of the foregoing is funded, whether insured or self-funded, and whether written
or oral, (i) to which Company or its ERISA Affiliates are a party or a sponsor or a fiduciary thereof or by which Company or its
ERISA Affiliates (or any of their rights, properties or assets) are bound, or (ii) with respect to which Company or its ERISA Affiliates
have made any payments, contributions or commitments, or may otherwise have any liability (whether or not Company or its ERIS A
Affiliates still maintains such plan, trust, arrangement, contract, agreement, policy or commitment) (collectively, the “ Employee
Benefit Plans ”). For each Employee Benefit Plan, Company has provided true and correct copies of all plan documents, summary
plan descriptions, determination letters issued by the IRS (if applicable), and most recently filed Form 5500.
(b) All required reports and descriptions have been filed or distributed appropriately with respect to each Employee
Benefit Plan, including filings with the Pension Benefit Guaranty Corporation, IRS and Department of Labor.
(c)
Schedule 4.10 of the Disclosure Schedule lists all ERISA Affiliates of Company.
(d)
With respect to the Employee Benefit Plans:
(i) None of the Employee Benefit Plans is a “multiemployer plan,” as such term is defined in Section 3(37) of
ERISA and with respect to each of the Employee Benefit Plans that is subject to ERISA, other than a plan described in
Section 3(2) of ERISA, Company has at all times and continues to operate such plans in compliance (both in form and
operation) with ERISA, the Code and all other applicable laws;
(ii)
No Employee Benefit Plan is subject to Title IV of ERISA or the funding provisions of Section 412 of the
Code; and
(iii) There are no pending, or, to the knowledge of Company or any of the Members, threatened or anticipated
material claims (other than routine claims for benefits) by, on behalf of or against any of the Employee Benefit Plans, the
fiduciaries of such plans or any trust related thereto.
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(e) Company or its clients are not a party to any collective bargaining or other labor union contracts. There are no union
organization attempts underway with respect to such employees. There is no pending or, to the knowledge of Company and the
Members, threatened labor dispute, strike or work stoppage involving such employees. To the knowledge of Company and the
Members, neither Company nor any of its clients has committed any unfair labor practices (as defined in the National Labor Relations
Act of 1947, as amended) in connection with the operation of its business, and there is no pending or, to the knowledge of Company
or any of the Members, threatened charge or complaint against Company or its clients by the National Labor Relations Board or any
comparable state or local agency.
§4.11 Taxes . Except as set forth in Schedule 4.11 of the Disclosure Schedule:
(a) All material Returns in respect of Taxes required to be filed with respect to Company have been timely filed (including
extensions) and no extension of time within which to file any such Return has been requested, which Return has not since been filed.
(b) All Taxes shown on Returns to be due or payable have been timely paid and all payments of estimated Taxes required
to be made with respect to Company have been made on the basis of a good faith estimate of the required installments.
(c) All Returns (or, in cases where amended Returns have been filed, such Returns as amended) are true, correct and
complete in all material respects.
(d) No adjustment relating to any Return has been proposed in writing by any Tax authority, except proposed adjustments
that have been resolved prior to the date hereof.
(e) There are no outstanding subpoenas or requests for information with respect to any Returns or the Taxes reflected on
such Returns.
(f) Company is not a party to any Tax allocation or sharing agreement. Company (i) has never been a member of an
Affiliated Group, and (ii) has no liability for the Taxes of any Person under Section 1.1502-6 of the Treasury Regulations (or any
similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(g)
There are no Tax liens on any assets of Company other than liens for Taxes not yet due or payable.
(h) All Taxes required to be withheld, collected or deposited by Company during any taxable period for which the statute of
limitations or an assessment remains open have been timely withheld, collected or deposited and, to the extent required, have been
paid to the relevant Tax authority, except where the Taxes in question are subject to challenge by Company in an appropriate
proceeding and adequate reserves therefor have been provided on Company’s financial statements.
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(i) There are no outstanding waivers or agreements extending the statute of limitations for any period with respect to any
Tax to which Company may be subject.
(j) Neither the Members, nor any officer or employee responsible for Tax matters of Company, expects any authority
(based on any written or oral communication from such authority) to assess any additional Taxes for any period for which Returns
have been filed. There is no dispute or claim concerning any Tax liability of Company either (i) claimed or raised by any authority in
writing, or (ii) as to which the Members, or any of the officers or employees responsible for Tax matters of Company, has kno wledge
based upon personal contact with any agent of such authority.
(k) Schedule 4.11 of the Disclosure Schedule lists all federal, state, local and foreign Returns filed with respect to Company
for taxable periods ended on or after December 31, 2004; indicates those Returns that have been audited; and indicates those Returns
that currently are the subject of audit. The Members have delivered to LAN correct and complete copies of all federal income Returns,
state income Returns filed by Company and foreign Returns filed by Company, as well as any examination reports, and statements of
deficiencies assessed against or agreed to by Company (or agreed to by the Members to the extent related to Company) since
December 31, 2004.
(l) Company has not agreed, nor is it required, to make any adjustment under Section 481(a) of the Code by reason of a
change in accounting method or otherwise that will affect the liability of Company for Taxes.
(m) Company has not made an election, nor is it required, to treat any asset as owned by another Person pursuant to the
provisions of Section 168(f) of the Code or as tax-exempt bond financed property or tax-exempt use property within the meaning of
Section 168 of the Code.
(n) Company has not (i) applied for any Tax ruling or (ii) entered into a closing agreement (or similar arrangement) with
any taxing authority.
(o) Company does not have, and has not had, a “permanent establishment” in any foreign country, as such term is defined
in any applicable Tax treaty or convention between the United States and such foreign country, nor has Company otherwise taken
steps that have exposed, or will expose, it to the taxing jurisdiction of a foreign country.
(p) The unpaid Taxes of Company (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax Liability
(rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the
face of the Company Balance Sheet (rather than in any notes thereto), and (ii) will not exceed that reserve as adjusted for the passage
of time through the Closing in accordance with the past custom and practice of Company in filing its Returns.
(q) No claim has ever been made by an authority in a jurisdiction where Company does not file Returns that it is or may be
subject to taxation by that jurisdiction nor, to the knowledge of Company or any of the Members, is there any factual basis for any
such claim.
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§4.12 Intellectual Property Rights . Schedule 4.12 of the Disclosure Schedule lists all intellectual property rights owned by
Company as well as any intellectual property rights owned by third parties and used by Company pursuant to licenses, sublicenses, agreements
or other permission. Company owns, licenses or possesses the right to use all material patents, patents pending, trademarks, service marks,
trade names, service names, slogans, registered copyrights, trade secrets, computer software and other intellectual property rights it currently
uses, without any conflict or alleged conflict with the rights of others or in violation of any license or other agreement with respect thereto.
Each item of intellectual property owned or used by Company prior to the Closing will be owned or available for use by the Surviving
Company on the same terms and conditions immediately following the Closing.
§4.13 Insurance . Schedule 4.13 of the Disclosure Schedule lists all policies and binders of insurance for professional liability,
officers and directors, property and casualty, fire, liability, workers’ compensation and other customary matters held by or on behalf of
Company (collectively, the “ Insurance Policies ”), all of which have been made available to LAN. The Insurance Policies are in full force
and effect.
§4.14 Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in
connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Company or the Members.
§4.15 Title to Properties
(a) Schedule 4.15 of the Disclosure Schedule contains a complete listing of all real property now or previously owned,
leased, subleased, used or held for use by Company and all real property in or to which Company has any other right or interest, along
with a description of such interest therein. Company has a good, marketable and valid fee or leasehold interest, as set forth on such
Schedule 4.15 , to all real property presently used or held for use in its businesses, free and clear of all encumbrances, other than Taxes
and assessments, both general and special, which are a lien but not yet due and payable and that do not, individually or in the
aggregate, materially detract from the value of such real property or materially impair the use and operations thereof. There are no
easements, conditions, reservations, covenants or restrictions presently of record or otherwise that would adversely affect the use of
any such real property by the Surviving Corporation after the Effective Time, including, without limitation, in the operation of the
businesses, for the same purposes and uses as such real property has been heretofore used by Company. No third party has any right
with respect to such real property (whether by option to purchase, land contract or otherwise). There are no pending or, to the
knowledge of Company or the Members, threatened proceedings in eminent domain involving any such real property or any portion
thereof, or for a sale in lieu thereof, or of any plans for the imposition of any special Taxes or assessments against any such real
property or any portion thereof.
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(b) The leases for any real property leased by Company are legal, valid, binding, enforceable and in full force and effect,
and will continue to be legal, valid, binding, enforceable and in full force and effect immediately following the Merger. Company has
delivered to LAN complete and accurate copies of each of the leases for any real property leased by Company, and none of such leases
has been modified in any respect except to the extent that such modifications are disclosed by the copies delivered to LAN. Company
is not in default under, and no circumstances exist which, if unremedied, would, either with or without notice or the passage of time or
both, result in Company’s default under any of such leases, and there are no conditions or circumstances known to Company or any of
the Members which could interfere with LAN’s continued use of any real property leased by Company after the Closing.
(c) Company owns good title to each item of tangible personal property reflected in the Company Financial Statements,
free and clear of any liens, encumbrances, options or other agreements except as otherwise disclosed in Schedule 4.15 of the
Disclosure Schedule. The tangible assets of Company are free from defects, have been maintained in accordance with normal industry
practice, are in good operating condition and repair (subject to normal wear and tear) and are suitable for the purposes for which they
are presently used, except for any existing defects or needed repairs which would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect with respect to Company.
§4.16 Accounts Receivable . All accounts receivable of Company (a) are reflected properly on Company’s books and records, (b)
are valid receivables, are collectible in the ordinary course of business, and are subject to no contractual setoffs or, to the knowledge of
Company or any of the Members, common law rights of setoff or counterclaim, and (c) except as set forth in Schedule 4.16 of the Disclosure
Schedule are current. Attached as Schedule 4.16 of the Disclosure Schedule is Company’s most recent accounts receivable and notes receivable
ledger (with aging of receivables reflected therein).
§4.17 Bank Accounts . Schedule 4.17 of the Disclosure Schedule constitutes (a) a true, complete and correct list of all the bank
accounts or certificates of deposit of Company, together with the names of the Persons authorized to draw thereon, and (b) a true, complete and
correct description of all restrictions or limitations (and related penalties) as to withdrawals of cash from such bank accounts or under such
certificates of deposit.
§4.18 Environmental Matters .
(a) No underground storage tanks and no Hazardous Materials are present, as a result of the actions of Company or any
Affiliate of Company, or, to the knowledge of Company or any of the Members, as a result of any actions of any third party or
otherwise, in, on or under any property, including the land and the improvements, ground water and surface water thereof that
Company has at any time owned, operated, occupied or leased.
(b) (i) Company has not transported, stored, used, manufactured, disposed of, released or exposed its employees or others
to Hazardous Materials in violation of any Law, and (ii) Company has not disposed of, transported, sold, used, released, exposed its
employees or others to or manufactured any product containing any Hazardous Materials (collectively “ Hazardous Materials
Activities ”) in violation of any rule, regulation, treaty or statute promulgated by any Governmental Entity which prohibits, regulates
or controls Hazardous Materials or any Hazardous Materials Activities.
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§4.19 Company Approval by Members . The Members have determined that the Merger is in the best interests of Company and the
Members, and have approved this Agreement.
§4.20 Disclosure . No representation or warranty contained in this Article IV, as qualified by the Disclosure Schedule, or in any
Schedule hereto or any closing certificate furnished or to be furnished by Company or any of the Members to LAN pursuant to this Agreement
or in connection with the Merger, contains or at the Effective Time will contain any untrue statement of a material fact, or omits or at the
Effective Time will omit to state a material fact, necessary to make the statements contained herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MEMBERS
The Members represent and warrant to LAN and to Merger Sub that the statements contained in this Article V are correct and
complete as of the date of this Agreement and will be correct and complete as of the Effective Time (as though made then and as though the
Effective Time were substituted for the date of this Agreement throughout this Article V). In the event that, after the date hereof and prior to
the Effective Time, any of the statements contained in this Article V becomes incorrect or incomplete, the Members shall provide notice
thereof to LAN and Merger Sub pursuant to §8.02.
§5.01 Authority; Enforceability . Each of the Members has full power and authority to execute and deliver this Agreement and to
perform its, his or her respective obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Members,
enforceable in accordance with its terms and conditions.
§5.02 Noncontravention; Consent . Neither the execution and the delivery of this Agreement by the Members, nor the
consummation of the transactions contemplated hereby by the Members, will (a) conflict with or violate any permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to any of the Members or any of its, his or her properties
or assets, or (b) result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a
right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under,
any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, contract or other agreement, instrument or obligation
to which any of the Members is a party or by which it, he or she or any of its, his or her properties or assets may be bound. No consent,
approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity or other Person is required to be
obtained or made by the Members in connection with the execution and delivery of this Agreement or the performance by the Members of their
respective obligations under this Agreement.
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§5.03 Investment Representations .
(a) Each of the Members will be receiving the Merger Shares in the Merger for investment solely for its, his or her own
account and not with a present view to any distribution, transfer or resale to others, including any “distribution” within the meaning of
Securities Act of 1933, as amended (the “ Securities Act ”). Each of the Members understands that the Merger Shares have not been
and will not be registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities
Act, the availability of which depends on, among other things, the bona fide nature of the investment intent and the accuracy of its, his
or her representations made with respect to the investment.
(b) Each of the Members is financially able to bear the economic risks of an investment in the Merger Shares and has no
need for liquidity in the Merger. Each of the Members is financially able to suffer a complete loss of the investment in the Merger
Shares.
(c) Each of the Members has such knowledge and experience in financial and business matters in general and with respect
to investments of a nature similar to that evidenced by the Merger Shares so as to be capable, by reason of such knowledge and
experience, of evaluating the merits and risks of, making an informed business decision with regard to and protecting its, his or her
own interests in connection with receiving the Merger Shares.
(d) Each of the Members has been provided with and had the opportunity to review all filings made by LAN with the
United States Securities and Exchange Commission, which filings are available at the SEC’s web site at www.sec.gov .
(e) Each of the Members understands that a limited public market now exists for the LAN Common Stock and that LAN
has made no assurances that a more active public market will ever exist for the LAN Common Stock.
(f) Each of the Members understands that the Merger Shares will be transferred to it, him or her pursuant to exemptions
from the registration requirements of federal and applicable state securities laws and acknowledges that LAN is relying upon the
investment and other representations made herein as the basis for such exemptions.
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§5.04 Company Membership Interests . The Members own of record and beneficially all of the Company Membership Interests,
free and clear of any mortgages, pledges, liens, encumbrances, charges, restrictions on transfer (other than any restrictions under the Securities
Act), Taxes, security interests, purchase rights, contracts, commitments, equities, claims, demands, rights of first refusal or first offer, voting
agreements or other limitations. The Members are not a party to any purchase right, or other contract or commitment that could require the
Members to sell, transfer or otherwise dispose of the Company Membership Interests or any other membership interests in Company (other
than this Agreement). The Members are not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of
any membership interests in Company.
§5.05 Disclosure . No representation or warranty contained in this Article V contains or at the Effective Time will contain any untrue
statement of a material fact, or omits or at the Effective Time will omit to state a material fact necessary to make the statements contained
herein not misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF LAN AND MERGER SUB
LAN and Merger Sub, jointly and severally, represent and warrant to Company and the Members that the statements contained in this
Article VI are correct and complete as of the date of this Agreement and will be correct and complete immediately prior to the Effective Time
(as though made then and as though the Effective Time were substituted for the date of this Agreement throughout this Article VI). In the event
that, after the date hereof and prior to the Effective Time, any of the statements contained in this Article VI becomes incorrect or incomplete,
LAN and Merger Sub shall provide notice thereof to Company and the Members pursuant to §8.02.
§6.01 Organization and Qualification; Subsidiaries . LAN is duly incorporated, validly existing and in good standing under the
laws of the State of Nevada. LAN has all requisite power and authority to operate its business as it has been and is now conducted. LAN is
qualified to do business in those states in which qualification is necessary, except where the failure to so qualify would not have a Material
Adverse Effect with respect to LAN. Merger Sub is a limited liability company duly organized, validly existing and in good standing under the
laws of the State of Ohio.
§6.02 Authority; Enforceability . Each of LAN and Merger Sub has the requisite power and authority to execute and deliver this
Agreement, to perform its respective obligations under this Agreement and to consummate the transactions contemplated by this Agreement.
The execution and delivery of this Agreement by LAN and Merger Sub and the consummation by LAN and Merger Sub of the transactions
contemplated by this Agreement have been, or will be prior to the Closing, duly authorized by all necessary corporate and limited liability
company action and no other proceedings on the part of LAN or Merger Sub are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly executed and delivered by LAN and Merger Sub and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes the legal, valid and binding obligation of LAN and Merger Sub,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws limiting creditors’ rights generally and to general equitable
principles.
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§6.03 Noncontravention; Required Filings and Consents . The execution and delivery of this Agreement by LAN and Merger
Sub and the performance of their respective obligations under this Agreement does not, and the consummation of the transactions contemplated
by this Agreement will not, (a) conflict with, or result in any violation or breach of, any provision of the Articles of Incorporation and the
Bylaws of LAN or the Articles of Organization and the Operating Agreement of Merger Sub, (b) result in any violation or breach of, or
constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any
obligation or loss of any material benefit) under, or require a consent or waiver under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, contract or other agreement, instrument or obligation to which LAN or Merger Sub is a party or by which it
or any of their properties or assets may be bound, or (c) conflict with or violate any permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to LAN or Merger Sub or any of their respective properties or assets. No consent,
approval, order or authorization of, or registration, declaration or filing with any Governmental Entity or other Person, is required to be
obtained or made by LAN or Merger Sub in connection with the execution and delivery of this Agreement or the consummation of the Merger,
except for (i) the filing of the Certificate of Merger with the Ohio Secretary of State, (ii) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable federal, foreign and state securities (or related) laws, and the
securities or antitrust laws of any foreign country, and (iii) such other consents, authorizations, filings, approvals and registrations which if not
obtained or made would not be material to Company, LAN, the Members or the Surviving Company or have a Material Adverse Effect on the
ability of the parties hereto to consummate the Merger.
§6.04 Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made by or on behalf of LAN or Merger Sub.
ARTICLE VII
COVENANTS RELATING TO CONDUCT OF BUSINESS
§7.01 Affirmative Covenants of Company . Company hereby covenants and agrees that, prior to the Effective Time, unless
otherwise expressly contemplated by this Agreement or otherwise approved in writing by LAN, Company will:
(a)
operate its business in the usual and ordinary course and consistent with past practice;
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(b) use commercially reasonable efforts to preserve intact its business organization and assets, including its present
operations, physical facilities and working conditions; maintain its rights and franchises; maintain and/or renew its licenses, permits,
agreements, uses and governmental approvals; retain the services of its officers and key employees; and maintain the relationships
with its customers, lessors, licensors, employees and suppliers;
(c)
use commercially reasonable efforts to keep in full force and effect all insurance currently maintained; and
(d) confer with LAN at its request to report operational matters of a material nature and to report the general status of the
ongoing operations of the business of Company, and notify LAN of any breach or event which if it had occurred prior to the date of
this Agreement would have been a breach by Company or the Members, as the case may be, of any of their representations,
warranties, covenants and agreements contained in this Agreement or in any of the agreements or documents delivered in connection
herewith.
The Members agree and covenant to cause Company to comply with its covenants and agreements set forth in this §7.01.
§7.02 Negative Covenants of Company . Except as expressly contemplated by this Agreement or otherwise approved in writing by
the parties, from the date of this Agreement until the Effective Time, Company shall not, and the Members shall not (whether in its, his or her
capacity as a member, director, officer, employee or agent of Company) and shall cause Company not to, do any of the following:
(a) (i) increase the compensation payable or to become payable to any officer of Company or to any employee other than
a leased employee, (ii) grant any severance or termination pay, or enter into any severance agreement with, any officer or employee,
(iii) enter into or amend any employment agreement with any officer or employee that would extend beyond the Effective Time except
on an at-will basis or (iv) establish, adopt, enter into or amend any Employee Benefit Plan, except as may be required to comply with
applicable Law;
(b)
make any distribution in respect of the Company Membership Interests;
(c)
effect any reorganization or recapitalization;
(d) issue, deliver, award, grant or sell, or authorize the issuance, delivery, award, grant or sale (including the grant of any
security interests, liens, claims, pledges, limitations in voting rights, charges or other encumbrances) of, any membership interests, any
securities convertible into or exercisable or exchangeable for any membership interests, or any rights, warrants or options to acquire
any membership interests;
(e) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the
assets of, or by any other manner, any business or any corporation, limited liability company, partnership, association or other
business organization or division thereof, or otherwise acquire or agree to acquire any assets of any other Person (other than the
purchase of assets from suppliers or vendors in the ordinary course of business and consistent with past practice);
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(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage,
pledge, transfer or otherwise dispose of, any of its assets, except for dispositions in the ordinary course of business and consistent with
past practice;
(g) directly or indirectly, through any representative or otherwise, enter into any agreement, discussion or negotiation with,
or provide information to, or solicit, encourage, entertain or otherwise consider any inquiries or proposals from, any other entity or
other Person with respect to (i) the possible acquisition of the assets and/or business of Company, or (ii) any business combination
involving Company, whether by way of merger, consolidation, membership interest exchange or other acquisition or otherwise (other
than sales of inventory in the ordinary course). Company and the Members will immediately notify LAN regarding any contact
between the Members, Company and/or their representatives on the one hand and any other entity or other Person on the other hand
regarding any such offer or proposal or any related inquiry;
(h)
adopt any amendments to its Articles of Organization or Operating Agreement;
(i) (i) change any of its methods of accounting in effect at the date hereof, or (ii) make or rescind any express or deemed
election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or
controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income Tax purposes from
those employed in the preparation of the federal income Tax returns for the taxable years ending December 31, 2004 and December
31, 2005, except in either case as may be required by Law, the IRS or GAAP;
(j) incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond,
debenture or similar instrument;
(k) fail to renew any agreement favorable to Company which is used in the conduct of its business or compromise any
obligation or amount owed to Company;
(l) incur any Expenses (as defined below) other than reasonable Expenses which are directly related to its, his or her
participation in the transactions contemplated hereby; or
(m)
agree in writing or otherwise to do any of the foregoing.
§7.03 Access and Information . Company shall afford to LAN and its officers, employees, accountants, consultants, legal counsel
and other representatives access upon reasonable notice to all information concerning the business, properties, contracts, records and personnel
of Company as LAN may reasonably request.
24
ARTICLE VIII
ADDITIONAL AGREEMENTS
§8.01 Appropriate Action; Consents; Filings .
(a) Company, the Members and LAN shall use commercially reasonable efforts to (i) take, or cause to be taken, all
appropriate action, and do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to
consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any
Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made by
LAN or by Company in connection with the authorization, execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement and (iii) make all necessary notifications and filings, and thereafter make any other
required submissions, with respect to this Agreement and the Merger required under any applicable Law, provided that LAN and
Company shall cooperate with each other in connection with all such filings, including providing copies of all such documents to the
non-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in
connection therewith. Company and LAN shall furnish to each other all information required for any application or other filing to be
made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) (i) Company, the Members and LAN shall give any notices to third parties, and use commercially reasonable efforts
to obtain any third party consents, (A) necessary, proper or advisable to consummate the transactions contemplated in this
Agreement, or (B) required to prevent a Material Adverse Effect with respect to Company, LAN or the Surviving Company
from occurring prior to or after the Effective Time; and
(ii) If any party fails to obtain any third party consent described in subsection (b)(i) above, such party shall use
commercially reasonable efforts, and shall take any such actions reasonably requested by another party, to minimize any
adverse effect upon Company, LAN and the Surviving Company and their respective businesses resulting, or which could
reasonably be expected to result, after the Effective Time, from the failure to obtain such consent.
(c) From the date of this Agreement until the Effective Time, Company shall promptly notify LAN in writing of any
pending or, to the knowledge of Company or any of the Members, threatened action, proceeding or investigation by any Governmental
Entity or any other Person (i) challenging or seeking material damages in connection with the Merger or (ii) seeking to restrain or
prohibit the consummation of the Merger or otherwise limit the right of LAN or the Surviving Company to own or operate all or any
portion of the businesses or assets of Company.
(d) The parties hereto shall do and perform or cause to be done and performed all such further actions and things and
shall execute and deliver all such other agreements, certificates, instruments or documents as any other party may reasonably request
in order to carry out the intent and purposes of this Agreement and the consummation of the transactions contemplated hereby.
25
§8.02 Update Disclosure; Breaches . From and after the date of this Agreement until the Effective Time, each party shall promptly
notify the other parties by written update of (a) the occurrence or non-occurrence of any event the occurrence or non-occurrence of which
would be likely to cause any condition to the obligations of any party to effect the Merger and the other transactions contemplated by this
Agreement not to be satisfied, (b) the failure of Company, LAN or Merger Sub, as the case may be, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it pursuant to this Agreement which would be likely to result in any condition to the
obligations of any party to effect the Merger and the other transactions contemplated by this Agreement not to be satisfied, (c) such additional
information with respect to any matters or events discovered subsequent to the date hereof and prior to the Effective Time, which if existing
and known on the date hereof would have rendered any representation or warranty made by any party, or any information contained in any
Schedule hereto, then inaccurate or incomplete, and (d) any development after the date hereof and prior to the Effective Time causing a breach
of any representation or warranty in Article IV, V or VI. Unless, in the case of Article IV or V, LAN elects to terminate this Agreement
pursuant to §10.01 within the period of five (5) business days following such notice, the written notice pursuant to this §8.02 will be deemed to
have qualified the relevant provision of Article IV or V, and to have cured any misrepresentation or breach of warranty that otherwise might
have existed hereunder. Receipt of such information by the other parties hereto shall not operate as a waiver of the non-disclosing party’s right
to terminate this Agreement as provided herein.
§8.03 Survival of Representations and Warranties; Indemnification .
(a) Except with respect to the representations and warranties set forth in §§4.01, 4.02, 4.03, 4.11, 4.14, 5.01, 5.03, 5.04,
6.01 and 6.02, all representations and warranties of Company, the Members and LAN contained herein and in the Schedules hereto
and in any closing certificates delivered pursuant hereto shall survive the execution and delivery of this Agreement and the Closing
until the second anniversary of the date of the Closing. The representations and warranties of Company, the Members and LAN
contained in §§4.01, 4.02, 4.03, 4.14, 5.01, 5.03, 5.04, 6.01 and 6.02 shall survive indefinitely. The representations and warranties of
Company contained in §4.11 shall survive until the seventh anniversary of the date of the Closing.
(b) Each of the Members hereby agrees that it, he or she will not make any claim for indemnification against Company
by reason of the fact that it, he or she was an officer, employee or agent of Company or any Affiliate of Company, or was serving at
the request of any such entity as a partner, trustee, officer, employee or agent of Company or any Affiliate of Company, with respect
to any action, suit, proceeding, complaint, claim or demand brought by LAN or Merger Sub against the Members to the extent that
such action, suit, proceeding, complaint, claim or demand arises from any breach by any of the Members of any of its, his or her
covenants, representations or warranties hereunder, or is a claim by LAN, Merger Sub or the Surviving Company for indemnification
under this Agreement.
26
(c) The Members jointly and severally hereby agree to defend, indemnify and hold harmless LAN, Merger Sub and the Surviving
Company against and from any and all claims, demands, causes of action, losses, costs, damages and expenses (including, without
limitation, court costs, interest, penalties and reasonable attorneys’ fees) (collectively referred to herein as the “ Indemnity Claims ”)
incurred or suffered by LAN, Merger Sub or the Surviving Company which are attributable, in whole or in part, to: (i) a breach or
inaccuracy of any representation or warranty of Company or the Members contained in this Agreement, or (ii) failure of Company or
the Members to pay any obligation or perform any covenant required to be paid or performed by Company or the Members pursuant
to this Agreement. The Members shall be entitled to pay claims of indemnification asserted against it, him or her by payment of cash
or by transferring to LAN Merger Shares received by the Members at a value of $3.00 per share (with any such claims which are
satisfied by the distribution of Merger Shares from the escrow pursuant to the Escrow Agreement being treated as Merger Shares so
transferred to LAN). However, and notwithstanding anything to the contrary in this Agreement, any indemnification by the Passive
Members shall be limited to the distribution of Merger Shares from the escrow pursuant to the Escrow Agreement during the period
the Merger Shares are held in the escrow and the Passive Members shall not otherwise be liable for any indemnification pursuant to
this Agreement.
(d)
LAN, Merger Sub and the Surviving Company, jointly and severally, hereby agree to defend, indemnify and hold harmless Company
and the Members and their respective personal representatives, heirs, successors and assigns against and from any and all Indemnity
Claims incurred or suffered by Company or the Members or its, his or her heirs, successors and assigns which are attributable, in
whole or in part, to (but only to the extent caused by): (i) a breach or inaccuracy of any representation or warranty of LAN, Merger
Sub or the Surviving Company contained in this Agreement, or (ii) failure of LAN, Merger Sub or the Surviving Company to pay any
obligation or perform any covenant required to be paid or performed by LAN, Merger Sub or the Surviving Company pursuant to this
Agreement. LAN, Merger Sub and the Surviving Company shall be entitled to pay claims of indemnification asserted against any of
them by payment of cash or by issuing shares of the LAN Common Stock at a value of $3.00 per share.
(e) If any action, suit, investigation or proceeding shall be threatened or commenced by a third party, in respect of which
any party hereunder (an “ Indemnified Party ”) may demand indemnification hereunder, the Indemnified Party shall notify the
party obligated to indemnify such party hereunder (the “ Indemnifying Party ”) to that effect within ten (10) days after the
Indemnified Party becomes aware of such action, suit, proceeding or investigation and the Indemnifying Party shall have the
opportunity to defend against such action, suit, proceeding or investigation (or, if the action, suit, proceeding or investigation involves
to a significant extent matters beyond the scope of the indemnity agreement contained herein, those claims that are covered hereby);
provided, however, that the failure to give notice within the time frame set forth above shall not result in the waiver or loss of any
right of indemnification hereunder unless, and then only to the extent that, the Indemnifying Party is actually prejudiced by such
failure. If the Indemnifying Party elects to assume the full responsibility for and defend against any action, suit, proceeding or
investigation, then the Indemnifying Party shall notify the Indemnified Party to that effect within ten (10) days after receipt of notice
from the Indemnified Party. The Indemnified Party shall have the right to employ its, his or her own counsel and participate in the
defense, but the fees and expenses of counsel shall be at the expense of the Indemnified Party unless (i) the employment of counsel at
the expense of the Indemnifying Party shall have been authorized in writing by the Indemnifying Party in connection with the defense
of the action, suit, proceeding or investigation or (ii) the Indemnifying Party shall have decided not to defend against the action, suit,
proceeding or investigation. Any party granted the right to direct the defense of a claim hereunder shall: (A) keep the other fully
informed of the action, suit, proceeding or investigation at all stages thereof whether or not represented, (B) promptly submit to the
other copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received in connection with
the action, suit, proceeding or investigation, (C) permit the other and its, his or her counsel, to the extent practicable, to confer on the
conduct of the defense of the action, suit, proceeding or investigation, and (D) to the extent practicable, permit the other and its, his or
her counsel an opportunity to review all legal papers to be submitted prior to the submission. The parties shall make available to each
other and each other’s counsel and accountants all of its, his, her or their books and records relating to the action, suit, proceeding or
investigation. The parties shall use their respective good faith efforts to avoid the waiver of any privilege of any party. The assumption
of the defense of any matter by an Indemnifying Party shall not in any manner impair or restrict such Indemnifying Party’s right to
later seek indemnification under this Agreement with respect to such matter. An Indemnifying Party may elect to assume the defense
of a matter at any time during the pendency of such matter, even if initially such Indemnifying Party did not elect to assume such
defense, so long as such assumption at such later time would not prejudice the rights of the Indemnified Party. No settlement of a
matter by the Indemnified Party shall be binding on an Indemnifying Party for purposes of such Indemnifying Party’s indemnification
obligations hereunder. The foregoing indemnification procedure shall not apply to actions, suits or other proceedings instituted by any
party to this Agreement arising out of any breach or alleged breach by another party of its, his or her representations or warranties or
the failure or alleged failure by another party to pay any sum due or to perform any other obligation of such party according to the
terms of this Agreement; provided, however, that the indemnities set forth in §§8.03(c) and 8.03(d) shall remain in full force and
effect.
27
§8.04 Good Faith . Each party shall act in good faith in an attempt to cause all the conditions precedent to its, his or her obligations
under this Agreement to be satisfied. Each party shall act in good faith and take all reasonable action within its, his or her capability necessary
to render accurate as of the Effective Time its, his or her representations and warranties contained in this Agreement required to be true as of
the Effective Time.
§8.05 Legend . Each certificate representing the Merger Shares issued pursuant to the Merger shall bear a legend substantially in the
following form:
“The shares represented by this certificate have not been registered under the Securities Act of 1933, as
amended, and may not be offered, sold or otherwise transferred, pledged or hypothecated unless and until
such shares are registered under such Act or an exemption from such registration is available.”
§8.06 Tax Matters . The parties agree to file all Returns and otherwise take reporting positions with any Tax authorities in a manner
consistent with the characterization of any item under this Agreement.
§8.07 Confidentiality . The parties agree that the provisions relating to confidentiality set forth in Section 10 of their letter of intent
dated November 15, 2006 are incorporated in and shall be applicable under this Agreement.
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ARTICLE IX
CLOSING CONDITIONS
§9.01 Conditions to Obligations of Company and Members . Subject to waiver as set forth in §11.02, the respective obligations of
Company and the Members to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Effective Time of the following conditions:
(a)
Merger Sub shall have executed the Certificate of Merger;
(b)
LAN shall have executed the Escrow Agreement;
(c) Each of the representations and warranties of LAN contained in this Agreement shall be true and correct in all material
respects as of the Effective Time as though made on and as of the Effective Time; and
(d) LAN shall have performed or complied in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the Effective Time.
§9.02 Conditions to Obligations of LAN and Merger Sub . Subject to waiver as set forth in §11.02, the obligations of LAN and Merger Sub
to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Effective
Time of the following conditions:
(a) An Employment Agreement for Eric V. Schmidt (“ Mr. Schmidt ”) in form and substance mutually acceptable to LAN
and Mr. Schmidt shall have been executed by the Surviving Company and Mr. Schmidt;
(b)
The Members shall have executed the Escrow Agreement;
(c)
The Members shall have executed a Non-Competition and Non-Solicitation Agreement in a mutually agreed form;
29
(d)
Company shall have executed the Certificate of Merger;
(e) All payables and other debt of Company, other than the payables and debt listed on Schedule 2.01(b) , shall have been
paid in full or otherwise satisfied;
(f) LAN, Merger Sub and the Surviving Company shall have been provided an opinion of Company’s counsel in a form
acceptable to LAN;
(g) Each of the representations and warranties of Company and the Members contained in this Agreement shall be true and
correct in all material respects as of the Effective Time, as though made on and as of the Effective Time, and LAN shall have received
a certificate of the Members and also a certificate of Company, executed by the Chief Executive Officer of Company, to that effect;
(h) Company and the Members shall have performed or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with on or prior to the Effective Time, and LAN shall have received a
certificate of the Members and also a certificate of Company, executed by the Chief Executive Officer of Company, to that effect;
(i) LAN shall have obtained the requisite shareholder approval for an amendment to LAN’s Articles of Incorporation as
may be needed to provide the authorized capital stock necessary to issue the LAN Common Stock to the Members;
(j)
This Agreement and the Merger shall have been approved by the board of directors and the shareholders of LAN;
(k)
LAN shall have been satisfied with all due diligence performed by it with respect to Company; and
(l)
There shall not have occurred any Material Adverse Effect with respect to Company since the date of this Agreement.
ARTICLE X
TERMINATION
§10.01 Termination . This Agreement may be terminated at any time prior to the Effective Time:
(a)
by mutual consent of LAN and Company;
(b)
(ii)
(i)
by LAN, if there has been a breach by Company or the Members of any of their respective covenants or agreements
contained in this Agreement or if any of the representations and warranties of Company or
the Members shall have become untrue in any material respect; or
by Company, if there has been a breach by LAN of any of its covenants or agreements contained in this Agreement or if any of the
representations and warranties of LAN shall have become untrue in any material respect;
30
(c)
by LAN if in the conduct of its due diligence examination it discovers any facts, items or other issues that it deems
unacceptable;
(d)
by either LAN or Company if any decree, permanent injunction, judgment, order or other action by any court of competent jurisdiction
or any Governmental Entity preventing or prohibiting consummation of the Merger shall have become final and nonappealable; or
(e)
by either LAN or Company if the Merger shall not have been consummated by April 30, 2007.
§10.02 Effect of Termination . In the event of the termination of this Agreement pursuant to §10.01, this Agreement shall forthwith become
void, and there shall be no liability under this Agreement on the part of LAN or Company or any of their respective shareholders, members,
officers or directors and all rights and obligations of each party shall cease.
§10.03 Expenses . All Expenses incurred by the parties shall be borne solely and entirely by the party which has incurred the same. “
Expenses ” as used in this Agreement shall include all reasonable out-of-pocket expenses (including, without limitation, all fees and expenses
of counsel, accountants, investment bankers, experts and consultants to a party and its, his, her Affiliates) incurred by a party or on its behalf in
connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and all other matters
related to the consummation of the transactions contemplated by this Agreement.
ARTICLE XI
GENERAL PROVISIONS
§11.01 Notices . All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed to
have been duly given or made as of the date delivered, mailed or transmitted, and shall be effective upon receipt, if delivered personally, mailed
by registered or certified mail (postage prepaid, return receipt requested) to the parties at the following addresses (or at such other address for a
party as shall be specified by like changes of address) or sent by electronic transmission to the telecopier number specified below:
If to LAN, Merger Sub or
the Surviving Company: Language Access Network, Inc.
111 West Rich Street
Columbus, Ohio 43215
Telecopier No.: (614) 221-1717
Attention: Michael Guirlinger, CEO
with a copy to:
Squire, Sanders & Dempsey L.L.P.
1300 Huntington Center
41 South High Street
Columbus, Ohio 43215
Telecopier No.: (614) 365-2499
Attention: Daniel M. Maher, Esq.
31
If to Company:
with a copy to:
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Telecopier No.: (614) 227-2390
Attention: John P. Beavers, Esq.
If to the Members:
with a copy to:
iBeam Solutions LLC
10 South High Street
Canal Winchester, Ohio 43110
Attention: Eric V. Schmidt, CEO
Members of iBeam Solutions LLC
c/o Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Telecopier No.: (614) 227-2390
Attention: John P. Beavers, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Telecopier No.: (614) 227-2390
Attention: John P. Beavers, Esq.
§11.02 Waiver . At any time prior to the Effective Time, any party may (a) extend the time for the performance of any of the obligations or
other acts of the other parties to be performed for the benefit of the waiving party, (b) waive any inaccuracies in the representations and
warranties of the other parties contained in this Agreement or in any document delivered pursuant to this Agreement for the benefit of the
waiving party and (c) waive compliance by the other parties with any of the agreements or conditions compliance with which is for the benefit
of the waiving party contained in this Agreement (to the extent permitted by Law). Any such extension or waiver shall be valid only if set forth
in an instrument in writing signed by the party or parties to be bound thereby.
§11.03 Headings . The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
§11.04 Severability . If any term or other provision of this Agreement is finally adjudicated by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.
32
§11.05 Entire Agreement . This Agreement (together with the Schedules and any closing certificates) is intended as a full integration
of the understandings of the parties, constitutes the entire agreement of the parties and
supersedes all prior agreements and undertakings, both written and oral, between the parties, or any of them, with respect to the subject matter
hereof.
§11.06 Assignment . This Agreement shall not be assigned by a party without the written consent of the other parties.
§11.07 Parties in Interest . This Agreement shall be binding upon and inure solely to the benefit of each party and to that party’s permitted
successors, assigns, heirs and personal representatives, and nothing in this Agreement, express or implied, is intended to or shall confer upon
any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
§11.08 Governing Law . This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Ohio, regardless
of the Laws that might otherwise govern under applicable principles of conflicts of law.
§11.09 Counterparts; Facsimile Signatures . This Agreement may be executed in one or more counterparts, and by the different parties
hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute
one and the same agreement. The parties hereby acknowledge and agree that facsimile signatures on this Agreement and any other documents
executed in connection herewith shall have the same force and effect as original signatures.
§11.10 Attorneys’ Fees . If any party shall commence any action or proceeding against another party in order to enforce the provisions
hereof, or to recover damages as the result of the alleged breach of any of the provisions hereof, then the prevailing party therein shall be
entitled to recover all reasonable costs incurred in connection therewith, including, but not limited to, reasonable attorneys’ fees and expenses.
§11.11 Time . Time shall be of the essence in the performance of each and every obligation set forth in this Agreement.
§11.12 Advisors . Company and the Members do hereby, jointly and severally, acknowledge and agree that they have engaged their
own respective business, tax and legal advisors, upon whom they have solely relied in connection with their decision to enter into this
Agreement and the other agreements, documents and instruments related hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, LAN, Merger Sub and Company, by their respective duly authorized officers, and the Members have caused this
Agreement to be executed as of the date first written above.
LAN:
COMPANY:
LANGUAGE ACCESS
NETWORK, INC.
iBEAM SOLUTIONS LLC
By: /s/ Michael Guirlinger
Name: Michael Guirlinger
Title: CEO
By: /s/ Eric Schmidt
Name: Eric Schmidt
Title: President
MERGER SUB:
MEMBERS:
i BS MERGER SUB LLC
BRICKER & ECKLER LLP
By: /s/ Michael Guirlinger
Name: Michael Guirlinger
Title: CEO
By: /s/ Steven Kerber
Name: Steven Kerber
Title: Administrative Partner
/s/ Eric V. Schmidt
Eric V. Schmidt
/s/ Paul Bursey
Paul Bursey
/s/ Brenda Schmidt
Brenda Schmidt
/s/ Rusty Blades
Rusty Blades
/s/ Mathew Rowe
Mathew Rowe
/s/ Randall Sims
Randall Sims
*Disclosure Schedules*
Schedule 2.01(b)
Outstanding Payables and Debt
LIABILITIES & EQUITY
Liabilities
Current Liabilities
Accounts Payable
2000 · Accounts Payable 43,684.64
2002 · Accrued Expenses (Accrued Expenses) 14,604.53
Total Accounts Payable 58,289.17
Credit Cards
2010 · Chase MC - E/P 0614-0622 4,786.97
2011 · Quickbooks - EVS 5416 30.41
2012 · CitiBank - EVS 1318 11,716.83
2013 · Quickbooks - PDB 5424 149.00
2014 · American Express EVS 5,812.59
2015 · iBeam Capital One EVS - 4280 3,775.34
2016 · First Service FCU - PDB 4132 63,502.53
2017 · Capital One Platinum EVS-6348 1,053.02
2018 · Chase -EVS - 2769 (Opened to pay State Taxes) 8,249.27
2019 · Dell Revolving Account 6,608.41
2023 · Chase Visa - EVS 3263 25,243.25
2024 · Chase Visa - PDB 4687 22,352.76
2025 · Bank of Am Visa (EVS) - 8062 (Fleet Visa)
Bank of America - Paul 8088 (Paul Bank of America-$5300lim) 168.37
2025 · Bank of Am Visa (EVS) - 8062 (Fleet Visa) - Other 14,230.69
Total 2025 · Bank of Am Visa (EVS) - 8062 (Fleet Visa) 14,399.06
2027 · Quickbooks - JDB 2873 32.37
2030 · Quickbooks - DJA 2857 25.70
2033 · First National Bank (First National Bank Omaha) 6,999.84
Total Credit Cards 174,737.35
Other Current Liabilities
2055 - Capital Lease - Citicorp (Captial Lease - Citicorp) 19,356.87
2040 · Note Payable - GMAC 10,349.67
2045 · Note Payable - Pebco 19,251.62
2060 · National City Line of Credit 34,561.89
2070 · Unearned Service Revenue (Unearned Service Revenue) 47,061.25
2075 · LAN Payable (LAN Payable) 18,481.75
2100 · Payroll Liabilities
2103 · SimpleIRACO -0.05
2115 · Accrued Payroll (Accrued Payroll) 44,350.25
2116 · Accrued Vacation (Accrued Vacation) 21,646.92
2117 · Accrued IRS Assessments (Accrued IRS Assessments) 343,653.59
2118 · Accrued State Assessments (Accrued State Assessments) 40,836.61
Total 2100 · Payroll Liabilities 450,487.32
2200 · Sales Tax Payable 2,072.29
2225 · Note Payable - Eric 48,721.48
2230 · Other Taxes Payable (Other Taxes Payable) 101,796.00
Total Other Current Liabilities 752,140.14
Total Current Liabilities 985,166.66
Total Liabilities 985,166.66
Equity
3010 · Minority Shareholders (Minority Shareholders) -22,570.00
3020 · Bricker & Eckler LLP 19,800.00
3025 · Contributed Capital - EVS
3021 · Eric Draws -168,143.46
3022 · Eric Investments 80,072.22
3023 · Contributed Capital - EVS Other 2,000.00
Total 3025 · Contributed Capital - EVS -86,071.24
3030 · Contributed Capital - PDB
3031 · Paul Draws -144,184.87
3032 · Paul Investment 59,320.40
3033 · Contributed Capital - PDB Other 2,012.65
Total 3030 · Contributed Capital - PDB -82,851.82
3035 · Contributed Capital - RB
3037 · Rusty Investments 225,000.00
Total 3035 · Contributed Capital - RB 225,000.00
3045 · Contributed Capital - Other
3045.2 · Randy Sims 200.00
3045.3 · Brenda Schmidt 200.00
3045.4 · Matt Rowe 300.00
Total 3045 · Contributed Capital - Other 700.00
3199 · Opening Bal Equity -313,836.49
3200 · Retained Earnings -695,719.09
Net Income 229,302.21
Total Net Debt -726,246.43
Schedule 4.04
Noncontravention Exceptions
None.
Schedule 4.05
Franchises, Licenses
and Permits
None other than typical vendor’s licenses, business registration, occupancy permits and the like which are all in place and current.
Schedule 4.06
Company Balance Sheet
Jul 31, 07
ASSETS
Current Assets
Checking/Savings
1005 · Cash on Hand -3.60
1010 · Huntington Checking 38,954.49
1017 · National City Checking 601.92
Total Checking/Savings 39,552.81
Accounts Receivable
1020 · Accounts Receivable
1021 · Collections -9,968.36
1022 · Long Term Receivables 11,094.33
1025 · Reserve for Doubtful Accts (Reserve for Doubtful Accts) -55,747.90
1020 · Accounts Receivable - Other 171,286.07
Total 1020 · Accounts Receivable 116,664.14
Total Accounts Receivable 116,664.14
Other Current Assets
1050 · Inventory Asset 1,352.23
1070 · Prepaid Expenses 11,694.43
1075 · Unrecognized Service Revenue (Unrecognized Service Revenue) 23,486.81
Total Other Current Assets 36,533.47
Total Current Assets 192,750.42
Fixed Assets
Assets
1500 · Computers and Equipment
1501 · Cost 107,365.27
1505 · Accumulated Depreciation -52,961.39
Total 1500 · Computers and Equipment 54,403.88
1510 · Furniture and Fixtures
1511 · Cost 9,461.49
1515 · Accumulated Depreciation -6,736.42
Total 1510 · Furniture and Fixtures 2,725.07
1530 · Vehicles
1531 · Cost 20,090.81
1535 · Accumulated Depreciation -11,049.95
Total 1530 · Vehicles 9,040.86
Total Assets 66,169.81
Total Fixed Assets 66,169.81
TOTAL ASSETS 258,920.23
2:52 PM iBeam Solutions LLC
07/31/07 Balance Sheet
Accrual Basis As of July 31, 2007
Page 1
Jul 31, 07
LIABILITIES & EQUITY
Liabilities
Current Liabilities
Accounts Payable
2000 · Accounts Payable 43,684.64
2002 · Accrued Expenses (Accrued Expenses) 14,604.53
Total Accounts Payable 58,289.17
Credit Cards
2010 · Chase MC - E/P 0614-0622 4,786.97
2011 · Quickbooks - EVS 5416 30.41
2012 · CitiBank - EVS 1318 11,716.83
2013 · Quickbooks - PDB 5424 149.00
2014 · American Express EVS 5,812.59
2015 · iBeam Capital One EVS - 4280 3,775.34
2016 · First Service FCU - PDB 4132 63,502.53
2017 · Capital One Platinum EVS-6348 1,053.02
2018 · Chase -EVS - 2769 (Opened to pay State Taxes) 8,249.27
2019 · Dell Revolving Account 6,608.41
2023 · Chase Visa - EVS 3263 25,243.25
2024 · Chase Visa - PDB 4687 22,352.76
2025 · Bank of Am Visa (EVS) - 8062 (Fleet Visa)
Bank of America - Paul 8088 (Paul Bank of America-$5300lim) 168.37
2025 · Bank of Am Visa (EVS) - 8062 (Fleet Visa) - Other 14,230.69
Total 2025 · Bank of Am Visa (EVS) - 8062 (Fleet Visa) 14,399.06
2027 · Quickbooks - JDB 2873 32.37
2030 · Quickbooks - DJA 2857 25.70
2033 · First National Bank (First National Bank Omaha) 6,999.84
Total Credit Cards 174,737.35
Other Current Liabilities
2055 - Capital Lease - Citicorp (Captial Lease - Citicorp) 19,356.87
2040 · Note Payable - GMAC 10,349.67
2045 · Note Payable - Pebco 19,251.62
2060 · National City Line of Credit 34,561.89
2070 · Unearned Service Revenue (Unearned Service Revenue) 47,061.25
2075 · LAN Payable (LAN Payable) 18,481.75
2100 · Payroll Liabilities
2103 · SimpleIRACO -0.05
2115 · Accrued Payroll (Accrued Payroll) 44,350.25
2116 · Accrued Vacation (Accrued Vacation) 21,646.92
2117 · Accrued IRS Assessments (Accrued IRS Assessments) 343,653.59
2118 · Accrued State Assessments (Accrued State Assessments) 40,836.61
Total 2100 · Payroll Liabilities 450,487.32
2:52 PM iBeam Solutions LLC
07/31/07 Balance Sheet
Accrual Basis As of July 31, 2007
Page 2
Jul 31, 07
2200 · Sales Tax Payable 2,072.29
2225 · Note Payable - Eric 48,721.48
2230 · Other Taxes Payable (Other Taxes Payable) 101,796.00
Total Other Current Liabilities 752,140.14
Total Current Liabilities 985,166.66
Total Liabilities 985,166.66
Equity
3010 · Minority Shareholders (Minority Shareholders) -22,570.00
3020 · Bricker & Eckler LLP 19,800.00
3025 · Contributed Capital - EVS
3021 · Eric Draws -168,143.46
3022 · Eric Investments 80,072.22
3023 · Contributed Capital - EVS Other 2,000.00
Total 3025 · Contributed Capital - EVS -86,071.24
3030 · Contributed Capital - PDB
3031 · Paul Draws -144,184.87
3032 · Paul Investment 59,320.40
3033 · Contributed Capital - PDB Other 2,012.65
Total 3030 · Contributed Capital - PDB -82,851.82
3035 · Contributed Capital - RB
3037 · Rusty Investments 225,000.00
Total 3035 · Contributed Capital - RB 225,000.00
3045 · Contributed Capital - Other
3045.2 · Randy Sims 200.00
3045.3 · Brenda Schmidt 200.00
3045.4 · Matt Rowe 300.00
Total 3045 · Contributed Capital - Other 700.00
3199 · Opening Bal Equity -313,836.49
3200 · Retained Earnings -695,719.09
Net Income 229,302.21
Total Equity -726,246.43
TOTAL LIABILITIES & EQUITY 258,920.23
2:52 PM iBeam Solutions LLC
07/31/07 Balance Sheet
Accrual Basis As of July 31, 2007
Page 3
Schedule 4.07
Absence of Certain
Changes or Events
 Company awarded payroll increases to its employees effective the first full payroll in January 2007 as is standard Company practice.
These amounts were reported to LAN in a salaries spreadsheet in November of 2006. No raises were given to the members of
Company as they are not employees and take draws. Eric and Paul continue to take a $5,000 per month draw as before, and this will
not change since a closing is imminent.
 For tax purposes in 2006, Company did agree to take the balance owed by The Wilds, $21,000, and consider it a charitable donation
to reduce corporate tax liabilities.
 One of Company’s clients, Associated Radio/Percy Squire, has filed for bankruptcy in the Southern District Court of Ohio, case #
05-16704. Company has a valid claim in this case for approximately $27,000.
 Other bad debt was written off last year as is standard accounting practice.
 Company assumed the employees and clients of PCEmpowered (“PCE”) that included 3 employees and approximately $400,000
worth of annual revenue for $1, in February of 2007, including a 5-year non-competition agreement from the two principals. This
transaction included no PCE assets or liability, and was merely for purposes of an assumption of PCE’s employees and clients. Signed
documents include a Letter of Understanding and a Non-Competition Agreement.
Schedule 4.08
Litigation
None - AT&T case settled, and $10,000 will be credited to LAN’s or iBeam’s AT&T bill and will be credited againt the $18,000 loan LAN
made to iBeam Solutions in April of 2007 to pay its first payment with the IRS.
Schedule 4.09
Contracts
Contracts with Payments to Company:
 Viands Concerted monthly service agreement -- $5,125 monthly due Company.
 Language Access Network - minimum of $7,550 monthly due Company.
 Bob McDorman Chevrolet -- $1,473.33 monthly due Company.
 Zeiger, Tigges & Little -- $2,660.00 monthly due Company.
 Farmers Bank service maintenance contract -- $36,000 annually due Company.
 The Community Bank service maintenance contract -- $30,864 annually due Company.
 Lancaster Surgical Associates - $750 monthly due company
 Allen & Baughmann - $566.67 monthly due Company
 Crestview Nursing & Rehabilitation - $1050.00 monthly due Company
Contracts with Payments to Vendor for Company:
 Internal Revenue Service - $18,000 due monthly to IRS through 3/2009
 AsciNet -- $2,103.08 due monthly to AsciNet for hosting facilities.
 PEBCO Partners -- $3,473.57 due monthly for office rental (it has been agreed that this will be maintained until the property is leased
by another party or sold - the property is currently listed with ReMax).
 CitiCorp lease on NAble Software -- $1,339.71 due monthly to CitiCorp as lessor.
 Healthcare insurance is provided through the Andrews Group with Medical Mutual. Company pays 45% and each employee pays
55% of the cost.
Schedule 4.10
Employee Benefit Plans
 Simple IRA Employee Plan through New England Financial/American Funds.
 Long Term and Short Term Disability with Principal Financial through Andrews Group.
 Subsidized Medical Insurance with Medical Mutual through Andrews Group.
 All employees receive 15 days Time Off (vacation and sick combined) through their first 4 years of service, an additional week
after 4 years of service and another week after 9 years of service, maximum of 200 hours carried and payout upon departure to a
maximum of 80 hours.
 All employees receive funeral leave per Company policy.
 All employees may host one basic web site for personal use.
 7 or 8 paid national holidays + birthday off as paid holiday.
Schedule 4.11
Tax Matters
Company has previously disclosed a Federal tax issue with the IRS including liens that are currently in place. An offer in compromise was
filed with a down payment of $43,105 made by Eric Schmidt as a loan to Company that must be repaid with penalties and interest included
for approximately $17,000 since this was taken from his personal IRA. Company has signed a document and note payable to that effect.
An installment payment agreement was reach for iBeam to pay $18,000 per month for 24 months to resolve this matter. Four payments
have been made leaving 20 payments due after closing.
Schedule 4.12
Intellectual Property Rights
 iMailer software created by and owned by Company.
 iWindex software created by and owned by Company.
 Company name, web site and Intranet owned by Company.
 The product lines and names including but not limited to ASM (Advanced Server Monitoring) and others are also included here.
 Company domain names
lawfirmwebsites.com.
that
company pays
for
including ibeamsolutions.com,
nbni.net,
ibeammail.com,
and
Schedule 4.13
Insurance
 General business liability insurance with Westfield Companies through Palmer Miller Nelson Insurance.
 Workers Compensation Insurance through CCI.
 State Farm Insurance on Company van.
Schedule 4.15
Properties
 Company previously leased for three years the property at 1 South High Street in Canal Winchester, Ohio. The lease expired in 2003.
 Since 2003, Company has leased the property at 10 South High Street in Canal Winchester, Ohio. It has been agreed that this lease
will be maintained at its current rate and reduced as other tenants move in, until the property is fully leased or sold.
Schedule 4.16
Accounts Receivable
Current 1 - 30 31 - 60 61 - 90 > 90 TOTAL
Absolute Inc. 74.25 0.00 0.00 0.00 0.00 74.25
Accel Mortgage 0.00 0.00 0.00 0.00 -29.85 -29.85
Anderson & Company Realtors 300.00 0.00 0.00 0.00 0.00 300.00
Andrews Architects, Inc. 49.50 0.00 0.00 0.00 0.00 49.50
Animal Haven 0.00 0.00 0.00 0.00 -12.50 -12.50
Associated Radio 0.00 0.00 0.00 0.00 27,220.23 27,220.23
Ball Livingston 148.50 89.85 0.00 0.00 -2.50 235.85
Baumwell, Howard E. 24.75 0.00 0.00 0.00 0.00 24.75
Blades Enterprises 15,378.50 0.00 0.00 0.00 0.00 15,378.50
Bobby Layman 0.00 0.00 0.00 0.00 10,000.00 10,000.00
Bursey, Paul 0.00 0.00 0.00 0.00 0.00 0.00
Burton, William 0.00 -0.37 0.00 0.00 0.00 -0.37
BWResearch LLC 0.00 89.70 0.00 0.00 0.00 89.70
Cannon Group Inc. 99.00 0.00 0.00 0.00 0.00 99.00
Cantwell Machinery Company 5,762.88 0.00 0.00 0.00 0.00 5,762.88
Central Aluminum Co 815.25 0.00 35.00 0.00 0.00 850.25
Central Ohio Group of A.A. 0.00 0.00 0.00 0.00 -99.00 -99.00
Chapel Grove Inn, The 1,188.00 1,447.15 0.00 0.00 0.00 2,635.15
Columbus Bar Assn 0.00 0.00 0.00 0.00 1.84 1.84
Columbus Foundation, The 0.00 0.00 0.00 24.75 0.00 24.75
Community Bank, The-TAX 3,849.23 0.00 0.00 0.00 0.00 3,849.23
Crestview Rehab 656.25 81.25 0.00 0.00 0.00 737.50
Dagger, Johnston, Miller, Ogilvie, Hampso 148.50 0.00 0.00 0.00 0.00 148.50
Dean, Martha 0.00 25.00 0.00 0.00 0.00 25.00
DeVault, Carl 0.00 0.00 0.00 0.00 46.67 46.67
Double Z Construction 99.00 0.00 0.00 0.00 0.00 99.00
Ebner Properties LLC 274.75 -1.00 0.00 0.00 0.00 273.75
Everything is Medicine 0.00 74.85 0.00 0.00 0.00 74.85
Fairfield County Sheriff Office 1,921.25 0.00 0.00 0.00 0.00 1,921.25
Fairfield Department of Health 14.95 0.00 0.00 0.00 0.00 14.95
Fee Corp Environmental Services 0.00 59.70 0.00 0.00 49.50 109.20
Four Seasons Farm 0.00 24.75 0.00 0.00 0.00 24.75
Garmen, Stacey 0.00 0.00 0.00 0.00 -0.75 -0.75
General Temperature Control Inc. 125.00 0.00 0.00 0.00 0.00 125.00
Gerrity and Burrier, LTD 420.75 0.00 0.00 0.00 0.00 420.75
Getz, Marian 0.00 0.00 0.00 0.00 -0.25 -0.25
Haggenjos, Jeffrey J., Dr. 420.75 0.00 0.00 0.00 0.00 420.75
Halliday Technologies 0.00 29.85 0.00 0.00 0.00 29.85
Healthy Congregations, Inc.* 24.75 0.00 0.00 0.00 0.00 24.75
Heritage Buffing & Polishing 85.00 0.00 0.00 0.00 0.00 85.00
Hostetler Title 0.00 44.85 0.00 0.00 0.00 44.85
Humor Consultants 0.00 34.90 0.00 0.00 6,690.32 6,725.22
iBeam Non-Billable Work 0.00 0.00 0.00 0.00 -44.85 -44.85
iBeam Solutions 0.00 0.00 0.00 0.00 -55,747.90 -55,747.90
2:58 PM iBeam Solutions LLC
07/31/07 A/R Aging Summary
As of July 31, 2007
Page 1
Current 1 - 30 31 - 60 61 - 90 > 90 TOTAL
Infinity Bank Card of America 0.00 0.00 0.00 0.00 2.85 2.85
Inn at Fairfield Village 24.75 0.00 0.00 0.00 0.00 24.75
Inns Management 1,855.00 0.00 0.00 0.00 0.00 1,855.00
Jarvis Law Office LLC-COD 0.00 1,664.20 0.00 0.00 0.00 1,664.20
Jenkinson, Kimberly Ann 0.00 79.35 0.00 0.00 0.00 79.35
Knox County Board MRDD 2,015.00 0.00 0.00 0.00 0.00 2,015.00
Krivda Law Offices 0.00 29.85 0.00 0.00 0.00 29.85
Lancaster Community Church 6,972.00 0.00 0.00 0.00 0.00 6,972.00
Language Access Network 9,234.75 2,196.97 0.00 0.00 0.00 11,431.72
Lithopolis Cemetery 0.00 29.85 0.00 0.00 0.00 29.85
Locher Spindle Grinding-cc 0.00 0.00 0.00 0.00 24.75 24.75
McDonald Farm, The 0.00 0.00 0.00 0.00 25.00 25.00
Methodist Retirement Center of Central Oh 0.00 0.00 46.34 0.00 0.00 46.34
Metropolitan Mortgage Group LLC 0.00 29.85 0.00 1,423.25 153.00 1,606.10
Milby Group 187.50 0.00 0.00 0.00 0.00 187.50
Miracit Development Corp 1,505.25 0.00 0.00 0.00 0.00 1,505.25
Movement Center, The (COD) 0.00 0.00 0.00 -13.20 0.00 -13.20
Nationwide 659.00 0.00 0.00 0.00 0.00 659.00
New England Homes 24.75 0.00 0.00 0.00 -115.00 -90.25
New Jersey Advisory Council 0.00 0.00 0.00 0.00 0.00 0.00
Ohio Arson School 0.00 0.00 0.00 0.00 24.75 24.75
Ohio IT Alliance 875.00 0.00 0.00 0.00 0.00 875.00
Ohio Oil & Gas Energy Education Program 1,524.50 0.00 0.00 0.00 0.00 1,524.50
Ohio Packing Company 0.00 0.00 0.00 0.00 11,746.01 11,746.01
Ohio Restaurant Association 1,546.88 0.00 0.00 0.00 0.00 1,546.88
Ohio Schools Coalition 0.00 299.40 0.00 0.00 0.00 299.40
Ohio Valley Express, Inc. 0.00 0.00 0.00 0.00 41.63 41.63
OMERESA 3,000.00 0.00 24.75 0.00 0.00 3,024.75
Orkin Pest Control-C.O.D. 0.00 0.00 0.00 0.00 -3.00 -3.00
OSU-College of Optometry 0.00 4,399.25 0.00 0.00 0.00 4,399.25
Pebco Partners 0.00 0.00 0.00 0.00 0.00 0.00
Pinnacle Data Systems, Inc. 8,324.00 0.00 0.00 0.00 0.00 8,324.00
Play N Trade Clovis 0.00 0.00 0.00 0.00 0.00 0.00
Play N Trade Corporate 0.00 0.00 0.00 0.00 0.00 0.00
Poland, Michael D., M.D., Inc. 0.00 0.00 0.00 0.00 0.00 0.00
PPA Graphics, Inc. 62.11 -0.01 0.00 0.00 0.00 62.10
Pretium Partners 24.75 74.85 0.00 0.00 0.00 99.60
Price, Beth 0.00 44.85 0.00 0.00 0.00 44.85
Process Associates (COD) 154.80 0.00 0.00 0.00 0.00 154.80
Process Associates LLC (COD) 0.00 0.00 0.00 -75.00 0.00 -75.00
Pure H20 125.00 0.00 0.00 0.00 0.00 125.00
ReSource Ohio 750.00 0.00 0.00 0.00 0.00 750.00
Roehrenbeck Electric Inc. 1,782.85 49.75 0.00 0.00 25.00 1,857.60
Rogers,Raeann 0.00 0.00 0.00 0.00 0.00 0.00
Sakamura U.S.A 0.00 0.00 0.00 -25.15 0.00 -25.15
SEIU-1199 3,600.00 0.00 0.00 0.00 0.00 3,600.00
SharonBrook Management Company, LLC 3,118.50 106.25 0.00 0.00 0.00 3,224.75
Sharp Community Resources 0.00 44.85 0.00 0.00 0.00 44.85
Smart Retail Technology -7,252.42 0.00 0.00 0.00 7,252.42 0.00
Sowald, Sowald & Clouse 1,244.72 218.75 0.00 0.00 0.00 1,463.47
Squire, Percy 0.00 0.00 24.75 0.00 8,103.14 8,127.89
2:58 PM iBeam Solutions LLC
07/31/07 A/R Aging Summary
As of July 31, 2007
Page 2
Current 1 - 30 31 - 60 61 - 90 > 90 TOTAL
Star Landscape Management 0.00 0.00 0.00 0.00 -0.75 -0.75
Sturgell, Mike 0.00 0.00 0.00 0.00 -0.19 -0.19
TDCI Inc 0.00 750.00 0.00 0.00 0.00 750.00
Transmet Corporation 148.50 0.00 990.00 0.00 0.00 1,138.50
Tri-County Career Center 0.00 29.85 0.00 0.00 0.00 29.85
Trinity Lutheran Seminary 0.00 0.00 0.00 50.00 0.00 50.00
Upper Arlington City Schools 0.00 0.00 0.00 0.00 -3.15 -3.15
Upper Arlington Company, Realtors, Ltd. 0.00 29.85 0.00 0.00 0.00 29.85
Valerie Still Foundation 0.00 0.00 0.00 0.00 179.40 179.40
Village at Muirfield Condo Assn 0.00 0.00 123.75 0.00 0.00 123.75
Village of Baltimore 297.00 0.00 0.00 0.00 0.00 297.00
Village of Obetz 1,665.00 0.00 0.00 0.00 0.00 1,665.00
Vision Into Action Academy-South Columbus 0.00 6,464.62 0.00 25.00 -6,464.62 25.00
Waibel Heating Co. 24.75 0.00 0.00 0.00 0.00 24.75
Walnut Financial Group 0.00 0.00 0.00 0.00 0.00 0.00
WaterFire on the Mile 0.00 80.73 0.00 -80.73 0.00 0.00
WD Partners 10,202.50 0.00 0.00 0.00 0.00 10,202.50
Wetmore, Joe 0.00 89.00 0.00 0.00 0.00 89.00
Women's Contemporary Health-Care 0.00 0.00 0.00 0.00 -0.11 -0.11
Zeiger, Tigges & Little 738.75 0.00 0.00 0.00 0.00 738.75
TOTAL 86,316.00 18,712.54 1,244.59 1,328.92 9,062.09 116,664.14
2:58 PM iBeam Solutions LLC
07/31/07 A/R Aging
As of July 31, 2007
Page 3
Summary
Schedule 4.17
Bank Accounts
 Huntington National Bank
01891815869 Rt #044000024
 National City Bank:
982454852
Rt #044000011
*Exhibits*
Exhibit A
Non-Competition and Non-Solicitation Agreement
Exhibit B
Opinion of Company’s Counsel
July 31, 2007
FOR IMMEDIATE RELEASE
Language Access Network Announces Definitive Acquisition of iBeam Solutions, a Microsoft Gold Certified
Partner
COLUMBUS, Ohio ( OTC:LANW ) - Language Access Network Inc., the leader in video interpretation services, today announced it has
signed a definitive agreement and has acquired privately-held iBeam Solutions.
iBeam Solutions, founded in 2000 and based in Canal Winchester, Ohio is a comprehensive provider of technology solutions to businesses. A
few of iBeam’s 450 clients include: Cardinal Health ( CAH ); Pinnacle Data Systems, Inc. ( PNS ); The Daimler Group; The Ohio State
University; Bricker & Eckler; Zeiger, Tigges & Little; and Central Ohio Pediatric Endocrinology and Diabetes Clinic.
iBeam Solutions, is ninth fastest growing IT firm in Ohio, with gross revenues exceeding $1.6 million in 2006.
Language Access Network has acquired iBeam Solutions for $1 million in restricted common stock and debt in the Company. The acquisition
will be accretive to part of 2007 earnings.
“The closing today of the iBeam Solutions acquisition signals Language Access Network’s continuing commitment to provide the very best
video interpretation services wrapped in first class IT services”, said Michael Guirlinger, CEO/COO. “The creativity, dedication, and
teamwork at iBeam Solutions will make this an excellent revenue and cultural fit with Language Access Network” added Guirlinger.
“iBeam Solutions is focused on helping businesses across the nation leverage technology to improve the bottom line. Technology does not
need to be the source of problems and discussion in corporate board rooms as it is today. Technology is a driver and a tool for businesses to
use to enhance operations and spur innovation, as is evidenced by the exciting innovative products and services delivered by Language Access
Network. It is very rewarding to see technology based services such as that delivered by Language Access Network creating jobs, cutting costs
and helping people receive accurate and timely healthcare services. We are excited about joining forces with Language Access Network.”
About iBeam Solutions, Inc.
iBeam Solutions, a Microsoft Gold Certified Partner, was founded in 2000 and is one of Central Ohio’s fastest growing technology consulting
firms. iBeam Solutions has been a Top CAT nominee in multiple categories the last 6 years running, Business of the Year from the Canal
Winchester Chamber of Commerce, and has received press regarding their talents in many publications including Business First and The Daily
Reporter, and has appeared on national TV on Fox Cable News as the subject of a Summerall Success Story with Pat Summerall. Their CEO,
Eric Schmidt, was a finalist for the 2003 and 2004 Ernst & Young Entrepreneur of the Year Award. iBeam provides design and
implementation of networks, security and Internet monitoring, technical support, web development, graphic design, application development,
database development and support, phone and data wiring, wireless solutions, phone system installation and support, web site hosting, server
and PC sales and service, sales and support for all brands and types of hardware and software, web cams, forensic technology services, help
desk services, monitoring and much more. iBeam is also Novell certified and works with all the major vendors in the industry.
For more information please visit their web site at www.ibeamsolutions.com .
About Language Access Network, Inc.
Language Access Network Inc. (OTC: LANW), is a pioneer and the leader in video language interpretation services for 150 foreign languages
and American Sign Language. A publicly traded company, Language Access Network provides pharmacies and medical facilities with
professionally trained interpreters 24 hours a day, seven days a week through our centralized video language center, interpreting more than 150
different languages including American Sign Language (ASL) via real-time, interactive video technology.
More information is available at www.languageaccessnetwork.com
Cardinal Health Systems www.cardinal.com
Pinnacle Data Systems, Inc. www.pinnacle.com
The Daimler Group www.daimlergroup.com
The Ohio State University www.osu.edu
Bricker & Eckler www.bricker.com
Zeiger, Tigges & Little LLP www.litohio.com
Central Ohio Pediatric Endocrinology and Diabetes Clinic
www.copeds.com/Disclaimer.asp
Safe Harbor Statement
This release contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E the Securities Exchange Act of 1934, as amended and such forward-looking statements are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. "Forward-looking statements" describe future expectations, plans, results, or strategies
and are generally preceded by words such as "may", "future", "plan" or "planned", "will" or "should", "expected", "anticipates", "draft",
"eventually" or "projected". You are cautioned that such statements are subject to a multitude of risks and uncertainties that could cause future
circumstances, events, or results to differ materially from those projected in the forward-looking statements, including the risks that actual
results may differ materially from those projected in the forward-looking statements as a result of various factors, and other risks identified in a
companies' annual report on Form 10-K or 10-KSB and other filings made by such company with the Securities and Exchange Commission.
2
****
Contact
Public Relations:
5W Public Relations
Adam J. Handelsman, General Manager
212-999-5585 x4319
[email protected]
Corporate
Language Access Network, Inc. (OTC: LANW)
111 West Rich Street
Suite 150
Columbus, Ohio 43215
614-355-0900
[email protected]
E SCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of August 1, 2007, is entered into by and among Language Access
Network, Inc., a Nevada corporation (“LAN”), iBS Merger Sub LLC, an Ohio limited liability company (“Merger Sub”), iBeam Solutions
LLC, an Ohio limited liability company and surviving company in the merger of Merger Sub with and into the former iBeam Solutions LLC
which was also an Ohio limited liability company (the “Surviving Company,” and collectively with LAN and the Merger Sub, the “Escrow
Beneficiaries”), all of the pre-merger Members of the former iBeam Solutions LLC (the “Members”), and Squire, Sanders & Dempsey L.L.P.
(the “Escrow Agent”). LAN, Merger Sub, the Surviving Company, the Members and the Escrow Agent are sometimes referred to herein
individually as a “Party” and collectively as the “Parties.”
Background
Whereas, all of the parties other than the Escrow Agent entered into an Agreement and Plan of Merger, dated as of August 1,
2007 (the “Merger Agreement”), whereby LAN has on the date hereof acquired the former iBeam Solutions LLC through its being the
Surviving Company in the merger with the Merger Sub provided for in the Merger Agreement;
Whereas, under the Merger Agreement and in connection with the transactions described therein, the Escrow Beneficiaries
are entitled to indemnification from the Members with respect to Indemnity Claims (as such term is defined in the Merger Agreement);
Whereas, the terms of the Merger Agreement require that, within the period of ten (10) days after the Closing (as such term is
defined in the Merger Agreement), all of the Merger Shares (as such term is defined in the Merger Agreement) (the “Deposited Shares”) are to
be deposited, held and administered in escrow immediately following the Closing; and
Whereas, the Parties have agreed upon and wish to set forth in this Agreement the terms and conditions with respect to the
Deposited Shares being placed in escrow and held by the Escrow Agent hereunder;
NOW, THEREFORE, the Parties agree as set forth below.
Agreement
1. Escrow Agent . The Parties hereby designate and appoint the Escrow Agent to serve, and the Escrow Agent hereby
agrees to act as such and serve, in accordance with and upon the terms, conditions and provisions of this Agreement.
2. Establishment of Escrow . Concurrently with the execution of this Agreement, and subject to the terms and provisions
herein contained, the Members hereby authorize and direct delivery on their behalf to the Escrow Agent of the Deposited Shares, duly endorsed
in blank or with accompanying executed blank stock powers, to be held in escrow pursuant to the terms of this Agreement.
3. Investment of Escrow Assets . Until termination of this Agreement, the Escrow Agent shall hold without reinvestment all
of the Deposited Shares. In the event any cash dividends or other assets of any kind are received with respect to the Deposited Shares, the
Escrow Agent shall invest and reinvest the same in accordance with the written directions of the Members holding a majority of the Deposited
Shares (the “Majority Members”) and subject to the terms of this Section 3 in (a) U.S. treasury bills or treasury notes, (b) any other direct
obligation issued by or guaranteed in full as to principal and interest by the United States of America or (c) certificates of deposit issued by one
or more commercial banks having capital, surplus and undivided profits of not less than $100,000,000, in each case with a maturity of less than
180 days. The Deposited Shares, together with any cash or other assets received with respect thereto and any investment earnings thereon, shall
be the full escrow assets covered hereby (the “Escrow Assets”). The Escrow Agent is authorized to liquidate any portion of the Escrow Assets
consisting of investments (except for the Deposited Shares - see Section 5(a)) to provide for payments required to be made under this
Agreement. None of the Parties shall be liable or responsible in any manner for any loss or depreciation resulting from any such investment or
liquidation, or for any costs in connection therewith, and all of said losses and costs shall be an adjustment to the Escrow Assets.
4. Indemnification Claims . If any of the Escrow Beneficiaries determines to make any claim for indemnification pursuant
to §8.03 of the Merger Agreement (an “Indemnification Claim”), then such Escrow Beneficiary (the “Indemnification Claimant”) shall notify
the Escrow Agent and the Members in writing of the Indemnification Claim, describing in such notice (an “Indemnification Notice”) the nature
of the Indemnification Claim, the representations, warranties and/or agreements with respect to which the Indemnification Claim is made, the
specific facts giving rise to an alleged basis for the Indemnification Claim and the amount thereof if then ascertainable or, if not ascertainable, a
reasonable estimate of the maximum amount thereof, and shall deliver to the Members copies of any documentation of which the
Indemnification Claimant is aware with respect to the Indemnification Claim. On the thirtieth (30 th ) calendar day (the “Indemnification
Distribution Date”) following the Escrow Agent’s receipt of the Indemnification Notice, the Escrow Agent shall distribute to the
Indemnification Claimant from the Escrow Assets the amount requested by the Indemnification Claimant in the Indemnification Notice unless,
prior to the Indemnification Distribution Date, the Majority Members deliver to both the Escrow Agent and the Indemnification Claimant a
written notice (a “Dispute Notice”) disputing the Indemnification Claimant’s right to all or part of the amount set forth in the Indemnification
Notice. If, prior to the Indemnification Distribution Date, the Escrow Agent receives a Dispute Notice, then the Escrow Agent shall pay to the
Indemnification Claimant the undisputed portion of the Indemnification Claim (if any) and the disputed portion of the Indemnification Claim
shall thereafter be considered an “Open Indemnification Claim” and the Escrow Agent shall maintain such portion of the Escrow Assets as is
equal to the amount of the Open Indemnification Claim as reserve assets (the “Indemnification Claim Reserve Assets”). Thereafter, the
Indemnification Claim Reserve Assets shall be distributed by the Escrow Agent from escrow hereunder to the Indemnification Claimant only in
accordance with joint written instructions by the Indemnification Claimant and the Majority Members or pursuant to a final non-appealable
order issued by a court of competent jurisdiction. The Indemnification Claim Reserve Assets shall not be distributed by the Escrow Agent
except in the manner set forth in the preceding sentence.
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5. Release and Application of Escrow Assets . The Escrow Agent shall hold the Escrow Assets under the provisions of this
Agreement until authorized hereunder to deliver any specified portion thereof as follows:
(a) Distributions of portions of the Escrow Assets shall be made to an Indemnification Claimant in satisfaction of
Indemnification Claims (if any) made by the Indemnification Claimant, which distributions shall be in the manner and to the extent authorized
under Section 4 and as further provided in this clause (a). All distributions of Escrow Assets to an Indemnification Claimant shall be made in
Deposited Shares first to the extent thereof prior to distribution of any other Escrow Assets. In distributing Escrow Assets other than cash to an
Indemnification Claimant, the Deposited Shares shall be valued at $3.00 per Deposited Share, and all other assets shall be valued at their fair
market value. All distributions of the Deposited Shares to an Indemnification Claimant as a part of the Escrow Assets shall include any
accompanying stock powers executed in blank. Notwithstanding anything to the contrary herein, the Members may elect to satisfy any
Indemnification Claim in cash in lieu of any distribution of the Escrow Assets as provided herein, and if the Members so elect and satisfy the
Indemnification Claim they must do so and notify the Escrow Agent in writing that they have done so prior to the Indemnification Distribution
Date.
(b) The entire balance of the Escrow Assets, minus the aggregate amount of any then existing Indemnification
Claim Reserve Assets for Open Indemnification Claims as to which an Indemnification Notice has been delivered prior to the second
anniversary of the Closing, shall be distributed to the Members after the second anniversary of the date of the Closing and no later than such
date as is thirty (30) days after the second anniversary of the date of the Closing (the “Escrow Distribution Date”).
(c) After the Escrow Distribution Date, at such time when the Escrow Agent receives joint written instructions by
the applicable Indemnification Claimant and the Majority Members, or pursuant to a final and non-appealable order from a court of competent
jurisdiction (a “Final Determination”) with respect to each Open Indemnification Claim, (i) the amount distributable to an Indemnification
Claimant under the Final Determination for an Open Indemnification Claim, if any, shall be distributed to the Indemnification Claimant from
the Indemnification Claim Reserve Assets therefor, and (ii) the balance of such Indemnification Claim Reserve Assets (if any) shall then be
distributed to the Members, as applicable.
(d) Notwithstanding any provision herein to the contrary, if at any time the Escrow Beneficiaries and the Majority
Members jointly execute a written notice providing the Escrow Agent with distribution instructions for all or part of the Escrow Assets then
remaining, the Escrow Agent shall distribute such all or part of the Escrow Assets in accordance with the instructions contained in such notice.
(e) All distributions to the Members as provided in this Section 5 shall be made pro rata based on their respective
percentage of the Deposited Shares deposited by them under this Agreement.
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6. Rights With Respect to Deposited Shares . During the period any Deposited Shares are held hereunder, the Members
shall have the right to vote their respective Deposited Shares which have been deposited by them hereunder as Deposited Shares. However, all
dividends, distributions, interest, realized gains and other investment income on the Escrow Assets shall be retained in the escrow hereunder as
part of the Escrow Assets until distributed pursuant to Section 5.
7. Responsibilities of Escrow Agent . The Escrow Agent shall have no duties or responsibilities except those expressly set
forth herein. The Escrow Agent shall have no responsibility for the validity of any agreements referred to in this Agreement, or for the
performance of any such agreements by any party thereto or for interpretation of any of the provisions of any of such agreements. The liability
of the Escrow Agent hereunder shall be limited solely to bad faith, willful misconduct or gross negligence on its part. The Escrow Agent shall
be protected in acting upon any certificate, notice or other instrument whatsoever received by the Escrow Agent under this Agreement, not only
as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information therein
contained, which the Escrow Agent in good faith believes to be genuine and to have been signed or presented by a proper person or persons.
The Escrow Agent shall have no responsibility as to the validity, collectibility or value of any property held by it in escrow hereunder pursuant
to this Agreement, and the Escrow Agent may rely on any notice, instruction, certificate, statement, request, consent, confirmation, agreement
or other instrument which it believes to be genuine and to have been signed or presented by a proper person or persons. In the event that the
Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions from any of the undersigned with respect to any
property held by it in escrow hereunder pursuant to this Agreement which, in the opinion of the Escrow Agent, are in conflict with any of the
provisions of this Agreement, the Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise in writing
jointly by the Escrow Beneficiaries and the Majority Members or by an order of a court of competent jurisdiction. The Escrow Agent shall not
be deemed to have notice of, or duties with respect to, any agreement or agreements with respect to any property held by it in escrow hereunder
pursuant to this Agreement other than this Agreement or except as otherwise provided herein. This Agreement sets forth the entire agreement
among the Parties relating to the subject matter hereof. Notwithstanding any provision to the contrary contained in any other agreement
(excluding any amendment to this Agreement) between any of the Parties, the Escrow Agent shall have no interest in the property held by it in
escrow hereunder except as provided in this Agreement. In the event that any of the terms and provisions of any other agreement (excluding
any amendment to this Agreement) between any of the Parties conflict or are inconsistent with any of the terms and provisions of this
Agreement, the terms and provisions of this Agreement shall govern and control in all respects to the extent necessary to determine the rights,
duties or obligations of the Escrow Agent.
8. Amendment and Cancellation . The Escrow Agent shall not be bound by any cancellation, waiver, modification or
amendment of this Agreement, including the transfer of any interest hereunder, unless such modification is in writing and signed by the Escrow
Beneficiaries and all of the Members and, if the duties of the Escrow Agent hereunder are affected in any way, the Escrow Agent.
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9. Legal Counsel . The Escrow Agent may consult with, and obtain advice from, legal counsel in the event of any question
as to any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in
accordance with the written opinion and instructions of such counsel.
10. Resignation . The Escrow Agent shall have the right, in its discretion, to resign as escrow agent hereunder at any time,
by giving at least thirty (30) days’ prior written notice of such resignation to the Escrow Beneficiaries and the Members. In such event, the
Escrow Beneficiaries and the Members shall promptly select a bank with capital, surplus and undivided profits of not less than $100,000,000,
which bank will be appointed as successor escrow agent hereunder, and the Escrow Beneficiaries and the Members shall then enter into an
agreement with such bank in substantially the form of this Agreement. Resignation by the Escrow Agent shall relieve the Escrow Agent of any
responsibility or duty thereafter arising hereunder, but shall not relieve the Escrow Agent from responsibility to account to any other Party for
assets received by the Escrow Agent prior to the effective date of such resignation. If a substitute for the Escrow Agent hereunder shall not
have been selected, as aforesaid, the Escrow Agent shall be entitled to petition any court for the appointment of a substitute for it hereunder or,
in the alternative, it may (a) transfer and deliver the assets deposited in escrow hereunder to or upon the order of such court or (b) keep all
assets in escrow hereunder until it receives joint written notice from the Escrow Beneficiaries and the Majority Members of a substitute
appointment. The Escrow Agent shall be discharged from all further duties hereunder upon acceptance by the substitute of its duties hereunder
or upon transfer and delivery of the said assets in escrow hereunder to or upon the order of any court.
11. Fees and Expenses . The Escrow Agent shall serve hereunder without any fee. The Escrow Beneficiaries and the
Members shall mutually bear the Escrow Agent’s expenses incurred in connection herewith.
12. Distributions . At any time the Escrow Agent is required to distribute any Escrow Assets held by or received by it under
any of the provisions of this Agreement, such distribution shall be effected by mailing or otherwise delivering such Escrow Assets to the
relevant person at the address of the relevant person on file with the Escrow Agent, provided that any person may, by written notice delivered
to the Escrow Agent, direct that distributions to such person be effected by mail or delivery to any other or changed address specified in such
notice, and distributions after such notice is received shall be made in accordance with such notice (until changed by subsequent notice
delivered by such person to the Escrow Agent).
13. Notices . All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice,
request, demand, claim or other communication hereunder shall be deemed duly given (a) when delivered, if personally delivered, (b) on the
date telecommunicated, if faxed and confirmed by telephone confirmation (with hard copy to follow via first class mail, postage prepaid), or
(c) one business day after deposit with a reputable overnight courier, in each case addressed to the intended recipient to the address set forth
below, or to such other address as may be designated in writing hereafter. Any Party may change the address and/or telecopier number to which
notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Parties notice in the manner
herein set forth. Notwithstanding any of the foregoing, no notice or instructions to the Escrow Agent shall be deemed to have been received by
the Escrow Agent prior to actual receipt by the Escrow Agent, and any computation of a time period which is to begin after receipt of a notice
by the Escrow Agent shall run from the date of such receipt by the Escrow Agent. All notices hereunder shall be sent to the following
addresses:
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If to the Escrow
Beneficiaries, to:
Language Access Network, Inc.
111 West Rich Street
Columbus, Ohio 43215
Telecopier No.: (614) 221-1717
Attention: Michael Guirlinger, CEO
If to the Members, to:
Pre-Merger Members of iBeam Solutions LLC
c/o Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Telecopier No.: (614) 227-2390
Attention: John P. Beavers, Esq.
If to the Escrow Agent, to:
1300 Huntington Center
41 South High Street
Columbus, Ohio 43215
Attn: Daniel M. Maher, Esq.
Squire, Sanders & Dempsey L.L.P.
.
14. Termination . This Agreement shall terminate and be of no further force or effect upon the distribution and release of all
of the Escrow Assets.
15. Captions . The section captions used herein are for reference purposes only, and shall not in any way affect the meaning
or interpretation of this Agreement.
16.
Merger Agreement.
Capitalized Terms . Capitalized terms used but not defined herein have the meanings assigned to such terms in the
17. Indemnification of Escrow Agent . The Escrow Beneficiaries and the Members each agree to hold the Escrow Agent
harmless and to each indemnify the Escrow Agent against one-half of any loss, liability, claim or demand arising out of or in connection with
the performance of its obligations in accordance with the provisions of this Agreement, except for bad faith, gross negligence or willful
misconduct of the Escrow Agent.
18. Disagreements . If any disagreement or dispute arises among the Parties concerning the meaning or validity of any
provision under this Agreement or concerning any other matter relating to this Agreement, the Escrow Agent (a) shall be under no obligation to
act, except under process or final, non-appealable order of court, and shall sustain no liability for its failure to act pending such process or final,
non-appealable court order, and (b) may deposit, in its sole and absolute discretion, the Escrow Assets or that portion of the Escrow Assets it
then holds with any court of competent jurisdiction and interplead the other Parties. Upon such deposit and filing of interpleader, the Escrow
Agent shall be relieved of all liability as to the Escrow Assets and shall be entitled to recover from the other Parties its reasonable attorneys’
fees and other costs incurred in commencing and maintaining such action.
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19. Governing Law . This Agreement shall be governed by and construed in accordance with the domestic laws of the State
of Ohio without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the State of Ohio.
20.
Counterparts . This Agreement may be executed in counterparts, all of which taken together shall constitute one
instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of the date first above written.
LAN:
COMPANY:
LANGUAGE ACCESS
NETWORK, INC.
iBEAM SOLUTIONS LLC
By: _______________
Name: Michael Guirlinger
Title: CEO
By: _______________
Name: Eric Schmidt
Title: President
MERGER SUB:
MEMBERS:
i BS MERGER SUB LLC
BRICKER & ECKLER LLP
By: _______________
Name: Michael Guirlinger
Title: CEO
By: _______________
Name: Steven Kerber
Title: Administrative Partner
_______________
Eric V. Schmidt
_______________
Paul Bursey
_______________
Brenda Schmidt
_______________
Rusty Blades
_______________
Mathew Rowe
_______________
Randall Sims
Escrow Agent :
SQUIRE, SANDERS &
DEMPSEY L.L.P.
By: _______________
Name: Daniel M. Maher
Title: Partner
LANGUAGE ACCESS NETWORK, INC.
Non-Competition and Non-Solicitation Agreement
August 1, 2007
This Non-Competition and Non-Solicitation Agreement (this “Agreement”) is entered into as of the date set forth above by and
between Language Access Network, Inc., a Nevada corporation (the “Company”), and the undersigned individual who has been a member of
iBeam Solutions LLC, an Ohio limited liability company (the “Member”).
In consideration of the Company and its subsidiary, iBeam Merger Sub LLC (the “Merger Sub”), concurrently herewith entering into
an Agreement and Plan of Merger (the “Merger Agreement”) with the above-mentioned iBeam Solutions LLC (“iBS”) and its members
(including the Member) for the acquisition of iBS through a merger of the Merger Sub with and into iBS (the “Merger”) and consummation of
the Merger, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and
the Member hereby agree as follows:
1. By virtue of the Member’s experience with iBS, the Member’s involvement with a Person conducting or conducting on the
Member’s own activities similar to those of the Company would represent a substantial competitive harm to the Company and its activities, and
the use of the Member’s skills, knowledge and information about the Company’s strategies, plans, services and other activities can and would
constitute a valuable competitive advantage over the Company. In view of the foregoing, the Member agrees and covenants that, during the
Restricted Period (as hereinafter defined), the Member shall not directly or indirectly, whether as an employee, agent, consultant, director,
officer, investor, partner, member, shareholder, proprietor, lender or otherwise, engage, or be associated in any way with any entity which
engages, anywhere in the Restricted Territory (as hereinafter defined), in any business which is a Competitive Business (as hereinafter defined),
provided that the foregoing shall not prohibit the Member from being a passive owner of not more than five percent (5%) of the outstanding
stock of a corporation subject to the reporting requirements of the Securities Exchange Act of 1934, as amended.
2. During the Restricted Period, the Member shall not, without the consent of the Company (by action of the Board), directly or
indirectly, for the Member’s benefit or the benefit of any other Person, (a) induce or attempt to induce any employee or consultant of the
Company or any of its Affiliates to leave the employ of the Company or such Affiliate, (b) solicit from any customer of the Company or any of
its Affiliates, or any Person who was such a customer within the two (2) year period prior to the start of the Restricted Period, business of the
same or of a similar nature to the business of the Company or such Affiliate with such customer, (c) solicit from any potential customer of the
Company or any of its Affiliates who is known to the Member business of the same or of a similar nature to that which has been the subject of
a written or oral bid, offer, proposal or solicitation by the Company or any of its Affiliates, or of substantial preparation with a view to making
such a bid, proposal, offer or solicitation, or (d) otherwise knowingly interfere with the relationship between the Company or any of its
Affiliates and any employee or consultant thereof.
3. For purposes of this Agreement: (a) “Affiliate” of a Person means any other Person directly or indirectly controlling or controlled
by such Person, or under direct or indirect common control with such Person, or any other Person of which such Person is a member,
shareholder, general partner, trustee, director, manager, officer or employee, (b) “Board” means the Board of Directors of the Company, (c)
“Competitive Business means any business that competes or that may reasonably be construed to compete with the Company or any of its
Affiliates, including without limitation any business that itself or through an Affiliate produces, markets, or sells products, renders services or
engages in business activities that are the same as, similar to or otherwise competitive with those of or under development or research by the
Company or any of its Affiliates, (d) “Person” means any individual, partnership, limited liability company, corporation (for profit or
non-profit), trust, association or unincorporated organization or governmental authority or other entity, (e) “Restricted Period” means the five
(5) year period commencing as of the date hereof and (f) “Restricted Territory” means the United States of America.
4. The Member acknowledges that any failure to carry out any obligation under this Agreement, or a breach by the Member of any
provision hereof, will cause immediate and irreparable damage to the Company, which damage cannot be fully and adequately compensated at
law or through an action for money damages. In the event of any failure to comply with this Agreement, the Company shall be entitled to
recover damages, losses, costs and liabilities (including attorneys’ fees) resulting from the failure to comply and will also be entitled, without
the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Such remedies will
not be the exclusive remedies for any breach of this Agreement, but will be in addition to all other remedies available at law or in equity to the
Company.
5. This Agreement shall inure to the benefit of the Company, its successors and assigns, and is binding upon the assigns, executors
and administrators and other legal representatives of the Member.
6. This Agreement shall be construed in accordance with and governed for all purposes by the law of the State of Ohio, without
giving effect to its conflicts of laws principles. In case any one or more of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of
this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If,
moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to time,
duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it so as to be enforceable to the extent
compatible with the then applicable law.
[Remainder of Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first set forth above.
Company :
Member :
LANGUAGE ACCESS
NETWORK, INC.
By: _______________
Name: Michael Guirlinger
Title: CEO
_______________
Name: _______________