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) November 8, 1996
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TOTAL WORLD TELECOMMUNICATIONS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-20922 75-2274730
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
3200 North Military Trail, Suite 300, Boca Raton, FL 33431
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (407) 997-5880
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
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On December 16, 1996, the Company completed the acquisition of all of the
capital stock of NETTouch Communications, Inc., Dallas, Texas ("NETTouch"). In
consideration for the acquisition, the Company paid to the principal
shareholders of NETTouch, $2,400,000 and issued a Common Stock Purchase Warrant
(the "Warrants") to acquire shares of Common Stock of the Company on or prior to
December 31, 2000 at an exercise price of $7.75 per share. The actual number of
Warrants to be received is predicated on the level of revenues periodically
obtained by NETTouch during the 1997 calendar year. The principal shareholder of
NETTouch was Telecommunications Resources, Inc. ("TRI") also from Dallas, TX.
TRI is a software developer and provider of telecommunications platforms which
converge technologies and telecommunications services, such as worldwide
long-distance, voice mail, virtual fax, travel card, wireless messaging
notification, enhanced "follow me" features, conference calling, paging,
internet access, text-to-screen e-mail, website development and hosting and
more into a convenience of single 1-800/888 numbers. These services allow the
user a variety of office services through one telephone number. NETTouch
currently markets these bundled services under the brand name "N'Touch." Under
the acquisition agreement, N'Touch as a wholly-owned subsidiary of the Company
will receive licensing rights to market TRI's future products and services to
the home- based business segment, which management believes is one of the
fastest growing segments in our society.
On December 9, 1996, the Company entered into a Note Purchase Agreement
and Registration Rights Agreements pursuant to which it issued its Promissory
Note (the "Note") in the amount of $8,000,000 to GFL Advantage Fund Limited,
Curacao, Netherlands Antilles ("GFL"), and received gross proceeds of
$8,000,000. The Note matures on December 9, 1998 and bears interest at the rate
of 7 percent per annum payable quarterly commencing February 1, 1997. The Note
may be prepaid prior to maturity without penalty or premium. Payment of
principal and interest may be paid in Common Stock of the Company under certain
conditions.
GFL has the right at any time commencing on the earlier of March 7, 1997
or the effective date of the Company's registration statement to be filed under
the Securities Act of 1933 to convert the principal amount and interest into
Common Stock of the Company into increments of $50,000 or more, by the lower of
(i) 75% of the applicable closing price of the Company's Common Stock prior to
conversion or (ii) $8.10. Such percentage is subject to reduction in the event
the Company is unable to comply with specified requirements regarding the
registration of the underlying Common Stock under the Securities Act of 1933
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within the specified time period. The Company paid a finder's fee of $560,000 to
Wharton Capital Partners, Ltd. in connection with this transaction. The proceeds
of this financing were utilized in substantial part to complete the acquisition
of NETTouch Communications, Inc., which was consummated on December 16, 1996.
On November 8, 1996, the Company issued 65,000 shares of its Series T
Convertible Preferred Stock pursuant to Regulation S under the Act and received
gross proceeds of $6,500,000. One-half of the shares are convertible into Common
Stock of the Company at 75% of the closing bid price of such Common Stock
following 45 days after issuance, and the remaining 50 percent are convertible
at 75% of the closing bid price 60 days after completion of the offering.
On November 18, 1996, the Company issued 56,200 shares of its Series U
Convertible Preferred Stock pursuant to Regulation S under the Act and received
gross proceeds of $5,620,000. Fifty percent of the shares are convertible into
Common Stock of the Company 45 days after the completion of the offering at 75%
of the closing bid price of the Common Stock, and the remaining 50 percent is
convertible 60 days after completion of the offering also at 75% of the closing
bid price prior to the date of conversion.
On November 19, 1996, the Company issued 46,250 shares of its Series W
Convertible Preferred Stock pursuant to Regulation S under the Act and received
gross proceeds of $4,625,000. Of this amount, 15, 416 shares are convertible
into Common Stock of the Company 45 days after the completion of the offering at
75% of the closing bid price of the Common Stock, and the remaining shares are
convertible 60 days after completion of the offering also at 75% of the closing
bid price prior to the date of conversion. The conversion price, however, may
not exceed $12.00 for those holders converting on or after 45 days, and no more
than $6.00 for those holders converting on or after 60 days following the
completion of the offering.
On November 26, 1996, the Company issued 11,250 shares of its Series X
Convertible Preferred Stock pursuant to Regulation S under the Act and received
gross proceeds of $1,125,000. Fifty percent of the shares are convertible into
Common Stock of the Company 60 days after the completion of the offering at 80%
of the closing bid price of the Common Stock prior to conversion, and the
remaining 50 percent is convertible 90 days after completion of the offering
also at 80% of the closing bid price prior to the date of conversion. The
conversion price, however, may not exceed $12.00.
On December 18, 1996, the Company issued 25,000 shares of its Series Y
Convertible Preferred Stock pursuant to Regulation S under the Act and received
gross proceeds of $1,500,000. Fifty percent of the shares are convertible into
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Common Stock of the Company 60 days after the completion of the offering at 75%
of the closing bid price of the Common Stock prior to conversion, and the
remaining 50 percent is convertible 90 days after completion of the offering
also at 75% of the closing bid price prior to the date of conversion.
All of the Series T, Series U, Series W, Series X and Series Y Preferred
Stock are subject to redemption by the Company prior to or at the time of
conversion. Based on negotiations with various holders of the aforementioned
Preferred Stock Series, the Company anticipates that various of such holders
will retain such Preferred Stock or roll-over or exchange such Preferred Stock
for alternative Preferred Stock Series providing similar or revised terms. The
Company may in some circumstances, as determined by management, redeem various
Preferred Stock Series in accordance with the terms of such series.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
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(a) Exhibits.
(2) (i) Stock Purchase Agreement for the purchase of NETTouch
Communications, Inc. and Common Stock Purchase Warrant
(ii) Note Purchase Agreement with GFL Advantage Fund Limited,
Registration Rights Agreement and Promissory Note
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TOTAL WORLD TELECOMMUNICATIONS, INC.
By:/s/ Joseph L. Lents
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Joseph L. Lents
President and
Principal Executive Officer
Dated: January 2, 1997
EXHIBIT 2.i
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "AGREEMENT"), dated to be effective as
of the 1st day of October, 1996, is by and among TOTAL WORLD TELECOMMUNICATIONS,
INC., a Delaware corporation (the "PURCHASER" which term shall include the
subsidiaries of the Purchaser), NETTOUCH COMMUNICATIONS, INC., a Texas
corporation (the "COMPANY"), and the shareholders of the Company, TELECOM
RESOURCES, INC., a Texas Corporation ("TRI") and LOU ZANT ("ZANT") (TRI and Zant
being individually referred to herein as a "SELLER" and collectively referred to
herein as the "SELLERS").
W I T N E S S E T H:
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WHEREAS, the Sellers are the owners of all of the issued and outstanding
shares of the capital stock (the "SHARES") of the Company; and
WHEREAS, the Sellers desire to sell and the Purchaser desires to buy the
Shares, on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Subject to and upon the terms and conditions of this Agreement, the
Sellers agree to sell to the Purchaser and transfer ownership of, and the
Purchaser agrees to purchase from the Sellers, all of the Shares, as of the
Closing Date (as hereinafter defined). The number of Shares owned by each of the
Sellers is listed on SCHEDULE 1.1 hereto.
ARTICLE II
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price for the Shares being sold to the
Purchaser hereunder shall be the sum of (a) $2,400,000 (the "INITIAL PURCHASE
PRICE"), plus (b) the additional payments set forth below in SECTION 2.2 (the
"ADDITIONAL PURCHASE PRICE"), plus (c) the issuance of the warrants (the
"WARRANTS") in the form of EXHIBIT A attached hereto. The Initial Purchase
EX 2.i-1
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Price, the Additional Purchase Price and the Warrants are hereinafter referred
to as the "PURCHASE PRICE." The Initial Purchase Price shall be payable by the
Purchaser by certified check, wire transfer or other immediately available
funds. The Additional Purchase Price shall be payable as set forth in SECTION
2.2 hereof. The Purchase Price shall be payable to the individual Sellers in
accordance with each Seller's respective percentage ownership of the Shares, as
set forth in SCHEDULE 1.1 hereto.
2.2 Additional Purchase Price.
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(a) The Additional Purchase Price shall be equal to a maximum of
$4,800,000 (the "MAXIMUM AMOUNT") and shall be payable by
certified check, wire transfer or other immediately available
funds. The Additional Purchase Price shall be calculated as
provided in this SECTION 2.2 and shall be paid by the
Purchaser to the Sellers until the Maximum Amount has been
received by the Sellers. Time is of the essence with respect
to the payment of an Additional Purchase Price hereunder.
Notwithstanding anything else contained herein, or in any of
the other documents or agreements executed in connection
herewith, any breach of the Purchaser's obligations under this
SECTION 2.2 shall allow the Sellers to suspend, without
liability, any performance of either of them pursuant to this
Agreement or any other document or agreement executed in
connection herewith.
(b) (i) Beginning with the month ended November 30, 1996, and in
each month thereafter until the Maximum Amount has been
received by the Sellers, the Purchaser shall cause the gross
revenues for the Company to be calculated for such month. Such
gross revenues shall be rounded up to the next highest
$100,000 increment (the "ROUNDED GROSS REVENUES") (by way of
example only, if gross revenues for a month were $2,631,000,
Rounded Gross Revenues would be equal to $2,700,000 for that
month, and if gross revenues for a month were $2,661,000,
Rounded Gross Revenues would be equal to $2,700,000 for that
month). (ii) Rounded Gross Revenues for any month shall be
reduced by the highest Rounded Gross Revenues calculated for
any previous month, but no earlier than November, 1996, and
for which the Sellers have received payment of any Additional
Purchase Price, if any, owed to them pursuant to the terms of
EX 2.i-2
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this SECTION 2.2 (the "ADJUSTED GROSS REVENUES"). No reduction
to Rounded Gross Revenues shall be made for November, 1996.
(iii) For each month in which Adjusted Gross Revenues exceed
zero the Purchaser shall pay an amount to the Sellers equal to
such Adjusted Gross Revenues multiplied by 2.4, which such
amount shall be Additional Purchase Price (by way of example
only, if Adjusted Gross Revenues for a month were equal to
$200,000, the Purchaser would pay the Sellers $480,000). (iv)
The Purchaser shall cause the calculations of Rounded Gross
Revenues, Adjusted Gross Revenues and the Additional Purchase
Price for any month to be made on or prior to the 20th day of
the next succeeding month. (v) The payment of any Additional
Purchase Price by the Purchaser for any month shall be made to
the Sellers on or prior to the last day of the next succeeding
month, except for the payment due for the month ending
November 30, 1996, which shall be due on January 2, 1997.
(c) For the purposes of the calculations made pursuant to this
SECTION 2.2, until the Maximum Amount has been received by the
Sellers, the Purchaser shall cause the Company to maintain
separate records with respect to the Company's business in a
manner which accurately reflects the business of the Company
as if it continued to be operated as a separate business. All
calculations made pursuant to this SECTION 2.2 shall be done
in accordance with generally accepted accounting principles,
consistently applied.
(d) With respect to each month, the Purchaser shall deliver a
statement to each of the Sellers showing the calculation of
Rounded Gross Revenues, Adjusted Gross Revenues and Additional
Purchase Price for such month and cumulative Additional
Purchase Price paid through such month on or prior to the 22nd
day of the next succeeding month. Unless any Seller notifies
the Purchaser in writing that such Seller disagrees with the
Purchaser's determinations within five (5) days after receipt
of such written determinations, then such determinations shall
be conclusive and binding upon the Sellers and the Purchaser.
If any Seller disagrees with such determinations, and within
the aforementioned five (5) day period has notified the
Purchaser, in writing, thereof, specifying in detail the basis
EX 2.i-3
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of such disagreement, then such Seller and the Purchaser shall
attempt to resolve their differences with respect thereto
within five (5) days after the Purchaser's receipt of written
notice of such disagreement. Any such dispute that is not
resolved within such five (5) day period shall be submitted to
binding resolution by either (i) an independent accounting
firm selected within ten (10) days thereafter by agreement of
such Seller and the Purchaser or (ii) in the event such Seller
and the Purchaser have been unable to select a firm by
agreement within the prescribed time period, a "Big Six"
accounting firm selected by lot, after eliminating the
accountants of the Purchaser. The determinations of any
accounting firm so selected (the "REVIEW ACCOUNTANTS") with
respect to the determinations to be made pursuant to this
SECTION 2.2 shall be conclusive and binding upon the parties.
The Purchaser and the objecting Seller shall each pay one-half
of the fees and expenses of any Review Accountants selected to
resolve any dispute between the parties regarding such
determination.
(e) In the event that the determinations to be made pursuant to
this SECTION 2.2 are contested by a Seller, the amount of any
uncontested portion shall be paid as aforesaid and the
balance, if any, shall be paid within ten (10) days after the
determinations become final pursuant to the provisions of
SECTION 2.2(D).
ARTICLE III
CLOSING
3.1 CLOSING. The closing of the transactions contemplated hereby (the
"CLOSING") shall take place on or before December 16, 1996, at the offices of
Jenkens & Gilchrist, a Professional Corporation, 1445 Ross Avenue, Suite 3200,
Dallas, Texas 75202 or at such other time or place as may be agreed upon in
writing by the Purchaser and the Sellers (the "CLOSING DATE").
3.2 SELLERS DELIVERIES. At the Closing, the Sellers shall deliver
certificates representing the Shares together with appropriate executed stock
transfer powers, satisfactory to the Purchaser, validly transferring such Shares
to the Purchaser. In addition, the Sellers shall deliver the agreements,
documents and other instruments set forth in ARTICLE VI hereof.
EX 2.i-4
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3.3 PURCHASER DELIVERIES. At the Closing, the Purchaser shall deliver to
the Sellers the Initial Purchase Price against tender of the Shares, the
Warrants and other instruments, documents and agreements set forth in ARTICLE
VII hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF NETTOUCH AND SHAREHOLDERS
The Company and the Sellers represent and warrant to the Purchaser as
follows:
4.1 ORGANIZATION AND GOOD STANDING; OWNERSHIP OF SHARES. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Texas, and is entitled to own or lease its properties and to
carry on its business as and in the places where such properties are now owned,
leased or operated and such business is now conducted. The Company is duly
licensed or qualified and in good standing as a foreign corporation where the
character of the properties owned by it or the nature of the business transacted
by it make such licenses or qualifications necessary, and further where the
failure to be so qualified would have a material adverse effect on the business
or properties of the Company. The Company does not have any subsidiaries. There
are no outstanding subscriptions, rights, options, warrants or other agreements
obligating the Company to issue, sell or transfer any stock or other securities
of the Company.
4.2 OWNERSHIP OF SHARES. The Sellers are the owners of record and
beneficially own all of the Shares free and clear of all rights, claims, liens
and encumbrances, and which Shares have not been sold, pledged, assigned or
otherwise transferred or subject to an option to purchase except pursuant to
this Agreement.
4.3 FINANCIAL STATEMENTS, BOOKS AND RECORDS. SCHEDULE 4.3 consists of the
unaudited balance sheet of the Company as at November 30, 1996 (the "BALANCE
SHEET") and the related statement of operations for the period then ended
(collectively the "FINANCIAL STATEMENTS"). The Financial Statements fairly
represent the financial position of the Company as at such dates and the results
of its operations for the period then ended. The Financial Statements were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis with prior periods except as otherwise disclosed in the
Financial Statements. The books of account and other financial records of the
Company, financial or otherwise, are in all material respects complete and
correct and are maintained in accordance with sound business and accounting
practices.
EX 2.i-5
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4.4 NO MATERIAL ADVERSE CHANGES. Except as set forth on SCHEDULE 4.4,
since the date of the Balance Sheet there has not been:
(a) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of
the Company;
(b) any incurrence by the Company of any indebtedness for borrowed
money, except for indebtedness to Purchaser;
(c) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition
(financial or otherwise) of the Company, whether or not
covered by insurance;
(d) any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of
capital stock of the Company;
(e) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by the Company of any
properties or assets;
(f) any termination or failure to renew, or receipt of any threat
(that was not subsequently withdrawn) to terminate or fail to
renew, any contract or other agreement; or
(g) except in the ordinary course of business, any contract,
agreement or transaction consummated, other than the issuance
of stock to the Sellers.
4.5 TAXES. The Company has prepared and filed all federal, state and local
tax returns of every kind and category (including, without limitation, income
taxes, estimated taxes, excise taxes, sales taxes, inventory taxes, use taxes,
gross receipt taxes, franchise taxes and property taxes) for all periods prior
to and through the date hereof for which any such returns have been required to
be filed by it except where the failure to make such filings and resulting
liability would not be material relative to the results of operations of the
Company. The Company has paid all taxes shown to be due by said returns or on
any assessments received by it or has made adequate provision for the payment
thereof, except as set forth on the Balance Sheet.
EX 2.i-6
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4.6 COMPLIANCE WITH LAWS. Except as set forth on SCHEDULE 4.6, the Company
has complied in all material respects with all federal, state, county and local
laws, ordinances, regulations, inspections, orders, judgments, injunctions,
awards or decrees applicable to it or its business which, if not complied with,
would materially and adversely affect the business of the Company, or except to
the extent that noncompliance would not result in the incurrence of any material
liability for the Company.
4.7 NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
(a) violate any provision of the Articles of Incorporation or
By-Laws of the Company;
(b) violate, conflict with or result in the material breach of any
of the terms of, result in a material modification of,
otherwise give any other contracting party the right to
terminate, or constitute (or with notice or lapse of time or
both constitute) a material default under, any contract or
other agreement to which the Company is a party or by or to
which it or any of its assets or properties may be bound or
subject;
(c) violate in any material respect any municipal, state or
federal law or ordinances in connection with the use of the
Company's facilities whereat the Company conducts its business
or in connection with the operation of the business of the
Company (the foregoing representation being limited solely to
the knowledge and belief of the Company and the Sellers); or
(d) violate in any material respect any statute, law or regulation
of any jurisdiction applicable to the transactions
contemplated herein (the foregoing representation being
limited solely to the knowledge and belief of the Company and
the Sellers).
4.8 ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Company. There is no action, suit
or claim or legal, administrative or arbitral proceeding or any investigation
(whether or not the defense thereof or liabilities in respect thereof are
covered by insurance) pending or, to the best knowledge of the Company and the
EX 2.i-7
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Sellers, threatened against or involving the Company, or any of its properties
or assets, which if determined adversely would result in a material adverse
effect on the Company. There is no fact, event or circumstances known to the
Company or the Sellers that Company or the Sellers know will give rise to any
suit, action, claim, investigation or proceeding that would be required to be
set forth on SCHEDULE 4.8 if currently pending or threatened, other than the
fact that the Company is a network marketing company and such companies bear
extreme scrutiny by state attorney generals and other governmental and
regulatory agencies.
4.9 AGREEMENTS. SCHEDULE 4.9 sets forth any material contract or
arrangement to which the Company is a party or by or to which it or its assets,
properties or business are bound or subject, whether oral or written, including
(but not limited to) any:
(a) contract or other agreement with any current or former
officer, director, shareholder, employee, consultant or agent;
(b) voting trust agreement or shareholders agreement;
(c) agreement or contract relating to any present indebtedness of
the Company, including (but not limited to) any bond,
debenture, loan, deed of trust, guarantee, security agreement,
pledge, mortgage or other document granting a security
interest in or lien on any asset of the Company;
(d) lease of real property;
(e) loan, advance or forgiveness of debt by the Company;
(f) lease of equipment, machinery, airplanes or any other goods;
(g) settlement agreement;
(h) service, distribution or supply agreement;
(i) broker, finder or agent agreement;
(j) any employment agreement, independent agents agreement or
agreement not-to-compete;
(k) employee benefit plan, including (but not limited to) pension,
profit sharing, retirement, deferred compensation, stock
purchase, bonus or severance plans; and
EX 2.i-8
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(l) other material contract, agreement or arrangement whether or
not made in the ordinary course of business involving payments
or commitments for services or products amounting to in excess
of $25,000.
All of the agreements set forth on SCHEDULE 4.9 (except as otherwise set
forth on SCHEDULE 4.9) are valid, binding, enforceable, subsisting agreements,
in full force and effect. The Company is not in default in any material respect
under any of them (nor to the best of the Company's and the Sellers' knowledge
is any other party to any of such agreements, nor to the best of the Company's
and the Sellers' knowledge does any condition exist which with notice or lapse
of time or both would constitute a default thereunder) where such defaults,
considered in the aggregate, are material to the business, operations,
properties, assets, or condition of the Company, except as otherwise set forth
on SCHEDULE 4.9.
4.10 INSURANCE. SCHEDULE 4.10 sets forth a list and brief description of
all policies or binders of insurance, including (but not limited to) key-man
insurance, workmen's compensation and employer liability, automobile insurance,
product liability and title insurance (the "POLICIES"). The Policies on SCHEDULE
4.10 are valid and enforceable in accordance with their terms and are in full
force and effect.
4.11 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
the Company in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by the Company or
the Sellers.
4.12 REAL ESTATE. SCHEDULE 4.12 sets forth a description of all real
property owned by the Company and all leases to which the Company is a party.
The present use by the Company of its facilities and the conduct by the Company
of its business does not violate in any material respect any laws, regulations
or orders. To the knowledge of the Company and the Sellers, there is no pending
legislation, regulation, ordinance or interpretation under consideration which
Sellers believe precludes or will preclude the Company from continuing to
operate its business in substantially the same manner as heretofore conducted.
4.13 TANGIBLE ASSETS. SCHEDULE 4.13 sets forth all machinery, equipment,
furniture, leasehold improvements, fixtures, vehicles, structures, any related
EX 2.i-9
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capitalized items or other tangible property of the Company having a purchase
price of over $10,000 (the "TANGIBLE ASSETS"). Except as set forth on SCHEDULE
4.13, the Company holds all right, title and interest in all the properties,
interests in properties and assets, real, personal and mixed reflected as being
owned by it on the Balance Sheet or acquired by it after the date of the Balance
Sheet free and clear of all liens, pledges, mortgages, security interests,
conditional sales contracts or any other encumbrances, except as set forth on
SCHEDULE 4.13. All of the Tangible Assets are in good operating condition and
repair (subject to the need for routine maintenance) and are usable in the
ordinary course of business of the Company and, to the best of the Company's and
the Sellers' knowledge, conform to all applicable laws, ordinances and
governmental orders, rules and regulations relating to their construction and
operation.
4.14 LIABILITIES. As at the date of the Balance Sheet, except as set forth
on SCHEDULE 4.14, the Company does not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, which
are material to its operations, and are of the type required to be reflected or
disclosed in a balance sheet prepared in accordance with generally accepted
accounting principles whether known or unknown, fixed or unfixed, liquidated or
unliquidated, secured or unsecured, accrued or absolute, contingent or
otherwise, including, without limitation, any liability on account of taxes, any
other governmental charge or lawsuit brought, (all of the foregoing collectively
defined to as "LIABILITIES"), which were not fully, fairly and adequately
reflected on the Balance Sheet. As of the Closing Date, the Company will not
have any Liabilities, other than Liabilities fully and adequately reflected on
the Balance Sheet or on SCHEDULE 4.14, except for Liabilities incurred since the
date of the Balance Sheet, in the ordinary course of business.
4.15 RECEIVABLES. All outstanding accounts receivables (trade or other) of
the Company shown in the Financial Statements are bona fide, arose in the
ordinary course of business at the aggregate amounts thereof and, to the
knowledge of the Company and the Sellers, they have no reason to believe that
such receivables are not current and collectable in full within ninety (90) days
of the date hereof. No account is more than ninety (90) days overdue, except as
disclosed on Schedule 4.15. In addition, except as otherwise set forth on
SCHEDULE 4.15, to the knowledge of the Company and the Sellers, none of such
accounts receivable are subject to any stated claim or offset, recoupment,
set-off or circumstances giving rise to any such claims against it. No person
has any lien on such receivables, or any part thereto, and no agreement for
deduction or discount has been made with respect to any of such receivables.
EX 2.i-10
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4.16 INTANGIBLE PROPERTY. Except as set forth on SCHEDULE 4.16, the
Company is the owner or licensee of, or otherwise has the right to use all
copyrights, trademarks, patents, trade names, service marks, licenses,
inventions, all registrations and applications in respect thereof, and all other
items of intangible property which are owned, used by or accrue to the benefit
of the Company (collectively, the "INTANGIBLE PROPERTY") free and clear of all
material liens, encumbrances, security interests, pledges, claims, equities and
other restrictions or charges of any kind or nature whatsoever, and except as
disclosed on SCHEDULE 4.16, to the best of the Company's and the Shareholders'
knowledge, the Company's use of the Intangible Property has not and will not
conflict with, infringe upon or violate any proprietary right of any other
person. The Company has not received any claims or demands asserted against the
Company with respect to any items of Intangible Property and no proceedings have
been instituted, or are pending or, to the best knowledge of the Company and the
Sellers, have been threatened which challenge the rights of the Company with
respect to any items of Intangible Property.
4.17 RELATIONSHIPS WITH PRINCIPAL CUSTOMERS. No customer of the Company
which accounts for in excess of 10% of its revenues on an annual basis or group
of customers which account in the aggregate for in excess of 40% of the revenues
of the Company on an annual basis, has expressed any intention to terminate,
curtail or otherwise limit their relationship with the Company.
4.18 FULL DISCLOSURE. No representation or warranty by the Company or the
Sellers in this Agreement or in any schedule to be delivered by them pursuant
hereto, contains or will contain any untrue statement of a material fact or
omits or will omit to state any fact necessary to make any statement herein or
therein not materially misleading, when taken as a whole. To the best knowledge
of the Company and the Sellers, there is no fact, development or threatened
development (except for general economic conditions affecting business
generally) which the Company and the Sellers have not disclosed to Purchaser in
writing and which, so far as the Company and Sellers can reasonably foresee,
materially adversely affects the business of the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company and the
Sellers as follows:
5.1 ORGANIZATION AND GOOD STANDING. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
EX 2.i-11
<PAGE>
Delaware, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such businesses are now conducted. The Purchaser is duly licensed
or qualified and in good standing as a foreign corporation where the character
of the properties owned by it or the nature of the business transacted by it
make such license or qualification necessary and where the failure to be so
qualified would have a material adverse effect on the business or properties of
the Purchaser.
5.2 OUTSTANDING SHARES OF COMPANY. SCHEDULE 5.2 set forth, as of the date
hereof, the approximate number of shares of common stock ($.00001 par value) of
Purchaser which are issued and outstanding. The capitalization of the Purchaser
as at June 30, 1996 is set forth in the periodic reports ("PERIODIC REPORTS")
filed by the Company with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended and SCHEDULE 5.2 hereof. All issued
and outstanding shares of the capital stock of the Company are validly
authorized, legally issued, fully paid, and non-assessable and not issued in
violation of the preemptive or other right of any person. All shares of Company
Common Stock to be issued pursuant to the Warrants are validly authorized and
will be, when issued, legally issued, fully paid and non-assessable and not
issued in violation of any preemptive right of any person. The Company has
sufficient shares of its common stock authorized but unissued for the exercise
in full of the Warrants.
5.3 CONSIDERATION. This Agreement and all of the actions and agreements
contemplated herein have been duly authorized by all necessary corporate and any
stockholders actions. and constitute the legal, valid and binding obligations of
the Purchaser enforceable pursuant to their terms.
5.4 ACTIONS AND PROCEEDINGS. Except as set forth on SCHEDULE 5.4, (a)
there is no outstanding order, judgment, injunction, award or decree of any
court, governmental or regulatory body or arbitration tribunal against or
involving the Purchaser; and (b) there is no action, suit or claim or legal,
administrative or arbitral proceeding or any investigation (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
pending or, to the best knowledge of the Purchaser, threatened against or
involving the Purchaser or properties or assets of the Purchaser. There is no
fact, event or circumstances known to the Purchaser that may give rise to any
suit, action, claim, investigation or proceeding that would be required to be
set forth on SCHEDULE 5.4 if currently pending or threatened.
EX 2.i-12
<PAGE>
5.5 FINANCIAL STATEMENTS; BOOKS AND RECORDS. The financial statements
included in the Purchaser's Periodic Reports filed with the Securities and
Exchange Commission and previously delivered to the Company were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis with prior periods except as otherwise stated therein, and such financial
statements fairly represent the financial position of the Purchaser as at the
date and the results of its operations for the period then ended.
5.6 NO MATERIAL ADVERSE CHANGES. Except as set forth on SCHEDULE 5.6,
since the date of the balance sheet at June 30, 1996, included in the financial
statements filed with the Securities and Exchange Commission, there has not been
any material adverse change in the assets, operations or condition (financial or
otherwise) of the Purchaser.
5.7 COMPLIANCE WITH LAWS. The Purchaser has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to its businesses which, if
not complied with, would materially and adversely affect the business of the
Purchaser.
5.8 NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplat- ed hereby will not:
(a) violate any provision of the Certificate of Incorporation or
By-Laws of the Purchaser;
(b) violate, conflict with or result in the breach of any of the
material terms of, result in a material modification of,
otherwise give any other contracting party the right to
terminate, or constitute (or with notice or lapse of time or
both constitute) a material default under, any contract or
other agreement to which the Purchaser is a party or by or to
which it or any of its assets or properties may be bound or
subject;
(c) violate in any material respect any order, judgment,
injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon the
Purchaser or upon the securities, properties or business of
the Purchaser; or
EX 2.i-13
<PAGE>
(d) violate in any material respect any statute, law or regulation
of any jurisdiction applicable to the transactions
contemplated herein.
5.9 BROKERS OR FINDERS. No broker's or finder's fee will be payable by the
Purchaser in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by the Purchaser.
5.10 FILING UNDER THE SECURITIES ACT OF 1934. The Purchaser has filed, is
current with respect to all documents required to be filed by it under and is in
compliance with all rules and regulations of the Securities and Exchange
Commission, copies of which have been made available to the Company and the
Sellers. As of their respective dates, the Purchaser's reports filed under the
Securities Exchange Act of 1934, as amended, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading.
5.11 FULL DISCLOSURE. No representation or warranty by the Purchaser in
this Agreement or in any schedule to be delivered by it pursuant hereto,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary to make any statement herein or
therein not materially misleading. To the best knowledge of the Purchaser there
is no material fact, development or threatened development (except for general
economic conditions affecting business generally) which the Purchaser has not
disclosed in writing and which, so far as the Purchaser can reasonably foresee,
materially adversely affects the Purchaser or the transactions contemplated
hereby.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATION OF
THE PURCHASER TO CLOSE
The obligation of the Purchaser to purchase the Shares is subject to the
fulfillment on or prior to the Closing Date of the following conditions, any one
or more of which may be waived by the Purchaser in writing.
6.1 REPRESENTATIONS AND COVENANTS. The representations and warranties of
the Company and the Sellers contained in this Agreement shall be true in all
material respects as of the Closing. The Company and the Sellers shall have
performed and complied in all material respects with all covenants and
EX 2.i-14
<PAGE>
agreements required by this Agreement to be performed or complied with by the
Company and the Sellers on or prior to the Closing Date.
6.2 GOVERNMENTAL PERMITS AND APPROVALS; CORPORATE AUTHORIZATION. Any and
all permits and approvals from any governmental or regulatory body required for
the lawful consummation of the Closing shall have been obtained. The Company
shall have delivered to the Purchaser:
(a) The Articles of Incorporation of the Company and all amendments
thereto, certified by the Secretary of State of Texas; and
(b) (i) copies of the Company's resolutions of its Board of
Directors authorizing and approving this Agreement and all of the
transactions and agreements contemplated hereby and thereby, (ii) the
Bylaws of the Company and (iii) the names of the officer or officers of
the Company authorized to execute this Agreement and any and all
documents, agreements and instruments contemplated herein, all certified
by the Secretary of the Company to be true, correct, complete and in full
force and effect and unmodified as of the Closing Date.
6.3 THIRD PARTY CONSENTS. All consents, permits and approvals from parties
to any contracts, loan agreements or other agreements with the Company which may
be required in connection with the performance by the Company or the Sellers of
their obligations under such contracts, loan agreements or other agreements
after the Closing Date shall have been obtained.
6.4 SATISFACTORY BUSINESS REVIEW. The Purchaser shall have in good faith
reasonably satisfied itself, after receipt and consideration of the documents,
schedules of the Company and after the Purchaser and its representatives have
completed the review of the business of the Company contemplated by this
Agreement, that none of the information revealed thereby or in the Financial
Statements has resulted in, or in the reasonable opinion of the Purchaser may
result in, a material adverse change in the assets, properties, business,
operations or condition (financial or otherwise) of the Company.
6.5 LITIGATION. No action, suit or proceeding shall have been instituted
before any court or governmental or regulatory body or instituted or threatened
by any governmental or regulatory body to restrain, modify or prevent the
carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may have,
in the reasonable opinion of the Purchaser, a materially adverse effect on the
EX 2.i-15
<PAGE>
the assets, properties, business, operations or condition (financial or
otherwise) of the Company.
6.6 STOCK CERTIFICATES. At the Closing, the Sellers shall have delivered
the certificates for the Shares to be transferred to the Purchaser pursuant
hereto duly endorsed (or with executed stock powers) so as to make the Purchaser
the sole owner thereof.
6.7 SERVICE BUREAU AGREEMENT. At the Closing, the Company shall have
entered into a Service Bureau Agreement with TRI for enhanced telecommunications
services, network marketing, back office services and internet access services
in the form of EXHIBIT B annexed hereto.
6.8 EMPLOYMENT AGREEMENTS. At the Closing, the Company and the Purchaser
shall have entered into an Employment Agreement with Lou Zant in the form of
EXHIBIT C annexed hereto.
6.9 CONSULTING AGREEMENT. At the Closing, the Company shall have entered
into a Consulting Agreement with Richard E. McFarland (or a newly formed
subchapter S corporation of which Richard E. McFarland is the sole shareholder
and employee) in the form of EXHIBIT D annexed hereto.
6.10 PROMISSORY NOTES. At the Closing:
(a) The Promissory Note dated on or about October 10, 1996, in the
principal amount of $100,000, by and between TRI, as Maker,
and the Purchaser's wholly-owned subsidiary, Total World
Telecom, Inc., as Payee, shall be canceled and returned to
TRI;
(b) The Promissory Note dated on or about October 4, 1996, in the
principal amount of $25,000, by and between TRI, as Maker, and
the Purchaser's wholly-owned subsidiary, Total World Telecom,
Inc., as Payee, shall be canceled and returned to TRI; and
(c) The Promissory Note dated on or about September 25, 1996, in
the principal amount of $25,000, by and between TRI, as Maker,
and the Purchaser's wholly-owned subsidiary, Total World
Telecom, Inc., as Payee, shall be canceled and returned to
TRI.
EX 2.i-16
<PAGE>
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATION OF
THE COMPANY AND SELLERS TO CLOSE
The obligation of the Company and the Sellers to sell the Shares is
subject to the fulfillment on or prior to the Closing Date of the following
conditions, any one or more of which may be waived in writing by the Sellers.
7.1 REPRESENTATIONS AND COVENANTS. The representations and warranties of
the Purchaser contained in this Agreement shall be true in all material respects
as of the Closing. The Purchaser shall have performed and complied with all
covenants and agreements required by this Agreement to be performed or complied
with by the Purchaser on or prior to the Closing Date.
7.2 GOVERNMENTAL PERMITS AND APPROVALS; CORPORATE AUTHORIZATION. Any and
all permits and approvals from any governmental or regulatory body required for
the lawful consummation of the Closing shall have been obtained. The Purchaser
shall have delivered to the Sellers:
(a) The Certificate of Incorporation of the Purchaser certified by
the Secretary of the Purchaser; and
(b) (i) copies of the Purchaser's resolutions of its Board of
Directors authorizing and approving this Agreement and all of the
transactions and agreements contemplated hereby and thereby, (ii) the
Bylaws of the Purchaser and (iii) the names of the officer or officers of
the Purchaser authorized to execute this Agreement and any and all
documents, agreements and instruments contemplated herein, all certified
by the Secretary of the Purchaser to be true, correct, complete and in
full force and effect and unmodified as of the Closing Date.
7.3 THIRD PARTY CONSENTS. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with the Purchaser
which may be required in connection with the performance by the Purchaser of its
obligations under such contracts, loan agreements or other agreements after the
Closing shall have been obtained.
7.4 SATISFACTORY BUSINESS REVIEW. The Company and the Sellers shall have
in good faith reasonably satisfied themselves, after review of the information
provided hereby or in connection herewith, or following any discussions with
management or representatives of the Purchaser that none of the information
EX 2.i-17
<PAGE>
revealed thereby has resulted in or in the reasonable opinion of the Company or
the Sellers may result in a material adverse change in the assets, properties,
business, operations or condition (financial or otherwise) of the Purchaser.
7.5 LITIGATION. No action, suit or proceeding shall have been instituted
before any court or governmental or regulatory body or instituted or threatened
by any governmental or regulatory body to restrain, modify or prevent the
carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may in the
reasonable opinion of the Company or the Sellers, have a materially adverse
effect on the assets, properties, business, operations or condition (financial
or otherwise) of the Purchaser.
7.6 PURCHASE PRICE. The Sellers shall have received the Initial Purchase
Price and the Warrants.
7.7 SERVICE BUREAU AGREEMENT. At the Closing, the Company shall have
entered into a Service Bureau Agreement with TRI for enhanced telecommunications
services, network marketing, back office services and internet access services
in the form of EXHIBIT B annexed hereto.
7.8 EMPLOYMENT AGREEMENT. At the Closing, the Purchaser and the Company
shall have entered into an Employment Agreement with Lou Zant in the form of
EXHIBIT C annexed hereto.
7.9 CONSULTING AGREEMENT. At the Closing, the Company shall have entered
into a Consulting Agreement with Richard E. McFarland (or a newly formed
subchapter S corporation of which Richard E. McFarland is the sole shareholder
and employee) in the form of EXHIBIT D annexed hereto.
7.10 PROMISSORY NOTES. At the Closing:
(a) The Promissory Note dated on or about October 10, 1996, in the
principal amount of $100,000, by and between TRI, as Maker,
and the Purchaser's wholly-owned subsidiary, Total World
Telecom, Inc., as Payee, shall be canceled and returned to
TRI;
(b) The Promissory Note dated on or about October 4, 1996, in the
principal amount of $25,000, by and between TRI, as Maker, and
the Purchaser's wholly-owned subsidiary, Total World Telecom,
Inc., as Payee, shall be canceled and returned to TRI; and
EX 2.i-18
<PAGE>
(c) The Promissory Note dated on or about September 25, 1996, in
the principal amount of $25,000, by and between TRI, as Maker,
and the Purchaser's wholly-owned subsidiary, Total World
Telecom, Inc., as Payee, shall be canceled and returned to
TRI.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SELLERS
Notwithstanding any right of the Purchaser fully to investigate the
affairs of the Company, the Purchaser shall have the right to rely fully upon
the representations, warranties, covenants and agreements of the Company and the
Sellers contained in this Agreement or in any document delivered to the
Purchaser by the Company or the Sellers or any of their representatives at the
Closing, in connection with the transactions contemplated by this Agreement. All
such representations, warranties, covenants and agreements shall survive the
execution and delivery hereof and the Closing hereunder for twelve (12) months
following the Closing Date.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF
THE PURCHASER
Notwithstanding any right of the Company and the Sellers fully to
investigate the affairs of the Purchaser, the Company and the Sellers have the
right to rely fully upon the representations, warranties, covenants and
agreements of the Purchaser contained in this Agreement or in any document
delivered to the Company or Sellers by the Purchaser or any of its
representatives at the Closing, in connection with the transactions contemplated
by this Agreement. All such representations, warranties, covenants and
agreements shall survive the execution and delivery hereof and the Closing
hereunder for twelve (12) months following the Closing Date.
ARTICLE X
INDEMNIFICATION
10.1 OBLIGATION OF THE COMPANY AND THE SELLERS TO INDEMNIFY. Subject to
the limitations on the survival of representations and warranties contained in
ARTICLE VIII, the Sellers severally hereby agree to indemnify, defend and hold
harmless, in proportion to their ownership of the Shares as reflected in
EX 2.i-19
<PAGE>
SCHEDULE 1.1, the Purchaser from and against any losses, liabilities, damages,
deficiencies, costs or expenses (including interest, penalties and reasonable
attorneys' fees and disbursements) ("LOSS" or "LOSSES") based upon, arising out
of or otherwise due to any inaccuracy in or any breach of any representation,
warranty, covenant or agreement of the Company or the Sellers contained in this
Agreement or in any Schedule; PROVIDED, HOWEVER, that the Sellers shall have no
liability under this Agreement (including under this SECTION 10.1) until the
aggregate of all Losses exceeds $60,000, and the Sellers shall only be liable
for the portion of such Losses exceeding $60,000. The entire liability of
Sellers under this Agreement shall not exceed the Initial Purchase Price (and
not including consideration paid under ancillary agreements).
10.2 OBLIGATION OF THE PURCHASER TO INDEMNIFY. Subject to the limitations
on the survival of representations and warranties contained in ARTICLE IX, the
Purchaser agrees to indemnify, defend and hold harmless the Sellers and the
Company from and against any Loss, based upon, arising out of or otherwise due
to any inaccuracy in or any breach of any representation, warranty, covenant or
agreement made by the Purchaser and contained in this Agreement or in any
Schedule; PROVIDED, HOWEVER, that the Purchaser shall have no liability due to
an inaccuracy or breach of a non-payment provision under this Agreement
(including under this SECTION 10.2) unless such inaccuracy or breach of a
non-payment provision very substantially reduces the value of the Warrants.
10.3 CLAIMS BY THIRD PARTIES. Promptly after receipt by any party hereto
(the "INDEMNITEE") of notice of any demand, claim or circumstances which, with
the lapse of time, would give rise to a claim or the commencement (or threatened
commencement) of any action, proceeding or investigation (an "ASSERTED
LIABILITY") that may result in a Loss, the Indemnitee shall give notice thereof
(the "CLAIMS NOTICE") to the other party or parties (the "INDEMNITOR"). The
Claims Notice shall describe the Asserted Liability in reasonable detail, and
shall indicate the amount (estimated, if necessary) of the Loss that has been or
may be suffered by the Indemnitee.
10.4 OPPORTUNITY TO DEFEND. Indemnitor may elect to compromise or defend,
at its own expense and by its own counsel, any Asserted Liability. If the
Indemnitor elects to compromise or defend such Asserted Liability, it shall
within fifteen (15) days (or sooner, if the nature of the Asserted Liability so
requires) notify the Indemnitee of its intent to do so, and the Indemnitee shall
cooperate, at the expense of the Indemnitor in the compromise of, or defense
against, such Asserted Liability. The Indemnitee may participate at its own
expense, in the defense of such Asserted Liability. If Indemnitor elects not to
EX 2.i-20
<PAGE>
compromise or defend the Asserted Liability, fails to notify the Indemnitee of
its election as herein provided, contests its obligations to indemnify under
this Agreement, or at any time fails to pursue in good faith the resolution of
any Asserted Liability, in the opinion of Indemnitee, then Indemnitee may, upon
ten (10) days' notice to Indemnitor pay, compromise or defend any such Asserted
Liability. If the Indemnitor choose to defend any claim, the Indemnitee shall
make available to the Indemnitor any books, records or other documents within
its control that are necessary or appropriate for such defense.
10.5 EXCLUSIVITY. The provisions of this ARTICLE X shall be the exclusive
basis for the assertion of claims by or the imposition of liability on the
parties here to arising under or as a result of this Agreement (but not the
ancillary agreements annexed hereto); PROVIDED, HOWEVER, nothing herein shall
preclude a party from asserting a claim for equitable, non-monetary remedies.
10.6 LIMITATION. A party shall have no liability under this ARTICLE X
unless notice of claim for indemnity shall have been given prior to November 1,
1997.
ARTICLE XI
POST-CLOSING COVENANTS
11.1 AFFIRMATIVE COVENANTS. The Sellers and the Purchaser agree that
following the Closing and until the Maximum Amount has been received by the
Sellers, the books and records of the Company shall, at the Company's expense,
be audited annually by the Purchaser's accountants.
11.2 NEGATIVE COVENANTS. The Sellers and the Purchaser agree that
following the Closing and until January 1, 1998, the Purchaser shall not (and,
if applicable, shall cause its affiliates not to), without the written consent
of the Sellers:
(a) terminate Lou Zant's Employment Agreement or relieve him of
his duties as President of the Company;
(b) cause any transactions which could result in sales and/or
revenues to the Company to be entered into by another
subsidiary of the Purchaser or any other affiliate of the
Purchaser;
(c) cause the Company to sell, convey or otherwise dispose of a
material portion of the property, assets or business of the
Company;
EX 2.i-21
<PAGE>
(d) merge or consolidate the Company into or with any other
corporation, partnership or other entity;
(e) cause the Company to materially change the business of the
Company to a business outside of its present field of
endeavor;
(f) cause the Company to incur indebtedness for borrowed money
under any credit facilities to beentered into subsequent to
the date hereof; PROVIDED, HOWEVER, that this prohibition
shall not apply to indebtedness under any credit facilities of
the Purchaser and shall not prevent or restrict the Purchaser
from causing the Company to grant a security interest or other
lien in its assets, or from guaranteeing the obligations of
the Purchaser, to any of the Purchaser's lenders;
(g) effect any transaction or series of related transactions in
which more than 25% of the voting power of the Company is
disposed of other than to affiliates of the Purchaser; or
(h) cause the Company to enter into any transaction with the
Purchaser or any affiliate of the Purchaser except in the
ordinary course and pursuant to the reasonable requirements of
the Company's business and upon fair and reasonable terms no
less favorable to the Company than would be obtained in a
comparable arms-length transaction with a third-party.
ARTICLE XII
MISCELLANEOUS
12.1 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party at any time from the signing hereof without advance approval in writing of
the form and substance thereof by the other party.
12.2 NOTICES. Any notice or other communication required or which may
given hereunder shall be in writing by a party or by an attorney to a party and
shall be delivered personally, telegraphed, telexed, sent by facsimile
transmission or sent by certified, registered, or express mail, postage prepaid,
and shall be deemed given when so delivered personally, telegraphed, telexed or
EX 2.i-22
<PAGE>
sent by facsimile transmission or if mailed, four (4) days after the date of
mailing, as follows:
(i) If to the Purchaser:
TOTAL WORLD TELECOMMUNICATIONS, INC.
c/o Arnold Salinas
1001 Fannin, Suite 300
Houston, Texas 77002
With a copy to:
James M. Schneider, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
200 East Las Olas Blvd.
Suite 1900
Fort Lauderdale, Florida 33301
(ii) If to Telecom Resources, Inc.
TELECOM RESOURCES, INC.
1950 Stemmons Freeway, Suite 2045
Dallas, Texas 75207
Attention: Richard E. McFarland
With a copy to:
P. Weston Musselman, Jr.
Jenkens & Gilchrist, P.C.
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202-2799
(iii) If to Zant
Louis Zant, III
350 Herons Rune Drive No. 508
Sarasota, Florida 34232
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notice hereunder.
12.3 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the delivery of the Shares, the
Warrants and related transactions, and supersede all prior agreements, written
or oral, with respect thereto.
EX 2.i-23
<PAGE>
12.4 WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies which any party may otherwise have at law or in equity. The rights and
remedies of any party based upon, arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty, covenant or agreement
contained in this Agreement shall in no way be limited by the fact that the act,
omission, occurrence or other state of facts upon which the claim of any
inaccuracy or breach is based may also be the subject matter of any other
representation, warranty, covenant or agreement contained in this Agreement (or
in any other agreement between the parties) as to which there is no inaccuracy
or breach.
12.5 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Texas applicable to agreements made and
to be performed entirely within such State.
12.6 NO ASSIGNMENT. This Agreement is not assignable except by operation
of law.
12.7 EXHIBITS AND SCHEDULES. The Exhibits and Schedules to this Agreement
are a part of this Agreement as if set forth in full herein.
12.8 HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
12.9 SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
EX 2.i-24
<PAGE>
12.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall be considered to be but one and the same
document.
12.11 ATTORNEY'S FEES AND COSTS. In connection with any litigation arising
out of this Agreement or the parties relationship as contemplated herein, the
prevailing party will be entitled to recover all expenses incurred, including
reasonable attorney's fees and courts costs and any and all fees in connection
with any appellate proceeding occasioned as a result thereof.
12.12 GENDER. The use of the singular herein shall be deemed to include
the plural and the use of the plural shall be deemed to include the singular.
12.13 ADDITIONAL DEFINITIONS. As used herein "best knowledge" shall
include only information actually known to (a) the person in the case of an
individual or (b) in the case of a corporation, a current officer who devoted
substantive attention to matters of such nature during the ordinary course of
his or her employment. "Person" shall include a person, corporation, partnership
or other legal entity.
12.14 SPECIFIC PERFORMANCE. The parties agree that the agreements of the
parties hereunder are unique and that the parties will be irreparably harmed in
the event this Agreement is not specifically enforced. The parties further agree
it is impossible to measure in money the damage which will accrue by reason of a
refusal by a party to perform its obligations under this Agreement. Therefore,
in the event that any party shall institute any action to enforce the provisions
of this Agreement, the parties hereby acknowledge that the other party does not
have an adequate remedy at law and that injunctive or other equitable relief
will not constitute any hardship on the parties and that this Agreement and the
obligations of the parties may be specifically enforced.
12.15 JURISDICTION. Each of the parties submit to the jurisdiction of any
state or federal court sitting in or near Dallas County, Texas, in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each party also agrees not to bring any action or proceeding arising
out of or relating to this Agreement in any other court. Each of the parties
waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security that might
be required of any other party with respect thereto. Any party may make service
EX 2.i-25
<PAGE>
on any other party by sending or delivering a copy of the process to the party
to be served at the address and in the manner provided for the giving of notices
in SECTION 12.2 above. Nothing in this SECTION 12.15, however, shall affect the
right of any party to serve legal process in any other manner permitted by law
or at equity. Each party agrees that a final judgment in any action or
proceeding so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner provided by law or at equity.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
ATTEST TOTAL WORLD TELECOMMUNICATIONS, INC.
By:_________________________________________
Secretary Name:
Title:
ATTEST NETTOUCH COMMUNICATIONS, INC.
By:_________________________________________
Secretary Name:
Its: President
ATTEST TELECOM RESOURCES, INC.
By:_________________________________________
Secretary Name:
Its: President
____________________________________________
LOU ZANT
EX 2.i-26
EXHIBIT 2.i.A
Form of Warrant
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER EITHER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR APPLICABLE STATE
SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE SOLD, PLEDGED,
HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR
CONSIDERATION) BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF
COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT
THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND THE STATE
ACTS.
___________ Shares of Common Stock Warrant No. ___
WARRANT
To Purchase Common Stock of
TOTAL WORLD TELECOMMUNICATIONS, INC.
i. GRANT OF WARRANT.
(a) THIS IS TO CERTIFY THAT _______________________, a ____________
__________, or its permitted registered assigns ("HOLDER"), is entitled to
exercise this Warrant to purchase from Total World Telecommunications, Inc., a
Delaware corporation (the "COMPANY"), the number of shares of common stock, par
value $.00001 per share, of the Company (the "COMMON STOCK"), as determined
pursuant to SECTION 1(B) below, all on the terms and conditions and pursuant to
the provisions hereinafter set forth. This Warrant is being granted pursuant to
the terms of that certain Stock Purchase Agreement, of even date herewith (the
"AGREEMENT"), by and among the Company, Holder and certain other parties, and
the Company and Holder intend to be bound hereby and thereby. Any capitalized
terms not defined herein will have the meanings set forth in the Agreement.
(b)The number of shares of Common Stock into which this Warrant is
exercisable shall be calculated as follows:
(i) Beginning with the month ended January 31, 1997, and for
all months during 1997, the Purchaser shall cause the gross revenues for
Nettouch Communications, Inc., a Texas corporation ("NCI"), to be
calculated for such month. Such gross revenues shall be rounded up to the
next highest $100,000 increment (the "ROUNDED GROSS REVENUES") (by way of
EX 2.i-27
<PAGE>
example only, if gross revenues for a month were $2,631,000, Rounded Gross
Revenues would be equal to $2,700,000 for that month, and if gross
revenues for a month were $2,661,000, Rounded Gross Revenues would be
equal to $2,700,000 for that month). (ii) Rounded Gross Revenues for any
month shall be reduced by the greater of (A) $2,000,000 or (B) the highest
Rounded Gross Revenues calculated for any previous month, but no earlier
than November, 1996 (the "ADJUSTED GROSS REVENUES"). (iii) For each month
in which Adjusted Gross Revenues exceed zero such number shall be divided
by six (6) (the "MONTHLY WARRANT NUMBER"). (iv) The Monthly Warrant Number
for any month shall be added to the Monthly Warrant Number for all
previous months to arrive at the "CUMULATIVE WARRANT NUMBER." (v) The
Number of shares of Common Stock into which this Warrant is exercisable at
any time shall be equal to the Cumulative Warrant Number less the number
of shares of Common Stock into which this Warrant has already been
exercised at that time. (vi) The Company shall cause the calculations of
Rounded Gross Revenues, Adjusted Gross Revenues, the Monthly Warrant
Number and the Cumulative Warrant Number for any month to be made on or
prior to the 20th day of the next succeeding month.
(c) For the purposes of the calculations made pursuant to this
SECTION 1, the Company shall cause NCI to maintain separate records with respect
to NCI's business in a manner which accurately reflects the business of the NCI
as if it continued to be operated as a separate business. All calculations made
pursuant to this SECTION 1 shall be done in accordance with generally accepted
accounting principles, consistently applied.
(d) With respect to each month, the Company shall deliver a
statement to Holder showing the calculation of Rounded Gross Revenues, Adjusted
Gross Revenues, the Monthly Warrant Number and the Cumulative Warrant Number
through such month, on or prior to the 22nd day of the next succeeding month.
Unless Holder notifies the Company in writing that Holder disagrees with the
Company's determinations within five (5) days after receipt of such written
determinations, then such determinations shall be conclusive and binding upon
Holder and the Company. If Holder disagrees with such determinations, and within
the aforementioned five (5) day period has notified the Company, in writing,
thereof, specifying in detail the basis of such disagreement, then Holder and
the Company shall attempt to resolve their differences with respect thereto
within five (5) days after the Company's receipt of written notice of such
disagreement. Any such dispute that is not resolved within such five (5) day
period shall be submitted to binding resolution by either (i) an independent
accounting firm selected within ten (10) days thereafter by agreement of Holder
EX 2.i-28
<PAGE>
and the Company or (ii) in the event Holder and the Company have been unable to
select a firm by agreement within the prescribed time period, a "Big Six"
accounting firm selected by lot, after eliminating the accountants of the
Company. The determinations of any accounting firm so selected (the "REVIEW
ACCOUNTANTS") with respect to the determinations to be made pursuant to this
SECTION 1 shall be conclusive and binding upon the parties. The Company and the
objecting Holder shall each pay one-half of the fees and expenses of any Review
Accountants selected to resolve any dispute between the parties regarding such
determination.
ii. EXERCISE PRICE. The exercise price per share of Common Stock shall
be $7.75 per share (the "EXERCISE PRICE"). Such Exercise Price and the number of
shares of Common Stock into which this Warrant is exercisable are subject to
adjustment from time to time as provided in SECTION 9 hereof.
iii. EXERCISE. This Warrant may be exercised at any time or from time to
time on or after the date of issuance hereof; PROVIDED, HOWEVER, that this
Warrant shall be void and all rights represented hereby shall cease unless
exercised in full before December 31, 2000 (the "EXPIRATION DATE"); PROVIDED,
HOWEVER, that any default of any covenant or obligation of the Company pursuant
to the Agreement or any other document or agreement executed in connection
therewith shall extend the Expiration Date for the number of days that such
default remains uncured or not waived.
iv. EXERCISE PROCEDURE.
(a) In order to exercise this Warrant, in whole or in part, the
Holder hereof shall deliver to the Company at its principal office at
________________________, ________________, or at such other office as shall be
designated by the Company pursuant to the Agreement:
(i) written notice of Holder's election to exercise this
Warrant, which notice shall specify the number of shares of Common Stock
to be purchased pursuant to such exercise;
(ii) either (A) cash or bank check payable to the order of the
Company, or (B) notice that the Exercise Price is satisfied by reduction
of the number of shares of Common Stock to be received by Holder upon
exercise of this Warrant as provided in SECTION 5 below, with the amount
of such reduction specified in such notice; in each case such cash or
reduction of shares of Common Stock to be in an amount equal to the
aggregate purchase price for all shares of Common Stock to be purchased
pursuant to such exercise; and
EX 2.i-29
<PAGE>
(iii) this Warrant, properly endorsed.
(b) Upon receipt thereof, the Company shall, as promptly as
practicable, and in any event within ten (10) days thereafter, execute or cause
to be executed and deliver or cause to be delivered to such Holder a certificate
or certificates representing the aggregate number of full shares of Common Stock
issuable upon such exercise. The stock certificate or certificates so delivered
shall be registered in the name of such Holder, or, subject to the restrictions
set forth in the Agreement, such other name as shall be designated in said
notice.
(c) This Warrant shall be deemed to have been exercised and such
certificate or certificates shall be deemed to have been issued, and such Holder
or any other person so designated to be named therein shall be deemed to have
become a Holder of record of such shares of Common Stock for all purposes, as of
the date that said notice, together with said payment (or notice of intent to
reduce the Exercise Price as provided in SECTION 5 below) and this Warrant, is
received by the Company as aforesaid. The Holder of this Warrant shall not, by
virtue of its ownership of this Warrant, be entitled to any rights of a
shareholder in the Company, either at law or in equity; PROVIDED, HOWEVER, such
Holder shall, for all purposes, be deemed to have become the Holder of record of
such shares of Common Stock on the date on which this Warrant is surrendered to
the Company in the immediately preceding sentence. If the exercise is for less
than all of the shares of Common Stock issuable as provided in the Warrant, the
Company will issue a new Warrant of like tenor and date for the balance of such
shares issuable hereunder to Holder. The rights of the Holder of this Warrant,
by its acceptance hereof, consents to and agrees to be bound by and to comply
with all of the provisions of this Warrant and the Agreement.
v. "CASHLESS" EXERCISE. At the option of the Holder, the Holder may
exercise this Warrant, without a cash payment of the Exercise Price, by
designating that the number of shares of Common Stock issuable to Holder upon
such exercise shall be reduced by the number of shares having a fair market
value equal to the amount of the total exercise price for such exercise. In such
instance, no cash or other consideration will be paid by Holder in connection
with such exercise other than the surrender of the Warrant itself, and no
commission or other remuneration will be paid or given by Holder or the Company
in connection with such exercise.
vi. TAXES. The issuance of any shares of Common Stock or other certifi-
cate upon the exercise of this Warrant shall be made without charge to the
registered Holder hereof, or for any tax in respect of the issuance of such
certificate.
EX 2.i-30
<PAGE>
vii. TRANSFER. This Warrant and all options and rights hereunder are
transferable, as to all or any part of the number of shares of Common Stock
purchasable upon its exercise, by the Holder hereof in person or by duly
authorized attorney on the books of the Company upon surrender of this Warrant
at the principal offices of the Company, together with the form of transfer
authorization attached hereto duly executed. The Company shall deem and treat
the registered Holder of this Warrant at any time as the absolute owner hereof
for all purposes and shall not be affected by any notice to the contrary. If
this Warrant is transferred in part, the Company shall at the time of surrender
of this Warrant, issue to the transferee a Warrant covering the number of shares
of Common Stock transferred and to the transferor a Warrant covering the number
of shares of Common Stock not transferred.
viii. CASH IN LIEU OF FRACTIONAL SHARES. The Company shall not be required
to issue fractional shares upon the exercise of this Warrant. If the Holder of
this Warrant would be entitled, upon the exercise of any rights evidenced
hereby, to receive a fractional interest in a share, the Company shall pay such
amount as indicated under SECTION 9(D) hereof.
ix. ADJUSTMENTS. If any of the following events shall occur at any time
or from time to time prior to the Expiration Date, the following adjustments
shall be made in the Exercise Price and/or the number of shares of Common Stock
then purchasable upon the exercise of this Warrant, as appropriate:
(a) In case the Company shall at any time subdivide its outstanding
shares of Common Stock into a greater number of shares, the Exercise Price in
effect immediately prior to such subdivision shall be proportionately reduced
and the number of shares of Common Stock purchasable under this Warrant shall be
proportionately increased; and conversely, in case the Common Stock of the
Company shall be combined into a smaller number of shares, the Exercise Price in
effect immediately prior to such combination shall be proportionately increased
and the number of shares of Common Stock purchasable hereunder shall be
proportionately reduced.
(b) If the Company shall declare a dividend on its Common Stock
payable in the capital stock or other securities of the Company or of any other
corporation, or in cash or other property, to holders of record of Common Stock
as of a date prior to the date of exercise of this Warrant, Holder, shall,
without additional cost, be entitled to receive upon the exercise of this
Warrant, in addition to the Common Stock to which Holder is otherwise entitled
upon such exercise, the number of shares of the capital stock or other
securities, cash or property that Holder would have been entitled to receive if
EX 2.i-31
<PAGE>
Holder had been a holder of the number of shares of Common Stock that Holder
actually receives upon exercise of this Warrant on such record date.
(c) In case of any capital reorganization or reclassification of the
Common Stock, or the consolidation or merger of the Company with or into another
corporation, or any sale of all or substantially all of the Company's property
or assets, or any liquidation of the Company, Holder upon the exercise of this
Warrant on or before the record date for determination of shareholders entitled
thereto, shall receive, in lieu of any shares of Common Stock, the proportionate
share of all stock, securities or other property issued, paid or delivered for
or on all of the Common Stock as is allocable to the shares of Common Stock then
exercisable under this Warrant.
(d) No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but Holder shall pay a cash adjustment in respect of
any fraction of a share that would otherwise be issuable in an amount equal to
the same fraction of the fair market value per share of Common Stock on the day
of exercise.
x. NOTICES OF CERTAIN EVENTS.
(a) In the event of (i) any setting by the Company of a record date
with respect to the holders of any class of securities of the Company for the
purpose of determining which of such holders are entitled to dividends or other
distributions, or any right to subscribe for, purchase or otherwise acquire any
shares of the capital stock or any other securities or property, or to receive
any other right, or (ii) any capital reorganization of the Company or
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets of the Company to, or
consolidation or merger of the Company with or into, any other entity or person,
or (iii) any voluntary dissolution or winding up of the Company or (iv) any
proposed issue or grant by the Company of any shares of the capital stock or any
other securities, or any right or option to subscribe for, purchase or otherwise
acquire any shares of the capital stock or any other securities of the Company
(other than Common Stock issued pursuant to exercise of this Warrant) then and
in each such event the Company will mail or cause to be mailed to the holders of
this Warrant at the time outstanding a notice specifying, as the case may be,
(A) the date on which any such record is to be set for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution, or right; (B) the date as of which the holders of record
shall be entitled to vote on any reorganization, reclassification,
recapitalization, transfer, consolidation, merger, conveyance, dissolution,
EX 2.i-32
<PAGE>
liquidation, or winding-up; (C) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger, conveyance,
dissolution, liquidation, or winding-up is to take place and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or such other
capital stock or securities receivable upon the exercise of this Warrant) shall
be entitled to exchange their shares of Common Stock (or such other capital
stock or securities) for securities or other property deliverable upon such
event; or (D) the amount and character of any capital stock or other securities,
or rights or options with respect thereto, proposed to be issued or granted, the
consideration to be received therefor and, in the case of rights or options, the
exercise price thereof, and the date of such proposed issue or grant and the
persons or class of persons to whom such proposed issue or grant will be offered
or made.
(b) If there shall be any adjustment as provided in SECTION 9, or if
securities or property other than shares of Common Stock of the Company shall
become purchasable in lieu of shares of such Common Stock upon exercise of this
Warrant, the Company shall forthwith cause written notice thereof to be sent as
provided in the Agreement, to the holder of this Warrant at the address of such
holder shown on the books of the Company, which notice shall be accompanied by a
certificate of the chief financial officer of the Company setting forth in
reasonable detail the basis for the holders becoming entitled to purchase such
shares and the number of shares that may be purchased and the Exercise Price
thereof, or the facts requiring any such adjustment and the Exercise Price and
number of shares purchasable after such adjustment, or the kind and amount of
any such securities or property so purchasable upon the exercise of this
Warrant, as the case may be. At the request of holder and upon surrender of this
Warrant, the Company shall reissue this Warrant in a form conforming to such
adjustments.
xi. LOST, STOLEN, MUTILATED, OR DESTROYED WARRANTS. If this Warrant shall
become lost, stolen, mutilated, or destroyed, the Company shall, on such
reasonable terms as to indemnity or otherwise as it may impose, including,
without limitation, the delivery by Holder to the Company (at the Holder's
expense) of an affidavit of lost instrument and an indemnity agreement, issue a
new Warrant of like denomination, tenor, and date as so lost, stolen, mutilated
or destroyed. The Holder agrees to pay the reasonable expenses incurred by the
Company in connection with such reissuance. Any such new Warrant shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
EX 2.i-33
<PAGE>
xii. APPLICABLE LAW. THIS WARRANT SHALL BE INTERPRETED AND THE RIGHTS OF
THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES
APPLICABLE THERETO AND THE INTERNAL LAWS OF THE STATE OF TEXAS (WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW PROVISIONS THEREOF).
xiii. SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and assigns of
the Holder hereof and, shall be enforceable by any such Holder.
xiv. HEADINGS. Headings of the paragraphs in this Warrant are for con-
venience and reference only and shall not, for any purpose, be deemed a part of
this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed and issued.
DATED as of December ____, 1996.
TOTAL WORLD TELECOMMUNICATIONS, INC.
By:______________________________________
Name:
Title:
EX 2.i-34
EXHIBIT 2.ii
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT, dated as of November 30, 1996, by and
between TOTAL WORLD TELECOMMUNICATIONS, INC., a Delaware corporation, with
headquarters located at 3200 North Military Trail, Suite 300, Boca Raton,
Florida 33431 (the "Company"), and GFL ADVANTAGE FUND LIMITED, a British Virgin
Islands corporation, with administrative offices located at c/o CITCO, Kaya
Flamboyan 9, Curacao, Netherlands Antilles, (the "Buyer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Buyer are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
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
WHEREAS, the Buyer wishes to purchase, upon the terms and subject to
the conditions of this Agreement, a convertible note of the Company which will
be convertible into shares of Common Stock, $.00001 par value (the "Common
Stock"), of the Company upon the terms and subject to the conditions of such
note;
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. The undersigned hereby agrees to purchase from the
Company a convertible promissory note of the Company in the principal amount set
forth on the signature page of this Agreement having the terms and conditions
and in the form attached hereto as Annex I (the "Note") at the price set forth
on the signature page of this Agreement. The purchase price for the Note shall
be payable in United States Dollars.
(b) Form of Payment. The Buyer shall deposit the purchase price for
the Note by delivering good funds in United States Dollars to the escrow agent
(the "Escrow Agent") identified in the Joint Escrow Instructions attached hereto
as Annex II (the "Joint Escrow Instructions"). Promptly following deposit by the
Buyer of the purchase price of the Note with the Escrow Agent, the Company shall
EX 2.ii-1
<PAGE>
deliver the Note, duly executed on behalf of the Company, to the Escrow Agent.
By signing this Agreement, the Buyer and the Company each 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 herein in full.
(c) Method of Payment. Deposit of the purchase price for the Note by
the Buyer with the Escrow Agent shall be made by wire transfer of funds to:
Citibank, N.A.
153 East 53rd Street
New York, New York 10043
ABA#021000089
For Further Credit to A/C#37179446
for credit to the account of Brian W. Pusch Attorney
Escrow Account
Reference: Advantage/TWTI
Not later than the date which is three New York Stock Exchange trading days
after the Company and the Buyer shall have executed and delivered, one to the
other, this Agreement, the Buyer shall deposit with the Escrow Agent the
aggregate purchase price for the Note.
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.
The Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
(a) Purchase for Investment. The Buyer is purchasing the Note for
its own account for investment only and not with a view towards the public sale
or distribution thereof;
(b) Accredited Investor. The Buyer is an "accredited investor" as
that term is defined in Rule 501 of the General Rules and Regulations under the
1933 Act by reason of Rule 501(a)(3);
(c) Reoffers and Resales. All subsequent offers and sales of the
Note and the shares of Common Stock issuable upon conversion of, or in lieu of
payment of interest on, the Note (the "Shares" and, together with the Note, the
"Securities") by the Buyer shall be made pursuant to registration of the Shares
under the 1933 Act or pursuant to an exemption from registration;
(d) Company Reliance. The Buyer understands that the Note is being
offered and sold, and the Shares are being offered, to it in reliance on the
EX 2.ii-2
<PAGE>
exemption from the registration requirements of the 1933 Act provided by
Regulation D and exemptions from state securities laws, including exemptions
available by reason of satisfying the requirements of Regulation D, and that the
Company is relying upon the truth and accuracy of, and the Buyer's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the
Note and to receive an offer of the Shares;
(e) Information Provided. The Buyer and its advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Note and the offer of the Shares which have been requested by the Buyer; the
Buyer and its advisors, if any, have been afforded the opportunity to ask
questions of the Company and have received complete and satisfactory answers to
any such inquiries. Without limiting the generality of the foregoing, the Buyer
has had the opportunity to obtain and to review the Company's (1) Annual Report
on Form 10-KSB for the fiscal year ended September 30, 1995; (2) Quarterly
Reports on Form 10-QSB for the fiscal quarters ended December 31, 1995, March
31, 1996 and June 30, 1996 (as amended by Amendment No. 1 thereto); (3) Current
Reports on Form 8-K, dated May 28, 1996 and June 11, 1996; and (4) Information
Statement, dated September 26, 1996, in each case as filed with the SEC (the
"SEC Reports"); and the Buyer understands that its investment in the Securities
involves a high degree of risk;
(f) Absence of Approvals. The Buyer understands that no United
States federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Securities; and
(g) Note Purchase Agreement. This Agreement has been duly and
validly authorized, executed and delivered on behalf of the Buyer and is a valid
and binding agreement of the 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, WARRANTIES, ETC.
The Company represents and warrants to, and covenants and agrees
with, the Buyer that:
(a) Organization and Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
EX 2.ii-3
<PAGE>
Delaware, and has all requisite corporate power and authority to (i) own, lease
and operate its properties and to carry on its business as now being conducted,
and (ii) to execute, deliver and perform its obligations under this Agreement,
the Registration Rights Agreement, the form of which is attached hereto as Annex
III (the "Registration Rights Agreement"), the Note and the other agreements to
be executed and delivered by the Company in connection herewith, and to
consummate the transactions contemplated hereby. The Company is duly qualified
to do business as a foreign corporation and is in good standing in all
jurisdictions wherein such qualification is necessary and where failure so to
qualify could have a material adverse effect on the business, properties,
operations, condition (financial or other), results of operations or prospects
of the Company.
(b) Capitalization. The authorized capital stock of the Company
currently consists of (a) 100,000,000 shares of Common Stock, $.00001 par value,
of which 6,732,027 shares were outstanding as of November 30, 1996, all of which
are fully paid and nonassessable, and on the Closing Date (as defined herein)
there will be no material increase from November 30, 1996 in the number of
shares of Common Stock outstanding; and (b) 10,000,000 shares of Preferred
Stock, $.00001 par value, of which 73,000 shares have been designated Series A
Convertible Preferred Stock, of which 73,000 shares were outstanding as of
November 30, 1996, 1,300,000 shares of Series K Convertible Preferred Stock, of
which 25,000 were outstanding as of November 30, 1996, 150,000 shares of Series
L Convertible Preferred Stock, of which 19,700 shares were outstanding as of
November 30, 1996, 231,000 shares of Series M Convertible Preferred Stock, of
which 178,500 shares were outstanding as of November 30, 1996, 35,000 shares
have been designated Series O Convertible Preferred Stock, of which 35,000
shares were outstanding as of November 30, 1996, 200,000 shares have been
designated Series T Convertible Preferred Stock, of which 65,000 shares were
outstanding as of November 30, 1996, 150,000 shares have been designated Series
U Convertible Preferred Stock, of which 56,200 shares were outstanding as of
November 30, 1996, 100,000 shares of Series V Convertible Preferred Stock, none
of which were outstanding as of November 30, 1996, 200,000 shares of Series W
Convertible Preferred Stock, of which 46,250 were outstanding as of November 30,
1996, 150,000 shares of Series X Convertible Preferred Stock, of which 11,250
shares were outstanding as of November 30, 1996, and 30,000 shares have been
designated Series Y Convertible Preferred Stock, of which 30,000 shares were
outstanding as of November 30, 1996. Set forth on Exhibit 1 attached hereto is a
complete and correct capitalization table of the Company setting forth the
capitalization of the Company as of November 30, 1996. Set forth on Exhibit 2
attached hereto is a correct and accurate schedule of Preferred Stock as of
EX 2.ii-4
<PAGE>
June 30, 1996. As of November 30, 1996, the Company had outstanding options,
warrants and other rights to purchase 2,315,000 shares of Common Stock. The
Company does not have outstanding any material amount of securities (or
obligations to issue any such securities) convertible into, exchangeable for or
otherwise entitling the holders thereof to acquire shares of Common Stock,
except as disclosed in the SEC Reports. The outstanding shares of Common Stock
have been duly authorized and validly issued and are fully paid and
nonassessable and all of such options, warrants and other rights have been duly
authorized by the Company. None of the holders of such outstanding shares of
Common Stock is subject to personal liability solely by reason of being such a
holder. None of the outstanding shares of Common Stock and options, warrants and
other rights to acquire Common Stock has been issued in violation of the
preemptive rights of any security holder of the Company. The offers and sales of
the outstanding shares of Common Stock and options, warrants and other rights to
acquire Common Stock were at all relevant times either registered under the 1933
Act and applicable state securities laws or exempt from such requirements.
Except as disclosed on Exhibit 3 attached hereto, no holder of any of the
Company's securities has any rights, "demand," "piggy-back" or otherwise, to
have such securities registered by reason of the intention to file, filing or
effectiveness of the Registration Statement (as defined in the Registration
Rights Agreement). The persons listed on Exhibit 3 attached hereto beneficially
own at least 80% of the shares of Common Stock subject to registration rights.
The persons listed on Exhibit 4 attached hereto beneficially own at least 30% of
the shares of Common Stock for which resale is restricted by reason of the 1933
Act and are subject to registration rights as indicated therein.
(c) Concerning the Shares. The Shares have been duly authorized and,
when issued upon conversion of the Note, 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 any of the Securities. The
Common Stock has been listed for trading on the NASDAQ SmallCap Market
("Nasdaq") and is currently listed for trading thereon and (1) the Company and
the Common Stock meet the criteria for continued listing and trading on the
Nasdaq; (2) the Company has not been notified since September 30, 1995 by the
Nasdaq of any failure or potential failure to meet the criteria for continued
listing and trading on the Nasdaq, other than a notification relating to a
potential failure to meet such criteria based on a trading price below $1.00 per
share prior to the Company's reverse stock split, and there is no pending
notification of any such failure and (3) no suspension of trading in the Common
Stock is in effect.
EX 2.ii-5
<PAGE>
(d) Note Purchase Agreement; Registration Rights Agreement and Note.
This Agreement, the Registration Rights Agreement and the Note have been duly
and validly authorized by the Company, this Agreement has been duly executed and
delivered by the Company and this Agreement is, and the Registration Rights
Agreement and the Note, when executed and delivered by the Company, will be,
valid and binding agreements of the Company enforceable in accordance with their
respective 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.
(e) Non-contravention. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company and the consummation by the
Company of the issuance of the Securities and the other transactions
contemplated by this Agreement, the Registration Rights Agreement and the Note
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, the certificate of
incorporation or by-laws of the Company, or 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, or any 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.
(f) Approvals. No authorization, approval or consent of, or filing
with, any court, governmental body, regulatory agency, self-regulatory
organization, or stock exchange or market or the stockholders of the Company is
required to be obtained or made by the Company for (x) the issuance and sale of
the Note as contemplated by this Agreement and (y) the issuance of the Shares
upon conversion of the Note, other than (1) listing of the Shares on Nasdaq and
(2) the requirements of any applicable blue sky laws.
(g) Information Provided. The information provided by or on behalf
of the Company to the Buyer, including, without limitation, the information
referred to in Section 2(e) of this Agreement, does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading.
(h) Absence of Certain Changes. Since September 30, 1995, there has
been no material adverse change and no material adverse development in the
business, properties, operations, condition (financial or other), results of
EX 2.ii-6
<PAGE>
operations or prospects of the Company or any of its subsidiaries, except as
disclosed in the SEC Reports.
(i) Absence of Certain Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body pending or, to the knowledge of the Company or any of its subsidiaries,
threatened against or affecting the Company or any of its subsidiaries, wherein
an unfavorable decision, ruling or finding would have a material adverse effect
on the properties, business, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a whole or
the transactions contemplated by this Agreement or any of the documents
contemplated hereby or which would adversely affect the validity or
enforceability of, or the authority or ability of the Company to perform its
obligations under, this Agreement or any of such other documents; and the
Company does not have pending before the SEC any request for confidential
treatment of information and to the best of the Company's knowledge no such
request will be made by the Company prior to the time the Registration Statement
relating to the Shares which is contemplated by the Registration Rights
Agreement is first ordered effective by the SEC.
(j) Absence of Event of Default or Repurchase Event. No event which,
if the Note were outstanding, would constitute an Event of Default, as defined
in the Note, or which, with the giving of notice or the passage of time or both,
would become an Event of Default (as so defined), has occurred and is continuing
or would constitute a Repurchase Event, as defined in the Note, or which, with
the giving of notice or the passage of time or both, would become a Repurchase
Event (as so defined) has occurred and is continuing.
(k) Properties. The Company and its subsidiaries have good title to
all property real and personal (tangible and intangible) and other assets owned
by it, free and clear of all security interests, charges, mortgages, liens or
other encumbrances, except such as are described in the SEC Reports or such as
do not materially interfere with the use of such property made, or proposed to
be made, by the Company or its subsidiaries. The leases, licenses or other
contracts or instruments under which the Company and its subsidiaries lease,
hold or are entitled to use any property, real or personal, are valid,
subsisting and enforceable with only such exceptions as do not materially
interfere with the use of such property made, or proposed to be made, by the
Company or its subsidiaries. Neither the Company nor any of its subsidiaries has
received notice of any material violation of any applicable law, ordinance,
regulation, order or requirement relating to its owned or leased properties.
EX 2.ii-7
<PAGE>
(l) Labor Relations. No material labor problem exists or, to the
knowledge of the Company, is imminent with respect to any of the employees of
the Company or any of its subsidiaries.
(m) SEC Filings. The Company has timely filed all required forms,
reports and other documents with the SEC since September 30, 1995. All of such
forms, reports and other documents complied, when filed, in all material
respects, with all applicable requirements of the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act").
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
(a) Transfer Restrictions. The Buyer acknowledges that (1) the Note
has not been and is not being registered under the provisions of the 1933 Act
and, except as provided in the Registration Rights Agreement, the Shares have
not been and are not being registered under the 1933 Act, and may not be
transferred unless (A) subsequently registered thereunder for resale or (B) the
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 without 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 (other than
pursuant to Section 4(d) hereof and pursuant to the Registration Rights
Agreement).
(b) Restrictive Legend. The Buyer acknowledges and agrees that the
Note, and, until such time as the Shares have been registered under the 1933 Act
as contemplated by the Registration Rights Agreement, the certificates for the
Shares, may bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the certificates for the
Shares):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The securities have been
EX 2.ii-8
<PAGE>
acquired for investment and may not be sold, transferred or assigned in
the absence of an effective registration statement for the securities
under the Securities Act of 1933, as amended, or an opinion of counsel
that registration is not required under said Act.
Once the Registration Statement required to be filed by the Company pursuant to
Section 2 of the Registration Rights Agreement has been declared effective,
thereafter (1) upon request of the Buyer the Company will substitute
certificates without restrictive legend for certificates for any Shares issued
prior to the date such Registration Statement is declared effective by the SEC
and remove any stop-transfer restriction relating thereto promptly, but in no
event later than three days after surrender of such certificates by the Buyer
and (2) the Company shall not place any restrictive legend on certificates for
Shares issued on conversion of the Note or impose any stop-transfer restriction
thereon.
(c) Registration Rights Agreement. The parties hereto agree to enter
into the Registration Rights Agreement, in the form attached hereto as Annex
III, on or before the Closing Date.
(d) Form D. The Company agrees to file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof to the
Buyer promptly after such filing.
(e) Nasdaq Listing; Reporting Status. On or before the Closing Date,
the Company shall file with Nasdaq an application or other document required by
Nasdaq for the listing of the Shares on Nasdaq and shall provide evidence of
such filing to the Buyer promptly after such filing. The Company shall use its
best efforts to obtain the listing of the Shares on Nasdaq. So long as the Buyer
beneficially owns any of the Securities, the Company shall file all reports
required to be filed with the SEC pursuant to Section 13 or 15(d) of the 1934
Act, and the Company shall not, prior to the date which is three years after the
Closing Date, terminate its status as an issuer required to file reports under
the 1934 Act even if the 1934 Act or the rules and regulations thereunder would
permit such termination.
(f) Use of Proceeds. The Company will use the proceeds from the sale
of the Note for working capital purposes and shall not use such proceeds
directly or indirectly for (1) any loan to or investment in any corporation,
partnership, entity or other person or (2) any payment to or transaction of any
kind with (a) any person who, at the time of such payment or transaction, is or
at any time within the preceding five years has been a director, officer,
stockholder or consultant of the Company (collectively, the "Restricted
EX 2.ii-9
<PAGE>
Persons") (b) any member of the Immediate Family of any Restricted Person, (c)
any Related Person of any such Restricted Person or (d) any Related Person of
any member of the Immediate Family of any such Restricted Person. As used
herein, "Immediate Family" shall include a person's parents, mother-in-law or
father-in-law, spouse, brother or sister, brother-in-law or sister-in-law,
son-in-law or daughter-in-law, children, and any other person who supports the
person, directly or indirectly, to a material extent; and "Related Person" shall
mean, when used with respect to any person, any corporation, partnership or
other entity of which such person is, or during the five years prior to the time
such determination is being made, has been, a director or officer or held a
similar position or in which such person owns, or during the five years prior to
the time such determination is being made, has owned, of record or beneficially
in excess of five percent equity interest.
(g) Blue Sky Laws. On or before the Closing Date, the Company shall
take such action as shall be necessary to qualify, or to obtain an exemption
for, the Securities for sale to the Buyer pursuant to this Agreement and on
conversion of the Note under such of the securities or "blue sky" laws of
jurisdictions in the United States as shall be applicable to the sale of the
Securities to the Buyer pursuant to this Agreement and on conversion of the
Note. The Company shall furnish copies of all filings, applications, orders and
grants or confirmations of exemptions relating to such securities or "blue sky"
laws on or before the Closing Date.
(h) Certain Future Financings.
(1) The Company shall not offer, sell, contract to sell or
issue (or engage any person to assist the Company in taking any such action) any
equity securities or securities convertible into, exchangeable for or otherwise
entitling the holder to acquire, any Common Stock (collectively, "Equity
Securities") at a price below the market price of the Common Stock during the
period from the date of this Agreement to the date on which the Registration
Statement (as defined in the Registration Rights Agreement) shall have been
effective with the SEC for 60 consecutive days without giving the Buyer the
first right to acquire the Equity Securities at substantially the same terms at
which the Equity Securities are to be offered to other investors; provided,
however, that nothing in this Section 4(h)(1) shall prohibit the Company from
issuing securities (x) pursuant to compensation plans for employees, directors,
officers, advisers or consultants of the Company and in accordance with the
terms of such plans as in effect as of the date of this Agreement or (y) upon
exercise of conversion, exchange, purchase or similar rights issued, granted or
given by the Company and outstanding as of the date of this Agreement.
EX 2.ii-10
<PAGE>
(2) The Company shall use its best efforts not to offer, sell,
contract to sell or issue (or engage any person to assist the Company in taking
any such action) any Equity Securities in any transaction exempt from
registration under the 1933 Act by reason of not involving the use of any means
or instruments of transportation or communication in interstate commerce or of
the mails for purposes of Section 5 of the 1933 Act, including, without
limitation, in reliance on Regulation S, during the period from the date of this
Agreement to the date on which the Registration Statement (as defined in the
Registration Rights Agreement) shall have been effective with the SEC for 60
consecutive days.
(i) Certain Expenses. Whether or not the closing occurs, the Company
shall pay or reimburse the Buyer for all expenses incurred by the Buyer in
connection with this Agreement and the transactions contemplated hereby,
including, without limitation, the legal fees and expense of counsel to the
Buyer. The obligations of the Company under the provisions of this Section 4(i)
shall be in addition to the obligation of the Company for expenses under the
Registration Rights Agreement.
(j) Waiver of Registration Rights. On or before the Closing Date,
the Company shall obtain (and furnish copies to the Buyer) the written agreement
in form and substance satisfactory to the Buyer of each person identified on
Exhibit 2 attached hereto to waive any right to have securities registered under
the 1933 Act by reason of the intention to file, filing or effectiveness of the
Registration Statement.
5. TRANSFER AGENT INSTRUCTIONS.
Prior to the Closing Date, the Company will irrevocably instruct the
transfer agent for the Common Stock to issue certificates for the Shares from
time to time upon conversion of the Note in such amounts as specified from time
to time in a Notice of Conversion of Convertible Note, in the form attached to
the Note (a "Notice of Conversion") given by the Buyer, bearing the restrictive
legend specified in Section 4(b) of this Agreement prior to registration of the
Shares under the 1933 Act, registered in such name as set forth in the
applicable Notice of Conversion and in such denominations to be specified by the
Buyer in connection with each conversion of the Note. The Company warrants that
no instruction other than (x) such instructions referred to in this Section 5,
(y) stop transfer instructions to give effect to Section 4(a) hereof prior to
registration of the Shares under the 1933 Act and (z) the instructions required
by Section 3(n) of the Registration Rights Agreement will be given by the
Company to such transfer agent and that the Shares shall otherwise be freely
EX 2.ii-11
<PAGE>
transferable on the books and records of the Company as and to the extent
provided in this Agreement and the Registration Rights Agreement. Nothing in
this Section shall affect in any way the Buyer's obligations to comply with all
applicable securities laws upon resale of the Securities. If the Buyer provides
the Company with an opinion of counsel meeting the requirements of clause (1)(B)
of Section 4(a) of this Agreement, the Company shall permit the transfer of the
Securities and, in the case of the Shares, promptly, but in no event later than
two days after receipt of such opinion, instruct the Company's transfer agent to
issue upon transfer one or more share certificates in such name and in such
denominations as specified by the Buyer. Nothing in this Section 5 shall limit
the obligations of the Company under Section 3(n) of the Registration Rights
Agreement.
6. NOTE DELIVERY INSTRUCTIONS.
The Note shall be delivered by the Company to the Joint Escrow Agent
pursuant to Section 1(b) hereof on a delivery against payment basis within one
New York Stock Exchange trading day following deposit by the Buyer with the
Escrow Agent of funds in the amount of the aggregate purchase price of the Note
pursuant to the Joint Escrow Instructions.
7. CLOSING DATE.
The date and time of the issuance of the Note (the "Closing Date")
shall be 12:00 noon, New York City time, on the date which is three New York
Stock Exchange trading days after the date on which the Buyer shall have
deposited the aggregate purchase price for the Note with the Escrow Agent under
the Joint Escrow Instructions in accordance with Section 1(c) hereof, or such
other mutually agreed to time. The closing shall occur on the Closing Date at
the offices of the Escrow Agent.
8. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE.
The Buyer understands that the Company's obligation to issue the
Note to the Buyer pursuant to this Agreement is conditioned upon:
(a) The receipt and acceptance by the Company of this Agreement as
evidenced by execution of this Agreement by the Company and the return of an
executed copy hereof to the Buyer and its legal counsel;
(b) Delivery by the Buyer to the Escrow Agent of good funds in an
amount equal to the aggregate purchase price for the Note in accordance with
Section 1(c) hereof; and
EX 2.ii-12
<PAGE>
(c) The accuracy on the Closing Date of the representations and
warranties of the Buyer contained in this Agreement as if made on the Closing
Date and the performance by the Buyer on or before the Closing Date of all
covenants and agreements of the Buyer required to be performed on or before the
Closing Date.
9. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to purchase the Note
is conditioned upon:
(a) Delivery by the Company to the Escrow Agent of the
Note in accordance with this Agreement;
(b) The accuracy on the Closing Date of the representations and
warranties of the Company contained in this Agreement as if made on the Closing
Date and the performance by the Company on or before the Closing Date of all
covenants and agreements of the Company required to be performed on or before
the Closing Date;
(c) On the Closing Date, the Buyer having received an opinion of
counsel for the Company, dated the Closing Date, in form, scope and substance
reasonably satisfactory to the Buyer, substantially in the form of Annex VI
attached hereto; and
(d) No event which, if the Note were outstanding, would constitute
an Event of Default, as defined in the Note, or which, with the giving of notice
or the passage of time or both, would become an Event of Default (as so
defined), has occurred and is continuing or would constitute a Repurchase Event,
as defined in the Note, or which, with the giving of notice or the passage of
time or both, would become a Repurchase Event (as so defined) has occurred and
is continuing.
10. MISCELLANEOUS.
(a) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida.
(b) This Agreement may be executed in counterparts and by the
parties hereto on separate counterparts, all of which together shall constitute
one and the same instrument. A facsimile transmission of this Agreement bearing
a signature on behalf of a party hereto shall be legal and binding on such
party.
EX 2.ii-13
<PAGE>
(c) The headings, captions and footers of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) 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.
(e) This Agreement may be amended only by an instrument in writing
signed by the party to be charged with enforcement.
(f) 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,
or any course of dealings between the parties, shall not operate as a waiver
thereof or an amendment hereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or
exercise of any other right or power.
(g) Any notices required or permitted to be given under the terms of
this Agreement shall be sent by mail or delivered personally (which shall
include telephone line facsimile transmission) or by courier and shall be
effective five days after being placed in the mail, if mailed, or upon receipt,
if delivered personally or by courier, in the case of the Company addressed to
the Company at its address shown in the introductory paragraph of this Agreement
(facsimile number 561-997-5846) or, in the case of the Buyer, at its address
shown on the signature page of this Agreement, with a copy to Genesee
Investments, 10500 N.E. 8th Street, Suite 1920, Bellevue, Washington 98004-4332
(facsimile number 206-462-4645) or such other address as a party shall have
provided by notice to the other party in accordance with this provision. The
Buyer hereby designates as its address for any notice required or permitted to
be given to the Buyer pursuant to the Note the address shown on the signature
page of this agreement, with a copy to: GFL Advantage Fund Limited, c/o Genesee
Investments, 10500 N.E. 8th Street, Suite 1920, Bellevue, Washington 98004-4332
(facsimile number 206-462-4645), until the Buyer shall designate another address
for such purpose.
(h) The Buyer shall have the right to assign it rights and
obligations under this Agreement with respect to the purchase of all or any
portion of the Note to another investment fund, provided such assignee, by
written instrument duly executed by such assignee, assumes all obligations of
the Buyer hereunder with respect to the purchase of the portion of the Note so
EX 2.ii-14
<PAGE>
assigned and makes the same representations and warranties with respect thereto
as the Buyer makes in this Agreement, whereupon the Buyer shall be relieved of
any further obligations, responsibilities and liabilities with respect to the
purchase of all or the portion of the Note the obligation for the purchase of
which has been so assigned. In the case of any such assignment, the Company
shall agree in writing with such assignee to make available to such assignee the
benefits of the Registration Rights Agreement with respect to the Shares
issuable on conversion of the portion of the Note with respect to which the
purchase under this Agreement has been so assigned.
(i) The respective representations, warranties, covenants and
agreements of the Buyer and the Company contained in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement shall survive the
delivery of payment for the Note and shall remain in full force and effect
regardless of any investigation made by or on behalf of them or any person
controlling or advising any of them.
(j) This Agreement and its Annexes set forth the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, whether written or oral,
with respect thereto.
(k) The Buyer shall have the right to terminate this Agreement by
giving notice at any time at or prior to the Closing Date if:
(1) the Company shall have failed, refused, or been unable at
or prior to the date of such termination of this Agreement to perform any of its
obligations hereunder;
(2) any other condition of the Buyer's obligations hereunder
is not fulfilled; or
(3) the closing shall not have occurred on a Closing Date on
or before December 5, 1996, other than by reason of a breach of this Agreement
by the Buyer.
Any such termination shall be effective upon the giving of notice thereof by the
Buyer. Upon such termination, the Buyer shall have no further obligation to the
Company hereunder and the Company shall remain liable for any breach of this
Agreement or the other documents contemplated hereby which occurred on or prior
to the date of such termination.
EX 2.ii-15
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto by their respective officers thereunto duly authorized as of the
date first set forth above.
PRINCIPAL AMOUNT OF NOTE: $8,000,000.00
PURCHASE PRICE: $8,000,000.00
ADDRESS: c/o CITCO
Kaya Flamboyan 9
Curacao, Netherlands Antilles
FACSIMILE NO.: 011-599-9322008
GFL ADVANTAGE FUND LIMITED
By:_________________________________________
Title:______________________________________
TOTAL WORLD TELECOMMUNICATIONS, INC.
By:_________________________________________
Title:______________________________________
EX 2.ii-16
<PAGE>
Exhibit 2.ii.A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS
NOT REQUIRED.
TOTAL WORLD TELECOMMUNICATIONS, INC.
CONVERTIBLE NOTE
----------------
New York, New York $8,000,000.00
December 9, 1996
FOR VALUE RECEIVED, TOTAL WORLD TELECOMMUNICATIONS, INC., a Delaware
corporation (hereinafter called the "Company"), hereby promises to pay to GFL
Advantage Fund Limited, or registered assigns (the "Holder") or order, the sum
of Eight Million Dollars ($8,000,000.00), on December 9, 1998 (the "Maturity
Date"), and to pay interest on the unpaid principal balance hereof at the rate
of seven percent (7%) per annum from the date hereof, until the same becomes due
and payable, whether at maturity or upon acceleration or by prepayment or
otherwise. Any amount of principal of or interest on this Note which is not paid
when due shall bear interest at the rate of fourteen percent (14%) per annum
from the due date thereof until the same is paid ("Default Interest"). Interest
shall be payable on the 1st day of each February, May, August and November,
commencing on February 1, 1997, and at maturity (the "Interest Payment Dates").
Interest on this Note shall be computed on the basis of a 360-day year of 12
30-day months and actual days elapsed.
All payments of principal of and premium, if any, and interest on
this Note shall be made in lawful money of the United States of America, or, at
the option of the Company and subject to the provisions of this Note, (1)
principal of this Note payable on the Maturity Date and (2) interest payable on
the Interest Payment Dates, in either such case may be paid in whole or in part
in fully paid and nonassessable shares of Common Stock, $.00001 par value, as
such stock exist on the date of issuance of this Note, or any shares of capital
stock of the Company into which such stock shall hereafter be changed or
reclassified (the "Common Stock"). All cash payments shall be made by wire
transfer of immediately available funds to such account as the Holder may from
time to time designate by written notice in accordance with the provisions of
this Note. Whenever any amount expressed to be due by the terms of this Note is
due on any day which is not a business day, the same
EX 2.ii-17
<PAGE>
shall instead be due on the next succeeding day which is a business day and, in
the case of any Interest Payment Date which is not the date on which this Note
is paid in full, the extension of the due date thereof shall not be taken into
account for purposes of determining the amount of interest due on such date. As
used in this Note, the term "business day" shall mean any day other than a
Saturday, Sunday or a day on which commercial banks in The City of New York are
authorized or required by law or executive order to remain closed.
The obligations of the Company under this Note shall rank in right
of payment on a parity with all other unsubordinated obligations of the Company
for indebtedness for borrowed money or the purchase price of property. This Note
is issued pursuant to a Note Purchase Agreement, dated as of November 30, 1996,
by and between the Company and the original Holder of this Note, as amended from
time to time (the "Note Purchase Agreement"), and the Holder of this Note and
this Note are subject to the terms of the Note Purchase Agreement. The Holder of
this Note may be entitled to the benefits of the Registration Rights Agreement,
dated as of November 30, 1996, between the Company and the original Holder (the
"Registration Rights Agreement").
The following terms shall apply to this Note:
ARTICLE I
NO PREPAYMENT; INTEREST OR CERTAIN PRINCIPAL IN COMMON STOCK
1.1 Prepayment. This Note may not be prepaid or redeemed at the option of
the Company prior to maturity.
1.2 Issuance of Common Stock in Lieu of Cash Interest.
(a) If the Company exercises its option (x) to pay the principal
amount of this Note outstanding on the Maturity Date (the "Final Principal
Payment") or (y) to make a payment of interest on this Note, in either such case
wholly or partly in shares of Common Stock (such payment referred to in the
preceding clause (x) or (y) being herein sometimes called the "Stock Payment
Option"), then in any such case the issuance of shares of Common Stock upon such
exercise of the Stock Payment Option shall have been authorized by the Board of
Directors of the Company.
(b) The Company shall not be permitted to exercise the Stock Payment
Option with respect to the Final Principal Payment or any payment of interest on
this Note if:
EX 2.ii-18
<PAGE>
(i) the number of shares of Common Stock authorized, unissued and
unreserved for all purposes, or held in the Company's treasury, is
insufficient to pay the Final Principal Payment or the portion of such
interest to be paid in Common Stock, as the case may be;
(ii) the issuance or delivery of shares of Common Stock pursuant to
the Stock Payment Option or the public resale of such shares by the Holder
would require registration with or approval of any governmental authority
under any law or regulation, and such registration or approval has not
been effected or obtained; provided, however, that with respect to
compliance with the securities or blue sky laws of the states of the
United States, the requirements of this clause (ii) shall be deemed
satisfied if at the applicable time the Company is in compliance with
Section 3 of the Note Purchase Agreement;
(iii) the shares of Common Stock to be issued upon exercise of the
Stock Payment Option have not been authorized for listing, upon official
notice of issuance, on the principal securities exchange on which the
Common Stock is then listed and traded;
(iv) the Computed Price is less than the par value of the Common
Stock;
(v) an Event of Default (as defined herein) or a Repurchase Event (as
defined herein) has occurred and is continuing;
(vi) the Common Stock is not (i) listed or admitted for trading on a
national securities exchange, (ii) quoted on the Nasdaq National Market or
(iii) quoted on the Nasdaq SmallCap Market; or
(vii) the issuance of shares of Common Stock in payment of the Final
Principal Payment or interest on this Note, as the case may be, would
result in any Restricted Person (as defined in Section 2.1) beneficially
owning more than 4.9% of the Common Stock, determined as provided in the
proviso to the first sentence of Section 2.1.
(c) If the Stock Payment Option is elected, the Company shall issue
and dispatch or cause to be dispatched to the Holder one or more certificates
for the aggregate number of whole shares of Common Stock determined by dividing
the per share Computed Price of the Common Stock into the total amount of lawful
money of the United States of America which the Holder would receive if the
EX 2.ii-19
<PAGE>
aggregate amount of the Final Principal Payment or interest on this Note which
is being paid in shares of Common Stock were being paid in such lawful money;
PROVIDED, HOWEVER, that if certificates representing shares of Common Stock are
delivered to the Holder subsequent to the third trading day after the applicable
Interest Payment Date the Applicable Percentage used to calculate the Computed
Price applicable to such Interest Payment Date shall be reduced by one
percentage point for each day after the third trading day following such
Interest Payment Date to the date of delivery of such shares of Common Stock to
the Holder; and PROVIDED FURTHER, HOWEVER, that if certificates representing
shares of Common Stock in respect of the Final Principal Payment are not
delivered to the Holder on or before the third trading day after the Maturity
Date, the Company shall no longer be entitled to utilize the Stock Payment
Option in respect of the Final Principal Payment, which shall thereafter be
payable in cash only. No fractional shares will be issued in payment of the
Final Principal Payment or interest on this Note. In lieu thereof, the Company
may issue a number of shares of Common Stock which reflects a rounding up to the
next whole number or may pay lawful money of the United States of America. The
shares of Common Stock issued or to be issued by the Company in payment of the
Final Principal Payment or interest on this Note are sometimes referred to
herein as the "Payment Shares."
(d) If the Company exercises the Stock Payment Option with respect
to the Final Principal Payment or a payment of interest on this Note, the
Company shall deliver to the Holder, on or prior to the date on which Payment
Shares for such payment of the Final Principal Payment or interest on this Note,
as the case may be, are to be received by the Holder, an Officer's Certificate
setting forth (i) the total amount of the Final Principal Payment or interest
payment, as the case may be, to which the Holder is entitled, (ii) the portion
of the Final Principal Payment or the interest payment, as the case may be,
being made in Payment Shares, (iii) the number of Payment Shares allocable to
such payment, as calculated pursuant to this Section 1.2, (iv) any rounding
adjustment to such number or any payment necessary to be made pursuant to
Section 1.2(c), (v) a brief statement of the facts requiring such adjustment,
(vi) the number of Payment Shares issuable with respect to each $100 of
principal of or interest on this Note after such adjustment and (vii) a brief
statement that none of the conditions set forth in Section 1.2(b) has occurred
and is existing. Such Officer's Certificate shall be accompanied by the
certificates, each duly issued in the name of the Holder, representing the
Payment Shares. Such Officer's Certificate shall be conclusive evidence of the
correctness of the calculation of the number of Payment Shares allocable to the
payments to which such Officer's Certificate relates and of any adjustments to
EX 2.ii-20
<PAGE>
such number made pursuant to this Section 1.2 in the absence of manifest error.
In addition, on or before the pertinent payment date, the Company shall cause
the transfer agent for the Common Stock to prepare and issue the certificates
representing the Payment Shares in the name of the Holder before being so
delivered by the Company.
(e) The Payment Shares, when issued pursuant to and in compliance
with this Section 1.2, shall be, and for all purposes shall be deemed to be,
validly issued, fully paid and nonassessable shares of Common Stock; the
issuance and delivery thereof is in all respects hereby authorized; and the
issuance thereof, together with lawful money of the United States of America, if
any, paid in lieu of fractional shares of such Common Stock, will be, and for
all purposes shall be deemed to be, in full discharge and satisfaction of the
Company's obligation to pay the principal of or interest on this Note to which
such Payment Shares relate.
(f) As used in this Note, the following terms shall have the
meanings provided herein:
(1) "Applicable Percentage" shall have the meaning provided
in Section 2.2.
(2) "Closing Price" on any date means the closing bid price
for one share of the Common Stock on such date, on the first applicable among
the following: (a) the national securities exchange on which the shares of
Common Stock are listed which constitutes the principal securities market for
the Common Stock, (b) the Nasdaq National Market if it constitutes the principal
securities market for the Common Stock or (c) the Nasdaq SmallCap Market if it
constitutes the principal securities market for the Common Stock, in any such
case as reported by such exchange or market; provided, however, that if during
any Measurement Period:
(i) The Company shall declare or pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of
Common Stock or fix any record date for any such action, then the Trading
Price of the Common Stock for each day in such Measurement Period prior to
the earlier of (1) the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution and (2) the date
on which ex-dividend trading in the Common Stock with respect to such
dividend or distribution begins shall be reduced by multiplying the
Closing Price (determined without regard to this proviso) for each such
day in such Measurement Period by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of
business on the earlier of (1) the record date fixed for such
determination and (2) the date on which ex-dividend trading in the Common
EX 2.ii-21
<PAGE>
Stock with respect to such dividend or distribution begins and the
denominator shall be the sum of such number of shares and the total number
of shares constituting such dividend or other distribution;
(ii) The Company shall issue rights or warrants to all holders
of its outstanding shares of Common Stock, or fix a record date for such
issuance, which rights or warrants entitle such holders (for a period
expiring within forty-five (45) days after the date fixed for the
determination of stockholders entitled to receive such rights or warrants)
to subscribe for or purchase shares of Common Stock at a price per share
less than the Closing Price (determined without regard to this proviso)
for any day in such Measurement Period which is prior to the end of such
45-day period, then the Closing Price for such day shall be reduced so
that the same shall equal the price determined by multiplying the Closing
Price (determined without regard to this proviso) by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at
the close of business on the record date fixed for the determination of
stockholders entitled to receive such rights or warrants plus the number
of shares which the aggregate offering price of the total number of shares
so offered would purchase at such Closing Price, and of which the
denominator shall be the number of shares of Common Stock outstanding on
the close of business on such record date plus the total number of
additional shares of Common Stock so offered for subscription or purchase.
In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than the Closing
Price (determined without regard to this proviso), and in determining the
aggregate offering price of such shares of Common Stock, there shall be
taken into account any consideration received for such rights or warrants,
the value of such consideration, if other than cash, to be determined in
good faith by a resolution of the Board of Directors of the Company;
(iii) The outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock or a record date for any
such subdivision shall be fixed, then the Closing Price of the Common
Stock for each day in such Measurement Period prior to the earlier of (1)
the day upon which such subdivision becomes effective and (2) the date on
which ex-dividend trading in the Common Stock with respect to such
subdivision begins shall be proportionately reduced, and conversely, in
case the outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Closing Price for each day
EX 2.ii-22
<PAGE>
in such Measurement Period prior to the day upon which such combination
becomes effective shall be proportionately increased;
(iv) The Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock shares of any class of capital stock of
the Company (other than any dividends or distributions to which clause (i)
of this proviso applies) or evidences of its indebtedness, cash or other
assets (including securities, but excluding any rights or warrants
referred to in clause (ii) of this proviso and dividends and distributions
paid exclusively in cash and excluding any capital stock, evidences of
indebtedness, cash or assets distributed upon a merger or consolidation)
(the foregoing hereinafter in this clause (iv) of this proviso called the
"Securities"), or fix a record date for any such distribution, then, in
each such case, the Closing Price for any day in such Measurement Period
prior to the earlier of (1) the record date for such distribution and (2)
the date on which ex-dividend trading in the Common Stock with respect to
such distribution begins shall be reduced so that the same shall be equal
to the price determined by multiplying the Closing Price (determined
without regard to this proviso) by a fraction of which the numerator shall
be the Closing Price (determined without regard to this proviso) on such
date less the fair market value (as determined in good faith by resolution
of the Board of Directors of the Company) on such date of the portion of
the Securities so distributed or to be distributed applicable to one share
of Common Stock and the denominator shall be the Closing Price (determined
without regard to this proviso); provided, however, that in the event the
then fair market value (as so determined) of the portion of the Securities
so distributed applicable to one share of Common Stock is equal to or
greater than the Closing Price (determined without regard to this clause
(iv) of this proviso) on any such day, in lieu of the foregoing
adjustment, adequate provision shall be made so that the Holder shall have
the right to receive in payment of interest on this Note or upon
conversion of this Note (or any portion thereof), as the case may be, the
amount of Securities the Holder would have received had the number of
shares of Common Stock to be issued in payment of such interest on this
Note, or had the Holder converted this Note (or portion thereof), in
either such case immediately prior to the record date for such
distribution. If the Board of Directors of the Company determines the fair
market value of any distribution for purposes of this clause (iv) by
reference to the actual or when issued trading market for any securities
comprising all or part of such distribution, it must in doing so consider
EX 2.ii-23
<PAGE>
the prices in such market on the same day for which an adjustment in the
Closing Price is being determined.
For purposes of this clause (iv) and clauses (i) and
(ii) of this proviso, any dividend or distribution to which this clause
(iv) is applicable that also includes shares of Common Stock, or rights or
warrants to subscribe for or purchase shares of Common Stock to which
clause (ii) of this proviso applies (or both), shall be deemed instead to
be (1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants other than such shares
of Common Stock or rights or warrants to which clause (ii) of this proviso
applies (and any Closing Price reduction required by this clause (iv) with
respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock
or such rights or warrants (and any further Closing Price reduction
required by clauses (i) and (ii) of this proviso with respect to such
dividend or distribution shall then be made), except that any shares of
Common Stock included in such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for such
determination" within the meaning of clause (i) of this proviso;
(v) The Company or any subsidiary of the Company shall (x) by
dividend or otherwise, distribute to all holders of its Common Stock cash
in (or fix any record date for any such distribution), or (y) repurchase
or reacquire shares of its Common Stock for, in either case, an aggregate
amount that, combined with (1) the aggregate amount of any other such
distributions to all holders of its Common Stock made exclusively in cash
within the twelve (12) months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to this
clause (v) has been made, (2) the aggregate amount of any cash plus the
fair market value (as determined in good faith by a resolution of the
Board of Directors of the Company) of consideration paid in respect of any
repurchase or other reacquisition by the Company or any subsidiary of the
Company of any shares of Common Stock made within the twelve (12) months
preceding the date of payment of such distribution or making of such
repurchase or reacquisition, as the case may be, and in respect of which
no adjustment pursuant to this clause (v) has been made, and (3) the
aggregate of any cash plus the fair market value (as determined in good
faith by a resolution of the Board of Directors of the Company) of
consideration payable in respect of any tender offer by the Company or any
of its subsidiaries for all or any portion of the Common Stock concluded
EX 2.ii-24
<PAGE>
within the twelve (12) months preceding the date of payment of such
distribution or completion of such repurchase or reacquisition, as the
case may be, and in respect of which no adjustment pursuant to clause (vi)
of this proviso has been made, exceeds 10% of the product of the Closing
Price (determined without regard to this proviso) on any day in such
Measurement Period prior to the earlier of (1) the record date with
respect to such distribution and (2) the date on which ex-dividend trading
in the Common Stock with respect to such distribution begins or the date
of such repurchase or reacquisition, as the case may be, times the number
of shares of Common Stock outstanding on such date, then, and in each such
case, the Closing Price for such day shall be reduced so that the same
shall equal the price determined by multiplying the Closing Price
(determined without regard to this proviso) for such day by a fraction (i)
the numerator of which shall be equal to the Closing Price (determined
without regard to this proviso) for such day less an amount equal to the
quotient of (x) the excess of such combined amount over such 10% and (y)
the number of shares of Common Stock outstanding on such day and (ii) the
denominator of which shall be equal to the Closing Price (determined
without regard to this proviso) on such day; provided, however, that in
the event the portion of the cash so distributed or paid for the
repurchase or reacquisition of shares (determined per share based on the
number of shares of Common Stock outstanding) applicable to one share of
Common Stock is equal to or greater than the Closing Price (determined
without regard to this clause (v) of this proviso) of the Common Stock on
any such day, in lieu of the foregoing adjustment, adequate provision
shall be made so that the Holder shall have the right to receive in
payment of interest on this Note or upon conversion of this Note (or any
portion thereof), as the case may be, the amount of cash the Holder would
have received had the number of shares of Common Stock to be issued in
payment of such interest on this Note, or had the Holder converted this
Note (or portion hereof), in either such case, immediately prior to the
record date for such distribution or the payment date of such repurchase,
as applicable; or
(vi) A tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock shall expire and
such tender offer (as amended upon the expiration thereof) shall require
the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value
(as determined in good faith by resolution of the Board of Directors of
EX 2.ii-25
<PAGE>
the Company) that combined together with (1) the aggregate of the cash
plus the fair market value (as determined in good faith by a resolution of
the Board of Directors of the Company), as of the expiration of such
tender offer, of consideration payable in respect of any other tender
offers, by the Company or any of its subsidiaries for all or any portion
of the Common Stock expiring within the twelve (12) months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to this clause (vi) has been made, (2) the aggregate amount of
any cash plus the fair market value (as determined in good faith by a
resolution of the Board of Directors of the Company) of consideration paid
in respect of any repurchase or other reacquisition by the Company or any
subsidiary of the Company of any shares of Common Stock made within the
twelve (12) months preceding the expiration of such tender offer and in
respect of which no adjustment pursuant to this clause (vi) has been made,
and (3) the aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in cash within twelve (12) months
preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to clause (v) of this proviso has been made, exceeds
10% of the product of the Closing Price (determined without regard to this
proviso) on any day in such period times the number of shares of Common
Stock outstanding on such day, then, and in each such case, the Closing
Price for such day shall be reduced so that the same shall equal the price
determined by multiplying the Closing Price (determined without regard to
this proviso) for such day by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding on such day multiplied by
the Closing Price (determined without regard to this proviso) for such day
and the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender offer) of all shares validly tendered and not
withdrawn as of the last time tenders could have been made pursuant to
such tender offer (the "Expiration Time") (the shares deemed so accepted,
up to any such maximum, being referred to as the "Purchased Shares") and
(y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares) on such day and the Closing Price (determined
without regard to this proviso) of the Common Stock on the trading day
next succeeding the Expiration Time. If the application of this clause
(vi) to any tender offer would result in an increase in the Closing Price
(determined without regard to this proviso) for any day, no adjustment
shall be made for such tender offer under this clause (vi) for such day.
EX 2.ii-26
<PAGE>
(3) "Computed Price" means, as of the Maturity Date or an
Interest Payment Date, the lower of (A) the product obtained by multiplying (i)
the Applicable Percentage for the Maturity Date or the applicable Interest
Payment Date, as the case may be, times (ii) the arithmetic average of the
Closing Price of the Common Stock for each day in the Measurement Period ending
on the last trading day prior to the Maturity Date or the applicable Interest
Payment Date, as the case may be, and (B) $8.1000 (subject to equitable
adjustment from time to time for stock splits, stock dividends, combinations,
capital reorganizations and similar events relating to the Common Stock
occurring on or after the Issuance Date (as defined in Section 2.2)).
(4) "Measurement Period" means, with respect to any date, the
period of five (5) consecutive trading days ending one trading day prior to such
date.
(5) "Officer" means the Chairman or Vice Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
any Vice President, the Controller or the Chief Financial Officer of the
Company.
(6) "Officer's Certificate" means a certificate signed by an
Officer.
ARTICLE II
CONVERSION
2.1 Conversion Right. The Holder shall have the right from and after the
earlier of (a) the SEC Effective Date; and (b) the date which is 90 days after
the date of original issuance of this Note and then in either such case at any
time on or prior to the date this Note is paid in full, to convert at any time
all or from time to time any part of the outstanding and unpaid principal amount
of this Note of at least $50,000, or such lesser amount as shall remain unpaid
at the time of the conversion, and accrued and unpaid interest on the principal
amount to be converted and on any such interest, into fully paid and
nonassessable shares of Common Stock at the conversion price determined as
provided herein (the "Conversion Price"); provided, however, that in no event
shall the Holder be entitled at any time to convert any portion of the principal
amount of this Note (and accrued and unpaid interest thereon and on any such
interest) in excess of that portion of the principal amount of this Note (and
accrued and unpaid interest thereon and on any such interest) upon conversion of
which the sum of (1) the number of shares of Common Stock beneficially owned by
the Holder and any person whose beneficial ownership of shares of Common Stock
EX 2.ii-27
<PAGE>
would be aggregated with the Holder's beneficial ownership of shares of Common
Stock for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and Regulation 13D-G thereunder (each a "Restricted
Person" and collectively, the "Restricted Persons") (other than shares of Common
Stock deemed beneficially owned through the ownership of the unconverted portion
of the principal amount of this Note and accrued and unpaid interest thereon and
on any such interest) and (2) the number of shares of Common Stock issuable upon
conversion of the portion of the principal amount of this Note and accrued and
unpaid interest thereon and on any such interest with respect to which the
determination in this proviso is being made, would result in beneficial
ownership by any Restricted Person of more than 4.9% of the outstanding shares
of Common Stock. For purposes of the proviso to the immediately preceding
sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the 1934 Act, and Regulation 13D-G thereunder, except as otherwise
provided in clause (1) of the proviso to the immediately preceding sentence. The
number of shares of Common Stock to be issued upon each conversion of this Note
shall be determined by dividing the sum of (1) that portion of the principal
amount of this Note to be converted plus (2) accrued and unpaid interest on such
principal amount to the date the Conversion Notice for such conversion is given
to the Company plus (3) Default Interest, if any, on the amount referred to in
the immediately preceding clause (2) at the rate provided in this Note to the
date such Conversion Notice is given to the Company, by the Conversion Price in
effect on the date the Conversion Notice for such conversion is given to the
Company.
2.2 Conversion Price. The Conversion Price shall be the lower of (1) the
product obtained by multiplying (a) the Applicable Percentage for the date the
applicable Conversion Notice is given to the Company TIMES (b) the arithmetic
average of the Closing Price of the Common Stock for each day in the Measurement
Period ending one trading day prior to the date the applicable Conversion Notice
is given to the Company and (2) $8.1000 (subject to equitable adjustment from
time to time for stock splits, stock dividends, combinations, capital
reorganizations and similar events relating to the Common Stock occurring on or
after the Issuance Date).
As used in this Article II, the following terms shall have the
following meanings:
"Applicable Percentage" means 75 percent, except that, if (w) the
Company fails to file the Registration Statement in form and substance meeting
the requirements of the Registration Rights Agreement with the SEC within the
EX 2.ii-28
<PAGE>
period specified in Section 2(a) of the Registration Rights Agreement, (x) the
Registration Statement is not ordered effective by the SEC within 90 days after
the Issuance Date, (y) the Registration Statement shall cease to be available
for use by any holder of this Note which is named therein as a selling
stockholder for any reason (including, without limitation, by reason of an SEC
stop order, a material misstatement or omission in the Registration Statement or
the information contained in the Registration Statement having become outdated))
or (z) the Holder having become unable to convert this Note in accordance with
Section 2.1 (other than by reason of the 4.9% limitation set forth in Section
2.1) then the percentage stated above in this paragraph shall be reduced by
three percentage points on each Computation Date (pro rated in the case of any
Computation Date which is less than 30 days after the 90th day following the
Issuance Date or which is less than 30 days after a Computation Date) unless, in
lieu of such reduction in respect of any particular Computation Date, the
Company shall have made a cash payment to the Holder on a timely basis in the
amount specified in Section 2(c) of the Registration Rights Agreement.
"Computation Date" means (1) the date which is 30 days after the
Filing Deadline if (A) the Registration Statement has not been first filed with
the SEC on or before the Filing Deadline and (B) such date is on or prior to the
90th day after the Issuance Date, (2) the date on which the Registration
Statement is first filed with the SEC if (A) the Registration Statement has not
been first filed with the SEC on or before the Filing Deadline and (B) such date
is prior to the 90th day after the Issuance Date and is prior to the 30th day
after the Filing Deadline, (3) the date which is 120 days after the Issuance
Date, unless the Registration Statement theretofore has been declared effective
by the SEC, (4) each date which is 30 days after a Computation Date, if the
Registration Statement has not been declared effective by the SEC prior to such
30th day, (5) if the Registration Statement has not been declared effective by
the SEC within 90 days after the Issuance Date, the date on which the
Registration Statement is declared effective by the SEC, (6) the date which is
30 days after the date on which the Registration Statement ceases to be
available for use by any holder of this Note which is named therein as a selling
stockholder, if, at any time during which the Registration Statement is required
by the Registration Rights Agreements to remain available for such use, the
Registration Statement ceases to be so available for any reason (including,
without limitation, by reason of an SEC stop order, a material misstatement or
omission therein or the information contained in the Registration Statement
having become outdated) and shall remain so unavailable on such 30th day, (7)
the date on which the Registration Statement becomes available for use by a
holder of this Note, if, at any time during which the Registration Statement is
EX 2.ii-29
<PAGE>
required by the Registration Rights Agreements to remain available for such use,
the Registration Statement shall have become unavailable for such use, (8) the
date which is 30 days after the date on which the Holder shall have become
unable to convert this Note in accordance with Section 2.1 for any reason (other
than by reason of the 4.9% limitation set forth in Section 2.1), if the Holder
shall remain unable so to convert this Note on such 30th day, and (9) the date
on which the Holder becomes able to convert this Note, if the Holder shall have
become unable to convert this Note as described in the preceding clause (8) of
this paragraph.
"Conversion Notice" means a Notice of Conversion substantially in
the form attached hereto as Exhibit A, properly completed and duly executed by
the Holder or the Holder's attorney-in-fact.
"Filing Deadline" means January 14, 1997.
"Issuance Date" means the date of original issuance of this Note
pursuant to the Note Purchase Agreement.
"Registration Statement" means the Registration Statement filed by
the Company with the SEC pursuant to Section 2 of the Registration Rights
Agreement.
"SEC" means the United States Securities and Exchange Commission.
"SEC Effective Date" means the date on which the Registration
Statement is first declared effective by the SEC.
2.3 Authorized Shares. The Company covenants that, during the period the
conversion rights exist, the Company will at all times reserve from its
authorized and unissued Common Stock a sufficient number of shares of Common
Stock to permit conversion in full of this Note at the Conversion Price from
time to time in effect. The Company represents and warrants that upon issuance,
such shares will be duly and validly issued, fully paid and non-assessable. The
Company agrees that its issuance of this Note shall constitute full authority to
its officers and agents who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock upon the conversion of this Note.
2.4 Method of Conversion.
(a) The right of the Holder to convert this Note shall be exercised
by delivering to the Company a Conversion Notice stating the principal amount of
EX 2.ii-30
<PAGE>
this Note which, together with interest as provided in this Note, is being
converted. The Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of
Common Stock or other securities or property on conversion of this Note in a
name other than that of the Holder, and the Company shall not be required to
issue or deliver any such shares or other securities or property unless and
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of any such tax or shall have established to the
satisfaction of the Company that such tax has been paid. The Holder shall be
responsible for the amount of any withholding tax payable in connection with
such conversion.
(b) If the Holder elects to convert this Note in accordance with
Section 2.1, the Holder shall not be required to physically surrender this Note
to the Company unless the entire unpaid principal amount of this Note is so
converted. The Holder and the Company shall maintain records showing the
principal amount so converted and the dates of such conversions or shall use
such other method, reasonably satisfactory to the Holder and the Company, so as
not to require physical surrender of this Note upon each such conversion. In the
event of any dispute or discrepancy, such records of the Company shall be
controlling and determinative in the absence of manifest error. Notwithstanding
the foregoing, if any portion of this Note is converted as aforesaid the Holder
may not transfer this Note unless the Holder first physically surrenders this
Note to the Company, whereupon the Company will forthwith issue and deliver upon
the order of the Holder a new note of like tenor, registered as the Holder (upon
payment by the Holder of any applicable transfer taxes) may request,
representing in the aggregate the remaining unpaid principal amount of this
Note. The Holder and any assignee, by acceptance of this Note, acknowledges and
agrees that, by reason of the provisions of this paragraph, following conversion
of a portion of this Note, the unpaid and unconverted principal amount of this
Note represented by this Note may be less than the amount stated on the face
hereof.
(c) In case of any consolidation or merger of the Company with any
other corporation (other than a wholly-owned subsidiary of the Company) in which
the Company is not the surviving corporation, or in case of any sale or transfer
of all or substantially all of the assets of the Company, or in the case of any
share exchange pursuant to which all of the outstanding shares of Common Stock
are converted into other securities or property, the Company shall make
appropriate provision or cause appropriate provision to be made so that the
Holder shall have the right thereafter to convert this Note into the kind of
shares of stock and other securities and property receivable upon such
EX 2.ii-31
<PAGE>
consolidation, merger, sale, transfer or share exchange by the persons who were
holders of Common Stock immediately prior to the effective date of such
consolidation, merger, sale, transfer or share exchange and on a basis which
preserves the economic benefits of the conversion rights of the Holder on a
basis as nearly as practical as such rights existed prior to such consolidation,
merger, sale, transfer or share exchange. If, in connection with any such
consolidation, merger, sale, transfer or share exchange each holder of shares of
Common Stock is entitled to elect to receive either securities, cash or other
assets upon completion of such transaction, the Company shall provide or cause
to be provided to the Holder the right to elect the securities, cash or other
assets into which this Note shall be convertible after completion of any such
transaction on the same terms and subject to the same conditions applicable to
holders of the Common Stock (including, without limitation, notice of the right
to elect, limitations on the period in which such election shall be made, and
the effect of failing to exercise the election). The Company shall not effect
any such transaction unless the provisions of this paragraph have been complied
with. The above provisions shall similarly apply to successive consolidations,
mergers, sales, transfers or share exchanges.
Whenever the Company shall propose to take any of the actions
specified in this Section 2.4(c), the Company shall cause a notice to be mailed
at least 20 days prior to the date on which the books of the Company will close
or on which a record will be taken for such action, to the Holder. Such notice
shall specify the action proposed to be taken by the Company and the date as of
which holders of record of the Common Stock shall participate in any such
actions or be entitled to exchange their Common Stock for securities or other
property, as the case may be. Failure by the Company to mail the notice or any
defect in such notice shall not affect the validity of the transaction.
Nothing in this Section 2.4(c) shall limit the rights of the Holder
or the obligations of the Company under Article V of this Note or the
obligations of the Company under Section 4(e) of the Note Purchase Agreement or
Section 2(e) or 9 of the Registration Rights Agreement.
(d) Upon receipt by the Company from the Holder of a telephone line
facsimile transmission of a Conversion Notice meeting the requirements for
conversion as provided in Section 2.1 and this Section 2.4, the Company shall
issue and deliver or cause to be issued and delivered to the Holder certificates
for the Common Stock issuable upon such conversion within three business days
after such receipt and otherwise in accordance with the Note Purchase Agreement
(including, without limitation, in accordance with the requirement that
EX 2.ii-32
<PAGE>
certificates for shares of Common Stock issued on or after the SEC Effective
Date upon conversion of this Note shall not bear any restrictive legend), and
the Holder shall be deemed to be the holder of record of the Common Stock
issuable upon such conversion, the outstanding principal amount and the amount
of accrued and unpaid interest on this Note shall be reduced to reflect such
conversion, and all rights with respect to the portion of this Note being so
converted shall forthwith terminate except the right to receive the Common Stock
or other securities, cash or other assets, as herein provided, on such
conversion. If the Holder shall have given a Conversion Notice as provided
herein, the Company's obligation to issue and deliver the certificates for
Common Stock shall be absolute and unconditional, irrespective of the absence of
any action by the Holder to enforce the same, any waiver or consent with respect
to any provision thereof, the recovery of any judgment against any person or any
action to enforce the same, any failure or delay in the enforcement of any other
obligation of the Company to the holder of record, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the
Holder of any obligation to the Company, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to the
Holder in connection with such conversion. If the Company shall fail to issue
and deliver or cause to be issued and delivered the certificates for shares of
Common Stock upon any such conversion as and when required by the first sentence
of this Section 2.4(d), then, in addition to any other liability which the
Company may have to the Holder, the Applicable Percentage used to calculate the
Conversion Price with respect to such conversion shall be reduced by one
percentage point for each day after the third trading day following the date
such Conversion Notice is received by the Company to the date of delivery of
such shares of Common Stock to the Holder.
(e) No fractional shares of Common Stock shall be issued upon
conversion of this Note but, in lieu of any fraction of a share of Common Stock
which would otherwise be issuable in respect of the aggregate number of such
shares converted at one time by the same holder, the Company shall round the
number of shares of Common Stock issued on such conversion up to the next
highest whole share.
ARTICLE III
CERTAIN COVENANTS
3.1 Tender Offers. The Company will not itself, and will not permit any
subsidiary of the Company to (1) make any tender offer or exchange offer (a
"Tender Offer") for outstanding shares of Common Stock unless the Company
EX 2.ii-33
<PAGE>
contemporaneously therewith makes an offer, or (2) enter into an agreement
regarding a Tender Offer for outstanding shares of Common Stock by any person
other than the Company or any subsidiary of the Company unless such person
agrees with the Company to make an offer, in either such case, to the Holder to
purchase the same percentage of the outstanding principal amount of this Note
held by the Holder as the percentage of outstanding shares of Common Stock
offered to be purchased in such Tender Offer, at a price equal to the product
obtained by multiplying (1) the sum of (a) the principal amount of this Note to
be purchased plus (b) accrued and unpaid interest on such principal amount to
the date of purchase plus (c) accrued and unpaid Default Interest, if any, on
the amount referred to in the immediately preceding clause (b) at the rate
provided in this Note to the date of purchase times (2) 133%.
3.2 Restriction on Dividends. So long as the Company shall have any
obligation under this Note, the Company shall not pay, declare or set apart for
such payment, any dividend on shares of capital stock other than dividends on
shares of Common Stock solely in the form of additional shares of Common Stock.
3.3 Restriction on Stock Repurchases. During the period commencing from
the date on which the Registration Statement shall have been declared effective
and until the date that the Registration Statement shall have been effective for
60 consecutive days, neither the Company nor any subsidiary of the Company shall
redeem, repurchase (other than pursuant to a Tender Offer, as defined in Section
3.1, which shall be governed by Section 3.1) or otherwise acquire (whether for
cash or in exchange for property or other securities or otherwise) in any one
transaction or series of related transactions any shares of capital stock of the
Company or any subsidiary of the Company unless such purchase, redemption or
repurchase would not be in violation of Rule 10b-6 under the 1934 Act and such
purchase, redemption or repurchase would not, by reason of Rule 10b-6 under the
1934 Act, prevent the Holder from selling its Registrable Securities (as defined
in the Registration Statement) under the Registration Statement.
ARTICLE IV
EVENTS OF DEFAULT
If any of the following events of default (each, an "Event of
Default") shall occur:
4.1 Failure to Pay Principal or Interest. The Company fails (a) to pay
the principal hereof when due, whether at maturity, upon redemption, upon
EX 2.ii-34
<PAGE>
acceleration or otherwise or (b) to pay any installment of interest hereon when
due and, in the case of this clause (b) of this Section 4.1 only, such failure
continues for a period of three (3) days after the due date thereof;
4.2 Conversion and the Shares. The Company fails to issue shares of Common
Stock to the Holder upon exercise by the Holder of the conversion rights of the
Holder in accordance with the terms of this Note, fails to transfer any
certificate for shares of Common Stock issued to the Holder upon conversion of
this Note or in payment of principal of or interest on this Note as and when
required by this Note or the Registration Rights Agreement;
4.3 Breach of Covenant. The Company (a) fails to comply with any provision
of Article III of this Note or (b) breaches any material covenant or other
material term or condition of this Note (other than as specifically provided in
Sections 4.1, 4.2 and 4.3(a) hereof), the Note Purchase Agreement, and in the
case of this clause (b) of this Section 4.3 only, such breach continues for a
period of twenty (20) days after written notice thereof to the Company from the
Holder or within 60 days after delivery of such notice if and only if, within
such 20-day period, the Company has been diligently taking action to cure
default and such cure cannot be completed within such 20-day period;
4.4 Breach of Representations and Warranties. Any representation or
warranty of the Company made herein or in any agreement, statement or
certificate given in writing pursuant hereto or in connection herewith
(including, without limitation, the Note Purchase Agreement) shall be false or
misleading in any material respect when made;
4.5 Certain Voluntary Proceedings. The Company or any material subsidiary
of the Company shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due or shall admit in writing its
inability generally to pay its debts as they become due;
4.6 Certain Involuntary Proceedings. An involuntary case or other
proceeding shall be commenced against the Company or any material subsidiary of
EX 2.ii-35
<PAGE>
the Company seeking liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of sixty (60) consecutive days;
4.7 Judgments. Any money judgment, writ or similar process shall be
entered or filed against the Company or any subsidiary of the Company or any of
their respective properties or other assets for more than $1,000,000, and shall
remain unvacated, unbonded or unstayed for a period of thirty (30) days;
4.8 Default Under Other Agreements.
(a) the Company or any subsidiary shall (i) default in any payment
with respect to any indebtedness for borrowed money (other than this Note) which
indebtedness has an outstanding principal amount in excess of $1,000,000
individually or in the aggregate for the Company and its subsidiaries, beyond
the period of grace, if any, provided in the instrument or agreement under which
such indebtedness was created or (ii) default in the observance or performance
of any agreement, covenant or condition relating to any such indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, any such indebtedness to become due prior to its stated
maturity and such default or event shall continue beyond the period of grace, if
any, provided in the instrument or agreement under which such indebtedness was
created (after giving effect to any consent or waiver obtained and then in
effect thereunder); or (b) any such indebtedness of the Company or any of its
subsidiaries shall, in accordance with its terms, be declared to be due and
payable, or required to be prepaid other than by a regularly scheduled or
required payment prior to the stated maturity thereof; or
4.9 Delisting of Common Stock. The Common Stock shall cease to be listed
on any of the Nasdaq SmallCap Market, the Nasdaq National Market, the NYSE or
the AMEX;
then upon the occurrence and during the continuation of any Event of Default
specified in Section 4.1, 4.2, 4.3, 4.4, 4.7, 4.8 or 4.9 at the option of the
Holder the Company shall, and upon the occurrence of any Event of Default
specified in Section 4.5 or 4.6, the Company shall, pay to the Holder an amount
equal to the product obtained by multiplying (1) the sum of (A) the outstanding
principal amount of this Note plus (B) accrued and unpaid interest on such
EX 2.ii-36
<PAGE>
principal amount to the date of payment plus (C) accrued and unpaid Default
Interest, if any, on the amount referred to in the immediately preceding clause
(B) at the rate provided in this Note to the date of payment times (2) 133% and
all other amounts payable hereunder shall immediately become due and payable,
all without demand, presentment or notice, all of which hereby are expressly
waived, together with all costs, including, without limitation, legal fees and
expenses, of collection, and the Holder shall be entitled to exercise all other
rights and remedies available at law or in equity, including all rights and
remedies under or in connection with any pledge created in accordance with
Article III of this Note.
ARTICLE V
REPURCHASE UPON A REPURCHASE EVENT; PREPAYMENT
5.1 Repurchase Right. If there shall occur a Repurchase Event (as defined
in Section 5.3 hereof), then the Holder shall have the right, at the Holder's
option, to require the Company to repurchase all of this Note, or any portion
hereof (in a minimum principal amount of $100,000 or integral multiples thereof
(or such lesser remaining principal amount of this Note)), on the repurchase
date that is three (3) business days after the date of the Holder Notice (as
defined in Section 5.2(b) below) delivered with respect to such Repurchase
Event. The Holder shall have the right to require the Company to repurchase all
or any such portion of this Note if a Repurchase Event occurs at any time while
any portion of the principal amount of this Note is outstanding at a purchase
price equal to the product obtained by multiplying (1) the sum of (a) the
principal amount of this Note to be repurchased plus (b) accrued and unpaid
interest on such principal amount to the date of such repurchase plus (c)
accrued and unpaid Default Interest, if any, on the amount referred to in the
immediately preceding clause (b) at the rate provided in this Note to the
repurchase date times (2) 133% (such product being referred to herein as the
"Repurchase Price").
5.2 Notices; Method of Exercising Repurchase Rights, Etc.
(a) On or before the fifth (5th) business day after the occurrence
of a Repurchase Event, the Company shall give to the Holder a notice in the form
attached hereto as Exhibit B (the "Company Notice") of the occurrence of the
Repurchase Event and of the repurchase right set forth herein arising as a
result thereof. Such notice shall set forth:
(i) the date by which the repurchase right must be exercised,
and
EX 2.ii-37
<PAGE>
(ii) a description of the procedure (set forth below) which the
Holder must follow to exercise the repurchase right.
No failure of the Company to give a Company Notice or defect therein
shall limit the Holder's right to exercise the repurchase right or affect the
validity of the proceedings for the repurchase of this Note or portion hereof.
(b) To exercise the repurchase right, the Holder shall deliver to
the Company on or before the thirtieth (30th) day after the Company Notice (or
if no such Company Notice has been given, within forty (40) days after the
Holder first learns of the Repurchase Event) (i) notice to the Company (or an
agent designated by the Company for such purpose) of the Holder's exercise of
such right, which notice shall set forth the name of the Holder, the principal
amount of this Note to be repurchased, and a statement that an election to
exercise the repurchase right is being made thereby in the form attached hereto
as Exhibit C (the "Holder Notice"), and (ii) this Note, duly endorsed for
transfer to the Company of the portion of the principal amount of this Note to
be repurchased. Such notice by the Holder shall be irrevocable.
(c) If the Company fails to repurchase on the repurchase date this
Note (or portion hereof) as to which the repurchase right has been properly
exercised, then the Repurchase Price for the principal of this Note shall bear
interest to the extent not prohibited by applicable law from the repurchase date
at the rate of 14 percent (14%) per annum until paid.
(d) If a portion of this Note is to be repurchased, upon surrender
of this Note to the Company in accordance with the terms of this Section 5.2,
the Company shall execute and deliver to the Holder without service charge, a
new Note or Notes, having the same date hereof and containing identical terms
and conditions, of such denomination or denominations as requested by the Holder
in aggregate principal amount equal to, and in exchange for, the unrepurchased
portion of the principal of the Note so surrendered.
5.3 Repurchase Event. A Repurchase Event shall be defined as the
occurrence of any one of the following events:
(a) For any period of five consecutive trading days following the
date hereof there shall be no Trading Price of the Common Stock on the Nasdaq
SmallCap Market, the Nasdaq National Market, the NYSE or the AMEX;
(b) The Common Stock ceases to be listed for trading on the Nasdaq
SmallCap Market, the Nasdaq National Market, the NYSE or the AMEX;
EX 2.ii-38
<PAGE>
(c) Any consolidation or merger of the Company or any subsidiary of
the Company with or into another entity (other than a merger or consolidation of
a subsidiary of the Company into the Company or a wholly-owned subsidiary of the
Company) where the shareholders of the Company immediately prior to such
transaction do not collectively own at least 51% of the outstanding voting
securities of the surviving corporation of such consolidation or merger
immediately following such transaction;
(d) A restatement or adjustment of the consolidated financial
statements of the Company and its subsidiaries as of and for the nine months
ended June 30, 1996 which results in any material decrease in stockholders'
equity from the amount thereof shown on the Consolidated Balance Sheet of the
Company and its subsidiaries as of June 30, 1996 which was included in Amendment
No. 1 on Form 10-Q/A to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, as filed with the SEC on August 21, 1996.
(e) The adoption of any amendment to the Company's Certificate of
Incorporation or the taking of any other action which materially and adversely
affects the rights of the Holder;
(f) The inability for a period of 30 days or more of the Holder to
sell shares of Common Stock issued upon conversion of this Note pursuant to the
Registration Statement (1) by reason of the requirements of the Act, the 1934
Act or any of the rules or regulations under either thereof or (2) due to the
Registration Statement containing any untrue statement of material fact or
omitting to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or other failure of the Registration
Statement to comply with the rules and regulations of the SEC;
(g) Any material change in the management of the Company, including
without limitation, the failure of Joseph Lents to remain as Chairman of the
Board, President and Chief Executive Officer of the Company; or
(h) The occurrence of any Event of Default specified in Article IV
of this Note.
ARTICLE VI
MISCELLANEOUS
6.1 Failure or Indulgency Not Waiver. No failure or delay on the part of
the Holder in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
EX 2.ii-39
<PAGE>
any other right, power or privileges. All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
6.2 Notices. Any notice herein required or permitted to be given shall be
in writing and may be personally served, sent by telephone line facsimile
transmission or delivered by courier or sent by United States mail and shall be
deemed to have been given upon receipt if personally served, sent by telephone
line facsimile transmission or sent by courier or three (3) days after being
deposited in the United States mail, certified, with postage pre-paid and
properly addressed, if sent by mail. For the purposes hereof, the address of the
Holder shall be as shown on the records of the Company and the address of the
Company shall be 3200 North Military Trail, Suite 210, Boca Raton, Florida 33431
Attention: Chief Financial Officer (telephone line facsimile transmission number
(561) 997-5846). Both the Holder and the Company may change the address for
service by service of written notice to the other as herein provided.
6.3 Amendment Provision. The term "Note" and all reference thereto, as
used throughout this instrument, shall mean this instrument as originally
executed, or if later amended or supplemented, then as so amended or
supplemented.
6.4 Assignability. This Note shall be binding upon the Company and its
successors and assigns, and shall inure to be the benefit of the Holder and its
successors and assigns.
6.5 Cost of Collection. If default is made in the payment of this Note,
the Company shall pay the Holder hereof costs of collection, including
attorneys' fees.
6.6 Governing Law. This Note shall be governed by the internal laws of the
State of Florida, without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, Company has caused this Note to be signed in its name
by its duly authorized officer on the day and in the year first above written.
TOTAL WORLD TELECOMMUNICATIONS, INC.
By__________________________________________
Name:
Title:
EX 2.ii-40
<PAGE>
Exhibit 2.ii.A.a
NOTICE OF CONVERSION
TO: TOTAL WORLD TELECOMMUNICATIONS, INC.
(1) Pursuant to the terms of the Convertible Note (the "Note"), the
undersigned hereby elects to convert $______________ principal amount of the
Note and accrued and unpaid interest into shares of Common Stock of TOTAL WORLD
TELECOMMUNICATIONS, INC., a Delaware corporation (the "Company"). Capitalized
terms used herein and not otherwise defined herein have the respective meanings
provided in the Note.
(2) Please issue a certificate or certificates for_____________ shares of
Common Stock in the name(s) specified immediately below or, if additional space
is necessary, on an attachment hereto:
--------------------- ---------------------
Name Name
--------------------- ---------------------
Address Address
--------------------- ---------------------
SS or Tax ID Number SS or Tax ID Number
(3) Date of Conversion:
-----------------------
Applicable Closing Price:
-----------------------
Applicable Conversion Price:
-----------------------
Delivery Instructions
for Common Stock:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
EX 2.ii-41
<PAGE>
(4) If the shares of Common Stock issuable upon conversion of the Note
have not been registered under the Securities Act of 1933, as amended (the
"Act"), the undersigned represents and warrants that (i) such shares of Common
Stock are being acquired for the account of the undersigned for investment, and
not with a view to, or for resale in connection with, the distribution thereof,
and that the undersigned has no present intention of distributing or reselling
such shares and (ii) the undersigned is an "accredited investor" as defined in
Regulation D under the Act. The undersigned further agrees that (A) such shares
shall not be sold or transferred unless either (i) they first shall have been
registered under the Act and applicable state securities laws or (ii) the
Company first shall have been furnished with an opinion of legal counsel
reasonably satisfactory to the Company to the effect that such sale or transfer
is exempt from the registration requirements of the Act and (B) until such
shares are registered under the Act, the Company may place a legend on the
certificate(s) for the shares to that effect and place a stop-transfer
restriction in its records relating to the shares.
NAME:
---------------------------------
Date
------------------------------- --------------------------------------
Signature of Registered Holder
(Must be signed exactly as name
appears in the Note.)
EX 2.ii-42
<PAGE>
Exhibit 2.ii.A.b
COMPANY NOTICE
(SECTION 5.2(a) OF CONVERTIBLE NOTE)
TO:_____________________________________
(Name of Holder)
(1) A Repurchase Event described in clause ______ of Section 5.3 of
the Convertible Note due ____________________, 1998 (the "Note") of Total World
Telecommunications, Inc., a _____________________ corporation (the "Company")
occurred on ______________________, 199__. As a result of such Repurchase Event,
the Holder is entitled to exercise its repurchase rights pursuant to Article V
of the Note.
(2) The Holder's repurchase right must be exercised on or before _______
_________________, 199__.
(3) At or before the date set forth in the preceding paragraph (2), the
Holder must:
(a) deliver to the Company a Holder Notice, in the form attached as
Exhibit C to the Note; and
(b) the Note, duly endorsed for transfer to the Company of the
portion of the principal amount to be repurchased.
(4) Capitalized terms used herein and not otherwise defined herein have
the respective meanings provided in the Note.
TOTAL WORLD TELECOMMUNICATIONS, INC.
Date___________________________ By__________________________________________
EX 2.ii-43
<PAGE>
Exhibit 2.ii.A.c
HOLDER NOTICE
(SECTION 5.2(b) OF CONVERTIBLE NOTE)
TO: TOTAL WORLD TELECOMMUNICATIONS, INC.
(1) Pursuant to the terms of the Convertible Note due _________________,
1998 (the "Note"), the undersigned Holder hereby elects to exercise its right to
require repurchase by the Company of $_________________ of the Note, equal to
the sum of $________________ principal amount of the Note, $_______________ of
accrued and unpaid interest on such principal amount and $_______________ of
Default Interest on such interest at the repurchase price provided in the Note.
(2) Capitalized terms used herein and not otherwise defined herein have
the respective meanings provided in the Note.
NAME:_________________________________
______________________________________
Signature of Registered Holder
(Must be signed exactly as name
appears in the Note.)
EX 2.ii-44
<PAGE>
EXHIBIT 2.ii.B
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 30, 1996 (this
"Agreement"), is made by and between TOTAL WORLD TELECOMMUNICATIONS, INC., a
Delaware corporation (the "Company"), and the person named on the signature page
hereto (the "Initial Investor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in connection with the Note Purchase Agreement, dated as of
November 30, 1996, between the Initial Investor and the Company (the "Note
Purchase Agreement"), the Company has agreed, upon the terms and subject to the
conditions of the Note Purchase Agreement, to issue and sell to the Initial
Investor a Convertible Note (the "Note") issued by the Company which will be
convertible into shares (the "Shares") of Common Stock, $.00001 par value (the
"Common Stock"), of the Company in accordance with the terms of the Note; and
WHEREAS, to induce the Initial Investor to execute and deliver the Note
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws with respect to the
Shares;
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 Company and the Initial
Investor hereby agree as follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall have the
following meanings:
(i) "Investor" means the Initial Investor and any transferee
or assignee who agrees to become bound by the provisions of this Agreement in
accordance with Section 9 hereof.
(ii) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
EX 2.ii-45
<PAGE>
continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
of such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
(iii) "Registrable Securities" means the Shares and any shares of
Common Stock issued by the Company in payment of principal of and interest on
the Note in accordance with the terms thereof.
(iv) "Registration Statement" means a registration statement of
the Company under the Securities Act, including any amendment thereto.
(b) As used in this Agreement, the term Investor includes (i) each
Investor (as defined above) and (ii) each person who is a permitted transferee
or assignee of the Registrable Securities pursuant to Section 9 of this
Agreement.
(c) Capitalized terms defined in the introductory paragraph or the
recitals to this Agreement shall have the respective meanings therein provided.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the Note Purchase Agreement.
2. Registration.
(a) Mandatory Registration. Promptly following the Closing, the
Company shall commence preparation of a Registration Statement on Form S-3
covering at least 2,656,291 shares of Common Stock as Registrable Securities. On
or prior to January 14, 1997, the Company shall furnish to the Investors and
their legal counsel a draft of the Registration Statement which meets the
requirements of the Securities Act. On or prior to January 31, 1997, the Company
shall file such Registration Statement with the SEC, which Registration
Statement shall state that, in accordance with Rule 416 under the Securities
Act, such Registration Statement also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon conversion of the
Note to prevent dilution resulting from stock splits, stock dividends or similar
transactions or by reason of changes in the conversion price of the Note in
accordance with the terms thereof. If at any time the number of shares of Common
Stock included in the Registration Statement required to be filed as provided in
the first sentence of this Section 2(a) shall be insufficient to cover the
number of shares of Common Stock issuable on conversion in full of the
unconverted principal amount of the Note, then promptly, but in no event later
than 20 days after such insufficiency shall occur, the Company shall file with
the SEC an additional Registration Statement on Form S-3 or other applicable
form (which shall not constitute a post-effective amendment to the Registration
EX 2.ii-46
<PAGE>
Statement filed pursuant to the first sentence of this Section 2(a) but which
may, in accordance with Rule 429 under the Securities Act, make use of a
combined prospectus) covering such number of shares of Common Stock as shall be
sufficient to permit such conversion. For all purposes of this Agreement (other
than Section 2(c) hereof) such additional Registration Statement shall be deemed
to be the Registration Statement required to be filed by the Company pursuant to
Section 2(a) of this Agreement, and the Company and the Investors shall have the
same rights and obligations (other than Section 2(c) hereof) with respect to
such additional Registration Statement as they shall have with respect to the
initial Registration Statement required to be filed by the Company pursuant to
this Section 2(a).
(b) Certain Offerings. If any offering pursuant to a Registration
Statement pursuant to Section 2(a) hereof involves an underwritten offering, the
Investors who hold a majority in interest of the Registrable Securities subject
to such underwritten offering shall have the right to select one legal counsel
and an investment banker or bankers and manager or managers to administer the
offering, which investment banker or bankers or manager or managers shall be
reasonably satisfactory to the Company. The Investors who hold the Registrable
Securities to be included in such underwriting shall pay all underwriting
discounts and commissions and other fees and expenses of such investment banker
or bankers and manager or managers so selected in accordance with this Section
2(b) (other than fees and expenses relating to registration of Registrable
Securities under federal or state securities laws, which are payable by the
Company pursuant to Section 5 hereof) with respect to their Registrable
Securities and the fees and expenses of such legal counsel so selected by the
Investors.
(c) Payments by the Company. If (1) the Registration Statement
covering the Registrable Securities which is required to be filed by the Company
pursuant to the first sentence of Section 2(a) hereof is not effective within 90
days after the Closing Date, (2) the Registration Statement required to be filed
by the Company pursuant to Section 2(a) shall cease to be available for use by
any holder of the Note which is named therein as a selling stockholder for any
reason (including, without limitation, by reason of an SEC stop order, a
material misstatement or omission in such Registration Statement or the
information contained in such Registration Statement having become outdated) or
(3) a holder of the Note having become unable to convert any portion of the Note
in accordance with Section 2.1 of the Note, then, in lieu of the adjustment of
the Conversion Price (as defined in the Note) on any particular Computation
Date, the Company shall have the right to make payment to the Initial Investor
EX 2.ii-47
<PAGE>
in such amount and at such time as shall be determined pursuant to this Section
2(c). The amount to be paid by the Company to the Initial Investor shall be
determined as of each Computation Date, and such amount shall be equal to three
percent (3%) of the aggregate purchase price paid by the Initial Investor for
the Note pursuant to the Note Purchase Agreement (each, a "Periodic Amount"). If
the Company elects to make payment hereunder of any Periodic Amount, such
payment shall be made by the Company by wire transfer in immediately available
funds on the applicable Computation Date to such account as shall be specified
for such purpose by the Initial Holder.
As used in this Section 2(c), "Computation Date" shall have the
meaning provided in the Note.
(d) Piggy-Back Registrations. If at any time the Company shall
determine to prepare and file with the SEC a Registration Statement relating to
an offering for its own account or the account of others under the Securities
Act of any of its equity securities, other than on Form S-4 or Form S-8 or their
then equivalents relating to equity securities to be issued solely in connection
with any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, the Company shall
send to each Investor who is entitled to registration rights under this Section
2(d) written notice of such determination and, if within ten (10) days after
receipt of such notice, such Investor shall so request in writing, the Company
shall include in such Registration Statement all or any part of the Registrable
Securities such Investor requests to be registered, except that if, in
connection with any underwritten public offering for the account of the Company
the managing underwriter(s) thereof shall impose a limitation on the number of
shares of Common Stock which may be included in the Registration Statement
because, in such underwriter(s)' judgment, such limitation is necessary to
effect an orderly public distribution, then the Company shall be obligated to
include in such Registration Statement only such limited portion of the
Registrable Securities with respect to which such Investor has requested
inclusion hereunder. Any exclusion of Registrable Securities shall be made pro
rata among the Investors seeking to include Registrable Securities, in
proportion to the number of Registrable Securities sought to be included by such
Investors; provided, however, that the Company shall not exclude any Registrable
Securities unless the Company has first excluded all outstanding securities the
holders of which are not entitled by right to inclusion of securities in such
Registration Statement; and provided further, however, that, after giving effect
to the immediately preceding proviso, any exclusion of Registrable Securities
shall be made pro rata with holders of other securities having the right to
include such securities in the Registration Statement, based on the number of
EX 2.ii-48
<PAGE>
securities for which registration is requested except to the extent such pro
rata exclusion of such other securities is prohibited under any written
agreement entered into by the Company with the holder of such other securities
prior to the date of this Agreement, in which case such other securities shall
be excluded, if at all, in accordance with the terms of such agreement. No right
to registration of Registrable Securities under this Section 2(d) shall be
construed to limit any registration required under Section 2(a) hereof. The
obligations of the Company under this Section 2(d) may be waived by Investors
holding a majority in interest of the Registrable Securities and shall expire
after the Company has afforded the opportunity for the Investors to exercise
registration rights under this Section 2(d) for two registrations; provided,
however, that any Investor who shall have had any Registrable Securities
excluded from any Registration Statement in accordance with this Section 2(d)
shall be entitled to include in an additional Registration Statement filed by
the Company the Registrable Securities so excluded. Notwithstanding any other
provision of this Agreement, if the Registration Statement required to be filed
pursuant to Section 2(a) of this Agreement shall have been ordered effective by
the SEC and the Company shall have maintained the effectiveness of such
Registration Statement as required by this Agreement and if the Company shall
otherwise have complied in all material respects with its obligations under this
Agreement, then the Company shall not be obligated to register any Registrable
Securities on such Registration Statement referred to in this Section 2(d).
(e) Eligibility for Form S-3. The Company represents and warrants
that it meets the requirements for the use of Form S-3 for registration of the
sale by the Initial Investor and any Investor of the Registrable Securities and
the Company shall file all reports required to be filed by the Company with the
SEC in a timely manner so as to maintain such eligibility for the use of Form
S-3.
3. Obligations of the Company. In connection with the registration of
the Registrable Securities, the Company shall:
(a) prepare promptly, and file with the SEC not later than January
14, 1997, a Registration Statement with respect to the number of Registrable
Securities provided in Section 2(a), and thereafter to use its best efforts to
cause each Registration Statement relating to Registrable Securities to become
effective as soon as possible after such filing, and keep the Registration
Statement effective pursuant to Rule 415 at all times until the earlier of (1)
such date as is three years after the Closing Date and (2) the date on which the
Investors no longer beneficially own any Registrable Securities; the Company
EX 2.ii-49
<PAGE>
shall not file any registration statement under the Securities Act relating to
securities other than the Registrable Securities until the Registration
Statement shall have been effective for at least 60 consecutive days; and the
Company represents and warrants to, and covenants and agrees with, the Investors
that the Registration Statement (including any amendments or supplements thereto
and prospectuses contained therein), at the time it is first filed with the SEC,
at the time it is ordered effective by the SEC and at all time during which it
is required to be effective hereunder (and each such amendment and supplement at
the time it is filed with the SEC and at all time during which it is available
for use in connection with the offer and sale of the Registrable Securities)
shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times until such
date as is three years after the Closing Date, and, during such period, comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statement
until such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statement;
(c) furnish to each Investor whose Registrable Securities are
included in the Registration Statement and its legal counsel, (1) promptly after
the same is prepared and publicly distributed, filed with the SEC or received by
the Company, one copy of the Registration Statement and any amendment thereto,
each preliminary prospectus and prospectus and each amendment or supplement
thereto, each letter written by or on behalf of the Company to the SEC or the
staff of the SEC and each item of correspondence from the SEC or the staff of
the SEC relating to such Registration Statement (other than any portion of any
thereof which contains information for which the Company has sought confidential
treatment) and (2) such number of copies of a prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents, as such Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Investor;
(d) use reasonable efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such
EX 2.ii-50
<PAGE>
securities or blue sky laws of such jurisdictions as the Investors who hold a
majority in interest of the Registrable Securities being offered reasonably
request, (ii) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
times until the earlier of (A) such date as is three years after the Closing
Date and (B) the date on which the Investors no longer beneficially own any
Registrable Securities, (iii) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times until the
earlier of (A) such date as is three years after the date such Registration
Statement is first ordered effective by the SEC and (B) the date on which the
Investors no longer beneficially own any Registrable Securities and (iv) take
all other actions reasonably necessary or advisable to qualify the Registrable
Securities for sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition thereto (I) to
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (II) to subject itself to general
taxation in any such jurisdiction, (III) to file a general consent to service of
process in any such jurisdiction, (IV) to provide any undertakings that cause
more than nominal expense or burden to the Company or (V) to make any change in
its charter or by-laws, which in each case the Board of Directors of the Company
determines to be contrary to the best interests of the Company and its
stockholders;
(e) in the event Investors who hold a majority in interest of the
Registrable Securities being offered in the offering select underwriters for the
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the underwriters of such
offering;
(f) as promptly as practicable after becoming aware of such event,
notify each Investor of the happening of any event of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and deliver a number of copies of such supplement or amendment to each
Investor as such Investor may reasonably request.
EX 2.ii-51
<PAGE>
(g) as promptly as practicable after becoming aware of such event,
notify each Investor who holds Registrable Securities being sold (or, in the
event of an underwritten offering, the managing underwriters) of the issuance by
the SEC of any stop order or other suspension of effectiveness of the
Registration Statement at the earliest possible time;
(h) permit a single firm of counsel designated as selling
stockholders' counsel by the Investors who hold a majority in interest of the
Registrable Securities being sold to review and comment on the Registration
Statement and all amendments and supplements thereto a reasonable period of time
prior to their filing with the SEC;
(i) make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 under the Securities Act) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following the
effective date of the Registration Statement;
(j) at the request of the Investors who hold a majority in interest
of the Registrable Securities being sold, furnish on the date that Registrable
Securities are delivered to an underwriter, if any, for sale in connection with
the Registration Statement (i) a letter, dated such date, from the Company's
independent certified public accountants in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters; and (ii) an
opinion, dated such date, from counsel representing the Company for purposes of
such Registration Statement, in form and substance as is customarily given in an
underwritten public offering, addressed to the underwriters and the Investors;
(k) make available for inspection by any Investor, any underwriter
participating in any disposition pursuant to the Registration Statement, and any
attorney, accountant or other agent retained by any such Investor or underwriter
(collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable each Inspector to
exercise its due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information which any Inspector may
reasonably request for purposes of such due diligence; provided, however, that
each Inspector shall hold in confidence and shall not make any disclosure
(except to an Investor) of any Record or other information which the Company
EX 2.ii-52
<PAGE>
determines in good faith to be confidential, and of which determination the
Inspectors are so notified, unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court or government body of competent jurisdiction or (iii)
the information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement. The
Company shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered into
confidentiality agreements (in form and substance satisfactory to the Company)
with the Company with respect thereto, substantially in the form of this Section
3(k). Each Investor agrees that it shall, upon learning that disclosure of such
Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential. The Company shall hold in confidence and shall not make any
disclosure of information concerning an Investor provided to the Company
pursuant to Section 4(e) hereof unless (i) disclosure of such information is
necessary to comply with federal or state securities laws, (ii) the disclosure
of such information is necessary to avoid or correct a misstatement or omission
in any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other order from a court or governmental body of
competent jurisdiction or (iv) such information has been made generally
available to the public other than by disclosure in violation of this or any
other agreement. The Company agrees that it shall, upon learning that disclosure
of such information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to such Investor, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, such information;
(l) use its best efforts (i) to cause all the Registrable Securities
covered by the Registration Statement to be listed on the Nasdaq SmallCap Market
or such other principal securities market on which securities of the same class
or series issued by the Company are then listed or traded or (ii) if securities
of the same class or series as the Registrable Securities are not then listed on
the Nasdaq SmallCap Market or any such other securities market, to arrange for
at least two market makers to register with the National Association of
Securities Dealers, Inc. ("NASD") as such with respect to such Registrable
Securities;
EX 2.ii-53
<PAGE>
(m) provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of the
Registration Statement;
(n) cooperate with the Investors who hold Registrable Securities
being offered and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing Registrable Securities to be offered pursuant
to the Registration Statement and enable such certificates to be in such
denominations or amounts as the case may be, as the managing underwriter or
underwriters, if any, or the Investors may reasonably request and registered in
such names as the managing underwriter or underwriters, if any, or the Investors
may request; and, within three business days after a Registration Statement
which includes Registrable Securities is ordered effective by the SEC, the
Company shall deliver, and shall cause legal counsel selected by the Company to
deliver, to the transfer agent for the Registrable Securities (with copies to
the Investors whose Registrable Securities are included in such Registration
Statement) an instruction substantially in the form attached hereto as Exhibit 1
and an opinion of such counsel, if required by the Company's transfer agent, in
the form attached hereto as Exhibit 2;
(o) during the period the Company is required to maintain
effectiveness of the Registration Statement pursuant to Section 3(a), the
Company shall not bid for or purchase any Common Stock or any right to purchase
Common Stock or attempt to induce any person to purchase any such security or
right if such bid, purchase or attempt would in any way limit the right of the
Investors to sell Registrable Securities by reason of the limitations in Rule
10b-6 under the Exchange Act; and
(p) take all other reasonable actions necessary to expedite and
facilitate disposition by the Investor of the Registrable Securities pursuant to
the Registration Statement.
4. Obligations of the Investors. In connection with the registration
of the Registrable Securities, the Investors shall have the following
obligations:
(a) It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Agreement with respect to
the Registrable Securities of a particular Investor that such Investor shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
EX 2.ii-54
<PAGE>
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request. At least four (4)
days prior to the first anticipated filing date of the Registration Statement,
the Company shall notify each Investor of the information the Company requires
from each such Investor (the "Requested Information") if any of such Investor's
Registrable Securities are eligible for inclusion in the Registration Statement.
If at least one (1) business day prior to the filing date the Company has not
received the Requested Information from an Investor (a "Non-Responsive
Investor"), then the Company may file the Registration Statement without
including Registrable Securities of such Non-Responsive Investor;
(b) Each Investor by such Investor's acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless such Investor has notified the Company in writing of
such Investor's election to exclude all of such Investor's Registrable
Securities from the Registration Statement;
(c) In the event Investors holding a majority in interest of the
Registrable Securities being registered determine to engage the services of an
underwriter, each Investor agrees to enter into and perform such Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of the Registrable Securities, unless such Investor has notified the
Company in writing of such Investor's election to exclude all of such Investor's
Registrable Securities from the Registration Statement;
(d) Each Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(f) or
3(g), such Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Investor's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(f) or 3(g) and, if so directed by
the Company, such Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in such Investor's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice; and
(e) No Investor may participate in any underwritten registration
hereunder unless such Investor (i) agrees to sell such Investor's Registrable
EX 2.ii-55
<PAGE>
Securities on the basis provided in any underwriting arrangements approved by
the Investors entitled hereunder to approve such arrangements, (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements and (iii) agrees to pay its pro rata share of all
underwriting discounts and commissions and other fees and expenses of investment
bankers and any manager or managers of such underwriting and legal expenses of
the underwriters applicable with respect to its Registrable Securities, in each
case to the extent not payable by the Company pursuant to the terms of this
Agreement.
5. Expenses of Registration. All reasonable expenses, other than
underwriting discounts and commissions and other fees and expenses of investment
bankers and other than brokerage commissions, incurred in connection with
registrations, filings or qualifications pursuant to Section 3, including,
without limitation, all registration, listing and qualifications fees, printers
and accounting fees and the fees and disbursements of counsel for the Company
and the Investors, shall be borne by the Company; provided, however, that the
Investors shall bear the fees and out-of-pocket expenses of the one legal
counsel selected by the Investors pursuant to Section 2(b) hereof.
6. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Investor who holds such Registrable Securities, the
directors, if any, of such Investor, the officers, if any, of such Investor,
each person, if any, who controls any Investor within the meaning of the
Securities Act or the Exchange Act, any underwriter (as defined in the
Securities Act) for the Investors, the directors, if any, of such underwriter
and the officers, if any, of such underwriter, and each person, if any, who
controls any such underwriter within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities or expenses (joint or several) incurred (collectively,
"Claims") to which any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations in the
Registration Statement, or any post-effective amendment thereof, or any
prospectus included therein: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
post-effective amendment thereof or the omission or alleged omission to state
EX 2.ii-56
<PAGE>
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if used
prior to the effective date of such Registration Statement, or contained in the
final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any state securities law or any rule or
regulation under the Securities Act, the Exchange Act or any state securities
law (the matters in the foregoing clauses (i) through (iii) being, collectively,
"Violations"). Subject to the restrictions set forth in Section 6(d) with
respect to the number of legal counsel, the Company shall reimburse the
Investors and each such underwriter or controlling person, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (I) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; (II) with respect to any preliminary prospectus shall not inure to the
benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(c) hereof; and (III)
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9.
(b) In connection with any Registration Statement in which an
Investor is participating, each such Investor agrees to indemnify and hold
harmless, to the same extent and in the same manner set forth in Section 6(a),
EX 2.ii-57
<PAGE>
the Company, each of its directors, each of its officers who signs the
Registration Statement, each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the Securities Act or the Exchange Act
(collectively and together with an Indemnified Person, an "Indemnified Party"),
against any Claim to which any of them may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or is
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Investor expressly for use in
connection with such Registration Statement; and such Investor will reimburse
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Investor, which consent shall not be unreasonably withheld;
provided, further, however, that the Investor shall be liable under this Section
6(b) for only that amount of a Claim as does not exceed the amount of the net
proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable Securities
by the Investors pursuant to Section 9. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(b)
with respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact contained
in the preliminary prospectus was corrected on a timely basis in the prospectus,
as then amended or supplemented.
(c) The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in any distribution, to the same extent as provided
above, with respect to information so furnished in writing by such persons
expressly for inclusion in the Registration Statement.
(d) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to be made against any
EX 2.ii-58
<PAGE>
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. The Company shall pay for only one separate legal
counsel for the Investors; such legal counsel shall be selected by the Investors
holding a majority in interest of the Registrable Securities included in the
Registration Statement to which the Claim relates. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
7. Contribution. To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under Section 6 to the fullest extent permitted by law; provided,
however, that (a) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in Section 6, (b) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation and (c)
contribution by any seller of Registrable Securities shall be limited in amount
to the amount by which the net amount of proceeds received by such seller from
the sale of such Registrable Securities exceeds the purchase price paid by such
seller for such Registrable Securities.
EX 2.ii-59
<PAGE>
8. Reports under Exchange Act. With a view to making available to the
Investors the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the SEC that may at any time permit the
Investors to sell securities of the Company to the public without registration
("Rule 144"), the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to each Investor so long as such Investor owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company and (iii) such other information as may be reasonably requested to
permit the Investors to sell such securities pursuant to Rule 144 without
registration.
9. Assignment of the Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Investors to any transferee of all or any portion
of such securities (or all or any portion of the Note) of Registrable Securities
only if: (a) the Investor agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment, (b) the Company is, within a
reasonable time after such transfer or assignment, furnished with written notice
of (i) the name and address of such transferee or assignee and (ii) the
securities with respect to which such registration rights are being transferred
or assigned, (c) immediately following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act and applicable state securities laws, and (d) at or before
the time the Company received the written notice contemplated by clause (b) of
this sentence the transferee or assignee agrees in writing with the Company to
be bound by all of the provisions contained herein. In connection with any such
transfer the Company shall, at its sole cost and expense, promptly after such
assignment take such actions as shall be reasonably acceptable to the Initial
Investor and such transferee to assure that the Registration Statement and
related prospectus are available for use by such transferee for sales of the
Registrable Securities in respect of which the rights to registration have been
so assigned.
EX 2.ii-60
<PAGE>
10. Amendment of Registration Rights. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Investors who hold a majority in interest of
the Registrable Securities. Any amendment or waiver effected in accordance with
this Section 10 shall be binding upon each Investor and the Company.
11. Miscellaneous.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
(by hand, by courier, by telephone line facsimile transmission or other means)
or sent by certified mail, return receipt requested, properly addressed and with
proper postage pre-paid (i) if to the Company, at Total World
Telecommunications, Inc., 3200 North Military Trail, Suite 300, Boca Raton,
Florida 33431, Attention: Chief Financial Officer, telephone line facsimile
transmission No. (561) 997-5846, (ii) if to the Initial Investor, c/o Genesee
Investments, 10500 N.E. 8th Street, Suite 1920, Bellevue, Washington 98004-4332,
telephone line facsimile transmission No. (206) 462-4645 and (iii) if to any
other Investor, at such address as such Investor shall have provided in writing
to the Company, or at such other address as each such party furnishes by notice
given in accordance with this Section 11(b), and shall be effective, when
personally delivered, upon receipt and, when so sent by certified mail, four
days after deposit with the United States Postal Service.
(c) 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.
(d) This Agreement shall be enforced, governed by and construed in
accordance with the laws of the State of Florida applicable to agreements made
EX 2.ii-61
<PAGE>
and to be performed entirely within such State. In the event that any provision
of this Agreement is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision hereof.
(e) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(f) Subject to the requirements of Section 9 hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(i) The Company acknowledges that any failure by the Company to
perform its obligations under this Agreement, including, without limitation, the
Company's obligations under Section 3(n), or any delay in such performance could
result in damages to the Investors and the Company agrees that, in addition to
any other liability the Company may have by reason of any such failure or delay,
the Company shall be liable for all direct and consequential damages caused by
any such failure or delay.
(j) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by telephone line facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
EX 2.ii-62
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of day and
year first above written.
TOTAL WORLD TELECOMMUNICATIONS, INC.
By:________________________________________
Name:
Title:
INITIAL INVESTOR:
NAME:_______________________________________
By:_________________________________________
Name:
Title:
EX 2.ii-63
<PAGE>
EXHIBIT 2.ii.B.a
[Company Letterhead]
[Date]
[Name and address of Transfer Agent]
Ladies and Gentlemen:
This letter shall serve as our irrevocable authorization and direction to
you [(1) to transfer or re-register the certificates for the shares of Common
Stock, $.00001 par value (the "Common Stock"), of Total World
Telecommunications, Inc., a Delaware corporation (the "Company"), represented by
certificate numbers _______ and _______ for an aggregate of _______ shares (the
"Outstanding Shares") of Common Stock presently registered in the name of [Name
of Investor] upon surrender of such certificate to you, notwithstanding the
legend appearing on such certificates,] and (2) to issue shares (the "Conversion
Shares") of Common Stock to or upon the order of the holder from time to time on
conversion of the Convertible Note, dated , 1996, in the original principal
amount of $ (the "Note"), issued by the Company upon surrender to you by such
registered holder for conversion of the Note and a properly completed and duly
executed Conversion Notice in the form enclosed herewith. [The transfer or
re-registration of the certificates for the Outstanding Shares by you should be
made at such time as you are requested to do so by the record holder of the
Outstanding Shares. The certificate issued upon such transfer or re-registration
should be registered in such name as requested by the holder of record of the
certificate surrendered to you and should not bear any legend which would
restrict the transfer of the shares represented thereby. In addition, you are
hereby directed to remove any stop-transfer instruction relating to the
Outstanding Shares.]* Certificates for the Conversion Shares should not bear any
restrictive legend and should not be subject to any stop-transfer restriction.
Contemporaneous with the delivery of this letter, the Company is
delivering to you an opinion of ____________________ as to registration of [the
Outstanding Shares,]* and the Conversion Shares under the Securities Act of
1933, as amended.
___________________
*Omit if no conversion of the Note has occurred before SEC registration is
declared effective.
EX 2.ii-64
<PAGE>
Should you have any questions concerning this matter, please contact me.
Very truly yours,
TOTAL WORLD TELECOMMUNICATIONS, INC.
By:_________________________________________
Name:
Title:
Enclosures
cc: [Name of Investor]
EX 2.ii-65
<PAGE>
EXHIBIT 2.ii.B.b
[Date]
[Name and address
of transfer agent]
TOTAL WORLD TELECOMMUNICATIONS, INC.
Shares of Common Stock
Ladies and Gentlemen:
We are counsel to Total World Telecommunications, Inc., a Delaware
corporation (the "Company"), and we understand that [Name of Investor] (the
"Holder") has purchased from the Company [(1) an aggregate of __________ shares
(the "Shares") of the Company's Common Stock, $.00001 par value (the "Common
Stock"), represented by Certificate No. _________ and (2)] a Convertible Note,
dated_______ _______, 1996, in the original principal amount of $__________ (the
"Note") issued by the Company. The Note was purchased by the Holder pursuant to
a Note Purchase Agreement, dated as of _______ _______, 1996, between the Holder
and the Company (the "Note Purchase Agreement"). Pursuant to a Registration
Rights Agreement, dated as of __________________, 1996, between the Company and
the Holder (the "Registration Rights Agreement") entered into in connection with
the purchase by the Holder of the Note, the Company agreed with the Holder,
among other things, to register for resale the [Shares and any additional]*
shares of Common Stock issuable upon conversion of the Note (the "Conversion
Shares") under the Securities Act of 1933, as amended (the "Securities Act"),
upon the terms provided in the Registration Rights Agreement. Pursuant to the
Registration Rights Agreement, on __________, the Company filed a Registration
Statement on Form S-3 (File No. 333-__________) (the "Registration Statement")
with the Securities and Exchange Commission (the "SEC") relating to [the Shares
and] the Conversion Shares, which names the Holder as a selling stockholder
thereunder.
[Other introductory and scope of examination language to be
inserted]
Based on the foregoing, we are of the opinion that [the Shares and]*
the Conversion Shares have been registered under the Securities Act.
________________
*Omit if no conversion of the Note has occurred before SEC registration is
declared effective.
EX 2.ii-66
<PAGE>
This opinion may be relied upon by the Holder as if addressed
to the Holder. [Other appropriate language to be included.]
Very truly yours,
cc: [Name of Investor]
EX 2.ii-67
