STOCK ACQUISITION AGREEMENT
BETWEEN
GO CALL INC.
AND
▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇ MD PC, MONEY PURCHASE
PENSION PLAN AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
MARCH 11, 1999
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TABLE OF CONTENTS
1. Plan of Exchange....................................................5
2. Exchange of Shares..................................................5
3. Closing.............................................................5
4. The GCI Shares......................................................5
5. Representations and Warranties of the CSR Shareholders..............5
6. Representations and Warranties of GCI..............................10
7. Covenants of the CSR Shareholders..................................15
8. Covenants of GCI...................................................16
9. Conditions Precedent to Closing....................................17
10. Indemnification....................................................19
11. CSR Shareholder's Investment Intent................................19
12. Conduct of GCI's and CSR's Business Prior to the Closing Date......20
13. Registration and Registration Rights...............................21
14. Access and Information.............................................22
15. Expenses...........................................................23
16. Termination........................................................23
17. Effect on Termination..............................................24
18. Meaning of "Material"..............................................24
19. Amendment..........................................................24
20. Waiver.............................................................24
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21. Broker and Investment Banking Fees.................................24
22. Binding Effect.....................................................24
23. Entire Agreement...................................................25
24. Governing Law......................................................25
25. Arbitration........................................................25
26. Originals..........................................................25
27. Addresses of the Parties...........................................25
28. Notices............................................................26
29. Release of Information.............................................27
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STOCK ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION, dated this 11th day of
March (the "Agreement"), among Go Call, Inc., a corporation organized under and
pursuant to the laws of the State of Delaware with principal offices at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("GCI"), ▇▇▇ ▇▇▇▇▇ resides at
1825 South ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("DR"), ▇▇▇ ▇. ▇▇▇▇▇ MD PC Money Purchase Pension Plan having an office at 1825
South ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Plan") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ residing at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Avenue of the Stars, Suite 2530, Los Angeles, California (the
"DN"). DR, the Plan and DN are hereinafter collectively referred to as the "CSR
Shareholders".
WITNESSETH:
WHEREAS, DR is the record and beneficial owner of an aggregate of 166,283 issued
and outstanding shares of common stock, $.01 par value per share (the "DR
Shares"), of Country Star Restaurants, Inc., a Delaware corporation with
principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("CSR"); the Plan is the record and beneficial owner of an aggregate of
259,110 issued and outstanding shares of common stock, $.01 par value per share,
of CSR (the "Plan Shares"); and the DN is the record and beneficial owner of an
aggregate of 225,000 issued and outstanding shares of common stock, $.01 par
value per share, of CSR (the "DN Shares"); and
WHEREAS, the DR Shares, the Plan Shares and the DN Shares are
hereinafter collectively referred to as the "CSR Control Shares"; and
WHEREAS, GCI desires, pursuant to this Agreement, to exchange an
aggregate of 4,552,751 heretofore authorized but unissued shares of its Common
Stock, $.01 par value per share (the "GCI Shares") solely for all of the CSR
Control Shares; and
WHEREAS, the CSR Shareholders desire, pursuant to this Agreement, to
exchange all of the CSR Control Shares solely for the GCI Shares upon the terms
and conditions hereinafter set forth; and
WHEREAS, in order to carry out the foregoing intents, GCI ,the CSR
Shareholders and CSR desire to enter into and adopt this Agreement.
NOW, THEREFORE, in consideration for the exchange of securities herein
enumerated and other good and valuable consideration, the receipt and adequacy
of which is hereby jointly and severally acknowledged and accepted, the parties
hereby agree as follows:
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1. PLAN OF EXCHANGE. The CSR Shareholders own all of the CSR Control
Shares. It is the express written intention of the parties that all of the CSR
Control Shares shall be acquired by GCI solely in exchange for 4,552,751 GCI
Shares.
2. EXCHANGE OF SHARES. By virtue of their respective execution of this
Agreement, GCI and the CSR Shareholders agree and consent that on the Closing
Date (as hereinafter defined) all of the CSR Shares shall be exchanged with GCI
solely in consideration for the GCI Shares. The GCI Shares shall be delivered
via certificates registered in the names of the CSR Shareholders on the basis of
7 GCI Shares for each CSR Control Share owned by the CSR Shareholders. All
certificates representing the CSR Control Shares, shall be delivered to GCI or,
if so indicated by GCI in writing, to its transfer agent, Interwest Transfer
Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, duly
endorsed in blank with signature guaranteed or with executed stock power
attached thereto with Medallion signature guaranteed by a bank or brokerage firm
and in transferable form with any required documentary or transfer tax stamps
affixed at CSR Control Shareholder's sole and exclusive expense so as to make
GCI the sole owner thereof free and clear of any and all liens, claims and
encumbrances, of any nature whether accrued, absolute, contingent or otherwise.
No fractional shares shall be issued by GCI. Accordingly, all GCI Shares shall
be rounded up to the nearest whole share.
3. CLOSING. The closing of the exchange of the CSR Control Shares for
the GCI Shares (the "Closing") shall take place at 10:00 A.M. Eastern time on
the 18th day of March, 1999, at the offices of ▇▇▇▇▇▇▇▇ & Associates, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other time and place upon
which the parties may agree. The day on which the Closing actually occurs is
herein sometimes referred to as the "Closing Date". In the event the Closing
does not occur on or before March 28, 1999, and unless extended by mutual
consent in writing or unless such failure to close is by reason of a material
breach by a party of its obligations under this Agreement, then GCI and the CSR
Shareholders shall return all information and documentation exchanged or
delivered hereunder to the party or parties furnishing the same and thereafter
this Agreement shall be deemed to be null and void and of no further force or
effect. In the event the failure to close is caused by the material breach by a
party of its obligations under this Agreement, then the non-breaching party or
parties may enforce its rights under this Agreement including the right to seek
specific performance and/or damages as provided in Section 17 of this Agreement.
4. THE GCI SHARES. The GCI Shares originally issued and delivered to
the CSR Shareholders at the Closing shall be voting securities of GCI.
5. REPRESENTATIONS AND WARRANTIES OF THE CSR SHAREHOLDERS. By virtue of
their respective execution of this Agreement, and except for information set
forth on any and all schedules or exhibits annexed to this Agreement and
incorporated herein by reference (any information on one shall be deemed to be
included on all), the CSR Shareholders hereby jointly and severally (except as
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to Sections 5(a), (b) and (d), which are several, not joint representations and
warranties) represent and warrant to GCI as follows:
(a) They each are the sole record and beneficial owner of the number
of CSR Control Shares set forth above, have the sole and undisputed power, right
and authority to sell, transfer, option, pledge or hypothecate the same and own
said CSR Control Shares free and clear of any and all liens, suits, proceedings,
claims and encumbrances of any kind, nature or description whether accrued,
absolute, contingent or otherwise;
(b) They each have the power, right and authority to execute and
perform this Agreement and the execution, delivery and performance of this
Agreement, in the time and manner herein specified, will not conflict with,
result in a breach of, or constitute a default under any provisions of law,
trust or any existing agreement, indenture or other instrument to which they are
a party or by which the CSR Control Shares owned by them may be bound or
affected
(c) The CSR Control Shares are duly and validly issued, fully paid
and non-assessable;
(d) The information given and every representation, warranty and
statement made or furnished by the CSR Shareholders herein is true, correct and
does not contain a misstatement of a material fact or omit to state any material
fact required in order to make the statements and representations, in light of
the circumstances under which they were made, not misleading;
(e) The CSR Shareholders have no knowledge of any material fact or
facts other than disclosed herein or in the exhibits or schedules annexed hereto
which will adversely affect the business or financial condition of CSR or the
title of GCI to the CSR Control Shares to be exchanged with GCI hereunder, and
each of the CSR Shareholders agrees that they will notify GCI of any such facts
if they acquire knowledge of the same prior to the Closing Date;
(f) They have read and understand both this Agreement and the nature
and parameters of the transaction underlying the same; accept and agree to the
consummation of the transaction enumerated herein; and accept the original
issuance of the GCI Shares to them as the sole and exclusive consideration for
the transfer and delivery of the CSR Control Shares to GCI;
(g) Neither they nor any other person, firm or entity has any right
of appraisal or similar right to dissent from the transaction made the subject
of this Agreement and/or to demand payment for the CSR Control Shares. In the
event such right does, in fact, exist, the CSR Shareholders either have or will,
prior to the Closing Date, irrevocably waive such right;
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(h) Prior to the Closing Date, the CSR Shareholders will not vote
for or authorize the reorganization, re-capitalization, merger, consolidation,
stock split or other similar corporate action on behalf of CSR except as may be
required to effectuate the terms and conditions of this Agreement;
(i) Prior to the Closing Date, the CSR Shareholders will not vote
for or authorize the creation of any other class of equity or debt security of
CSR;
(j) Prior to the Closing Date, and except for advances by CSR to
fund operations or the incurring of debt to finance ongoing business activities
which shall be disclosed to GCI in writing prior to expenditure, the CSR
Shareholders will not, without the prior written consent of GCI, cause or
authorize CSR to:
(i) create or incur any indebtedness, whether funded or not,
except unsecured current liabilities incurred in the ordinary course of
business; or assume, guarantee, endorse or otherwise become responsible for the
obligation of any other person, entity, firm or corporation;
(ii) create or incur any mortgage, lien, charge or encumbrance of
any kind, nature or description with respect to any of CSRs properties or
assets, except in the ordinary course of business;
(iii) make or become a party to any contract or commitment, or
renew, extend, amend, terminate or modify any contract or commitment, except in
the ordinary course of business;
(iv) make any capital expenditure or capital addition or
betterment except as may be involved in ordinary repairs, maintenance and
replacements and minor plant and equipment additions;
(v) sell or otherwise dispose of any of its assets except sales
in the ordinary course of business;
(vi) declare or pay any dividend on, or make any other
distribution upon or in respect of, or purchase, retire or redeem any shares of
its capital stock;
(vii) issue or sell any additional shares of capital stock,
whether or not such shares have been previously authorized for issuance, or
acquire any stock of any corporation or any interest in any business enterprise;
(viii) grant any option or make any commitment relating to the
authorized or issued capital stock of CSR;
(ix) pay or agree to pay, conditionally or otherwise, any pension
or severance pay to any director, officer, agent or employee, or make any
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advances to or increase the compensation of, any officers or employees;
(x) use any CSR assets or properties, except for proper corporate
purposes in the ordinary course of business'
(xi) make any change in CSR's Certificate of Incorporation or
By-Laws; or
(xii) change any of CSR's banking or safe deposit arrangements or
open any new bank accounts or safe deposit boxes, other than in the normal
course of business.
(k) Each of the representations in this Section 5 shall be true and
correct at the Closing Date.
(l) The CSR Control Shares will be transferred free and clear of any
and all liens, claims, encumbrances, options, contracts, calls, commitments or
demands of any character;
(m) CSR is, and at all times through and including the Closing Date,
will be a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and authorized to do business in such
states in the United States where such qualification is necessary, with full
power and authority to conduct its business as the same is presently being
conducted;
(n) The execution and performance of this Agreement in the time and
manner contemplated will not conflict with, result in a breach of or constitute
a default under any provision of law, the Certificate of Incorporation or
By-Laws of CSR or of any existing agreement, indenture or other instrument to
which CSR is a party or to which any of its business or its assets may be bound
or affected;
(o) Other than as set forth on Schedule 5(o) annexed to this
Agreement, there are not, and will not be at any time prior to the Closing Date,
any outstanding options, warrants, rights, contracts, calls, demands or
commitments of any type, kind or character relating to the CSR Control Shares;
(p) The capitalization of CSR immediately prior to the Closing will
be as follows:
Authorized Type of Security Issued and Outstanding
---------- ---------------- ----------------------
250,000,000 Shares Voting Common Stock, 709,335 Shares
$.O1 par value per share
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(q) There is no litigation or governmental proceeding or
investigation pending or, to the knowledge of the CSR Shareholders, threatened
or in prospect against CSR, any of its officers, directors or sole shareholder
or their properties or relating to its capital stock, except as set forth in
CSR's 10-K. The CSR Shareholders will notify GCI promptly of any such initiated
or threatened proceedings or litigation which may arise or be instituted at any
time prior to the Closing Date;
(r) The audited balance sheet, statement of cash flows, statement of
changes in stockholders equity (deficiency) of CSR and the notes thereto for the
fiscal year ended December 31, 1998 (the "CSR Audited Financial Statements") and
unaudited financial statements for the two (2) two months ended February 28,
1999 and the notes thereto (the "CSR Unaudited Financial Statements"), attached
hereto as Schedule 5(r), present the financial condition and the results of
operations of CSR as of the dates thereof and were prepared in accordance with
generally accepted accounting principles consistently applied. The CSR Audited
and Unaudited Financial Statements are hereinafter collectively referred to as
the "CSR Financial Statements". There are no material liabilities, either fixed
or contingent, not reflected in the CSR Financial Statements, and the CSR
Financial Statements are true and correct in all material aspects, and do not
omit to state any material fact required or necessary to make such statements,
in light of the circumstances in which they are made, not misleading;
(s) To the best knowledge and belief of the CSR Shareholders, since
February 28, 1999 (the date of latest CSR Unaudited Financial Statements) there
has been no material adverse change in the financial condition of CSR nor has
there been any material or substantial loss or damage to the properties or
business of CSR (whether or not covered by insurance) and no event or condition
of any character has occurred which adversely affect CSR's business;
(t) To the best knowledge and belief of the CSR Shareholders, and
except as set forth on Schedule 5(t) annexed hereto, any and all taxes accrued
or asserted against CSR have been paid, or CSR has established adequate reserves
therefor. All tax returns for CSR required to be filed have been or will be
filed for all periods ending on or up to the Closing Date; no extensions of the
applicable statutes of limitations have been, or will be, prior to the Closing
Date, applied for by CSR. Any and all additional taxes arising from the
operation of CSR for any period up to and including the Closing Date and not
provided for on the books and records of CSR are and shall be the sole liability
of GCI. Copies of all applicable tax returns shall be furnished to GCI and its
counsel prior to the Closing Date;
(u) Except as set forth on Schedule 5(u) annexed hereto, CSR has
clear and unencumbered title to all of the assets and property owned by it as
reflected in the CSR Financial Statements and CSR has no assets that are not
reflected in the CSR Financial Statements;
(v) To the best knowledge and belief of the CSR Shareholders, CSR is
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not in material default under any material contract or obligation and all third
parties with whom CSR has contractual arrangements are in material compliance
therewith and are not in material default thereunder;
(w) Except as set forth on Schedule 5(w) annexed hereto, CSR has not
adopted, and, without written consent of GCI, will not prior to the Closing Date
adopt, any employment or collective bargaining agreements;
(x) There are no material liabilities, either fixed or contingent,
not reflected in the CSR Financial Statements or on Schedule 5(x) annexed
hereto, except that there may be contracts or obligations incurred in the usual
course of business not reflected therein which, if disclosed, would not
materially adversely affect the financial condition of CSR as reflected in the
CSR Financial Statements;
(y) No representation or warranty made by the CSR Shareholders in
this Agreement and any schedule or exhibit attached hereto and furnished or to
be furnished to GCI pursuant to this Agreement, contains or will contain any
untrue statement of a material fact, or omits, or will omit, to state a material
fact required or necessary to make the statements and representations herein or
therein made, in light of the circumstances under which they were made, not
misleading;
(z) Other than as set forth on Schedule 5(z) annexed hereto, CSR has
not executed or delivered or issued any notes, bonds or mortgages and has not
entered into any leases, contracts or commitments not disclosed in the CSR
Financial Statements;
(aa) Except as otherwise disclosed on Schedule 5(aa), CSR has no
liabilities or obligations of any nature (absolute, accrued, contingent or
otherwise) which are required to be reflected or reserved against on its balance
sheets in accordance with generally accepted accounting principles consistently
applied, except for liabilities and obligations fully reflected or reserved
against in the CSR Financial Statements or incurred in the ordinary course of
business and consistent with past practice since the date of the CSR Financial
Statements;
(bb) By virtue of their respective execution of this Agreement, the
CSR Shareholders hereby acknowledge and accept that they each have been
furnished with all information concerning the business and financial condition
and corporate status of GCI which they deemed necessary to their decision to
proceed with the transactions as described herein'
(cc) Other than as set forth on Schedule 5(cc) annexed hereto, CSR
has not made any patent or trademark filings in the United States;
(ff) All of the assets and property used by CSR in the operation of
its business are owned by CSR and to the extent any of such assets and property
are not so owned, CSR will arrange to have such asset and/or property
transferred to it prior to the Closing Date;
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(hh) Each of the representations in this Section 5 shall be true and
correct at the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF GCI. By virtue of its execution of
this Agreement and except as expressly modified by the information set forth on
any and all schedules or exhibits annexed to this Agreement and incorporated
herein by reference, GCI hereby represents and warrants to the CSR Shareholders
as follows:
(a) The GCI Shares to be transferred to the CSR Shareholders on the
Closing Date will be duly and validly issued, fully paid and non-assessable with
no personal liability attaching to the ownership thereof. The GCI Shares will be
transferred free and clear of any and all liens, claims, encumbrances, options,
contracts, calls, commitments or demands of any character. As of the Closing
Date, GCI shall have full corporate power and authority to carry on its business
as the same shall be conducted between the date hereof and the Closing Date;
(b) GCI is, and at all times through and including the Closing Date,
will be a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and authorized to do business in such
states in the United States where such qualification is necessary, with full
power and authority to conduct its business as the same is presently being
conducted;
(c) The execution and performance of this Agreement in the time and
manner contemplated will not conflict with, result in a breach of or constitute
a default under any provision of law, the Certificate of Incorporation or
By-Laws of GCI or of any existing agreement, indenture or other instrument to
which GCI is a party or to which any of its businesses or the assets may be
bound or affected;
(d) There will not be at any time prior to the Closing Date, any new
outstanding options, warrants, rights, contracts, calls, demands or commitments
of any type, kind or character relating to the GCI Common Shares except as they
exist at the time of this Agreement;
(e) The capitalization of GCI immediately prior to the Closing will
be as follows:
Authorized Type of Security Issued and Outstanding
---------- ---------------- ----------------------
20,000,000 Shares Voting Common Stock, 14,901,258 Shares
$.01 par value per share
(f) Prior to the Closing Date, and except for the original issuance
of any shares of its common stock comprising the 20,000,000 shares referenced in
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Section 6(e) above, GCI will not cause the original issuance of any of its
authorized but unissued shares of common stock without the express written
consent of the CSR Shareholders;
(g) On the Closing Date, the issued and outstanding GCI Common
Shares will not be owned beneficially or of record by not less than 500
shareholders;
(h) All corporate action required of GCI will have been taken prior
to the Closing Date. GCI has complied in all material respects, and at all times
until the Closing Date will comply in all material respects with all applicable
state, federal and local laws regulations and ordinances. GCI has not been
notified, as of the date of this Agreement, that it has failed to so comply with
any such requirements;
(i) There is no litigation or governmental proceeding or
investigation pending or, to the knowledge of GCI, threatened or in prospect
against GCI, any of its officers, directors or sole shareholder or their
properties or relating to its capital stock. GCI will notify the CSR
Shareholders promptly of any such initiated or threatened proceedings or
litigation which may arise or be instituted at any time prior to the Closing
Date;
(j) The audited balance sheet, statement of cash flows, statement of
changes in stockholders equity (deficiency) of GCI and the notes thereto for the
fiscal year ended December 31, 1998 (the "GCI Audited Financial Statements") and
unaudited financial statements for the two months ending February 28, 1999 (the
"GCI Unaudited Financial Statements") and the notes thereto, attached hereto as
Schedule 6(j), present the financial condition and the results of operations of
GCI as of the dates thereof and were prepared in accordance with generally
accepted accounting principles consistently applied. The GCI Audited and
Unaudited Financial Statements are hereinafter collectively referred to as the
"GCI Financial Statements". There are no material liabilities, either fixed or
contingent, not reflected in the GCI Financial Statements, and the GCI Financial
Statements are true and correct in all material aspects, and do not omit to
state any material fact required or necessary to make such statements, in light
of the circumstances in which they are made, not misleading;
(k) To the best knowledge and belief of GCI, since February 28, 1999
(date of latest GCI Unaudited Financial Statements) there has been no material
adverse change in the financial condition of GCI nor has there been any material
or substantial loss or damage to the properties or business of GCI (whether or
not covered by insurance) and no event or condition of any character has
occurred which adversely affect GCI's business;
(l) From the date of the latest GCI Unaudited Financial Statement
(February 28, 1999) through and including the date of this Agreement and
subsequent Closing Date, GCI has not and will not incur any liability or made
any payments other than in the regular and normal course of its business and
between the date of this Agreement and the Closing Date, GCI has not transferred
any property for less than a fair and adequate consideration;
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(m) GCI has not declared or paid since the date of the latest GCI
Unaudited Financial Statement (February 28,1999); and will not declare or pay
prior to the Closing Date, any dividends or make any distribution, directly or
indirectly, to its shareholders, officers or directors, nor has it made, since
the said date, nor will it make, prior to the Closing Date, any loans or
advances to any shareholders, officers or directors;
(n) To the best knowledge and belief of GCI and except as set forth
on Schedule 6(n) annexed hereto, any and all taxes accrued or asserted against
GCI have been paid, or GCI has established adequate reserves therefor. All tax
returns for GCI required to be filed have been or will be filed for all periods
ending on or up to the Closing Date; no extensions of the applicable statutes of
limitations have been, or will be, prior to the Closing Date, applied for by
GCI. Any and all additional taxes arising from the operation of GCI for any
period up to and including the Closing Date and not provided for on the books
and records of GCI are and shall be the sole liability of GCI. Copies of all
applicable tax returns shall be furnished to the CSR Shareholders and its
counsel prior to the Closing Date;
(o) GCI has clear and unencumbered title to all of the assets and
property owned by it as reflected in the GCI Financial Statements and GCI has no
assets that are not reflected in the GCI Financial Statements;
(p) To the best knowledge and belief of GCI, GCI is not in material
default under any material contract or obligation and all third parties with
whom GCI has contractual arrangements are in material compliance therewith and
are not in material default thereunder;
(q) GCI has not adopted, and, without written consent of the CSR
Shareholders, will not prior to the Closing Date adopt, any employment or
collective bargaining agreements;
(r) There are no material liabilities, either fixed or contingent,
not reflected in the GCI Financial Statements except that there may be contracts
or obligations incurred in the usual course of business not reflected therein
which, if disclosed, would not materially adversely affect the financial
condition of GCI as reflected in the GCI Financial Statements;
(s) No representation or warranty made by GCI in this Agreement and
any schedule or exhibit attached hereto and furnished or to be furnished to the
CSR Shareholders pursuant to this Agreement, contains or will contain any untrue
statement of a material fact, or omits, or will omit, to state a material fact
required or necessary to make the statements and representations herein or
therein made, in light of the circumstances under which they were made, not
misleading;
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(t) On the Closing Date, GCI shall have authorized, issued and
outstanding the securities set forth in clause (f) of this Section 6; and all
GCI Common Shares indicated as being issued and outstanding on the Closing Date
shall be duly and validly issued and outstanding, fully paid and non-assessable
with no personal liability attached to the ownership thereof;
(u) From the date of the latest GCI Unaudited Financial Statements
(February 28, 1999), GCI has not executed or delivered or issued any notes,
bonds or mortgages and has not entered into any leases, contracts or commitments
not disclosed in the GCI Financial Statements;
(v) There are no outstanding rights to subscribe shares of stock of
GCI and none will be so authorized subsequent to the execution of this Agreement
without the prior written consent of the CSR Shareholders;
(w) No GCI shareholder has any right of appraisal or similar right
to dissent from the transaction made the subject of this Agreement and/or to
demand payment for its GCI Common Shares. In the event such right does, in fact,
exist, GCI will cause such shareholder to waive such right prior to the Closing
Date;
(x) GCI has no unpaid dividends;
(y) Prior to the Closing Date, GCI will not, without the prior
written consent of CSR, which consent shall not unreasonably be withheld,
authorize a reorganization, re-capitalization, merger, consolidation, stock
split or take other similar corporate action except as may be required to
effectuate the terms and conditions of this Agreement;
(z) GCI has no liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise) which are required to be reflected or reserved
against on its balance sheets in accordance with generally accepted accounting
principles consistently applied, except for liabilities and obligations fully
reflected or reserved against in the GCI Financial Statements or incurred in the
ordinary course of business and consistent with past practice since the date of
the GCI Financial Statements;
(aa) GCI has the power to enter into this Agreement and to carry out
its obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been or will be prior
to Closing Date duly authorized by GCI's Board of Directors and shareholders in
accordance with Delaware law, and GCI shall furnish the CSR Shareholders with
true copies of any and all documentation evidencing such action. GCI is not
subject to or obligated under any contract provision or any license, franchise
or permit or subject to any order or decree, which would be breached or violated
by its execution and performance of this Agreement in the time and manner
contemplated herein. Except as required by applicable securities laws or as set
14
forth on Schedule 6(aa), no filing or registration with, or authorization
consent or approval of any public body or authority is necessary to execute or
perform this Agreement and the consummation by GCI of the transactions
contemplated hereby;
(bb) By virtue of its execution of this Agreement, GCI hereby
acknowledges and accepts that it has been furnished with all information
concerning the business and financial condition and corporate status of the CSR
Shareholders which GCI's management deemed necessary to its decision to proceed
with the transactions as described herein;
(cc) Each of the representations in this Section 6 shall be true and
correct at the Closing Date.
7. COVENANTS OF THE CSR SHAREHOLDERS. By virtue of their respective
execution of this Agreement, the CSR Shareholders hereby jointly and severally
covenant and agree with GCI as follows:
(a) On the Closing Date, each CSR Shareholder who will receive GCI
Shares will deliver an executed investment letter to GCI in the form annexed
hereto as Schedule 7(a) (the "CSR Investment Letter");
(b) CSR agrees and covenants to execute the certificates identified
in Section 9(a)(ii)and (vi) below;
(c) On the Closing Date, the CSR Shareholders will furnish GCI with
an opinion of securities counsel in form and substance reasonably acceptable to
GCI and GCI's securities counsel;
(d) At all times prior to the Closing Date, GCI through its duly
authorized representatives, may inspect, copy and reproduce any tax returns,
accounting and other records of the CSR Shareholders relating to the property,
assets or business of CSR. The CSR Shareholders will afford to the officers and
authorized representatives of GCI access to the properties, books and records of
CSR and will furnish such information as GCI and its counsel may from time to
time reasonably request;
(e) If requested by GCI, the CSR Shareholders will deliver to GCI an
accurate and complete list and brief description of all policies of fire,
liability, errors and omissions and other insurance carried by CSR as of the
date of this Agreement. The CSR Shareholders will take all steps necessary to
keep such policies in full force and effect through the Closing Date and will
inform GCI of any changes in coverage or additional policies prior to the
entering into such policies;
(f) Copies of CSR's Certificate of Incorporation, all amendments
thereto, By-Laws, and all minutes of CSR are contained in the minute books which
will be furnished to GCI and its counsel prior to the Closing Date; and all
additional minutes and other corporate documents of CSR adopted or executed
15
subsequent to this Agreement, but prior to the Closing Date (none of which will
diminish or dilute the rights of GCI hereunder), will be furnished to GCI and
its counsel prior to the Closing Date;
(g) As soon as practicable following the execution of this
Agreement, the CSR Shareholders will provide GCI with the CSR Audited and
Unaudited Financial Statements;
(h) All of the representations, warranties and covenants of the CSR
Shareholders made in this Agreement shall survive the Closing Date for a period
of twelve months; and
(i) As soon as practicable following the execution of this
Agreement, but no later than ten (10) days prior to the Closing Date, the CSR
Shareholders will furnish to GCI copies of any and all proposed forms of
employment agreement (the "CSR Employment Agreements"). The terms of such CSR
Employment Agreements shall be satisfactory to GCI. Any and all such CSR
Employment Agreements shall be duly executed on the Closing Date.
8. COVENANTS OF GCI. By virtue of its execution of this Agreement, GCI
hereby covenants and agrees with the CSR Shareholders as follows:
(a) GCI agrees and covenants to execute the certificates identified
in Section 9(b)(ii), (iii) and (viii) below;
(b) On the Closing Date, GCI will furnish the CSR Shareholders with
an opinion of securities counsel in form and substance reasonably acceptable to
the CSR Shareholders and CSRs securities counsel;
(c) At all times prior to the Closing Date, the CSR Shareholders
through their duly authorized representatives, may inspect, copy and reproduce
any tax returns, accounting and other records of GCI relating to its property,
assets or business. GCI will afford to the officers and authorized
representatives of the CSR Shareholders access to the properties, books and
records of GCI and will furnish such information as the CSR Shareholders and
their counsel may from time to time reasonably request;
(d) Copies of CGI's Certificate of Incorporation, all amendments
thereto By-Laws, and all minutes of GCI are contained in the minute books which
will be furnished to the CSR Shareholders and their counsel prior to the Closing
Date; and all additional minutes and other corporate documents of GCI adopted or
executed subsequent to this Agreement, but prior to the Closing Date (none of
which will diminish or dilute the rights of the CSR Shareholders hereunder),
will be furnished to the CSR Shareholders and their counsel prior to the Closing
Date;
16
(e) As soon as practicable following the execution of this Agreement
GCI will provide the CSR Shareholders with the GCI Audited and Unaudited
Financial Statements; and
(f) All of the representations, warranties and covenants of GCI made
in this Agreement shall survive the Closing Date for a period of twelve months.
9. CONDITIONS PRECEDENT TO CLOSING.
(a) All of the obligations of GCI under and pursuant to this
Agreement are and shall be subject to the representations and warranties of the
CSR Shareholders being true and correct in all material respects on the Closing
Date except for such representation and warranties that are expressly given as
of a specific date or as of the date hereof and the delivery to GCI, prior to or
on the Closing Date of each of the following:
(i) a certificate or certificates representing all of the CSR
Control Shares in proper transferable form, endorsed in blank, with signatures
guaranteed and with all necessary documentary transfer tax stamps affixed;
(ii) a certificate signed by each of the CSR Shareholders to
effect that all of the representations and warranties of the CSR Shareholders
set forth in Section 5 hereof, and elsewhere in this Agreement are true and
correct in all material respects except for such representations and warranties
that are expressly given as of a specific date or as of the date hereof;
(iii) the CSR Audited Financial Statements containing an
unqualified opinion of CSRs independent certified public accountants, together
with the CSR Unaudited Financial Statements (which shall contain no material
change in the financial condition of CSR since the date of the last CSR's
Audited Financial Statements (December 31,1995) other than expenditures
authorized by this Agreement, and reviewed by such firm;
(iv) a Certificate of Good Standing of CSR from the
appropriate authority in the State of Delaware dated prior to the Closing Date
or, in lieu of, a covenant that the same will be provided within thirty (30)
days of the Closing Date;
(v) a certificate from the appropriate authority in the State
of Delaware dated prior to the Closing Date evidencing payment by CSR of all
outstanding taxes due to the State of Delaware or, in lieu of a covenant that
the same will be provided within thirty (30) days of the Closing Date;
(vi) an executed copy of the CSR Shareholders Investment
Letters from each holder of the CSR Control Shares
17
(vii) an opinion of corporate and securities counsel to the
CSR Shareholders, in form and substance reasonably satisfactory to GCI and its
counsel; and
(viii) duly executed copies of any CSR Employment Agreements.
(b) All of the obligations of the CSR Shareholders under and
pursuant to this Agreement are and shall be subject to the representations and
warranties of GCI being true and correct at the Closing Date except for such
representations and warranties that are expressly given as of a specific date or
as of the date hereof and the fulfillment prior to or on the Closing Date of
each of the following:
(i) certificates for the GCI Stock in such names and in such
denominations as the CSR Shareholders shall have indicated to GCI in writing at
least ten days prior to the Closing Date;
(ii) a certificate signed by the President and Secretary of
GCI, dated the Closing Date, to effect that all of the representations and
warranties of GCI set forth in Section 6 hereof, and elsewhere in this Agreement
are true and correct in all material respects except for such representations
and warranties that are expressly given as of a specific date or as of the date
hereof
(iii) a certified copy of the resolution of GCI's Board of
Directors authorizing the execution, delivery and performance of this Agreement;
(iv) the GCI Audited Financial Statements containing an
unqualified opinion of GCI's independent certified public accountants, together
with the GCI Unaudited Financial Statements (which shall contain no material
change in the financial condition of GCI since the date of the last GCI's
Audited Financial Statements (December 31,1998) other than expenditures
authorized by this Agreement, and reviewed by such firm;
(v) a Certificate of Good Standing of GCI from the appropriate
authority in the State of Delaware dated prior to the Closing Date or, in lieu
of a covenant that the same will be provided within thirty (30) days of the
Closing Date;
(vi) a certificate from the appropriate authority in the State
of Delaware dated prior to the Closing Date evidencing payment by GCI of all
outstanding taxes due to the State of Delaware or, in lieu of, a covenant that
the same will be provided within thirty (30) days of the Closing Date;
18
(vii) an opinion of corporate and securities counsel to GCI,
in form and substance reasonably satisfactory to the CSR Shareholders and their
securities counsel; and
(viii) a certificate of the President and Corporate Secretary
of GCI certifying that, effective as of the Closing, all other covenants of GCI
to be satisfied on or before the Closing, as contained in Section 8 above have
been satisfied.
10. INDEMNIFICATION.
(a) CSR and the CSR Shareholders hereby agree to hold GCI harmless
from any and all loss, cost, expense, liability or damage, including reasonable
attorney's fees, resulting from any inaccurate representation made by the CSR
Shareholders, breach of any warranty herein made and breach or default in the
CSR Shareholder's performance of any of the covenants which the CSR Shareholders
are to perform hereunder; provided, however, no claim may be made under this
Agreement for breach of warranty or covenant or seek any indemnification with
regard thereto until such time as there has been an aggregate of Ten Thousand
Dollars ($10,000) damages incurred by GCI. All claims made hereunder must be
made within eighteen (18) months of the Closing hereunder or they shall be
deemed waived.
(b) GCI hereby agrees to hold the CSR Shareholders harmless from any
and all loss, cost, expense, liability or damage, including reasonable
attorney's fees, resulting from any inaccurate representation made by GCI,
breach of any warranty herein made and breach or default in GCI's performance of
any of the covenants which it is to perform hereunder; provided, however, no
claim may be made under this Agreement for breach of warranty or covenant, or
seek any indemnification with regard thereto until such time as there has been
an aggregate of Ten Thousand Dollars ($10,000) damages incurred by the CSR
Shareholders. All claims made hereunder must be made within eighteen (18) months
of the Closing hereunder or they shall be deemed waived.
11. THE CSR SHAREHOLDERS' INVESTMENT INTENT. The CSR Shareholders have
been advised, and by the execution of this Agreement, hereby agree, accept and
acknowledge:
(a) That none of the GCI Shares to be delivered hereunder shall have
been registered under the Securities Act or under state securities law, and that
both GCI and its present management are relying upon an exemption from
registration based upon the investment and other representations of the CSR
Shareholders. In this regard, the CSR Shareholders hereby represent, covenant
and warrant that:
(i) the CSR Shareholders are acquiring the GCI Shares issuable
hereunder for investment purposes and without any view to the transfer or resale
thereof and that such shares shall not be sold, transferred, assigned, pledged
or hypothecated in any violation of the Securities Act, or the applicable
securities laws of any state;
19
(ii) The certificates representing all of the GCI Shares to be
delivered pursuant to this Agreement, shall bear a restrictive legend in
substantially the following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933 as amended. They
may not be sold, assigned or transferred in the absence of an
effective registration statement for the Shares under the
said Securities Act, receipt of a `no action' letter from the
Securities and Exchange Commission or an opinion of counsel
satisfactory to the Corporation that registration is not
required under said Securities Act."
(iii) The GCI Shares will be the subject of standard stop
transfer orders on the books and records of GCI's transfer agent.
12. CONDUCT OF GCI'S AND CSR'S BUSINESS PRIOR TO THE CLOSING DATE.
>From the date hereof and prior to the Closing Date, unless the other party
hereto shall otherwise agree in writing:
(a) The business of GCI and CSR shall be conducted only in the
ordinary and usual course and there shall be no material adverse changes in the
nature and extent of its respective properties, the conduct of its respective
operations;
(b) Neither GCI nor CSR shall encumber by lien, encumbrance,
security interest or otherwise any of its respective assets or properties or
authorize the reorganization, re-capitalization, merger, consolidation or other
similar action on behalf of GCI or CSR except any that may be permitted by or
required to effectuate the terms and conditions of this Agreement or as
otherwise mutually agreed upon in writing;
(c) Except as permitted by this Agreement, neither GCI nor CSR
shall dispose of any material amount of assets other than in the ordinary course
of business; incur a material amount of additional indebtedness or other
material liabilities, other than liabilities for borrowed money or enter into
any contract, agreement, commitment or arrangement with respect to any of the
foregoing;
20
(d) Neither GCI nor CSR shall enter into any employment or
similar contract with any shareholder or employee or make any changes in its
respective management or executive assignments or compensation, except for
changes in its management or executive assignments or compensation which occur
in the ordinary course of business or as otherwise permitted by this Agreement;
and
(e) GCI and CSR shall use their respective best efforts to
preserve intact its business organization, to keep available the services of its
present key employees, and to preserve the good will of those having business
relationships with them.
13. REGISTRATION AND REGISTRATION RIGHTS. The following provisions
shall be applicable:
a. REGISTRATION. Within six (6) months from the closing date
of the Agreement, GCI hereby covenants and agrees to prepare and file a
registration statement (a "Registration Statement") with the Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act"), in which the holder GCI Shares are registered for sale,
whether public or otherwise~
b. PIGGY BACK REGISTRATION RIGHTS. If at any time during the two
year period following the date of this Agreement, GCI proposes to register for
sale in any offering1 whether to the public or otherwise of any equity or debt
securities pursuant to a Registration Statement with the SEC under the
Securities Act, and/or under any state statute, it will at such time give
written notice of its intention to do so (the "Registration Notice") to the
registered holders of the GCI Shares at their address appearing on the books and
records of GCI's transfer agent. CGI's obligation to furnish the Registration
Notice to the holders of the GCI Shares shall arise within three days from GCI's
execution of a written letter of intent with any broker-dealer registered with
the National Association of Securities Dealers, Inc. ("NASD") or of CGI's
engagement of securities counsel to prepare a Registration Statement for filing
with the SEC, whichever shall sooner occur. Within 15 days after the receipt of
the Registration Notice, any holder of the GCI Shares may request the inclusion
of such holder's GCI Shares in any Registration Statement which GCI intends to
file with the SEC (the "Covered Share Notice"). The Covered Share Notice shall:
(i) specify the number of GCI Shares intended to be offered and sold by the
holder thereof (the "Covered Shares"); (ii) express the holder's present intent
to offer such Covered Shares for distribution; and (iii) undertake to provide
all such information and materials and to take all such action as may be
required in order to permit GCI to comply with all applicable requirements of
the SEC and/or applicable state regulatory body, as the case may be, and to
obtain acceleration of the effective date of the Registration Statement
therefor. Upon receipt of the Covered Share Notice, GCI shall use its best
efforts to cause the offering of the Covered Shares so specified in the Covered
Share Notice to be registered under the Act as soon as reasonably practicable
(but in any event not later than 75 days from the date of the Covered Share
Notice) so as to permit the sale or other distribution by the holder of the
Covered Shares specified in the Covered Share Notice;
21
c. REGISTRATION EXPENSES. GCI shall bear the costs and expenses
incurred in connection with the registration of the sale or other distribution
of the Covered Shares pursuant to the terms of this Agreement (except that the
holder shall pay any underwriting fees, discounts or commissions attributable to
sales of Covered Shares by the holder and any "out of pocket" expenses of the
holder, including the holders counsel's fees and expenses). The costs and
expenses payable by GCI shall include without limitation, (i) all filing fees
with the SEC and the NASD; (ii) fees and expenses of compliance with securities
or blue sky laws (including fees and disbursements of counsel in connection with
blue sky qualifications of the Covered Shares); (iii) printing expenses; (iv)
the fees and expenses incurred in connection with the listing of the Covered
Shares; and (v) fees and expenses of counsel and independent certified public
accountants for GCI (including the expenses of any comfort letters).
d. PUBLIC OFFERING INDEMNITIES. In the event of any registered
offering of the Covered Shares, pursuant to Section 15 hereof, the holders of
the GCI Shares will provide standard Unites States indemnification to any
underwriter against losses, damages, claims or liabilities arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the prospectus included therein,
as amended or supplemented, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading, made by the holders of the GCI Shares.
14. ACCESS AND INFORMATION. Each party hereto shall afford to other
party's accountants, counsel and other duly authorized representatives access,
during normal business hours and on reasonable advance notice, during the period
after execution of this Agreement and prior to the Closing Date, the right to
make copies of all properties, books, contracts, commitments and records
(including but not limited to tax returns). In addition, each party shall
furnish promptly to the other party: ([) a copy of each report, schedule and
other document file received by it pursuant to the requirements of Federal or
state securities laws; (ii) a copy of any summons, complaint, petition, notice
of hearing or notice of the commencement of any governmental or administrative
investigation; and (iii) all other information concerning its business,
properties and personnel as may reasonably be requested; provided, however, that
no investigation pursuant to this Section 15 shall affect any representations or
warranties or the conditions to the obligations of the parties to consummate a
transaction referenced herein, In the event of a termination of this Agreement
whether in accordance with the provisions of Section 16 or otherwise, each party
shall return to the party furnishing information all documents, work papers and
22
other material obtained by or on its behalf as a result of this Agreement or in
connection herewith whether obtained before or after the execution hereof, and
the party receiving such information from the party furnishing same shall hold
such information in confidence until such time as such information is otherwise
publicly available. Notwithstanding the foregoing and until the Closing Date,
CSR shall be under no obligation to disclose to GCI and GCI shall be under no
obligation to disclose to CSR any proprietary or secret or confidential
information concerning its respective operations.
15. EXPENSES. Regardless of whether or not the transaction contemplated
herein is consummated, each party shall promptly pay, shall be responsible for,
and account for on its respective financial statements all costs and expenses
incurred by it in connection with this Agreement and the transactions
contemplated hereby.
16. TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date: (i) by mutual consent of the Boards of Directors of GCI and
the CSR Shareholders; (ii) by failure to close as provided in Section 3; or
(iii) as a result of the occurrence, prior to the Closing Date, of any of the
following events with respect to or by either CSR or GCI: (aa) The making of a
general assignment for the benefit of creditors; (bb) The filing of any petition
or the commencement of any proceeding by or against either corporation for any
relief under any bankruptcy, or insolvency laws or any laws related to the
relief of debtors, readjustment of indebtedness, reorganizations, compositions
or extensions; (cc) The appointment of a receiver of or the issuance of making
of a writ or order of attachment or garnishment against, a majority of the
property or assets of either corporation; (dd) The filing of a tax lien or
warrant or judgment against either corporation in favor of the United States of
America or the State of Delaware in an amount in excess of Twenty Five Thousand
($25,000) Dollars where said lien or judgment is not satisfied and discharged
within thirty (30) days from the date of such filing; or (ee) A judgment is
rendered against either corporation on an uninsured claim of $50,000 or more and
either corporation fails to commence an appeal of such judgment within the
applicable appeal period.
17. EFFECT ON TERMINATION. In the event of termination of this
Agreement as provided in Section 16, this Agreement shall forthwith become null
and void and there shall be no further liability on the part of GCI or the CSR
Shareholders. Termination of this Agreement by either GCI or the CSR
Shareholders as a result of the breach of the terms and conditions hereof by the
other shall not relieve any party of any liability for a breach at or for any
misrepresentation under this Agreement, or be deemed to constitute a waiver of
any available remedy (including specific performance if available) for any such
breach 23 411)!. or misrepresentation.
23
18. MEANING OF "MATERIAL." As used herein, the term "material" shall be
construed in its generally accepted United States Federal securities law
context.
19. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
20. WAIVER. At any time prior to the Closing Date, GCI by action taken
by its Boards of Directors and the CSR Shareholders by unanimous consent, and
accepted in writing by the other parties, may: (i) extend the time for the
performance of any party; (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto; and
(iii) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid if set forth in an instrument in writing signed on behalf
of such party and accepted in writing by the other parties. The failure of any
party to insist upon strict performance of any of the provisions of this
Agreement shall not be construed as a waiver of any subsequent default of the
same or similar nature or of any of provision, term, condition, warranty,
representation or guaranty contained herein.
21. BROKER AND INVESTMENT BANKING FEES. GCI and the CSR Shareholders
represent and warrant that they have not engaged the services of any broker,
finder, or other person of similar kind who might be due compensation as a
result of the transactions contemplated herein. GCI and the CSR Shareholders
agree to hold and indemnify each other harmless from and against claims by any
third party due compensation as a broker, finder, or other person of similar
kind who might be due compensation as a result of the transactions contemplated
herein.
22. BINDING EFFECT. All of the terms and provisions of the Agreement
shall be binding upon and inure to the benefit of and be enforceable by and
against the parties hereto and their respective successors. This Agreement shall
not be assignable under any circumstances.
23. ENTIRE AGREEMENT. Each of the parties hereto, covenants that this
Agreement is intended to and does contain and embody herein all of the
understandings and agreements, both written and oral, of the parties hereby with
respect to the subject matter of this Agreement and that there exists no oral
agreement or understanding express or implied, whereby the absolute, final and
unconditional character and nature of this Agreement shall be in any way
invalidated, impaired or affected.
24
24. GOVERNING LAW. This Agreement shall be governed by and interpreted
under and construed in all respects in accordance with the laws of the State of
New York, a neutral forum, irrespective of the place of domicile or residence of
any party.
25. ARBITRATION. The parties agree that in the event of a controversy
arising out of the interpretation, construction, performance or breach of the
Agreement, any and all claims arising out of or relating to this Agreement shall
be settled by arbitration according to the Commercial Arbitration Rules of the
American Arbitration Association located in New York City before a single
arbitrator, except as provided below. The decision of the arbitrator(s) will be
enforceable in any court of competent jurisdiction. The parties hereby agree and
consent that service of process by mail in any such arbitration proceeding
outside the City of New York shall be tantamount to service in person within New
York New York and shall confer personal jurisdiction on the American Arbitration
Association. In any dispute where a party seeks Fifty Thousand Dollars
($50,000.00) or more in damages, three (3) arbitrators will be employed. In
resolving all disputes between the parties, the arbitrators will apply the law
of the State of New York, except as may be modified by this Agreement. The
arbitrators are, by this Agreement, directed to conduct the arbitration hearing
no later than three (3) months from the service of the statement of claim and
demand for arbitration unless good cause is shown establishing that the hearing
cannot fairly and practically be so convened. The arbitrators will resolve any
discovery disputes by such pre-hearing conferences as may be needed. All parties
agree that the arbitrators and any counsel of record to the proceeding will have
the power of subpoena process as provided by law. Notwithstanding the foregoing
if a dispute arises out of or related to this Agreement, or the breach thereof,
before resorting to arbitration the parties agree first to try in good faith to
settle the dispute by mediation under the Commercial Mediation Rules of the
American Arbitration Association.
26. ORIGINALS. This Agreement may be executed in counterparts, in
original or by facsimile, each of which so executed shall be deemed an original
and constitute one and the same agreement.
27. ADDRESSES OF THE PARTIES. Each party shall at all times keep the
other party informed of its principal place of business if different from that
stated herein, and promptly notify the other of any change, giving the address
of the new principal place of business.
28. NOTICES. Any notice required or contemplated by this Agreement
shall be deemed sufficiently given when delivered in person, transmitted by
facsimile (if followed by a copy by mail within three (3) business days) or sent
by registered or certified mail or priority overnight package delivery service
to the principal office of the party entitled to notice or at such other address
as the same may designate in a notice for that purpose. All notices shall be
deemed to have been made upon receipt, in the case of mail, personal delivery or
facsimile, or on the next business day, in the case of priority overnight
package delivery service. Such notices shall be addressed and sent or delivered
to the following:
25
If to Go Call, Inc.:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇, President
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & Associates
▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the CSR Shareholders:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Wolf, Haldenstein, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & Herz, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address of which a party may notify the other parties as
provided above.
29. RELEASE OF INFORMATION. In light of the nature and extent of the
conditions precedent to CSR `s and GCI's obligations hereunder, the parties
hereby agree that any and all releases of public information concerning this
transaction shall be made only with the mutual consent in writing of both the
CSR Shareholders and GCI as to form, content and kind.
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
Go Call Inc.
By: /s/ ▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇, President
/s/ ▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ MD, PC, MPPP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇, Trustee
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