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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities and Exchange Act of 1934
(Amendment No. 1)*
INTEK Diversified Corporation
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
458134-10-3
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(CUSIP Number)
Christopher J. Hubbert, Kohrman Jackson & Krantz,
1375 East 9th Street, Cleveland, Ohio 44114, 216-736-7204
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
June 16, 1995
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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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) 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).
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<TABLE>
SCHEDULE 13D
CUSIP NO. 458134-10-3
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Roamer One Holdings, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
N/A
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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
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 3,600,000
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 3,600,000
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PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,600,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.4%
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14 TYPE OF REPORTING PERSON*
CO
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</TABLE>
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CUSIP No. 458134-10-3
The Schedule 13D of Roamer One Holdings, Inc. ("Roamer") filed on October
3, 1994 (the "Schedule 13D") is amended as follows:
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 of the Schedule 13D is amended by replacing the first sentence with
the following:
This statement is being filed by Roamer One Holdings, Inc., a Delaware
corporation ("Roamer"), whose principal business is providing engineering,
design, construction and management expertise to licenses for specialized
mobile radio systems. On November 14, 1994, Roamer changed its name from
Roamer One, Inc. to Roamer One Holdings, Inc.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 of Schedule 13D is amended by adding the following:
As of June 16, 1995, Roamer entered into an option agreement (the "Option
Agreement") with Simmonds Communications, Ltd. ("SCL"), pursuant to which SCL
paid Roamer $1,800,000 for a five year option to purchase up to 1,800,000
shares of Common Stock of INTEK for $1.50 per share. SCL may exercise the
option at any time and from time to time for five years from the date of grant.
In connection with the Option Agreement, as of June 16, 1995, Roamer and
SCL also entered into a pledge agreement (the "Pledge Agreement"), pursuant to
which Roamer pledged 1,800,000 shares of Common Stock of INTEK to SCL in
support of its obligations under the Option Agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
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Exhibit 4.E -- Option Agreement
Exhibit 4.F -- Pledge Agreement
</TABLE>
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CUSIP No. 458134-10-3
Signature
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.
June 26, 1995 ROAMER HOLDINGS, INC.
/s/ Steven L. Wasserman
-----------------------------------
(Signature)
Steven L. Wasserman/Secretary
-----------------------------------
(Name/Title)
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EXHIBIT INDEX
<TABLE>
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Exhibit 4.E -- Option Agreement
Exhibit 4.F -- Pledge Agreement
</TABLE>
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EXHIBIT E
THIS OPTION AND THE OPTIONED SHARES GRANTED HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED OR
SOLD IN THE UNITED STATES OR TO U.S. PERSONS UNLESS THE SECURITIES
ARE REGISTERED UNDER THE SECURITIES ACT OF 1933 OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE.
OPTION AGREEMENT
TO: Simmonds Communications, Ltd.
5255 Yonge Street, Suite 1050
Willowdale, Ontario, Canada
M2N 6P4
1. Grant of Option
In consideration of the payment by you today to the undersigned of U.S.
$1,800,000 and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the undersigned), the
undersigned grants to you, subject to the terms and conditions hereof, an
irrevocable option (the "Option") to purchase up to 1,800,000 shares of common
stock (the "Optioned Shares") in the capital of INTEK Diversified
Corporation("INTEK"), at a price of U.S. $1.50 per Optioned Share. The Option
with respect to the Optioned Shares shall be exercisable at any time and from
time to time during the period commencing on the date hereof up to and
including, but not after 4:00 p.m. E.D.T. on the fifth (5th) anniversary of the
date set out below. The period during which the Option is exercisable as
aforesaid is herein referred to as the "Option Period". Following the
expiration of the Option Period, the Option shall forthwith terminate and be of
no further force or effect as to such of the Optioned Shares in respect of
which the Option has not then been exercised.
2. Exercise of Option
(a) Subject to the terms and conditions hereof, this Option shall be
exercisable at any time and from time to time during the Option Period by you
giving written notice (a "Notice of Exercise") to the undersigned by personal
delivery to the address specified below or by transmittal by telecopier at the
number specified below or to such other address or telecopier number as the
undersigned may from time to time notify you in writing, which Notice of
Exercise shall specify therein the number of Optioned Shares in respect of
which the Option is being exercised. Upon delivery of the Notice of Exercise
as aforesaid, the undersigned (hereinafter in this Paragraph 2 referred to as
the "Vendor") will sell and you or your assigns (hereinafter in this Paragraph
2 referred to as the "Purchaser") shall purchase the number of Optioned Shares
set forth in the Notice of Exercise (the "Purchased Shares"). The said sale
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shall be closed at 10:00 a.m. on the fifth (5th) business day in both Toronto
and Cleveland following delivery of the Notice of Exercise at the offices of
the Purchaser or at such other time and place outside of the United States as
is agreed between the Purchaser and the Vendor (such place and time are for the
purposes of subparagraph 2(b) referred to as the "Place of Closing" and the
"Time of Closing", respectively). Nothing herein contained or done pursuant
hereto shall obligate you to purchase and/or pay for any Optioned Shares except
those Optioned Shares in respect of which you shall have exercised the Option
in the manner hereinbefore provided.
(b) At the Place of Closing at the Time of Closing:
(i) the Purchase shall deliver to the Vendor a certified check
payable to or to the order of the Vendor in the amount of the
purchase price payable by the Purchaser for the Purchased
Shares; and
(ii) the Vendor shall deliver to the Purchaser:
(A) a receipt for the certified check referred to in clause
2(b)(i);
(B) a share certificate or certificates representing the
Purchased Shares duly endorsed in blank for transfer (with
signatures guaranteed) which shall contain a legend to the
effect that "The shares of common stock represented by this
certificate have not been registered under the Securities
Act of 1933 and have been offered and sold pursuant to
Regulation S promulgated under the Securities Act of 1933.
They may not be offered or sold prior to June 16, 1996
except in accordance with the terms of this Option
Agreement dated as of June 16, 1995, and after June 16,
1996 unless the shares are registered under the Securities
Act of 1933 or an exemption from the registration
requirements of the Securities Act of 1933 is available";
(C) a representation and warranty from the Vendor:
(1) that the Vendor is, at the Time of Closing, the
beneficial owner of the Purchased Shares with good and
marketable title thereto, free and clear of all
mortgages, liens, charges, security interests, adverse
claims, pledges, encumbrances, options, rights,
privileges, agreements and demands whatsoever (except
those created pursuant to the Pledge Agreement
referred to in Paragraph 4 hereof);
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(2) that the sale by the Vendor to the Purchaser does not
contravene any applicable laws, regulations or
policies of securities regulatory authorities in the
United States or Canada, nor any of the By-Laws,
regulations or policies of the National Association of
Securities Dealers Automated Quotation System or any
other applicable stock exchange; and
(3) that, in circumstances where part or all of the
Purchased Shares are restricted shares of common
stock, the Vendor does not, after taking into account
the sale of Purchased Shares, beneficially own any
registered and freely tradeable shares of common stock
in the capital of INTEK.
3. If All Shares Not Purchased
If you or your assigns exercise the Option in respect of a lesser number
of Optioned Shares than the total number of Optioned Shares referred to in this
Agreement, you or your assigns shall retain the Option to purchase during the
Option Period the remaining Optioned Shares referred to in this Agreement but
not purchased, subject to the terms and conditions set forth herein.
4. Security
As security for the performance by the undersigned of its obligations
herein, including without limitation, its obligation to deliver Optioned Shares
in accordance with the terms hereof, the undersigned hereby agrees to pledge in
your favor 1,800,000 common shares of INTEK with respect to which the
representations and warranties of the Vendor specified in subparagraph
2(b)(ii)(C) are correct today and to deposit with you or your agent share
certificate(s) duly endorsed in blank (with signature guaranteed) representing
such pledged shares, all in accordance with the terms of a pledge agreement
(the "Pledge Agreement"), the form of which is annexed hereto as Schedule A.
5. Subdivision, Consolidation and Reclassification of Underlying Shares
(a) In the event of any subdivision or redivision of the common stock of
INTEK at any time prior to the expiration of the Option Period into a greater
number of common stock, the undersigned shall deliver at the time of any
exercise thereafter of the Option, such additional number of shares of common
stock as would have resulted from such subdivision or redivision if such
exercise of the Option could have been and had been effected immediately prior
to the date of such subdivision, redivision or other change.
(b) In the event of any consolidation or other change of the common stock
of INTEK at any time prior to the expiration of the Option Period into a lesser
number of common stock, the number of shares of common stock of INTEK
deliverable by the undersigned on any exercise thereafter of the Option shall
be reduced to such number of shares of common stock as would have resulted from
such consolidation or other change if such exercise of the Option could have
been and had been effected immediately prior to the date of such consolidation
or other change.
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(c) In the event of any reclassification of the common stock of INTEK or
a capital reorganization of INTEK other than as described in subparagraphs 5(a)
or (b) or a consolidation, amalgamation or merger of INTEK with or into any
other body corporate at any time prior to the expiration of the Option Period,
the undersigned shall deliver at the time of any exercise thereafter of the
Option, in lieu of the number of Optioned Shares otherwise deliverable to you
upon such exercise, the number of shares of common stock or other securities of
INTEK or of the body corporate resulting from such merger, amalgamation or
consolidation that you would have been entitled to receive upon such
reclassification, capital reorganization, consolidation, amalgamation or
merger, if such exercise of the Option could have been and had been effected
immediately prior to the date of such reclassification, capital reorganization,
consolidation, amalgamation or merger.
(d) On the happening of each and every event described in subparagraphs
5(a) to 5(c) above, the applicable provisions of this Agreement and the Option
created hereby shall be deemed to be amended accordingly.
6. Representations and Warranties
(a) The undersigned represents and warrants in your favor, and
acknowledges that you are relying on such representations and warranties in
paying the amount referred to in Paragraph 1 hereof and in entering into this
Agreement and the Pledge Agreement, namely: (i) that it is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware; (ii) that is has the corporate power and authority to execute and
deliver this Agreement and the Pledge Agreement and to perform its obligations
hereunder and thereunder; (iii) that it has taken all necessary corporate
action to authorize its execution, delivery and performance of this Agreement
and the Pledge Agreement; (iv) that the execution and delivery of this
Agreement and the Pledge Agreement and the consummation of the transactions
contemplated hereby and thereby does not and will not (A) conflict with, or
violate or result in a breach of, any law, regulation, order, writ, injunction,
decree, determination or award of any court, governmental department, board,
agency or instrumentality or arbitrator applicable to it; or (B) conflict with,
or violate or result in a breach of, any of the terms, conditions or provisions
of its articles of incorporation, by-laws or other similar charter documents,
or any other agreement or instrument to which it is a party; (v) that no
authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality or any third party is or will be necessary
for, or in connection with, the execution or delivery of this Agreement or the
Pledge Agreement or for the performance of its obligations hereunder and
thereunder; (vi) that there is no litigation or governmental proceeding or
investigation pending or, to its knowledge threatened, against it which calls
or might call into question its validity or any action taken or to be taken
pursuant hereto or thereto nor to its knowledge has there occurred any event or
does there exist any condition on the basis of which any such litigation,
governmental proceeding or investigation might properly be instituted; (vii)
that the granting of the Option to purchase the Optioned Shares and the sale of
the Optioned Shares by the undersigned does not, and will not contravene any
applicable laws, regulations or policies of securities regulatory authorities
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in the United States or Canada, nor any of the by-laws, regulations or
securities related policies of the National Association of Securities Dealers
Automated Quotation System or any other applicable stock exchange; and (viii)
that the undersigned is the beneficial owner of 3,600,000 unregistered shares
of common stock in the capital of INTEK.
(b) you represent and warrant in favor of the undersigned, namely:
(i) that the offer to purchase the Optioned Shares was received in
Canada and the undersigned accepted such offer in Canada; (ii) that
the execution of this Agreement occurred in Canada; (iii) that you
are not a U.S. Person as the term is defined in Rule 902(c) of
Regulation S under the Securities Act of 1933; (iv) that you are
purchasing the Option for your own account and not on behalf of or
for the account of any U.S. Person, you have not made any
prearrangement and do not intend to transfer the Option or the
Optioned Shares to a U.S. Person or to return the Optioned Shares to
the United States securities markets (which includes short sales in
the United States within the restricted period to be covered by
delivery of the Optioned Shares), and you are not purchasing the
Option or the Optioned Shares as part of any plan or scheme to evade
the registration requirements of the Securities Act of 1933; (v) that
you understand that the shares have not been registered under the
Securities Act of 1933 and that the offering restrictions applicable
to the Option or the Optioned Shares restricts you from selling any
of the Option or Optioned Shares to any person in the United States
or to any U.S. Person or for the account or benefit of any U.S.
Person during a one-year restricted period commencing upon completion
of the sale; (vi) that all offers and sales of the Option or the
Optioned Shares by you, if any, in the United States or to any U.S.
Person or for the account or benefit of any U.S. Person or otherwise
prior to the expiration of the restricted period shall be made only
pursuant to a registration of the Option or the Optioned Shares under
the Securities Act of 1933 or a valid exemption from registration
thereunder; and (vii) that you did not receive any printed offering
materials or attend any meetings in connection with the Option or
Optioned Shares, nor did you participate in any other activity
undertaken for the purpose of, or which could reasonably be expected
to have the effect of, conditioning the market for the Option or the
Optioned Shares.
7. Filings
Each of you and the undersigned agrees to make, in a timely fashion, all
necessary registrations, filings or notifications as may be required by
applicable securities regulatory bodies or stock exchanges.
8. Assignment, Etc.
This Agreement shall be binding upon and enure to the benefit of our
successors and assigns except that the undersigned shall not have the right to
assign its rights or obligations hereunder or any interest herein, but you
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shall have, after one year after the date hereof, the right to assign this
Agreement and the Option hereby created, in whole or in part, without the
consent of the undersigned, provided that such assignment shall not be made to
any party who, by virtue of exercising its rights under this Agreement, would
contravene any applicable securities laws, regulations or policies in the
United States and Canada, nor any of the by-laws, regulations or securities
related policies of the National Association of Securities Dealers Automated
Quotation System or any other applicable stock exchange.
Prior to one year after the date hereof, you shall have the right to
assign this Agreement and the Option hereby created, in whole or in part,
without the consent of the undersigned, provided that such assignment is made
pursuant to an effective registration statement under the Securities Act of
1933 or pursuant to an opinion of counsel reasonably satisfactory to INTEK that
the Option and Optioned Shares may be transferred in accordance with the
requirements of the Securities Act of 1933. You acknowledge that stop transfer
instructions shall be given to INTEK's transfer agents with respect to the
Optioned Shares that are acquired by you prior to June 16, 1996 after such
shares have been registered in your name. Such stop transfer restrictions
shall be lifted at the earlier of (i) June 16, 1996; (ii) the transfer of the
shares pursuant to a registration statement declared effective under the
Securities Act of 1933; and (iii) the provisions of an opinion of counsel
reasonably satisfactory to INTEK that the shares may be transferred in
accordance with the requirements of the Securities Act of 1933 without an
effective registration statement under the Securities Act of 1933.
9. Time of Essence
Time shall be of the essence hereof.
10. Governing Law
This Agreement and our relationship hereunder shall be governed by the
laws of the State of Ohio and you and the undersigned attorn to the
jurisdiction of the courts of the State of Ohio.
[ THIS SPACE INTENTIONALLY LEFT BLANK]
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11. U.S. Funds
All dollar amounts referred to herein shall refer to lawful money of the
United States.
This Agreement has been executed in Toronto, Canada and is dated as of
this 16th day of June, 1995.
ROAMER ONE HOLDINGS, INC.
c/o Kohrman Jackson & Krantz
Attention: Steven L. Wasserman, Esq.
1375 East Ninth Street
One Cleveland Center - 20th Floor
Cleveland, Ohio 44114
Telephone: 216-696-8700
Facsimile: 216-621-6536
By:/S/ Nicholas R. Wilson
-----------------------------
Nicholas R. Wilson, President
Accepted and agreed to this 16th day of June, 1995
SIMMONDS COMMUNICATIONS, LTD.
5255 Yonge Street, Suite 1050
Willowdale, Ontario, Canada
M2N 6P4
Telephone: 416-221-1900
Facsimile: 416-221-3800
By:/s/ John G. Simmonds
-----------------------------
Its:__________________________________
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EXHIBIT F
PLEDGE AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 16th day of June, 1995.
B E T W E E N:
ROAMER ONE HOLDINGS, INC.
a corporation incorporated under the
laws of the State of Ohio,
(hereinafter referred to as the "Vendor"),
OF THE FIRST PART
- and -
SIMMONDS COMMUNICATIONS LTD.,
a corporation incorporated under the laws
of the Province of Ontario
(hereinafter referred to as "Simmonds"),
OF THE SECOND PART,
- and -
THE R-M TRUST COMPANY,
a trust company duly authorized to carry
on business in the Province of Ontario,
(hereinafter referred to as "R-M Trust"),
OF THE THIRD PART.
WHEREAS, pursuant to the terms of an option agreement (the "Option
Agreement") dated as of June 16th, 1995, between Vendor and Simmonds, Vendor
granted Simmonds the option to purchase up to 1,800,000 shares of common stock
of Intek Diversified Corporation ("Intek") beneficially owned by Vendor;
AND WHEREAS, as security for the due and punctual performance of all
obligations of any kind or nature now or at any time and from time to time
owing by Vendor to Simmonds pursuant to or by virtue of the Option Agreement,
Vendor has agreed to pledge 1,800,000 shares of common stock in the capital of
Intek (the "Share Collateral") to Simmonds and to enter into this Agreement and
to perform its obligations hereunder;
AND WHEREAS R-M Trust has agreed to act as collateral agent for
Simmonds and to hold certificates representing the Share Collateral as agent
for Simmonds pursuant to the terms and conditions of this Agreement;
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NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises hereof and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each of the parties), the
parties hereby covenant and agree as follows:
ARTICLE 1
1. INTERPRETATION
1.1 Definitions: In this Agreement and any amendments hereto, the
following terms shall have the following meanings, respectively:
(a) "Act" means the Personal Property Security Act (Ontario), as now
in effect, or any legislation that may be substituted therefor,
and as the same may from time to time hereafter be amended;
(b) "Business Day" means a day of the year other than a Saturday, a
Sunday or a day observed as a statutory holiday in Ontario or
Ohio;
(c) "Obligations" means all liabilities and obligations of any kind
or nature now or at any time and from time to time owing by
Vendor to Simmonds pursuant to or by virtue of this Agreement
and the Option Agreement;
(d) "Collateral" means the Share Collateral and any other securities
or instruments deposited or delivered by Vendor with or to
Simmonds or R-M Trust hereunder;
(e) "Event of Default" has the meaning ascribed thereto in Section
6.1;
(f) "Proceeds" means identifiable or traceable personal property in
any form (including money) derived, directly or indirectly from
any dealing with the Collateral or proceeds therefrom and
includes any payment that indemnifies or compensates for loss or
damage to the Collateral or Proceeds therefrom; and
(g) "Security Interest" has the meaning ascribed thereto in Section
2.1.
All capitalized terms which are not otherwise defined herein shall have the
meanings ascribed to them, respectively, in the Option Agreement.
1.2 United States Funds: Unless otherwise indicated, all dollar
amounts referred to herein shall refer to lawful money of the United States.
1.3 Headings, Etc.: The division of this Agreement into articles,
sections and subsections and other subdivisions and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation hereof.
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1.4 Rules of Construction: Unless the context otherwise requires,
(a) words importing the singular number only shall include the
plural and vice versa and words importing the use of either
gender shall include both genders and words importing
individuals shall include firms and corporations and vice versa;
and
(b) reference herein to any agreement, indenture or other instrument
in writing means such agreement, indenture or other instrument
in writing as amended, modified or supplemented from time to
time.
1.5 Governing Law: This Agreement shall be construed in accordance
with the laws of the Province of Ontario and shall be treated in all respects
as an Ontario contract.
1.6 Severability: If any provision herein contained is determined to
be void, voidable or unenforceable, in whole or in part, by a court of
competent jurisdiction, such determination shall not effect or impair and shall
be deemed not to effect or impair the validity of any other covenant or
provision herein contained and each such covenant and provision is hereby
declared to be separate, severable and distinct.
1.7 Time: Time shall be of the essence of this Agreement.
ARTICLE II
2. CREATION OF SECURITY INTEREST
2.1 Security Interest: As continuing security for the due and timely
performance by Vendor of the Obligations, Vendor hereby grants a security
interest in and pledges the Collateral to and in favor of Simmonds (the said
security interest and pledge of the Collateral being hereinafter referred to as
the "Security Interest"). Simmonds acknowledges that it has no rights in the
Collateral other than the Security Interest and its rights hereunder and under
the Option Agreement.
2.2 Proceeds: The Security Interest shall extend to the Proceeds.
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2.3 Attachment and Value: Vendor acknowledges and agrees that the
Security Interest is intended to attach to the Collateral upon the date of
execution of this Agreement.
ARTICLE III
3. PROVISIONS RELATING TO COLLATERAL
3.1 Collateral Agent, Deposit of Certificates and Escrow Procedures:
Simmonds hereby appoints R-M Trust to act, and R-M Trust hereby agrees to act,
as agent on behalf of Simmonds to hold the share certificates evidencing the
Share Collateral as agent for and on behalf of Simmonds. Vendor delivers
herewith to R-M Trust share certificates evidencing 1,800,000 shares of common
stock of Intek, which share certificates shall be held by R-M Trust as agent
for Simmonds.
3.2 Transferability: All Collateral shall be freely transferable by
delivery or shall be accompanied by any and all endorsements, powers of
attorney or instruments necessary to permit the transfer, disposition and, if
applicable, the re-registration of the Collateral as may be required as a
result of Simmonds exercising its remedies under subsection 6.2(c). Each of the
parties hereto acknowledges that the certificates evidencing the Share
Collateral are being held by R-M Trust as agent for Simmonds to perfect the
Security Interest created by this Agreement in favor of Simmonds and that R-M
Trust may also hold such certificates on behalf of any assignee(s) of Simmonds
to perfect such assignee's(s') Security Interest.
3.3 Distributions and Receipts on Collateral: Unless and until an
Event of Default shall have occurred and be continuing, Vendor shall be
entitled to receive all interest, dividends or other like payments or
distributions (whether in cash, security (as such term is defined in subsection
1(1) of the Act) or other property) at any time payable on or with respect to
the Collateral and unless and until an Event of Default shall have occurred and
be continuing, all such interest, dividends or other like payments or
distributions at any time payable to Vendor on or with respect to the
Collateral received by Simmonds or R-M Trust shall forthwith be paid or
delivered by Simmonds or R-M Trust to Vendor or as it may direct, free and
clear of the Security Interest.
3.4 Voting, Etc. of Collateral: Unless and until an Event of Default
shall have occurred and be continuing, Vendor shall be entitled to vote the
Collateral and to give consents, waivers, notices and ratifications, and to
take other action in respect of the Collateral, provided however, that no vote
shall be cast or consent, waiver, notice or ratification given or action taken
which would impair the Collateral or be inconsistent with or violate any
provision of this Agreement or the Option Agreement.
3.5 Rights of Simmonds: It is understood and agreed that Simmonds,
at any time and from time to time when an Event of Default shall have occurred
and be continuing with respect to the Obligations, may enforce any and all of
the rights of Vendor with respect to the Collateral, including those rights
described in Section 3.4.
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<PAGE> 5
ARTICLE IV
4. POSSESSION OF COLLATERAL
4.1 Duty of Care: R-M Trust shall not have any duty of care
whatsoever with respect to the Collateral other than to use the same care in
the custody and preservation thereof as it would with its own property. Neither
Simmonds nor R-M Trust need take any steps of any nature to defend or preserve
the rights of Vendor therein against the claims or demands of others provided
that Simmonds or R-M Trust, as the case may be, shall immediately give notice
to Vendor of any such claim or demand of which it becomes aware and shall
provide Vendor with a reasonable opportunity to defend or contest the same.
4.2 R-M Trust as Collateral Agent: R-M Trust agrees to act, in its
capacity as agent on behalf of Simmonds, upon such instructions with respect to
the shares held by R-M Trust which form part of the Share Collateral, as
Simmonds may, in its sole discretion, direct from time to time provided that
such instructions do not violate the terms of this Agreement and provided that:
(a) R-M Trust shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or
validity of any security deposited with it;
(b) R-M Trust shall be protected in acting upon any written notice,
request, waiver, consent, receipt, statutory declaration or
other paper or document furnished to it, and signed by Simmonds,
not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and
acceptability of any information therein contained;
(c) except for acts of negligence or misconduct, R-M Trust shall not
be liable for any act done or step taken or omitted by it in
good faith;
(d) R-M Trust shall have no duties except those which are expressly
set forth herein, and it shall not be bound by any notice of
claim or demand with respect thereto, or any waiver,
modification, amendment, termination or rescission of this
Agreement, unless received in writing, and signed by the parties
hereto and, if R-M Trust's duties herein are affected, unless it
shall have given its prior written consent thereto;
(e) R-M Trust may, at its own discretion, consult with counsel to
the parties hereto and seek instructions with respect to any
matter pertaining to its duties hereunder; and
(f) in the event of a dispute between the parties with respect to
the matters herein, R-M Trust may, at its option, deposit all
documents and certificates held by it hereunder with a court of
competent jurisdiction and seek directions from such court.
4.3 Collateral Held in Ontario: Subject to release pursuant to
section 4.4, R-M Trust shall hold the Collateral in Ontario.
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<PAGE> 6
4.4 Release of Collateral: R-M Trust, Simmonds and Vendor agree that
R-M Trust shall not release the Collateral, or any part thereof, to Simmonds or
any assignee unless (a) the Option (as defined in the Option Agreement) has
been exercised and payment therefor made, and only to the extent of such
exercise and payment, or (b) an Event of Default has occurred which has not
been cured within any applicable grace period.
4.5 Indemnification of R-M Trust: Each of Vendor and Simmonds agrees
to indemnify and save harmless R-M Trust from and against any and all
liabilities and claims made against it in respect of any action or thing it may
take or do or omit to take or do in connection herewith except as a result of
R-M Trust's wilful neglect or default hereunder. This indemnity shall survive
the termination of this Agreement.
4.6 Consent of Vendor: Vendor consents to the appointment of R-M
Trust to act as collateral agent on behalf of Simmonds and to the appointment
by Simmonds of R-M Trust as agent to hold the Collateral on behalf of Simmonds
or any assignee(s) of Simmonds.
ARTICLE V
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties: Vendor hereby represents and
warrants to Simmonds as follows and acknowledges that Simmonds is relying on
such representations and warranties in advancing funds to Vendor, namely, that:
(a) it has not entered into any agreement with or granted to any
person, firm or corporation any option or any right or privilege
capable of becoming an agreement or option to acquire any right
or interest in any of the Share Collateral (other than as
created by this Agreement and the Option Agreement);
(b) all of the Share Collateral is beneficially owned by Vendor free
and clear of all liens, charges, pledges and encumbrances (other
than as created by this Agreement and the Option Agreement);
(c) it has the full right and legal capacity to enter into this
Agreement and to grant to Simmonds the Security Interest in the
Collateral;
(d) this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of it
enforceable against it in accordance with its terms;
(e) the pledge and delivery of the Share Collateral pursuant to this
Agreement creates a valid first pledge of and a perfected
security interest in such Share
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<PAGE> 7
Collateral and the Proceeds, subject to no prior pledge, lien,
mortgage, hypothecation, security interest, charge, option or
encumbrance; and
(f) the chief executive office of the Vendor is located at 1431 West
117th Street, Cleveland, Ohio, 44107.
5.2 Covenants of Vendor: Vendor hereby covenants and agrees with
Simmonds as follows:
(a) in the event of any subdivision, redivision or other change of
the shares of common stock of Intek at any time prior to the
termination of this Agreement into a greater number of shares of
common stock, Vendor shall, as soon as practicable following
receipt thereof, deliver to R-M Trust (or as Simmonds may
otherwise direct) such additional number of shares of common
stock as would have resulted had such subdivision, redivision or
other change occurred immediately prior to the execution of this
Agreement; and
(b) in the event of any reclassification of the common stock of
Intek or a capital reorganization of Intek other than as
described in Section 5.2(a) or 5.3 or a consolidation,
amalgamation or merger of Intek with or into any other body
corporate at any time prior to the termination of this
Agreement, Vendor shall deliver to R-M Trust (or as Simmonds may
otherwise direct), in substitution for the Share Collateral, the
number of shares of common stock or other securities of Intek or
of the body corporate resulting from such merger, amalgamation
or consolidation that R-M Trust, as agent on behalf of Simmonds
would have been entitled to hold under this Agreement if such
reclassification, capital reorganization, consolidation,
amalgamation or merger had been effected immediately prior to
the execution of this Agreement.
5.3 Covenant of R-M Trust: In the event of any consolidation or
other change of the common stock of Intek at any time prior to the termination
of this Agreement into a lesser number of shares of common stock, the number of
shares of common stock of Intek held by R-M Trust, as agent on behalf of
Simmonds, shall be reduced to such number of shares of common stock as would
have resulted had such consolidation or other change occurred immediately prior
to the execution of this Agreement. R-M Trust, as agent on behalf of Simmonds
shall, as soon as practicable following receipt thereof, deliver to Vendor
certificates representing the number of excess shares as a result of such
consolidation or other change.
ARTICLE VI
6. DEFAULT AND REMEDIES
6.1 Events of Default: The occurrence of any one or more of the
following events (each such event being herein referred to as an "Event of
<PAGE>
<PAGE> 8
Default") shall constitute a default under this Agreement:
(a) if Vendor shall neglect to observe or perform any covenant or
condition herein contained or in the Option Agreement on its
part to be observed or performed and, after notice in writing
has been given by Simmonds (or its assignee(s)) to Vendor
specifying such default and requiring Vendor to cure the same,
Vendor fails to cure such default within a period of ten
Business Days;
(b) if a decree or order of a court having jurisdiction is entered
adjudging Vendor a bankrupt or insolvent, or approving as
properly filed a petition seeking the winding-up of Vendor
under the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding Up Act
(Canada) or any other bankruptcy, insolvency or analogous laws
of any other applicable jurisdiction or process of execution
against, or against any substantial part of the property of,
Vendor or ordering the winding-up or liquidation of its affairs,
and any such decree or order continues unstayed and in effect
for a period of 15 days and which adversely affects in any
material manner Simmonds' ability to obtain performance by
Vendor of its obligations under the Option Agreement;
(c) if a resolution is passed for the winding-up or liquidation of
Vendor or if Vendor institutes proceedings to be adjudicated a
bankrupt or insolvent, or consents to the institution of
bankruptcy or insolvency proceedings against it, or files a
petition or answer or consent seeking reorganization or relief
under the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding Up Act
(Canada) or any other bankruptcy, insolvency or analogous laws
of any other applicable jurisdiction or consents to the filing
of such petition or to the appointment of a receiver of, or a
substantial part of the property of Vendor or makes a general
assignment for the benefit of creditors, or admits in writing
its inability to pay its debts generally as they become due or
takes corporate action in furtherance of any of the aforesaid
purposes and provided any such actions or events adversely
affect in any material manner Simmonds' ability to obtain
performance by Vendor of its obligations under the Option
Agreement; and
(d) if any representation or warranty made by Vendor in this
Agreement or the Option Agreement or in any certificate or other
document at any time delivered hereunder or thereunder to
Simmonds shall prove incorrect or misleading in any material
respect on and as of the date thereof until the Expiry Date (as
defined in the Option Agreement).
6.2 Remedies: If an Event of Default occurs under Section 6. 1, the
Security Interest shall immediately become enforceable and Simmonds may,
<PAGE>
<PAGE> 9
forthwith or at any time thereafter (and, subject to Sections 3.2 and 3.3., in
the event that Simmonds shall proceed under any of subsections 6.2(b) to 6.2(h)
inclusive, upon ten Business Days' notice to Vendor), except in the event such
Event of Default shall have been cured prior to any action by Simmonds, under
this Section 6.2 or except as provided by applicable law or this Agreement,
take any one or more of the following actions:
(a) declare any or all of the Obligations to be immediately due and
payable by giving notice in writing thereof to Vendor and, in
such event, such Obligations shall be forthwith due and owing by
Vendor to Simmonds;
(b) commence legal action to enforce payment or performance of the
Obligations;
(c) subject to any applicable law, dispose of, or direct R-M Trust
to dispose of, the Collateral by private sale, public sale or
otherwise upon such terms and conditions as Simmonds may
determine; provided that Simmonds may apply and
allocate any proceeds arising from the realization of the
Collateral to the Obligations in such manner as Simmonds in its
absolute discretion, shall deem appropriate;
(d) elect to retain the Collateral or any portion thereof
irrevocably by giving written notice of such election to Vendor;
(e) exercise any or all of the rights and privileges attaching to
any of the Collateral as if Simmonds were the absolute owner
thereof;
(f) file such proofs of claims or other documents as may be
necessary or desirable to have its claim lodged in any
bankruptcy, winding-up, liquidation, arrangement, dissolution or
other proceedings (voluntary or otherwise) relating to Vendor;
(g) where the Collateral has been disposed of by Simmonds or R-M
Trust as provided herein, commence legal action against Vendor
for the difference, if any, between (i) any damages suffered by
Simmonds or its assigns resulting directly or indirectly from
the violation by Vendor of the Option Agreement or this
Agreement; and (ii) the proceeds received by Simmonds on a
disposition of the Collateral or Proceeds (hereinafter referred
to as the "Deficiency"); or
(h) take any other action, suit, remedy or proceeding authorized or
permitted by this Agreement or by law or equity.
6.3 Sale of Collateral: Any sale referred to in subsection 6.2(c)
may be a sale of all or any portion of the Collateral and may be by way of
public auction, public tender, private contract or otherwise. Simmonds shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account in compliance with
<PAGE> 10
Regulation S, Rule 144 or Rule 144 A under the Securities Act of 1933 or any
other applicable exemption available under such Act, and upon consummation of
any such sale Simmonds shall have the right to assign, transfer, endorse and
deliver to the purchaser or purchasers thereof, the Collateral or any interest
therein so sold, provided that, subject to Sections 6.4 and 6.8, Simmonds shall
give to Vendor written notice three Business Days prior to the date of such
sale. Any sale pursuant to this Section 6.3 may be made with or without any
special condition as to the upset price, reserve bid, title or evidence of
title or other matter and may be made from time to time as Simmonds, in its
sole discretion deems fit, with power to vary or rescind any such sale or buy
in at any public sale and resell without being answerable for any loss.
Simmonds may sell, or direct R-M Trust to sell, the Collateral for a
consideration payable by installments either with or without taking security
for the payment of such deeds, assurances and conveyances of the Collateral and
give receipts for the purchase money, and any such sale shall be a perpetual
bar, both at law and in equity, against Vendor and all those claiming
Collateral sold by, from, through or under Vendor. In the event of any sale
pursuant to this Section 6.3, Vendor hereby covenants and agrees to provide all
information, certificates and consents required under applicable securities
laws or under the rules, by-laws or policies of the exchange(s) on which any of
the Collateral is listed and posted for trading to permit the due and valid
sale of the Collateral in compliance with such laws, rules, by-laws or
policies.
6.4 Commercially Reasonable Disposition: Vendor agrees that a sale
at arm's length to a financial institution or any other person, with or without
public advertisement or the services of a broker or other dealer in securities,
for the best price obtainable from a canvass of three potential arm's length
purchasers will be a commercially reasonable method of disposition of the
Collateral in the circumstances. Vendor further agrees that such canvass may be
conducted by telephone during the course of five Business Days and that the
Collateral is such that Simmonds has reasonable grounds to believe that the
Collateral may speedily decline in value and, therefore, that no notice of such
intended disposition otherwise required by any applicable legislation need be
given to Vendor. Vendor further understands that compliance with the Securities
Act of 1933, as now or hereafter in effect, or any similar statute hereafter
enacted analogous in purpose or effect (such Act and any such similar statute
as from time to time in effect being hereinafter called the "Federal Securities
Laws"), may very strictly limit the course of conduct of Simmonds if Simmonds
were to attempt to dispose of all or any part of the Collateral and may also
limit the extent to which or the manner in which any subsequent transferee of
any Collateral may dispose of the same. There may be other legal restrictions
or limitations affecting in any attempt to dispose of all or any part of the
Collateral under applicable Blue Sky or other state securities laws or similar
laws analogous in purpose or effect. Simmonds shall not incur any liability as
a result of the sale of the Collateral or any part thereof at any private sale
which Vendor hereby agrees is commercially reasonable. Vendor hereby waives any
claims against Simmonds arising by reason of the fact that the price at which
the Collateral may have been sold at such sale was less than the price which
might have been obtained at a public sale or was less than the aggregate amount
of the Obligations. The provisions of this Section 6.4 shall not preclude any
<PAGE>
<PAGE> 11
sale or other disposition of the Collateral in any other manner which is
commercially reasonable.
6.5 Reasonable Expenses: Vendor shall pay to Simmonds on demand all
costs and expenses of Simmonds (including legal fees) incurred in exercising
its rights hereunder, which costs and expenses shall form part of the
Obligations, and shall be paid by Vendor to Simmonds, forthwith after demand
therefor shall have been made by Simmonds to Vendor together with interest from
and including the date of demand or, if Simmonds has taken steps to exercise
its rights under Section 6.2, from and including the date upon which the cost
or expense is incurred at a rate per annum that is equal to 1% in excess of the
prime rate of interest then quoted by Bank of Montreal for loans in Canadian
dollars to its commercial customers in Canada (the "Prime Rate"), payable
before and after demand, maturity, default and judgment, with interest on
amounts in default at the same rate. All such interest shall be payable on
demand, shall be determined daily and shall be compounded monthly in arrears on
the last day of each month. Payment of such interest shall be secured by the
Security Interest.
6.6 Deficiency: Where the Collateral has been disposed of by
Simmonds or R-M Trust as provided herein, the Deficiency shall be paid by
Vendor to Simmonds, forthwith after demand therefor shall have been made by
Simmonds to Vendor together with interest from and including the date upon
which the Deficiency arises at a rate per annum that is equal to 1% in excess
of the Prime Rate payable before and after demand, maturity, default and
judgment, with interest on amounts in default at the same rate. All such
interest shall be payable on demand, shall be determined daily and shall be
compounded monthly in arrears on the last day of each month. Payment of the
Deficiency together with such interest shall be secured by the Security
Interest.
6.7 Obligations of Simmonds: Simmonds shall not be under any
obligation, or be liable or accountable for any failure, to enforce payment or
performance of the Obligations or to exercise any of its rights and remedies
hereunder and shall not be under any obligation to institute proceedings for
any of such purposes.
6.8 Redemption of Collateral: At any time before Simmonds or R-M
Trust has disposed of the Collateral as provided for herein or before Simmonds
has elected, in the manner set out in subsection 6.2(d), to retain all or part
of the Collateral irrevocably, Vendor may redeem the Collateral by satisfying
all of its obligations and liabilities under the Option Agreement and this
Agreement.
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<PAGE> 12
ARTICLE VII
7. ACKNOWLEDGEMENTS BY VENDOR
7.1 Acknowledgements: Vendor hereby:
(a) acknowledges receipt of a copy of this Agreement;
(b) acknowledges and agrees that this Agreement and the rights and
obligations of Simmonds contained in the Option Agreement may be
assigned in whole or in part by Simmonds without notice or
consent and, in the event of any assignment, the assignee(s)
shall be entitled to all the rights and remedies, and subject to
the obligations, of Simmonds set forth in this Agreement and the
Option Agreement, provided that such assignment shall not be
made to any party who, by virtue of exercising its rights under
the Option Agreement, would contravene any applicable securities
laws, regulations or policies in the United States or Canada or
any of the by-laws, regulations or policies of the National
Association of Securities Dealers Automated Quotation System or
any other applicable stock exchange; and
(c) agrees not to assert against Simmonds or any assignee of
Simmonds, and the rights of Simmonds or any such assignee shall
not be subject to, any claim, defense, demand, set-off or
other right, whether at law or in equity, that
Vendor has or may have against Simmonds or any such assignee
under any agreement or instrument other than this Agreement or
the Option Agreement.
ARTICLE VIII
8. NOTICES AND SERVICE
8.1 Notices: Except as otherwise provided herein, any notice or
other document required or permitted to be given to any party shall be validly
given if delivered personally or sent by telecopy to any party at the following
address:
(a) if to Vendor:
Roamer One Holdings, Inc.
c/o Kohrman Jackson & Krantz
Attention: Steven L. Wasserman, Esq.
1375 East Ninth Street
One Cleveland Center - 20th Floor
Cleveland, Ohio 44114
Telephone: (216) 696-8700
Telecopy: (216) 621-6536
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<PAGE> 13
(b) if to Simmonds:
Simmonds Communications Ltd. 1050
5255 Yonge Street
Willowdale, Ontario
M2N 6P4
Telecopy: (416) 221-3800
Attention: David O'Kell
(c) if to R-M Trust:
The R-M Trust Company
393 University Avenue
5th Floor
Toronto, Ontario
M5G 2M7
Telecopy: (416) 813-4555
Attention: George Nagy
Any such notice or other document delivered personally or sent by telecopy
shall be deemed to have been received by and given on the date of such delivery
or telecopy (provided that it is received within the normal business hours of
the recipient and such day is a Business Day and, if not, on the next following
Business Day). Any party may at any time give notice to the other parties
hereto of any change of address in accordance with the foregoing provisions
hereof.
ARTICLE IX
9. WAIVER
9.1 Waiver by Simmonds: With respect to the Obligations, Simmonds
may, at any time by written notice delivered to Vendor, waive in whole or in
part any breach of this Agreement, any Event of Default or any rights and
remedies of Simmonds hereunder or otherwise and may grant extension of time or
other indulgences to, accept compositions from or grant releases and discharges
to Vendor in respect of the Collateral or otherwise deal with Vendor or with
the Collateral and any other security held by Simmonds, all as Simmonds may see
fit. Vendor hereby agrees that any such waiver shall not be a waiver of any
other or subsequent breach of this Agreement or Event of Default and that any
failure by Simmonds to exercise any of its rights or remedies hereunder or
otherwise shall in no way effect or impair Simmonds' Security Interest or the
rights and remedies of Simmonds hereunder or otherwise.
<PAGE>
<PAGE> 14
ARTICLE X
10. EFFECTIVE DATE AND TERMINATION
10.1 Effective Date: This Agreement shall become effective when it
shall have been executed by Vendor, R-M Trust and Simmonds. This Agreement and
the Security Interest are in addition to and not in substitution for any other
security granted by Vendor to Simmonds, whether before or after the execution
of this Agreement. The Security Interest shall be a general and continuing
security interest in respect of the Obligations and shall continue in full
force and effect until terminated as provided in Section 10.2.
10.2 Termination: This Agreement shall be terminated on the earlier
of (i) the completion of the purchase and sale of all of the Optioned Shares
(as that term is defined in the Option Agreement) in accordance with the terms
and conditions of the Option Agreement; and (ii) one Business Day after the
expiry of the Option Period (as that term is defined in the Option Agreement)
provided that, in either case, all of the Obligations have been fully satisfied
by Vendor. Upon and notwithstanding termination of this Agreement in accordance
with the provisions of this Section 10.2, each of Simmonds and R-M Trust shall,
at Simmonds' expense, deliver to Vendor possession of all Collateral or
remaining part thereof (unless all the Optioned Shares have been purchased by
Simmonds), make and do all such acts and things and execute and deliver all
such instruments, agreements and documents as Vendor shall consider reasonably
necessary or desirable to discharge the Security Interest, to release and
discharge the Collateral therefrom and to record such release and discharge in
all appropriate offices of public record.
ARTICLE XI
11. POWER OF ATTORNEY
11.1 Power of Attorney: Vendor irrevocably constitutes and
appoints Simmonds and its directors and officers holding office from time to
time as the true and lawful attorney of Vendor with full power of substitution
in the name of Vendor to do any and all such acts or things or execute and
deliver all such agreements, documents and instruments as Simmonds, in its sole
discretion, considers necessary or desirable to carry out the provisions and
purposes of this Agreement or to exercise its rights and remedies hereunder,
including without in any way limiting the generality of the foregoing: (i)
transferring any or all of the Collateral into the name of Simmonds or to any
person who acquires the same pursuant to the provisions of Section 6.2; (ii)
endorsing, negotiating or redeeming any Collateral; (iii) subject to Section
3.4 exercising any voting rights associated with the Collateral and executing
any proxies or similar instruments in furtherance thereof; and (iv) realizing
or collecting any Proceeds or any dividends, principal, interest or other
payments on the Collateral or in respect thereof. Vendor hereby ratifies and
agrees to ratify all acts of any such attorney taken or done in accordance with
this Section 11.1. This power of attorney being coupled with an interest shall
not be revoked or terminated by any act or thing and shall remain in full force
and effect until this Agreement has been terminated.
<PAGE>
<PAGE> 15
ARTICLE XII
12. MISCELLANEOUS
12.1 Further Assurances: Vendor will, from time to time at the
request of Simmonds, make and do all such acts and things and execute and
deliver all such instruments, agreements and documents as Simmonds shall
reasonably request by notice in writing given to Vendor in order to create,
preserve, perfect, validate or otherwise protect the Security Interest, to
enable Simmonds to exercise and enforce any of their rights and remedies
hereunder and generally to carry out the provisions and purposes of this
Agreement.
12.2 Filings: Vendor will promptly effect all registrations,
filings, recordings and all re-registrations, re-filings and re-recordings of
or in respect of this Agreement and Security Interest in all offices in all
jurisdictions and at such times as may be necessary or of advantage in
perfecting, maintaining and protecting the validity, effectiveness and priority
hereof or of the Security Interest. Notwithstanding the foregoing, Simmonds is
authorized, at its option, to make such registrations, filings or recordings or
such re-registrations, re-filings or re-recordings against Vendor as it may
deem necessary or appropriate to perfect or secure the Security Interest.
12.3 Amendments, Etc.: This Agreement may not be modified or
amended except with the written consent of the parties hereto.
12.4 Attornment: Each of the parties hereby irrevocably submits
to the nonexclusive jurisdiction of any court in the Province of Ontario for
the purposes of any legal or equitable suit, action or proceeding in connection
with this Agreement.
12.5 Enurement: This Agreement shall be binding on and enure to
the benefit of the parties hereto and their respective successors and assigns
except that Vendor shall not have the right to assign its rights or obligations
hereunder or any interest herein, but Simmonds and its assignee(s) shall have
the right to assign their respective rights and obligations hereunder, in whole
or in part, without the consent of Vendor.
12.6 Judgment Currency:
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under the Option
Agreement (collectively, the "Documents") in any currency (the
"Original Currency") into another currency (the "Other
Currency"), the rate of exchange used shall be that at which, in
accordance with normal banking procedures, Simmonds could
purchase the Original Currency with the Other Currency on the
Business Day preceding that on which final judgment is given or,
if permitted by applicable law, on the day on which such
judgment is paid or satisfied.
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<PAGE> 16
(b) The obligations of Vendor in respect of any sum due in the
Original Currency to Simmonds under any of the Documents shall,
notwithstanding any judgment in any Other Currency, be
discharged only to the extent that on the Business Day following
receipt of Simmonds thereof, Simmonds may, in accordance with
normal banking procedures, purchase the Original Currency.
Vendor, as a separate obligation and notwithstanding any such
judgment, shall indemnify Simmonds against such loss, and if the
amount of the Original Currency so purchased exceeds the sum
originally due to Simmonds in the Original Currency, Simmonds
agrees to remit such excess to Vendor.
12.7 Fees and Expenses: Simmonds shall be responsible for all fees
and expenses incurred by R-M Trust with respect to the transactions
contemplated hereunder. If there is an Event of Default, Vendor shall reimburse
Simmonds for all fees and expenses paid to R-M Trust.
12.8 Counterparts: This Agreement, or any amendment to it, may
be executed in multiple counterparts, each of which shall be deemed to be an
original agreement, and all of which shall constitute one agreement. All
counterparts shall be construed together and shall constitute one and the same
agreement. Any delivery of any executed copy of this Agreement by way of
telecopy or facsimile shall constitute delivery hereof, provided that any party
delivering by way of telecopy or facsimile shall, as soon as reasonably
practicable, deliver the original executed copy to the other parties.
IN WITNESS WHEREOF the parties have executed this Agreement as
of the date first written above.
ROAMER ONE HOLDINGS, INC. SIMMONDS COMMUNICATIONS LTD.
By: /s/ Steven L. Wasserman By: /s/ David O' Kell
--------------------------- --------------------------------
And:___________________________ And:________________________________
THE R-M TRUST COMPANY
By: /s/ Neville R. DaCosta
---------------------------
And:/s/ George Nagy
___________________________
