SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Amendment No. )
X Filed by the Registrant
Filed by a Party other than the Registrant
Check the appropriate box:
X Preliminary Proxy Statement
__ Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
__ Definitive Proxy Statement
__ Definitive Additional Materials
__ Soliciting Materials Pursuant to Section 240.14a-11(c) of Section
240.14a-12
Internet Communications Corporation
(Name of Registrant as Specified In Its Charter)
Internet Communications Corporation
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
X No fee required.
__ Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11. (Set forth the amount on which the filing fee is
calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction: $___________
5) Total fee paid: $_______
__ Fee paid previously with preliminary materials.
__ Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid: __
2) Form, Schedule or Registration Statement No.: __
3) Filing Party: __
4) Date Filed:__
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INTERNET COMMUNICATIONS CORPORATION
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To the Record Holders of Common Stock
of Internet Communications Corporation:
NOTICE IS HEREBY GIVEN pursuant to the Colorado Business Corporation Act (the
"CBCA") that on February 23, 1999 a special meeting (the "Meeting") of all
shareholders of Internet Communications Corporation, a Colorado corporation (the
"Company"), of record on January 22, 1999 (the "Record Date"), will be held at
the offices of the Company at 7100 East Belleview Avenue, Suite 201, Greenwood
Village, Colorado 80111, at 10:00 a.m., Denver, Colorado time, to consider (i)a
proposal to ratify and approve the issuance of 50,000 shares of Series A
Convertible Preferred Stock ("Preferred Stock") of the Company and all shares of
Common Stock issuable upon conversion thereof, pursuant to a Securities Purchase
Agreement entered into between the Company and Interwest Group, Inc., the
Company's largest shareholder; and (ii) such other matters as may properly be
brought before the Meeting.
The Board of Directors has fixed the close of business on the Record Date for
the determination of shareholders entitled to notice and to vote at the Meeting
or any adjournment thereof. Only shareholders of record at the close of business
on the Record Date, whether or not they are are entitled to vote, are entitled
to notice of the Meeting and only holders of record of Common Stock at the close
of business on the Record Date are entitled to vote at the Meeting.
COMMON SHAREHOLDERS ARE URGED, WHETHER OR NOT THEY PLAN TO ATTEND THE MEETING,
TO SIGN, DATE AND MAIL THE ENCLOSED PROXY OR VOTING INSTRUCTION CARD IN THE
POSTAGE-PAID ENVELOPE PROVIDED. If a shareholder who has returned a proxy
attends the meeting in person, such shareholder may revoke the proxy and vote in
person on all matters submitted at the meeting.
By order of the Board of Directors
John M. Couzens, President
January 27, 1999
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Internet Communications Corporation
Proxy Statement
This Proxy Statement is being furnished to the shareholders of Internet
Communications Corporation, Inc., a Colorado corporation (the "Company"), as of
January 22, 1999 (the "Record Date"), in connection with a proposal (the
"Proposal") that the Company's shareholders ratify the issuance of 50,000 shares
of Series A Convertible Preferred Stock of the Company (the "Preferred Stock"),
and all shares of Common Stock issuable upon conversion thereof, pursuant to a
Securities Purchase Agreement entered into between the Company and Interwest
Group, Inc. ("Interwest"), the Company's largest shareholder. The Board has
approved the issuance of the Preferred Stock by a unanimous vote with Messrs.
Slater and Liebhabber, affiliates of Interwest, abstaining.
A special meeting (the "Meeting") of the shareholders of the Company, of record
on the Record Date, will be held at the offices of the Company at 7100 East
Belleview Avenue, Suite 201, Greenwood Village, Colorado 80111, at 10:00 a.m.,
Denver, Colorado time, on February 23, 1999, to consider approval of the
Proposal.
The date of this Proxy Statement is January 27, 1999. This Proxy Statement and
the accompanying form of proxy are being furnished by the Company and were first
mailed on or about January 27, 1999 to shareholders of the Company as of the
close of business on the Record Date.
As of the Record Date there were [5,617,637] shares of Common Stock of the
Company ("Common Stock") issued and outstanding and 50,000 shares of Preferred
Stock issued and outstanding (convertible as of the Record Date into 2,222,222
shares of Common Stock). Stockholders may vote in person or by proxy. Each
holder of shares of Common Stock available for voting is entitled to one vote
for each share of stock held on the proposal presented in this Proxy Statement.
The holders of Preferred Stock shall vote with the holders of Common Stock as a
single class, with each share of Preferred Stock entitled to the number of votes
that the holder would have if such shares were converted into Common Stock as of
the Record Date. Because 25,000 shares of the Preferred Stock are held in escrow
pending shareholder approval (the "Escrowed Shares"), those shares will not be
voted with respect to the Proposal. The Common Stock is traded on the Nasdaq
SmallCap Stock Market.
The presence, in person or by proxy, at the Meeting of the holders of one-third
of the Common Stock outstanding and entitled to vote at the Meeting is necessary
to constitute a quorum at the meeting.
Approval of the Proposal will require the affirmative vote of a greater number
of votes cast for the proposal than are cast against the proposal.
Abstentions may be specified on all proposals and will be counted as present for
purposes of determining the existence of a quorum regarding the item on which
the abstention is noted. Abstentions will have no effect on the vote. Under
applicable Colorado law, both an abstention and a broker non-vote will have no
effect on the outcome of the matters to be voted on at the Meeting.
The Company's largest shareholder, Interwest Group, Inc. ("Group"), beneficially
owning 3,984,679 shares (58.7%) of the Company's common stock (assuming
conversion of the Preferred Stock held by Group other than the Escrowed Shares),
intends to vote all of its shares in favor of the proposal.
At the date of this Proxy Statement, the Board of Directors of the Company does
not know of any business to be presented at the Meeting other than as set forth
in the notice accompanying this Proxy Statement. If any other matters should
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properly come before the Meeting, it is intended that the shares represented by
proxies will be voted with respect to such matters in accordance with the
judgment of the persons voting such proxies.
All properly executed proxies that are not revoked will be voted at the Meeting
in accordance with the instructions contained therein. If a holder of Common
Stock executes and returns a proxy and does not specify otherwise, the shares
represented by such proxy will be voted "for" approval and adoption of the
Proposal in accordance with the recommendation of the Board of Directors of the
Company. A holder of Common Stock who has executed and returned a proxy may
revoke it at any time before it is voted at the Meeting by (i) executing and
returning a proxy bearing a later date, (ii) filing written notice of such
revocation with the Secretary of the Company stating that the proxy is revoked
or (iii) attending the Meeting and voting in person.
In addition to solicitation by mail, the directors, officers, employees and
agents of the Company may solicit proxies from their shareholders by personal
interview, telephone, telegram or otherwise. The Company will bear the costs of
the solicitation of proxies from its shareholders. Arrangements will also be
made with brokerage firms and other custodians, nominees and fiduciaries who
hold of record securities of the Company for the forwarding of solicitation
materials to the beneficial owners thereof. The Company will reimburse such
brokers, custodians, nominees and fiduciaries for the reasonable out-of-pocket
expenses incurred by them in connection therewith.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth certain information as of the Record Date with
respect to each director and executive officer, each person who is known to the
Company to be the beneficial owner of more than five percent of the Common
Stock, and all directors and executive officers as a group.
Amount of
Beneficial Ownership Percent of Class
JOHN M. COUZENS (1)
President, CEO and Director 36,797 *
7100 E. Belleview Ave.
Suite 201
Greenwood Village, CO 80111
THOMAS C. GALLEY (2)
Director 580,978 10.3%
7100 E. Belleview Ave.
Suite 201
Greenwood Village, CO 80111
PETER A. GUGLIELMI (3)
Director 13,194 *
4951 Indiana Avenue
Lisle, IL 60532
WILLIAM J. MAXWELL (4)
Director 8,772 *
500 18/th/ Avenue, NE
Suite 2600
Bellevue, WA 98004
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CRAIG D. SLATER (5)
Director 3,986,630 58.7%
555 17/th/ St.
Suite 2400
Denver, CO 80202
ROBERT L. SMITH
Director 25,900 *
7100 E. Belleview
Suite 201
Greenwood Village, CO 80111
RICHARD LIEBHABER (6)
Director 3,984,679 58.7%
555 17/th/ St. Suite
2400 Denver, CO 80202
T. TIMOTHY KERSHISNIK (7)
Vice President, CFO, Treasurer
and Corporate Secretary -- *
7100 E. Belleview Ave.
Suite 201
Greenwood Village, CO 80111
MARY BETH LOESCH (8)
Vice President, Sales and
President, Advanced
Network Solutions Group 51,000 *
7100 E. Belleview Ave.
Suite 201
Greenwood Village, CO 80111
Charles Eazor (9)
Vice President/General Manager -- *
7100 E. Belleview Ave.
Suite 201
Greenwood Village, CO 80111
INTERWEST GROUP, INC. (10) 3,984,679 58.7%
555 17th St.
Suite 2400
Denver, CO 80202
ALL DIRECTORS AND EXECUTIVE
OFFICERS AS A GROUP (11) 4,703,271 68.6%
*Less than one percent.
(1) Share ownership represents 36,797 shares of common stock. Mr. Couzens also
has an option to purchase 70,000 shares of which none are presently exercisable.
(2) Share ownership includes 255,220 shares of Company Common Stock owned
beneficially and of record, 43,500 shares owned beneficially by virtue of his
wife's ownership of said shares and 282,258 shares owned beneficially and of
record in joint tenancy with his wife.
(3) Share ownership includes 1,194 shares and an option to purchase 12,000
shares which is presently exercisable.
(4) Share ownership includes 2,105 shares and an option to purchase 10,000
shares of which 6,667 is presently exercisable.
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(5) Mr. Slater is a director of Group. However, Mr. Slater disclaims beneficial
ownership of all shares except 1,951 shares which he owns beneficially and of
record.
(6) Mr. Liebhaber is a director of a subsidiary of Anschutz Company. Anschutz is
the sole shareholder of Group. Mr. Liebhaber disclaims beneficial ownership of
all shares held by Group.
(7) Mr. Kershisnik has an option to purchase 30,000 shares of which none are
presently exercisable.
(8) Share ownership includes 1,000 shares of Company Common Stock owned
beneficially and of record and an option to purchase 100,000 shares of which
50,000 is presently exercisable.
(9) Mr. Eazor has an option to purchase 30,000 shares of which none are
presently exercisable.
(10) Share ownership includes 2,810,410 shares of Company Common Stock owned
beneficially and of record, warrants to purchase 63,158 shares and 25,000 shares
of Preferred Stock which is convertible into 1,111,111 shares of Common Stock.
Philip F. Anschutz, the sole shareholder of Anschutz Company, the corporate
parent of Group, 555 17th Street, Suite 2400, Denver, Colorado 80202, exercises
sole voting and dispositive control over these shares. The number of shares
listed does not include conversion of the Escrowed Shares.
(11) Represents 11 persons as of December 31, 1998. Share ownership includes
3,986,630, shares reported in the table with respect to Messrs. Slater and
Liebhaber, who disclaim beneficial ownership of all such shares shares, except
that Mr. Slater acknowledges beneficial ownership of 1,951 of such shares.
PROPOSAL
TO RATIFY AND APPROVE THE ISSUANCE OF 50,000 SHARES OF
SERIES A CONVERTIBLE PREFERRED STOCK
AND ALL THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF
The Company and Group executed a Securities Purchase Agreement on December
30, 1998 (the "Securities Purchase Agreement"), pursuant to which 50,000 shares
of Preferred Stock were issued to Group at a price of $100 per share. A copy of
the Securities Purchase Agreement is attached as Annex A to this Proxy
Statement. Of the 50,000 shares issued, the 25,000 Escrowed Shares were placed
in escrow pending shareholder approval of the issuance. Of the $5,000,000
consideration, $2,200,000 was delivered to the Company at closing and an
additional $300,000 was applied to the Company's $1,600,000 convertible
promissory note in favor of Anschutz Company, Group's sole shareholder (the
"Anschutz Note"). The balance of the proceeds were paid by delivery of
$1,200,000 in cash and the Anschutz Note into escrow pending shareholder
approval of the issuance. The Company has applied $650,000 of the cash received
at closing to pay down its credit facility and intends to use the balance of the
cash for working capital. The Company intends to apply $850,000 of the escrowed
cash to further pay down its credit facility and and intends to use the balance
of the cash for working capital.
The Preferred Stock bears dividends at an annual rate equal to $7.125.
The dividends accrue and are cumulative and do not compound. Dividends are
payable quarterly in arrears commencing March 31, 1999, in (i) cash or (ii)
shares of Common Stock (based on the Closing Price (as defined in the Articles
of Amendment) of the Common Stock on the dividend payment date), as the Company
shall elect. Currently, the Board of Directors of the Company does not
anticipate declaring any dividends with respect to the Common Stock.
In the event of any liquidation, dissolution, or winding up of the
Company or the sale of all or substantially all of the assets of the Company, or
the acquisition of the Company by another entity by means of corporate
reorganizations or merger, or other transaction or series of related
transactions in which more than 50% of the outstanding voting power of the
Company is disposed of (a "Liquidation Event"), the holders of shares of
Preferred Stock will be entitled to be paid out of the assets of the Company
available for distribution to all stockholders $100.00 per share, plus an amount
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equal to all declared and unpaid dividends, prior to any amounts being paid to
the holders of Common Stock.
Holders of the Preferred Stock are entitled to the number of votes
equal to the number of shares of Common Stock into which such share of Preferred
Stock could be converted at the record date for determination of the
shareholders entitled to vote.
Shares of Preferred Stock may be converted into shares of Common Stock.
The number of shares to be received on conversion shall be the original purchase
price of $100 and all accrued and unpaid dividends, divided by $2.25. If at any
time the closing price of the Common Stock for 45 consecutive trading days is
equal to or greater than $10.00, the Company shall have the right to
automatically convert the Preferred Stock. The Common Stock received on
conversion will be deemed to be "Registrable Shares" subject to the terms of the
Registration Rights Agreement between the Company and Group dated as of May 29,
1998, as amended. The conversion price of $2.25 per Common Stock share was
determined by negotiation between the Company and Interwest and is equal to the
average of the high and low trading prices on the Nasdaq SmallCap Stock Market
on October 23, 1998, when the Company and Interwest first agreed in principle to
the sale of $2,000,000 of Preferred Stock. Subsequently, on December 18, 1998,
the Company and Interwest agreed to increase the amount of the investment to
$5,000,000, on the same terms. On that date, the closing price of the Common
Stock was $2.563 per share. On January 22, 1999, the closing price of the Common
Stock was $____ per share.
The Company may not, without first obtaining the consent of the holders
of a majority of the outstanding shares of Preferred Stock: (A) amend or repeal
any provision of, or add any provision to, the Company's Articles of
Incorporation or Bylaws if such action would alter or change the, rights of the
holders of Preferred Stock; (B) issue shares of any class or series of stock
having any preference or priority as to dividends or redemption rights,
liquidation preferences, conversion rights, or voting rights, superior to or on
a parity with any preference or priority of the Preferred Stock; (C) issue any
bonds, debentures, notes or other obligations convertible into or exchangeable
for, or having option rights to purchase, any shares of stock of the Company
having any preference or priority as to dividends or redemption rights,
liquidation preferences, conversion rights, or voting rights, superior to or on
a parity with any preference or priority of the Preferred Stock; (D) reclassify
any shares of capital stock into shares having any preference or priority as to
dividends or redemption rights, liquidation preferences, conversion rights, or
voting rights, superior to or on a parity with any preference or priority of any
series of the Preferred Stock; (E) apply any of its assets to the redemption,
retirement, purchase or acquisition, directly or indirectly, of any shares of
any class or series of Common Stock; (F) cause a Liquidation Event; (G) declare
or pay dividends on or make any distributions with respect to the Company's
Common Stock; (H) increase or decrease the authorized number of shares of
Preferred Stock; or (I) sell, lease, assign, transfer, convey or otherwise
dispose of the securities of any subsidiary.
A copy of the Articles of Amendment is attached as Annex B to this
Proxy Statement.
Shareholder ratification and approval of the issuance of the Preferred
Stock and related actions contemplated pursuant to the Securities Purchase
Agreement is not required under the Colorado Business Corporation Act, the
Company's Articles of Incorporation, or the Company's Bylaws. However, as
discussed below, shareholder approval of the issuance of the Escrowed Shares is
required in order to maintain the Company's inclusion in The Nasdaq Stock Market
SmallCap System.
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Nasdaq Shareholder Approval Requirement
The Company's Common Stock is traded on the over-the-counter market and
is quoted on The Nasdaq Stock Market SmallCap System. In order to qualify for
inclusion in The Nasdaq Stock Market SmallCap System, it is necessary that the
Company satisfy certain financial and other criteria set forth in The Nasdaq
Marketplace Rules (the "Rules"). In addition, in order to maintain such
inclusion under the Rules, the Company must, among other things, follow certain
corporate governance procedures, including obtaining shareholder approval in
connection with certain corporate transactions.
The Rules require shareholder approval of the issuance of 20% or more
of the common stock (or securities convertible into or exercisable for common
stock) outstanding before the issuance for less than the greater of book or
market value of the stock.
If the shares of Common Stock are converted into Common Stock, they
will be issued for $2.25 per share, which would be less than the greater of book
or market value of such shares on the date hereof. If all of the 50,000
Preferred Stock shares currently outstanding were converted on the date hereof,
the Company would have issued 39.6% of the number of shares of Common Stock
outstanding as of the date hereof. Accordingly, in order to comply with the
Rules, it will be necessary for the Company to obtain shareholder ratification
and approval of the issuance of the Preferred Stock (and the shares of Common
Stock issuable upon conversion thereof) pursuant to the Securities Purchase
Agreement.
Requirements for Continued Nasdaq Listing
Although the Common Stock is currently quoted on The Nasdaq Stock
Market SmallCap System, the Company has in the past failed to meet the
requirements of Nasdaq Marketplace Rule 4310(c)(2) which requires that an issuer
maintain (i) net tangible assets of $2,000,000; (ii) market capitalization of
$35,000,000; or (iii) net income of $500,000 in the most recently completed
fiscal year or in two of the last three most recently completed fiscal years.
The Company believes this deficiency will be remedied upon shareholder approval
of the Preferred Stock financing. There can be no assurance, however, that the
Company will continue to meet such requirements in any future period.
If the Company is otherwise unable to meet The Nasdaq Stock Market
SmallCap System's continuing listing requirements described above, Nasdaq may
take appropriate action against the Company, including placing restrictions on
or additional requirements for listing of its Common Stock or the denial of
listing of its Common Stock. If the Company's Common Stock is delisted from The
Nasdaq Stock Market SmallCap System, the Company will become subject to the
Securities and Exchange Commission's "penny stock" rules, and as a result, an
investor will find it more difficult to dispose of, or to obtain accurate
quotations as to the price of, the Company's Common Stock.
The "penny stock" rules under the Securities and Exchange Act of 1934
impose additional sales practice and market-making requirements on
broker-dealers who sell and/or make a market in such securities. For
transactions covered by the penny stock rules, a broker-dealer must make special
suitability determinations for purchasers and must have received the purchaser's
written consent to the transaction prior to sale. In addition, for any
transaction involving a penny stock, unless exempt, the rules require delivery
prior to any transaction in a penny stock of a disclosure schedule prepared by
the Commission relating to the penny stock market. Disclosure is also required
to be made about commissions payable to both the broker-dealer and the
registered representative and current quotations for the securities. Finally,
monthly statements are required to be sent disclosing recent price information
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for the penny stock held in the account and information on the limited market
and penny stocks. As a result, the Company's delisting from The Nasdaq Stock
Market SmallCap System and its becoming subject to the rules on penny stock
would negatively affect the ability or willingness of broker-dealers to sell or
make a market in the Company's securities and, therefore, would severely and
adversely affect the market liquidity for the Company's Common Stock.
Although the issuance of the shares of Series A Preferred Stock pursuant to
the Securities Purchase Agreement will have a dilutive effect on the Company's
current stockholders, the Board of Directors believes that shareholder approval
of the Proposal is in the best interest of the Company, in order to help the
Company meet Nasdaq listing requirements, to pay down debt and to provide
additional working capital.
Impact of a Vote Against Issuance
If the Company's shareholders do not approve the Proposal, the Escrowed
Shares will be returned to the Company and the purchase of the Escrowed Shares
for $2,500,000 by Group will not be completed. In such a case the Company may no
longer qualify for inclusion on The Nasdaq Stock Market SmallCap System.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR RATIFICATION AND APPROVAL
OF THE ISSUANCE OF 50,000 SHARES OF PREFERRED STOCK (AND ALL SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION THEREOF) PURSUANT TO THE TERMS OF THE SECURITIES
PURCHASE AGREEMENT.
INDEPENDENT PUBLIC ACCOUNTANTS
It is expected that representatives of KPMG Peat Marwick LLP will be
present at the Meeting and available to answer questions.
SHAREHOLDERS' PROPOSALS
Any proposals of holders of Common Stock intended to be presented at the Annual
Meeting of Shareholders of the Company to be held in 1999 must have been
received by the Company, addressed to the Secretary at 7100 East Belleview
Avenue, Suite 201, Greenwood Village, Colorado 80111, no later than January 19,
1999, to be considered for inclusion in the proxy statement and form of proxy
relating to that meeting.
INCORPORATION BY REFERENCE
The Company incorporates by reference its Annual Report on Form 10-K for
the year ended December 31, 1997 and its Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998.
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ANNEX A
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT ("this Agreement"), dated as of
December 30, 1998, is entered into by and between Internet Communications
Corporation, a Colorado corporation (the "Company"), and Interwest Group, Inc.,
a Colorado corporation ("Buyer").
RECITALS
WHEREAS, the Company and Buyer are executing and delivering this
Agreement in accordance with and in reliance upon the exemption from securities
registration afforded, inter alia, by Rule 506 under Regulation D ("Regulation
D") as promulgated by the United States Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act"), and/or
Section 4(2) of the 1933 Act; and
WHEREAS, the Company wishes to sell to Buyer and Buyer wishes to
purchase from the Company, upon the terms and subject to the conditions of this
Agreement, shares of Series A Convertible Preferred Stock (the "Convertible
Preferred Stock") of the Company, which which will be convertible into shares of
Common Stock of the Company (the "Common Stock") upon the terms and subject to
the conditions of such Convertible Preferred Stock;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE.
a. Purchase; Certain Definitions.
(i) The Company agrees to sell to Buyer and Buyer agrees to purchase
from the Company 50,000 shares of Convertible Preferred Stock having the terms
and conditions set forth in the Articles of Amendment to the Articles of
Incorporation of the Company attached hereto as Annex I (the "Articles of
Amendment") at a purchase price of $100 per share.
(ii) Capitalized terms used and not defined herein shall have the
meanings given to them in the Articles of Amendment.
(iii) As used herein, the term "Securities" means the Preferred Stock
and the Common Stock issuable upon conversion of the Preferred Stock.
(iii) As used herein, the term "Purchase Price" means the purchase
price for the Preferred Stock.
b. Form of Payment; Delivery of Preferred Stock.
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(i) Upon execution and delivery of this Agreement, Buyer is paying the
Purchase Price for the Preferred Stock by delivering the following:
(A) $2,200,000 in immediately available funds to the Company;
(B) $300,000 in immediately available funds to Anschutz Company as a
prepayment of that certain Convertible Promissory Note dated March 20, 1998 from
the Company to Anschutz Company (the "Note);
(C) $1,200,000 in immediately available funds (the "Escrowed Cash") to
the escrow agent (the "Escrow Agent") identified in the Escrow Agreement
attached hereto as Annex II which is hereby adopted and incorporated by
reference herein; and
(D) the Note to the Escrow Agent, representing the $1,300,000 balance
of the Purchase Price.
(ii) Upon execution and delivery of this Agreement, the Company is
delivering one certificate representing 25,000 shares of Preferred Stock, duly
executed by or on behalf of the Company, to Buyer, and one certificate
representing 25,000 shares of Preferred Stock, duly executed by or on behalf of
the Company (the "Escrowed Certificate"), to the Escrow Agent.
(iii) By signing this Agreement, each of Buyer and the Company, subject
to acceptance by the Escrow Agent, agrees to all of the terms and conditions of,
and becomes a party to, the Joint Escrow Instructions, all of the provisions of
which are incorporated herein by this reference as if set forth in full.
c. Escrow Property. The Escrowed Cash shall be invested at the
direction of Buyer.
d. Release of Escrow. Upon receipt of a letter from the Company prior
to April 1, 1999 stating that the Company's shareholders have approved the
issuance of the Preferred Stock to Buyer and the future conversion thereof to
common stock of the Company and stating that the Company's common stock
continues to be listed on Nasdaq, the Escrow Agent shall deliver to the Company
the Note and the Escrowed Cash with all interest earned thereon; and shall
deliver the Escrowed Certificate to Buyer. If such letter has not been delivered
prior to April 1, 1999, the Escrow Agent shall deliver to Buyer the Note and the
Escrowed Cash with all interest earned thereon; and shall deliver the Escrowed
Certificate to the Company.
2. BUYER REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to, and covenants and agrees with, the
Company as follows:
a. Buyer is purchasing the Preferred Stock and will be acquiring the
shares of Common Stock issuable upon conversion of the Preferred Stock (the
"Converted Shares") for its own account
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for investment only and not with a view towards the public sale or distribution
thereof and not with a view to or for sale in connection with any distribution
thereof.
b. All subsequent offers and sales of the Preferred Stock and the
shares of Common Stock representing the Converted Shares (such Common Stock
sometimes referred to as the "Shares") by Buyer shall be made pursuant to
registration of the Shares under the 1933 Act or pursuant to an exemption from
registration.
c. This Agreement has been duly and validly authorized, executed and
delivered on behalf of Buyer and is a valid and binding agreement of Buyer
enforceable in accordance with its terms, subject as to enforceability to
general principles of equity and to bankruptcy, insolvency, moratorium and other
similar laws affecting the enforcement of creditors' rights generally.
3. COMPANY REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to Buyer that:
a. Concerning the Preferred Stock and the Shares. The Preferred Stock
has been duly authorized, and when issued, will be duly and validly issued,
fully paid and non-assessable and will not subject the holder thereof to
personal liability by reason of being such holder. There are no preemptive
rights of any stockholder of the Company, as such, to acquire the Preferred
Stock or the Shares.
b. Reporting Company Status. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction
where the nature of the business conducted or property owned by it makes such
qualification necessary, other than those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the business, operations
or condition (financial or otherwise) of the Company. The Company has registered
its Common Stock pursuant to Section 12 of the 1934 Act, and the Common Stock is
listed and traded on The NASDAQ/SmallCap Market.
c. Authorized Shares. The Company has sufficient authorized and
unissued Shares as may be reasonably necessary to effect the conversion of the
Preferred Stock. The Converted Shares have been duly authorized and, when issued
upon conversion of, or as dividends on, the Preferred Stock in accordance with
the terms of the Articles of Amendment will be duly and validly issued, fully
paid and non-assessable and will not subject the holder thereof to personal
liability by reason of being such holder.
d. Securities Purchase Agreement and Stock. This Agreement and the
transactions contemplated thereby have been duly and validly authorized by the
Company, this Agreement has been duly executed and delivered by the Company and
this Agreement is the valid and binding agreement of the Company enforceable in
accordance with its terms, subject as to enforceability to general principles of
equity and to bankruptcy, insolvency, moratorium, and other similar laws
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affecting the enforcement of creditors' rights generally; and the Preferred
Stock will be duly and validly authorized and, when executed and delivered on
behalf of the Company in accordance with this Agreement, is a valid and binding
obligation of the Company in accordance with its terms, subject to general
principles of equity and to bankruptcy, insolvency, moratorium, or other similar
laws affecting the enforcement of creditors' rights generally.
e. Non-contravention. Assuming shareholder approval of the issuance of
the Escrowed Certificate and any subsequent conversion into Common Stock, the
execution and delivery of this Agreement and the issuance of the Securities, and
the consummation by the Company of the other transactions contemplated by this
Agreement and the Preferred Stock do not and will not conflict with or result in
a breach by the Company of any of the terms or provisions of, or constitute a
default under (i) the articles of incorporation or by-laws of the Company, each
as currently in effect, (ii) any indenture, mortgage, deed of trust, or other
material agreement or instrument to which the Company is a party or by which it
or any of its properties or assets are bound, including any listing agreement
for the Common Stock, (iii) any existing applicable law, rule, or regulation or
any applicable decree, judgment, or order of any court, United States federal or
state regulatory body, administrative agency, or other governmental body having
jurisdiction over the Company or any of its properties or assets, or (iv) the
Company's listing agreement for its Common Stock.
f. Approvals. No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, or stock
exchange or market or the shareholders of the Company (other than shareholder
approval as required by Nasdaq) is required to be obtained by the Company for
the issuance and sale of the Securities to Buyer as contemplated by this
Agreement, except such authorizations, approvals and consents that have been
obtained.
g. SEC Filings. None of the Company's filings with the Securities and
Exchange Commission ("SEC") contained, at the time they were filed, any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements made therein in light of
the circumstances under which they were made, not misleading. The Company has
made and will timely make in the future all required filings with the SEC.
h. Absence of Certain Changes. Since January 1, 1998, there has been no
material adverse change and no material adverse development in the business,
properties, operations, condition (financial or otherwise), or results of
operations of the Company, except as disclosed in the Company's SEC filings.
Since January 1, 1998, except as disclosed in the Company's SEC filings, the
Company has not (i) incurred or become subject to any material liabilities
(absolute or contingent) except liabilities incurred in the ordinary course of
business consistent with past practices; (ii) discharged or satisfied any
material lien or encumbrance or paid any material obligation or liability
(absolute or contingent), other than current liabilities paid in the ordinary
course of business consistent with past practices; (iii) declared or made any
payment or distribution of cash or other property to stockholders with respect
to its capital stock, or purchased or redeemed, or made any agreements to
purchase or redeem, any shares of its capital stock; (iv) sold, assigned or
transferred any other tangible assets, or canceled any debts or claims, except
in the ordinary course of business consistent with past practices; (v) suffered
any substantial losses or waived any rights of material value, whether or not in
the ordinary course of business, or suffered the loss of any material amount
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of existing business; (vi) made any changes in employee compensation, except in
the ordinary course of business consistent with past practices; or (vii)
experienced any material problems with labor or management in connection with
the terms and conditions of their employment.
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
a. Transfer Restrictions. Buyer acknowledges that (1) the Securities
have not been and are not being registered under the provisions of the 1933 Act
and, except as provided in the Registration Rights Agreement, the Securities
have not been and are not being registered under the 1933 Act, and may not be
transferred unless (A) subsequently registered thereunder or (B) Buyer shall
have delivered to the Company an opinion of counsel, reasonably satisfactory in
form, scope and substance to the Company, to the effect that the Securities to
be sold or transferred may be sold or transferred pursuant to an exemption from
such registration; (2) any sale of the Securities made in reliance on Rule 144
promulgated under the 1933 Act may be made only in accordance with the terms of
said Rule and further, if said Rule is not applicable, any resale of such
Securities under circumstances in which the seller, or the person through whom
the sale is made, may be deemed to be an underwriter, as that term is used in
the 1933 Act, may require compliance with some other exemption under the 1933
Act or the rules and regulations of the SEC thereunder; and (3) neither the
Company nor any other person is under any obligation to register the Securities
(other than pursuant to the Registration Rights Agreement) under the 1933 Act or
to comply with the terms and conditions of any exemption thereunder.
b. Restrictive Legend. Buyer acknowledges and agrees that the
Securities shall bear a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of any such
Securities):
THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
c. Filings and Shareholder Consent.
(i) The Company undertakes and agrees to make all necessary filings in
connection with the sale of the Preferred Stock to Buyer under any United States
laws and regulations applicable to the Company, or by any domestic securities
exchange or trading market, and to provide a copy thereof to Buyer promptly
after such filing.
(ii) The Company undertakes and agrees to take all steps necessary to have
a vote of the shareholders of the Company regarding authorization of the
Company's issuance to the holders of the Preferred Stock of shares of Common
Stock in excess of 20% of the outstanding shares of Common Stock in accordance
with NASDAQ Rule 4301(c)(25)(H)(i)(d)(2). The Company will use its best efforts
to obtain such approval and will recommend to the shareholders that such
authorization be granted and will seek proxies from shareholders not attending
the meeting naming a
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director or officer of the Company as such shareholder's proxy and directing the
proxy to vote, or giving the proxy the authority to vote, in favor of such
authorization. Upon receipt ofsuch authorization and if the Company's common
stock continues to be listed on Nasdaq, the Company will deliver to the Escrow
Agent the letter described in Section 1d. The Company will use its best efforts
to continue the listing of its Common Stock on The NASDAQ/SmallCap Market.
c. Available Shares. The Company shall have at all times authorized and
reserved for issuance, free from preemptive rights, shares of Common Stock
sufficient to satisfy the conversion rights of Buyer pursuant to the terms and
conditions of the Preferred Stock.
5. GOVERNING LAW: MISCELLANEOUS.
a. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Colorado for contracts to be wholly performed in such
state and without giving effect to the principles thereof regarding the conflict
of laws. Each of the parties consents to the jurisdiction of the federal courts
whose districts encompass any part of the City of Denver or the state courts of
the State of Colorado sitting in the City of Denver in connection with any
dispute arising under this Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum non
conveniens, to the bringing of any such proceeding in such jurisdictions.
b. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
c. If any provision of this Agreement shall be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement or the validity or
enforceability of this Agreement in any other jurisdiction.
d. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto.
e. All pronouns and any variations thereof refer to the masculine, feminine
or neuter, singular or plural, as the context may require.
f. A facsimile transmission of this signed Agreement shall be legal and
binding on all parties hereto.
g. This Agreement may be signed in one or more counterparts, each of
which shall be deemed an original.
h. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
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i. If any provision of this Agreement shall be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement or the validity or
enforceability of this Agreement in any other jurisdiction.
j. This Agreement may be amended only by an instrument in writing signed by
the party to be charged with enforcement thereof.
k. This Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof.
6. NOTICES.
Any notice required or permitted hereunder shall be given in writing
(unless otherwise specified herein) and shall be deemed effectively given on the
earliest of
(a) the date delivered, if delivered by personal delivery as against
written receipt therefor or by confirmed facsimile transmission,
(b) the seventh business day after deposit, postage prepaid, in the United
States Postal Service by registered or certified mail, or
(c) the third business day after mailing by international express courier,
with delivery costs and fees prepaid, in each case, addressed to each of the
other parties thereunto entitled at the following addresses (or at such other
addresses as such party may designate by ten (10) days' advance written notice
similarly given to each of the other parties hereto):
COMPANY: Internet Communications Corporation
7100 East Belleview Avenue, Suite 201
Greenwood Village, Colorado 80111
BUYER: Lynn Wood
Interwest Group, Inc.
2400 Anaconda Tower
555 - 17th Street Denver, CO 80202
ESCROW AGENT: Norwest Bank Colorado, National Association
Corporate Trust and Escrow Services
1740 Broadway
Denver, CO 80274-8693
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12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The Company's and Buyer's representations and warranties herein shall
survive the execution and delivery of this Agreement and the delivery of the
Preferred Stock and payment of the Purchase Price, and shall inure to the
benefit of Buyer and the Company and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties have caused this Securities Purchase
Agreement to be duly executed this 30th day of December, 1998.
Interwest Group, Inc.
By /s/ Craig D. Slater
Internet Communications Corporation
By /s/ John M. Couzens
The undersigned Escrow Agreement is executing this Agreement for purposes of
establishing the Escrow.
Norwest Bank Colorado, National Association,
Corporate Trust and Escrow Services
By /s/ Leigh M. Lutz
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Annex I
Articles of Amendment
Mail to: Secretary of State
Corporations Section
Please include a typed 1560 Broadway, Suite 200
self-addressed envelope Denver, CO 80202
(303) 894-2251
Fax (303) 894-2242
MUST BE TYPED
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF INTERNET COMMUNICATIONS CORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is INTERNET COMMUNICATIONS CORPORATION
SECOND: The following amendment to the Articles of Incorporation was adopted on
December __, 1998, as prescribed by the Colorado Business Corporation Act, in
the manner marked with an X below:
__ No shares have been issued or Directors Elected - Action by
Incorporators
__ No shares have been issued but Directors Elected - Action
by Directors
X Such amendment was adopted by the board of directors
where shares have been issued.
__ Such amendment was adopted by a vote of the
shareholders.The number of shares voted for the amendment
was sufficient for approval.
THIRD: The following section shall be added to the end of Section 2 of Article
IV:
(a) Series A Preferred Stock. The Board of Directors by resolution has
designated 50,000 of the shares of Preferred Stock "Series A Preferred Stock"
(the "Series A Preferred"). The relative rights, preferences, privileges, and
restrictions granted to or imposed upon the Series A Preferred or the holders
thereof are as follows:
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(i) Dividend Preference.
(A) When, as and if declared by the Board of Directors, the holders of
Series A Preferred shall be entitled to receive, out of funds legally available
therefor, dividends at an annual rate equal to $7.125 (as adjusted for
combinations, consolidations, subdivisions, or stock splits with respect to such
shares) for each outstanding share of Series A Preferred held by them, in
preference and priority to the payment of dividends on any shares of Common
Stock (other than those payable solely in Common Stock). The dividends payable
to the holders of the Series A Preferred shall accrue and be cumulative and
shall not compound. Dividends shall be payable quarterly in arrears commencing
March 31, 1999, in (i) cash or (ii) shares of Common Stock, as the Corporation
shall elect. If all or any portion of a dividend payment is to be paid in Common
Stock, the number of shares to be issued will be equal to the amount of the
dividend (or portion thereof) divided by the Closing Price of the Common Stock
on the dividend payment date. The "Closing Price" shall be the average last
reported sales prices, regular way, per share of Common Stock on the preceding
10 trading days, or if no such sale takes place on any such day, the average of
the closing bid and asked prices, regular way, for that day, in each case, as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on a national securities exchange,
or, if shares of such stock are not listed or admitted to trading on a national
securities exchange, on the Nasdaq National Market or the Nasdaq Small Cap
Market, as the case may be, or, if such last sales price or closing bid and
asked prices are not so reported, the average of the closing bid and asked
prices on the preceding 10 trading days as furnished by any New York Stock
Exchange member firm selected from time to time by the Board of Directors for
such purpose, or if no such prices are available, the fair market value of the
Common Stock as determined in good faith by the Board of Directors.
(ii) Liquidation Preference.
(A) Each holder of Series A Preferred outstanding after the closing of
a Liquidation Event (as defined below) shall be entitled to receive, prior and
in preference to any distribution of any of the assets or surplus funds of the
Corporation to the holders of Common Stock and the Series A Preferred Stock, by
reason of their ownership of such stock, the amount of $100.00 (the "Original
Series A Issue Price") per share (as adjusted for combinations, consolidations,
subdivisions, or stock splits with respect to such shares) for each share of
Series A Preferred then held by such holder, plus an amount equal to all accrued
and unpaid dividends on such shares of Series A Preferred (collectively, the
"Series A Preference"). If, upon the occurrence of a Liquidation Event, the
assets and funds available to be distributed among the holders of Series A
Preferred shall be insufficient to permit the payment to such holders of the
full Series A Preference, then the entire assets and funds of the Corporation
legally available for distribution to the holders of Series A Preferred shall be
distributed ratably based on the total Series A Preference due each such holder
under this Section IV.2(a)(ii)(A).
(B) In the event of any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or not, or the sale, lease, assignment, transfer,
conveyance
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or disposal of all or substantially all of the assets of the Corporation, or the
acquisition of this Corporation by another entity by means of consolidation,
corporate reorganizations or merger, or other transaction or series of related
transactions in which more than 50% of the outstanding voting power of this
Corporation is disposed of for cash or other assets other than securities (each
a "Liquidation Event"), distributions to the shareholders of the Corporation
shall be made in the following manner:
(1) After payment has been made to the holders of Series A Preferred of
the full amounts to which they are entitled pursuant to paragraph (ii)(A) above,
the remaining assets of the Corporation available for distribution to
shareholders shall be distributed ratably among the holders of Common Stock.
(2) The value of securities and property paid or distributed pursuant
to this Section IV.2(a)(ii)(B) shall be computed at fair market value at the
time made available to shareholders, all as determined by the Board of Directors
in the good faith exercise of its reasonable business judgment, provided that
(i) if such securities are listed on any established stock exchange or a
national market system, their fair market value shall be the closing sales price
for such securities as quoted on such system or exchange (or the largest such
exchange) for the date the value is to be determined (or if there are no sales
for such date, then for the last preceding business day on which there were
sales), as reported in the Wall Street Journal or similar publication, and (ii)
if such securities are regularly quoted by a recognized securities dealer but
selling prices are not reported, their fair market value shall be the mean
between the high bid and low asked prices for such securities on the date the
value is to be determined (or if there are no quoted prices for such date, then
for the last preceding business day on which there were quoted prices).
(3) Nothing hereinabove set forth shall affect in any way the right of
each holder of Series A Preferred to convert such shares at any time and from
time to time into Common Stock in accordance with Section IV.2(a)(iv) hereof.
(iii) Voting Rights.
(A) Except as otherwise required by law or hereunder, the holder of
each share of Common Stock issued and outstanding shall have one vote and the
holder of each share of Series A Preferred shall be entitled to the number of
votes equal to the number of shares of Common Stock into which such share of
Series A Preferred could be converted at the record date for determination of
the shareholders entitled to vote on such matters, or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders is solicited, such votes to be counted together with all other
shares of stock of the Corporation having general voting power and not
separately as a class. Fractional votes by the holders of Series A Preferred
shall not, however, be permitted and any fractional voting rights shall (after
aggregating all shares into which shares of Series A Preferred held by each
holder could be converted) be rounded to the nearest whole number (with one-half
being rounded upward). Holders of Series A Preferred shall be entitled to notice
of any shareholders' meeting in accordance with the Bylaws of the Corporation.
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(iv) Conversion.
(A) OPTIONAL CONVERSION. Shares of Series A Preferred may be converted
into shares of Common Stock, as follows:
(1) Subject to and upon compliance with the provisions of this Section
IV.2(a)(iv), at the option of the holder of such shares, shares of Series A
Preferred or any portion thereof, may be converted into shares of Common Stock
("Conversion Shares"), as said shares shall be constituted on the date on which
such shares shall be surrendered for conversion and notice given in accordance
with the provisions of this Section (the "Conversion Date"). The number of
Conversion Shares to be received on conversions shall be the quotient of (A) the
sum of the Original Series A Issue Price and all accrued and unpaid dividends on
such share of Series A Preferred, accrued to the date of conversion, divided by
(B) $2.25 (the "Conversion Price").
(2) In order to exercise the conversion privilege, the holder shall
surrender such shares to the Corporation at its executive offices, together with
the conversion notice in the form attached hereto as Exhibit A (or similar
separate written notice) duly executed, and, if so required by the Corporation,
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder or by its duly authorized attorney in writing. As
promptly as practicable after the surrender of such shares for conversion as
aforesaid, but in no event later than 30 days after surrender, the Corporation
shall deliver at its executive office to such holder, or on its written order, a
certificate or certificates for the number of Conversion Shares deliverable upon
such conversion and a check or cash in amount equal to any unconverted
fractional share. Such conversion shall be deemed to have been effected on the
date on which such notice shall have been received at said executive offices and
such shares shall have been surrendered as aforesaid, and the person or persons
in whose name or names any certificate or certificates for Conversion Shares
shall be deliverable upon such conversion shall be deemed to have become on said
date the holder or holders of record of the shares represented thereby;
PROVIDED, HOWEVER, that any such surrender on any date when the stock transfer
books of the Corporation shall be closed shall constitute the person or persons
in whose name or names the certificates are to be delivered as the record holder
or holders thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the Conversion
Price in effect on the date of such surrender.
(3) Notwithstanding any other provision hereof, (A) if the conversion
is to be made in connection with a merger, acquisition, tender offer or other
business combination, the exercise of the conversion privilege may at the
election of the holder be conditioned upon the conclusion of such transaction,
in which case such exercise shall not be deemed to be effective until the
conclusion of such transaction and (B) if the issuance of any Conversion Shares
is not exempt from the applicable requirements under the Hart-Scott-Rodino Act,
the exercise of the conversion privilege shall be conditioned upon the
compliance by the Corporation, the holder and all other persons with such
requirements, in which case such exercise shall not be deemed to be effective
until all such requirements are satisfied. The holder may by written notice
withdraw any such exercise of such conversion privilege before the effectiveness
thereof. Any such exercise or
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withdrawal shall not impair or otherwise affect the other rights and remedies of
the holder permitted by law, equity or contract or as set forth herein.
(B) CORPORATION'S RIGHT TO AUTOMATICALLY CONVERT. If at any time the
Closing Price of the Corporation's Common Stock for 45 consecutive trading days
is equal to or greater than $10.00, the Corporation shall thereafter have the
right to automatically convert the Series A Preferred in accordance with the
provisions of this Section IV.2(a)(iv).
(C) FRACTIONAL INTERESTS. The Corporation shall not be required to
deliver fractions of shares of Common Stock upon conversions of shares of Series
A Preferred. If any fractional interest in a share of Common Stock would be
deliverable upon the conversion of shares of Series A Preferred, the Corporation
shall make an adjustment therefor in cash equal to the Closing Price per share
of the Common Stock on the Conversion Date.
(D) MECHANICAL ADJUSTMENTS. The number of Conversion Shares issuable
upon the conversion of shares of Series A Preferred and the Conversion Price
shall be subject to adjustment from time to time, as follows:
(1) If the Corporation shall at any time pay a dividend on its Common
Stock in shares of its Common Stock (including, if applicable, shares of Common
Stock held by the Corporation in treasury or by a Subsidiary (as defined below),
subdivide its outstanding shares of Common Stock into a larger number of shares
or combine its outstanding shares of Common Stock into a smaller number of
shares or otherwise effect a reclassification or recapitalization of the Common
Stock, then in each such case the number of Conversion Shares thereafter
issuable upon conversion of shares of Series A Preferred shall be adjusted so
that shares of Series A Preferred shall thereafter be convertible into the
number of Conversion Shares equal to the number of shares of Common Stock which
the holder would have held after the occurrence of any of the events described
above had such shares of Series A Preferred been converted in full immediately
prior to the occurrence of such event. An adjustment made pursuant to this
paragraph (i) shall become effective retroactively to the related record date in
the case of a dividend and shall become effective on the related effective date
in the case of a subdivision, combination, reclassification or recapitalization.
(2) Except with respect to Permitted Issuances (as defined below), if
the Corporation or a Subsidiary shall at any time issue or sell shares of Common
Stock at a purchase price per share of Common Stock (the value of any
consideration, if other than cash, to be determined in good faith by the Board
of Directors) less than the Closing Price on the date the Corporation or such
Subsidiary agrees to the issuance or sale (for the purpose of this paragraph
(2), the "Adjustment Date"), then in each such case, the number of Conversion
Shares thereafter issuable upon conversion of shares of Series A Preferred after
such Adjustment Date shall be determined by multiplying the number of Conversion
Shares issuable upon conversion of shares of Series A Preferred on the date
immediately preceding such Adjustment Date by a fraction, the numerator of which
shall be the sum of
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the number of shares of Common Stock outstanding immediately before issuance or
sale and the number of additional shares of Common Stock so issued or sold, and
the denominator of which shall be the sum of the number of shares of Common
Stock outstanding immediately before such issuance or sale and the number of
shares of Common Stock which the aggregate offering price of the total number of
shares so offered would purchase at the Closing Price. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Corporation or by a
Subsidiary.
(3) If the Corporation or a Subsidiary shall at any time issue or sell
Derivative Securities (as defined below) providing for the purchase of shares of
Common Stock upon the conversion, exchange or exercise thereof at a price per
share of Common Stock (taking into account any consideration received by the
Corporation upon the issuance or sale of such Derivative Securities and any
additional consideration to be received upon the conversion, exchange or
exercise thereof, the value of such consideration, if other than cash, to be
determined in good faith by the Board of Directors (the "Aggregate Derivative
Consideration")) less than the Closing Price on the date the Corporation or such
Subsidiary agrees to the issuance or sale (for the purpose of this paragraph
(3), the "Adjustment Date"), then in each such case, the number of Conversion
Shares thereafter issuable upon conversion of the Series A Preferred after such
Adjustment Date shall be determined by multiplying the number of Conversion
Shares issuable upon conversion of shares of Series A Preferred on the date
immediately preceding such Adjustment Date by a fraction, the numerator of which
shall be the sum of the number of shares of Common Stock outstanding on such
Adjustment Date and the number of additional shares of Common Stock so offered
for subscription or purchase upon the conversion, exchange or exercise of such
Derivative Securities, and the denominator of which shall be the sum of the
number of shares of Common Stock outstanding on such Adjustment Date and the
number of shares of Common Stock which the Aggregate Derivative Consideration
for the total number of shares so offered would purchase at the Closing Price.
Such adjustment shall be made whenever any such Derivative Securities are
issued, and shall become effective on the date of issuance retroactive to the
Adjustment Date. If all the shares of Common Stock so offered for subscription
or purchase are not delivered upon the final conversion, exchange or exercise of
such Derivative Securities, then, upon the final conversion, exchange or
exercise of such Derivative Securities, or the expiration, cancellation or other
termination thereof, the number of Conversion Shares issuable upon conversion of
shares of Series A Preferred shall thereafter be readjusted to the number of
Conversion Shares which would have been in effect had the numerator and the
denominator of the foregoing fraction and the resulting adjustment been made
based upon the number of shares of Common Stock actually delivered upon the
conversion, exchange or exercise of such Derivative Securities, or the
expiration, cancellation or other termination thereof rather than upon the
number of shares of Common Stock so offered for subscription or purchase. If the
purchase price provided for in any Derivative Securities, the additional
consideration, if any, payable upon the conversion, exchange or exercise of any
Derivative Securities or the rate at which any Derivative Securities are
convertible into or exchangeable or convertible into Common Stock shall change
at any time (including, without limitation, at the time of or after such
conversion, exchange or
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exercise), the number of Conversion Shares issuable upon conversion of shares of
Series A Preferred in effect at the time of such change shall be readjusted to
the number of Conversion Shares issuable upon conversion of shares of Series A
Preferred which would have been in effect at such time had such Derivative
Securities still outstanding provided for such changed purchase price,
additional consideration or changed conversion rate, as the case may be, on the
related Adjustment Date, and such readjustment shall become effective on the
date of such change retroactive to the Adjustment Date; PROVIDED, that no such
readjustment shall have the effect of decreasing the number of Conversion Shares
issuable upon the conversion of shares of Series A Preferred by an amount in
excess of the amount of the adjustment initially made with respect to the
issuance or sale of the Derivative Securities. For the purposes of this
paragraph (3), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Corporation or by a
Subsidiary.
(4) If the Corporation shall at any time declare or pay a dividend or
other distribution on its Common Stock other than (x) a stock dividend payable
solely in shares of Common Stock or (y) a cash dividend paid out of current
earnings (the value of any such dividend or other distribution, if other than
cash, to be determined in good faith by the Board of Directors), then in each
such case, the number of Conversion Shares thereafter issuable upon conversion
of shares of Series A Preferred after the declaration date therefor (for the
purpose of this paragraph (4), the "Adjustment Date") shall be determined by
multiplying the number of Conversion Shares issuable upon conversion of shares
of Series A Preferred on the date immediately preceding such Adjustment Date by
a fraction, the numerator of which shall be the sum of the number of shares of
Common Stock outstanding on such Adjustment Date and the number of additional
shares of Common Stock which the aggregate value of such dividend or
distribution would purchase at such price and the denominator of which shall be
the sum of the number of shares of Common Stock outstanding on such Adjustment
Date. For the purposes of this paragraph (4), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Corporation or by a Subsidiary.
(5) In case of any capital reorganization or any reclassification
(other than a change in par value) of the capital stock of the Corporation, or
of any exchange or conversion of the Common Stock for or into securities of
another corporation, or in case of the consolidation or merger of the
Corporation with or into any other person (other than a merger which does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock or a Liquidation Event) or in case of any
sale or conveyance of all or substantially all of the assets of the Corporation
(other than a Liquidation Event), the person formed by such consolidation or
resulting from such capital reorganization, reclassification or merger or which
acquires such assets, as the case may be, shall make provision such that shares
of Series A Preferred shall thereafter be convertible into the kind and amount
of shares of stock, other securities, cash and other property receivable upon
such capital reorganization, reclassification of capital stock, consolidation,
merger, sale or conveyance, as the case may be, by a holder of the shares of
Common Stock equal to the number of Conversion Shares issuable upon conversion
of shares of Series A Preferred immediately prior to the effective date of such
capital
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reorganization, reclassification of capital stock, consolidation, merger, sale
or conveyance, assuming (1) such holder of Common Stock of the Corporation is
not a person with which the Corporation consolidated or into which the
Corporation merged or which merged into the Corporation or to which such sale or
transfer was made as the case may be ("Constituent Entity"), or an affiliate of
a Constituent Entity, and (2) such person failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such capital reorganization, reclassification of
capital stock, consolidation, merger, sale or conveyance and, in any case
appropriate adjustment (as determined by the Board of Directors) shall be made
in the application of the provisions herein set forth with respect to rights and
interests thereafter of the holder, to the end that the provisions set forth
herein (including the specified changes in and other adjustments of the number
of Conversion Shares issuable upon conversion of shares of Series A Preferred)
shall thereafter be applicable, as near as reasonably may be, in relating to any
shares of stock or other securities or other property thereafter deliverable
upon conversion of shares of Series A Preferred.
(6) For the purposes of this Section IV.2(a)(iv)(D):
(X) "DERIVATIVE SECURITIES" means securities convertible into or
exchangeable or convertible into shares of Common Stock, rights or warrants to
subscribe for or purchase shares of Common Stock, options for the purchase of,
or calls, commitments or other claims of any character relating to, shares of
Common Stock or any securities convertible into or exchangeable for any of the
foregoing;
(Y)"PERMITTED ISSUANCES" means the issuance of shares of Common Stock after
the date hereof (x) pursuant to the exercise of options authorized on the date
hereof, in each case in accordance with the terms thereof as of the date hereof
and (y) pursuant to the conversion of shares of Series A Preferred; and
(Z) "SUBSIDIARIES" means any corporation or other entity in which the
Corporation is entitled by virtue of its ownership of securities (or equivalent
interests) to elect a majority of the directors (or persons performing
equivalent functions).
(7) If any shares of Common Stock or Derivative Securities are issued
or sold or deemed to have been issued or sold for cash, the consideration
received therefor shall be deemed to be the net amount received by the
Corporation therefor. In case any shares of Common Stock or Derivative
Securities are issued or sold for a consideration other than cash, the amount of
the consideration other than cash received by the Corporation shall be the fair
value of such consideration, except where such consideration consists of
marketable securities, in which case the amount of consideration received by the
Corporation shall be the market price thereof as of the date of receipt. In case
any shares of Common Stock or Derivative Securities are issued to the owners of
the non-surviving
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entity in connection with any merger or other business combination in which the
Corporation is the surviving entity, the amount of consideration therefor shall
be deemed to be the fair value of such portion of the net assets and business of
the non-surviving entity as is attributable to such shares of Common Stock or
Derivative Securities, as the case may be. The fair value of any consideration
other than cash or marketable securities shall be determined jointly by the
Corporation and the holders of more than 50% of the outstanding shares of Series
A Preferred. If such parties are unable to reach agreement within a reasonable
period of time, such fair value shall be determined by an appraiser jointly
selected by the Corporation and such holders, whose determination shall be final
and binding on the Corporation and the holders. The fees and expenses of such
appraiser shall be paid by the Corporation.
(8) If the Corporation takes a record of the holders of Common Stock
for the purpose of entitling them (A) to receive a dividend or other
distribution on its Common Stock or (B) to subscribe for or purchase shares of
Common Stock or Derivative Securities, then such record date shall be deemed to
be the date of the payment or distribution of such dividend or other
distribution or the date of issuance and sale of any shares of Common Stock
deemed to have been issued or sold in connection thereto.
(9) All calculations under this Section IV.2(a)(iv)(D) shall be made to
the nearest share of Common Stock (with one-half being rounded upward)
(10) Whenever the number of Conversion Shares issuable upon the
conversion of shares of Series A Preferred is adjusted or readjusted pursuant to
paragraphs (1) through (9), inclusive, above, the Conversion Price shall be
adjusted or readjusted by multiplying the Conversion Price immediately prior to
the related Adjustment Date by a fraction, the numerator of which shall be the
number of Conversion Shares receivable upon the conversion of shares of Series A
Preferred immediately preceding such Adjustment Date, and the denominator of
which shall be the number of Conversion Shares so purchasable immediately
thereafter; PROVIDED that no such readjustment pursuant to paragraph (3) above
with respect to the conversion, exchange or exercise, or expiration,
cancellation or other termination, of any Derivative Securities shall have the
effect of increasing the Conversion Price by an amount in excess of the amount
of the adjustment initially made in respect of the issuance or sale of such
Derivative Securities.
(11) If any event occurs of the type contemplated by the provisions of
this Section IV.2(a)(iv)(D) but not expressly provided for by such provisions
(including, without limitation, the granting of stock appreciation rights,
phantom stock rights or other rights with equity features), then the
Corporation's Board of Directors shall make an appropriate adjustment in the
number of Conversion Shares issuable upon conversion of shares of Series A
Preferred and the Conversion Price so as to protect the rights of the holders of
shares of Series A Preferred.
(12) For the purpose of this Section IV.2(a)(iv)(D), the term "Shares
of Common Stock" means (W) the class of stock designated as the Common Stock of
the Corporation at the date hereof or (X) any other class of stock resulting
from successive
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changes or reclassification of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. In
the event that at any time, as a result of an adjustment made pursuant to
paragraphs (1) through (4), inclusive, above, the holders of shares of Series A
Preferred shall become entitled to receive any shares of the Corporation other
than shares of Common Stock, thereafter the number of such other shares so
receivable upon conversion of shares of Series A Preferred and the Conversion
Price shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Conversion Shares contained in paragraphs (1) through (4), inclusive, above, and
the provisions of Sections IV.2(a)(iv)(D), (E), and (F), inclusive, with respect
to the Conversion Shares, shall apply on like terms to any such other shares.
(13) Notwithstanding anything herein to the contrary, there shall be no
adjustment in the number of Conversion Shares or in the Conversion Price in
respect of Permitted Issuances.
(14) In case of any consolidation or merger of the Corporation with or
into another entity (whether or not the Corporation is the surviving entity) or
in case of any sale, transfer or lease of all or substantially all of the assets
of the Corporation, the Corporation or such successor or purchasing entity, as
the case may be, shall execute with the holders of shares of Series A Preferred
an agreement that such holders shall have the right thereafter to receive upon
conversion of shares of Series A Preferred the kind and amount of shares and
other securities, cash and property that such holders would have owned or would
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer, lease or conveyance had their shares of Series A Preferred been
converted in full immediately prior to such action, and if the successor or
purchasing entity is not a corporation, such person shall provide appropriate
tax indemnification with respect to such shares or other securities and property
so that upon conversion of shares of Series A Preferred, the holders thereof
would have the same benefits they otherwise would have had if such successor or
purchasing person were a corporation. Such agreement shall provide for
adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in paragraphs (1) through (13), inclusive, above. The
provisions of this paragraph (14) shall similarly apply to successive
consolidations, mergers, sales or conveyances.
(E) TIME OF ADJUSTMENTS; MINIMUM ADJUSTMENTS. Each adjustment required
by Section IV.2(a)(iv)(D) shall be effective as and when the event requiring
such adjustment occurs. Notwithstanding the provisions of this Section
IV.2(a)(iv)(E), no adjustment of less than one percent of the number of
Conversion Shares shall be made until the earlier of (x) such time as the total
of all previous adjustments that were less than one percent of the number of
Conversion Shares shall equal three percent of the number of Conversion Shares
and (y) conversion of the Series A Preferred in accordance with the provisions
hereof.
(F) NOTICE OF ADJUSTMENT. Whenever the number of Conversion Shares
issuable upon the conversion of shares of Series A Preferred or the Conversion
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Price is adjusted as herein provided, the Corporation shall promptly mail by
first class mail, postage prepaid, to each holder of shares of Series A
Preferred a certificate provided by, at the discretion of such holder, an
officer of the Corporation or a firm of independent public accountants selected
by the Board of Directors of the Corporation (who may be the regular accountants
employed by the Corporation) setting forth the number of Conversion Shares
purchasable upon the conversion of shares of Series A Preferred and the
Conversion Price after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by which such
adjustment was made.
(G) NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section
IV.2(a)(iv)(D), no adjustment in respect of any dividends declared or paid on
the Common Stock shall be made prior to or upon the conversion of shares of
Series A Preferred.
(H) TAXES. The issuance of stock certificates on conversions of shares
of Series A Preferred shall be made without charge to the holders thereof for
any tax in respect of the issue thereof. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares in any name other than that of the holders,
and the Corporation shall not be required to issue or deliver any such stock
certificate unless and until the person or persons requesting the issue thereof
shall have paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax has been paid.
(I) RESERVATION OF SHARES. The Corporation shall at all times reserve
and keep available out of the aggregate of its authorized but unissued shares or
its issued shares held in its treasury, or both, for the purpose of effecting
the conversion of shares of Series A Preferred, such number of its duly
authorized shares of Common Stock as shall from time to time be sufficient to
effect the conversion, exchange or exercise of outstanding securities of the
Corporation convertible into or exchangeable or exercisable for any shares of
the Common Stock, all rights to subscribe for or to purchase, all options for
the purchase of, and all calls, commitments or claims of any character relating
to, any shares of Common Stock and any securities convertible into or
exchangeable or exercisable for any of the foregoing.
(J) REGISTRATION OR APPROVAL. If any shares of Common Stock reserved or
to be reserved for the purpose of conversion of shares of Series A Preferred
require registration with or approval of any governmental authority under any
federal or state law before such shares may be validly delivered upon
conversion, including, without limitation, the Hart-Scott-Rodino Act, then the
Corporation covenants that it will in good faith and as expeditiously as
possible endeavor to secure such registration or approval, as the case may be,
at the Corporation's expense.
(K) VALIDLY ISSUED, ETC. The Corporation covenants that all shares of
Common Stock which may be delivered upon conversion of shares of Series A
Preferred shall upon delivery be validly issued, fully paid and non-assessable
and free from all taxes, liens and charges with respect to the issue or delivery
thereof.
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(L) NOTICE. In the event:
(1) that the Corporation shall pay any dividend or make any
distribution to the holders of shares of Common Stock
otherwise than in cash charged against capital surplus,
consolidated net earnings or retained earnings of the
Corporation and its Subsidiaries; or
(2) that the Corporation shall offer for subscription or
purchase, pro rata, to all of the holders of shares of Common
Stock any additional shares of stock of any class or any
securities convertible into or exchangeable for stock of any
class; or
(3) of any reclassification or change of outstanding shares of
the class of Common Stock issuable upon the conversion of
shares of Series A Preferred (other than a change in par
value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination),
or of any merger or consolidation of the Corporation with, or
merger of the Corporation into, another corporation (other
than a merger or consolidation in which the Corporation is the
continuing corporation and which does not result in any
reclassification or change of outstanding shares of Common
Stock issuable upon conversion of shares of Series A
Preferred), or of any sale or conveyance to another
corporation of the property of the Corporation as an entirety
or substantially as an entirety or of any other similar
business combination transaction;
then, and in any one or more of such events, the Corporation will give
to the holders of shares of Series A Preferred written notice thereof at least
15 days prior to (A) the record date fixed with respect to any of the events
specified in (1) and (2) above, and (B) the effective date of any of the events
specified in (3) above. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
(M) SPECIFIC PERFORMANCE. The Corporation acknowledges that the failure
of the Corporation to perform its obligations under this Section IV.2(a)(iv)
will not be compensable by the payment of monetary damages and hereby waives any
defense to a claim by the holders of shares of Series A Preferred that the
provisions of this Section Section IV.2(a)(iv) be specifically enforced.
(N) REGISTRATION RIGHTS. The Conversion Shares shall be deemed to be
"Registrable Shares" subject to the terms of the Registration Rights Agreement
between the Corporation and Interwest Group, Inc. dated as of May 29, 1998, as
amended.
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(v) Covenants.
In addition to any other rights provided by law, the Corporation shall
not, without first obtaining the affirmative vote or written consent of the
holders of a majority of the outstanding shares of Series A Preferred, voting as
a single class:
(A) amend or repeal any provision of, or add any provision to, the
Corporation's Articles of Incorporation or Bylaws if such action would alter or
change the preferences, rights, privileges or powers of, or the restrictions
provided for the benefit of, the Series A Preferred;
(B) authorize or issue shares of any class or series of stock having any
preference or priority as to dividends or redemption rights, liquidation
preferences, conversion rights, or voting rights, superior to or on a parity
with any preference or priority of the Series A Preferred;
(C) authorize or issue any bonds, debentures, notes or other obligations
convertible into or exchangeable for, or having option rights to purchase, any
shares of stock of this Corporation having any preference or priority as to
dividends or redemption rights, liquidation preferences, conversion rights, or
voting rights, superior to or on a parity with any preference or priority of the
Series A Preferred;
(D) reclassify any shares of capital stock of this Corporation into shares
having any preference or priority as to dividends or redemption rights,
liquidation preferences, conversion rights, or voting rights, superior to or on
a parity with any preference or priority of any series of the Series A
Preferred;
(E) apply any of its assets to the redemption, retirement, purchase or
acquisition, directly or indirectly, through Subsidiaries (as defined in Section
425 of the Internal Revenue Code of 1986) or otherwise, of any shares of any
class or series of Common Stock;
(F) engage in any transaction or series of related transactions
constituting a Liquidation Event;
(G) declare or pay dividends on or make any distributions with respect to
the Corporation's Common Stock;
(H) increase or decrease the authorized number of shares of Preferred
Stock; or
(I) sell, lease, assign, transfer, convey or otherwise dispose of the
securities of any Subsidiary.
FOURTH: In connection with the Articles of Amendment to the Corporation's
Articles of Incorporation set forth herein, no change in the outstanding capital
stock is being effected.
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FIFTH: The manner in which such amendment effects a change in the amount of
stated capital, and the amount of stated capital as changed by such amendment,
is as follows:
NONE
SIXTH: The foregoing amendment was adopted by the Board of Directors without
shareholder action and shareholder action was not required.
Executed at Denver, Colorado this 30th day of December, 1998
INTERNET COMMUNICATIONS CORPORATION
By: /s/ John M. Couzens
John M. Couzens, President
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INTERNET COMMUNICATIONS CORPORATION
Special Meeting of Shareholders - February 23, 1999
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints John M. Couzens and T. Timothy Kershisnik, and
each of them, the attorneys and proxies of the undersigned, each with full power
of substitution, to vote all the shares of Common Stock of Internet
Communications Corporation which the undersigned is entitled to vote at the
Special Meeting of Shareholders of the Company to be held at the offices of the
Company at 7100 East Belleview Avenue, Suite 201, Greenwood Village, Colorado
80111 on February 23, 1999 at 10:00 a.m., Denver time, and at any adjournment or
adjournments thereof, and authorizes and instructs said proxies to vote in the
manner directed below:
1. On the proposal to issue 50,000 shares of Preferred Stock of the Company, and
all shares of Common Stock issuable upon conversion thereof:
[ ] FOR [ ] AGAINST [ ] ABSTAIN
2. In their discretion, the proxies are authorized to vote upon such other
business as may properly come before the meeting, or any adjournment thereof,
upon matters incident to the conduct of the meeting.
IF NO INSTRUCTION TO THE CONTRARY IS INDICATED, THIS PROXY WILL BE VOTED FOR
PROPOSAL NUMBER 1.
A copy of the Notice of Special Meeting of Shareholders and Proxy Statement,
dated January 27, 1999, has been received by the undersigned.
Please sign exactly as name or names appear on this Proxy, including the title
"Executor", "Guardian," etc., if the same is indicated. When joint names appear
both should sign. If stock is held by a corporation this proxy should be
executed by a proper officer thereof, whose title should be given.
Dated: , 1999
Signature
Signature if jointly held
PLEASE MARK, SIGN, DATE AND RETURN IN THE ENCLOSED POSTAGE-PAID ENVELOPE TODAY
