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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 9)*
INCOMNET, INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
453365207
----------------------------------------------
(CUSIP Number)
John P. Casey, 10220 River Road, Suite 115, Potomac, MD 20854 (301) 983-5000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
August 21, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d- 7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
SCHEDULE 13D
<TABLE>
<S> <C>
- --------------------------- -------------------------
CUSIP NO. 453365207 PAGE 2 OF 5 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JOHN P. CASEY - SS# ###-##-####
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(E) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
6,035,504*
--------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 102,000 (children's trust; 1/3 voting trustee)
OWNED BY EACH
REPORTING
PERSON WITH
--------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
6,035,504*
--------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
102,000 (children's trust; 1/3 voting trustee)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,137,504*
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
*
- -------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.69% (See Item 5)*
- -------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
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</TABLE>
* Does not include shares of common stock issuable on the conversion of 725.473
shares of Series A Convertible Preferred Stock of Incomnet and 872.738 shares of
Series B Convertible Preferred Stock of Incomnet (collectively, the "Preferred
Shares") which Mr. Casey has an option (the "Option") to purchase, exercisable
at any time prior to October 14, 1998. Although the Preferred Shares are
convertible at any time, and the current owners of the Preferred Shares
attempted to convert them in June 1998, Incomnet does not currently have
sufficient authorized but unissued shares of common stock to effect the
conversion of the Preferred Shares into common stock. According to Incomnet's
Form 10-Q filed August 14, 1998, if the Preferred Shares were converted in June,
1998, they would have converted into 8,459,970 shares of Incomnet common stock.
See Items 4 and 5 concerning the Preferred Shares.
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Page 3 of 5 Pages
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This Statement is the ninth Amendment to the Statement on Schedule 13D filed
on April 7, 1998 (as previously amended, the "Statement") with the Securities
and Exchange Commission by Mr. John P. Casey in connection with his beneficial
ownership of shares (the "Shares") of common stock of Incomnet, Inc. ("Incomnet"
or the "Issuer"). All capitalized terms used and not defined in this Amendment
No. 9 have the meanings given to them in the Statement.
Item 4. Purpose of Transaction.
On August 21, 1998, Mr. Casey was told that the Board of Directors of
Incomnet approved a term sheet containing the material terms of a proposed
change of board control arrangement with Mr. Casey (the "Proposed Change of
Board Control Arrangement"). THE FOLLOWING DESCRIPTION OF THE PROPOSED CHANGE OF
BOARD CONTROL ARRANGEMENT IS SUBJECT IN ITS ENTIRETY TO THE PROVISIONS OF THE
TERM SHEET WHICH IS ATTACHED AS EXHIBIT 1 TO THIS SCHEDULE 13D. The terms set
forth in the Proposed Change of Board Control Arrangement are intended to form
the basis of a definitive agreement (the "Definitive Change of Board Control
Agreement").
The closing of a Definitive Change of Control Agreement will be subject
to a number of conditions. One of the conditions to such a closing will be
resolution of the recent joint demands presented by WorldCom Network Services,
Inc. ("WorldCom"), NTC's primary long distance carrier on its own behalf and on
behalf of First Bank & Trust of Newport Beach ("First Bank"), NTC's secured
creditor, concerning NTC's default in its payment obligations to WorldCom and
First Bank (collectively the "Secured Creditors"). According to documents filed
by Incomnet with the Securities and Exchange Commission ("Incomnet's SEC
Filings"), NTC and WorldCom are parties to a carrier contract which extends
through February, 2003 (the "WorldCom Contract") under which NTC has contracted
to purchase a designated volume of telephone time. As of February, 1996,
WorldCom was given a security interest in NTC's customer base, customer list and
contract rights associated with providing services to the customer base to
secure NTC's payment obligations under the WorldCom Contract. In early 1998, NTC
defaulted on its payment obligations for services provided under the WorldCom
Contract. WorldCom had agreed to extend credit to NTC pending the proposed sale
of NTC which was terminated in July, 1998. Since the termination of the proposed
sale of NTC, NTC has been in negotiations with WorldCom concerning the pending
defaults. Also according to Incomnet's SEC Filings, NTC and First Bank are
parties to a business loan agreement under which First Bank was owed
approximately $8.1 million as of June 30, 1998 (the "First Bank Loan"). The
First Bank Loan is secured by NTC's accounts receivable and certain other
assets. NTC is currently in default under the First Bank Loan.
The current demands by the Secured Creditors include, among other
things, that (i) substantial payment be immediately made to the Secured
Creditors, (ii) Mr. Casey make various personal financial commitments
guaranteeing the obligations of NTC to the Secured Creditors, and (iii) new
management be installed at NTC that is acceptable to a consultant of the Secured
Creditors. Mr. Casey is unwilling to agree to the demands of WorldCom and First
Bank as currently presented (and he is not obligated by the Proposed Change of
Board Control Arrangements to meet such demands). The recent demands were a
follow-on to WorldCom's recent notice to NTC that, unless NTC and WorldCom could
reach a satisfactory resolution of NTC's default under the WorldCom Contract,
WorldCom would disconnect NTC's telecommunications services as of August 28,
1998.
Mr. Casey anticipates that meetings will be scheduled with WorldCom next
week at which he will attempt to reach an understanding with WorldCom as to its
requirements concerning NTC's payment obligations and related matters. No
assurances can be given that: (i) Mr. Casey will be successful in reaching an
understanding with the Secured Creditors as to their demands; (ii) the Proposed
Change of Board Control Arrangement will ultimately result in a definitive
agreement; (iii) any Definitive Change of Board Control Agreement will be
reached on the same terms as set forth in the Proposed Change of Board Control
Arrangement; or (iv) the transactions contemplated in the Proposed Change of
Board Control Arrangement will be consummated.
The Proposed Change of Board Control Arrangement contemplates the
resignation of all but one of the current directors of Incomnet and the
appointment of a four-person board consisting of Mr. Casey, two designees of Mr.
Casey and Mr. Howard Silverman, who is a member of the current Incomnet board.
The Proposed Change of Board Control Arrangement also contemplates a
modification of Mr. Casey's previously announced intention to offer securities
issuable upon exercise of his option on preferred shares (the "Optioned
Securities"). Under the Proposed Change of Board Control Arrangement, Mr. Casey
will be obligated to exercise the Option prior to its scheduled expiration. The
Proposed Change of Board Control Arrangement further contemplates that Incomnet,
if it is financially and legally able to do so, will be obligated to purchase
the Optioned Securities within one year following the exercise of the Optioned
Securities (the "Redemption Period") at a purchase price representing no actual
profit to Mr. Casey. If Incomnet is unable to purchase the Optioned Securities
during the Redemption Period, Mr. Casey will be obligated to proceed to offer
the common stock underlying the Optioned Securities on a pro rata basis to
shareholders of record as of a date to be determined in the future. Such common
stock will be offered at a per share price representing no actual profit to Mr.
Casey.
The Proposed Change of Board Control Arrangement also contemplates that
upon closing the Definitive Change of Board Control Agreement, Mr. Casey will be
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Page 4 of 5 Pages
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obligated to use commercially reasonable efforts to obtain new financing from
third parties for Incomnet. No assurances can be given that Mr. Casey will be
successful in obtaining new financing for Incomnet.
Various other conditions to completing transactions contemplated under
the Definitive Change of Board Control Agreement include the execution of the
Definitive Change of Board Control Agreement, settlement of the securities class
action lawsuit against Incomnet, and submission of an information statement to
all shareholders under Section 14(f) of the Act which, among other things, will
provide information about each of the new board members who will take office
following the proposed change of board control. It is anticipated that the
parties will need at least two weeks following signing the Definitive Change of
Board Control Agreement to satisfy the conditions to be set forth in that
agreement.
If the transactions contemplated under the Definitive Change of Board
Control Agreement are completed, Mr. Casey currently anticipates that Incomnet
will hold a shareholders meeting within the next few months to (among other
things) elect directors and approve an increase in the number of authorized
common shares of Incomnet.
Item 5. Interest In Securities of the Issuer.
(a) Mr. Casey is the beneficial owner of 6,137,504 shares of common
stock and may also be deemed to be the beneficial owner of common stock issuable
on conversion of the 1,598.211 Preferred Shares by reason of his right to
acquire the Preferred Shares on the exercise of the Option.
According to Incomnet's Form 10-Q filed August 14, 1998, if Incomnet had
sufficient authorized but unissued common stock in June, 1998, to effect the
conversion of the tendered preferred shares, the 1,598.211 Preferred Shares
would have been converted into 8,459,970 shares of common stock. If Mr. Casey
were to exercise the Option and convert the Preferred Shares (assuming
sufficient authorized stock were available) Mr. Casey would own 14,597,474
shares of common stock or approximately 47% of the estimated 31,387,806 shares
of common stock that would be outstanding at such time. The future estimate of
31,387,806 shares outstanding assumes that in addition to the 20 million common
shares currently outstanding: (i) a conversion of the 1,598.211 Preferred Shares
by Mr. Casey; (ii) the issuance of 1,568,571 of the To-Be-Issued Common to
holders of Series A and Series B preferred stock who currently have not
rescinded their attempted conversions in June, 1998 and (iii) and the conversion
into 1,359,265 shares of common stock of 243.59 shares of Preferred Stock that
were also tendered for conversion on June 10-11, 1998 (but not converted due to
the unavailability of authorized but unissued shares of common stock) and which
are currently held by persons who are not a party to the Option. The above
estimated percentage and number of shares of common stock that would be owned
Mr. Casey also assumes that Mr. Casey would be able to convert the Preferred
Shares at the price per share in effect when the holders of the Preferred Shares
attempted to convert on June 10-11, 1998. See also, Item 4.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
See Item 4.
Item 7. Material to be Filed as Exhibits.
Exhibit 1. Proposed Change of Board Control Arrangement dated August 21, 1998.
<PAGE> 5
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Page 5 of 5 Pages
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
/s/ JOHN P. CASEY
Date: August 21, 1998 ------------------------------------------
John P. Casey
<PAGE> 1
EXHIBIT 1
INCOMNET, INC.
TERM SHEET
August 21, 1998
Set forth below are certain terms relating to the resignation of certain
directors of Incomnet, Inc. (the "Company"), the appointment of their successors
and certain other matters concerning corporate governance of the Company. The
terms set forth below are intended to reflect the mutual understanding of the
Company, its current Board of Directors (the "Current Board") and John P. Casey
("Casey"). This term sheet is not intended to be, and does not constitute, a
binding or enforceable agreement, but is merely an outline of intention to
facilitate the negotiation and preparation of a definitive agreement (the
"Agreement") and related documents.
Board Representation and Related
Matters .......................... Board Members. Messrs. Horowitz, Lesem,
Reznick, Wilstein and Ms. Zivitz will
agree to resign as directors of the
Company upon satisfaction of certain
conditions (the "Change of Board Control
Conditions"). Mr. Silverman will remain as
a director. Mr. Casey, John Hill, Jr.
(Chief Financial Officer of Quince
Associates) and another person to be
designated by Mr. Casey (the "Casey Board
Designee") will be appointed as successors
to the resigning directors upon
satisfaction of the Change of Board
Control Conditions. The Casey Board
Designee will be disclosed to the Current
Board after execution of the Agreement and
before filing the Information Statement
described below. The Current Board will
have the right to approve of the Casey
Board Designee, such approval not to be
unreasonably withheld. Mr. Silverman, Mr.
Casey, Mr. Hill and the Casey Board
Designee are referred to herein as the
"New Board." The completion of the change
in the composition of the Company's Board
of Directors is sometimes referred to
herein as the "Change of Board Control."
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<PAGE> 2
Board Committee Matters. The New Board
will have an Audit Committee, a
Compensation Committee and committee to
resolve any issues relating to
transactions involving Mr. Casey (the
"Disinterested Director Committee"), each
of which will have at least three members.
Mr. Silverman will be one of the members
on each of these committees.
Reelection of Mr. Silverman. The Company
will nominate Mr. Silverman for reelection
to the Board of Directors at the next
annual meeting of shareholders of the
Company. There will be no obligation of
the Company to nominate Mr. Silverman for
reelection to the Board of Directors after
the next annual meeting of shareholders.
There will be no rights granted to any
party to designate the successor to Mr.
Silverman should he cease being a director
of the Company for any reason (whether
through voluntary resignation, removal for
cause, death or disability).
Change of Board Control
Conditions ....................... The Agreement will identify the following
Change of Board Control Conditions that
must be satisfied prior to the Change of
Board Control (the date on which the last
condition is satisfied or waived is
referred to herein as the "Change of Board
Control Date"): (i) a settlement agreement
must have been entered into among the
named parties to the class action lawsuit
(the "Class Action Lawsuit") pending
against the Company on terms reasonably
acceptable to Casey (Casey condition);
(ii) the Company must have in place
directors and officers insurance coverage
on terms acceptable to Casey (Casey
condition); (iii) the Autonomy Agreement
(described below) must have been rescinded
(Casey condition); (iv) the Supermajority
Bylaw Provision (described below) must
have been rescinded (Casey condition); (v)
the consent or agreement of the Cohen
Group (defined below) approving of the
increase in the authorized number of
shares of the Company's Common Stock must
have been obtained (Casey and Company
Condition); (vi) the Casey Board Designee
and any new executive officers identified
by the New Board
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to have positions with the Company or NTC
immediately following the Change of Board
Control (who must be identified in the
Information Statement referred to in item
(viii) below) must have been disclosed to,
and approved by, the Current Board, such
approval not to be unreasonably withheld
(Company condition); (vii) WorldCom must
have informed NTC in writing of WorldCom's
withdrawal of its notice of intent to
disconnect services and be on such terms
with NTC that are satisfactory to Mr.
Casey (Casey condition); (viii) the
ten-day waiting period following mailing
of an Information Statement (the
"Information Statement") pursuant to Rule
14f-1 under the Securities Exchange Act of
1934 must have lapsed (Casey and Company
condition). The Agreement will provide for
a date that the conditions are anticipated
to be satisfied, after which the Company
or Mr. Casey may elect to terminate the
Agreement.
New Incomnet Financing............ Mr. Casey will agree to use commercially
reasonable efforts to secure additional
equity or debt financing for the Company
and cause the New Board to consider all
options available to the Company to
improve its liquidity consistent with its
needs.
Rescission of Autonomy Agreement .. The Company will agree to cause the
agreement dated January 28, 1997 (the
"Autonomy Agreement"), between the Company
and NTC to be terminated promptly and no
later than three days following the date
the Agreement is entered into among the
parties.
Rescission of Supermajority
Bylaw............................. On November 5, 1997, the Company's Board
of Directors adopted an amendment to the
Company's Bylaws (the "Supermajority Bylaw
Provision") requiring that all formal
resolutions, acts and decisions of the
Board of Directors must be approved by a
majority vote plus one director. The
Company will rescind the Supermajority
Bylaw Provision by adopting an amendment
to the Bylaws to eliminate the
Supermajority Bylaw Provision, such
rescission to
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be effective on or prior to the Change of
Board Control Date.
Assignment of Cohen Option by Casey
to the Company ................... Mr. Casey owns an option to purchase
1,598.211 shares of Company Preferred
Stock (the "Cohen Preferred") from the
Cohen Group (the "Cohen Option") for $2.3
million plus accrued dividends and
penalties (the "Cohen Exercise Price") on
or before October 13, 1998. If the Company
is financially able to purchase or redeem
the Cohen Preferred at the Cohen Exercise
Price prior to the termination of the
Cohen Option and the Cohen Group consents
to the assignment, Mr. Casey will assign
the Cohen Option to the Company on
condition that the Company exercise the
Cohen Option and redeem the Cohen
Preferred at the Cohen Exercise Price. For
purposes of determining whether the
Company is financially able to redeem the
Cohen Preferred, the Company must have
cash on hand necessary to undertake such a
transaction taking into account its other
cash requirements and also meet all
requirements under applicable law,
including Section 500 et seq. of the
California General Corporation Law.
Increase in Authorized Number of
Common Shares..................... The Company will agree (and Mr. Casey will
agree to use commercially reasonable
efforts) to cause a Proxy Statement to be
prepared and mailed to the Company's
shareholders soliciting their approval to
amend the Company's Articles of
Incorporation to increase the number of
authorized shares of Common Stock to 50
million shares (the "Amendment to
Articles").
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Exercise of Cohen Option by Casey;
Redemption or Conversion of Cohen
Preferred ........................ If the Company is not financially able to
redeem the Cohen Preferred prior to the
termination of the Cohen Option (or the
Cohen Group does not consent to such
assignment), Mr. Casey will be obligated
to exercise the Cohen Option prior to its
termination. For the one-year period
(beginning on the date the Cohen Option is
exercised by Mr. Casey and ending on the
one-year anniversary of that exercise
date, the "Redemption Period"), Mr. Casey
will be obligated to hold the Cohen
Preferred until the Company is financially
able to redeem the Cohen Preferred. At
such time as the Company is financially
able to redeem the Cohen Preferred, Mr.
Casey will assign and transfer the Cohen
Preferred to the Company and, upon such
transfer, the Company will reimburse Mr.
Casey for all of his reasonable costs and
expenses (including the Cohen Exercise
Price, the carrying costs of financing
such Exercise Price and reasonable
attorneys' fees) relating to the Cohen
Option and the exercise thereof.
In the event the Company is not
financially able to redeem the Cohen
Preferred before expiration of the
Redemption Period, as soon as practicable
after the later of the approval by
shareholders of the Amendment to Articles
or the expiration of the Redemption
Period, Mr. Casey will tender the Cohen
Preferred for conversion and the Company
will convert the Cohen Preferred into that
number of Company common shares that the
holders of Cohen Preferred would have been
entitled to receive (based on an average
conversion price of approximately $0.19
per share) had the Company been able to
convert the Cohen Preferred when tendered
for conversion on June 10-11, 1998 (the
"Cohen Common"). The Agreement will
provide the actual number of common shares
that the holders of Cohen Preferred are
entitled to receive.
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Agreement to Conduct
Offering ......................... In the event the Cohen Preferred is not
redeemed by the Company before expiration
of the Redemption Period and the Cohen
Preferred is converted into shares of
Common Stock, Mr. Casey will agree to
offer the Cohen Common on a pro rata basis
to the Company's shareholders (including
Mr. Casey) as of a certain record date to
be announced by the Company ("Record
Holders"). The purchase price for the
Cohen Common will be the sum of (i) the
Exercise Price, (ii) Mr. Casey's actual
carrying costs for purchasing and
exercising the Cohen Option (approximately
18% interest rate from the date of each
payment) and (iii) Mr. Casey's reasonable
legal fees and costs attributable to the
purchase of the Cohen Preferred and the
offering of the Cohen Common. To the
extent that the Cohen Common is
undersubscribed for during the initial
round of the offering, Mr. Casey will
agree to make a second round offer on a
pro rata basis to the subscribing Record
Holders. If the offering is not fully
subscribed after the second round, Mr.
Casey will be entitled to offer the
balance of the Cohen Common to the parties
designated by him (including Mr. Casey) in
his sole discretion.
Expenses.......................... In addition to the costs and expenses
related to the Cohen Preferred, the
Company agrees to reimburse Mr. Casey for
any reasonable costs and expenses
(including reasonable attorneys' fees)
incurred by him in connection with (a) the
settlement of the Class Action Lawsuit,
(b) any filings made by the Company or Mr.
Casey with the Securities and Exchange
Commission or any other regulatory agency
in connection with the Change of Board
Control, (c) the preparation of the
Information Statement, (d) obtaining
directors' and officers' insurance
coverage and (e) negotiating and preparing
this term sheet and the Agreement. Other
than the costs and expenses relating to
the Cohen Preferred and those matters
described in clauses (a) through (e)
above, (i) upon the approval of a majority
of the disinterested members of the New
Board (and without requiring
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<PAGE> 7
approval of the Company's shareholders),
the Company may reimburse Mr. Casey up to
$100,000 of costs and expenses incurred by
him on or after April 1, 1998 in
connection with due diligence concerning
the Company and its proposal to sell NTC
and the attempt to prevent such sale, the
Agreement and any related documentation
(collectively, the "Due Diligence Costs")
and (ii) upon the approval of the majority
of the disinterested members of the New
Board and the Company's disinterested
shareholders, the Company may reimburse
Mr. Casey for Due Diligence Costs in
excess of $100,000.
Stand-Still by Incomnet
and NTC Pending Change of Board
Control........................... From the date of the Agreement until the
Change of Board Control Date (the "Stand
Still Period"), unless Mr. Casey otherwise
consents, the Company will not prepare or
participate in any of the following or
permit any subsidiary (including NTC) to
do any of the following:
Organizational Documents. Amend any
organizational documents.
Extraordinary Transactions. Propose or
agree to enter into any extraordinary
corporate transaction (merger, sale of
assets, sale of securities or other
similar transaction, declaration of
dividend or adoption of shareholder rights
plan) or incur or agree to incur any
material liability (loans for borrowed
money or settlement of litigation).
Notwithstanding the foregoing, the Company
may (i) sell up to $2.5 million shares of
Rapid Cast, Inc. ("Rapid Cast") at no less
than $0.60 per share provided that the
Company retains at least 8.1 million
shares of Rapid Cast, (ii) enter into the
sublease at 2811 East Main under the terms
set forth in the term sheet dated July 17,
1998, and (iii) obtain debt financing on
terms substantially similar to those
previously proposed by a financial
institution in July 1998. In addition, if
the Company or any subsidiary proposes to
enter into short-term financing
arrangements while these standstill
provisions are in effect, Mr. Casey has
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<PAGE> 8
agreed that his consent permitting the
Company to do so will not be unreasonably
withheld.
Compensation. Increase or agree to
increase compensation payable to
directors, employees or consultants or
enter into severance or termination
arrangements affecting directors,
consultants or employees or amend any
employee plans or grant any options,
warrants or rights to purchase securities
of the Company or NTC.
Miscellaneous Covenants............. The Company will agree to use commercially
reasonable efforts to (i) provide
reasonable access to its insurance brokers
and carriers; (ii) provide access to its
accountants and legal counsel (including
counsel to NTC), (iii) make any necessary
filing with, and obtain any necessary
approvals of, the FCC; (iv) provide a copy
of a list of all shareholders of record as
of the date of the Agreement, such list to
be provided within three business days
after execution of the Agreement; (v)
provide copies of all documents relating
to the Company and its subsidiaries
reasonably requested by Casey or his legal
counsel; and (vi) prepare and file the
Information Statement, Proxy Statement and
any other necessary regulatory filings.
Casey will agree to use commercially
reasonable efforts to (a) obtain the
consent or approval of the Cohen Group to
the proposed increase in the number of
authorized shares of the Company's Common
Stock and (b) assist in the preparation of
the Information Statement, Proxy Statement
and any other necessary regulatory
filings.
Mutual Releases;
D&O Insurance....................... The parties will enter into mutual
releases relating to Change of Board
Control matters that are customary for
this type of agreement. The Company also
will agree to customary provisions
regarding the continuation of directors'
and officers' insurance coverage, subject
to customary limitations.
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