SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. )1
INFOAMERICA, INC.
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(Name of Issuer)
Common Stock, $.025 par value
----------------------------------
(Title of Class of Securities)
456648 10 4
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(CUSIP Number)
Richard Lubic Martin Eric Weisberg, Esq.
President Parker Chapin Flattau &
InfoAmerica Inc. Klimpl, LLP
2600 Canton Court, Suite G 1211 Sixth Avenue, 17th Floor
Fort Collins, Colorado 80525 New York, New York 10036
(970) 221-5599 (212) 704-6000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 8, 1999
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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
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1 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 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act.
CUSIP Number 456648104
(Continued on following pages)
(Page 1 of 70 Pages)
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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.
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard W. Clark
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X
(b)
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER 11,067,200
SHARES
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 16,525,493(2)
EACH REPORT-
ING PERSON --------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER 11,067,200
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
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2 Such amount takes into account 2,691,493 shares of the Company's common
stock subject to a Voting Trust to which Mr. Clark is the trustee.
(Page 2 of 70 Pages)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,834,000
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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)
53.2%
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14 TYPE OF REPORTING PERSON
IN
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(Page 3 of 70 Pages)
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard Lubic
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X
(b)
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 13,834,000
EACH REPORT-
ING PERSON --------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER 2,766,800
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
--------------------------------------------------
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,834,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES
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(Page 4 of 70 Pages)
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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14 TYPE OF REPORTING PERSON
IN
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(Page 5 of 70 Pages)
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ITEM 1. SECURITY AND THE ISSUER
The title of the class of equity securities to which this
statement relates is:
Common Stock, $.025 par value ("Common Stock"), of
InfoAmerica, Inc., a Colorado corporation
("InfoAmerica").
The name of the issuer and address of its principal executive
offices are:
InfoAmerica, Inc.
2600 Canton Court, Suite G
Fort Collins, Colorado 80525
ITEM 2. IDENTITY AND BACKGROUND
This statement is filed on behalf of Richard W. Clark ("Clark")and
Richard Lubic ("Lubic"). Clark and Lubic are collectively referred to as the
"Reporting Persons".
The principal business address of each of the Reporting Persons is
c/o Dick Clark Productions, Inc., 3003 West Olive Avenue, Burbank, California
91510-7811. Clark and Lubic are each citizens of the United States of America.
During the past five years, neither of the Reporting Persons have
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), or has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, Federal or
State securities laws or finding any violation with respect to such laws.
Certain information with respect to the executive officers and directors of the
Reporting Persons, if applicable, is set forth on Schedule A attached hereto.
Clark and Lubic are principally engaged in the making of
investments.
(Page 6 of 70 Pages)
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Clark and Lubic constitute, and are filing this statement, as a
"group" within the meaning of Rule 13d-5 under the Securities Exchange Act of
1934.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Pursuant to the Merger (as defined and more fully described in
Item 4 below), Clark and Lubic acquired 13,834,000 of the issued and outstanding
shares of capital stock of the issuer.
ITEM 4. PURPOSE OF TRANSACTION
On June 8, 1999, the transactions contemplated by the Merger
Agreement and Plan of Reorganization (the "Merger Agreement") among InfoAmerica,
Inc., a Colorado corporation (the "Company"), RWC Communications, Inc., a
California corporation, ("RWC"), D&K Communications, Inc., a California
corporation, ("D&K") and DL Hawk Communications, Inc., a California corporation,
("DL", together with RWC and D&K, the "Acquiree Corporations"); Richard W. Clark
("Clark") and Richard Lubic ("Lubic" and together with Clark, the "Sellers");
and Paul Knight and Larry Salmen (collectively, the "Buyers"), were consummated.
Based in California, RWC, D&K and DL constitute and operate DDD Cablevision,
Ltd., a California partnership, which operates a cable television system in
Tehachapi, California. The Reporting Persons are the owners of all of the issued
and outstanding common stock of RWC, D&K and DL. Based in Colorado, the Company
is engaged in the creation and selling of order entry software programs.
A copy of the Merger Agreement was filed as Exhibit 2.1 to the
current report on Form 8-K of the Company dated June 23, 1999 and filed with the
Securities and Exchange Commission (the "SEC") on June 23, 1999 (the "8-K").
Copies of the press release of the Company dated June 7, 1999 (the "Press
Release") was filed as Exhibit 99.1 to the 8-K. The Merger Agreement and the
Press Release are hereby incorporated herein by reference as Exhibits 2.1 and
99.1. The following description of the Merger Agreement is qualified by
reference to the Merger Agreement incorporated herein by reference.
Merger Agreement.
(Page 7 of 70 Pages)
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Pursuant to the Merger Agreement, on June 8, 1999, among other
things, (a) RWC merged with and into IFOA-RWC, Inc., (b) D&K merged with and
into IFOA-D&K, Inc., (c) DL merged with and into IFOA-DL, Inc. (collectively,
the "Merger Transactions"), and (d) as a result of the Merger Transactions, the
registrant, through the Merger Subsidiaries, acquired ownership and control of
the Acquiree Corporations and in exchange therefore, the registrant issued to
the Sellers an aggregate of 13,834,000 unregistered "restricted" shares (the
"Acquiror Shares") of the registrant's common stock, par value $.025 per share
(the "Common Stock"). The Acquiror Shares issued by the registrant and acquired
by the Sellers represent approximately 53.2% of the registrant's total issued
and outstanding Common Stock and accordingly such acquisition may be deemed to
be a change in control of the registrant. The Sellers agreed that they will hold
such Acquiror Shares for investment purposes and not for public distribution
unless and until the Acquiror Shares are registered under the Securities Act of
1933 (the "Securities Act") or until the restrictions under Rule 144 of the
Securities Act have lapsed.
At the closing of the transactions contemplated in the Merger
Agreement (the "Closing"), Paul Knight, Larry Salmen and all other members of
the board of directors of the registrant resigned and in their place the
Company's newly constituted board of directors appointed Clark as Chairman,
Lubic as President and a director, to fill the vacancies created by such
resignations and has also appointed Michael Risman, Milton Miller and Matthew
Paul Lasky as directors.
Shareholders Agreement
Contemporaneously with the Closing, the registrant's newly
constituted board of directors approved the issuance to certain shareholders of
the registrant (the "Restricted Shareholders") shares of the registrant's Common
Stock (the "Restricted Shares") as payment for financial consulting and other
services rendered or to be rendered in connection with the transactions
contemplated in the Merger Agreement. The Restricted Shareholders, in
consideration for their receipt of the Restricted Shares, entered into a Voting
and Shareholders Agreement (the "Shareholders Agreement") whereby each of the
Restricted Shareholders, simultaneously with the execution and
(Page 8 of 70 Pages)
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delivery of the Shareholders Agreement transferred one-third (1/3) of their
respective Restricted Shares to a Voting Trust (the "Voting Trust") in favor of
Clark as voting trustee ("Trustee"), to be held by Clark pursuant to the terms
of a Voting Trust Agreement (the "Voting Trust Agreement"). The description of
the terms of the Shareholders Agreement contained in this report does not
purport to be complete and is qualified in its entirety by reference to the
Shareholders Agreement, which is filed as an exhibit hereto.
The terms of the Shareholders Agreement provide that the
Restricted Shares transferred to the Voting Trust by the Restricted Shareholders
may not be sold, assigned, transferred, pledged, hypothecated or otherwise
disposed of until the first to occur of: (i) two (2) years from the closing of
the Merger Transactions and the other transactions contemplated by the Agreement
and Plan of Reorganization; or (ii) both of the following: (a) the registrant
through the efforts of the Restricted Shareholders has raised not less than
$3,000,000 of gross proceeds by means of financings of debt or equity securities
or a combination thereof within the two year period from the date of the closing
of the Merger Transactions and the other transactions contemplated by the Merger
Agreement; and (ii) the closing bid price of the Common Stock in the NASDAQ
SmallCap market (or such other market on which the registrant's Common Stock is
regularly traded) for the fifteen (15) consecutive trading days prior to the
date of a proposed "prohibited transfer" has equaled or exceeded $3.00 per share
(on a contemplated post closing one for two share reverse-split basis).
Voting Trust Agreement
Concurrently with the execution and delivery of the Shareholders
Agreement, the Restricted Shareholders, Clark and the Company entered into the
Voting Trust Agreement. Under the terms of the Voting Trust Agreement, the
Restricted Shareholders deposited with the Trustee certificates representing the
Restricted Shares. The Trustee is holding the Restricted Shares subject to the
terms of the Voting Trust Agreement and the Shareholders Agreement and thereupon
issued and delivered to the Restricted Shareholders a certificate for the
Restricted Shares so deposited. Except as otherwise expressly provided in the
Voting Trust Agreement, the Trustee is entitled to exercise all
(Page 9 of 70 Pages)
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powers under the Voting Trust Agreement in his sole and absolute discretion;
which powers include the following: until (i) the surrender of the Voting Trust
Certificates for cancellation, and (ii) the actual delivery to the holders of
the voting trust certificate or certificates representing Shares of the
Company's Common Stock in exchange therefor, the Trustee shall possess and be
entitled, in the Trustee's sole discretion, to exercise, in person or by his
nominees or proxies, all the rights and powers of an absolute owner of the
Restricted Shares, including, without limitation, the right to receive dividends
on the Restricted Shares and the right to vote, consent in writing or otherwise
act with respect to any corporate or shareholder's resolution or action to the
fullest extent permitted by applicable law. The registrant is not a party to the
Voting Trust Agreement, and the description of the terms of the Voting Trust
Agreement contained in this report does not purport to be complete and is
qualified in its entirety by reference to the Voting Trust Agreement, which was
filed as an exhibit hereto.
After giving effect to the exchange of shares of the Acquiree
Corporations for shares of the registrant's Common Stock, Clark is the direct
owner of 11,067,200 shares of Common Stock and Lubic is the direct owner of
2,766,800 shares of Common Stock. Pursuant to Rule 13d-5 under the Exchange Act,
Clark and Lubic may each be considered to be the beneficial owner of 13,384,000
shares of Common Stock.
Voting Agreements.
As an inducement to the parties to enter into the Merger
Agreement, Paul Knight and Larry Salmen and certain other affiliates of the
issuer(together, the "Principal Stockholders") have each entered into a Voting
Trust Agreement with Clark acting as Trustee (each, a "Voting Agreement" and,
collectively, the "Voting Agreements"), pursuant to which each Principal
Stockholder has granted to the Trustee the right, subject to the provisions set
forth in the Voting Agreement, in the Trustee's sole and absolute discretion, to
exercise all of the rights and powers of an absolute owner of the shares which
have been deposited under the Voting Agreement, including, without limitation,
the right to receive dividends on such shares and the right to vote, consent in
writing or otherwise act with respect to any corporate or shareholders'
resolution or action. A copy
(Page 10 of 70 Pages)
<PAGE>
the form of Voting Agreement was filed as Exhibit 99.2 to the 8-K and is hereby
incorporated herein by reference as Exhibit 99.2. The description of the Voting
Agreements is qualified by reference to the form of the Voting Agreement
incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
The Reporting Persons have acquired control over InfoAmerica
pursuant to the Merger. At the time of the Merger, the Reporting Persons
acquired 52.3%, in the aggregate, of the outstanding shares of capital stock of
InfoAmerica.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF ISSUER
Reference is made to Item 4 above and the exhibits incorporated
herein by reference for a description of the Merger Agreement and the Voting
Agreements.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 2.1 Merger Agreement and Plan of
Reorganization dated June 8, 1999, among
InfoAmerica, Inc.; RWC Communications,
Inc., D&K Communications, Inc.,and DL Hawk
Communications, Inc., Richard W. Clark,
Richard Lubic; and Paul Knight and Larry
Salmen. 1
Exhibit 99.1 Press Release of InfoAmerica, Inc. dated
June 7999. 2
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1 Filed as Exhibit 2.1 to the Current Report on Form 8-K of
InfoAmerica, Inc., dated June , 1999 and filed with the Commission on June ,
1999 and incorporated herein by reference.
2 Filed as Exhibit 99.1 to the Current Report on Form 8-K of
InfoAmerica, Inc., dated June , 1999 and filed with the Commission on June ,
1999 and incorporated herein by reference.
(Page 11 of 70 Pages)
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Exhibit 99.2 Form of Voting Trust Agreement dated as of
June 8, 1998, between Richard W. Clark and
certain stockholders of InfoAmerica and
InfoAmerica. 3
Exhibit 99.3 Form of Voting and Shareholders Agreement
dated as of June 8, 1998, between Richard W.
Clark, Richard Lubic and certain stockholders of
InfoAmerica. 4
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3 Filed as Exhibit 99.2 to this Schedule 13D and incorporated
herein by reference.
4 Filed as Exhibit 99.3 to this Schedule 13D and incorporated
herein by reference.
(Page 12 of 70 Pages)
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Signature
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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.
June 22, 1999
/s/ Richard W. Clark
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Richard W. Clark
(Page 13 of 70 Pages)
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Signature
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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.
June 22, 1999
/s/ Richard Lubic
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Richard Lubic
(Page 14 of 70 Pages)
Exhibit 99.2
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT dated as of June 8, 1999 (this
"Agreement") by and among those persons or entities whose names and addresses
appear on the signature pages hereof (individually, the "Shareholder" and
collectively, the "Shareholders") and Mr. Richard W. Clark, as Trustee (together
with his successors in trust, the "Trustee") and InfoAmerica, Inc., a Colorado
corporation ("IFOA" or the "Company").
W I T N E S S E T H :
WHEREAS, the Shareholders own the number of restricted shares of
common stock ("Common Stock") of the Company, and in the amounts and manner set
forth opposite each Shareholder's name on Exhibit A attached hereto; and
WHEREAS, the Trustee has consented to serve as Trustee under this
Agreement for the purposes herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties intending
to be legally bound hereby agree as follows:
1. Agreement.
Copies of this Agreement, and of every agreement
supplemental hereto or amendatory hereof, shall be filed at the office of the
Trustee's legal counsel, Martin Eric Weisberg, Esq., Parker Chapin Flattau &
Klimpl, LLP, 1211 Avenue of the Americas, New York, New York 10036, which copies
shall be available for inspection of the holder of a voting trust certificate
issued pursuant hereto (each a " Voting Trust Certificate") during business
hours and with the Secretary of the Company, which copies shall be available for
inspection by a shareholder of the Company who also is a holder of a Voting
Trust Certificate at the principal corporate office of the Company. Voting Trust
Certificates shall be issued to the Shareholders,
(Page 15 of 70 Pages)
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received and held subject to all of the terms and provisions of this Agreement.
Every Shareholder entitled to receive a Voting Trust Certificate, and thus each
such Shareholder's permitted transferees and assigns, upon accepting such Voting
Trust Certificate, shall be bound by all of the terms and provisions of this
Agreement, with the same force and effect as if such person or other entity were
a signatory to this Agreement.
2. Independence of Trustee.
Except as otherwise expressly provided herein, the
Trustee shall be entitled to exercise all powers under this Agreement in his
sole and absolute discretion. The Trustee shall have no liability to any
Shareholder, any holder of a Voting Trust Certificate or any other person or
entity for any action or inaction by the Trustee (including, without limitation,
any vote by the Trustee), unless a final judgment by a court of competent
jurisdiction, from which no appeal may be taken, determines that the action or
inaction of the Trustee constituted willful misconduct.
3. Transfer of Shares to Trustee.
The Shareholders shall deposit with the Trustee
certificates representing all of the Shares listed on Exhibit B attached hereto
(the "Shares"). All such certificates shall be endorsed, or accompanied by such
instruments of transfer (such as duly executed blank stock powers), so as to
enable the Trustee to cause such certificates to be transferred into the name of
the Trustee, as hereinafter provided. Upon receipt by the Trustee of the
certificates representing any Shares and such instruments of transfer, the
Trustee shall hold the same subject to the terms of this Agreement, and subject
to the terms of a Voting and Shareholders Agreement dated as of the date hereof,
entered into by the Shareholders, the Company and the Trustee (the "Voting and
Shareholders Agreement") and shall thereupon issue and deliver to the
Shareholders a Voting Trust Certificate for the Shares so deposited. All
certificates representing Shares transferred and delivered to the Trustee
pursuant to this Agreement shall be surrendered by the Trustee to the Company
and canceled, and new certificates therefor shall be issued to and held by the
Trustee
(Page 16 of 70 Pages)
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in the name of "Richard W. Clark, as Trustee" (or in the name of
the then successor Trustee, if any, as Trustee).
4. Voting Trust Certificates.
The Voting Trust Certificates shall be in the form
annexed hereto as Exhibit C.
5. Transfer of Certificates.
The Voting Trust Certificates shall be transferable
at the office of the Trustee's legal counsel, on the books of the Trustee, by
the registered owner thereof, either in person or by attorney thereunto duly
authorized, upon surrender thereof, according to the rules from time to time
established for that purpose by the Trustee, but only to the extent that any
such transfer is permitted by the terms of the Voting and Shareholders
Agreement; and the Trustee may treat the registered holder as the owner thereof
for all purposes whatsoever; but he shall not be required to deliver New Voting
Trust Certificates representing Shares without the surrender of the related
Voting Trust Certificate. No transfer of a Voting Trust Certificate may be
effected unless the Trustee receives proof of compliance with the provisions of
the Voting and Shareholders Agreement from the Company. If a Voting Trust
Certificate is lost, stolen, mutilated or destroyed, the Trustee may, in the
Trustee's sole and absolute discretion, issue a duplicate of such certificate
upon receipt of: (a) evidence of such fact satisfactory to Trustee; (b)
indemnity satisfactory to the Trustee; (c) the existing certificate, if
mutilated; and (d) payment of the Trustee's reasonable fees and expenses
(including, without limitation, reasonable attorneys' fees and expenses) in
connection with the issuance of a new Voting Trust Certificate. The Trustee
shall not be required to recognize any transfer of a Voting Trust Certificate
not made in strict accordance with the provisions of the Agreement and the
Voting and Shareholders Agreement.
6. Termination Procedure.
Upon the termination of this Agreement at any time,
as hereinafter provided, the Trustee, at such times as the Trustee may choose
during the period commencing twenty (20) days before such termination shall mail
written notice of such
(Page 17 of 70 Pages)
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termination to the registered owners of the Voting Trust Certificates at the
addresses appearing on the transfer books of the Trustee. After the date
specified in any such notices (which date shall be fixed by the Trustee), the
Voting Trust Certificates shall cease to have any effect, and the holders of the
Voting Trust Certificates shall have no further rights under this Agreement
other than to receive certificates representing Shares or other property
distributable under the terms hereof and upon the surrender of the Voting Trust
Certificates. Within thirty (30) days after the termination of this Agreement,
the Trustee shall request the Company to deliver to the registered holders of
the Voting Trust Certificates stock certificates representing the number of
shares represented by the Voting Trust Certificates upon the surrender thereof
properly endorsed, such delivery to be made in each case at the Company's
principal place of business. Following any such request by the Trustee to the
Company, the Trustee shall have no further duties or obligations hereunder and
the Trustee shall not be required to take any further action hereunder.
7. Dividends.
Prior to the termination of this Agreement, the
holders of the Voting Trust Certificates shall be entitled to receive payment
equal to the cash dividends, if any, received by the Trustee upon the Shares
subject to Voting Trust Certificates. If any dividend in respect of such Shares
is paid by the Company, in whole or in part, in stock of the Company having
general voting powers, the Trustee shall likewise hold, subject to the terms of
this Agreement, the certificates representing stock which are received by
Trustee on account of such dividend, and the holder of the Voting Trust
Certificate on which such stock dividend has been paid shall be entitled to
receive a Voting Trust Certificate issued under this Agreement for the number of
shares and class of stock received as such divided with respect to the Shares
represented by the Voting Trust Certificate. Holders entitled to receive the
dividends described above shall be those registered as such on the transfer
books of the Trustee at the close of business on the day fixed by the
Corporation for the taking of a record to determine those holders of its stock
entitled to receive such dividends or, if the Trustee has fixed a date, as
hereinafter provided, for the purpose of determining the
(Page 18 of 70 Pages)
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holders of the Voting Trust Certificates entitled to receive such payment or
distribution then registered as such at the close of business on the date so
fixed by the Trustee.
If any dividend in respect of Shares is paid in
property other than in cash or in capital stock having general voting powers,
then the Trustee shall, after receipt thereof by the Trustee, distribute the
same to the holders of the Voting Trust Certificates registered as such at the
close of business on the day fixed by the Trustee for taking a record to
determine the holders of the Voting Trust Certificates entitled to receive such
distribution. Such distribution shall be made to such holders of the Voting
Trust Certificates in accordance with the number of Shares represented by the
Voting Trust Certificates.
The transfer books of the Trustee may be closed
temporarily by the Trustee for a period not exceeding ten (10) days preceding
the date fixed for the payment or distribution of dividends of the distribution
of assets or rights, or at any other time in the sole and absolute discretion of
the Trustee. In lieu of providing for the closing of the books against the
transfer of the Voting Trust Certificates, the Trustee may fix a date not
exceeding ten (10) days preceding any date fixed by the Company for the payment
or distribution of dividends, or for the distribution of assets or rights, as a
record date for the determination of the holders of the Voting Trust
Certificates entitled to receive such payment or distribution, and the holders
of the Voting Trust Certificates of record at the close of business on such date
shall exclusively be entitled to participate in such payments or distributions.
In lieu of receiving cash dividends upon the Shares
and paying the same to the holders of the Voting Trust Certificates pursuant to
the provisions of this Agreement, the Trustee may instruct the Company in
writing to pay such cash dividends directly to the holders of the Voting Trust
Certificates. Upon such instructions being given by the Trustee to the Company,
and until revoked by the Trustee, all responsibility of the Trustee with respect
to such dividends shall cease. The Trustee may at any time revoke such
instructions and by written notice to the Company direct it to make dividend
payments to the Trustee.
(Page 19 of 70 Pages)
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10. Subscription Rights.
In the event any stock or other securities of the Company are offered for
subscription to the holder of the Shares, the Trustee, upon receipt of notice of
such offer, shall mail a copy thereof to the holders of the Voting Trust
Certificates.
11. Dissolution of the Company.
In the event of the dissolution or total or partial
liquidation of the Company whether voluntary or involuntary, the Trustee shall
receive the moneys, securities, rights or property to which the holders of the
Voting Trust Certificates are entitled and shall distribute the same to the
registered holders of the Voting Trust Certificates in accordance with the
interest, as shown on the books of the Trustee, or the Trustee may, in his sole
and absolute discretion, deposit such moneys, securities, rights or property
with any bank or trust company doing business in New York, New York or Los
Angeles, California, with authority and instructions to distribute the same as
above, and upon such deposit, all further obligations or liabilities of the
Trustee in respect of such moneys, securities, rights or property so deposited
shall cease.
12. Reorganization of the Company.
In the event the Company is merged into or
consolidated with another corporation, and all or substantially all of the
assets of the Company are transferred to another corporation, then in connection
with such transfer, the term "Company" for all purposes of this Agreement shall
be taken to include such successor corporation, and the Trustee shall receive
and hold under this Agreement any stock of such successor corporation received
on account of the ownership, as Trustee hereunder, of the Shares held hereunder
prior to such merger, consolidation or transfer. The Voting Trust Certificates
issued and outstanding under this Agreement at the time of such merger,
consolidation or transfer may remain outstanding, or the Trustee may, in his
sole and absolute discretion, substitute for such Voting Trust Certificates new
Voting Trust Certificates in appropriate form, and the term "Shares" as used
herein shall be
(Page 20 of 70 Pages)
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taken to include any shares of Voting stock which may be received by the Trustee
in lieu of all or any part of the Shares.
13. Rights and Powers of Trustee.
Until (i) the surrender of the Voting Trust
Certificates for cancellation, and (ii) the actual delivery to the holders of
the Voting Trust Certificate or certificates representing Shares in exchange
therefor, the Trustee shall possess and be entitled, subject to the provisions
hereof, in the Trustee's sole and absolute discretion, to exercise, in person or
by his nominees or proxies, all the rights and powers of an absolute owner of
the Shares deposited hereunder, including, without limitation, the right to
receive dividends on Shares and the right to vote, consent in writing or
otherwise act with respect to any corporate or shareholder's resolution or
action to the fullest extent permitted by applicable law.
The Trustee is further authorized to become a party
to or prosecute or defend or intervene in any actions or legal proceedings with
respect to the Shares, and the Shareholders and the holders from time to time of
the Voting Trust Certificates agree to indemnify the Trustee and to hold the
Trustee harmless from any such suit or legal proceeding.
15. Liability of Trustee.
In acting hereunder with respect to the Shares, the
Trustee shall have responsibility in respect of any action taken by the Trustee,
or any of the Trustee's agents or any omission to act by any of them, and the
Trustee shall incur no responsibility be reason of any error of law or of any
things done or suffered or omitted by the Trustee hereunder or in any matter
related hereto, except for those acts which are determined by a court of
competent jurisdiction in a final judgment from which no appeal may be taken, to
have been a direct result of the willful misconduct. The Trustee shall not be
required to give a bond or other security in connection with the Trustee's
duties hereunder. If the Trustee determines to obtain such a bond, the cost
thereof shall be paid by the Company.
(Page 21 of 70 Pages)
<PAGE>
16. Successor Trustee.
The Trustee (and any successor Trustee) may at any
time resign as Trustee hereunder by mailing to the registered holders of the
Voting Trust Certificates a written resignation, to take effect twenty (20) days
thereafter or upon the new Trustee agreeing to act as Trustee hereunder. Upon
the death or resignation of Richard W. Clark, and upon the death or resignation
of any successor Trustee acting hereunder, a successor Trustee shall be
designated by the Company. The rights, power and privileges of the Trustee shall
be possessed by the successor Trustees, with the same effect as though such
successors had originally been parties to this Agreement.
17. Term.
This Agreement shall remain in effect for as long as
the Voting and Shareholders Agreement is in effect in accordance with its terms.
The terms "Shareholder" and "Shareholders" as defined herein shall be deemed to
include any and all such transferees, unless the context indicates otherwise.
18. Compensation and Reimbursement of Trustee.
The Trustee shall serve without compensation. The
Trustee shall have the right to incur and pay such reasonable expenses and
charges and to employ and pay such agents, attorneys and counsel as he may deem
necessary and proper for carrying this Agreement into effect. Any such expenses
or charges incurred by the Trustee shall be promptly reimbursed by the Company.
The Company shall, after making payment to the Trustee, be entitled to bill the
holders of the Voting Trust Certificates for the amount paid to the Trustee.
19. Shareholder's Representations and Warranties.
Each Shareholder represents and warrants to the
Trustee that the Shareholder owns that number of Shares set forth opposite his
or her name on Exhibit A hereto, free and clear of all liens, claims and
encumbrances of any kind whatsoever other than restrictions on transfer arising
under federal and state securities laws and the Voting and Shareholders
Agreement.
(Page 22 of 70 Pages)
<PAGE>
20. Notices.
Any notice, request or other communication required
to be given pursuant to the provisions hereof shall be in writing and shall be
deemed to be given when actually received by the addressee, when delivered in
person, or five (5) days after being deposited with the United States Postal
Service, post prepaid, registered or certified, return receipt requested, and
addressed as follows: (a) if to the Trustee, to: Richard W. Clark, c/o Martin
Eric Weisberg, Esq., Parker Chapin Flattau & Klimpl, LLP, 1211 Avenue of the
Americas, New York, New York 10036, and (b) if to the Shareholder, to the
Shareholder at the address set forth below the Shareholder's name on Exhibit A
hereto, or such other address as may be furnished in writing by the Shareholder
provided that notice of address shall only effective upon receipt.
21. Miscellaneous.
A. Costs and Fees. If any party or parties
breaches any provision of this Agreement, the breaching party or parties agrees
to pay the non-breaching party or parties all reasonable attorneys' fees and
expenses, expert witness fees, investigation costs, costs of tests and analysis,
travel and accommodation expenses, deposition and trial transcript costs, court
costs and other costs and expenses incurred by the non-breaching party in
enforcing this Agreement and/or preparing for legal or other proceedings, at the
trial or appellate level, whether or not such proceedings are instituted. If any
legal or other proceedings are instituted, the party prevailing in any such
proceeding shall be paid all of the aforementioned costs, expenses and fees, by
the other party, and if any judgment is secured by such prevailing party, all
such costs, expenses and fees shall be included in such judgment. References in
this paragraph to "legal proceedings" refer to the arbitration proceedings
contemplated hereby and proceedings to enforce the decision of the arbitrator or
arbitrators.
B. Waiver. No delay by a party in exercising any
right or remedy shall constitute a waiver of a party's rights under this
Agreement, and no waiver by any party of the breach of any covenant of this
Agreement by the other shall be construed as
(Page 23 of 70 Pages)
<PAGE>
a waiver of any proceeding or succeeding breach of the same or any other
covenant or condition of this Agreement.
C. Broker. Each party represents to the other
that such party has not dealt with any other person acting as a broker in
connection with this transaction other than Edwin Lonergan. The Broker's
commission shall be paid pursuant to a separate agreement, a true correct and
complete copy of which is attached to the Merger and Plan of Reorganization as
Exhibit H.
D. Termination. This Agreement may, by notice
given prior to or at the Closing, be terminated:
i. by either IFOA or the Sellers if a material
breach of any provision of this Agreement is committed by the Sellers and/or the
Acquiree Corporations, in the case of IFOA, and IFOA, in the case of the
Sellers, and such breach is not to be waived;
ii. (i) by IFOA if any of the conditions in
Sections 6.1 and 6.3 of Article VI of the Merger Agreement and Plan of
Reorganization have not been satisfied as of the Closing Date or if satisfaction
of such a condition is or becomes impossible (other than through the failure of
IFOA or the Buyer, to comply with any of their respective obligations under this
Agreement) and IFOA has not waived such condition on or before the Closing Date;
or (ii) by Sellers, if any of the conditions in Sections 6.2 and 6.3 of Article
VI of the Merger Agreement and Plan of Reorganization have not been satisfied as
of the Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Sellers to comply with any of
their respective obligations under this Agreement) and IFOA has not waived such
condition on or before the Closing Date;
iii. by mutual consent of IFOA and Sellers; or
iv. by either IFOA or Sellers if the Closing has
not occurred (other than through the failure of any party seeking to terminate
this Agreement to comply fully with its obligations under this Agreement) on or
before June 15, 1999, or such later date as the parties may mutually agree upon
in writing.
(Page 24 of 70 Pages)
<PAGE>
E. Notices. No notice, consent, approval or
communication provided for herein or given in connection herewith shall be
validly given, made, delivered or served unless it is in writing and delivered
personally, sent by overnight courier, or sent by registered or certified United
States mail, postage prepaid, with return receipt requested, to the addresses
for each party set forth below. Any party hereto may from time to time change
its address by notice to the other parties given in the manner provided herein.
Notices, consents, approvals and communications by mail in the United States
mail in the manner provided above or upon delivery to the respective addresses
set forth above if delivered personally or sent by overnight courier.
Addresses of the parties are the following:
To IFOA:
InfoAmerica, Inc.
2600 Canton Court
Suite G
Fort Collins, CO 80525
To the Sellers:
Mr. Richard W. Clark
3003 West Olive Avenue
Burbank, CA 91505-4590
Mr. Richard Lubic
c/o Country Cable
Box 4400-123
S.R. 3
Tehachapi, CA 93561
With a copy to:
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, NY 10036-8735
Attention: Martin Eric Weisberg, Esq.
To the Buyer:
(Page 25 of 70 Pages)
<PAGE>
Mr. Paul Knight
InfoAmerica, Inc.
2600 Canton Court
Suite G
Fort Collins, CO 80525
With a copy to:
Alan W. Peryam, Esq.
1120 Lincoln Street, Suite 1000
Denver, CO 80203
To the Buyer:
Mr. Larry Salmen
InfoAmerica, Inc.
2600 Canton Court
Suite G
Fort Collins, CO 80525
With a copy to:
Alan W. Peryam, Esq.
1120 Lincoln Street, Suite 1000
Denver, CO 80203
F. Interpretation and Time. The captions of the sections of
this Agreement are for convenience only and shall not govern or influence in the
construction or interpretation hereof. This Agreement is the result of
negotiations among the parties and, accordingly, shall not be construed for or
against any party regardless of which party drafted this Agreement or any
portion thereof. Time is of the essence under this Agreement.
G. Successors and Assigns. All of the provisions hereof shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto. This Agreement may not be assigned by any party hereto,
without the prior written consent of the other parties hereto.
(Page 26 of 70 Pages)
<PAGE>
H. No Partnership. This Agreement is not intended to, and
nothing contained in this Agreement shall, create any partnership, joint venture
or other similar arrangement among the parties. This Agreement is between
independent contracting parties who have been advised by legal counsel of their
own choosing about entering into this Agreement.
I. Further Assurances. Each of the parties shall execute and
deliver all such other documents and perform such other acts, in addition to
execution and delivery of this Agreement, as are from time to time necessary in
order to carry out the purposes, matters and transactions that are contemplated
in this Agreement.
J. Incorporation of Exhibits. All Exhibits and Schedules
attached to this Agreement are hereby incorporated herein by reference and form
an integral part of this Agreement.
K. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Colorado, without giving effect to the conflict of law provisions
or principles of that State.
L. Date of Performance. If the date of performance of any
obligations or the last day of any time period provided for herein should fall
on a Saturday, Sunday or legal holiday, then said obligation shall be due and
owing and said time period shall expire on the first day thereafter which is not
a Saturday, Sunday or legal holiday. Except as may otherwise be set forth
herein, any performance provided for herein shall be timely made if completed no
later than 5:00 P.M., Pacific time, on the day of performance.
M. Counterparts. This Agreement may be executed in any number
of counterparts. This Agreement may be signed by original signatures or by
facsimile signatures. Any set of counterparts of this Agreement, whether
facsimile or originals or both, showing signatures by all parties, taken
together, shall constitute a single copy of this Agreement.
N. Resolution of Disputes. In the event of any disputes
among the parties as to their rights and obligations
(Page 27 of 70 Pages)
<PAGE>
under this Agreement, including, but not limited to, any question as to whether
or not a party has performed its obligations fully or remedied an alleged breach
and any and all other disputes arising under this Agreement shall be resolved as
follows:
i. The parties shall submit their dispute to at
least four (4) hours of mediation in accordance with the mediation procedures of
American Arbitration Association ("AAA"). Any mediation session shall be held in
the City and State of New York.
ii. In the event the dispute does not then
settle within fifteen (15) calendar days after the first mediation session, the
parties agree to submit the dispute to binding arbitration which shall be held
in the City and State of New York in accordance with the rules and procedures of
the AAA (except as modified in this Agreement). The submission to arbitration
hearing shall be no later than forty-five (45) calendar days after the first
mediation session. The parties agree that arbitration shall be the exclusive
means of resolving any such dispute.
iii. The arbitrator or arbitrators conducting
the arbitration hearing shall render the arbitration decision in writing, which
writing shall explain the reasoning and basis for the decision. The decision of
the arbitrator or arbitrators shall be conclusive and binding on the parties and
not subject to any judicial review or appeal. The decision of the arbitrator or
arbitrators may be enforced in any court of competent jurisdiction.
iv. The parties agree to share equally the costs
of mediation. However, if the dispute is settled through arbitration, the
prevailing party shall be entitled to recover all costs and expenses incurred by
the prevailing party, including, without limitation, reasonable attorneys' fees
and expenses, to enforce its rights hereunder, in addition to any damages
recovered, as provided in "Costs and Fees" above.
O. Recitals. The recitals set forth above are a part of this
Agreement.
(Page 28 of 70 Pages)
<PAGE>
P. Jurisdiction and Venue. Exclusive venue and jurisdiction
over any legal proceeding to enforce a judgment of the arbitrator or arbitrators
hereunder shall be in the federal and state courts located in New York County,
New York.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement of the date first above written.
--------------------------------------------
RICHARD W. CLARK, AS VOTING TRUSTEE
AGREED TO BY
INFOAMERICA, INC.
By: ---------------------------------------
Name:
Title:
--------------------------------------------
Michael Risman
--------------------------------------------
Milton Miller
--------------------------------------------
Mathew Lasky
--------------------------------------------
Ed Lonergan
--------------------------------------------
Sal Lanza
--------------------------------------------
Peter Landau, Esq.
--------------------------------------------
Byron Lasky
(Page 29 of 70 Pages)
<PAGE>
L. F. Holdings
By: ---------------------------------------
Name:
Title:
-------------------------------------------
Ronald Formella
-------------------------------------------
Stewart Sytner
IMED Management Corporation
By: ---------------------------------------
Name:
Title:
(Page 30 of 70 Pages)
<PAGE>
Exhibit A
Name Shares
---- ------
Michael Risman 600,000
Milton Miller 600,000
Mathew Lasky 400,000
Ed Lonergan 500,000
Sal Lanza 250,000
Peter Landau, Esq. 600,000
Byron Lasky 300,000
L. F. Holdings 1,600,000
Ronald Formella 200,000
Stewart Sytner 900,000
(Page 31 of 70 Pages)
<PAGE>
IMED Management 874,485
Corporation
(Page 32 of 70 Pages)
<PAGE>
Exhibit B
Name Shares
---- ------
Michael Risman 200,000
Milton Miller 200,000
Mathew Lasky 133,333
Ed Lonergan 500,000
Sal Lanza 166,666
Peter Landau, Esq. 200,000
Byron Lasky 100,000
L. F. Holdings 533,333
Ronald Formella 66,666
Stewart Sytner 300,000
IMED Management 291,495
Corporation
(Page 33 of 70 Pages)
<PAGE>
Exhibit C
VOTING TRUST CERTIFICATE
No. [___] [_____] shares
Richard W. Clark, as Trustee of the stock of InfoAmerica, Inc., (the
"Company") under a Voting Trust Agreement dated as of June 8, 1999 (the "Voting
Trust Agreement"), having received certain shares of stock of the Company
pursuant to such Agreement, which Agreement the holder hereof by accepting this
Certificate ratifies and adopts, hereby certifies that Richard W. Clark, as
Trustee will be entitled to receive a certificate for [_____________ (____)
fully paid shares of the common stock of the Company, without par value, on the
expiration of the Voting Trust Agreement, and in the meantime shall be entitled
to receive payments equal to any dividends that may be collected by the
undersigned Trustee upon a like number of such shares held by her under the
terms of the Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the
books of the undersigned Trustee by the registered holder in person or by his or
her duly authorized attorney, and the holder hereof, by accepting this
certificate, manifests his or her consent that the undersigned Trustee may treat
the registered holder hereof as the true owner for all purposes, except the
delivery of stock certificates, which delivery of stock certificates shall not
be made without the surrender hereof.
IN WITNESS WHEREOF, Richard W. Clark has executed this
Voting Trust Certificate this 9th day of June, 1999.
--------------------------
Richard W. Clark
Trustee
(form of Assignment):
For value received, hereby assigns the within Voting Trust
Certificate, and all rights and interests represented thereby, to and appoints
(Page 34 of 70 Pages)
<PAGE>
attorney to transfer this Voting Trust Certificate on the books of
the Trustee mentioned therein, with full power of substitution.
Dated: (Seal)
In presence of
(Page 35 of 70 Pages)
Exhibit 99.3
VOTING AND SHAREHOLDERS AGREEMENT
VOTING AND SHAREHOLDERS AGREEMENT dated as of June 8, 1999
(this "Agreement"), by and among Mr. Richard W. Clark, a resident of the State
of California ("Clark"), Mr. Richard W. Lubic, a resident of the State of
California ("Lubic") and those persons or entities whose names and addresses
appear on the signature pages hereof (hereinafter collectively referred as the
"Restricted Shareholders").
RECITALS
Pursuant to that certain Agreement and Plan of Reorganization
entered into as of the 8th day of June, 1999 (the "Merger Agreement and Plan of
Reorganization") by and among InfoAmerica, Inc. (the "Company") and RWC
Communications, Inc., D&K Communications, Inc., DL Hawk Communications, Inc.,
Clark, Lubic, Paul Knight and Larry Solomon, the Company is acquiring, by virtue
of a number of merger transactions, a cable television system which operates in
Tehachapi, California, which is operated by DDD Cablevision, Ltd., a California
partnership.
The Restricted Shareholders are to be issued shares of the
Company's Common Stock as payment for financial consulting and other services
rendered and to be rendered in connection with the transactions contemplated by
the Agreement and Plan of Reorganization.
The Restricted Shareholders will have sole investment and
voting power with respect to an aggregate of the shares of the Company's Common
Stock set forth opposite their name and attached on Schedule 1 hereto.
The execution and delivery of this Agreement by the Restricted
Shareholders is one of the covenants and conditions precedent to the
consummation of the Merger Transactions and the other transactions contemplated
by the Agreement and Plan of Reorganization. Capitalized terms used herein
without definition
(Page 36 of 70 Pages)
<PAGE>
shall have the same meanings herein as are ascribed to such terms in the
Agreement and Plan of Reorganization.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties, intending
to be legally bound hereby agree as follows:
ARTICLE I
VOTING BY RESTRICTED SHAREHOLDERS
1.1 Transfer to Voting Trust. Each of the Restricted
Shareholders shall simultaneously with the execution and delivery of this
Agreement transfer one-third (1/3) of their respective restricted shares of the
Company's Common Stock (the "Restricted Shares") to a Voting Trust in favor of
Clark to be held by Clark pursuant to the Voting Trust Agreement in the form of
Exhibit A attached hereto (the "Voting Trust Agreement").
ARTICLE II
SALES AND TRANSFERS OF RESTRICTED STOCK
2.1 Restrictions. The shares of Common Stock transferred to
the Voting Trust by the Restricted Shareholders may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of (hereinafter
collectively referred to as a "Transfer") until the first to occur of:
i. two (2) years from the closing of the Merger
Transactions and the other transactions
contemplated by the Agreement and Plan of
Reorganization; or
ii. both of the following: the Company through
the efforts of the Restricted Shareholders has
raised not less than $3,000,000 of gross proceeds
by means of financings of debt or equity
securities or a combination thereof (and if by
means of equity securities at a gross sales price
of not less than $3.00 per share of Common Stock
on a contemplated post-closing reverse split of
(Page 37 of 70 Pages)
<PAGE>
one for two share reverse-split basis) within the two
year period from the date of the closing of the
Merger Transactions and the other transactions
contemplated by the Agreement and Plan of
Reorganization; and (ii) the closing bid price of the
Common Stock in the NASDAQ SmallCap market (or such
other market on which the Company's Common Stock is
regularly traded) for the fifteen (15) consecutive
trading days prior to the date of the proposed
prohibited Transfer has equaled or exceeded $3.00 per
share (on a contemplated post closing one for two
share reverse-split basis).
2.2 Transfer of Restricted Shares to Affiliates. During the
term of this Agreement, neither the Restricted Shareholders nor any other person
who shall become a party to or bound by this Agreement shall, directly or
indirectly, Transfer any Restricted Shares, whether now or hereafter acquired,
to any affiliate, as hereafter defined, without first obtaining the prior
written consent of the Company and Clark, which consent shall not be
unreasonably withheld; provided that as a condition precedent to such Transfer
such affiliate shall agree in a written instrument, in form, substance and scope
satisfactory to the Company and Clark, to be bound by and subject to all of the
terms, provisions and conditions of this Agreement, with the same force and
effect as if such affiliate was named as a party to this Agreement as a
Restricted Shareholder hereunder. The term "affiliate" shall mean (a) any
spouse, parent, parent-in-law, grandparent, child, grandchild, sibling, in each
case who is older than eighteen (18) years of age or (b) any person which the
transferor directly or indirectly controls or (c) any transfer to a trust for
the benefit of the transferor; provided, however, that if the transferor remains
the sole beneficial owner of the shares of Common Stock, as that term is used in
Section 13(d) of the Securities Exchange Act of 1934, as amended, of the
transferred shares.
2.3 Legend. The Restricted Shareholders agree that the Company
shall have the right to place a legend on the certificates for Restricted Shares
that such Restricted Shares are subject to this Agreement indicating that (1)
they are
(Page 38 of 70 Pages)
<PAGE>
restricted securities and (2) that they are subject to this Agreement and the
Voting Trust Agreement.
ARTICLE III
REMEDIES
3.1 Violation of Agreement; Consent to Injunctive Relief. Each
of the Restricted Shareholders recognizes and agrees that any violation of any
of their obligations set forth in this Agreement would cause irreparable damage
which could not be compensated by monetary damages. Accordingly, in the event of
any breach or threatened breach of a Restricted Shareholder of any of such
Restricted Shareholder's obligations, covenants or agreements under this
Agreement, such Restricted Shareholder irrevocably consents to the entry of an
injunction and/or other equitable relief by a court of competent jurisdiction
restraining any such breach or threatened breach, and/or granting full voting
authority to Clark or his successor for purposes of this Agreement, in addition
to any other rights, remedies available by law or in equity; and neither Clark
nor the Company shall be required to post a bond or provide other security or to
prove any actual damages.
ARTICLE IV
MISCELLANEOUS
4.1 Representations. Each of the Restricted Shareholders
represents and warrants that, to the other parties to this Agreement, that, at
the date hereof, he/she or it is the sole record and beneficial owner of the
Common Shares set forth opposite the name of such Restricted Shareholder on
Schedule 1 attached hereto.
4.2 Further Assurances. From and after the date of this
Agreement, the Restricted Shareholders shall from time to time, at the request
of the Company and/or Clark and without further consideration, do, execute and
deliver, or cause to be done, executed and delivered, all such further acts,
things and instruments as may be reasonably requested or required by the Company
or Clark to more effectively evidence and give effect to the transactions
provided for in this Agreement.
(Page 39 of 70 Pages)
<PAGE>
4.3 Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given if personally delivered or if mailed
by first class registered or certified mail return receipt requested (with all
postage prepaid), or if delivered by a recognized overnight courier service
(with all costs prepaid, when actually received by the intended recipient,
addressed to the parties at their respective addresses set forth on the
signature page of this Agreement, or to such other person or address as may be
designated by like notice hereunder.
4.4 Modifications. This Agreement may not be amended,
modified, waived or changed except by an instrument in writing duly executed by
the party to be charged therewith.
4.5 Successors and Assigns. All the covenants, stipulations,
promises and agreements in this Agreement shall be binding upon and inure to the
benefit of the respective heirs, successors and permitted assigns of the parties
hereto, whether so expressed or not. This Agreement may not be assigned by any
Restricted Shareholder without the prior written consent of the Company and
Clark.
4.6 Headings. The headings of various sections of this
Agreement are for convenience of reference only and shall not have any effect on
the construction or interpretation of this Agreement.
4.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Company's state of incorporation
applicable to agreements made and to be performed entirely within such state,
without regard to its conflicts of law principles.
4.8 Counterparts. This Agreement may be executed in to or more
counterparts, each of which shall be deemed an original and all of which, when
together shall constitute one and the same instrument. A facsimile signature on
a counterpart of this Agreement shall be deemed to be an original version of
this Agreement.
(Page 40 of 70 Pages)
<PAGE>
4.9 Gender. All pronouns used herein are inserted for
convenience only and shall be applied in the masculine, feminine, or third
person as appropriate for each party signing hereto.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date and year first above written.
---------------------------
Richard W. Clark
---------------------------
Richard G. Lubic
---------------------------
Michael Risman
---------------------------
Milton Miller
---------------------------
Mathew Lasky
---------------------------
Ed Lonergan
---------------------------
Sal Lanza
---------------------------
Peter Landau, Esq.
---------------------------
Byron Lasky
L. F. Holdings
By:------------------------
Name:
Title:
---------------------------
Ronald Formella
(Page 41 of 70 Pages)
<PAGE>
----------------------
Stewart Sytner
IMED Management Corporation
By:___________________
Name:
Title:
(Page 42 of 70 Pages)
<PAGE>
EXHIBIT A
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT dated as of June 8, 1999 (this "Agreement") by
and among those persons or entities whose names and addresses appear on the
signature pages hereof (individually, the "Shareholder" and collectively, the
"Shareholders") and Mr. Richard W. Clark, as Trustee (together with his
successors in trust, the "Trustee") and InfoAmerica, Inc., a Colorado
corporation ("IFOA" or the "Company").
W I T N E S S E T H :
WHEREAS, the Shareholders own the number of restricted shares of common
stock ("Common Stock") of the Company, and in the amounts and manner set forth
opposite each Shareholder's name on Exhibit A attached hereto; and
WHEREAS, the Trustee has consented to serve as Trustee under this
Agreement for the purposes herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, and for other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties intending to be
legally bound hereby agree as follows:
(Page 43 of 70 Pages)
<PAGE>
1. Agreement.
Copies of this Agreement, and of every agreement supplemental
hereto or amendatory hereof, shall be filed at the office of the Trustee's legal
counsel, Martin Eric Weisberg, Esq., Parker Chapin Flattau & Klimpl, LLP, 1211
Avenue of the Americas, New York, New York 10036, which copies shall be
available for inspection of the holder of a voting trust certificate issued
pursuant hereto (each a " Voting Trust Certificate") during business hours and
with the Secretary of the Company, which copies shall be available for
inspection by a shareholder of the Company who also is a holder of a Voting
Trust Certificate at the principal corporate office of the Company. Voting Trust
Certificates shall be issued to the Shareholders, received and held subject to
all of the terms and provisions of this Agreement. Every Shareholder entitled to
receive a Voting Trust Certificate, and thus each such Shareholder's permitted
transferees and assigns, upon accepting such Voting Trust Certificate, shall be
bound by all of the terms and provisions of this Agreement, with the same force
and effect as if such person or other entity were a signatory to this Agreement.
2. Independence of Trustee.
Except as otherwise expressly provided herein, the Trustee
shall be entitled to exercise all powers under this Agreement in his sole and
absolute discretion. The Trustee shall have no liability to any Shareholder, any
holder of a Voting
(Page 44 of 70 Pages)
<PAGE>
Trust Certificate or any other person or entity for any action or inaction by
the Trustee (including, without limitation, any vote by the Trustee), unless a
final judgment by a court of competent jurisdiction, from which no appeal may be
taken, determines that the action or inaction of the Trustee constituted willful
misconduct.
3. Transfer of Shares to Trustee.
The Shareholders shall deposit with the Trustee certificates
representing all of the Shares listed on Exhibit B attached hereto (the
"Shares"). All such certificates shall be endorsed, or accompanied by such
instruments of transfer (such as duly executed blank stock powers), so as to
enable the Trustee to cause such certificates to be transferred into the name of
the Trustee, as hereinafter provided. Upon receipt by the Trustee of the
certificates representing any Shares and such instruments of transfer, the
Trustee shall hold the same subject to the terms of this Agreement, and subject
to the terms of a Voting and Shareholders Agreement dated as of the date hereof,
entered into by the Shareholders, the Company and the Trustee (the "Voting and
Shareholders Agreement") and shall thereupon issue and deliver to the
Shareholders a Voting Trust Certificate for the Shares so deposited. All
certificates representing Shares transferred and delivered to the Trustee
pursuant to this Agreement shall be surrendered by the Trustee to the Company
and canceled, and new certificates therefor shall be issued to and held by the
Trustee
(Page 45 of 70 Pages)
<PAGE>
in the name of "Richard W. Clark, as Trustee" (or in the name of
the then successor Trustee, if any, as Trustee).
4. Voting Trust Certificates.
The Voting Trust Certificates shall be in the form annexed
hereto as Exhibit C.
5. Transfer of Certificates.
The Voting Trust Certificates shall be transferable at the
office of the Trustee's legal counsel, on the books of the Trustee, by the
registered owner thereof, either in person or by attorney thereunto duly
authorized, upon surrender thereof, according to the rules from time to time
established for that purpose by the Trustee, but only to the extent that any
such transfer is permitted by the terms of the Voting and Shareholders
Agreement; and the Trustee may treat the registered holder as the owner thereof
for all purposes whatsoever; but he shall not be required to deliver New Voting
Trust Certificates representing Shares without the surrender of the related
Voting Trust Certificate. No transfer of a Voting Trust Certificate may be
effected unless the Trustee receives proof of compliance with the provisions of
the Voting and Shareholders Agreement from the Company. If a Voting Trust
Certificate is lost, stolen, mutilated or destroyed, the Trustee may, in the
Trustee's sole and absolute discretion, issue a duplicate of such certificate
upon receipt of: (a) evidence of such fact satisfactory to Trustee; (b)
indemnity satisfactory to the Trustee; (c) the
(Page 46 of 70 Pages)
<PAGE>
existing certificate, if mutilated; and (d) payment of the Trustee's reasonable
fees and expenses (including, without limitation, reasonable attorneys' fees and
expenses) in connection with the issuance of a new Voting Trust Certificate. The
Trustee shall not be required to recognize any transfer of a Voting Trust
Certificate not made in strict accordance with the provisions of the Agreement
and the Voting and Shareholders Agreement.
6. Termination Procedure.
Upon the termination of this Agreement at any time, as
hereinafter provided, the Trustee, at such times as the Trustee may choose
during the period commencing twenty (20) days before such termination shall mail
written notice of such termination to the registered owners of the Voting Trust
Certificates at the addresses appearing on the transfer books of the Trustee.
After the date specified in any such notices (which date shall be fixed by the
Trustee), the Voting Trust Certificates shall cease to have any effect, and the
holders of the Voting Trust Certificates shall have no further rights under this
Agreement other than to receive certificates representing Shares or other
property distributable under the terms hereof and upon the surrender of the
Voting Trust Certificates. Within thirty (30) days after the termination of this
Agreement, the Trustee shall request the Company to deliver to the registered
holders of the Voting Trust Certificates stock certificates representing the
number of shares represented by the Voting Trust Certificates upon the surrender
thereof properly endorsed, such delivery to be made in each case
(Page 47 of 70 Pages)
<PAGE>
at the Company's principal place of business. Following any such request by the
Trustee to the Company, the Trustee shall have no further duties or obligations
hereunder and the Trustee shall not be required to take any further action
hereunder.
7. Dividends.
Prior to the termination of this Agreement, the holders of the
Voting Trust Certificates shall be entitled to receive payment equal to the cash
dividends, if any, received by the Trustee upon the Shares subject to Voting
Trust Certificates. If any dividend in respect of such Shares is paid by the
Company, in whole or in part, in stock of the Company having general voting
powers, the Trustee shall likewise hold, subject to the terms of this Agreement,
the certificates representing stock which are received by Trustee on account of
such dividend, and the holder of the Voting Trust Certificate on which such
stock dividend has been paid shall be entitled to receive a Voting Trust
Certificate issued under this Agreement for the number of shares and class of
stock received as such divided with respect to the Shares represented by the
Voting Trust Certificate. Holders entitled to receive the dividends described
above shall be those registered as such on the transfer books of the Trustee at
the close of business on the day fixed by the Corporation for the taking of a
record to determine those holders of its stock entitled to receive such
dividends or, if the Trustee has fixed a date, as hereinafter provided, for the
purpose of determining the holders of the Voting Trust Certificates entitled to
receive such payment
(Page 48 of 70 Pages)
<PAGE>
or distribution then registered as such at the close of business
on the date so fixed by the Trustee.
If any dividend in respect of Shares is paid in property other
than in cash or in capital stock having general voting powers, then the Trustee
shall, after receipt thereof by the Trustee, distribute the same to the holders
of the Voting Trust Certificates registered as such at the close of business on
the day fixed by the Trustee for taking a record to determine the holders of the
Voting Trust Certificates entitled to receive such distribution. Such
distribution shall be made to such holders of the Voting Trust Certificates in
accordance with the number of Shares represented by the Voting Trust
Certificates.
The transfer books of the Trustee may be closed temporarily by
the Trustee for a period not exceeding ten (10) days preceding the date fixed
for the payment or distribution of dividends of the distribution of assets or
rights, or at any other time in the sole and absolute discretion of the Trustee.
In lieu of providing for the closing of the books against the transfer of the
Voting Trust Certificates, the Trustee may fix a date not exceeding ten (10)
days preceding any date fixed by the Company for the payment or distribution of
dividends, or for the distribution of assets or rights, as a record date for the
determination of the holders of the Voting Trust Certificates entitled to
receive such payment or distribution, and the holders of the Voting Trust
Certificates of record at the close of
(Page 49 of 70 Pages)
<PAGE>
business on such date shall exclusively be entitled to participate in such
payments or distributions.
In lieu of receiving cash dividends upon the Shares and paying
the same to the holders of the Voting Trust Certificates pursuant to the
provisions of this Agreement, the Trustee may instruct the Company in writing to
pay such cash dividends directly to the holders of the Voting Trust
Certificates. Upon such instructions being given by the Trustee to the Company,
and until revoked by the Trustee, all responsibility of the Trustee with respect
to such dividends shall cease. The Trustee may at any time revoke such
instructions and by written notice to the Company direct it to make dividend
payments to the Trustee.
10. Subscription Rights.
In the event any stock or other securities of the Company are offered for
subscription to the holder of the Shares, the Trustee, upon receipt of notice of
such offer, shall mail a copy thereof to the holders of the Voting Trust
Certificates.
11. Dissolution of the Company.
In the event of the dissolution or total or partial
liquidation of the Company whether voluntary or involuntary, the Trustee shall
receive the moneys, securities, rights or property to which the holders of the
Voting Trust Certificates are entitled and shall distribute the same to the
registered holders of the Voting Trust Certificates in accordance with the
interest,
(Page 50 of 70 Pages)
<PAGE>
as shown on the books of the Trustee, or the Trustee may, in his sole and
absolute discretion, deposit such moneys, securities, rights or property with
any bank or trust company doing business in New York, New York or Los Angeles,
California, with authority and instructions to distribute the same as above, and
upon such deposit, all further obligations or liabilities of the Trustee in
respect of such moneys, securities, rights or property so deposited shall cease.
12. Reorganization of the Company.
In the event the Company is merged into or consolidated with
another corporation, and all or substantially all of the assets of the Company
are transferred to another corporation, then in connection with such transfer,
the term "Company" for all purposes of this Agreement shall be taken to include
such successor corporation, and the Trustee shall receive and hold under this
Agreement any stock of such successor corporation received on account of the
ownership, as Trustee hereunder, of the Shares held hereunder prior to such
merger, consolidation or transfer. The Voting Trust Certificates issued and
outstanding under this Agreement at the time of such merger, consolidation or
transfer may remain outstanding, or the Trustee may, in his sole and absolute
discretion, substitute for such Voting Trust Certificates new Voting Trust
Certificates in appropriate form, and the term "Shares" as used herein shall be
taken to include any shares of Voting stock which may be received by the Trustee
in lieu of all or any part of the Shares.
(Page 51 of 70 Pages)
<PAGE>
13. Rights and Powers of Trustee.
Until (i) the surrender of the Voting Trust Certificates for
cancellation, and (ii) the actual delivery to the holders of the Voting Trust
Certificate or certificates representing Shares in exchange therefor, the
Trustee shall possess and be entitled, subject to the provisions hereof, in the
Trustee's sole and absolute discretion, to exercise, in person or by his
nominees or proxies, all the rights and powers of an absolute owner of the
Shares deposited hereunder, including, without limitation, the right to receive
dividends on Shares and the right to vote, consent in writing or otherwise act
with respect to any corporate or shareholder's resolution or action to the
fullest extent permitted by applicable law.
The Trustee is further authorized to become a party to or
prosecute or defend or intervene in any actions or legal proceedings with
respect to the Shares, and the Shareholders and the holders from time to time of
the Voting Trust Certificates agree to indemnify the Trustee and to hold the
Trustee harmless from any such suit or legal proceeding.
15. Liability of Trustee.
In acting hereunder with respect to the Shares, the Trustee
shall have responsibility in respect of any action taken by the Trustee, or any
of the Trustee's agents or any omission to act by any of them, and the Trustee
shall incur no responsibility
(Page 52 of 70 Pages)
<PAGE>
be reason of any error of law or of any things done or suffered or omitted by
the Trustee hereunder or in any matter related hereto, except for those acts
which are determined by a court of competent jurisdiction in a final judgment
from which no appeal may be taken, to have been a direct result of the willful
misconduct. The Trustee shall not be required to give a bond or other security
in connection with the Trustee's duties hereunder. If the Trustee determines to
obtain such a bond, the cost thereof shall be paid by the Company.
16. Successor Trustee.
The Trustee (and any successor Trustee) may at any time resign
as Trustee hereunder by mailing to the registered holders of the Voting Trust
Certificates a written resignation, to take effect twenty (20) days thereafter
or upon the new Trustee agreeing to act as Trustee hereunder. Upon the death or
resignation of Richard W. Clark, and upon the death or resignation of any
successor Trustee acting hereunder, a successor Trustee shall be designated by
the Company. The rights, power and privileges of the Trustee shall be possessed
by the successor Trustees, with the same effect as though such successors had
originally been parties to this Agreement.
17. Term.
This Agreement shall remain in effect for as long as the
Voting and Shareholders Agreement is in effect in accordance with its terms. The
terms "Shareholder" and "Shareholders" as
(Page 53 of 70 Pages)
<PAGE>
defined herein shall be deemed to include any and all such transferees, unless
the context indicates otherwise.
18. Compensation and Reimbursement of Trustee.
The Trustee shall serve without compensation. The Trustee
shall have the right to incur and pay such reasonable expenses and charges and
to employ and pay such agents, attorneys and counsel as he may deem necessary
and proper for carrying this Agreement into effect. Any such expenses or charges
incurred by the Trustee shall be promptly reimbursed by the Company. The Company
shall, after making payment to the Trustee, be entitled to bill the holders of
the Voting Trust Certificates for the amount paid to the Trustee.
19. Shareholder's Representations and Warranties.
Each Shareholder represents and warrants to the Trustee that
the Shareholder owns that number of Shares set forth opposite his or her name on
Exhibit A hereto, free and clear of all liens, claims and encumbrances of any
kind whatsoever other than restrictions on transfer arising under federal and
state securities laws and the Voting and Shareholders Agreement.
20. Notices.
Any notice, request or other communication required to be
given pursuant to the provisions hereof shall be in writing and shall be deemed
to be given when actually received by the
(Page 54 of 70 Pages)
<PAGE>
addressee, when delivered in person, or five (5) days after being deposited with
the United States Postal Service, post prepaid, registered or certified, return
receipt requested, and addressed as follows: (a) if to the Trustee, to: Richard
W. Clark, c/o Martin Eric Weisberg, Esq., Parker Chapin Flattau & Klimpl, LLP,
1211 Avenue of the Americas, New York, New York 10036, and (b) if to the
Shareholder, to the Shareholder at the address set forth below the Shareholder's
name on Exhibit A hereto, or such other address as may be furnished in writing
by the Shareholder provided that notice of address shall only effective upon
receipt.
21. Miscellaneous.
A. Costs and Fees. If any party or parties breaches any
provision of this Agreement, the breaching party or parties agrees to pay the
non-breaching party or parties all reasonable attorneys' fees and expenses,
expert witness fees, investigation costs, costs of tests and analysis, travel
and accommodation expenses, deposition and trial transcript costs, court costs
and other costs and expenses incurred by the non-breaching party in enforcing
this Agreement and/or preparing for legal or other proceedings, at the trial or
appellate level, whether or not such proceedings are instituted. If any legal or
other proceedings are instituted, the party prevailing in any such proceeding
shall be paid all of the aforementioned costs, expenses and fees, by the other
party, and if any judgment is secured by such prevailing party, all such costs,
expenses and fees shall be included in such judgment. References in this
paragraph to
(Page 55 of 70 Pages)
<PAGE>
"legal proceedings" refer to the arbitration proceedings contemplated hereby and
proceedings to enforce the decision of the arbitrator or arbitrators.
B. Waiver. No delay by a party in exercising any right or
remedy shall constitute a waiver of a party's rights under this Agreement, and
no waiver by any party of the breach of any covenant of this Agreement by the
other shall be construed as a waiver of any proceeding or succeeding breach of
the same or any other covenant or condition of this Agreement.
C. Broker. Each party represents to the other that such party
has not dealt with any other person acting as a broker in connection with this
transaction other than Edwin Lonergan. The Broker's commission shall be paid
pursuant to a separate agreement, a true correct and complete copy of which is
attached to the Merger and Plan of Reorganization as Exhibit H.
D. Termination. This Agreement may, by notice given prior
to or at the Closing, be terminated:
i. by either IFOA or the Sellers if a material
breach of any provision of this Agreement is committed by the Sellers and/or the
Acquiree Corporations, in the case of IFOA, and IFOA, in the case of the
Sellers, and such breach is not to be waived;
ii. (i) by IFOA if any of the conditions in
Sections 6.1 and 6.3 of Article VI of the Merger Agreement and
(Page 56 of 70 Pages)
<PAGE>
Plan of Reorganization have not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than through
the failure of IFOA or the Buyer, to comply with any of their respective
obligations under this Agreement) and IFOA has not waived such condition on or
before the Closing Date; or (ii) by Sellers, if any of the conditions in
Sections 6.2 and 6.3 of Article VI of the Merger Agreement and Plan of
Reorganization have not been satisfied as of the Closing Date or if satisfaction
of such a condition is or becomes impossible (other than through the failure of
Sellers to comply with any of their respective obligations under this Agreement)
and IFOA has not waived such condition on or before the Closing Date;
iii. by mutual consent of IFOA and Sellers; or
iv. by either IFOA or Sellers if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before June 15, 1999, or such later date as the parties may mutually agree upon
in writing.
E. Notices. No notice, consent, approval or communication
provided for herein or given in connection herewith shall be validly given,
made, delivered or served unless it is in writing and delivered personally, sent
by overnight courier, or sent by registered or certified United States mail,
postage prepaid, with return receipt requested, to the addresses for each party
set forth below. Any party hereto may from time to time change its address by
notice to the other parties given in the
(Page 57 of 70 Pages)
<PAGE>
manner provided herein. Notices, consents, approvals and communications by mail
in the United States mail in the manner provided above or upon delivery to the
respective addresses set forth above if delivered personally or sent by
overnight courier.
Addresses of the parties are the following:
To IFOA:
InfoAmerica, Inc.
2600 Canton Court
Suite G
Fort Collins, CO 80525
To the Sellers:
Mr. Richard W. Clark
3003 West Olive Avenue
Burbank, CA 91505-4590
Mr. Richard Lubic
c/o Country Cable
Box 4400-123
S.R. 3
Tehachapi, CA 93561
With a copy to:
Parker Chapin Flattau & Klimpl, LLP
(Page 58 of 70 Pages)
<PAGE>
1211 Avenue of the Americas
New York, NY 10036-8735
Attention: Martin Eric Weisberg, Esq.
To the Buyer:
Mr. Paul Knight
InfoAmerica, Inc.
2600 Canton Court
Suite G
Fort Collins, CO 80525
With a copy to:
Alan W. Peryam, Esq.
1120 Lincoln Street, Suite 1000
Denver, CO 80203
To the Buyer:
Mr. Larry Salmen
InfoAmerica, Inc.
2600 Canton Court
Suite G
Fort Collins, CO 80525
With a copy to:
(Page 59 of 70 Pages)
<PAGE>
Alan W. Peryam, Esq.
1120 Lincoln Street, Suite 1000
Denver, CO 80203
F. Interpretation and Time. The captions of the sections of
this Agreement are for convenience only and shall not govern or influence in the
construction or interpretation hereof. This Agreement is the result of
negotiations among the parties and, accordingly, shall not be construed for or
against any party regardless of which party drafted this Agreement or any
portion thereof. Time is of the essence under this Agreement.
G. Successors and Assigns. All of the provisions hereof shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto. This Agreement may not be assigned by any party hereto,
without the prior written consent of the other parties hereto.
H. No Partnership. This Agreement is not intended to, and
nothing contained in this Agreement shall, create any partnership, joint venture
or other similar arrangement among the parties. This Agreement is between
independent contracting parties who have been advised by legal counsel of their
own choosing about entering into this Agreement.
I. Further Assurances. Each of the parties shall
execute and deliver all such other documents and perform such other acts, in
addition to execution and delivery of this
(Page 60 of 70 Pages)
<PAGE>
Agreement, as are from time to time necessary in order to carry out the
purposes, matters and transactions that are contemplated in this Agreement.
J. Incorporation of Exhibits. All Exhibits and Schedules
attached to this Agreement are hereby incorporated herein by reference and form
an integral part of this Agreement.
K. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, without giving
effect to the conflict of law provisions or principles of that State.
L. Date of Performance. If the date of performance of any
obligations or the last day of any time period provided for herein should fall
on a Saturday, Sunday or legal holiday, then said obligation shall be due and
owing and said time period shall expire on the first day thereafter which is not
a Saturday, Sunday or legal holiday. Except as may otherwise be set forth
herein, any performance provided for herein shall be timely made if completed no
later than 5:00 P.M., Pacific time, on the day of performance.
M. Counterparts. This Agreement may be executed in any number
of counterparts. This Agreement may be signed by original signatures or by
facsimile signatures. Any set of counterparts of this Agreement, whether
facsimile or originals or
(Page 61 of 70 Pages)
<PAGE>
both, showing signatures by all parties, taken together, shall constitute a
single copy of this Agreement.
N. Resolution of Disputes. In the event of any disputes among
the parties as to their rights and obligations under this Agreement, including,
but not limited to, any question as to whether or not a party has performed its
obligations fully or remedied an alleged breach and any and all other disputes
arising under this Agreement shall be resolved as follows:
i. The parties shall submit their dispute to at
least four (4) hours of mediation in accordance with the mediation procedures of
American Arbitration Association ("AAA"). Any mediation session shall be held in
the City and State of New York.
ii. In the event the dispute does not then settle
within fifteen (15) calendar days after the first mediation session, the parties
agree to submit the dispute to binding arbitration which shall be held in the
City and State of New York in accordance with the rules and procedures of the
AAA (except as modified in this Agreement). The submission to arbitration
hearing shall be no later than forty-five (45) calendar days after the first
mediation session. The parties agree that arbitration shall be the exclusive
means of resolving any such dispute.
(Page 62 of 70 Pages)
<PAGE>
iii. The arbitrator or arbitrators conducting the
arbitration hearing shall render the arbitration decision in writing, which
writing shall explain the reasoning and basis for the decision. The decision of
the arbitrator or arbitrators shall be conclusive and binding on the parties and
not subject to any judicial review or appeal. The decision of the arbitrator or
arbitrators may be enforced in any court of competent jurisdiction.
iv. The parties agree to share equally the costs
of mediation. However, if the dispute is settled through arbitration, the
prevailing party shall be entitled to recover all costs and expenses incurred by
the prevailing party, including, without limitation, reasonable attorneys' fees
and expenses, to enforce its rights hereunder, in addition to any damages
recovered, as provided in "Costs and Fees" above.
O. Recitals. The recitals set forth above are a part of this
Agreement.
P. Jurisdiction and Venue. Exclusive venue and jurisdiction
over any legal proceeding to enforce a judgment of the arbitrator or arbitrators
hereunder shall be in the federal and state courts located in New York County,
New York.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement of the date first above written.
------------------------------------
RICHARD W. CLARK, AS VOTING TRUSTEE
(Page 63 of 70 Pages)
<PAGE>
AGREED TO BY
INFOAMERICA, INC.
By: ----------------------------------------
Name:
Title:
---------------------------------------------
Michael Risman
---------------------------------------------
Milton Miller
---------------------------------------------
Mathew Lasky
---------------------------------------------
Ed Lonergan
---------------------------------------------
Sal Lanza
---------------------------------------------
Peter Landau, Esq.
(Page 64 of 70 Pages)
<PAGE>
Byron Lasky
L. F. Holdings
By:--------------------------------------------
Name:
Title:
-----------------------------------------------
Ronald Formella
-----------------------------------------------
Stewart Sytner
IMED Management Corporation
By: -------------------------------------------
Name:
Title:
(Page 65 of 70 Pages)
<PAGE>
Exhibit A
Name Shares
---- ------
Michael Risman 600,000
Milton Miller 600,000
Mathew Lasky 400,000
Ed Lonergan 500,000
Sal Lanza 250,000
Peter Landau, Esq. 600,000
Byron Lasky 300,000
L. F. Holdings 1,600,000
Ronald Formella 200,000
Stewart Sytner 900,000
IMED Management 874,485
Corporation
(Page 66 of 70 Pages)
<PAGE>
Exhibit B
Name Shares
---- ------
Michael Risman 200,000
Milton Miller 200,000
Mathew Lasky 133,333
Ed Lonergan 500,000
Sal Lanza 166,666
Peter Landau, Esq. 200,000
Byron Lasky 100,000
L. F. Holdings 533,333
Ronald Formella 66,666
Stewart Sytner 300,000
IMED Management 291,495
Corporation
(Page 67 of 70 Pages)
<PAGE>
Exhibit C
VOTING TRUST CERTIFICATE
No. [___] [_____] shares
Richard W. Clark, as Trustee of the stock of InfoAmerica, Inc., (the
"Company") under a Voting Trust Agreement dated as of June 8, 1999 (the "Voting
Trust Agreement"), having received certain shares of stock of the Company
pursuant to such Agreement, which Agreement the holder hereof by accepting this
Certificate ratifies and adopts, hereby certifies that Richard W. Clark, as
Trustee will be entitled to receive a certificate for [_____________ (____)
fully paid shares of the common stock of the Company, without par value, on the
expiration of the Voting Trust Agreement, and in the meantime shall be entitled
to receive payments equal to any dividends that may be collected by the
undersigned Trustee upon a like number of such shares held by her under the
terms of the Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the
books of the undersigned Trustee by the registered holder in person or by his or
her duly authorized attorney, and the holder hereof, by accepting this
certificate, manifests his or her consent that the undersigned Trustee may treat
the registered holder hereof as the true owner for all purposes, except the
delivery of stock certificates, which delivery of stock certificates shall not
be made without the surrender hereof.
(Page 68 of 70 Pages)
<PAGE>
IN WITNESS WHEREOF, Richard W. Clark has executed this
Voting Trust Certificate this 9th day of June, 1999.
----------------------
Richard W. Clark
Trustee
(Form of Assignment):
For value received, hereby assigns the within Voting Trust
Certificate, and all rights and interests represented thereby, to and appoints
attorney to transfer this Voting Trust Certificate on the books of
the Trustee mentioned therein, with full power of substitution.
Dated: (Seal)
In presence of
(Page 69 of 70 Pages)
<PAGE>
Schedule 1
Name Shares
---- ------
Michael Risman 600,000
Milton Miller 600,000
Mathew Lasky 400,000
Ed Lonergan 500,000
Sal Lanza 250,000
Peter Landau, Esq. 600,000
Byron Lasky 300,000
L. F. Holdings 1,600,000
Ronald Formella 200,000
Stewart Sytner 900,000
IMED Management 874,485
Corporation
(Page 70 of 70 Pages)
