SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
September 27, 1995
GOLD SECURITIES CORPORATION
(Exact name of registrant as specified in its charter)
IDAHO
(State or other Jurisdiction of Incorporation)
1-8958 91-1224178
(Commission File No.) (I.R.S. Employer Identification No.)
One Kalisa Way, Suite 108, Paramus, New Jersey 07652
(Address of principal executive offices) (zip code)
Registrant's telephone number including area code (201) 261-5234
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Item 2. Acquisition or Disposition of Assets
Pursuant to an Agreement dated September 27, 1995 (the
"Agreement"), Kidsview, Inc., a New Jersey corporation ("KVI"),
acquired certain assets (the "Assets") from Direct Connect
International Inc., a Delaware corporation ("DCI"). KVI is a
wholly owned subsidiary of Evolutions, Inc., a New Jersey
corporation ("EVI"), which in turn is wholly owned by Gold
Securities Corporation (the "Company"). The Assets consist of
DCI's business to the extent that it relates to manufacturing,
promoting and selling Zoo Borns and Tea Bunnies brand toy
animals, including the marks KIDSVIEW, ZOO BORNS AND TEA BUNNIES.
In consideration for the purchase, EVI, among other things,
released DCI of an aggregate of $1,100,000 in indebtedness to
EVI. The Agreement provides that DCI shall again become liable
for repayment of such indebtedness upon the exercise by DCI of an
option to purchase 80% of the Common Stock of KVI. This option
expires on December 31, 1995 and shall become exercisable if
certain financing arrangements in connection with the Assets have
not been completed by the Company by October 31, 1995. In
addition, the Company agreed to issue to DCI 1,500,000 shares of
its Common Stock, which issuance is contingent upon shareholders'
approval of a proposal to increase the number of shares the
Company is authorized to issue. Up to an additional 4,000,000
shares of the Company's Common Stock will be issued to DCI if
over a period of three years certain net sales and earnings tests
are met in connection with the business acquired from DCI.
Under the terms of the Agreement, KVI and DCI also entered
into a management agreement pursuant to which DCI will make
available to KVI Peter Schneider, DCI's President, to manage the
Assets. The management agreement provides for a monthly fee of
up to $100,000. The management agreement has a term of one year,
subject to two automatic one-year extensions if certain net sales
and earnings tests are met.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
Complete financial statements for DCI as required by this
item will be filed at a later date within the time period
proscribed by this Item.
(b) Pro Forma Financial Information
Pro forma financial information will be filed within the
time period proscribed by this Item.
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(c) Exhibits
1 Agreement, dated September 27, 1995 by and among the
company, EVI, KVI, DCI and Amerawell Products Limited.
2 Management Agreement dated September 27, 1995 by
and between KVI and DCI.
The Schedules to these agreements are in
standard form and are omitted.
Registrant will on request of the
Securities and Exchange Commission
supplementally file all omitted
schedules.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
GOLD SECURITIES CORPORATION
By /s/ Michael Nafash
Michael Nafash, President
Date: October 10, 1995
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EXHIBIT 1
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AGREEMENT
AGREEMENT dated as of September 27, 1995 by and among GOLD
SECURITIES CORPORATION, an Idaho corporation with an office at
One Kalisa Way, Paramus, New Jersey 07652 ("GSC"), EVOLUTIONS,
INC., a New Jersey corporation which is wholly owned by GSC and
which has an office at One Kalisa Way, Paramus, New Jersey 07652
("Evo"), KIDSVIEW, INC., a New Jersey corporation which is wholly
owned by Evo and which has an office c/o Evo ("KVI"), DIRECT
CONNECT INTERNATIONAL INC., a Delaware corporation with offices
at 700 Godwin Avenue, Midland Park, New Jersey 07432 ("DCI"), and
AMERAWELL PRODUCTS LIMITED, a Hong Kong company which is wholly
owned by DCI ("Amerawell").
W I T N E S S E T H:
Preliminary Statement
DCI owes Evo $750,000 in principal amount under a secured
promissory note dated as of March 2, 1995 (the "Existing Loan").
Evo also owns warrants to purchase 100,000 shares of the Common
Stock of DCI at an exercise price of $.10 per share and warrants
to purchase 250,000 shares of the Common Stock of DCI at an
exercise price of $.20 per share. DCI also owes Evo $350,000
(the "New Loan") for amounts advanced by Evo to DCI after the
date of the Existing Loan.
DCI owns certain rights in and to Zoo Borns and Tea Bunnies
toy animals (the "Products"), the marks Kidsview, Zoo Borns and
Tea Bunnies (the "Marks"), and conducts the business of
manufacturing, promoting and selling the Products (the
"Business"). Amerawell acts as the agent of DCI in Hong Kong.
The term "Assets" as used herein means the Business and all
of the assets which DCI uses in the Business (other than cash and
accounts receivable arising before the Closing as hereinafter
defined) including, without limitation, all inventory and work in
process with respect to the Business, the Marks, the Products,
all ideas, concepts and discoveries with respect to the Business,
all receivables for the Products which shall arise from and after
the Closing, together with all of DCI's books and records in
connection with the Business, as set forth in the DCI Disclosure
Schedule.
KVI is a wholly owned subsidiary of Evo which has been newly
incorporated for the purpose of the transactions contemplated
hereby.
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It is contemplated that the parties will seek before October
31, 1995 privately to place not more than $2,500,000 in debt
and/or equity financing to finance the Products and the Business,
and that shares of Common Stock of GSC ("GSC Common Stock") will
be issued in such financing (the "Financing") at not less than
$2.00 per share.
Accordingly, in consideration of the foregoing and for other
good and valuable consideration, the parties hereto hereby agree
as follows:
1. (a) Subject to and upon the terms and conditions set forth
in this Agreement, DCI shall at the Closing sell, assign and
transfer the Assets to KVI. The Assets shall be conveyed free and
clear of all liens, claims and encumbrances, but subject to
rights of others which are disclosed in the Disclosure Schedule
(as hereinafter defined).
(b) (i) The purchase price for the Assets consists of
1,500,000 shares of GSC Common Stock, and the assumption by KVI
of the Existing Loan and the release by Evo of DCI's obligations
in respect of the Existing Loan and (except as theretofore
credited under Section 2(c)(ii)(B)) the New Loan. Reference is
made to Section 5 for terms on which DCI shall again become
liable for the Existing Loan and the New Loan, in which event the
collateral currently held by Evo for the Existing Loan and the
New Loan (the "Collateral") shall again secure the Existing Loan
and the New Loan. At the Closing, Evo shall deliver the
Collateral for the Existing Loan and the New Loan to DCI;
provided, however, that the Collateral shall be returned to Evo
in the event the Call (as hereinafter defined) is exercised. DCI
hereby covenants that the Collateral returned herewith will not
be sold, transferred, made subject to a security interest,
pledged, hypothecated or otherwise disposed of until the
expiration of the Call.
(ii) Notwithstanding GSC's obligation to issue GSC
Common Stock to DCI as provided herein, no shares of GSC Common
Stock are to be issued hereunder unless and until shareholders of
GSC shall have voted to increase the number of shares GSC is
authorized to issue and GSC shall have filed an amendment to its
certificate of incorporation increasing the number of authorized
shares. GSC will use its best efforts to accomplish the
foregoing as soon as practicable. As soon as practicable after
the filing of such amendment, GSC shall issue 500,000 shares to
DCI, and to deliver the balance of such shares in escrow to Evo's
counsel (the "Escrow Agent"), together with stock powers therefor
endorsed in blank, subject to release as provided herein.
(c) (i) If DCI is obligated to indemnify Evo under Section
11 of this Agreement, DCI shall join with Evo in a joint notice
to Escrow Agent wherein such parties jointly direct the Escrow
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Agent to release to Evo shares of GSC Common Stock which have a
value (as set forth in Section (vii)) equal to the amount of such
indemnity liability, together with stock powers therefor endorsed
in blank.
(ii) On May 15, 1996, DCI agrees to join with Evo in a
joint notice to Escrow Agent wherein the persons signing such
notice direct the Escrow Agent to release to DCI 500,000 shares
of GSC Common Stock then held in escrow, less any shares
theretofore released under any other provision of this Agreement
or as to which there is a dispute.
(iii) On May 15, 1997 DCI agrees to join with Evo in a
joint notice to Escrow Agent wherein the persons signing such
notice direct the Escrow Agent to release to DCI the remaining
shares of GSC Common Stock then held in escrow, less any shares
theretofore released under any other provision of this Agreement
or as to which there is a dispute.
(iv) In the event of any dispute on whether any such
notice is required to be signed, such dispute shall be determined
exclusively by arbitration in New York City by the American
Arbitration Association.
(v) The Escrow Agent shall act only in accordance with
a joint notice as aforesaid or in accordance with a binding and
final arbitration award.
(vi) The parties acknowledge that Oscar D. Folger has
acted as counsel to Evo and GSC in connection with this
transaction, and that he may continue so to act notwithstanding
any dispute hereunder. The Escrow Agent shall be permitted to
rely on any notice he believes has been genuinely signed. He may
resign as Escrow Agent at any time and thereafter hold the escrow
assets as custodian until the parties jointly appoint a successor
escrow agent. He may interplead disputing parties in actions
filed by him hereunder in the New Jersey Federal or state courts.
The parties shall jointly and severally indemnify the escrow
agent for all loss, liability, cost, damage or expense he may
incur as escrow agent, except for actions or omissions which he
knows to be wrongful when taken or omitted.
(vii) For the purposes of this Section 1, each share of
GSC Common Stock shall be deemed to have a value (the "Per Share
Value") equal to $.06667.
(d) KVI assumes no liabilities or obligations whatsoever
except for liabilities and obligations listed as "continuing
development costs" in the DCI Disclosure Schedule. Without
limiting the generality of the foregoing, KVI shall assume no
liability in respect of:
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(i) any accounts payable by DCI or any indebtedness for
borrowed money incurred by DCI;
(ii) any claims against DCI by third parties (whether
for product liability, personal injury, tort or
otherwise) based upon an event occurring or a claim
arising before or after the Closing with respect to any
event occurring or claims arising before the Closing;
(iii) any taxes payable by DCI (including any taxes
payable by DCI as a result of DCI's participation in
the transaction contemplated hereby);
(iv) credits, claims or adjustments in respect of
services performed, or products sold by DCI, or
contracts terminated with DCI prior to the Closing; or
(v) any claim against DCI for legal, accounting or
other professional fees relating to this transaction.
(e) DCI absolutely and unconditionally represents and
warrants to GSC, and will at the Closing confirm to GSC, that:
(i) DCI will acquire the shares of GSC Common Stock
issuable at or after the Closing hereunder only for its
own account, for investment, and without a view to the
distribution thereof.
(ii) DCI has been given the opportunity to discuss
GSC's affairs with GSC's officers;
(iii) DCI understands that it may sell or otherwise
transfer the GSC Common Stock only if such transaction
is duly registered under the Securities Act of 1933, as
amended (the "Act") or if DCI shall have received the
favorable opinion of counsel to GSC to the effect that
such sale or other transfer may be made in the absence
of registration under the Act.
(iv) DCI acknowledges that the certificates
representing the GSC Common Stock will be legended to
reflect these restrictions, and stop transfer
instructions will apply.
(v) DCI realizes that the GSC Common Stock is not a
liquid investment, and that it may lose its entire
investment as a result of its receipt of the GSC Common
Stock.
(f) For the purposes of IRS Form 8594, Asset Acquisition
Statement under Section 1060 of the Internal Revenue Code of
1986, the purchase price shall be allocated as shall be agreed by
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the parties. The parties shall execute an IRS Form 8594 in
accordance with such allocation. Evo will prepare such Form and
deliver DCI's copy to DCI for filing by DCI. DCI will assist Evo
and provide Evo with any information necessary to be provided by
DCI for the completion of such Form.
2. Closing and Obligations at Closing.
(a) Closing. The Closing shall take place at the offices of
Oscar D. Folger, 521 Fifth Avenue, New York, New York 10175 on
the date hereof. The date of this Agreement is herein sometimes
referred to as the "Closing Date."
(b) Certain Obligations at Closing.
(i) At the Closing, DCI will deliver to KVI:
(A) A Bill of Sale duly executed by DCI in the
form of Exhibit 1;
(B) Such other good and sufficient instruments of
conveyance, assignment and transfer, in form and
substance reasonably satisfactory to KVI's counsel, as
shall be effective to vest in KVI good and marketable
title to the Assets;
(C) All contracts, files, computer records and
other data and documents included in the Assets;
(D) a copy of resolutions or consent of the Board
of Directors of DCI approving the execution and
delivery of this Agreement and the consummation of all
of the transactions contemplated hereby, duly certified
by an officer of DCI;
(E) a certified copy of DCI's Certificate of
Incorporation and By-Laws;
(F) certificates of good standing of DCI issued
not earlier than ten days prior to the Closing Date by
the Secretary of State of Delaware;
(G) All other documents required to be delivered
to GSC, Evo or KVI by DCI under the provisions of this
Agreement; and
(H) A certificate executed by the Chairman of the
Board of DCI, individually, dated the date of the
Closing, confirming the warranties and certifying the
accuracy of the representations made by DCI in this
Agreement.
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(ii) At the Closing, Evo will deliver or pay to DCI:
(A) an instrument which evidences the release of
DCI of its obligations with respect to the Existing
Loan and the New Loan accompanied by the Collateral;
(B) a copy of resolutions or consents of the board
of directors of Evo approving the execution and
delivery of this Agreement, and consummation of all of
the transactions contemplated hereby, duly certified by
an officer of Evo;
(C) a certified copy of Evo's Certificate of
Incorporation and By-Laws;
(D) a certificate of good standing of Evo issued
not earlier than ten days prior to the Closing Date by
the Secretary of State of New Jersey; and
(E) A certificate executed by the President of
Evo, individually, dated the date of the Closing,
certifying the accuracy of the representations and
warranties made by Evo in this Agreement.
(iii) At the Closing, GSC will deliver to DCI:
(A) a copy of resolutions or consents of the board
of directors of GSC approving the execution and
delivery of this Agreement, and consummation of all of
the transactions contemplated hereby;
(B) a certified copy of GSC's Certificate of
Incorporation and By-Laws; and
(C) a certificate of good standing of GSC issued
by the Secretary of State of Idaho;
(c) Management Contract.
(i) At the Closing, KVI shall enter into a management
agreement with DCI in the form of Exhibit 2 (the "Management
Contract").
(ii) Under the Management Contract, among other things:
(A) DCI must make Peter Schneider and such other
managers of DC's current toy business as are deemed
necessary by Peter Schneider (collectively,
"Management") available to KVI on the terms and
conditions set forth in Management Contract;
(B) KVI is obligated to pay to DCI a fee of
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$100,000 a month for the first five months after the
Closing, and a monthly fee thereafter equal to the
lesser of $100,000 or DCI's documented operating costs
to the extent directly related to the operation of the
Business in complying with Section (ii)(A), provided
that KVI shall be entitled to credit the New Loan
against the first $350,000 due under this Section (B)
commencing August 1, 1995; and
(C) an aggregate of 4,000,000 shares of GSC Common
Stock will be issued to DCI on the terms provided in
Section 3 (the "Earn-Up Stock").
(d) Financial Statements after Closing. Promptly upon filing
of DCI's form 10-K for the fiscal year ended April 30, 1995, DCI
shall deliver to Evo audited financial statements of DCI as of
April 30, 1995 and for the year then ended. DCI represents and
warrants that such financial statements shall be prepared from
the books and records of DCI in accordance with generally
accepted accounting principles applied on a consistent basis and
shall fairly present the consolidated financial condition of DCI
at April 30, 1995, and the results of its operations for the year
then ended. Such financial statements shall be in form and
substance suitable for inclusion in filings under the federal
Securities Laws, and shall be accompanied by an auditor's opinion
which shall be made available for inclusion in such filings.
(e) At the Closing, the parties shall execute and/or cause
to be executed such further documents, and perform such further
acts, as may be necessary to transfer and convey the Assets to
KVI on the terms herein contained, and to otherwise comply with
the terms of this Agreement and consummate the transactions
contemplated hereby.
3. Special Provisions Regarding Earn-Up Stock
(a) The Earn-Up Stock shall be issued to DCI on the first
business day of the month following each of the first three
anniversaries of the date of this Agreement (each such date of
issuance being referred to herein as an "Issue Date").
(b) Notwithstanding the foregoing, the amount of Earn-Up
Stock which is issuable on an Issue Date shall be reduced pro
rata with the amount equal to the greater of (i) the percentage,
if any, by which net sales of KVI during the year ending on such
date is less than $18,000,000 or (ii) the percentage, if any, by
which pre-tax earnings of KVI during such year (less any pre-tax
losses incurred in years ending on any prior Exercise Date(s))
are less than $1,170,000. No Earn-Up Stock at all will be issued
on any Issue Date if (i) net sales of KVI during the year ending
on such date are less than $9,000,000 or (ii) pre-tax earnings of
KVI during such year (less any pre-tax losses incurred in years
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ending on any prior Issue Date(s)) are less than $585,000.
Reference is made to section 1(b) hereof pursuant to which KVI
shall assume the Existing Loan and the New Loan. The parties
agree that with respect to the calculation of pre-tax earnings
hereunder, no effect shall be given to the accrual of interest on
the Existing Loan and the New Loan
4. Certain Post Closing Obligations
(a) After the Closing, at reasonable times and on reasonable
notice Evo, at its expense, shall have reasonable access to, and
the opportunity to make copies of, the books and records
pertaining to the Business prior to the Closing, and such books
and records shall be retained for access and copying for a period
of five years after the Closing.
(b) From and after the Closing, DCI shall cease, and shall
cause its affiliates to cease, to use any of the Marks or any
mark which is confusingly similar to any of the Marks.
(c) (i) From and after the Closing, DCI shall have the
right and authority to collect for its own account all of its
receivables for Products as of the Closing. In the event Evo
shall receive any payment of any such receivables or other items,
arising from before the Closing, Evo shall forthwith deliver such
payment to DCI, endorsed where necessary, without recourse, in
favor of DCI.
(ii) In the event DCI shall after the Closing receive
any payment of such receivables or other items which are included
in the Assets or which otherwise belongs to Evo, DCI shall
forthwith deliver such payment to Evo endorsed, where necessary,
without recourse, in favor of Evo.
(iii) Amounts received from any customer shall be
applied against invoices in the chronological order in which the
invoices were submitted. However, in the event a customer
disputes any invoice, payments from such customer shall be
applied to the oldest invoices to such customer in respect of
which there is no dispute. Also, in the event a customer
designates a payment as being on account of a specific invoice,
such designation shall be dispositive. However, Evo shall not
solicit any such designation by customers.
(d) Evo shall lend to DCI additional funds up to a maximum
principal amount of $11,550 per month for twelve months
commencing January 1, 1996 to cover DCI's monthly operating costs
to the extent such costs are not directly related to the
operation of the Business, which loans will be evidenced by a
grid note in the form attached hereto as Exhibit 3; provided,
that DCI will execute and deliver to Evo Warrants to purchase two
shares of DCI Common Stock at 25% of the then market price for
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each dollar borrowed from Evo under this Section. As used
herein, the term market price shall mean the average of the bid
and the ask price as reported in the over the counter market or
the last reported sale price as reported on a national securities
exchange if the Common Stock is then traded on a national
securities exchange on the last day preceding each day on which
any funds are advanced under this Section. The form of the
Warrants is set forth in Exhibit 4.
5. Call
(a) The parties shall use their joint best efforts to cause
the Financing to be completed on or before October 31, 1995.
(b) (i) If for whatever reason, the Financing shall not
have been consummated by the close of business on October 31,
1995, then DCI shall have the right and option (the "Call") to
purchase from Evo 80% of the outstanding shares of KVI provided
that:
(A) such shares shall be simultaneously pledged
by DCI to Evo as additional security for the Existing
Loan and the New Loan;
(B) DCI shall simultaneously direct the Escrow
Agent to release to Evo all shares of GSC Common Stock
held in escrow by the Escrow Agent;
(C) pursuant to documentation in form and
substance reasonably satisfactory to Evo, KVI and DCI
shall be jointly and severally responsible for the
Existing Loan and the New Loan;
(D) The exercise of the Call shall automatically
cancel the Management Contract and the right to receive
Earn-Up Stock.
(ii) The Call shall be exercisable by notice given to
Evo on or before December 31, 1995. The exercise price of the
Call shall be the GSC Common Stock theretofore delivered by GSC
or the Escrow Agent to DCI under Section 1(b) and the
reassumption by DCI of the Existing Loan and the New Loan
(including all interest theretofore accrued and all interest
accruing thereafter). In order to be valid, the notice of
exercise of the Call must be accompanied by (1) a certificate for
the GSC Common Stock, together with a stock power therefor
endorsed in blank, (2) assumption agreements with respect to the
Existing Loan and the New Loan in form and substance satisfactory
to Evo, (3) 133,973 shares of Glasgal Communications, Inc. which
prior to the date hereof were held by Evo and which were returned
to DCI under Section 1(b), as collateral security for the
Existing Loan and the New Loan (including all interest
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theretofore accrued and all interest accruing thereafter),
accompanied by stock powers therefor endorsed in blank, and (4)
written representations by DCI that the GSC Common Stock and the
Glasgal shares are being transferred by DCI to Evo free and clear
of all liens, claims and encumbrances, and
(iii) Evo covenants that until exercise of the Call it
will maintain the shares subject to the Call free and clear of
all liens, claims and encumbrances, so that upon exercise of the
Call, DCI shall obtain ownership thereof free and clear of all
liens, claims and encumbrances other than the security interest
in favor of Evo which is referred to above.
6. Certain Covenants.
(a) The Board of each of Evo and KVI will initially consist
of Mike Nafash, Mark Mastroianni, David Katz, Paul Litwinczuk,
Peter Schneider and Barry Rosner; and
(b) the officers of Evo will be Mike Nafash who shall be
president and CEO of Evo, Peter Schneider who shall be president
of KVI and vice president of Evo, Paul Litwinczuk who shall be
secretary of Evo and KVI, and Mark Mastroianni who shall be Vice
President of Evo.
7. Representations and Warranties with respect to Evo and GSC
(a) Evo represents and warrants to DCI with respect to Evo
as follows:
(i) There are issued and outstanding an aggregate of
100 shares of Common Stock of Evo, all of which are owned of
record and beneficially by GSC. Except as set forth in Evo's
Disclosure Schedule, there are no outstanding subscriptions,
options, warrants, calls, contracts, demands, commitments,
convertible securities or other agreements or arrangements of any
character or nature whatever under which Evo is or may become
obligated to issue any equity interest in Evo.
(ii) Evo has delivered to DCI copies of Evo's unaudited
financial statements as of April 30, 1995 and audited financial
statements as of June 30, 1994 and for fiscal periods then ended.
The financial statements were prepared from the books and records
of Evo in accordance with generally accepted accounting
principles applied on a consistent basis and fairly present the
financial condition of Evo as at their respective dates, and the
results of its operations for the respective periods then ended,
except as otherwise noted therein.
(iii) Evo has conducted its business only in the
ordinary course and Evo has not suffered any change, event or
condition which, in any case or in the aggregate, has had a
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materially adverse affect on Evo's condition (financial or
otherwise), properties, assets, liabilities or operations,
including, without limitation, any change in Evo's revenues,
costs, backlog or relations with its employees, agents, customers
or suppliers.
(iv) (A) Except as and to the extent reflected or
reserved against on the face of the balance sheet as of April 30,
1995, as of April 30, 1995 Evo had no debts, liabilities or
obligations (whether absolute, accrued, contingent or otherwise)
of any nature whatsoever, including, without limitation, any
foreign or domestic tax liabilities or deferred tax liabilities
incurred in respect of or measured by Evo's income, or its
property or authorized or outstanding capital stock, for any
period prior to the close of business on April 30, 1995 or any
other debts, liabilities or obligations relating to or arising
out of any act, transaction, circumstance or state of facts which
occurred or existed on or before April 30, 1995, whether or not
then known, due or payable.
(B) Except as and to the extent reflected or
reserved against on the face of the balance sheet as of June 30,
1994, as of June 30, 1994 Evo had no debts, liabilities or
obligations (whether absolute, accrued, contingent or otherwise)
of any nature whatsoever, including, without limitation, any
foreign or domestic tax liabilities or deferred tax liabilities
incurred in respect of or measured by Evo's income, or its
property or authorized or outstanding capital stock, for any
period prior to the close of business on June 30, 1994 or any
other debts, liabilities or obligations relating to or arising
out of any act, transaction, circumstance or state of facts which
occurred or existed on or before June 30, 1994, whether or not
then known, due or payable.
(b) GSC represents and warrants to DCI as follows:
There are issued and outstanding an aggregate of 18,726,189
shares of GSC Common Stock. Except as set forth in GSC's
Disclosure Schedule, there are no outstanding subscriptions,
options, warrants, calls, contracts, demands, commitments,
convertible securities or other agreements or arrangements of any
character or nature whatever under which GSC is or may become
obligated to issue any equity interest in GSC. The GSC Common
Stock to be issued hereunder shall, upon issuance thereof, be
duly authorized, validly issued, fully paid and non-assessable.
8. Representations and Warranties with respect to KVI
Evo represents and warrants to DCI with respect to KVI as
follows:
(a) There are issued and outstanding an aggregate of 100
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shares of Common Stock of KVI, all of which are owned
beneficially and of record by Evo. There are no outstanding
subscriptions, options, warrants, calls, contracts, demands,
commitments, convertible securities or other agreements or
arrangements of any character or nature whatever under which Evo
is or may become obligated to issue any equity interest in Evo.
(b) KVI is newly formed, has not engaged in any business,
and has no material assets or liabilities.
9. Representations and Warranties of DCI and Amerawell.
DCI and Amerawell jointly and severally represent and
warrant to Evo as follows (except as otherwise disclosed in the
Disclosure Schedule with a reference to the particular Section to
which such exception refers):
(a) DCI is a corporation duly organized, validly existing
and in good standing under the laws of Delaware; it has all
requisite corporate power and authority and is entitled to carry
on its business as now being conducted and to own, lease or
operate its properties as and in the places where such business
is now conducted and such properties are now owned, leased or
operated. Amerawell is a Hong Kong company which is wholly owned
by DCI. DCI has no subsidiaries other than Amerawell. Amerawell
acts as the sales and procurement subsidiary of DCI in Hong Kong,
acts only under instructions of DCI, has no assets of its own and
conducts business only for and on behalf of DCI. All of
Amerawell's assets and liabilities are reflected on DCI's
consolidated financial statements. All of Amerawell's accounts
receivable and other assets which are generated with respect to
the Business from and after the Closing will be held by it as the
agent of Evo or KVI, and will be owned by Evo or KVI.
(b) (i) Neither the execution, delivery nor performance of
this Agreement by DCI will, with or without the giving of notice
or the passage of time, or both, conflict with, result in a
default, right to accelerate or loss of rights under, or result
in the creation of any lien, charge or encumbrance pursuant to,
any provision of DCI's certificate of incorporation or by-laws or
any franchise, mortgage, deed of trust, lease, license,
agreement, understanding, law, rule or regulation or any order,
judgment or decree to which DCI is a party or by which any of
them may be bound or affected. DCI has the full power and
authority to enter into this Agreement and to carry out the
transactions contemplated hereby, all proceedings required to be
taken by them or their stockholders to authorize the execution,
delivery and performance of this Agreement and the agreements
relating hereto have been properly taken and this Agreement
constitutes a valid and binding obligation of DCI.
(ii) Neither the execution, delivery nor performance of
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<PAGE>
this Agreement by Amerawell will, with or without the giving of
notice or the passage of time, or both, conflict with, result in
a default, right to accelerate or loss of rights under, or result
in the creation of any lien, charge or encumbrance pursuant to,
any provision of Amerawell's certificate of incorporation or
by-laws or any franchise, mortgage, deed of trust, lease,
license, agreement, understanding, law, rule or regulation or any
order, judgment or decree to which Amerawell is a party or by
which any of them may be bound or affected.
(c) DCI has good and marketable title to the Assets. None of
the Assets is subject to any mortgage, pledge, lien, charge,
security interest, encumbrance, restriction, lease, easement,
liability or adverse claim of any nature whatsoever, direct or
indirect, whether accrued, absolute, contingent or otherwise. The
Assets include all of the assets which DCI uses in the Business,
except for cash and accounts receivable arising before the
Closing. The Assets are in good operating condition and repair,
are suitable for the purposes used, and are adequate and
sufficient for the Business.
(d) (i) DCI has delivered to Evo copies of DCI's audited
financial statements as of April 30, 1995, 1994 and 1993, and
unaudited statements as of January 31, 1995, and for the fiscal
periods then ended. The financial statements were prepared from
the books and records of DCI in accordance with generally
accepted accounting principles applied on a consistent basis and
fairly present the consolidated financial condition of DCI as at
their respective dates, and the results of its operations for the
respective periods then ended, except as otherwise noted therein.
Such financial statements are in form and substance suitable for
inclusion in filings under the federal Securities Laws, and, with
respect to the financial statements as of each April 30, are
accompanied by an auditor's opinion.
(e) From and after January 31, 1995:
(i) DCI has conducted its business only in the
ordinary course,
(ii) DCI has not suffered any change, event or
condition which, in any case or in the aggregate, has
had a materially adverse affect on DCI's condition
(financial or otherwise), properties, assets,
liabilities or operations, including, without
limitation, any change in DCI's revenues, costs,
backlog or relations with its employees, agents,
customers or suppliers, and
(iii) DCI has not disposed of any Assets except for the
sale of inventory in the ordinary course.
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(f) There is no claim, legal action, suit, arbitration,
governmental investigation or other legal or administrative
proceeding, nor any order, decree or judgment in progress,
pending or in effect, or (to the knowledge of DCI) threatened,
against or relating to the Business or any Assets, and DCI and
Amerawell do not nor know or have reason to be aware of any basis
for the same.
(g) DCI and Amerawell have complied with all existing laws,
rules, regulations, ordinances, orders, judgments and decrees now
or hereafter applicable to the Business except with respect to
the delay in payment of certain royalties which is described in
the Disclosure Schedule. Neither the ownership nor use of DCI's
or Amerawell's properties nor the conduct of the Business
conflicts with the rights of any other person, firm or
corporation or violates, or with or without the giving of notice
or the passage of time, or both, will violate, conflict with or
result in a default, right to accelerate or loss of rights under,
any terms or provisions of its certificate of incorporation or
by-laws as presently in effect, or any lien, encumbrance,
mortgage, deed of trust, lease, license, agreement,
understanding, law, ordinance, rule or regulation, or any order,
judgment or decree to which DCI or Amerawell is a party or by
which it may be bound or affected. No representation is given
under this Section for immaterial matters which do not and will
not result in loss or liability in excess of an aggregate of
$50,000 for all such matters.
(h) The Disclosure Schedule contains an accurate and
complete list and description of:
(i) All molds, tools and dies relating to the Business.
(ii) All patents, patent applications, patent licenses,
trademarks, trademark registrations, and applications
therefor, service marks, service names, trade names,
copyrights and copyright registrations, and
applications therefor, wholly or partially owned or
held by DCI or Amerawell and used in the operation of
the Business.
(iii) All contracts, agreements, commitments or other
understandings or arrangements with respect to the
Business to which DCI or Amerawell is a party or by
which it or any of its property is bound or affected,
whether directly or through Amerawell or others as
DCI's agent, and whether or not legally binding,
including, without limitation, all currently
outstanding purchase and sale orders, all warranty
obligations and commitments, all contracts and licenses
relating to patents, trademarks, trade names,
copyrights, inventions, processes, know-how, formulae
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or trade secrets, and all arrangements relating to
holiday, vacation, Christmas and other bonus practices.
However, a contract need not be listed under this
Section if it is cancelable on not more than 30 days'
notice, or if financial commitments thereunder
aggregate not more than $5,000.
(i) All of the contracts, agreements, leases, licenses and
commitments required to be listed in the Disclosure Schedule are
valid and binding, enforceable in accordance with their
respective terms (except as the same may be subject to
bankruptcy, insolvency and similar laws generally affecting the
enforcement of creditors rights and to general principles of
equity), in full force and effect and validly assignable to Evo
without the consent of any other party so that, after the
transfer thereof to Evo pursuant hereto, Evo will be entitled to
the full benefits thereof. Except for delay in payment of
certain royalties which is described in the Disclosure Schedule,
there is not under any such contract, agreement, lease, license
or commitment any existing default, or event which, after notice
or lapse of time, or both, would constitute a default or result
in a right to accelerate or loss of rights. True and complete
copies of all such contracts, agreements, leases, licenses and
other documents (together with any and all amendments thereto)
have been delivered to Evo and initialled by DCI's Secretary and
identified with a reference to this Section of this Agreement.
(j) Except as set forth on the Disclosure Schedule, DCI owns
or possesses the royalty free licenses or other rights to use all
copyrights, trademarks, service marks, service names, trade names
and patents necessary to conduct the Business as it is presently
operated. DCI or Amerawell are not infringing upon or otherwise
acting adversely to any copyrights, trademarks, trademark rights,
service marks, service names, trade names, patents, patent
rights, licenses or trade secrets owned by any other person or
persons, and there is no claim or action by any such person
pending, or to the knowledge of DCI, Amerawell or any Shareholder
threatened, with respect thereto.
(k) None of the obligations or liabilities of DCI or
Amerawell is guaranteed by any other person, firm or corporation,
nor has DCI or Amerawell guaranteed the obligations or
liabilities of any other person, firm or corporation.
(l) All items of inventory and related supplies (including
raw materials, work-in-process and finished goods) of the
Business which are reflected on the most recent balance sheet
included in DCI's current SEC public reports (the "Balance
Sheet") or thereafter acquired (and not subsequently disposed of
in the ordinary course of business) are merchantable, or suitable
and usable for the production or completion of merchantable
products, for sale in the ordinary course of business as first
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quality goods at normal mark-ups.
(m) The books of account, minute books, stock certificate
books and stock transfer ledgers of DCI and Amerawell are
complete and correct in all material respects, and there have
been no transactions involving the Business which properly should
have been set forth therein and which have not been accurately so
set forth.
(n) DCI and Amerawell maintain no pension, defined
contribution or similar plan.
(o) Neither DCI nor Amerawell nor any officer, employee or
agent of DCI or Amerawell, nor any other person acting on its
behalf, has, directly or indirectly, within the past five years
given or agreed to give any gift or similar benefit to any
customer, supplier, governmental employee or other person who is
or may be in a position to help or hinder the Business (or assist
DCI in connection with any actual or proposed transaction) which
(A) might subject DCI to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (B), if not
given in the past, might have had an adverse effect on the
Assets, or (C), if not continued in the future, might adversely
affect the Assets or the Business or which might subject DCI to
suit or penalty in any private or governmental litigation or
proceeding.
(p) To the best of DCI's knowledge, no supplier or customer
is considering termination, non-renewal or adverse modification
of its agreement with DCI or Amerawell in respect of the
Business, and the transactions contemplated by this Agreement
will not have a material adverse effect on relationships with
suppliers and customers of the Business.
(q) No key employee of the Business has indicated that he or
she is considering terminating his or her employment.
10. First Refusal Right on Sales of Shares
DCI may sell all or any portion of its GSC Common Stock or
any record or beneficial interest therein (such shares or any
interest therein being referred to herein as the "shares"), or
enter into any other arrangement or relationship with respect
thereto, only if it shall first have offered the right to
purchase such shares to GSC for 15 business days. Such offer
shall be made on the price and terms in good faith proposed by a
bona fide third-party offeror. If the shares are not sold to
the third-party offeror within 30 days after lapse of the first
refusal rights of GSC, then and in such event the sale shall be
deemed not have been consummated and any future sale shall be
deemed to be a new offer subject in all respects to the rights of
first refusal established hereunder.
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11. Indemnification.
(a) Evo hereby indemnifies and agrees to hold DCI and
Amerawell harmless from, against and in respect of (and shall on
demand reimburse DCI and Amerawell for):
(i) any and all loss, liability or damage suffered or
incurred by DCI or Amerawell by reason of any untrue
representation, breach of warranty or non-fulfillment of any
covenant by Evo contained herein or in any certificate,
document or instrument delivered to DCI or Amerawell
pursuant hereto or in connection herewith;
(ii) any and all loss, liability or damage suffered or
incurred by DCI or Amerawell by reason of or in connection
with any claim for finder's fee or brokerage or other
commission arising by reason of any services alleged to have
been rendered to or at the instance of Evo with respect to
this Agreement or any of the transactions contemplated
hereby; and
(iii) any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses,
including, without limitation, reasonable legal fees and
expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose
the imposition thereof, or in enforcing this indemnity.
(b) DCI and Amerawell jointly and severally hereby indemnify
and agree to hold Evo harmless from, against and in respect of
(and shall on demand reimburse Evo for):
(i) any and all loss, liability or damage suffered or
incurred by Evo by reason of any untrue representation,
breach of warranty or non-fulfillment of any covenant by DCI
or Amerawell contained herein or in any certificate,
document or instrument delivered to Evo pursuant hereto or
in connection herewith;
(ii) any and all loss, liability or damage suffered or
incurred by Evo by reason of or in connection with any claim
for finder's fee or brokerage or other commission arising by
reason of any services alleged to have been rendered to or
at the instance of DCI with respect to this Agreement or any
of the transactions contemplated hereby; and
(iii) any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses,
including, without limitation, reasonable legal fees and
expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose
the imposition thereof, or in enforcing this indemnity.
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<PAGE>
12. Nature and Survival of Representations and Warranties.
All statements, representations, warranties, indemnities,
covenants and agreements made by each of the parties hereto shall
survive the date of this Agreement, without limit as to duration.
13. Notices.
Any and all notices, service of process or other
communications required or permitted to be given under any of the
provisions of this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or
forwarded by Federal Express addressed to the parties at the
addresses set forth above (or at such other address as any party
may specify by notice to all other parties given as aforesaid).
14. Miscellaneous.
(a) This writing together with other writings dated this
date constitute the entire agreement of the parties with respect
to the subject matter hereof and may not be modified, amended or
terminated except by a written agreement specifically referring
to this Agreement signed by all of the parties hereto.
(b) No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving
such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(c) This Agreement shall be binding upon and inure to the
benefit of each party hereto, its successors and assigns.
(d) The paragraph headings contained herein are for the
purposes of convenience only and are not intended to define or
limit the contents of said paragraphs.
(e) Each party hereto shall cooperate, shall take such
further action and shall execute and deliver such further
documents as may be reasonably requested by any other party in
order to carry out the provisions and purposes of this Agreement.
(f) This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one
original.
(g) This Agreement and all amendments thereof shall be
governed by and construed in accordance with the law of the State
of New Jersey applicable to contracts made and to be performed
therein.
(h) The federal and state courts sitting in Newark, New
Jersey shall have exclusive jurisdiction on all matters relating
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to this Agreement. TRIAL BY JURY IS EXPRESSLY WAIVED.
(i) In the event of a breach or threatened breach by either
party, the other party shall be entitled to decrees of specific
performance, without posting bond or security, in addition to
such other remedies as may be available.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
GOLD SECURITIES CORPORATION
By /s/ Michael Nafash
EVOLUTIONS, INC.
By /s/ Michael Nafash
KIDSVIEW, INC.
By /s/ Michael Nafash
DIRECT CONNECT INTERNATIONAL INC.
By /s/ Joseph Salvani
AMERAWELL PRODUCTS LIMITED
By /s/ Peter Schneider, Director
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GSC Disclosure Schedule
7(b) Various individuals own options to purchase a post-split aggregate
of 500,000 shares of GSC Common Stock.
There are no other disclosure schedules for GSC, Evo or KVI.
<PAGE>
EXHIBIT 2
<PAGE>
MANAGEMENT AGREEMENT
AGREEMENT dated as of September 27, 1995 by and between
KIDSVIEW, INC., a New Jersey corporation with an office at One
Kalisa Way, Paramus, New Jersey 07652 ("KVI"), and DIRECT CONNECT
INTERNATIONAL INC., a Delaware corporation with offices at 700
Godwin Avenue, Midland Park, New Jersey 07432 ("DCI").
W I T N E S S E T H:
Preliminary Statement
Pursuant to an agreement of even date herewith (the
"Agreement"), KVI is concurrently herewith purchasing from DCI the
Assets (as defined in the Agreement). DCI has heretofore conducted
the business of dealing in and with the Assets (the "Business").
Amerawell Products Ltd. ("Amerawell") has acted as the sales and
procurement subsidiary of DCI for Business under instructions from
DCI, and from and after the date of this Management Agreement,
Amerawell will act exclusively as the agent of KVI with respect to
the Business in accordance with Section 1(b). Amerawell is a wholly
owned subsidiary of DCI.
Accordingly, in consideration of the foregoing and for other
good and valuable consideration, the parties hereto hereby agree as
follows:
1. DCI will manage the Business subject to the supervision of
KVI's chief executive officer and KVI's board of directors. DCI will
make Peter Schneider and the other members of the DCI management team
available to KVI for this purpose, and DCI will provide a level of
support at least equal to the level of support provided to date to the
Business.
(a) As part of its services on behalf of KVI, DCI will
employ Amerawell as KVI's exclusive Hong Kong agent with respect to
the Business, and DCI shall not permit Amerawell to conduct any other
business or to assume any other liabilities, except that Amerawell may
on behalf of DCI continue to conduct the same business which it has
heretofore conducted for DCI.
(b) DCI's service will be provided from DCI's own
facilities.
2. The term of this agreement shall commence effective as of
the date hereof and shall terminate on September 30, 1996.
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(a) Notwithstanding the foregoing:
(i) the term of this Agreement shall be automatically
extended to September 30, 1997 if during the 12 months ending
September 30, 1996, both:
(A) the net sales of KVI are at least equal to
$9,000,000 and
(B) the pre-tax earnings of KVI are at least
equal to $585,000;
(ii) if the term of this Agreement was extended under
clause (i), the term of this Agreement shall be automatically further
extended to September 30, 1998 if during the 12 months ending
September 30, 1997 both:
(A) the net sales of KVI are at least equal to
$9,000,000 and
(B) the pre-tax earnings of KVI are at least
equal to $585,000; and
(iii) this Agreement shall terminate immediately should
Peter Schneider no longer be employed by DCI, unless such termination
shall be by reason of his death.
(b) The determination of KVI's independent accountants
shall be conclusive on the calculation of net sales and pre-tax
earnings.
3. DCI shall make available to KVI such office and telephone,
secretarial and other administrative facilities as shall be requisite
for the Business.
(a) DCI shall itself pay all fixed charges of Amerawell
which are allocable to DCI sales (based on the proportion which DCI
sales are of total sales). Such fixed charges are set forth in a
schedule hereto.
(b) KVI will bear the variable charges of Amerawell which
are set forth in a schedule hereto and which are directly related to
the business of KVI. KVI shall also be responsible for costs of goods
sold, and sales, marketing and advertising costs. Except to the extent
that operating costs shall be reflected in the fees to DCI referred to
in Section 4, KVI shall not bear any other costs or expenses of the
Business, and all such other costs and expenses shall be borne by DCI.
4. To cover operating costs of DCI and fixed charges payable to
Amerawell, KVI shall pay to DCI a fee of $100,000 a month for the
first five months after the date of this Agreement and a
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monthly fee thereafter equal to the lesser of $100,000 or DCI's
documented operating costs in performing its services under this
Agreement. For this purposes, operating costs of Amerawell shall be
allocated between DCI and KVI based on the respective proportion of
the sales conducted on their behalf by Amerawell. KVI shall be
entitled to a $350,000 credit against the first amounts due under this
Section commencing August 1, 1995. The application of such credit will
on a dollar for dollar basis (applied first to interest and then to
principal) reduce the amounts owing by DCI to Evolutions, Inc. ("Evo")
under a note dated July 25, 1995. The balance of the fees will be
paid by KVI as follows: $50,000 on November 15, 1995 and $100,000 on
December 1, 1995.
(a) DCI's current operating costs to the extent related to
the operation of the Business are set forth in a schedule attached
hereto. The prior written consent of KVI shall be required for each
increase in any operating costs listed in the schedule. Without
limiting the generality of the foregoing, the prior written consent of
KVI shall be required for any increase in compensation to any employee
or consultant, for the hiring or retention of any employee or
consultant, and for any capital expenditure or commitment.
(b) Reference is made to the Agreement for "Earn-Up Stock"
which the corporate parent of KVI has agreed to issue to DCI as
further compensation under this Agreement.
(c) Further reference is made to the Agreement for the
terms and conditions of loans by Evo to DCI to cover operating
expenses not directly related to the operation of the Business.
5. During and after the term of this Agreement, neither DCI nor
any of its employees and agents shall directly or indirectly use any
confidential information relating to KVI or disclose any such
knowledge or information to any person, firm, corporation or other
entity, for any reason or purpose other than in furtherance of KVI's
purposes and other than as required by judicial process upon 10 days'
notice to KVI. Upon the termination of DCI's engagement, irrespective
of the time, manner, or reason of termination, DCI shall immediately
surrender and deliver to KVI all of KVI's confidential information in
tangible form, e.g., all originals and all copies of books, records,
summaries, lists, and other tangible data, in every form and every
kind, relating to KVI or its business other than to matters which in
any way relate to the subject of this agreement.
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6. This agreement may not be changed or terminated orally. All
disputes shall be conclusively determined by the American Arbitration
Association in New York City.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement on the date and year set forth above.
KIDSVIEW, INC.
By /s/ Michael Nafash
DIRECT CONNECT INTERNATIONAL INC.
By /s/ Joseph Salvani
