EXHIBIT 2.3
COMMON STOCK AND OPTION EXCHANGE AGREEMENT
By and Among
NetSource International Telecommunications, Inc.
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and
Shareholders and Holders of Options to Purchase Shares of
MTC Telemanagement Corporation, a California Corporation.
Dated as of June ___, 1996
THIS COMMON STOCK AND OPTION EXCHANGE AGREEMENT (the "Agreement") is dated
for reference purposes as of June ___, 1996, by and among NetSource
International Telecommunications, Inc., a Delaware corporation (the "Company"),
the undersigned shareholders of MTC Telemanagement Corporation, a California
corporation ("MTC Domestic") (each individually a "Shareholder" and
collectively, the "Shareholders") and the undersigned holders of options to
purchase common stock of MTC Domestic (each individually an "Optionholder" and
collectively, the "Optionholders").
RECITALS
A. The Shareholders hold of record all of the outstanding 2,070,000 shares
of the common stock of MTC Domestic (the "MTC Domestic Shares"), such common
stock being the only outstanding class of shares of MTC Domestic.
B. The Optionholders hold of record all of the outstanding options to
purchase common stock of MTC Domestic, with such options covering 129,785 shares
(the "MTC Domestic Options").
C. The Company and the Shareholders desire to exchange, in a tax-free
exchange, 174,290 shares of common stock of the Company (the "Company Shares")
for all of the MTC Domestic Shares (the "Stock Exchange").
D. The Company and the Optionholders desire to exchange, in a tax-free
exchange, options to purchase 10,928 shares of common stock of the Company (the
"Company Options") for all of the MTC Domestic Options (the "Option Exchange,"
which together with the Stock Exchange shall be referred to as the "MTC Domestic
Exchange"). The Company Options will have vesting terms and other conditions
and terms similar to the MTC Domestic Options for which they are being
exchanged.
E. Concurrently with the execution of this Agreement, the Company, the
shareholders of MTC International, Inc., a Nevada corporation, formerly known as
Envoy International Information Systems, Inc. ("MTC International"), and the
holders of options to purchase common stock of MTC International will be
entering into a similar Common Stock and Option Exchange Agreement (such
exchanges collectively referred to as the "MTC International Exchange"),
pursuant to which the Company will exchange 606,000 Company Shares for all of
the outstanding shares of the common stock of MTC International and will
exchange Company Options to purchase 134,871 Company Shares for all of the
outstanding options to purchase shares of the common stock of MTC International.
F. The Company and NetSource Interactive Services, Inc., a Delaware
corporation ("NetSource Interactive"), have entered into a merger agreement
pursuant to which NetSource Interactive will merge with and into the Company,
with the Company being the surviving corporation and with the shareholders and
optionholders of NetSource Interactive surrendering their shares and options in
NetSource Interactive in exchange for shares and options in the Company (the
"NetSource Merger").
G. Upon completion of the MTC Domestic Exchange, the MTC International
Exchange and the NetSource Merger, the Company will issue and place no less than
$10,000,000 of debt which is convertible into shares of the Company (the "Debt
Offering").
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AGREEMENT
1. EXCHANGE.
A. EXCHANGE OF SHARES. Subject to the terms and conditions hereof,
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the Company will issue to each of the Shareholders 0.0841981 Company Shares for
each MTC Domestic Share owned and held of record by such Shareholder in exchange
for such MTC Domestic Share, as set forth on Schedule A attached hereto. Each
Shareholder acknowledges and agrees that Schedule A sets forth both the
aggregate number of MTC Domestic Shares that such Shareholder owns and the
aggregate number of Company Shares that such Shareholder is entitled to receive
in exchange for such Shareholder's MTC Domestic Shares pursuant to this
Agreement.
B. DELIVERY OF THE SHARES. Concurrently with the execution of this
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Agreement, each Shareholder is delivering to the Company the certificate(s)
representing the number of MTC Domestic Shares set forth opposite the
Shareholder's name on Schedule A attached hereto, together with duly executed
stock power(s) for such certificates.
C. EXCHANGE OF THE OPTIONS. Subject to the terms and conditions
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hereof, the Company will issue to each Optionholder the number of Company
Options listed opposite that Optionholder's name on Schedule B attached hereto
in exchange for that Optionholder's MTC Domestic Options. The Company Options
issued to each Optionholder will contain terms and conditions which are
substantially similar to the terms and conditions of the Optionholder's MTC
Domestic Options, with the exercise price being modified to take into account
the exchange ratio for the options. Each Optionholder acknowledges and agrees
that Schedule B sets forth the aggregate number of the MTC Domestic Options that
such Optionholder owns as well as the aggregate number of Company Options that
such Optionholder is entitled to receive in exchange for such Shareholder's MTC
Domestic Options pursuant to this Agreement.
D. DELIVERY OF THE OPTIONS. Concurrently with the execution of this
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Agreement, each Optionholder is delivering to the Company the original option
agreement(s) for all of the MTC Domestic Options set forth opposite the
Optionholder's name on Schedule B attached hereto.
2. CLOSING DATE; DELIVERY; TERMINATION OF "S" CORPORATION STATUS.
A. CLOSING DATE. The closing of the MTC Domestic Exchange ("the
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Closing") shall be held at the offices of Pezzola & ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇
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determined by the Company upon consummation of the Closing conditions set forth
herein (the "Closing Date").
B. DELIVERY. Subject to the terms of this Agreement, at the
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Closing, the Company will deliver to each Shareholder or his representative the
certificates representing the Company Shares to be received by the Shareholder
in the Stock Exchange and will deliver to each Optionholder or his
representative new option agreements representing the Company Options to be
received by the Optionholder in the Option Exchange. Each Optionholder
acknowledges and agrees that upon delivery of the Company Options, the MTC
Domestic Options shall automatically terminate and shall be deemed cancelled.
C. TERMINATION OF "S" CORPORATION STATUS. The Shareholders agree
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that effective as of the Closing, MTC Domestic shall terminate its "S"
Corporation for income tax purposes.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each of the Shareholders and
Optionholders, as follows:
A. ORGANIZATION AND STANDING. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
B. CORPORATE POWER. The Company has now, or will have at the
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closing Date, all requisite corporate power to enter into this Agreement, to
issue the Company Shares and Company Options hereunder, and to carry out and
perform its obligations under the terms of this Agreement, and has or will have
taken all actions necessary for the authorization, execution and delivery of
this Agreement and the issuance of the Company Shares and Company Options. This
Agreement is a valid and binding obligation of the Company enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, moratorium, and other laws of general application affecting the
enforcement of creditors' rights and by the availability of equitable remedies.
C. VALID ISSUANCE OF SHARES. The Company Shares, when issued in
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compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable, and will be free of any liens or encumbrances imposed by
the Company; provided, however, that the Company shares will be subject to
restrictions on transfer under this Agreement and state and federal securities
laws as set forth herein, and as may be required by future changes in such laws.
D. VALID ISSUANCE OF OPTIONS. The Company Options, when issued in
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compliance with the provisions of this Agreement, will be validly granted.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS AND OPTIONHOLDERS.
Each Shareholder and Optionholder represents and warrants, severally but
not jointly, to the Company as follows:
A. CAPACITY. Such Shareholder or Optionholder has full legal
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capacity, power and authority to execute, deliver, and perform his, her or its
obligations under this Agreement, and, if an individual, is at least 21 years of
age.
B. OWNERSHIP OF STOCK; VESTING TITLE. Such Shareholder owns of
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record and beneficially only such number of MTC Domestic Shares as indicated
opposite such Shareholder's name on Schedule A attached hereto, with full right
and authority to deliver such shares hereunder, and upon delivery of such shares
and of one or more stock powers with respect to such Shares hereunder, the
Company will receive good, valid and marketable title thereto, free and clear of
all liens or encumbrances, and not subject to any agreements or understandings
among any persons with respect to the voting or transfer of such shares.
C. OWNERSHIP OF OPTIONS; VESTING TITLE. Such Optionholder owns of
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record and beneficially only such number of MTC Domestic Options as indicated
opposite such Optionholder's name on Schedule B attached hereto, with full right
and authority to deliver such options hereunder, and upon delivery of such
shares and options hereunder, the Company will receive good, valid and
marketable title thereto, free and clear of all liens or encumbrances.
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D. ABILITY TO PROTECT OWN INTEREST. Such Shareholder or
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Optionholder has a preexisting personal or business relationship with the
Company or one or more of its directors of officers or controlling persons, or,
by reason of such Shareholder's or Optionholder's business or financial
experience, the business or financial experience of such Shareholder's or
Optionholder's professional advisors (who are not affiliated with or compensated
by the Company or any of their affiliates) or the business or financial
experience of such Shareholder's or Optionholder's purchaser representative,
such Shareholder or Optionholder has the capacity to protect its own interest in
connection with the MTC Domestic Exchange.
E. ACCESS TO INFORMATION. Such Shareholder or Optionholder (or, if
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applicable, such Shareholder's or Optionholder's purchaser representative) has
received and read a copy of that Confidential Private Placement Offering
Exchange Memorandum dated as of June ___, 1996, and has had an opportunity to
discuss the Company's business, management and financial affairs with its
management and to ask questions of officers of the Company, which questions were
answered to its satisfaction. It understands that such discussions with
management, as well as any written information issued by the Company, were
intended to describe certain aspects of the Company's business and prospects but
were not a thorough or exhaustive description. The foregoing, however, does not
limit or modify the representations and warranties of the Company in Section 3
hereof or the right of the Shareholders or Optionholders to rely thereon.
F. RELIANCE. In deciding to enter into and consummate the
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transactions contemplated hereby, such Shareholder or Optionholder has not
relied, as to tax, securities and other legal matters, on the advice that such
Shareholder or Optionholder has received from the Company or any of its
attorneys or representatives, but only on the advice of such Shareholder's or
Optionholder's own advisors and experts.
G. INVESTMENT INTENT. The Company Shares to be received by such
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Shareholder and Company Options to be received by such Optionholder will be
acquired for such Shareholder's or Optionholder's own account, for investment
and not with a view to, or for resale in connection with, any distribution or
public offering thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). Such Shareholder or Optionholder furthermore has
no current commitment or obligation, contingent or otherwise, to anyone other
than the Company pursuant to the terms hereof to dispose of the Company Shares
or Company Options and has no current plan or intent to dispose of the Company
Shares or Company Options.
H. NO VIOLATION. The execution and delivery of this Agreement and
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the consummation of the transactions contemplated hereby will not result in the
breach of any term of, or constitute a default under, any contract, agreement,
commitment, indenture, mortgage, note or other instrument or obligation to which
such Shareholder or Optionholder, or any of such Shareholder's MTC Domestic
Shares, or Optionholder's MTC Domestic Options, may be bound.
I. BINDING OBLIGATION. This Agreement has been duly executed and
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delivered by such Shareholder or Optionholder and constitutes a legal, valid and
binding obligation of such Shareholder or Optionholder, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency and other laws affecting the enforcement of creditors' rights and by
the availability of equitable remedies.
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5. CONDITIONS TO THE COMPANY'S OBLIGATION TO CLOSE.
The Company's obligation to issue the Company Shares and Company
Options at the Closing is subject to the fulfillment to the Company's
satisfaction on or prior to the Closing Date of the following conditions, any of
which may be waived by the Company in its sole discretion:
A. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
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warranties made by the Shareholders and Optionholders in Section 4 hereof shall
be true and correct when made and shall be true and correct on the Closing Date
with the same force and effect as if they had been made on and as of said date.
B. TENDER. The Shareholders shall have tendered all of the
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outstanding MTC Domestic Shares and stock powers and the Optionholders shall
have tendered all of the outstanding MTC Domestic Options.
C. CONSENTS AND WAIVERS. The Company shall have obtained any and
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all consents, permits and waivers necessary or appropriate for consummation of
the transactions contemplated by this Agreement.
D. PERCENTAGE MINIMUM. This Agreement shall have been signed by
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Shareholders holding at least 90% of the outstanding MTC Domestic Shares and by
all Optionholders, and certificates evidencing such shares and option agreements
evidencing such options, accompanied by duly executed stock powers, shall have
been delivered to the Company at or prior to the Closing.
6. PUBLIC OFFERING LOCK-UP AND RESTRICTIVE LEGENDS.
A. LOCK-UP. In connection with the first underwritten public
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registration of the Company's securities, each Shareholder and Optionholder
agrees, upon the request of the Company or the underwriters managing such
underwritten offering of the Company's securities, not to sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise dispose of any
Company Shares or Company Options without the prior written consent of the
Company and such underwriters, as the case may be, for a period of time, not to
exceed one hundred eighty (180) days from the effective date of such
registration; provided that all executive officers, directors and 5% or greater
shareholders of the Company enter into similar agreements. Such agreement shall
be in writing in the form reasonably satisfactory to the Company and such
underwriter. The Company may impose stop-transfer instructions with respect to
the shares subject to the foregoing restrictions until the end of said 180-day
period.
B. RESTRICTIVE LEGENDS. Each instrument evidencing the Company
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Shares or the Company Options which the Investor may purchase hereunder and any
other securities issued upon any stock split, stock dividend, recapitalization,
merger, consolidation or similar event (unless no longer required in the opinion
of the counsel for the Company) shall be imprinted with legends substantially in
the following form as well as any additional legend(s) as may be required by the
Department of Corporations pursuant to any qualification or "fairness hearing":
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED OR SOLD WITHOUT REGISTRATION UNDER THE ACT UNLESS THE CORPORATION
RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION, THAT AN
EXEMPTION
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FROM SUCH REGISTRATION IS AVAILABLE OR SUCH REGISTRATION IS NOT REQUIRED
PURSUANT TO REGULATION S UNDER THE ACT.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER SET FORTH IN THAT CERTAIN JUNE ___, 1996, COMMON
STOCK AND OPTION EXCHANGE AGREEMENT BETWEEN THE ORIGINAL HOLDER HEREOF AND
THE CORPORATION.
The Company shall be entitled to enter stop transfer notices on its transfer
books with respect to the Company Shares during periods when transfers are
restricted under the terms of this Agreement.
C. POOLING. Each Shareholder and Optionholder will not, within the
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thirty (30) days prior to the effective date of the Closing, sell, transfer or
otherwise dispose of, or reduce its interest in or risk relating to, any shares
of MTC Domestic or the Company which it owns. In addition, each Shareholder and
Optionholder will not sell, transfer or otherwise dispose of, or reduce its
interest in or risk relating to, any shares of the Company's stock issued
hereunder in a manner which might prevent treating the transactions contemplated
hereunder as poolable transactions for accounting purposes.
7. PIGGYBACK REGISTRATION.
A. THE CORPORATION'S OBLIGATION TO REGISTER. If the Company at any
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time proposes to register any of its securities under the Act (other than a
registration effected solely to implement an employee benefit plan, a
transaction to which Rule 145 of the Commission is applicable or any other form
or type of registration in which "Registrable Securities" (as defined below)
cannot be included pursuant to Commission regulation, rule or practice), then
all Shareholder parties and Optionholder parties to this Agreement, as well as
all NetSource Interactive shareholders and optionholders under the NetSource
Merger and all shareholders and optionholders under the MTC International
Exchange shall receive written notice from the Company (the "Company Notice") of
its intention to make such registration (all common stock issued pursuant to
such transactions and all common stock issuable under options which were issued
pursuant to such transactions are referred to herein as "Registrable
Securities"). If such registration is proposed to be on a form which permits
inclusion of the Registrable Securities, then upon the written request of any
holders of the Registrable Securities given within ten (10) days after
transmittal by the Company to such holders of the Company Notice, the Company
will, subject to the limits contained in this Section, use its reasonable
efforts to cause such Registrable Securities of said requesting holders to be
registered under the Act, all to the extent requisite to permit such sale or
other disposition by such holders of the Registrable Securities so registered.
B. LIMITATIONS\CUTBACKS. The right of any such holder to request
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inclusion in the registration pursuant to this Section 7 shall terminate (i)
upon the fourth anniversary date of the Closing or (ii) at such time that all
shares of Registrable Securities held or entitled to be held upon conversion by
such holder may be publicly sold under Rule 144 or any applicable exemption or
registration statement during any 90-day period. Furthermore, notwithstanding
any other provision of this Section, if the underwriter managing such
registration notifies the holders of Registrable Securities in writing that
market or economic conditions limit the amount of securities which may
reasonably be expected to be sold or that inclusion of such Registrable
Securities would jeopardize the success of the offering, then the Company may
exclude all or any portion of such Registrable Securities; provided, however,
that such cutback shall be pro rata among all holders desiring to participate in
such registration based on the number of shares of Registrable Securities held
by such holders.
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C. FURTHER DOCUMENTS. Any holder of Registrable Securities
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desiring to participate in a registration under this Section 7 shall enter into
such further agreements, including indemnification and customary underwriting
agreements, as the Company and the managing underwriter shall reasonably
require.
7. MISCELLANEOUS
A. GOVERNING LAW. The Agreement shall be governed in all respects
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by the laws of the State of California.
B. SURVIVAL. The representations, warranties, covenants and
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agreements made herein shall survive the Closing of the transactions
contemplated hereby.
C. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
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herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
D. FURTHER ACTS. The parties hereto shall perform all further acts
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and execute and deliver all documents that may be reasonably necessary to carry
out their obligations hereunder and the purposes of this Agreement, including
but not limited to restricting transferability of the Company Shares so as to
permit the MTC Domestic Exchange to qualify for "pooling of interests"
accounting treatment.
E. CHANGES AND TERMINATION. Subject to Section 2.3, neither this
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Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the party
against whom enforcement of the change, waiver, discharge
or termination is sought.
F. ENTIRE AGREEMENT. This Agreement and the other documents
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delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
G. BROKERS
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(i) Each party represents and warrants to the other that it has
dealt with no brokers with respect to the MTC Domestic Exchange contemplated
hereby. No party has done any acts, had any negotiations or conversations, or
made any agreements or promises which will in any way create or give rise to any
obligation or liability for the payment of any fee, charge, commission or other
compensation to any party with respect to the transactions contemplated hereby.
(ii) The Shareholders, the Optionholders and the Company agree to
forever indemnify, defend and save harmless (on an after-tax basis) each other
of, from and against any and all claims or suits for compensation, commission or
otherwise which may be asserted or made by any broker, person or entity as a
result of any dealing by the indemnifying party or its representatives with such
other broker, person or entity, including, without limitation, all costs,
losses, liabilities, damages and expenses (including, without limitation,
attorneys' fees and disbursements) related thereto. This subsection shall
survive the Closing or any sooner expiration or termination of this Agreement.
H. CONFIDENTIALITY. All information furnished to any Shareholder or
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Optionholder by the Company shall be treated confidentially by the Shareholder
or Optionholder. Each Shareholder and Optionholder hereby agrees that, except
as required by law, it will not release or cause or permit to be released any
press notices, publicity (oral or written) or advertising promotion or otherwise
announce or disclose or cause or permit to be announced or disclosed, in any
manner whatsoever, the fact that negotiation have taken place, or the terms and
conditions or substance of the transactions contemplated herein without first
obtaining the express written consent of the Company. The obligation to keep
such information confidential shall survive the termination of this Agreement
for three years. Notwithstanding anything to the contrary set forth in this
subsection, (i) Shareholders and Optionholders shall be permitted to provide
confidentially all materials and information furnished by the Company to their
attorneys and legal counsel, who shall likewise keep such information
confidential and (ii) such confidentiality restrictions hereunder shall not
apply to information furnished pursuant to this Exchange Agreement which has
entered the public domain through no fault of such Shareholder or Optionholder.
I. NOTICES, ETC. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered personally,
mailed by registered or certified mail, postage prepaid, return receipt
requested, or sent via internationally recognized overnight courier, addressed
(a) if to a Shareholder or Optionholder, to such Shareholder's or Optionholder's
address et forth, respectively, on Schedule A or Schedule B attached hereto,
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or at such other address as such Shareholder or Optionholder shall have
furnished to the Company in writing, or (b) if to the Company, to the address of
the Company set forth at the beginning of this Agreement, or to such other
address as the Company shall have furnished to each Shareholder and Optionholder
in writing. Notices that are mailed shall be deemed given one (1) day after
deposit in the United States mail.
J. SEVERABILITY. In case any provision of this Agreement shall be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
K. EXPENSES. The Company, the Shareholders, and the Optionholders
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shall each bear their own expenses and legal fees in connection with this
Agreement and the transactions contemplated hereby and thereby.
L. TITLES AND SUBTITLES. The titles of the sections and subsections
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of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
M. ADDITIONAL CONSENTS. Each Shareholder and Optionholder hereby
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consents to the terms of the transactions set forth in that Confidential Private
Placement Offering Exchange Memorandum dated as of June ___, 1996.
N. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
constitute one instrument.
O. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
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power or remedy accruing to the Company shall impair any such right, power or
remedy of the company, nor shall it be construed to be a waiver of any breach or
default under this Agreement, or any acquiescence therein, or any waiver of or
acquiescence in any similar breach or default thereafter occurring; nor shall
any delay or omission to exercise any right, power or remedy accruing to the
Company or any waiver by the company of any single breach or default by any
other party be deemed a waiver by the Company of any other right, power
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or remedy or breach or default theretofore or thereafter occurring. All
remedies, either under this Agreement, or by law otherwise afforded to the
Company shall be cumulative and not alternative.
P. ARBITRATION. BY EXECUTING THIS AGREEMENT, THE PARTIES ARE
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AGREEING TO HAVE ANY DISPUTE WHICH IS DESCRIBED IN THIS SUBSECTION DECIDED BY
NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND ARE GIVING UP ANY RIGHTS
THEY MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY
EXECUTING THIS AGREEMENT, THE PARTIES ARE GIVING UP JUDICIAL RIGHTS TO DISCOVERY
AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE ARBITRATION
PROVISION; IF ANY OF THE PARTIES REFUSES TO SUBMIT TO ARBITRATION IT MAY BE
COMPELLED TO ARBITRATE UNDER THE CALIFORNIA CODE OF CIVIL PROCEDURE. A PARTY'S
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. BY EXECUTING THIS
AGREEMENT, EACH OF THE PARTIES ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THE
FOREGOING AND HAS AGREED TO SUBMIT DISPUTES DESCRIBED IN THIS SUBSECTION TO
NEUTRAL ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement or the breach hereof shall be settled by arbitration, which
arbitration shall be conducted as follows: A party seeking arbitration shall
promptly send notice of arbitration to the party. The place of arbitration
hereunder shall be San Francisco, California. Within ten (10) days of the date
of such notice, each party shall appoint its arbitrator. An arbitrator shall be
a duly qualified professional with five years of experience in the field of law.
Within fifteen (15) day of their appointment, the two arbitrators shall meet and
select a third arbitrator. The three arbitrators shall then meet and otherwise
confer as they shall deem necessary to agree on a determination of the issue
before them. In any dispute submitted to arbitration, the decision of two out
of the three arbitrators shall be binding and conclusive upon the parties hereto
and shall be enforceable in a court having jurisdiction over the parties. The
Rules of the American Arbitration Association for commercial arbitration shall
be applied to any arbitration hereunder as to all matters of procedure,
provided, however, that the parties may obtain discovery in aid of the
arbitration. Arbitration costs shall be borne as follows: one-half of the
arbitration costs shall be borne by the Shareholders and Optionholders who are
adverse parties to the Company in the Arbitration, and the other half of the
arbitration costs shall be borne by the Company, except that each party shall be
responsible for its own expenses and costs of any witnesses selected by such
party.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
May 31, 1996.
NETSOURCE INTERNATIONAL
TELECOMMUNICATIONS, INC.
a Delaware corporation
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By:______________________________________________
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Title: President and Chief Executive Officer
SHAREHOLDERS:
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SCHEDULE A
MTC DOMESTIC SHAREHOLDERS
-------------------------
Number of Number of
MTC Domestic NetSource International
Name of Shareholder Shares Held Shares To Be Exchanged
---------------------------- ------------ -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1,300,000 109,457
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 700,000 58,939
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 50,000 4,210
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 10,000 ▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 10,000 842
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE B
MTC DOMESTIC OPTIONHOLDERS
--------------------------
Number NetSource International
Name of Shares Option Shares Exchanged
====================== ========= =======================
▇▇▇▇▇▇ ▇▇▇▇▇ 79,785 6,718
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 50,000 4,210
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇