Exhibit 2.1
MERGER AGREEMENT AND PLAN OF REORGANIZATION
This Merger Agreement and Plan of Reorganization is entered into as of
this 8th day of June, 1999 (this "Agreement"), by and among InfoAmerica, Inc., a
Colorado corporation, (hereinafter "IFOA" or "Acquiror"); RWC Communications,
Inc., a California corporation, ("RWC"), D&K Communications, Inc., a California
corporation, ("D&K") and ▇▇ ▇▇▇▇ Communications, Inc., a California corporation,
("DL", together with RWC and D&K are sometimes collectively called the "Acquiree
Corporations"); ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇", each of
▇▇▇▇▇ and ▇▇▇▇▇ is sometimes referred to herein individually as a "Seller" and
sometimes collectively as the "Sellers"); and ▇▇▇▇ ▇▇▇▇▇▇ ("Knight") and ▇▇▇▇▇
▇▇▇▇▇▇ ("▇▇▇▇▇▇", each of Knight and ▇▇▇▇▇▇ is sometimes referred to herein
individually as a "Buyer" and sometimes collectively as the "Buyers").
RECITALS
WHEREAS, RWC, D&K and DL constitute and operate DDD Cablevision, Ltd.,
a California partnership, which operates a cable television system in Tehachapi,
California; and
WHEREAS, IFOA, is a reporting public company under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), engaged in the creation
and selling of order entry software programs; and
WHEREAS, IFOA will establish three separate California corporations,
each of which is a wholly owned subsidiary of IFOA (tentatively known as
"IFOA-RWC, Inc.", "IFOA-D&K, Inc." and "IFOA-DL, Inc."; and collectively known
as "Merger Subsidiaries"); and
WHEREAS, in order to facilitate the acquisition of DDD by IFOA, the
parties intend to concurrently cause RWC to merge with and into IFOA-RWC, Inc.,
D&K to merge with and into IFOA-D&K, Inc. and DL to merge with and into IFOA-DL,
Inc. (collectively, the "Merger Transactions"), in accordance with applicable
laws so that the mergers qualify as a tax free reorganization pursuant to
Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the
"Code").
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NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, and for other good and valuable consideration, the legal
sufficiency and receipt of which is hereby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:
AGREEMENT
ARTICLE I
PLAN OF REORGANIZATION; EXCHANGE OF SHARES
1.1 PLAN OF REORGANIZATION. The Sellers are the owners of all of the
issued and outstanding common stock of Acquiree Corporations. It is the
intention of the parties hereto that all of the issued and outstanding shares of
common stock of the Acquiree Corporations (the "Acquiree Shares") shall be
acquired by the Acquiror as a result of the Merger Transaction solely in
exchange for shares of Acquiror's common stock (the "Common Stock"). It is the
further intention of the parties hereto that this entire transaction qualify as
a tax-free reorganization under Section 368(a)(1)(A) of the Code.
1.2 MERGER. All of the parties hereto agree to treat the Merger
Transactions as a tax-free reorganization under Section 368(a)(1)(A) of the Code
and the regulations promulgated thereunder including, without limitation,
reporting each of the Merger Transactions as such a tax-free reorganization in
all filings (including, without limitation, anticipated federal, state,
municipal and other tax returns) with any governmental agency or regulatory body
and shall not take any action, directly or indirectly, which is inconsistent
with such treatment.
1.3 EXCHANGE OF SHARES. The Acquiror and the Sellers agree that upon
the effectiveness of the Merger Transactions, the Merger Subsidiaries will
acquire all of the issued and outstanding shares of capital stock of RWC, D&K
and DL solely in exchange for 13,834,000 shares of the Acquiror's Common Stock,
which will be allocated among the Sellers in each of the Merger Transactions as
shall be designated by ▇▇▇▇▇ and ▇▇▇▇▇ not later than five (5) business days
prior to the closing of the Merger Transactions in accordance with this
Agreement (the "Closing"). The shares of Acquiror's Common Stock to be received
as a result of the Merger Transactions are sometimes referred to as the
"Acquiror Shares". All numerical references to shares of the Common Stock of
IFOA in this Section 1.3 are before giving effect to the 1 for 2 reverse stock
split referred to in Section 7.5 hereof.
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(a) The Acquiror Shares will be delivered to the Sellers on the
Closing Date (as hereinafter defined) in exchange for the shares of the Acquiree
Corporations owned by them which will be acquired by the Merger Subsidiaries as
a result of the Merger Transactions. The Sellers agree that they will hold such
Acquiror Shares for investment purposes and not for public distribution and
agree that the Acquiror Shares shall be "restricted shares", as that term is
defined in Rule 144 of the Rules and Regulations of the Securities Act of 1933,
as amended (the "Securities Act").
(b) Unless and until the Acquiror Shares are registered under the
Securities Act, or until the restrictions under Rule 144 lapse, neither of the
Sellers shall be entitled to transfer all or any of the Acquiror Shares to any
person or party, unless such Seller first provides IFOA with an opinion of
counsel reasonably acceptable to IFOA that the proposed transfer is exempt from
registration under the Securities Act and other applicable securities laws. IFOA
shall be entitled to place a restrictive legend on all certificates evidencing
ownership of the Acquiror Shares that provides notice of the provisions of this
Section 1.3(b) and other applicable provisions of this Agreement, which shall be
substantially in the form of Exhibit A attached hereto. 1.4 CLOSING.
Consummation of the transactions contemplated in this Agreement will occur on
the day that is the later to occur of the following: (i) the first business day
following the expiration of the required ten (10) day notice to be sent to the
shareholders of IFOA advising them of the intended change in the composition of
IFOA's Board of Directors; (ii) the conditions to the actions required under
Article VI hereof and the actions required under Article VIII hereof have been
completed or waived; and (iii) all filings with the Secretary of State of the
State of California necessary to consummate and give effectiveness to the Merger
Transactions shall have been completed (the "Closing Date"), and shall take
place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00 a.m., or at such other time and
location as is mutually agreeable to each of the parties.
ARTICLE II
DELIVERIES BY IFOA AT THE CLOSING
2.1 DELIVERIES BY IFOA. In addition to all other items required to be
delivered by IFOA at the Closing under this Agreement, IFOA shall deliver the
following items to the Sellers:
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(a) the Acquiror Shares by delivery to the Sellers of one or more
share certificates (in such denominations as shall be specified by the Sellers)
evidencing ownership thereof in the name of each Seller; each such certificate
to bear a restrictive legend as provided for in Section 1.3(b) hereof;
(b) a certified copy of IFOA's articles of incorporation, as
amended, as filed with the Secretary of State of Colorado, together with a
certificate of IFOA's Secretary, confirming that the Acquiror Shares have been
duly issued as required in this Agreement; and a certified copy of the articles
of incorporation for each of the Merger Subsidiaries.
(c) a current Certificate of Good Standing of IFOA, issued by the
Secretary of State of Colorado and current Certificates of Good Standing for
each of the Merger Subsidiaries issued by the Secretary of State of California;
(d) all of the corporate records of IFOA, including, without
limitation, the following: certified copies of IFOA's by-laws (as amended
through the Closing Date), complete minute books and a copy of IFOA's
stockholders ledger as of a date five (5) business days before the Closing Date
and certified copies of the by-laws of the Merger Subsidiaries;
(e) (i) a quarterly financial statement (unaudited and in the
format of a Form 10-QSB) dated as of September 30, 1998 and prepared by IFOA's
Chief Financial Officer or accountant in accordance with generally accepted
accounting principles consistently applied in form and substance reasonably
acceptable to the Sellers; (ii) a true, correct and complete copy of the Annual
Report of IFOA on Form 10-KSB for the fiscal year ended December 31, 1998 as
filed by IFOA with the Securities and Exchange Commission (the "SEC"), together
with a certification by the Chief Financial Officer of IFOA that such Annual
Report was timely filed with the SEC in connection with the Exchange Act and the
rules and regulations thereunder; (iii) a copy of the Company's Form 10-QSB for
the period ended March 31, 1999; and (iv) a certificate from the president of
IFOA confirming that there has been no material adverse change in business
assets, property or condition (financial or otherwise) of IFOA since December
31, 1998;
(f) certificates of the Secretary and the President of IFOA
verifying the accuracy and authentication of all corporate records, financial
records, other materials or documents of IFOA delivered or provided by IFOA to
the Sellers at or prior to the Closing, and
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confirming the accuracy and truthfulness on the Closing Date of all
representations and warranties of IFOA contained herein and therein;
(g) resignation from all of the members of the board of directors
of IFOA and each of the Merger Subsidiaries shall be seriatum, and election in
their place and stead of nominees designated by Sellers, and resignations of all
officers of IFOA and the Merger Subsidiaries shall resign, in each case
effective as of the Closing;
(h) certified copies of resolutions of the board of directors of
IFOA and the Merger Subsidiaries authorizing execution, delivery and performance
of this Agreement and all agreements, documents, certificates of stock and other
items to be delivered by IFOA and the Merger Subsidiaries, as applicable,
pursuant to this Agreement and in connection with the consummation of Merger
Transactions and the other transactions contemplated by this Agreement;
(i) a legal opinion of IFOA's counsel addressed to the Sellers in
form and substance reasonably satisfactory to the Sellers;
(j) copies of all contracts, loan agreements, memoranda and other
documents or instruments (involving or potentially involving $5,000 or more) to
which IFOA is a party or by which it is bound or to which it or any of its
assets is subject;
(k) copies of the Certificates of Merger in order to effectuate
the Merger Transactions, duly executed by IFOA and each of the Merger
Subsidiaries, as applicable, in the form that will be concurrently filed with
the Secretary of State of the State of California;
(l) the Indemnification Agreement in the form of Exhibit B
attached hereto (the "Indemnification Agreement"), duly executed by IMED
Management Corporation, Mr. ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ and the delivery to
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP, as escrow agent (the "Escrow Agent") of
certificates representing 30,000, 25,000 and 25,000 shares of the Acquiror's
Common Stock, to be held by the Escrow Agent to satisfy a potential
indemnification obligation under the Indemnification Agreement; and
(m) such other documents and instruments as may be reasonably
requested by the Sellers.
2.2 OTHER DOCUMENTS AND INSTRUMENTS. It shall also be a condition of
the Closing that IFOA shall deliver any and all such other documents and
instruments of conveyance, assignment and transfer, and other items, as may be
reasonably requested or necessary in order to vest
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good and marketable title to the Acquiror Shares, in and to the Sellers, on the
Closing Date. All instruments and other documents or instruments exchanged by
the parties shall be in form as needed to effectuate and consummate the Merger
Transactions and the other transactions contemplated by this Agreement or to
evidence the same, and shall include any third party consents to the Merger
Transactions and the other transactions contemplated hereby that may be required
by the provisions of any contracts, agreements or obligations to which IFOA or
any of the Merger Subsidiaries, as the case may be, is a party, or by which IFOA
or any of the Merger Subsidiaries, as the case may be, or any of their
respective properties and assets are bound, or pursuant to which a change in the
stock ownership of IFOA or any of the Merger Subsidiaries, as the case may be,
is deemed to constitute an assignment or transfer requiring such consent or
approval, except as to such assets as are to be sold to Knight and ▇▇▇▇▇▇
pursuant to the Agreement in the form thereof attached hereto as Exhibit C (the
"Spin-Off Agreement").
ARTICLE III
DELIVERIES BY THE SELLERS AT THE CLOSING
3.1 DELIVERIES BY THE SELLERS. In addition to all other items required
to be delivered by the Sellers at the Closing under this Agreement, at the
Closing the Sellers shall deliver the following items to IFOA:
(a) 100% of the outstanding capital stock of RWC, D&K and DL, by
delivery to the Merger Subsidiaries of one or more share certificates evidencing
ownership of the stock of said corporations, endorsed by Sellers, or with duly
executed blank stock powers signed by the officers of each of RWC, D&K and DL;
(b) certified copies of each of the articles of incorporation of
each of RWC, D&K and DL;
(c) a current Certificate of Good Standing of each of the
Acquiree Corporations, issued by the Secretary of the State of California as
well as by the Secretary of the State of any other jurisdiction in which the
Acquiree Corporations are authorized to conduct business;
(d) corporate records of each of the Acquiree Corporations
consisting of at least the following: copies of the By-laws of each of the
Acquiree Corporations and minute books;
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(e) a balance sheet of DDD dated as of December 31, 1998 prepared
by the controller or accountant of the Acquiree Corporations in accordance with
generally accepted accounting principals consistently applied;
(f) certificates of the Secretary and the Vice President or the
President of the Acquiree Corporations verifying the accuracy and authenticity
of all corporate records, financial statements and other materials or documents
pertaining to the Acquiree Corporations delivered or provided by the Sellers at
the Closing, and confirming the accuracy and truthfulness on the Closing Date of
all representations and warranties of the Sellers and the Acquiree Corporations
as contained herein and therein, that there has been no material adverse change
in the financial condition of any of the Acquiree Corporations or DDD since
December 31, 1998;
(g) certified copies of resolutions of the board of directors of
RWC, D&K and DL authorizing the execution, delivery and performance of this
Agreement by such companies and the consummation of the Merger Transaction and
the other transactions contemplated hereby;
(h) a legal opinion of legal counsel for the Acquiree
Corporation, addressed to IFOA in form and substance reasonably satisfactory to
IFOA;
(i) copies of the Certificates of Merger, duly executed by the
Sellers and the Acquiree Corporation, as applicable, in the form that will be
filed with the Secretary of State of the State of California; and
(j) the Indemnification Agreement duly executed by IFOA, Knight,
Salmen and IMED and the Escrow Agent.
3.2 OTHER DOCUMENTS AND INSTRUMENTS. The Acquiree Corporations shall
also deliver to IFOA any and all such other documents and information and such
other items regarding the Acquiree Corporations and DDD, as may be reasonably
requested by IFOA or necessary in order to provide IFOA with material
information about the business and affairs of the Acquiree Corporations and DDD
on or prior to the Closing Date. All instruments and other documents or
instruments exchanged by the parties shall be in the form as needed to
effectuate the Merger Transactions and the other transactions contemplated by
this Agreement or to evidence the same, and shall include any third party
consents to the transactions contemplated hereby that maybe required by the
provisions of any contracts, agreements or obligations to which the Acquiree
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Corporations and DDD are a party or pursuant to which a change in the stock
ownership of the Acquiree Corporations is deemed to constitute an assignment or
transfer requiring such consent or approval.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF IFOA
IFOA hereby represents and warrants to the Sellers and the Acquiree
Corporations, and covenants for the benefit of the Sellers and the Acquiree
Corporations, that the representations and warranties set forth in this Article
IV are true, correct, accurate and complete in all respects as of the date of
this Agreement, and that the same will be true, correct, accurate and complete
in all respects on and as of the date of the Closing Date, as though made on the
Closing Date, except to the extent any such representations and warranties
expressly relate to an earlier date. The representations and warranties set
forth in this Article IV shall be modified by and shall be deemed to include the
information expressly set forth in the IFOA Disclosure Schedule attached hereto
(the "IFOA Disclosure Schedule"), which is incorporated herein by reference and
made a part of this Agreement. The IFOA Disclosure Schedule will be arranged in
paragraphs and subparagraphs that correspond to the designation of sections set
forth in Article V.
4.1 ORGANIZATION OF IFOA. IFOA is a corporation that is duly organized
and validly existing and in good standing under the laws of the State of
Colorado and is qualified as a foreign corporation and is in good standing in
such other jurisdictions in which the nature of its business requires it to be
authorized to qualify as a foreign corporation. The Merger Corporations have
been duly organized and are validly existing and in good standing under the laws
of the State of California.
4.2 AUTHORIZATION OF TRANSACTION. IFOA and each of the Merger
Subsidiaries has full actual and legal corporate power and corporate authority
to execute, deliver and perform this Agreement and to consummate the Merger
Transactions and the other transactions contemplated hereby, and execution,
delivery and performance of this Agreement and the consummation of the Merger
Transactions and the other transactions contemplated hereby have been authorized
and approved by the Board of Directors of IFOA and each of the Merger
Subsidiaries, as applicable.
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4.3 ENFORCEABLE OBLIGATION. This Agreement constitutes the legal, valid
and binding obligation of IFOA and each of the Merger Subsidiaries, enforceable
against IFOA and each of the Merger Subsidiaries, as applicable, in accordance
with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency or other laws of general application relating to or affecting the
enforcement of creditors rights generally, and to general equitable principles.
4.4 NON-CONTRAVENTION. Neither the execution, delivery and performance
of this Agreement, nor the consummation of each of the Merger Transactions and
the other transactions contemplated hereby by IFOA and each of the Merger
Subsidiaries, as applicable, will (i) violate any law, regulation, rule,
judgement, order, decree, stipulation, injunction or other restriction of any
government, government agency or regulatory authority, or any order of any court
to which IFOA, any of the Merger Subsidiaries or any of the Acquiror Shares are
subject or any provision of the articles of incorporation or by-laws or similar
governing rules or documents of IFOA or any of the Merger Subsidiaries, as the
case may be, (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any notice under any law,
regulation or rule or under any contract, lease, sublease, license, sublicense,
franchise, permit, indenture, agreement, mortgage or instrument of indebtedness
or under any other arrangement to which IFOA or any of the Merger Subsidiaries,
as the case may be, is a party or by which IFOA or any of the Merger
Subsidiaries, as the case may be or any of the Acquiror Shares are bound or to
which IFOA or any of the Merger Subsidiaries, as the case may be, or any of the
Acquiror Shares is subject (iii) nor result in this imposition of any lien,
encumbrance, claim or security interest in, to or affecting any of the
properties or assets of IFOA or any of the Merger Subsidiaries, as the case may
be (except for those assets being acquired by Messrs. Knight and ▇▇▇▇▇▇ pursuant
to the Spin-Off Agreement with respect to which any such lien, encumbrance,
claim or security interest is being assumed by them), or any of the Acquiror
Shares. None of IFOA or any of the Merger Subsidiaries, as the case may be, is
required to furnish any notice to, make any filing with, or obtain any
authorization, consent or approval of any federal, state or local government or
governmental agency or regulatory authority in order for IFOA or any of the
Merger Subsidiaries, as the case may be, to execute, deliver and perform this
Agreement and to consummate the Merger Transactions and the other transactions
contemplated by this Agreement nor would the failure to do so have a material
adverse effect on the ability of IFOA or any
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of the Merger Subsidiaries, as the case may be, to consummate the Merger
Transactions or the other transactions contemplated by this Agreement or have an
adverse affect on any of the Acquiror Shares.
4.5 THE ACQUIROR SHARES.
(a) Schedule 4.5(a) sets forth as of the date hereof the number
of issued and outstanding shares of IFOA Common Stock. All outstanding shares of
IFOA are duly authorized, validly issued, fully paid and non-assessable.
(b) As of the Closing Date the Acquiror Shares will be duly and
validly issued and will be fully paid and non-assessable and the Sellers will
acquire legal and beneficial ownership to the Acquiror Shares free and clear of
all liens, mortgages, claims or other encumbrances of any kind or nature
whatsoever. The Acquiror Shares will be restricted stock consistent with Section
1.3 of this Agreement. Title to the Acquiror Shares will be in the name of the
Sellers in the official records of IFOA and in the records of IFOA's stock
transfer agent. Schedule 4.5(b) attached hereto sets forth a true, correct and
complete listing of capitalization of IFOA after giving effect to the Merger
Transactions and the other transactions contemplated by this Agreement.
(c) There are no outstanding warrants, options, convertible
securities or other interests or rights pre-emptive or otherwise to acquire any
class of securities of IFOA, other than those which are set forth on Schedule
4.5(c). All outstanding options will be terminated prior to the Closing, at no
cost to IFOA, and no additional securities of IFOA will be issued prior to the
Closing.
4.6 LITIGATION. Neither IFOA nor any of the Merger Subsidiaries is
subject to any unsatisfied judgement, order, decree, stipulation, injunction, or
charge nor is it a party to, or to the best of IFOA's knowledge, threatened to
be made a party to any charge, complaint, action, suit, hearing, investigation
or other proceeding of or in any court or quasi-judicial or administrative
agency of any federal, state, or local jurisdiction or before any arbitrator
that relates in any way, directly or indirectly, to the transactions
contemplated in this Agreement or could have a material adverse affect on the
business, assets, properties or condition (financial or otherwise) of IFOA or
any of the Merger Subsidiaries, as the case may be.
4.7 MATERIAL INFORMATION. At or prior to the Closing IFOA will deliver
to Sellers the IFOA Disclosure Schedule as well as IFOA's Annual Report on Form
10-KSB for its fiscal years ended December 31, 1997 and 1998, respectively, and
its Quarterly Report on Form 10-QSB
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filed with the SEC for each of the first three quarters of 1998 and the first
quarter of 1999, each such Report provides the Sellers with all material,
financial and other information concerning IFOA as of the date of the applicable
Report and each such Report is true, correct and complete and comply with
applicable requirements of the Exchange Act. As of the date of this Agreement
and as of the Closing Date, no representation or warranty by IFOA, nor any
statement or certificate furnished or to be furnished to the Sellers pursuant
hereto or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact necessary to make the representation, warranty,
statement or certificate not misleading.
4.8 DOCUMENTATION. Prior to the Closing, IFOA will deliver to the
Sellers, materially correct, accurate and complete copies of all of the
contracts, agreements and documents which are in the amount of $5,000 or relate
to IFOA, the Acquiror Shares in any way and to which IFOA will be a party
following the Closing Date. As to each such contract, agreement, or document
(collectively, each an "IFOA Contract"):
(a) except as otherwise noted on the IFOA Disclosure Schedule,
each IFOA Contract is the legal, valid, binding and enforceable obligation of
the parties thereto, enforceable against such parties in accordance with their
terms;
(b) IFOA is not in breach or default under any such Contract and,
to the knowledge of IFOA, no other party to any IFOA Contract is in breach or
default, of any such Contract, nor has any event occurred with respect to IFOA
which with notice or lapse of time, would constitute a breach or default or
permit termination, modification, or acceleration of any IFOA Contract;
(c) to the knowledge of IFOA, no party to any IFOA Contract has
repudiated, breached or anticipatorily breached any provision thereof, nor is
there any reason to believe that any such event is likely to occur or may occur
in the future;
(d) to the knowledge of IFOA there are no disputes, oral
agreements or forbearance programs in effect with respect to any IFOA Contract;
and
(e) IFOA has not assigned, transferred, conveyed, mortgaged,
deeded in trust, granted a security interest in or otherwise encumbered its
interest in any IFOA Contract.
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4.9 LEGAL COMPLIANCE.
(a) IFOA has complied in all material respects with all
applicable federal, state and local laws and all applicable rules and
regulations of any government agency or regulatory body, and no charge,
complaint, action, suit, proceeding, hearing, investigation, claim, demand or
notice has been filed or commenced against IFOA alleging any failure to comply
with any such law, regulation or rule and, to the knowledge of IFOA, none is
presently threatened.
(b) IFOA has complied in all material respects with all
applicable laws, rules and regulations relating to the employment and labor
relations, employee civil rights and equal employment opportunities.
4.10 RESTRICTED STOCK. IFOA understands that the shares of stock of the
Acquiree Corporations are to be acquired for its own account for investment
purposes and will not be registered with the SEC, and that transferability of
the stock will be subject to the provisions and restrictions of state and
federal securities laws and that a restrictive legend will be placed on each
stock certificate as provided for in Section 1.3(b) hereof.
4.11 THIRD PARTY CONSENTS. No third party consent is required to be
obtained by IFOA in connection with its execution, delivery and performance of
this Agreement or with respect to the consummation of the Merger Transactions
and the other transactions contemplated in this Agreement.
4.12 DUE DILIGENCE PERIOD. During the time period from the effective
date of this Agreement until the Closing Date (the "Due Diligence Period"), the
Sellers shall be entitled to investigate IFOA, review its files, visit IFOA's
business premises and to talk with officers and employees of IFOA and to meet
with any and all other third parties, public and private, and to perform such
other due diligence reviews and investigations pertaining to the Merger
Transaction and the other transactions contemplated in this Agreement as the
Sellers determine is necessary or proper.
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ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ACQUIREE CORPORATIONS AND SELLER
The Acquiree Corporations represent and warrant to IFOA and
covenant for the benefit of IFOA that the representations and warranties set
forth in this Article V below are true, correct, accurate and complete in all
material respects as of the effective date of this Agreement, and that the same
will be true, correct, accurate and complete on and as of the Closing Date as
though made on the Closing Date, except to the extent any such representations
and warranties expressly relate to an earlier date. The representations and
warranties set forth in this Article V shall be modified by and shall be deemed
to include the information expressly set forth in the Acquiree Corporations'
Disclosure Schedule attached hereto (the "Acquiree Corporations' Disclosure
Schedule"), which is incorporated herein and made a part of this Agreement. The
Acquiree Corporations' Disclosure Schedule will be arranged in paragraphs and
subparagraphs that correspond to the designation of subparagraphs below.
5.1 ORGANIZATION OF THE ACQUIREE CORPORATIONS. Each of the Acquiree
Corporations is a corporation that is duly organized, validly existing, and in
good standing under the laws of the state of their respective jurisdictions of
incorporation and each of them is qualified as foreign corporations and is in
good standing in such other jurisdiction in which the nature of its business
requires it to be authorized to qualify as a foreign corporation. The
description of the Acquiree Corporations' Stock that is contained in Schedule
5.1 attached is a true, correct, complete and accurate description. The Sellers
own 100% of all of the issued and outstanding stock of the Acquiree Corporations
and, upon the effectiveness of the Closing, IFOA will acquire legal and
beneficial ownership to such shares free and clear of liens, mortgages, claims
or other encumbrances of any kind or nature whatsoever. There are no warrants,
options, convertible securities or other interests or rights to acquire
securities of the Acquiree Corporations. The Acquiree Corporations together own
and operate DDD and are the only partners of DDD.
5.2 AUTHORIZATION OF TRANSACTION. The Acquiree Corporations have full
actual and legal corporate power and corporate authority to execute, deliver and
perform this Agreement and to consummate the Merger Transaction and the other
transactions contemplated hereby and the
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execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized and approved by
the Board of Directors and Shareholders of the Acquiree Corporation.
5.3 ENFORCEABLE OBLIGATION. This Agreement constitutes the valid, legal
and binding obligation of the Acquiree Corporations and Sellers, enforceable
against each of them in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency or other laws of general
application relating to or affecting creditors rights generally, and to general
equitable principles.
5.4 NON-CONTRAVENTION. Except as noted in the Acquiree Corporations'
Disclosure Schedule, neither the execution and delivery of this Agreement by the
Acquiree Corporations and Sellers, nor the consummation by any of them of the
Merger Transactions and the other transactions contemplated hereby, will (i)
violate any law, regulation, rule, judgement, order, decree, stipulation,
injunction or other restriction of any government, governmental agency or
regulatory body or any order of any court to which the Acquiree Shares or DDD or
the Acquiree Corporations are subject, (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify or cancel, or require any
notice under any law, regulation or rule, or under any contract, lease,
sublease, license, sublicense, franchise, (including, but not limited to, the
franchise agreement or rights granted to DDD with respect to its Cable
television operation) permit, indenture, agreement, mortgage or instrument of
indebtedness or under any other arrangement to which the Acquiree Corporations
or the Acquiree Shares or DDD are subject. Except as noted in the Acquiree
Corporations' Disclosure Schedule, none of the Acquiree Corporations or the
Sellers needs to give any notice to, make any filing with or obtain any
authorization, consent, or approval of any governmental agency or regulatory
body in order for the parties to consummate the Merger Transactions or the other
transactions contemplated by this Agreement.
5.5 DOCUMENTATION. Prior to the Closing, the Acquiree Corporations and
DDD will deliver to IFOA true, correct, accurate and complete copies of all of
the material contracts, agreements and documents that comprise or relate to the
Acquiree Corporations, DDD or the Acquiree Shares in any way. As to each
contract, agreement or document (collectively, each an "Acquiree Contract"):
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(a) except as noted in the Acquiree Corporations' Disclosure
Schedule, each Acquiree Contract is the legal, valid, binding and enforceable
obligation of the parties thereto enforceable against such parties in accordance
with their terms;
(b) to the knowledge of the Acquiree Corporations. no party to
any Acquiree Contract is in breach or default, and no event has occurred which,
with notice or lapse of time, would constitute a breach or default or permit
termination, modification or acceleration of such Acquiree Contract;
(c) to the knowledge of the Acquiree Corporations, no party to
any Acquiree Contract has repudiated, breached or anticipatorily breached any
provision thereof, nor is there any reason to think that such is likely to occur
or may occur in the future;
(d) to the knowledge of the Acquiree Corporations, there are no
disputes, oral agreements or forbearance programs in effect with respect to any
Acquiree Contract; and
(e) none of the Acquiree Corporations or DDD have assigned,
transferred, conveyed, mortgaged, deeded in trust, granted a security interest
in or otherwise encumbered its interest in ant Acquiree Contract.
5.6 LITIGATION. None of the Acquiree Corporations or DDD are subject to
any unsatisfied judgement, order, decree, stipulation, action, suit, hearing,
investigation or other proceeding of or in any court or quasi-judicial or
administrative agency of any federal, state or local jurisdiction or before any
arbitrator that relates in any way, directly or indirectly, to the Merger
Transactions and the other transactions contemplated by this Agreement or could
have a material adverse effect on the business, assets, properties or condition
(financial or otherwise) of the Acquiree Corporations or DDD, as applicable.
5.7 LEGAL COMPLIANCE
(a) The Acquiree Corporations and DDD have complied in all
material respects with all applicable rules and regulations of any governmental
agency or regulatory body, and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand or notice has been filed or commenced
against the Acquiree Corporations or DDD alleging any failure to comply with any
such law, regulation or rule, and to the knowledge of the Acquiree Corporations,
none is presently threatened.
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(b) The Acquiree Corporations and DDD have complied in all
material respects with all applicable laws, rules and regulations relating to
the employment, labor relations, employee civil rights, and equal employment
opportunities.
5.8 MATERIAL INFORMATION. As of the date of this Agreement and as of
the Closing Date, no representation or warranty by the Acquiree Corporations,
nor any statement or certificate furnished by the Acquiree Corporations to IFOA
pursuant hereto or in connection with the Merger Transactions and other
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact or omits or will omit to state any material fact necessary to
make the representation, warranty, statement or certificate not misleading.
5.9 REGISTRATION REPRESENTATIONS. The Sellers are acquiring the
Acquiror Shares for the Sellers' account for investment purposes only and will
not acquire with a view to the resale or other distribution thereof, in whole or
in part. The Sellers are aware that as of the date of the Closing the Acquiror
Shares will not be registered under the Securities Act and that IFOA provides no
assurance that the Acquiror Shares will ever be registered under the Securities
Act. Each of the Sellers is willing and able and agrees to bear the economic
risk of investment in the Acquiror Shares for an indefinite period of time, and
each is capable of bearing that risk. The Sellers represent that they are
"Accredited Investors" as that term is defined in Regulation D of the Securities
Act.
5.10 THIRD PARTY CONSENTS. All third party consents required to be
obtained by the Acquiree Corporations, DDD and the Sellers in order to
consummate the Merger Transactions and the other transactions contemplated in
this Agreement including any consents in connection with the cable television
franchise are listed in the Acquiree Corporations' Disclosure Schedule.
5.11 FINANCIAL STATEMENTS. Attached to this Agreement as Exhibit D are
the financial statements of DDD as of June 30, 1998 as prepared by independent
accountants and the financial statements of DDD as of December 31, 1998, as
prepared by DDD's management (collectively, the "DDD Financial Statements"). The
DDD Financial Statements have been prepared in accordance with generally
accepted United States accounting principles ("GAAP") consistently applied and
fairly present in all material respects the financial position of DDD as of the
end of the period covered thereby. IFOA recognizes and understands that the
Acquiree Corporations do not conduct any operations and only act as holding
companies for their respective ownership of DDD. Since December 31, 1998, there
has been no material change in the financial condition of DDD.
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DDD has no liabilities, commitments or obligations, contingent or otherwise, not
shown on the DDD Financial Statements, which, in accordance with GAAP, would be
required to be set forth therein.
5.12 OFFICERS AND DIRECTORS. The Sellers shall agree that subsequent to
the Closing and for a period of at least one (1) year thereafter: (i) each will
serve as a director of IFOA; (ii) ▇▇▇▇▇ and ▇▇▇▇▇ will serve respectively as
Chairman of the Board and Chief Executive Officer of IFOA; and (iii) the Company
will continue to use the services of the transfer agent that it uses on the date
hereof.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent to the Obligations of IFOA. The
following are conditions precedent to the consummation of the Merger
Transactions and the other transactions contemplated hereby by IFOA. Any
condition listed below may be waived by IFOA at or prior to the Closing Date.
(a) Delivery to IFOA of all information and materials required to
be delivered under any provision of this Agreement;
(b) Receipt of all necessary third party consents to be obtained
by the Acquiree Corporations, DDD or the Sellers;
(c) Performance by each of the Sellers of all of his obligations
under this Agreement that are required to be performed prior to the Closing;
(d) The representations and warranties by the Acquiree
Corporations and Sellers contained in this Agreement shall be true and correct
as of the Closing, except to the extent any such representation or warranty
expressly relates to an earlier date;
(e) Compliance with applicable conditions precedent required by
Article VII hereof;
(f) Payment of certain expenses of IFOA relating to this
Agreement, the Merger Transactions and the other transactions contemplated
hereby which are set forth on Schedule 6.1(f) attached hereto shall be
satisfied; and
(g) the filing of all required Certificates of Merger.
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLERS. The
following are conditions precedent to consummate the Merger Transactions and the
other transactions
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contemplated by this Agreement by the Sellers. Any condition listed below may be
waived by the Sellers at or prior to the Closing.
(a) Delivery to the Sellers of all information and materials
required to be delivered by IFOA under any provision of this Agreement;
(b) Receipt of all necessary third party consents to be obtained
by the IFOA and the Merger Subsidiaries;
(c) Performance by IFOA of all of its obligations under this
Agreement that are required to be performed prior to the Closing;
(d) Compliance with applicable conditions precedent required by
Article VII hereof;
(e) The representations and warranties by IFOA contained in this
Agreement shall be true and correct as of the Closing, except to the extent any
such representation or warranty expressly relates to the earlier date;
(f) The execution and delivery of the Indemnification Agreement
by IMED, Knight and ▇▇▇▇▇▇;
(g) The filing of all required Certificates of Merger; and
(h) The Voting Agreement (as hereinafter defined) and the Voting
and Shareholder Agreement as hereinafter defined shall be executed and delivered
by each of the parties hereto.
6.3 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF IFOA AND SELLERS. All
Exhibits and Schedules to the Agreement shall have been completed and furnished
to both parties and shall be mutually satisfactory to both parties.
6.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties contained in this Agreement shall survive the Closing
and shall continue to be the obligations of the parties for a period of one (1)
year after the date of the Closing.
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ARTICLE VII
OTHER COVENANTS AND CONDITIONS TO THE TRANSACTIONS
The following are conditions precedent to the obligation of Sellers and
IFOA, as the case may be, to consummate the Merger Transactions and the other
transactions contemplated by this Agreement and certain post-closing covenants.
7.1 TRANSFER OF ASSETS AND LIABILITIES TO SUBSIDIARY. Prior to
the Closing IFOA will form a wholly-owned subsidiary named InfoAmerica/USA, Inc.
(the "Subsidiary") and all assets of IFOA will be transferred to such Subsidiary
and all of the liabilities of IFOA will be assumed by the Subsidiary, except for
those assets and liabilities set forth on Schedule 7.1 attached hereto. At the
Closing the Buyers will contemporaneously enter into an agreement with IFOA (the
"Spin-Off Agreement") whereby the Buyers will (i) acquire all the issued and
outstanding shares of the Subsidiary and (ii) will agree to indemnify IFOA for
any and all liabilities of IFOA prior to the Closing and for any and all
liabilities of the Subsidiary, other than obligations of IFOA to Knight and
▇▇▇▇▇▇ as employees of IFOA which will be released as part of the consideration
for their acquisition of the Subsidiary, all in accordance with, and as more
fully set forth in the form of Spin-Off Agreement attached hereto as Exhibit C
(the "Spin-Off" Agreement). The Spin-Off Agreement shall be executed and
delivered by the parties thereto at the Closing.
The Subsidiary's officers and directors will be as follows:
Name Position
---- --------
▇▇▇▇ ▇▇▇▇▇▇ President and Director
▇▇▇▇▇ ▇▇▇▇▇▇ Vice President, Secretary, Treasurer and
Director
7.2 MANAGEMENT OF SUBSIDIARY. Prior to the Closing, the Sellers agree
that they will not directly or indirectly take any action, or allow or cause
IFOA to take any action, which would change any of the officers and/or directors
of the Subsidiary or cause the Subsidiary to enter into any transaction which
was not approved by the Subsidiary's directors or which is inconsistent with the
transactions contemplated by this Agreement.
7.3 TERMINATION OF EMPLOYMENT AND OTHER AGREEMENTS. As set forth in the
Spin-Off Agreement, all employment, stock option and other compensation or other
employee benefit agreements of or relating to IFOA shall have been terminated on
or before the Closing with no future
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obligation with respect thereto to any present employee, officer, director or
shareholder of IFOA, all of which shall have been released to the satisfaction
of the Sellers.
7.4 ASSUMPTION OF IFOA INDEBTEDNESS. The Buyers and the Subsidiary
shall assume, jointly and severally, all debts, whether known or unknown,
absolute or contingent, together with all liens and encumbrances, and leases for
real or personal property identified or set forth in Exhibit D annexed hereto
(which IFOA and Buyers represent and warrant is a true, correct and complete
listing of such debts, liens, encumbrances and leases) (collectively, the
"Assumed Debts") and IFOA shall no longer have any responsibility or liability
therefor and each of them shall indemnify and hold harmless IFOA, its
subsidiaries and affiliates, and their respective post-closing directors,
officers, employees and representatives, and the estate, heirs, successors and
assigns of each of them (each an "Indemnified Party") from and against all
claims, actions, suits or other proceedings, liabilities, losses, damages,
penalties, costs (including, without limitation, interest) and expenses
(including, without limitation, attorneys' fees and expenses) (collectively,
"Losses") incurred based upon or relating to such Assumed Debts. The
indemnification obligation in the preceding sentence shall survive for period of
one (1) year following the Closing.
7.5 ISSUANCE OF SHARES FOR SERVICES. Contemporaneous with the Closing,
the newly constituted Board of Directors of IFOA shall issue shares of its
Common Stock to those persons in the amounts set forth on Exhibit E attached
hereto as payment for financial, consulting and other services rendered in
connection with the transactions contemplated hereby, which issuance shall have
been approved by the newly constituted Board of Directors of IFOA immediately
following the Closing.
7.6 VOTING AGREEMENTS. Contemporaneous with the Closing: (a) Messrs.
▇▇▇▇▇ and ▇▇▇▇▇ shall enter into a Voting Agreement in the form annexed hereto
as Exhibit F (the "Voting Agreement") which shall give ▇▇▇▇▇ the right to vote
the shares of Common Stock of IFOA issued to ▇▇▇▇▇ pursuant to this Agreement
and (b) those persons who are to be issued shares of Common Stock of IFOA as set
forth on Schedule 7.7 attached hereto will enter into a Voting and Shareholders
Agreement (the "Voting and Shareholders Agreement") in the form annexed hereto
as Exhibit G which shall give ▇▇▇▇▇ the right to vote a portion of the shares of
IFOA Common Stock issued to them and which imposes certain restrictions on the
sale or transfer of such shares based on meeting certain criteria.
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7.7 TAXES. (a) The Buyers shall cooperate with IFOA and the Sellers
regarding the tax treatment of the Merger Transactions and the other
transactions contemplated hereby including, without limitation, in connection
with the filing of all federal, state and local tax returns. In furtherance of
the foregoing, the Buyers and the Subsidiary shall not engage in any
post-closing tax matter that could have an impact on the pre-closing period or
the tax treatment of the Merger Transactions and the other transactions
contemplated hereby (including, without limitation, the filing of the tax
returns and participation in audits) without obtaining the prior written consent
of the Sellers, which consent shall not be unreasonably withheld or delayed.
(b) From the date of the effectiveness of this Agreement through
the Closing Date, IFOA shall not make, amend or terminate any tax election or
change any tax accounting method, practice or procedure without the Sellers'
prior written consent.
(c) All post-closing tax returns relating to the business and
operations of IFOA shall be filed by IFOA, and the Buyers shall not participate
in the preparation or filing of such tax returns. The Buyers shall be
responsible for filing any tax returns required to be filed relating to any
excise, sales, use, real or personal property or other transfer or recording
taxes relating to the spin-off of the Subsidiary for the issuance of the stock
to the Sellers and paying any taxes which may be payable as a result thereof.
ARTICLE VIII
CLOSING
8.1 ACTIONS TO BE TAKEN. At the Closing the following actions shall be
taken:
(a) IFOA shall confirm that the deliveries by Sellers set forth
in Article III herein have been completed and are satisfactory and all
conditions precedent to IFOA's obligation to consummate the Merger Transactions
and the other transactions contemplated by the Agreement have been satisfied.
(b) The Sellers shall confirm that deliveries by IFOA set forth
in Article II herein have been completed and are satisfactory and all conditions
precedent to the Sellers' and the Acquiree Corporations' obligation to
consummate the Merger Transactions and the other transactions contemplated by
this Agreement have been satisfied.
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(c) The then present officers and directors of IFOA shall resign
seriatim and shall be replaced with those persons designated by Sellers.
(d) The Merger Transactions shall be consummated and the
Certificates of Merger shall be filed with the Secretary of State of California.
(e) IFOA shall complete the transfer of the Subsidiary to Buyers
and Buyers shall deliver the consideration therefore to IFOA as provided for in
the Spin-Off Agreement.
(f) IFOA shall issue the Acquiror Shares to the Sellers as the
merger consideration to the Sellers in the Merger Transactions in exchange for
all of the issued and outstanding shares of capital stock of the Acquiree
Corporations.
8.2 OPERATION OF BUSINESS. Between the date of this Agreement and the
Closing, IFOA shall continue to operate the business in the ordinary course and
consistent with past practices, and shall not engage in any transaction which is
not in the ordinary course of business or which is inconsistent with any of the
representations, warranties or covenants set forth herein.
ARTICLE IX
GENERAL PROVISIONS
9.1 COSTS AND FEES. If any party or parties breaches any provision of
this Agreement, the breaching party or parties agrees to pay the non-breaching
party or parties all reasonable attorneys' fees and expenses, expert witness
fees, investigation costs, costs of tests and analysis, travel and accommodation
expenses, deposition and trial transcript costs, court costs and other costs and
expenses incurred by the non-breaching party in enforcing this Agreement and/or
preparing for legal or other proceedings, at the trial or appellate level,
whether or not such proceedings are instituted. If any legal or other
proceedings are instituted, the party prevailing in any such proceeding shall be
paid all of the aforementioned costs, expenses and fees, by the other party, and
if any judgment is secured by such prevailing party, all such costs, expenses
and fees shall be included in such judgment. References in this paragraph to
"legal proceedings" refer to the arbitration proceedings contemplated hereby and
proceedings to enforce the decision of the arbitrator or arbitrators.
9.2 WAIVER. No delay by a party in exercising any right or remedy shall
constitute a waiver of a party's rights under this Agreement, and no waiver by
any party of the breach of any
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covenant of this Agreement by the other shall be construed as a waiver of any
proceeding or succeeding breach of the same or any other covenant or condition
of this Agreement.
9.3 BROKER. Each party represents to the other that such party has not
dealt with any other person acting as a broker in connection with this
transaction other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Broker's commission shall be paid
pursuant to a separate agreement, a true correct and complete copy of which is
attached hereto as Exhibit H.
9.4 TERMINATION. This Agreement may, by notice given prior to or at the
Closing, be terminated:
(a) by either IFOA or the Sellers if a material breach of any
provision of this Agreement is committed by the Sellers and/or the Acquiree
Corporations, in the case of IFOA, and IFOA, in the case of the Sellers, and
such breach is not to be waived;
(b) (i) by IFOA if any of the conditions in Sections 6.1 and 6.3
of Article VI have not been satisfied as of the Closing Date or if satisfaction
of such a condition is or becomes impossible (other than through the failure of
IFOA or the Buyer, to comply with any of their respective obligations under this
Agreement) and IFOA has not waived such condition on or before the Closing Date;
or (ii) by Sellers, if any of the conditions in Sections 6.2 and 6.3 of Article
VI have not been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of Sellers to
comply with any of their respective obligations under this Agreement) and IFOA
has not waived such condition on or before the Closing Date;
(c) by mutual consent of IFOA and Sellers; or
(d) by either IFOA or Sellers if the Closing has not occurred
(other than through the failure of any party seeking to terminate this Agreement
to comply fully with its obligations under this Agreement) on or before June 15,
1999, or such later date as the parties may mutually agree upon in writing.
9.5 NOTICES. No notice, consent, approval or communication provided for
herein or given in connection herewith shall be validly given, made, delivered
or served unless it is in writing and delivered personally, sent by overnight
courier, or sent by registered or certified United States mail, postage prepaid,
with return receipt requested, to the addresses for each party set forth below.
Any party hereto may from time to time change its address by notice to the other
parties given in the manner provided herein. Notices, consents, approvals and
communications by mail in the United
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States mail in the manner provided above or upon delivery to the respective
addresses set forth above if delivered personally or sent by overnight courier.
Addresses of the parties are the following:
To IFOA:
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Sellers:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o Country Cable
▇▇▇ ▇▇▇▇-▇▇▇
▇.▇. ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
To the Buyer:
Mr. ▇▇▇▇ ▇▇▇▇▇▇
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Buyer:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9.6 INTERPRETATION AND TIME. The captions of the sections of this
Agreement are for convenience only and shall not govern or influence in the
construction or interpretation hereof. This Agreement is the result of
negotiations among the parties and, accordingly, shall not be construed for or
against any party regardless of which party drafted this Agreement or any
portion thereof. Time is of the essence under this Agreement.
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9.7 SUCCESSORS AND ASSIGNS. All of the provisions hereof shall inure to
the benefit of and be binding upon the successors and permitted assigns of the
parties hereto. This Agreement may not be assigned by any party hereto, without
the prior written consent of the other parties hereto.
9.8 NO PARTNERSHIP. This Agreement is not intended to, and nothing
contained in this Agreement shall, create any partnership, joint venture or
other similar arrangement among the parties. This Agreement is between
independent contracting parties who have been advised by legal counsel of their
own choosing about entering into this Agreement.
9.9 FURTHER ASSURANCES. Each of the parties shall execute and deliver
all such other documents and perform such other acts, in addition to execution
and delivery of this Agreement, as are from time to time necessary in order to
carry out the purposes, matters and transactions that are contemplated in this
Agreement.
9.10 INCORPORATION OF EXHIBITS. All Exhibits and Schedules attached to
this Agreement are hereby incorporated herein by reference and form an integral
part of this Agreement.
9.11 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado, without giving effect to
the conflict of law provisions or principles of that State.
9.12 DATE OF PERFORMANCE. If the date of performance of any obligations
or the last day of any time period provided for herein should fall on a
Saturday, Sunday or legal holiday, then said obligation shall be due and owing
and said time period shall expire on the first day thereafter which is not a
Saturday, Sunday or legal holiday. Except as may otherwise be set forth herein,
any performance provided for herein shall be timely made if completed no later
than 5:00 P.M., Pacific time, on the day of performance.
9.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts. This Agreement may be signed by original signatures or by
facsimile signatures. Any set of counterparts of this Agreement, whether
facsimile or originals or both, showing signatures by all parties, taken
together, shall constitute a single copy of this Agreement.
9.14 RESOLUTION OF DISPUTES. In the event of any disputes among the
parties as to their rights and obligations under this Agreement, including, but
not limited to, any question as to whether or not a party has performed its
obligations fully or remedied an alleged breach and any and all other disputes
arising under this Agreement shall be resolved as follows:
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(a) The parties shall submit their dispute to at least four (4)
hours of mediation in accordance with the mediation procedures of American
Arbitration Association ("AAA"). Any mediation session shall be held in the City
and State of New York.
(b) In the event the dispute does not then settle within fifteen
(15) calendar days after the first mediation session, the parties agree to
submit the dispute to binding arbitration which shall be held in the City and
State of New York in accordance with the rules and procedures of the AAA (except
as modified in this Agreement). The submission to arbitration hearing shall be
no later than forty-five (45) calendar days after the first mediation session.
The parties agree that arbitration shall be the exclusive means of resolving any
such dispute.
(c) The arbitrator or arbitrators conducting the arbitration
hearing shall render the arbitration decision in writing, which writing shall
explain the reasoning and basis for the decision. The decision of the arbitrator
or arbitrators shall be conclusive and binding on the parties and not subject to
any judicial review or appeal. The decision of the arbitrator or arbitrators may
be enforced in any court of competent jurisdiction.
(d) The parties agree to share equally the costs of mediation.
However, if the dispute is settled through arbitration, the prevailing party
shall be entitled to recover all costs and expenses incurred by the prevailing
party, including, without limitation, reasonable attorneys' fees and expenses,
to enforce its rights hereunder, in addition to any damages recovered, as
provided in "Costs and Fees" above.
9.15 RECITALS. The recitals set forth above are a part of this
Agreement.
9.16 JURISDICTION AND VENUE. Exclusive venue and jurisdiction over any
legal proceeding to enforce a judgment of the arbitrator or arbitrators
hereunder shall be in the federal and state courts located in New York County,
New York.
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IN WITNESS WHEREOF, parties hereto have affixed their signatures on the
date set forth to be effective as of the year and day first above written.
InfoAmerica, Inc., a Colorado corporation
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
D&K Communications, Inc.
A California corporation
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
▇▇ ▇▇▇▇ Communications, Inc.
A California corporation
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
RWC Communications, Inc.
A California corporation
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Seller
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, Seller
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Buyer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Buyer
-29-
EXHIBIT A
The securities represented by this certificate may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Securities Act of 1933 (the "Act"), or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the company.
EXHIBIT B
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of June 8, 1999 (this
"Agreement"), by and among INFOAMERICA, INC., a Colorado corporation ("IFOA"),
▇▇▇▇ ▇▇▇▇▇▇ ("Knight"), ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and IMED Management Corporation,
a Nevada corporation ("IMED", and IMED, Knight and ▇▇▇▇▇▇, sometimes
collectively, the "Indemnitors") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ FLATTAU & KLIMPL, LLP, a New
York limited liability partnership, as escrow agent (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, IFOA, Knight, Salmen, RWC Communications, Inc., a
California corporation ("RWC"), D&K Communications, Inc., a California
corporation ("D&K"), ▇▇ ▇▇▇▇ Communications, Inc., a California corporation
("DL"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ are parties to a Merger Agreement
dated as of the date hereof (the "Merger Agreement"), relating to the merger of
RWC, D&K and DL into separate subsidiaries of IFOA (the "Merger"); and
WHEREAS, IFOA, Knight and ▇▇▇▇▇▇ are parties to an Agreement
to Spin Off Subsidiary dated as of the date hereof (the "Spin Off Agreement"),
pursuant to which Knight and Salmon are to acquire from IFOA all of the capital
stock of IFOA's wholly-owned subsidiary, InfoAmerica/USA, Inc., a Colorado
corporation ("USA"), into which IFOA had transferred all of the operating assets
of IFOA related to the business of IFOA prior to the effectiveness of the Merger
and which has assumed all of the liabilities of IFOA prior to the effectiveness
of the Merger; and
WHEREAS, it is a condition precedent to the consummation of
the Merger and the other transactions contemplated by the Merger Agreement that
the Indemnitors indemnify IFOA from and against certain tax liabilities, to the
extent provided for in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, and for other good and valuable consideration, the
legal sufficiency and receipt of which is hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows:
1. The Indemnitors do hereby indemnify IFOA and its
subsidiaries and affiliates and each of their respective present stockholders,
directors, officers, employees and agents (each, an "Indemnified Party"), and
agree to hold harmless each such Indemnified Party from and against any and all
taxes (of any nature whatsoever), interest and penalties imposed by any taxing
authority or other governmental agency or regulatory authority on, or incurred
by, any Indemnified Party, directly or indirectly, in connection with the
transfer of any asset by IFOA to USA, the assumption by USA of any liability of
IFOA and/or the transfer of the capital stock of USA to Knight and ▇▇▇▇▇▇ (each
an "Indemnified Item"), together with all reasonable costs and expenses
(including, without limitation,
B-1
reasonable attorneys' fees and expenses) incurred by any Indemnified Party in
connection therewith or in enforcing its rights hereunder. This Indemnification
Agreement and the obligations of the Indemnitors hereunder shall be in effect
for a period of twelve (12) months from the date of the closing of the Merger
and shall apply notwithstanding any investigation or due diligence conducted by
IFOA, any other Indemnified Party or any party to the Merger Agreement, shall be
separate and independent from any other indemnity to which IFOA or any other
Indemnified Party may be entitled (whether by contract, at law or in equity).
The obligations of the Indemnitors under this Indemnification Agreement shall
survive and remain in full force and effect after the twelve (12) month term
hereof (as aforesaid), with respect to any claim for indemnification that is
claimed by any Indemnified Party during such term.
2. IFOA shall not file any tax return or report a tax due with
respect to any Indemnified Item without first notifying the Indemnitors of such
position, and giving the Indemnitors an opportunity to discuss the position
being taken by IFOA.
3. Each Indemnitor shall promptly forward to IFOA a copy of
any notice or other communication that such Indemnitor receives from any taxing
authority or other governmental agency or regulatory authority which in any way
relates to a proposed adjustment to any Indemnified Item. IFOA shall promptly
forward to each Indemnitor a copy of any notice or other communication IFOA
receives from any taxing authority or other governmental agency or regulatory
authority which in any way relates to an Indemnified Item.
4. IFOA agrees not to settle or make any payment of tax,
interest or penalty claimed to be due as a result of a proposed adjustment
relating to an Indemnified Item for at least 15 days after giving the notice
under Paragraph 3 of this Agreement. If , within such 15 day period, IFOA
receives a written request from the Indemnitors that the proposed adjustment
relating to the Indemnified Item should be contested, which includes a detailed
statement of a basis in fact and in law for such contest (which IFOA considers
reasonable under the circumstances), IFOA shall contest such proposed adjustment
in good faith, and shall keep the Indemnitors informed as to its progress, all
at the Indemnitors' sole cost and expense (a reasonable estimate of such cost
and expense shall be advanced by the Indemnitors as a condition precedent to any
such contest); provided that IFOA shall control the proceeding with legal
counsel of its choosing. Each Indemnitor shall cooperate with IFOA and its
affiliates in connection with any such proceeding, at such Indemnitor's sole
cost and expense. IFOA and its affiliates shall not be required to appeal any
adverse decision of a court of competent jurisdiction or other administrative
body having jurisdiction over the matter. In such case, the decision shall be
conclusive and binding on the parties.
5. Simultaneous with the execution and delivery of this
Agreement, each Indemnitor is depositing with the Escrow Agent the number of
shares of common stock of IFOA, as set forth below (the "Escrowed Shares"):
B-2
Knight 25,000 shares of common stock
▇▇▇▇▇▇ 25,000 of common stock
IMED 30,000 of common stock
Any dividends or other amounts received with respect to the Escrowed Shares
shall be turned over to Escrow Agent to be held as part of the escrow fund
available to satisfy an indemnification claim hereunder. The escrow fund shall
be comprised of the Escrowed Shares and any such dividends. Such escrow fund
shall be the sole source for any indemnification payments pursuant to this
Agreement, it being agreed and understood that no Indemnitor shall have any
personal liability to IFOA under this Agreement for amounts in excess of the
escrow fund. Any payment shall be made from the escrow fund shall be made in
proportion to the original contribution to the escrow fund by each Indemnitor.
6. The Escrow Agent shall distribute to IFOA shares having a
value on the date of payment equal to the amount of the indemnity claim required
to be satisfied hereunder. Absent a pending claim, any stock and other amounts
remaining in the escrow fund upon termination of the Indemnification Period
shall be returned to the Indemnitors in proportion to their original
contribution of Escrowed Shares. In the event a claim is pending hereunder on
such date, payment shall be made by the Escrow Agent of any indemnification
payment upon a determination of such claim and any escrow stock and other
amounts then remaining shall be returned to the Indemnitors in proportion to
their original contribution to the Escrowed Shares. For purposes of this
Agreement, each share of IFOA common stock shall be valued at the average of the
closing bid and asked price of a share on the last trading day prior to the
indemnification payment hereunder.
7. The Escrow Agent shall not be liable for any action taken
or omitted to be taken hereunder in good faith. IFOA and the Indemnitors shall
jointly and severally indemnify and hold the Escrow Agent harmless from and
against any claim, action, suit or other proceeding against the Escrow Agent and
any damage, loss, liability, judgment, penalty, cost or expense (including,
without limitation, reasonable attorneys' fees and expenses) incurred by the
Escrow Agent, in connection with, or in any way related to the Escrow Agent,
acting as escrow agent hereunder. IFOA and the Indemnitee shall each be
responsible, on a several basis, for paying 50% of the reasonable fees of the
Escrow Agent for performing its services hereunder.
8. No notice, consent, approval or communication provided for
herein or given in connection herewith shall be validly given, made, delivered
or served unless it is in writing and delivered personally, or sent by a
recognized overnight courier (with all costs prepaid), or sent by registered or
certified United States mail, postage prepaid, with return receipt requested, to
the addresses for each party set forth below in this Section 8. Any party hereto
may from time to time change its address by notice to the other parties given in
the manner provided for in this Section A. Notices, consents, approvals and
communications by mail in the United States mail in the manner provided above or
upon delivery to the respective addresses set forth above if delivered
personally or sent by overnight courier. Addresses of the parties are the
following:
B-3
If to IFOA:
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o Country Cable
▇▇▇ ▇▇▇▇-▇▇▇
▇.▇. ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to Knight:
Mr. ▇▇▇▇ ▇▇▇▇▇▇
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇▇:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
B-4
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to IMED:
IMED Management Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Opton Handler ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to Escrow Agent:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
9. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without giving effect to
conflict of law provisions. This Agreement together with the Spin-Off Agreement
and the Merger Agreement constitute the entire agreement and understanding among
the parties with respect to the subject matter hereof, and they supersede all
prior and/or contemporaneous agreements and understandings with respect to such
subject matter (whether written or oral). This Agreement may not be amended,
modified or altered except by an instrument in writing duly executed by each of
the parties hereto. This Agreement may be executed in multiple counterparts,
each of which is an original and all of which, when taken together, shall
constitute one and the same agreement.
B-5
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
INFOAMERICA, INC.
By:_____________________________________
Name:
Title:
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
IMED MANAGEMENT CORPORATION
By:_____________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ FLATTAU & KLIMPL, LLP,
as Escrow Agent
By:_____________________________________
Name:
Title:
B-6
EXHIBIT C
Spinoff Agreement [To be Provided]
EXHIBIT D
Financial statements [To be provided]
EXHIBIT F
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT dated as of June 8, 1999 (this "Agreement") by
and among those persons or entities whose names and addresses appear on the
signature pages hereof (individually, the "Shareholder" and collectively, the
"Shareholders") and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee (together with his
successors in trust, the "Trustee") and InfoAmerica, Inc., a Colorado
corporation ("IFOA" or the "Company").
W I T N E S S E T H :
WHEREAS, the Shareholders own the number of restricted shares of common
stock ("Common Stock") of the Company, and in the amounts and manner set forth
opposite each Shareholder's name on Exhibit A attached hereto; and
WHEREAS, the Trustee has consented to serve as Trustee under this
Agreement for the purposes herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, and for other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties intending to be
legally bound hereby agree as follows:
1. AGREEMENT.
Copies of this Agreement, and of every agreement supplemental
hereto or amendatory hereof, shall be filed at the office of the Trustee's legal
counsel, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, which copies shall be
available for inspection of the holder of a voting trust certificate issued
pursuant hereto (each a "▇.▇▇▇▇▇▇ Trust Certificate") during business hours and
with the Secretary of the Company, which copies shall be available for
inspection by a shareholder of the Company who also is a holder of a Voting
Trust Certificate at the principal corporate office of the Company. Voting Trust
Certificates shall be issued to the Shareholders, received and held subject to
all of the terms and provisions of this Agreement. Every Shareholder entitled to
receive a Voting Trust Certificate, and
F-1
thus each such Shareholder's permitted transferees and assigns, upon accepting
such Voting Trust Certificate, shall be bound by all of the terms and provisions
of this Agreement, with the same force and effect as if such person or other
entity were a signatory to this Agreement.
2. INDEPENDENCE OF TRUSTEE.
Except as otherwise expressly provided herein, the Trustee
shall be entitled to exercise all powers under this Agreement in his sole and
absolute discretion. The Trustee shall have no liability to any Shareholder, any
holder of a Voting Trust Certificate or any other person or entity for any
action or inaction by the Trustee (including, without limitation, any vote by
the Trustee), unless a final judgment by a court of competent jurisdiction, from
which no appeal may be taken, determines that the action or inaction of the
Trustee constituted willful misconduct.
3. TRANSFER OF SHARES TO TRUSTEE.
The Shareholders shall deposit with the Trustee certificates
representing all of the Shares listed on Exhibit B attached hereto (the
"Shares"). All such certificates shall be endorsed, or accompanied by such
instruments of transfer (such as duly executed blank stock powers), so as to
enable the Trustee to cause such certificates to be transferred into the name of
the Trustee, as hereinafter provided. Upon receipt by the Trustee of the
certificates representing any Shares and such instruments of transfer, the
Trustee shall hold the same subject to the terms of this Agreement, and subject
to the terms of a Voting and Shareholders Agreement dated as of the date hereof,
entered into by the Shareholders, the Company and the Trustee (the "Voting and
Shareholders Agreement") and shall thereupon issue and deliver to the
Shareholders a Voting Trust Certificate for the Shares so deposited. All
certificates representing Shares transferred and delivered to the Trustee
pursuant to this Agreement shall be surrendered by the Trustee to the Company
and canceled, and new certificates therefor shall be issued to and held by the
Trustee in the name of "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee" (or in the name of the
then successor Trustee, if any, as Trustee).
4. VOTING TRUST CERTIFICATES.
The Voting Trust Certificates shall be in the form annexed
hereto as Exhibit C.
5. TRANSFER OF CERTIFICATES.
The Voting Trust Certificates shall be transferable at the
office of the Trustee's legal counsel, on the books of the Trustee, by the
registered owner thereof, either in person or by attorney thereunto duly
authorized, upon surrender thereof, according to the rules from time to time
F-2
established for that purpose by the Trustee, but only to the extent that any
such transfer is permitted by the terms of the Voting and Shareholders
Agreement; and the Trustee may treat the registered holder as the owner thereof
for all purposes whatsoever; but he shall not be required to deliver New Voting
Trust Certificates representing Shares without the surrender of the related
Voting Trust Certificate. No transfer of a Voting Trust Certificate may be
effected unless the Trustee receives proof of compliance with the provisions of
the Voting and Shareholders Agreement from the Company. If a Voting Trust
Certificate is lost, stolen, mutilated or destroyed, the Trustee may, in the
Trustee's sole and absolute discretion, issue a duplicate of such certificate
upon receipt of: (a) evidence of such fact satisfactory to Trustee; (b)
indemnity satisfactory to the Trustee; (c) the existing certificate, if
mutilated; and (d) payment of the Trustee's reasonable fees and expenses
(including, without limitation, reasonable attorneys' fees and expenses) in
connection with the issuance of a new Voting Trust Certificate. The Trustee
shall not be required to recognize any transfer of a Voting Trust Certificate
not made in strict accordance with the provisions of the Agreement and the
Voting and Shareholders Agreement.
6. TERMINATION PROCEDURE.
Upon the termination of this Agreement at any time, as
hereinafter provided, the Trustee, at such times as the Trustee may choose
during the period commencing twenty (20) days before such termination shall mail
written notice of such termination to the registered owners of the Voting Trust
Certificates at the addresses appearing on the transfer books of the Trustee.
After the date specified in any such notices (which date shall be fixed by the
Trustee), the Voting Trust Certificates shall cease to have any effect, and the
holders of the Voting Trust Certificates shall have no further rights under this
Agreement other than to receive certificates representing Shares or other
property distributable under the terms hereof and upon the surrender of the
Voting Trust Certificates. Within thirty (30) days after the termination of this
Agreement, the Trustee shall request the Company to deliver to the registered
holders of the Voting Trust Certificates stock certificates representing the
number of shares represented by the Voting Trust Certificates upon the surrender
thereof properly endorsed, such delivery to be made in each case at the
Company's principal place of business. Following any such request by the Trustee
to the Company, the Trustee shall have no further duties or obligations
hereunder and the Trustee shall not be required to take any further action
hereunder.
F-3
7. DIVIDENDS.
Prior to the termination of this Agreement, the holders of the
Voting Trust Certificates shall be entitled to receive payment equal to the cash
dividends, if any, received by the Trustee upon the Shares subject to Voting
Trust Certificates. If any dividend in respect of such Shares is paid by the
Company, in whole or in part, in stock of the Company having general voting
powers, the Trustee shall likewise hold, subject to the terms of this Agreement,
the certificates representing stock which are received by Trustee on account of
such dividend, and the holder of the Voting Trust Certificate on which such
stock dividend has been paid shall be entitled to receive a Voting Trust
Certificate issued under this Agreement for the number of shares and class of
stock received as such divided with respect to the Shares represented by the
Voting Trust Certificate. Holders entitled to receive the dividends described
above shall be those registered as such on the transfer books of the Trustee at
the close of business on the day fixed by the Corporation for the taking of a
record to determine those holders of its stock entitled to receive such
dividends or, if the Trustee has fixed a date, as hereinafter provided, for the
purpose of determining the holders of the Voting Trust Certificates entitled to
receive such payment or distribution then registered as such at the close of
business on the date so fixed by the Trustee.
If any dividend in respect of Shares is paid in property other
than in cash or in capital stock having general voting powers, then the Trustee
shall, after receipt thereof by the Trustee, distribute the same to the holders
of the Voting Trust Certificates registered as such at the close of business on
the day fixed by the Trustee for taking a record to determine the holders of the
Voting Trust Certificates entitled to receive such distribution. Such
distribution shall be made to such holders of the Voting Trust Certificates in
accordance with the number of Shares represented by the Voting Trust
Certificates.
The transfer books of the Trustee may be closed temporarily by
the Trustee for a period not exceeding ten (10) days preceding the date fixed
for the payment or distribution of dividends of the distribution of assets or
rights, or at any other time in the sole and absolute discretion of the Trustee.
In lieu of providing for the closing of the books against the transfer of the
Voting Trust Certificates, the Trustee may fix a date not exceeding ten (10)
days preceding any date fixed by the Company for the payment or distribution of
dividends, or for the distribution of assets or rights, as a record date for the
determination of the holders of the Voting Trust Certificates entitled
F-4
to receive such payment or distribution, and the holders of the Voting Trust
Certificates of record at the close of business on such date shall exclusively
be entitled to participate in such payments or distributions.
In lieu of receiving cash dividends upon the Shares and paying
the same to the holders of the Voting Trust Certificates pursuant to the
provisions of this Agreement, the Trustee may instruct the Company in writing to
pay such cash dividends directly to the holders of the Voting Trust
Certificates. Upon such instructions being given by the Trustee to the Company,
and until revoked by the Trustee, all responsibility of the Trustee with respect
to such dividends shall cease. The Trustee may at any time revoke such
instructions and by written notice to the Company direct it to make dividend
payments to the Trustee.
8. SUBSCRIPTION RIGHTS.
In the event any stock or other securities of the Company are offered for
subscription to the holder of the Shares, the Trustee, upon receipt of notice of
such offer, shall mail a copy thereof to the holders of the Voting Trust
Certificates.
9. DISSOLUTION OF THE COMPANY.
In the event of the dissolution or total or partial
liquidation of the Company whether voluntary or involuntary, the Trustee shall
receive the moneys, securities, rights or property to which the holders of the
Voting Trust Certificates are entitled and shall distribute the same to the
registered holders of the Voting Trust Certificates in accordance with the
interest, as shown on the books of the Trustee, or the Trustee may, in his sole
and absolute discretion, deposit such moneys, securities, rights or property
with any bank or trust company doing business in New York, New York or Los
Angeles, California, with authority and instructions to distribute the same as
above, and upon such deposit, all further obligations or liabilities of the
Trustee in respect of such moneys, securities, rights or property so deposited
shall cease.
10. REORGANIZATION OF THE COMPANY.
In the event the Company is merged into or consolidated with
another corporation, and all or substantially all of the assets of the Company
are transferred to another corporation, then in connection with such transfer,
the term "Company" for all purposes of this Agreement shall be taken to include
such successor corporation, and the Trustee shall receive and hold under this
Agreement any stock of such successor corporation received on account of the
ownership, as Trustee
F-5
hereunder, of the Shares held hereunder prior to such merger, consolidation or
transfer. The Voting Trust Certificates issued and outstanding under this
Agreement at the time of such merger, consolidation or transfer may remain
outstanding, or the Trustee may, in his sole and absolute discretion, substitute
for such Voting Trust Certificates new Voting Trust Certificates in appropriate
form, and the term "Shares" as used herein shall be taken to include any shares
of Voting stock which may be received by the Trustee in lieu of all or any part
of the Shares.
11. RIGHTS AND POWERS OF TRUSTEE.
Until (i) the surrender of the Voting Trust Certificates for
cancellation, and (ii) the actual delivery to the holders of the Voting Trust
Certificate or certificates representing Shares in exchange therefor, the
Trustee shall possess and be entitled, subject to the provisions hereof, in the
Trustee's sole and absolute discretion, to exercise, in person or by his
nominees or proxies, all the rights and powers of an absolute owner of the
Shares deposited hereunder, including, without limitation, the right to receive
dividends on Shares and the right to vote, consent in writing or otherwise act
with respect to any corporate or shareholder's resolution or action to the
fullest extent permitted by applicable law.
The Trustee is further authorized to become a party to or
prosecute or defend or intervene in any actions or legal proceedings with
respect to the Shares, and the Shareholders and the holders from time to time of
the Voting Trust Certificates agree to indemnify the Trustee and to hold the
Trustee harmless from any such suit or legal proceeding.
12. LIABILITY OF TRUSTEE.
In acting hereunder with respect to the Shares, the Trustee
shall have responsibility in respect of any action taken by the Trustee, or any
of the Trustee's agents or any omission to act by any of them, and the Trustee
shall incur no responsibility be reason of any error of law or of any things
done or suffered or omitted by the Trustee hereunder or in any matter related
hereto, except for those acts which are determined by a court of competent
jurisdiction in a final judgment from which no appeal may be taken, to have been
a direct result of the willful misconduct. The Trustee shall not be required to
give a bond or other security in connection with the Trustee's duties hereunder.
If the Trustee determines to obtain such a bond, the cost thereof shall be paid
by the Company.
F-6
13. SUCCESSOR TRUSTEE.
The Trustee (and any successor Trustee) may at any time resign
as Trustee hereunder by mailing to the registered holders of the Voting Trust
Certificates a written resignation, to take effect twenty (20) days thereafter
or upon the new Trustee agreeing to act as Trustee hereunder. Upon the death or
resignation of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and upon the death or resignation of any
successor Trustee acting hereunder, a successor Trustee shall be designated by
the Company. The rights, power and privileges of the Trustee shall be possessed
by the successor Trustees, with the same effect as though such successors had
originally been parties to this Agreement.
14. TERM.
This Agreement shall remain in effect for as long as the
Voting and Shareholders Agreement is in effect in accordance with its terms. The
terms "Shareholder" and "Shareholders" as defined herein shall be deemed to
include any and all such transferees, unless the context indicates otherwise.
15. COMPENSATION AND REIMBURSEMENT OF TRUSTEE.
The Trustee shall serve without compensation. The Trustee
shall have the right to incur and pay such reasonable expenses and charges and
to employ and pay such agents, attorneys and counsel as he may deem necessary
and proper for carrying this Agreement into effect. Any such expenses or charges
incurred by the Trustee shall be promptly reimbursed by the Company. The Company
shall, after making payment to the Trustee, be entitled to ▇▇▇▇ the holders of
the Voting Trust Certificates for the amount paid to the Trustee.
16. SHAREHOLDER'S REPRESENTATIONS AND WARRANTIES.
Each Shareholder represents and warrants to the Trustee that
the Shareholder owns that number of Shares set forth opposite his or her name on
Exhibit A hereto, free and clear of all liens, claims and encumbrances of any
kind whatsoever other than restrictions on transfer arising under federal and
state securities laws and the Voting and Shareholders Agreement.
17. NOTICES.
Any notice, request or other communication required to be
given pursuant to the provisions hereof shall be in writing and shall be deemed
to be given when actually received by the addressee, when delivered in person,
or five (5) days after being deposited with the United States Postal Service,
post prepaid, registered or certified, return receipt requested, and addressed
as
F-7
follows: (a) if to the Trustee, to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, c/▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and (b) if to the Shareholder, to the Shareholder at the
address set forth below the Shareholder's name on Exhibit A hereto, or such
other address as may be furnished in writing by the Shareholder provided that
notice of address shall only effective upon receipt.
18. MISCELLANEOUS.
(a) COSTS AND FEES. If any party or parties breaches any
provision of this Agreement, the breaching party or parties agrees to pay the
non-breaching party or parties all reasonable attorneys' fees and expenses,
expert witness fees, investigation costs, costs of tests and analysis, travel
and accommodation expenses, deposition and trial transcript costs, court costs
and other costs and expenses incurred by the non-breaching party in enforcing
this Agreement and/or preparing for legal or other proceedings, at the trial or
appellate level, whether or not such proceedings are instituted. If any legal or
other proceedings are instituted, the party prevailing in any such proceeding
shall be paid all of the aforementioned costs, expenses and fees, by the other
party, and if any judgment is secured by such prevailing party, all such costs,
expenses and fees shall be included in such judgment. References in this
paragraph to "legal proceedings" refer to the arbitration proceedings
contemplated hereby and proceedings to enforce the decision of the arbitrator or
arbitrators.
(b) WAIVER. No delay by a party in exercising any right or
remedy shall constitute a waiver of a party's rights under this Agreement, and
no waiver by any party of the breach of any covenant of this Agreement by the
other shall be construed as a waiver of any proceeding or succeeding breach of
the same or any other covenant or condition of this Agreement.
(c) BROKER. Each party represents to the other that such party
has not dealt with any other person acting as a broker in connection with this
transaction other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Broker's commission shall be paid
pursuant to a separate agreement, a true correct and complete copy of which is
attached to the Merger and Plan of Reorganization as Exhibit H.
(d) TERMINATION. This Agreement may, by notice given prior to
or at the Closing, be terminated:
F-8
i. by either IFOA or the Sellers if a material breach
of any provision of this Agreement is committed by the Sellers and/or the
Acquiree Corporations, in the case of IFOA, and IFOA, in the case of the
Sellers, and such breach is not to be waived;
ii. (i) by IFOA if any of the conditions in Sections
6.1 and 6.3 of Article VI of the Merger Agreement and Plan of Reorganization
have not been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of IFOA or
the Buyer, to comply with any of their respective obligations under this
Agreement) and IFOA has not waived such condition on or before the Closing Date;
or (ii) by Sellers, if any of the conditions in Sections 6.2 and 6.3 of Article
VI of the Merger Agreement and Plan of Reorganization have not been satisfied as
of the Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Sellers to comply with any of
their respective obligations under this Agreement) and IFOA has not waived such
condition on or before the Closing Date;
iii. by mutual consent of IFOA and Sellers; or
iv. by either IFOA or Sellers if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before June 15, 1999, or such later date as the parties may mutually agree upon
in writing.
(e) NOTICES. No notice, consent, approval or communication
provided for herein or given in connection herewith shall be validly given,
made, delivered or served unless it is in writing and delivered personally, sent
by overnight courier, or sent by registered or certified United States mail,
postage prepaid, with return receipt requested, to the addresses for each party
set forth below. Any party hereto may from time to time change its address by
notice to the other parties given in the manner provided herein. Notices,
consents, approvals and communications by mail in the United States mail in the
manner provided above or upon delivery to the respective addresses set forth
above if delivered personally or sent by overnight courier. Addresses of the
parties are the following:
F-9
To IFOA:
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Sellers:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o Country Cable
▇▇▇ ▇▇▇▇-▇▇▇
▇.▇. ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
To the Buyer:
Mr. ▇▇▇▇ ▇▇▇▇▇▇
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Buyer:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
F-10
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(f) INTERPRETATION AND TIME. The captions of the sections of
this Agreement are for convenience only and shall not govern or influence in the
construction or interpretation hereof. This Agreement is the result of
negotiations among the parties and, accordingly, shall not be construed for or
against any party regardless of which party drafted this Agreement or any
portion thereof. Time is of the essence under this Agreement.
(g) SUCCESSORS AND ASSIGNS. All of the provisions hereof shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto. This Agreement may not be assigned by any party hereto,
without the prior written consent of the other parties hereto.
(h) NO PARTNERSHIP. This Agreement is not intended to, and
nothing contained in this Agreement shall, create any partnership, joint venture
or other similar arrangement among the parties. This Agreement is between
independent contracting parties who have been advised by legal counsel of their
own choosing about entering into this Agreement.
(i) FURTHER ASSURANCES. Each of the parties shall execute and
deliver all such other documents and perform such other acts, in addition to
execution and delivery of this Agreement, as are from time to time necessary in
order to carry out the purposes, matters and transactions that are contemplated
in this Agreement.
(j) INCORPORATION OF EXHIBITS. All Exhibits and Schedules
attached to this Agreement are hereby incorporated herein by reference and form
an integral part of this Agreement.
(k) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, without giving
effect to the conflict of law provisions or principles of that State.
F-11
(l) DATE OF PERFORMANCE. If the date of performance of any
obligations or the last day of any time period provided for herein should fall
on a Saturday, Sunday or legal holiday, then said obligation shall be due and
owing and said time period shall expire on the first day thereafter which is not
a Saturday, Sunday or legal holiday. Except as may otherwise be set forth
herein, any performance provided for herein shall be timely made if completed no
later than 5:00 P.M., Pacific time, on the day of performance.
(m) COUNTERPARTS. This Agreement may be executed in any number
of counterparts. This Agreement may be signed by original signatures or by
facsimile signatures. Any set of counterparts of this Agreement, whether
facsimile or originals or both, showing signatures by all parties, taken
together, shall constitute a single copy of this Agreement.
(n) RESOLUTION OF DISPUTES. In the event of any disputes among
the parties as to their rights and obligations under this Agreement, including,
but not limited to, any question as to whether or not a party has performed its
obligations fully or remedied an alleged breach and any and all other disputes
arising under this Agreement shall be resolved as follows:
i. The parties shall submit their dispute to at least
four (4) hours of mediation in accordance with the mediation procedures of
American Arbitration Association ("AAA"). Any mediation session shall be held in
the City and State of New York.
ii. In the event the dispute does not then settle
within fifteen (15) calendar days after the first mediation session, the parties
agree to submit the dispute to binding arbitration which shall be held in the
City and State of New York in accordance with the rules and procedures of the
AAA (except as modified in this Agreement). The submission to arbitration
hearing shall be no later than forty-five (45) calendar days after the first
mediation session. The parties agree that arbitration shall be the exclusive
means of resolving any such dispute.
iii. The arbitrator or arbitrators conducting the
arbitration hearing shall render the arbitration decision in writing, which
writing shall explain the reasoning and basis for the decision. The decision of
the arbitrator or arbitrators shall be conclusive and binding on the parties and
not subject to any judicial review or appeal. The decision of the arbitrator or
arbitrators may be enforced in any court of competent jurisdiction.
iv. The parties agree to share equally the costs of
mediation. However, if the dispute is settled through arbitration, the
prevailing party shall be entitled to recover all costs
F-12
and expenses incurred by the prevailing party, including, without limitation,
reasonable attorneys' fees and expenses, to enforce its rights hereunder, in
addition to any damages recovered, as provided in "Costs and Fees" above.
(o) RECITALS. The recitals set forth above are a part of this
Agreement.
(p) JURISDICTION AND VENUE. Exclusive venue and jurisdiction
over any legal proceeding to enforce a judgment of the arbitrator or arbitrators
hereunder shall be in the federal and state courts located in New York County,
New York.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement of the date first above written.
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, AS VOTING TRUSTEE
AGREED TO BY
INFOAMERICA, INC.
By:_________________________________
Name:
Title:
F-13
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
L. F. Holdings
By:_____________________________________
Name:
Title:
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Stewart Sytner
IMED Management Corporation
By:_____________________________________
Name:
Title:
F-14
Exhibit A
NAME SHARES
---- ------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 600,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 600,000
▇▇▇▇▇▇ ▇▇▇▇▇ 400,000
▇▇ ▇▇▇▇▇▇▇▇ 500,000
▇▇▇ ▇▇▇▇▇ 250,000
▇▇▇▇▇ ▇▇▇▇▇▇, Esq. 600,000
▇▇▇▇▇ ▇▇▇▇▇ 300,000
L. F. Holdings 1,600,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 200,000
Stewart Sytner 900,000
IMED Management Corporation 874,485
F-15
Exhibit B
NAME SHARES
---- ------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 200,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 200,000
▇▇▇▇▇▇ ▇▇▇▇▇ 133,333
▇▇ ▇▇▇▇▇▇▇▇ 500,000
▇▇▇ ▇▇▇▇▇ 166,666
▇▇▇▇▇ ▇▇▇▇▇▇, Esq. 200,000
▇▇▇▇▇ ▇▇▇▇▇ 100,000
L. F. Holdings 533,333
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 66,666
Stewart Sytner 300,000
IMED Management Corporation 291,495
F-16
Exhibit C
VOTING TRUST CERTIFICATE
No. [___] [_____] shares
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee of the stock of InfoAmerica, Inc., (the
"Company") under a Voting Trust Agreement dated as of June 8, 1999 (the "Voting
Trust Agreement"), having received certain shares of stock of the Company
pursuant to such Agreement, which Agreement the holder hereof by accepting this
Certificate ratifies and adopts, hereby certifies that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as
Trustee will be entitled to receive a certificate for [_____________ (____)]
fully paid shares of the common stock of the Company, without par value, on the
expiration of the Voting Trust Agreement, and in the meantime shall be entitled
to receive payments equal to any dividends that may be collected by the
undersigned Trustee upon a like number of such shares held by her under the
terms of the Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the
books of the undersigned Trustee by the registered holder in person or by his or
her duly authorized attorney, and the holder hereof, by accepting this
certificate, manifests his or her consent that the undersigned Trustee may treat
the registered holder hereof as the true owner for all purposes, except the
delivery of stock certificates, which delivery of stock certificates shall not
be made without the surrender hereof.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ has executed this Voting
Trust Certificate this 9th day of June, 1999.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee
(form of Assignment):
For value received, hereby assigns the within Voting Trust
Certificate, and all rights and interests represented thereby, to and appoints
attorney to transfer this Voting Trust Certificate on the books of the Trustee
mentioned therein, with full power of substitution.
Dated: (Seal)
In presence of
F-17
EXHIBIT G
VOTING AND SHAREHOLDERS AGREEMENT
VOTING AND SHAREHOLDERS AGREEMENT dated as of June 8, 1999
(this "Agreement"), by and among ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a resident of the State
of California ("▇▇▇▇▇"), ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a resident of the State of
California ("▇▇▇▇▇") and those persons or entities whose names and addresses
appear on the signature pages hereof (hereinafter collectively referred as the
"Restricted Shareholders").
RECITALS
Pursuant to that certain Agreement and Plan of Reorganization
entered into as of the 8th day of June, 1999 (the "Merger Agreement and Plan of
Reorganization") by and among InfoAmerica, Inc. (the "Company") and RWC
Communications, Inc., D&K Communications, Inc., ▇▇ ▇▇▇▇ Communications, Inc.,
Clark, Lubic, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, the Company is acquiring, by virtue
of a number of merger transactions, a cable television system which operates in
Tehachapi, California, which is operated by DDD Cablevision, Ltd., a California
partnership.
The Restricted Shareholders are to be issued shares of the
Company's Common Stock as payment for financial consulting and other services
rendered and to be rendered in connection with the transactions contemplated by
the Agreement and Plan of Reorganization.
The Restricted Shareholders will have sole investment and
voting power with respect to an aggregate of the shares of the Company's Common
Stock set forth opposite their name and attached on Schedule 1 hereto.
The execution and delivery of this Agreement by the Restricted
Shareholders is one of the covenants and conditions precedent to the
consummation of the Merger Transactions and the other transactions contemplated
by the Agreement and Plan of Reorganization. Capitalized terms used herein
without definition shall have the same meanings herein as are ascribed to such
terms in the Agreement and Plan of Reorganization.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties, intending
to be legally bound hereby agree as follows:
G-1
ARTICLE I
VOTING BY RESTRICTED SHAREHOLDERS
1.1 TRANSFER TO VOTING TRUST. Each of the Restricted
Shareholders shall simultaneously with the execution and delivery of this
Agreement transfer one-third (1/3) of their respective restricted shares of the
Company's Common Stock (the "Restricted Shares") to a Voting Trust in favor of
▇▇▇▇▇ to be held by ▇▇▇▇▇ pursuant to the Voting Trust Agreement in the form of
Exhibit A attached hereto (the "Voting Trust Agreement").
ARTICLE II
SALES AND TRANSFERS OF RESTRICTED STOCK
2.1 RESTRICTIONS. The shares of Common Stock transferred to
the Voting Trust by the Restricted Shareholders may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of (hereinafter
collectively referred to as a "Transfer") until the first to occur of:
(a) two (2) years from the closing of the Merger
Transactions and the other transactions contemplated by the Agreement and Plan
of Reorganization; or
(b) both of the following: the Company through the
efforts of the Restricted Shareholders has raised not less than $3,000,000 of
gross proceeds by means of financings of debt or equity securities or a
combination thereof (and if by means of equity securities at a gross sales price
of not less than $3.00 per share of Common Stock on a contemplated post-closing
reverse split of one for two share reverse-split basis) within the two year
period from the date of the closing of the Merger Transactions and the other
transactions contemplated by the Agreement and Plan of Reorganization; and (ii)
the closing bid price of the Common Stock in the NASDAQ SmallCap market (or such
other market on which the Company's Common Stock is regularly traded) for the
fifteen (15) consecutive trading days prior to the date of the proposed
prohibited Transfer has equaled or exceeded $3.00 per share (on a contemplated
post closing one for two share reverse-split basis).
2.2 TRANSFER OF RESTRICTED SHARES TO AFFILIATES. During the
term of this Agreement, neither the Restricted Shareholders nor any other person
who shall become a party to or bound by this Agreement shall, directly or
indirectly, Transfer any Restricted Shares, whether now or hereafter acquired,
to any affiliate, as hereafter defined, without first obtaining the prior
written consent of the Company and ▇▇▇▇▇, which consent shall not be
unreasonably withheld; provided that
G-2
as a condition precedent to such Transfer such affiliate shall agree in a
written instrument, in form, substance and scope satisfactory to the Company and
▇▇▇▇▇, to be bound by and subject to all of the terms, provisions and conditions
of this Agreement, with the same force and effect as if such affiliate was named
as a party to this Agreement as a Restricted Shareholder hereunder. The term
"affiliate" shall mean (a) any spouse, parent, parent-in-law, grandparent,
child, grandchild, sibling, in each case who is older than eighteen (18) years
of age or (b) any person which the transferor directly or indirectly controls or
(c) any transfer to a trust for the benefit of the transferor; provided,
however, that if the transferor remains the sole beneficial owner of the shares
of Common Stock, as that term is used in Section 13(d) of the Securities
Exchange Act of 1934, as amended, of the transferred shares.
2.3 LEGEND. The Restricted Shareholders agree that the Company
shall have the right to place a legend on the certificates for Restricted Shares
that such Restricted Shares are subject to this Agreement indicating that (1)
they are restricted securities and (2) that they are subject to this Agreement
and the Voting Trust Agreement.
ARTICLE III
REMEDIES
3.1 VIOLATION OF AGREEMENT; CONSENT TO INJUNCTIVE RELIEF. Each
of the Restricted Shareholders recognizes and agrees that any violation of any
of their obligations set forth in this Agreement would cause irreparable damage
which could not be compensated by monetary damages. Accordingly, in the event of
any breach or threatened breach of a Restricted Shareholder of any of such
Restricted Shareholder's obligations, covenants or agreements under this
Agreement, such Restricted Shareholder irrevocably consents to the entry of an
injunction and/or other equitable relief by a court of competent jurisdiction
restraining any such breach or threatened breach, and/or granting full voting
authority to ▇▇▇▇▇ or his successor for purposes of this Agreement, in addition
to any other rights, remedies available by law or in equity; and neither ▇▇▇▇▇
nor the Company shall be required to post a bond or provide other security or to
prove any actual damages.
G-3
ARTICLE IV
MISCELLANEOUS
4.1 REPRESENTATIONS. Each of the Restricted Shareholders
represents and warrants that, to the other parties to this Agreement, that, at
the date hereof, he/she or it is the sole record and beneficial owner of the
Common Shares set forth opposite the name of such Restricted Shareholder on
Schedule 1 attached hereto.
4.2 FURTHER ASSURANCES. From and after the date of this
Agreement, the Restricted Shareholders shall from time to time, at the request
of the Company and/or ▇▇▇▇▇ and without further consideration, do, execute and
deliver, or cause to be done, executed and delivered, all such further acts,
things and instruments as may be reasonably requested or required by the Company
or ▇▇▇▇▇ to more effectively evidence and give effect to the transactions
provided for in this Agreement.
4.3 NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given if personally delivered or if mailed
by first class registered or certified mail return receipt requested (with all
postage prepaid), or if delivered by a recognized overnight courier service
(with all costs prepaid, when actually received by the intended recipient,
addressed to the parties at their respective addresses set forth on the
signature page of this Agreement, or to such other person or address as may be
designated by like notice hereunder.
4.4 MODIFICATIONS. This Agreement may not be amended,
modified, waived or changed except by an instrument in writing duly executed by
the party to be charged therewith.
4.5 SUCCESSORS AND ASSIGNS. All the covenants, stipulations,
promises and agreements in this Agreement shall be binding upon and inure to the
benefit of the respective heirs, successors and permitted assigns of the parties
hereto, whether so expressed or not. This Agreement may not be assigned by any
Restricted Shareholder without the prior written consent of the Company and
▇▇▇▇▇.
4.6 HEADINGS. The headings of various sections of this
Agreement are for convenience of reference only and shall not have any effect on
the construction or interpretation of this Agreement.
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4.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Company's state of incorporation
applicable to agreements made and to be performed entirely within such state,
without regard to its conflicts of law principles.
4.8 COUNTERPARTS. This Agreement may be executed in to or more
counterparts, each of which shall be deemed an original and all of which, when
together shall constitute one and the same instrument. A facsimile signature on
a counterpart of this Agreement shall be deemed to be an original version of
this Agreement.
4.9 GENDER. All pronouns used herein are inserted for
convenience only and shall be applied in the masculine, feminine, or third
person as appropriate for each party signing hereto.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date and year first above written.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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▇▇▇▇▇ ▇▇▇▇▇
L. F. Holdings
By:______________________________________
Name:
Title:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Stewart Sytner
IMED Management Corporation
By:______________________________________
Name:
Title:
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EXHIBIT A
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT dated as of June 8th, 1999 (this "Agreement") by
and among those persons or entities whose names and addresses appear on the
signature pages hereof (individually, the "Shareholder" and collectively, the
"Shareholders") and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee (together with his
successors in trust, the "Trustee") and InfoAmerica, Inc., a Colorado
corporation ("IFOA" or the "Company").
W I T N E S S E T H :
WHEREAS, the Shareholders own the number of restricted shares of common
stock ("Common Stock") of the Company, and in the amounts and manner set forth
opposite each Shareholder's name on Exhibit A attached hereto; and
WHEREAS, the Trustee has consented to serve as Trustee under this
Agreement for the purposes herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, and for other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties intending to be
legally bound hereby agree as follows:
1. AGREEMENT.
Copies of this Agreement, and of every agreement supplemental
hereto or amendatory hereof, shall be filed at the office of the Trustee's legal
counsel, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, which copies shall be
available for inspection of the holder of a voting trust certificate issued
pursuant hereto (each a "▇.▇▇▇▇▇▇ Trust Certificate") during business hours and
with the Secretary of the Company, which copies shall be available for
inspection by a shareholder of the Company who also is a holder of a Voting
Trust Certificate at the principal corporate office of the Company. Voting Trust
Certificates shall be issued to the Shareholders, received and held subject to
all of the terms and provisions of this Agreement. Every Shareholder entitled to
receive a Voting Trust Certificate, and
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thus each such Shareholder's permitted transferees and assigns, upon accepting
such Voting Trust Certificate, shall be bound by all of the terms and provisions
of this Agreement, with the same force and effect as if such person or other
entity were a signatory to this Agreement.
2. INDEPENDENCE OF TRUSTEE.
Except as otherwise expressly provided herein, the Trustee
shall be entitled to exercise all powers under this Agreement in his sole and
absolute discretion. The Trustee shall have no liability to any Shareholder, any
holder of a Voting Trust Certificate or any other person or entity for any
action or inaction by the Trustee (including, without limitation, any vote by
the Trustee), unless a final judgment by a court of competent jurisdiction, from
which no appeal may be taken, determines that the action or inaction of the
Trustee constituted willful misconduct.
3. TRANSFER OF SHARES TO TRUSTEE.
The Shareholders shall deposit with the Trustee certificates
representing all of the Shares listed on Exhibit B attached hereto (the
"Shares"). All such certificates shall be endorsed, or accompanied by such
instruments of transfer (such as duly executed blank stock powers), so as to
enable the Trustee to cause such certificates to be transferred into the name of
the Trustee, as hereinafter provided. Upon receipt by the Trustee of the
certificates representing any Shares and such instruments of transfer, the
Trustee shall hold the same subject to the terms of this Agreement, and subject
to the terms of a Voting and Shareholders Agreement dated as of the date hereof,
entered into by the Shareholders, the Company and the Trustee (the "Voting and
Shareholders Agreement") and shall thereupon issue and deliver to the
Shareholders a Voting Trust Certificate for the Shares so deposited. All
certificates representing Shares transferred and delivered to the Trustee
pursuant to this Agreement shall be surrendered by the Trustee to the Company
and canceled, and new certificates therefor shall be issued to and held by the
Trustee in the name of "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee" (or in the name of the
then successor Trustee, if any, as Trustee).
4. VOTING TRUST CERTIFICATES.
The Voting Trust Certificates shall be in the form annexed
hereto as Exhibit C.
5. TRANSFER OF CERTIFICATES.
The Voting Trust Certificates shall be transferable at the
office of the Trustee's legal counsel, on the books of the Trustee, by the
registered owner thereof, either in person or by attorney thereunto duly
authorized, upon surrender thereof, according to the rules from time to time
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established for that purpose by the Trustee, but only to the extent that any
such transfer is permitted by the terms of the Voting and Shareholders
Agreement; and the Trustee may treat the registered holder as the owner thereof
for all purposes whatsoever; but he shall not be required to deliver New Voting
Trust Certificates representing Shares without the surrender of the related
Voting Trust Certificate. No transfer of a Voting Trust Certificate may be
effected unless the Trustee receives proof of compliance with the provisions of
the Voting and Shareholders Agreement from the Company. If a Voting Trust
Certificate is lost, stolen, mutilated or destroyed, the Trustee may, in the
Trustee's sole and absolute discretion, issue a duplicate of such certificate
upon receipt of: (a) evidence of such fact satisfactory to Trustee; (b)
indemnity satisfactory to the Trustee; (c) the existing certificate, if
mutilated; and (d) payment of the Trustee's reasonable fees and expenses
(including, without limitation, reasonable attorneys' fees and expenses) in
connection with the issuance of a new Voting Trust Certificate. The Trustee
shall not be required to recognize any transfer of a Voting Trust Certificate
not made in strict accordance with the provisions of the Agreement and the
Voting and Shareholders Agreement.
6. TERMINATION PROCEDURE.
Upon the termination of this Agreement at any time, as
hereinafter provided, the Trustee, at such times as the Trustee may choose
during the period commencing twenty (20) days before such termination shall mail
written notice of such termination to the registered owners of the Voting Trust
Certificates at the addresses appearing on the transfer books of the Trustee.
After the date specified in any such notices (which date shall be fixed by the
Trustee), the Voting Trust Certificates shall cease to have any effect, and the
holders of the Voting Trust Certificates shall have no further rights under this
Agreement other than to receive certificates representing Shares or other
property distributable under the terms hereof and upon the surrender of the
Voting Trust Certificates. Within thirty (30) days after the termination of this
Agreement, the Trustee shall request the Company to deliver to the registered
holders of the Voting Trust Certificates stock certificates representing the
number of shares represented by the Voting Trust Certificates upon the surrender
thereof properly endorsed, such delivery to be made in each case at the
Company's principal place of business. Following any such request by the Trustee
to the Company, the Trustee shall have no further duties or obligations
hereunder and the Trustee shall not be required to take any further action
hereunder.
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7. DIVIDENDS.
Prior to the termination of this Agreement, the holders of the
Voting Trust Certificates shall be entitled to receive payment equal to the cash
dividends, if any, received by the Trustee upon the Shares subject to Voting
Trust Certificates. If any dividend in respect of such Shares is paid by the
Company, in whole or in part, in stock of the Company having general voting
powers, the Trustee shall likewise hold, subject to the terms of this Agreement,
the certificates representing stock which are received by Trustee on account of
such dividend, and the holder of the Voting Trust Certificate on which such
stock dividend has been paid shall be entitled to receive a Voting Trust
Certificate issued under this Agreement for the number of shares and class of
stock received as such divided with respect to the Shares represented by the
Voting Trust Certificate. Holders entitled to receive the dividends described
above shall be those registered as such on the transfer books of the Trustee at
the close of business on the day fixed by the Corporation for the taking of a
record to determine those holders of its stock entitled to receive such
dividends or, if the Trustee has fixed a date, as hereinafter provided, for the
purpose of determining the holders of the Voting Trust Certificates entitled to
receive such payment or distribution then registered as such at the close of
business on the date so fixed by the Trustee.
If any dividend in respect of Shares is paid in property other
than in cash or in capital stock having general voting powers, then the Trustee
shall, after receipt thereof by the Trustee, distribute the same to the holders
of the Voting Trust Certificates registered as such at the close of business on
the day fixed by the Trustee for taking a record to determine the holders of the
Voting Trust Certificates entitled to receive such distribution. Such
distribution shall be made to such holders of the Voting Trust Certificates in
accordance with the number of Shares represented by the Voting Trust
Certificates.
The transfer books of the Trustee may be closed temporarily by
the Trustee for a period not exceeding ten (10) days preceding the date fixed
for the payment or distribution of dividends of the distribution of assets or
rights, or at any other time in the sole and absolute discretion of the Trustee.
In lieu of providing for the closing of the books against the transfer of the
Voting Trust Certificates, the Trustee may fix a date not exceeding ten (10)
days preceding any date fixed by the Company for the payment or distribution of
dividends, or for the distribution of assets or rights, as a record date for the
determination of the holders of the Voting Trust Certificates entitled
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to receive such payment or distribution, and the holders of the Voting Trust
Certificates of record at the close of business on such date shall exclusively
be entitled to participate in such payments or distributions.
In lieu of receiving cash dividends upon the Shares and paying
the same to the holders of the Voting Trust Certificates pursuant to the
provisions of this Agreement, the Trustee may instruct the Company in writing to
pay such cash dividends directly to the holders of the Voting Trust
Certificates. Upon such instructions being given by the Trustee to the Company,
and until revoked by the Trustee, all responsibility of the Trustee with respect
to such dividends shall cease. The Trustee may at any time revoke such
instructions and by written notice to the Company direct it to make dividend
payments to the Trustee.
8. SUBSCRIPTION RIGHTS.
In the event any stock or other securities of the Company are offered for
subscription to the holder of the Shares, the Trustee, upon receipt of notice of
such offer, shall mail a copy thereof to the holders of the Voting Trust
Certificates.
9. DISSOLUTION OF THE COMPANY.
In the event of the dissolution or total or partial
liquidation of the Company whether voluntary or involuntary, the Trustee shall
receive the moneys, securities, rights or property to which the holders of the
Voting Trust Certificates are entitled and shall distribute the same to the
registered holders of the Voting Trust Certificates in accordance with the
interest, as shown on the books of the Trustee, or the Trustee may, in his sole
and absolute discretion, deposit such moneys, securities, rights or property
with any bank or trust company doing business in New York, New York or Los
Angeles, California, with authority and instructions to distribute the same as
above, and upon such deposit, all further obligations or liabilities of the
Trustee in respect of such moneys, securities, rights or property so deposited
shall cease.
10. REORGANIZATION OF THE COMPANY.
In the event the Company is merged into or consolidated with
another corporation, and all or substantially all of the assets of the Company
are transferred to another corporation, then in connection with such transfer,
the term "Company" for all purposes of this Agreement shall be taken to include
such successor corporation, and the Trustee shall receive and hold under this
Agreement any stock of such successor corporation received on account of the
ownership, as Trustee
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hereunder, of the Shares held hereunder prior to such merger, consolidation or
transfer. The Voting Trust Certificates issued and outstanding under this
Agreement at the time of such merger, consolidation or transfer may remain
outstanding, or the Trustee may, in his sole and absolute discretion, substitute
for such Voting Trust Certificates new Voting Trust Certificates in appropriate
form, and the term "Shares" as used herein shall be taken to include any shares
of Voting stock which may be received by the Trustee in lieu of all or any part
of the Shares.
11. RIGHTS AND POWERS OF TRUSTEE.
Until (i) the surrender of the Voting Trust Certificates for
cancellation, and (ii) the actual delivery to the holders of the Voting Trust
Certificate or certificates representing Shares in exchange therefor, the
Trustee shall possess and be entitled, subject to the provisions hereof, in the
Trustee's sole and absolute discretion, to exercise, in person or by his
nominees or proxies, all the rights and powers of an absolute owner of the
Shares deposited hereunder, including, without limitation, the right to receive
dividends on Shares and the right to vote, consent in writing or otherwise act
with respect to any corporate or shareholder's resolution or action to the
fullest extent permitted by applicable law.
The Trustee is further authorized to become a party to or
prosecute or defend or intervene in any actions or legal proceedings with
respect to the Shares, and the Shareholders and the holders from time to time of
the Voting Trust Certificates agree to indemnify the Trustee and to hold the
Trustee harmless from any such suit or legal proceeding.
12. LIABILITY OF TRUSTEE.
In acting hereunder with respect to the Shares, the Trustee
shall have responsibility in respect of any action taken by the Trustee, or any
of the Trustee's agents or any omission to act by any of them, and the Trustee
shall incur no responsibility be reason of any error of law or of any things
done or suffered or omitted by the Trustee hereunder or in any matter related
hereto, except for those acts which are determined by a court of competent
jurisdiction in a final judgment from which no appeal may be taken, to have been
a direct result of the willful misconduct. The Trustee shall not be required to
give a bond or other security in connection with the Trustee's duties hereunder.
If the Trustee determines to obtain such a bond, the cost thereof shall be paid
by the Company.
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13. SUCCESSOR TRUSTEE.
The Trustee (and any successor Trustee) may at any time resign
as Trustee hereunder by mailing to the registered holders of the Voting Trust
Certificates a written resignation, to take effect twenty (20) days thereafter
or upon the new Trustee agreeing to act as Trustee hereunder. Upon the death or
resignation of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and upon the death or resignation of any
successor Trustee acting hereunder, a successor Trustee shall be designated by
the Company. The rights, power and privileges of the Trustee shall be possessed
by the successor Trustees, with the same effect as though such successors had
originally been parties to this Agreement.
14. TERM.
This Agreement shall remain in effect for as long as the
Voting and Shareholders Agreement is in effect in accordance with its terms. The
terms "Shareholder" and "Shareholders" as defined herein shall be deemed to
include any and all such transferees, unless the context indicates otherwise.
15. COMPENSATION AND REIMBURSEMENT OF TRUSTEE.
The Trustee shall serve without compensation. The Trustee
shall have the right to incur and pay such reasonable expenses and charges and
to employ and pay such agents, attorneys and counsel as he may deem necessary
and proper for carrying this Agreement into effect. Any such expenses or charges
incurred by the Trustee shall be promptly reimbursed by the Company. The Company
shall, after making payment to the Trustee, be entitled to ▇▇▇▇ the holders of
the Voting Trust Certificates for the amount paid to the Trustee.
16. SHAREHOLDER'S REPRESENTATIONS AND WARRANTIES.
Each Shareholder represents and warrants to the Trustee that
the Shareholder owns that number of Shares set forth opposite his or her name on
Exhibit A hereto, free and clear of all liens, claims and encumbrances of any
kind whatsoever other than restrictions on transfer arising under federal and
state securities laws and the Voting and Shareholders Agreement.
17. NOTICES.
Any notice, request or other communication required to be
given pursuant to the provisions hereof shall be in writing and shall be deemed
to be given when actually received by the addressee, when delivered in person,
or five (5) days after being deposited with the United States Postal Service,
post prepaid, registered or certified, return receipt requested, and addressed
as
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follows: (a) if to the Trustee, to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, c/▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and (b) if to the Shareholder, to the Shareholder at the
address set forth below the Shareholder's name on Exhibit A hereto, or such
other address as may be furnished in writing by the Shareholder provided that
notice of address shall only effective upon receipt.
18. MISCELLANEOUS.
(a) COSTS AND FEES. If any party or parties breaches any
provision of this Agreement, the breaching party or parties agrees to pay the
non-breaching party or parties all reasonable attorneys' fees and expenses,
expert witness fees, investigation costs, costs of tests and analysis, travel
and accommodation expenses, deposition and trial transcript costs, court costs
and other costs and expenses incurred by the non-breaching party in enforcing
this Agreement and/or preparing for legal or other proceedings, at the trial or
appellate level, whether or not such proceedings are instituted. If any legal or
other proceedings are instituted, the party prevailing in any such proceeding
shall be paid all of the aforementioned costs, expenses and fees, by the other
party, and if any judgment is secured by such prevailing party, all such costs,
expenses and fees shall be included in such judgment. References in this
paragraph to "legal proceedings" refer to the arbitration proceedings
contemplated hereby and proceedings to enforce the decision of the arbitrator or
arbitrators.
(b) WAIVER. No delay by a party in exercising any right or
remedy shall constitute a waiver of a party's rights under this Agreement, and
no waiver by any party of the breach of any covenant of this Agreement by the
other shall be construed as a waiver of any proceeding or succeeding breach of
the same or any other covenant or condition of this Agreement.
(c) BROKER. Each party represents to the other that such party
has not dealt with any other person acting as a broker in connection with this
transaction other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Broker's commission shall be paid
pursuant to a separate agreement, a true correct and complete copy of which is
attached to the Merger and Plan of Reorganization as Exhibit H.
(d) TERMINATION. This Agreement may, by notice given prior to
or at the Closing, be terminated:
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i. by either IFOA or the Sellers if a material breach
of any provision of this Agreement is committed by the Sellers and/or the
Acquiree Corporations, in the case of IFOA, and IFOA, in the case of the
Sellers, and such breach is not to be waived;
ii. (i) by IFOA if any of the conditions in Sections
6.1 and 6.3 of Article VI of the Merger Agreement and Plan of Reorganization
have not been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of IFOA or
the Buyer, to comply with any of their respective obligations under this
Agreement) and IFOA has not waived such condition on or before the Closing Date;
or (ii) by Sellers, if any of the conditions in Sections 6.2 and 6.3 of Article
VI of the Merger Agreement and Plan of Reorganization have not been satisfied as
of the Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Sellers to comply with any of
their respective obligations under this Agreement) and IFOA has not waived such
condition on or before the Closing Date; iii. by mutual consent of IFOA and
Sellers; or
iv. by either IFOA or Sellers if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before June 15, 1999, or such later date as the parties may mutually agree upon
in writing.
(e) NOTICES. No notice, consent, approval or communication
provided for herein or given in connection herewith shall be validly given,
made, delivered or served unless it is in writing and delivered personally, sent
by overnight courier, or sent by registered or certified United States mail,
postage prepaid, with return receipt requested, to the addresses for each party
set forth below. Any party hereto may from time to time change its address by
notice to the other parties given in the manner provided herein. Notices,
consents, approvals and communications by mail in the United States mail in the
manner provided above or upon delivery to the respective addresses set forth
above if delivered personally or sent by overnight courier. Addresses of the
parties are the following:
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To IFOA:
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Sellers:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o Country Cable
▇▇▇ ▇▇▇▇-▇▇▇
▇.▇. ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
To the Buyer:
Mr. ▇▇▇▇ ▇▇▇▇▇▇
InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Buyer:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
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InfoAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(f) INTERPRETATION AND TIME. The captions of the sections of
this Agreement are for convenience only and shall not govern or influence in the
construction or interpretation hereof. This Agreement is the result of
negotiations among the parties and, accordingly, shall not be construed for or
against any party regardless of which party drafted this Agreement or any
portion thereof. Time is of the essence under this Agreement.
(g) SUCCESSORS AND ASSIGNS. All of the provisions hereof shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto. This Agreement may not be assigned by any party hereto,
without the prior written consent of the other parties hereto.
(h) NO PARTNERSHIP. This Agreement is not intended to, and
nothing contained in this Agreement shall, create any partnership, joint venture
or other similar arrangement among the parties. This Agreement is between
independent contracting parties who have been advised by legal counsel of their
own choosing about entering into this Agreement.
(i) FURTHER ASSURANCES. Each of the parties shall execute and
deliver all such other documents and perform such other acts, in addition to
execution and delivery of this Agreement, as are from time to time necessary in
order to carry out the purposes, matters and transactions that are contemplated
in this Agreement.
(j) INCORPORATION OF EXHIBITS. All Exhibits and Schedules
attached to this Agreement are hereby incorporated herein by reference and form
an integral part of this Agreement.
(k) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, without giving
effect to the conflict of law provisions or principles of that State.
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(l) DATE OF PERFORMANCE. If the date of performance of any
obligations or the last day of any time period provided for herein should fall
on a Saturday, Sunday or legal holiday, then said obligation shall be due and
owing and said time period shall expire on the first day thereafter which is not
a Saturday, Sunday or legal holiday. Except as may otherwise be set forth
herein, any performance provided for herein shall be timely made if completed no
later than 5:00 P.M., Pacific time, on the day of performance.
(m) COUNTERPARTS. This Agreement may be executed in any number
of counterparts. This Agreement may be signed by original signatures or by
facsimile signatures. Any set of counterparts of this Agreement, whether
facsimile or originals or both, showing signatures by all parties, taken
together, shall constitute a single copy of this Agreement.
(n) RESOLUTION OF DISPUTES. In the event of any disputes among
the parties as to their rights and obligations under this Agreement, including,
but not limited to, any question as to whether or not a party has performed its
obligations fully or remedied an alleged breach and any and all other disputes
arising under this Agreement shall be resolved as follows:
i. The parties shall submit their dispute to at least
four (4) hours of mediation in accordance with the mediation procedures of
American Arbitration Association ("AAA"). Any mediation session shall be held in
the City and State of New York.
ii. In the event the dispute does not then settle
within fifteen (15) calendar days after the first mediation session, the parties
agree to submit the dispute to binding arbitration which shall be held in the
City and State of New York in accordance with the rules and procedures of the
AAA (except as modified in this Agreement). The submission to arbitration
hearing shall be no later than forty-five (45) calendar days after the first
mediation session. The parties agree that arbitration shall be the exclusive
means of resolving any such dispute.
iii. The arbitrator or arbitrators conducting the
arbitration hearing shall render the arbitration decision in writing, which
writing shall explain the reasoning and basis for the decision. The decision of
the arbitrator or arbitrators shall be conclusive and binding on the parties and
not subject to any judicial review or appeal. The decision of the arbitrator or
arbitrators may be enforced in any court of competent jurisdiction.
iv. The parties agree to share equally the costs of
mediation. However, if the dispute is settled through arbitration, the
prevailing party shall be entitled to recover all costs
G-18
and expenses incurred by the prevailing party, including, without limitation,
reasonable attorneys' fees and expenses, to enforce its rights hereunder, in
addition to any damages recovered, as provided in "Costs and Fees" above.
(o) RECITALS. The recitals set forth above are a part of this
Agreement.
(p) JURISDICTION AND VENUE. Exclusive venue and jurisdiction
over any legal proceeding to enforce a judgment of the arbitrator or arbitrators
hereunder shall be in the federal and state courts located in New York County,
New York.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement of the date first above written.
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, AS VOTING TRUSTEE
AGREED TO BY
INFOAMERICA, INC.
By:____________________________________
Name:
Title:
G-19
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
L. F. Holdings
By:______________________________________
Name:
Title:
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Stewart Sytner
IMED Management Corporation
By:______________________________________
Name:
Title:
G-20
Exhibit A
NAME SHARES
---- ------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 600,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 600,000
▇▇▇▇▇▇ ▇▇▇▇▇ 400,000
▇▇ ▇▇▇▇▇▇▇▇ 500,000
▇▇▇ ▇▇▇▇▇ 250,000
▇▇▇▇▇ ▇▇▇▇▇▇, Esq. 600,000
▇▇▇▇▇ ▇▇▇▇▇ 300,000
L. F. Holdings 1,600,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 200,000
Stewart Sytner 900,000
IMED Management Corporation 874,485
G-21
Exhibit B
NAME SHARES
---- ------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 200,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 200,000
▇▇▇▇▇▇ ▇▇▇▇▇ 133,333
▇▇ ▇▇▇▇▇▇▇▇ 500,000
▇▇▇ ▇▇▇▇▇ 166,666
▇▇▇▇▇ ▇▇▇▇▇▇, Esq. 200,000
▇▇▇▇▇ ▇▇▇▇▇ 100,000
L. F. Holdings 533,333
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 66,666
Stewart Sytner 300,000
IMED Management Corporation 291,495
G-22
Exhibit C
VOTING TRUST CERTIFICATE
No. [___] [_____] shares
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee of the stock of InfoAmerica, Inc., (the
"Company") under a Voting Trust Agreement dated as of June 8, 1999 (the "Voting
Trust Agreement"), having received certain shares of stock of the Company
pursuant to such Agreement, which Agreement the holder hereof by accepting this
Certificate ratifies and adopts, hereby certifies that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as
Trustee will be entitled to receive a certificate for [_____________ (____)]
fully paid shares of the common stock of the Company, without par value, on the
expiration of the Voting Trust Agreement, and in the meantime shall be entitled
to receive payments equal to any dividends that may be collected by the
undersigned Trustee upon a like number of such shares held by her under the
terms of the Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the
books of the undersigned Trustee by the registered holder in person or by his or
her duly authorized attorney, and the holder hereof, by accepting this
certificate, manifests his or her consent that the undersigned Trustee may treat
the registered holder hereof as the true owner for all purposes, except the
delivery of stock certificates, which delivery of stock certificates shall not
be made without the surrender hereof.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ has executed this Voting
Trust Certificate this 8th day of June, 1999.
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee
(form of Assignment):
For value received, hereby assigns the within Voting Trust
Certificate, and all rights and interests represented thereby, to and appoints
attorney to transfer this Voting Trust Certificate on the books of the Trustee
mentioned therein, with full power of substitution.
Dated: (Seal)
In presence of
G-23
Schedule 1
NAME SHARES
---- ------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 600,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 600,000
▇▇▇▇▇▇ ▇▇▇▇▇ 400,000
▇▇ ▇▇▇▇▇▇▇▇ 500,000
▇▇▇ ▇▇▇▇▇ 250,000
▇▇▇▇▇ ▇▇▇▇▇▇, Esq. 600,000
▇▇▇▇▇ ▇▇▇▇▇ 300,000
L. F. Holdings 1,600,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 200,000
Stewart Sytner 900,000
IMED Management Corporation 874,485
G-24
EXHIBIT H
Broker's Commission Agreement - None
ACQUIREE CORPORATIONS' DISCLOSURE SCHEDULE
------------------------------------------
[No additional documentation required]
IFOA DISCLOSURE SCHEDULE
------------------------
[No additional documentation required]
SCHEDULE 4.5(A)
---------------
IFOA Outstanding Stock
Common Stock 5,214,621 shares
Preferred Stock none
SCHEDULE 4.5(B)
---------------
Post-Closing Capitalization Table
Common Stock [see Schedule E]
Preferred Stock none
SCHEDULE 4.5(C)
---------------
Pre-Closing Warrants/Options/Convertible Securities
---------------------------------------------------
Knight Option for 2,000,000 shares
▇▇▇▇▇▇ Option for 2,000,000 shares
▇. ▇▇▇▇▇▇▇ Option for 40,000 shares
(IFOA Director)
SCHEDULE 5.1
------------
[To be Provided]
SCHEDULE 6.1(F)
---------------
[To be Provided]
SCHEDULE 7.1
------------
Assets and Liabilities Retained by IFOA
None
SCHEDULE 7.7
------------
[To be Provided]
