SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Struthers Industries, Inc.
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
863583100
(CUSIP Number)
Richard H. Rowe, Esq.
Proskauer Rose Goetz & Mendelsohn
1233 20th Street, N.W., Suite 800
Washington, D.C. 20036
(202) 416-6820
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 5, 1996
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box __.
Check the following box if a fee is being paid with the statement X. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, fshould be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 2
CUSIP NO. 863583100
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WINCO Corp.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) __
(b) __
3. SEC USE ONLY
4. SOURCE OF FUNDS*
00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
__
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE VOTING POWER
8. SHARED VOTING POWER
123,785,000
9. SOLE DISPOSITIVE POWER
10. SHARED DISPOSITIVE POWER
138,490,856
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
138,490,856
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
90%
14. TYPE OF REPORTING PERSON
CO
Page 3
CUSIP NO. 863583100
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Northwest Asian Territory Family Trust III
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) __
(b) __
3. SEC USE ONLY
4. SOURCE OF FUNDS*
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
__
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
District of Columbia
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE VOTING POWER
8. SHARED VOTING POWER
123,785,000
9. SOLE DISPOSITIVE POWER
10. SHARED DISPOSITIVE POWER
138,490,856
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
138,490,856
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
90%
14. TYPE OF REPORTING PERSON
OO
Page 4
CUSIP NO. 863583100
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.A. Gommel
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) __
(b) __
3. SEC USE ONLY
4. SOURCE OF FUNDS*
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
__
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE VOTING POWER
238,500
8. SHARED VOTING POWER
123,785,000
9. SOLE DISPOSITIVE POWER
10. SHARED DISPOSITIVE POWER
138,490,856
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
138,490,856
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
90%
14. TYPE OF REPORTING PERSON
IN
Page 5
Item 1. Security and Issuer
Common Stock, par value $.10 per share ("Common Stock")
Struthers Industries, Inc., a Delaware Corporation ("Struthers")
601 ONEOK Plaza
100 West Fifth Street
Tulsa, Oklahoma 74130
Item 2. Identity and Background
The Filing Persons are:
WINCO Corp., a Delaware Corporation engaged in the formation and
implementation of commercial enterprises involving the
telecommunications industry ("WINCO")
1875 Century Park East
Suite 930
Los Angeles, California 90067
Northwest Asian Territory Family Trust III, a District of Columbia
family trust (the "Trust")
c/o Sean P. O'Keefe
WINCO Corp.
1875 Century Park East
Suite 930
Los Angeles, California 90067
J. A. Gommel, trustee of the Trust (the "Trustee")
c/o Sean P. O'Keefe
WINCO Corp.
1875 Century Park East
Suite 930
Los Angeles, California 90067
None of the Filing Persons has been convicted or subject to any of
the judgments, decrees or orders enumerated in Item 2(d) and (e)
of Schedule 13D.
Information responsive to Items 2 through 6 of Schedule with
respect to the executive officers and directors of WINCO other
than Filing Persons will be included in Schedule A to this
Statement to be filed by amendment.
Item 3. Source and Amount of Funds or Other Consideration
WINCO and the other stockholders of WINCOM Corp. ("WINCOM")
acquired beneficial ownership of 138,490,856 pre-split shares of
Common Stock (the "Shares") in exchange for all of the issued and
outstanding common stock of WINCOM in the transaction described in
response to Item 5.
Item 4. Purpose of Transaction
See response to Item 5. WINCO acquired beneficial ownership of
its portion of the Shares to acquire control of an entity that is
a reporting company under the Securities Exchange Act of 1934 (the
"Exchange Act") in order to access the public capital markets to
finance WINCOM's business plan and to satisfy conditions in
agreements between WINCOM and holders of interactive video and
data system licenses for the acquisitions of those licenses by
WINCOM.
Sean P. O'Keefe, a director of WINCO, has been appointed President
of Struthers and upon satisfaction of certain requirements of the
Exchange Act as to notice to Struthers stockholders, a majority of
the Struthers Board of Directors will be replaced by three
designees of WINCO, Sean P. O'Keefe, Raoul Carroll and Jarius
DeWalt.
Although not required by Delaware law, the Agreement contemplates
that Struthers stockholders of record at September 5, 1996 other
than WINCO, will be provided appraisal rights comparable to those
that would be provided by Delaware law were WINCOM to be merged
with Struthers. Those stockholders will be provided the
opportunity to elect such appraisal rights at the next annual
meeting of Struthers stockholders. Stockholders who elect to
exercise those rights will receive the appraised value of their
shares of Common Stock in cash.
Struthers also has the obligation to issue approximately
19,971,000 shares of Common Stock upon conversion of outstanding
WINCOM preferred stock and in payment of accrued dividends on that
stock.
Item 5. Interest in Securities of the Issuer
See response to Items 3 and 4.
On September 5, 1996, WINCO and Struthers entered into an
agreement (the "Agreement") for the acquisition of the Shares by
WINCO in exchange for all of the issued and outstanding common
stock of WINCOM. The Agreement supserded a previously announced
agreement for the merger of Struthers and WINCOM.
Struthers delivered 13 million shares of Common Stock to WINCO on
September 6, 1996. The remaining shares (the "Remaining Shares")
will be delivered upon the approval by the Struthers stockholders
in accordance with Delaware law and the provisions of the Exchange
Act of an amendment to the Certificate of Incorporation of
Struthers to provide for an increase in the authorized Common
Stock, a .425 to one reverse stock split of the Common Stock, a
decrease in the par value of the Common Stock to $.01 per share
and a change of the name of Struthers to WINCOM Corp. Struthers
will not solicit proxies from its stockholders for approval of the
foregoing changes in its Certificate of Incorporation but will
provide them with an information statement in accordance with the
Exchange Act.
Under an agreement, dated September 3, 1996, among the former
stockholders of WINCOM (the "Shareholders' Agreement"), upon the
effectiveness of the changes in the Certificate of Incorporation
of Struthers described above, WINCO will have the right to vote
and dispose of approximately 52,687,830 post-split Shares or
approximately 72% of the outstanding Common Stock and the other
former stockholders of WINCOM, including certain directors of
WINCO and the Trustee, individually will have the right to vote
approximately 6,170,783 post-split shares or approximately 18% of
the outstanding Common Stock, although the Shareholders' Agreement
restricts the right of each of the former stockholders of WINCOM,
other than WINCO, to dispose of their Shares for a period of five
years. Under that Agreement, 10% of each stockholders' Shares may
be disposed 90 days after delivery of the Remaining Shares; 10%
after the first anniversary date of such delivery; 10% after the
second anniversary date; 20% after the third anniversary date; 25%
after the fourth anniversary date; and 25% after the fifth
anniversary date. WINCO has the right to repurchase any Shares as
to which such restrictions have not lapsed, if the owner violates
the non-competition provisions of the Shareholders' Agreement.
Thus, WINCO may be deemed to share dispositive power over the
Shares owned by the other former stockholders of WINCOM. The
Trustee has a right to acquire 238,500 post-split shares under the
Shareholders' Agreement.
The Filing Persons engaged in no other transactions in Common
Stock during the 60 days prior to the filing of this statement.
The Trust holds 100% of the issued and outstanding common stock of
WINCO. The Trustee has the sole power to vote and to dispose of
the WINCO Common Stock held by the Trust. By reason of the
foregoing the WINCO, the Trust and the Trustee may be deemed to
share the power to vote and to dispose of the Shares.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
See responses to Items 4 and 5.
Item 7. Material to Be Filed as Exhibits
a. Agreement and Plan of Reorganization by and Among Struthers
Industries, Inc., WINCO Corp. and the Stockholders of WINCOM Corp.
b. Joint Filing Agreement.
c. Shareholders' Agreement
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
WINCO Corp.
September 16, 1996 by/s/William A. Shea, Jr.
Signature
William A. Shea, Jr., Director
Name/Title
Northwest Asian Territory Family Trust III
September 11, 1996 by /s/ J. A. Gommel
Signature
J. A. Gommel
Trustee
September 11, 1996 /s/ J. A. Gommel
Signature
J. A. Gommel
Name
<PAGE>
Schedule A to Statement on Schedule 13D
Filed to Report Event of
September 5, 1996
Information in Response to Item 2 through 6 of Schedule 13D with respect
to Executive Officers and Directors of WINCO Corp. other than Filing Persons.
[to be filed by amendment]
Exhibit 7.a
AGREEMENT AND PLAN OF REORGANIZATION BY AND AMONG
STRUTHERS INDUSTRIES, INC., WINCOM CORP.
AND WINCO CORP.
This Agreement and Plan of Reorganization ("Agreement") is entered into
this 5th of September 1996, by and among STRUTHERS INDUSTRIES, INC., a Delaware
corporation (hereinafter referred to as "Buyer"), WINCOM CORP., a Delaware
corporation (hereinafter referred to as "WINCOM"), and WINCO CORP., a Delawa
re corporation, (hereinafter referred to as "Seller"), being the sole record
common shareholder of WINCOM.
WHEREAS, as a result of changed business circumstances since the Agreement and
Plan of Merger was executed by WINCOM and Buyer on June 14, 1996, the parties
hereto have determined that it would be in the best interests of their
companies and respective stockholders to enter into this Agreement, which
replaces and supersedes such Agreement and Plan of Merger, and to withdraw
from consideration and review by the SEC the Preliminary Proxy Statement filed
by Buyer with the SEC on June 14, 1996, which reflected the proposed merger
between WINCOM and Buyer; and
WHEREAS, it is necessary to close the transactions contemplated in this
Agreement by September 5, 1996, due to the probable adverse financial and
other consequences to Buyer, arising out of the settlement agreement with the
claimants in two class action lawsuits filed against Buyer, which consequences
will likely occur if the Agreement does not close by that date; and
WHEREAS, the parties acknowledge that to accomplish the reorganization
contemplated in this Agreement, following all requisite legal compliance and
governmental approvals, two of the members of the Board of Directors of Buyer
will be replaced with representatives of WINCO and that the Certificate of
Incorporation of Buyer will need to be amended to effect the transactions
contemplated in this Agreement; and
WHEREAS, Seller is the owner of record of Seventy-Four Million Thirty-One
Thousand Nine Hundred Ninety-Two (74,031,992) shares of the issued and
outstanding shares of common stock of WINCOM, representing one hundred percent
(100%) of the issued and outstanding shares of common stock of WINCOM (the
"Common Shares"); and
WHEREAS, Seller desires to sell all of the Common Shares to Buyer, and Buyer
desires to purchase the Common Shares, upon the terms and conditions set forth
herein; and
WHEREAS, the parties intend that the exchange of Common Shares for shares of
Buyer's common stock, as contemplated herein, qualify as a tax free
transaction under Section 351 of the Internal Revenue Code;
WHEREAS, following the issuance of all shares of common stock of Buyer to
Seller contemplated in this Agreement, Buyer will make a tax free exchange
offer for all outstanding preferred shares of WINCOM, with the purchase price
and type of securities to be offered to be determined by Buyer at a later
date.
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I.
SALE AND PURCHASE OF THE SHARES
1. Sale and Purchase. Subject to the terms and conditions hereof, at
the Closing (as defined in paragraph 1.2 below), Seller agrees to sell,
assign, transfer, convey and deliver to Buyer, and Buyer agrees to purchase
from Seller, the Common Shares.
2. Closing. The purchase shall be consummated at a closing
("Closing") to take place at 11:00 o'clock a.m., at the offices of Buyer on or
about September 5, 1996 ("Closing Date").
3. Purchase Price. The purchase price ("Purchase Price") for the
Shares shall be One Hundred Thirty-Eight Million Four Hundred Eighty Thousand
Eight Hundred Fifty-Six (138,480,856) shares of common stock of Buyer (prior
to the .425 for one reverse split to be effected by Buyer upon the filing of
its Restated Certificate of Incorporation) delivered as follows:
(a) At the Closing, Buyer shall issue to Seller Thirteen Million
(13,000,000) shares of Buyer's common stock (pre-reverse split) which
upon issuance will represent approximately the remaining authorized, but
unissued shares of common stock available for issuance by Buyer; and
(b) At the Closing, Seller shall deliver to Buyer a proxy in the
form as attached hereto as Exhibit "A" authorizing G. David Gordon,
Acting President of Buyer to vote Seller's shares of common stock of
Buyer in favor of the proposed amendment to Buyer's Certificate of
Incorporation necessitated by this transaction.
(c) One day after Buyer receives its Restated Certificate of
Incorporation from the Secretary of State of the State of Delaware,
which will, among other actions, increase Buyer's authorized shares of
common stock (post-reverse split) to Ninety Eight Million (98,000,000),
Buyer shall deliver to Seller the remaining One Hundred Twenty-Five
Million Four Hundred Ninety Thousand Eight Hundred Fifty-Six
(125,490,856) shares (pre-reverse split) of common stock (or Fifty Three
Million Three Hundred Thirty Three Thousand Six Hundred Thirteen
(53,333,613) shares (post-reverse split)) in two certificates in the
respective amounts of Forty Seven Million One Hundred Sixty Two Thousand
Eight Hundred Thirty (47,162,830) shares (post-reverse split) and Six
Million One Hundred Seventy Thousand Seven Hundred Eighty-Three
(6,170,783) shares (post-reverse split). If for any reason whatsoever,
the present Board of Directors of Buyer has not been replaced by
representatives of Seller by March 30, 1997, Buyer shall deliver the
equivalent of the remaining One Hundred Twenty-Five Million Four Hundred
Ninety Thousand Eight Hundred Fifty-Six (125,490,856) shares (pre-
reverse split) of common stock to Seller no later than March 31, 1997,
in a manner that preserves the tax-free nature of the transaction
contemplated by this Agreement.
1.4 Additional Agreements. At the Closing, the indicated parties
shall execute and deliver the following additional agreements in substantially
the form attached hereto:
(a) Letters of resignation from two of the three present members of
the Board of Directors of Buyer and from G. David Gordon as Acting
President and Secretary of Buyer, copies of which are attached hereto as
Exhibit "A-1". The remaining member of the Board of Directors of Buyer,
G. David Gordon, shall appoint as their successors two representatives
of Seller to the Board of Directors of Buyer, in accordance with the
Bylaws of Buyer. Such letters shall be effective only in compliance
with applicable securities laws and regulations of the Securities and
Exchange Commission.
(b) Stock certificates representing all of the Common Shares, duly
endorsed to Buyer and in blank or assignments separate from the
certificates, transferring the Common Shares from Seller to Buyer,
copies of which are attached hereto as Exhibit "B".
1.5 Appraisal Rights. Although not required under Delaware law, after
Closing, at the time of its Annual Meeting of Shareholders, in the exercise of
an abundance of good faith, Buyer will provide appraisal rights comparable to
Section 262 of the Delaware General Corporation Law to its shareholders as if
WINCOM were being merged with and into Buyer. Although the shareholders of
Buyer of record as of the execution of this Agreement will not be required to
vote upon this Agreement, they will be given the opportunity at the first
Annual Meeting following the execution of this Agreement to elect to have the
value of their common stock appraised and to receive a cash payment equal to
the appraised value of each share of common stock of Buyer. The procedures
for electing such appraisal rights shall be contained in a document to be
prepared and provided to shareholders of Buyer after the Closing and before
the Annual Meeting.
1.6 Basic Agreements and Transactions Defined. This Agreement and
other agreements listed in paragraph 1.4, are sometimes referred to as the
"Basic Agreements". The transactions contemplated by the Basic Agreements are
sometimes referred to as the "Transactions".
II.
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of WINCOM. WINCOM represents and
warrants to Buyer, to the best of its knowledge and belief, as follows:
(a) Organization. WINCOM is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware. WINCOM has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business.
WINCOM is duly qualified and in good standing as a foreign corporation
in each jurisdiction where its ownership of property or operation of its
business requires qualification, except where the failure to be
qualified would not have a material adverse effect on WINCOM.
(b) Capital Structure. The authorized capital stock of WINCOM
consists of Seventy-Five Million (75,000,000) shares of common stock,
$.001 par value (the "WINCOM Common Stock") and Ten Million Seven
Hundred (10,700,000) shares of preferred stock, $.001 par value (the
"WINCOM Preferred Stock"), of which (i) Nine Hundred Thousand (900,000)
shares are designated Series "A" Cumulative Convertible Preferred Stock
(the "WINCOM Series A Preferred Stock"); (ii) One Million Two Hundred
Thousand (1,200,000) shares are designated Series "B" Cumulative
Convertible Preferred Stock (the "WINCOM Series B Preferred Stock");
(iii) Six Million (6,000,000) shares are designated Series "C"
Cumulative Convertible Preferred Stock (the "WINCOM Series C Preferred
Stock"); and (iv) Two Million Three Hundred Eighty Thousand Nine Hundred
Fifty-Two (2,380,952) shares are designated Series "D" Convertible
Cumulative Preferred Stock (the "WINCOM Series D Preferred Stock"). At
the close of business on May 31, 1996, Seventy-Four Million Thirty-Five
Thousand Nine Hundred Ninety-Two (74,035,992) shares of WINCOM Common
Stock, Nine Hundred Thousand (900,000) shares of WINCOM Series A
Preferred Stock, One Million Two Hundred Thousand (1,200,000) shares of
WINCOM Series B Preferred Stock, Six Million (6,000,000) shares of
WINCOM Series C Preferred Stock and no shares of WINCOM Series D
Preferred Stock were issued and outstanding. All shares of WINCOM
Preferred Stock enjoy preferences over WINCOM's with respect to
liquidation of assets of WINCOM. Except as set forth above and except
for commitments by WINCOM to issue up to Two Million Three Hundred
Eighty Thousand Nine Hundred Fifty-Two (2,380,952) shares of WINCOM
Series D Preferred Stock, at the close of business on May 31, 1996 no
shares of capital stock or other voting securities of WINCOM were
issued, reserved for issuance or outstanding. All outstanding shares of
capital stock of WINCOM were, when issued, duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive
rights. There are no bonds, debentures, notes or other indebtedness of
WINCOM having the right to vote (or convertible into, or exchangeable
for, securities having the right to vote) on any matters on which
stockholders of WINCOM may vote. Except as set forth above, as of the
date of execution of this Agreement, there are no outstanding
securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which WINCOM is a party or
by which WINCOM is bound or obligated, to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital
stock or other voting securities of WINCOM thereby obligating WINCOM to
either issue, deliver or sell, or cause to be issued, delivered, or sold
such security, option, warrant, call or right. Except as set forth on
Exhibit "C", there are no outstanding contractual obligations of WINCOM
to repurchase, redeem or otherwise acquire any shares of its capital
stock.
(c) Authority. WINCOM has full power and lawful authority to
execute and deliver the Basic Agreements and to consummate and perform
the Transactions contemplated thereby. The Basic Agreements constitute
(or shall, upon execution, constitute) valid and legally binding
obligations upon WINCOM, enforceable in accordance with their terms.
Neither the execution and delivery of the Basic Agreements by WINCOM,
nor the consummation and performance of the Transactions contemplated
thereby, conflicts with, requires the consent, waiver or approval of,
results in a breach of or default under, or gives to others any interest
or right of termination, cancellation or acceleration in or with respect
to, any material agreement by which WINCOM is a party or by which WINCOM
or any of its material properties or assets are bound or affected.
(d) Company Financial Statements. WINCOM's Financial Statements
as of March 31, 1996 reflecting total assets of approximately One
Hundred Twenty-Four Million Six Hundred Fifty-Two Thousand Five Hundred
Sixty-Three Dollars ($124,652,563) and Thirty-Six Million Seven Hundred
Thirty- Four Thousand Sixty-Five dollars ($36,734,065) in total
liabilities, were prepared in accordance with generally accepted
accounting principles applied on a basis consistent with prior periods
and fairly present the financial position of WINCOM as of March 31,
1996. WINCOM's Financial Statements as of March 31, 1996 were reviewed
but not audited by BDO Seidman, L.L.P.
(e) No Undisclosed Liabilities. Except as set forth in
WINCOM's Financial Statements previously delivered to Buyer and as set
forth on Exhibit "D" attached hereto, WINCOM is not aware of any
material liabilities for which WINCOM is liable or will become liable in
the future.
(f) Taxes. WINCOM has filed all federal, state, local tax and
other returns and reports which were required to be filed with respect
to all taxes, levies, imposts, duties, licenses and registration fees,
charges or withholdings of every nature whatsoever ("Taxes"), and there
exists a substantial basis in law and fact for all positions taken in
such reports. No waivers of periods of limitation are in effect with
respect to any taxes arising from and attributable to the ownership of
properties or operations of the business of WINCOM.
(g) Properties. WINCOM has good and marketable title to all its
material personal property, equipment, processes, patents, copyrights,
trademarks, franchises, licenses and other material properties and
assets (except for items leased or licensed to WINCOM), including all
property reflected in WINCOM's Financial Statements (except for assets
reflected therein which have been sold in the normal course of its
business where the proceeds from such sale or other disposition have
been properly accounted for in the financial statements of WINCOM), in
each case free and clear of all material liens, claims and encumbrances
of every kind and character, except as set forth in Exhibit "E". The
assets and properties owned, operated or leased by WINCOM and used in
its business are in good operating condition, reasonable wear and tear
excepted, and suitable for the uses for which intended.
(h) Books and Records. The books and records of WINCOM are
complete and correct in all material respects, have been maintained in
accordance with good business practices and accurately reflect, in all
material respects, the financial condition and results of operations of
WINCOM as set forth in WINCOM's Financial Statements.
(i) Insurance. Exhibit "F" contains an accurate and complete
list and brief description of all performance bonds and policies of
insurance, including fire and extended coverage, general liability,
workers compensation, products liability, property, and other forms of
insurance or indemnity bonds held by WINCOM. All policies of insurance
are: (1) in full force and effect; (2) are sufficient for compliance by
WINCOM with all requirements of law and of all agreements and
instruments to which WINCOM is a party; (3) are valid, outstanding and
enforceable; (4) provide adequate insurance coverage for the assets,
business and operations of WINCOM in amounts at least equal to customary
coverage in WINCOM's industry; (5) will remain in full force and effect
through the Closing; and (6) will not be affected by, and will not
terminate or lapse by reason of, the transactions contemplated by this
Agreement.
(j) Transactions with Certain Persons. Except as disclosed in
Exhibit "G", WINCOM has no outstanding material agreement,
understanding, contract, lease, commitment, loan or other material
arrangement with any officer, director or shareholder of WINCOM or any
relative of any such person, or any corporation or other entity in which
such person owns a beneficial interest.
(k) Material Contracts. Except as set forth in Exhibit "H",
WINCOM has no purchase, sale, commitment, or other contract, the breach
or termination of which would have a materially adverse effect on the
business, financial condition, results of operations, assets,
liabilities, or prospects of WINCOM.
(l) Employment Matters. Exhibit "I" contains a list of all
WINCOM's officers, their base salaries, accrued vacation pay, sick pay,
and severance pay through June 30, 1996. Except as set forth in Exhibit
"J", WINCOM is not a party to any employment agreement, or any pension,
profit sharing, retirement or other deferred compensation plan or
agreement. WINCOM has not incurred any unfunded deficiency or liability
within the meaning of the Employee Retirement Income Security Act of
1974 ("ERISA"), has not incurred any liability to the Pension Benefit
Guaranty Corporation established under ERISA in connection with any
employee benefit plan and has no outstanding obligations or liabilities
under any employee benefit plan. WINCOM has not been a party to a
"prohibited transaction," as that term is defined in relationship to
matters relating to ERISA such that WINCOM would be subject to any tax
or penalty. There is no collective bargaining agreement or negotiations
therefor, labor grievance or arbitration proceeding against WINCOM
pending or threatened, and there are no union organizing activities
currently pending or threatened against or involving WINCOM.
(m) Authorizations. WINCOM as no licenses, permits, approvals
and other authorizations from any governmental agencies and any other
entities that are materially necessary for the conduct of its business,
except as set forth in Exhibit "K" which contains a list of all material
licenses, permits, approvals, and other material authorizations, as well
as a list of all material copyrights, patents, trademarks, trade names,
service marks, franchises, licenses and other material permits, each of
which is valid and in full force and effect.
(n) No Powers of Attorney. WINCOM has no powers of attorney or
similar authorizations outstanding.
(o) Compliance with Laws and Regulations. WINCOM is not in
violation of any federal, state, local or other law, ordinance, rule or
regulation applicable to its business. Both WINCOM and the Buyer have
been apprised by the staff of the Securities and Exchange Commission
("SEC") that the staff has initiated an informal inquiry into certain
matters arising out of the review of a Proxy Statement filed by the
Buyer, reflecting a proposed merger between WINCOM and the Buyer. Other
than the comments made by the staff in the context of presenting its
concerns about certain statements that were made to investors in a May
1, 1996 letter to shareholders by representatives of WINCOM and a May
29, 1996 teleconference in which a representative of WINCOM
participated, neither WINCOM nor the Buyer have been informed as to the
specific matters under review by the staff of the SEC. Otherwise,
WINCOM has not received an actual or threatened complaint, citation or
notice of violation or investigation from any governmental authority, in
each case where such violation would have an adverse effect on WINCOM.
(p) Compliance with Environmental Laws. WINCOM is in
compliance with all applicable pollution control and environmental laws,
rules and regulations in all material respects. WINCOM has no licenses,
permits and other authorizations held by WINCOM relative to compliance
with environmental laws, rules and regulations.
(q) No Litigation. There are no actions, suits, claims,
complaints or proceedings pending against WINCOM, at law or in equity.
Except as noted above in paragraph (o) above, WINCOM is unaware of any
actions, suits, claims, or complaints or proceedings before or by any
governmental department, commission, court, board, bureau, agency or
instrumentality. There are no facts which would provide a valid basis
for any such action, suit or proceeding, either by a government agency
or by private parties which, if determined adversely to WINCOM, would
have a material adverse effect on WINCOM. Additionally, there are no
orders, judgments or decrees of any governmental authority outstanding
which specifically apply to WINCOM or any of its assets.
(r) Validity. All material contracts, agreements, leases and
licenses to which WINCOM is a party or by which it or any of its
material properties or assets are bound or affected, are valid and in
full force and effect; and no breach or default exists, or upon the
giving of notice or lapse of time, or both, would exist, on the part of
WINCOM or by any other party thereto.
(s) No Adverse Changes. WINCOM knows of no actual or threatened
developments that have occurred since June 30, 1996 that have the
potential to materially adversely impact upon the financial condition,
results of operations, amount of assets, amount of liabilities, or
prospects of WINCOM.
(t) Fees. All negotiations relating to the Basic Agreements and
the Transactions have been conducted by WINCOM in such a manner as not
to give rise to any valid claim for any finder's fees, brokerage
commission, financial advisory fee or related expense or other like
payment for which WINCOM or Buyer are or may be liable.
(u) Full Disclosure. WINCOM has provided to Buyer all
information relating to the financial condition, results of operations,
amount of assets, amount of liabilities, or prospects of WINCOM.
Attached hereto as Exhibit "L" is an Abstract of Material Contracts,
Agreements and Memorandum of Understanding, which reflects all
contracts, agreements and memorandum of understanding entered into by
WINCOM between February 10, 1996 and August 20, 1996.
(v) Conversion of Preferred Stock after Closing. With respect
to WINCOM's Preferred stock, WINCOM has informed Buyer that after the
Closing, Buyer will have the obligation to convert the shares of Series
A, Series B, Series C and Series D of WINCOM's Preferred Stockholders
into shares of Buyer's common stock as follows:
(i) Series A Preferred shareholders will receive two (2) shares of
WINCOM common stock for each share of Series A stock owned; and (ii)
Series B Preferred shareholders will receive one and one-half (1.50)
shares of WINCOM common stock for each share of Series B stock owned;
and (iii) Series C Preferred shareholders will receive two (2) shares
of WINCOM common stock for each share of Series C stock owned; and (iv)
Series D Preferred shareholders will receive one and one-half (1.50)
shares of WINCOM common stock for each share of Series D stock owned;
2.2 Representations and Warranties of Seller. Seller represents and
warrants to Buyer to the best of its knowledge and belief, with respect to the
Shares owned by Seller, as follows:
(a) Organization. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware. Seller has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business.
Seller is qualified and in good standing as a foreign corporation in
each jurisdiction where its ownership of property or operation of its
business requires qualification, except where the failure to be
qualified would not have a material adverse effect on Seller.
(b) Authority. Seller has full power and lawful authority to
execute and deliver the Basic Agreements and to consummate and perform
the Transactions contemplated hereby. The Basic Agreements constitute
(or shall, upon execution, constitute) valid and legally binding
obligations upon Seller, enforceable in accordance with their terms.
Neither the execution and delivery of the Basic Agreements by Seller,
nor the consummation and performance of the Transactions contemplated
thereby, conflicts with, requires the consent, waiver or approval of,
results in a breach of, or default under, or gives to others any
interest or right of termination, cancellation or acceleration in or
with respect to, any material agreement by which Seller is a party or by
which a Seller or any of its material properties, or assets are bound or
affected.
(c) Title to the Shares. At the Closing, Seller shall own of
record and beneficially the Common Shares of WINCOM, free and clear of
all liens, encumbrances, pledges, claims, options, charges and
assessments of any nature whatsoever, with full right and lawful
authority to transfer the Common Shares to Buyer. Except for certain
rights of Seller which shall be waived at Closing, no person has any
preemptive rights or rights of first refusal with respect to any of the
Shares. There exists no voting agreement, voting trust, or outstanding
proxy with respect to any of the Common Shares, except for that certain
Shareholders' Agreement dated as of September 5, 1996 by and among
Seller, WINCOM and the certain beneficial stockholders of WINCOM. There
are no outstanding rights, options, warrants, calls, commitments, or any
other agreements of any character, whether oral or written, with respect
to the Common Shares.
(d) Investment Intent. Seller is acquiring the shares of Buyer
for its own account, for investment purposes only, and not with a view
to the sale or distribution of any part thereof, and Seller has no
present intention of selling, granting participation in, or otherwise
distributing the same. Seller understands the specific risks related to
an investment in the shares of Buyer, especially as it relates to the
financial performance of Buyer. Seller has no present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness or
commitment providing for the disposition thereof, except with respect to
that certain Shareholders Agreement dated as of September 5, 1996
discussed above in subsection (c). Seller will hold Buyer's shares of
common stock in a manner commensurate with a private offering by Buyer
as that term is defined by the Securities and Exchange Commission.
Seller will accept an endorsement on the common stock certificates
received from Buyer indicating that such stock is not to be transferred
for a period of two years from the Closing Date without being registered
under applicable provisions of the federal and California securities
laws.
2.3 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller, to the best of its knowledge and belief, as follows:
(a) Organization. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the state of
Delaware. Buyer has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business. Buyer is
duly qualified and in good standing as a foreign corporation in each
jurisdiction where its ownership of property or operation of its
business requires qualification, except where the failure to be
qualified would not have a material adverse effect on WINCOM.
(b) Authorized Capitalization. The authorized capitalization of
Buyer consists of Twenty-Five Million (25,000,000) shares of .10 par
value Common Stock, of which Eleven Million Seven Hundred Twenty Two
Thousand, Four Hundred Sixty Seven (11,722,467) shares have been issued
and are outstanding. In addition, Buyer has the obligation pursuant to
the Settlement Agreement to issue to an escrow agent a total of two
million (2,000,000) shares of its Common Stock (pre-reverse split), in
order to secure its obligations under that certain Stipulation and
Agreement of Compromise and Settlement entered into among Buyer and
certain class-action plaintiffs on June 27, 1996, a copy of which is
attached hereto as Exhibit "M" (the "Settlement Agreement"). Buyer's
Shares have been duly authorized, validly issued, are fully paid and
nonassessable with no personal liability attaching to the ownership
thereof and were offered, issued, sold and delivered by Buyer in
compliance with all applicable state and federal laws. Except as set
forth in Exhibit "N" attached hereto, Buyer is not a party to and is not
bound by any agreement, contract, arrangement or understanding, whether
oral or written, giving any person or entity any interest in, or any
right to share, participate in or receive any portion of, Buyer's
income, profits or assets, or obligating Buyer to distribute any portion
of its income, profits or assets.
(c) Authority. Buyer has full power and lawful authority to
execute and deliver the Basic Agreements and to consummate and perform
the Transactions contemplated thereby. The Basic Agreements constitute
(or shall, upon execution, constitute) valid and legally binding
obligations upon Buyer, enforceable in accordance with their terms.
Neither the execution and delivery of the Basic Agreements by Buyer, nor
the consummation and performance of the Transactions contemplated
thereby, conflicts with, requires the consent, waiver or approval of,
results in a breach of or default under, or gives to others any interest
or right of termination, cancellation or acceleration in or with respect
to, any material agreement by which Buyer is a party or by which Buyer
or any of its material properties or assets are bound or affected.
(d) Investment Intent. Buyer is acquiring the Shares for its
own account, for investment purposes only, and not with a view to the
sale or distribution of any part thereof, and Buyer has no present
intention of selling, granting participation in, or otherwise
distributing the same. Buyer understands the specific risks related to
an investment in the Shares, especially as it relates to the financial
performance of WINCOM.
(e) Buyer's Financial Statements. Buyer's Financial Statements
as presented on SEC Form 10-QSB for the period ended June 30, 1996, are
complete, were prepared in accordance with generally accepted accounting
principles applied on a basis consistent with prior periods and fairly
present the financial position of Buyer as of June 30, 1996.
(f) No Undisclosed Liabilities. Except as set forth in Buyer's
Financial Statements previously delivered to WINCOM, which includes a
detailed discussion of the Settlement Agreement, Buyer is not aware of
any material liabilities for which it is liable or will become liable in
the future.
(g) Material Contracts. Buyer has no purchase, sale,
commitment, or other contract, the breach or termination of which would
have a materially adverse effect on the business, financial condition,
results of operations, assets, liabilities, or prospects of Buyer.
Buyer has provided to Seller all information relating to the financial
condition, results of operations, amount of assets, amount of
liabilities, or future prospects of Buyer. Attached hereto as Exhibit
"O" is an Abstract of Material Contracts and Agreements, which reflects
all contracts or agreements entered into by Buyer subsequent to June 30,
1996
(h) No Litigation. Except as set forth in Buyer's Financial
Statements which includes a detailed discussion of the Settlement
Agreement, there are no actions, suits, claims, complaints or
proceedings pending against Buyer, at law or in equity, or before or by
any governmental department, commission, court, board, bureau, agency or
instrumentality; and there are no facts which would provide a valid
basis for any such action, suit or proceeding, which, if determined
adversely to WINCOM, would have a material adverse effect on WINCOM.
(i) Employment Matters. Exhibit "P" contains a list of all
officers, their base salaries, accrued vacation pay, sick pay, and
severance pay through June 30, 1996. Except as set forth in Exhibit
"Q", Buyer is not a party to any employment agreement, or any pension,
profit sharing, retirement or other deferred compensation plan or
agreement. Buyer has not incurred any unfunded deficiency or liability
within the meaning of the Employee Retirement Income Security Act of
1974 ("ERISA"), has not incurred any liability to the Pension Benefit
Guaranty Corporation established under ERISA in connection with any
employee benefit plan and has no outstanding obligations or liabilities
under any employee benefit plan. Buyer has not been a party to a
"prohibited transaction", which would subject Buyer to any tax or
penalty. There is no collective bargaining agreement or negotiations
therefor, labor grievance or arbitration proceeding against Buyer
pending, and to the knowledge of Buyer, there are no union organizing
activities pending against or involving Buyer.
(j) Compliance with Laws and Regulations. Buyer is not in
violation of any federal, state, local or other law, ordinance, rule or
regulation applicable to its business, and has not received any actual
or threatened complaint, citation or notice of violation or
investigation from any governmental authority, in each case where such
violation would have a material adverse effect on WINCOM, except with
respect to an informal inquiry by the SEC into certain statements made
by parties unrelated to Buyer orally and in writing concerning the SEC
review process of Buyer's Preliminary Proxy Statement filed with the SEC
on March 28, 1996. In addition, to the best of its knowledge, Buyer is
not aware of any rules or regulations of the SEC which would require the
SEC's approval or review of this Agreement prior to its execution by the
parties hereto.
(k) Validity. All material contracts, agreements, leases and
licenses to which Buyer is a party or by which it or any of its material
properties or assets are bound or affected, are valid and in full force
and effect; and no breach or default exists, or upon the giving of
notice or lapse of time, or both, would exist, on the part of Buyer or
by any other party thereto, including, but not limited to the Settlement
Agreement.
(l) No Adverse Changes. Buyer knows of no actual or threatened
developments that have occurred since June 30, 1996 that have the
potential to materially adversely impact upon the financial condition,
results of operations, amount of assets, amount of liabilities, or
prospects of Buyer.
(m) Application to Nasdaq. Pursuant to the terms of the
respective agreements with Proton Global Asset Management Limited and
GFL Advantage Fund (the "Investors"), Buyer has applied to the Nasdaq
Stock Market, requesting that certain restricted shares of the Buyer
issuable upon conversion of certain a promissory note to be issued to
the Investors, be listed, together with Buyer's outstanding share of
common stock, with the Nasdaq SmallCap Market or Nasdaq National Market
exchanges.
(n) Balance Sheet. A true, correct and complete balance sheet
of Buyer as of August 31, 1996, prepared in accordance with generally
accepted accounting principles, is attached hereto. This balance sheet
is the most recent balance sheet of Buyer prepared on a routine basis by
management and accurately and fairly presents the financial condition of
Buyer as of its date. Management of Buyer routinely prepares balance
sheets on a monthly basis. The total assets of Buyer reflected therein
are less than $10 million and no filing with the Federal Trade
Commission under the Hart-Scott-Rodino Antitrust Improvement Act of 1976
is required.
III.
COVENANTS
3.1 Covenants of WINCOM. WINCOM covenants and agrees that from the
date hereof to the Closing, it will perform the following acts:
(a) Ordinary Course of Business. WINCOM will operate its
business only in the ordinary course of business and will use its best
efforts to preserve WINCOM's business, organization, goodwill and
relationships with persons having business dealings with WINCOM.
(b) Maintain Properties. WINCOM will maintain all of its
properties in good working order, repair and condition (reasonable wear
and use excepted) and will take all steps reasonably necessary to
maintain in full force and effect its patents, trademarks, service
marks, trade names, brand names, copyrights and other intangible assets.
(c) Compensation. WINCOM will not (1) enter into or alter any
employment agreements; (2) grant any increase in compensation other than
normal merit increases consistent with WINCOM's general prevailing
practices to any officer or employee; or (3) enter into or alter any
labor or collective bargaining agreement or any bonus or other employee
fringe benefit.
(d) No Indebtedness. WINCOM will not create, incur, assume,
guarantee or otherwise become liable with respect to any obligation for
borrowed money, indebtedness, capitalized lease or similar obligation,
except in the ordinary course of business consistent with past
practices, where the entire net proceeds thereof are deposited with and
used by and in connection with the business of WINCOM.
(e) Maintain Books. WINCOM will maintain its books, accounts
and records in the usual, regular ordinary and sound business manner and
in accordance with generally accepted accounting principles applied on a
basis consistent with past practices.
(f) No Amendments. WINCOM will not amend its corporate charter
or bylaws (or similar documents) without the prior written consent of
Buyer and WINCOM will maintain its corporate existence, licenses,
permits, powers and rights in full force and effect.
(g) Taxes and Accounting Matters. WINCOM will file when due all
federal, state and local tax returns and reports which shall be accurate
and complete, including but not limited to income, franchise, excise, ad
valorem, and other taxes with respect to its business and properties,
and to pay as they become due all taxes or assessments, except for taxes
for which adequate reserves are established and which are being
contested in good faith by appropriate proceedings. WINCOM will not
change its accounting methods or practices or any depreciation,
amortization or inventory valuation policies or practices.
(h) No Disposition or Encumbrance. Except in the ordinary
course of business consistent with past practices, WINCOM will not (1)
dispose of or encumber any of its properties and assets, (2) discharge
or satisfy any lien or encumbrance or pay any obligation or liability
(fixed or contingent) except for previously scheduled repayment of debt,
(3) cancel or compromise any debt or claim, (4) transfer or grant any
rights under any concessions, leases, licenses, agreements, patents,
inventions, proprietary technology or process, trademarks, service marks
or copyrights, or with respect to any know-how, or (5) enter into or
modify in any material respect or terminate any existing license, lease,
or contract.
(i) Insurance. WINCOM will maintain in effect all its current
insurance policies.
(j) No Securities Issuances. WINCOM will not issue any shares
of any class of capital stock, or enter into any contract, option,
warrant or right calling for the issuance of any such shares of capital
stock, or create or issue any securities convertible into any securities
of WINCOM.
(k) No Dividends. WINCOM will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
(l) Contracts. WINCOM will not enter into or assume any
contract, agreement, obligation, lease, license, or commitment except in
the ordinary course of business consistent with past practices or as
contemplated by this Agreement.
(m) No Breach. WINCOM will not do any act or omit to do any act
which would cause a breach of any of its material contracts, commitments
or obligations.
(n) Due Compliance. WINCOM will comply with all laws,
regulations, rules and ordinances applicable to it and to the conduct of
its business, the violation of which would have a material adverse
effect on WINCOM.
(o) No Waivers of Rights. WINCOM will not amend, terminate or
waive any material right whether or not in the ordinary course of
business.
(p) Capital Commitments. WINCOM will not make or commit to make
any material capital expenditure, capital addition or capital
improvement.
(q) No Related Party Transactions. WINCOM will not make any
loans to, or enter into any transaction, agreement, arrangement or
understanding of any material nature with any of its officers, directors
or employees.
(r) Notice of Change. WINCOM will promptly advise Buyer in
writing of any material adverse change, or the occurrence of any event
which involves any substantial possibility of a material adverse change,
in its business, financial condition, results of operations, assets,
liabilities or prospects.
(s) Consents. WINCOM will use its best good faith efforts to
obtain the consent or approval of each person or entity whose consent or
approval is required for the consummation of the Transactions
contemplated hereby and to do all things necessary to consummate the
Transactions contemplated by the Basic Agreements.
3.2 Covenants of Buyer. Buyer covenants and agrees to perform the
following acts until (except in the case of subsection (h) which will remain
an ongoing obligation of Buyer) representatives of WINCO constitute a majority
of the Board of Directors of Buyer:
(a) No Indebtedness. Buyer will not create, incur, assume,
guarantee or otherwise become liable with respect to any obligation for
borrowed money, indebtedness, capitalized lease or similar obligation,
except in the ordinary course of business consistent with past
practices, where the entire net proceeds thereof are deposited with and
used by and in connection with the business of Buyer and except for the
Convertible Notes issued by the Buyer to each of GFL Advantage Fund
Limited ("GFL") in an aggregate principal amount of $4,000,000 and
Proton Global Asset Management Limited ("Proton") in an aggregate
principal amount of $2,000,000 (the two convertible notes are
hereinafter referred to as the "Notes").
(b) No Amendments. Buyer will not amend its corporate charter
or bylaws (or similar documents) without the prior consent of WINCOM
(except as described above in Section 1.3(b) and Buyer will maintain its
corporate existence, licenses, permits, powers and rights in full force
and effect.
(c) No Securities Issuances. Buyer, without the prior consent
of Seller, will not issue any shares of any class of capital stock, or
enter into any contract, option, warrant or right calling for the
issuance of any such shares of capital stock, or create or issue any
securities convertible into any securities of Buyer, except for the
transactions contemplated herein and except in connection with any
conversion of the Notes..
(d) No Dividends. Buyer will not declare, set aside or pay any
dividends or other distributions of any nature whatsoever.
(e) Contracts. Buyer will not enter into or assume any
contract, agreement, obligation, lease, license, or commitment except in
the ordinary course of business consistent with past practices or as
contemplated by this Agreement or to amend those certain Note Purchase
Agreements dated as of June 28, 1996 between the Company and each of GFL
and Proton.
(f) Capital Commitments. Buyer will not make or commit to make
any material capital expenditure, capital addition or capital
improvement.
(g) Notice of Change. Buyer will promptly advise WINCOM in
writing of any material adverse change, or the occurrence of any event
which involves any substantial possibility of a material adverse change,
in its business, financial condition, results of operations, assets,
liabilities or prospects.
(h) Consents. Buyer will use its best good faith efforts to
obtain the consent or approval of each person or entity whose consent or
approval is required for the consummation of the Transactions
contemplated hereby, including the exchange offer referred to in the
recitals hereof, and to do all things necessary to consummate the
Transactions contemplated by the Basic Agreements.
(i) Board of WINCOM. Buyer shall not change the members of the
board of directors of WINCOM without the consent of Seller.
IV.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF BUYER TO CLOSE
The obligation of Buyer to close the Transactions contemplated hereby is
subject to the fulfillment by WINCOM and Seller prior to Closing of each of
the following conditions, which may be waived in whole or in part by Buyer:
4.1 Compliance with Representations, Warranties and Covenants. The
representations and warranties of WINCOM and Seller contained in this
Agreement shall have been true and correct when made and shall be true and
correct as of the Closing with the same force and effect as if made at the
Closing. WINCOM and Seller shall have performed all agreements, covenants and
conditions required to be performed by WINCOM and Seller prior to the Closing.
4.2 No Adverse Change. Subsequent to the date hereof and prior to the
Closing, there shall have been no event which has had or may have a material
adverse effect upon the business, financial condition, results of operation,
assets, liabilities or prospects of WINCOM.
4.3 No Legal Proceedings. No suit, action or other legal or
administrative proceeding before any court or other governmental agency shall
be pending or threatened seeking to enjoin the consummation of the
Transactions contemplated hereby.
4.4 Documents to be Delivered by WINCOM and Seller. WINCOM and Seller
shall have delivered the following documents:
(a) Stock certificates representing all of the Shares, duly
endorsed to Buyer and in blank or accompanied by duly executed stock
powers, copies of which are attached as Exhibit "B".
(b) A copy of (i) the Articles of Incorporation of WINCOM, as
amended to date, certified as correct by WINCOM; and (ii) the Bylaws of
WINCOM certified as correct by WINCOM; and (iii) a certificate from the
Delaware Secretary of State, to the effect that WINCOM is in good
standing and has paid all franchise taxes in such state, all as attached
hereto as Exhibit "R";
(c) All agreements referred to in paragraph 1.4 above, executed
by all parties thereto other than Buyer.
(d) All corporate and other records of or applicable to WINCOM
including but not limited to, current and up-to-date minute books, stock
transfer books and registers, books of accounts, leases and material
contracts.
(e) Such other documents or certificates as shall be reasonably
required by Buyer or its counsel in order to close and consummate this
Agreement.
V.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF WINCOM AND SELLER TO CLOSE
The obligation of WINCOM and Seller to close the Transactions is subject
to the fulfillment prior to Closing of each of the following conditions, any
of which may be waived in whole or in part by WINCOM and Seller:
5.1 Compliance with Representations, Warranties and Covenants. The
representations and warranties made by Buyer in this Agreement shall have been
true and correct when made and shall be true and correct in all material
respects at the Closing with the same force and effect as if made at the
Closing, and Buyer shall have performed all agreements, covenants and
conditions required to be performed by Buyer prior to the Closing.
5.2 No Legal Proceedings. No suit, action or other legal or
administrative proceedings before any court or other governmental agency shall
be pending or threatened seeking to enjoin the consummation of the
Transactions contemplated hereby.
5.3 Other Agreements. All parties other than Seller and WINCOM shall
have executed and delivered the Basic Agreements.
5.4 Payments. Seller shall have received from Buyer a total of
13,000,000 shares of Buyer's common stock (pre-reverse split) , issued at the
Closing by Buyer pursuant to all the Basic Agreements.
VI.
MODIFICATION, WAIVERS, TERMINATION
AND EXPENSES
6.1 Modification. Buyer, WINCOM and Seller may amend, modify or
supplement this Agreement in any manner as they may mutually agree in writing.
6.2 Waivers. Buyer, WINCOM and Seller may in writing extend the time
for or waive compliance by the other with any of the covenants or conditions
of the other contained herein.
6.3 Termination and Abandonment. This Agreement may be terminated and
the purchase of the Shares may be abandoned before the Closing:
(a) By the mutual consent of Seller, WINCOM and Buyer;
(b) By Buyer should the representations and warranties of WINCOM
and the Seller, as set forth herein, are not accurate in all material
respects or if the conditions precedent set forth in Article IV not be
satisfied in all material respects; and
(c) By WINCOM or Seller, if the representations and warranties
of Buyer as set forth herein are not accurate in all material respects
or the conditions precedent as set forth in Article V shall not have
been satisfied in all material respects.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefor.
VII.
MISCELLANEOUS
7.1 Representations and Warranties to Survive. Unless otherwise
provided, all of the representations and warranties contained in this
Agreement and in any certificate, exhibit or other document delivered pursuant
to this Agreement shall survive the Closing for a period of two (2) years,
except that the representations and warranties of WINCOM shall terminate at
the Closing. No investigation made by any party hereto or their
representatives shall constitute a waiver of any representation or warranty,
and no such representation or warranty shall be merged into the Closing.
7.2 Binding Effect of the Basic Agreements. The Basic Agreements and
the certificates and other instruments delivered by or on behalf of the
parties pursuant thereto constitute the entire agreement between the parties.
The terms and conditions of the Basic Agreements shall inure to the benefit of
and be binding upon the respective heirs, legal representatives, successor and
assigns of the parties hereto. Nothing in the Basic Agreements, expressed or
implied, confers any rights or remedies upon any party other than the parties
hereto and their respective heirs, legal representatives and assigns.
7.3 Applicable Law. The Basic Agreements are made pursuant to, and
will be construed under, the laws of the State of Delaware.
7.4 Compliance with Regulations. To the best of the knowledge of all
parties, they are not aware of any rules or regulations of the SEC or any
federal, state or local regulatory agency that prohibits the execution of this
Agreement and that to the best of their knowledge, this Agreement is in
compliance with all federal, state, or local law, rules and regulations.
7.5 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, first class postage prepaid:
(a) If to Seller, to:
WINCO Corp.
ATTN: Brett O'Keefe, President
1875 Century Park East, Suite 930
Los Angeles, California 90067
Telephone: (310) 557-1875
Fax: (310) 556-1875
With copies to:
Bethel & Nicastro, P.C.
ATTN: Pamela J. Bethel, Esq.
2023 L Street, N.W.
Suite 300
Washington, D.C. 20036
Telephone: (202) 293-3700
Fax: (202) 293-7359
(b) If to Buyer, to:
Struthers Industries, Inc.
ATTN: G. David Gordon, Acting President
100 West 5th, Suite 601
Tulsa, Oklahoma 74103
Telephone: (918) 582-1788
Fax: (918) 582-1774
With copies to:
Klenda, Gordon & Getchell, P.C.
ATTN: David Gordon, Esq.
610 ONEOK Plaza
100 West Fifth Street
Tulsa, Oklahoma 74103
Telephone: (918) 587-9191
Fax: (918) 587-0054
(c) If to WINCOM, to:
WINCOM CORP.
ATTN: Raoul L. Carroll, Chairman
and Chief Executive Officer
1875 Century Park East, Suite 930
Los Angeles, Calfornia 90067
Telephone: (310) 557-1875
Fax: (310) 556-1875
With copies to:
Fulbright & Jaworski L.L.P.
ATTN: Paul S. Blencowe, Esq.
865 S. Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: (213) 892-9200
Fax: (213) 680-4518
These addresses may be changed from time to time by written notice to
the other parties.
7.6 Headings. The headings contained in this Agreement are for
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
7.7 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original and all of which together will
constitute one instrument.
7.8 Severability. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable under applicable law this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. The remaining provisions of this Agreement shall be given effect to
the maximum extent then permitted by law.
7.9 Forbearance; Waiver. Failure to pursue any legal or equitable
remedy or right available to a party shall not constitute a waiver of such
right, nor shall any such forbearance, failure or actual waiver imply or
constitute waiver of subsequent default or breach.
7.10 Attorneys' Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable
attorneys' fees and expenses and court costs.
7.11 Expenses. Each party shall pay all fees and expenses incurred by
it incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement. However, should either party
choose to terminate this Agreement under Section 6.3(a), that party initiating
the termination shall be responsible for all legal fees and other expenses
incurred in connection with the preparation of this Agreement.
7.12 Exhibits. All of the Exhibits to this Agreement are incorporated
herein in the places referenced in this Agreement as if fully set forth
herein.
7.13 Mutual Releases. Each member of the Board of Directors of both
WINCO Corp. and Buyer, and for their respective successors and assigns, do
hereby release and forever discharge each member of the Board of Directors of
the other corporation and their respective successors and assigns from any and
all personal liability, claims and demands, whatsoever, whether known or
unknown, which relates to or arises out of this Agreement. For the same
consideration, it is understood that this is not an admission of fault on the
part of the parties released herein.
7.14 Integration. This Agreement and all documents and instruments
executed pursuant hereto merge and integrate all prior agreements and
representations respecting the Transactions, whether written or oral, and
constitute the sole agreement of the parties in connection therewith. This
Agreement has been negotiated by and submitted to the scrutiny of both Seller
and Buyer and their counsel and shall be given a fair and reasonable
interpretation in accordance with the words hereof, without consideration or
weight being given to its having been drafted by either party hereto or its
counsel.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement on the date first written above.
"BUYER"
STRUTHERS INDUSTRIES, INC.
By:__________________________________
G. David Gordon, President
"WINCOM"
WINCOM CORP.
By:__________________________________
Raoul L. Carroll, Chairman
and Chief Executive Officer
"SELLER"
WINCO CORP.
By:__________________________________
William A. Shea, Jr., Co-Chairman
and Chief Executive Officer
<PAGE>
EXHIBIT LIST
Exhibit Reference Item
A 1.3(b) Proxy
A-1 1.4(a) Letters of Resignation of Board of Directors of
Buyer
B 1.4(b) Stock Certificates of Shares Common Stock of
Company
C 2.1(b) List of Existing Agreements Obligating WINCOM to
Issue Common Stock
D 2.1(e) Liabilities of WINCOM
E 2.1(g) Liens, Claims and Encumbrances on Property of
WINCOM
F 2.1(i) Insurance of WINCOM
G 2.1(j) Transactions of WINCOM with Officers, Directors
H 2.1(k) Material Contracts of WINCOM
I 2.1(l) Employees, Salaries and Benefits of WINCOM
J 2.1(l) Employment, Pension or Retirement Agreements of
WINCOM
K 2.1(m) Licenses and Permits of WINCOM
L 2.1(u) Abstract of Recent Material Contracts of WINCOM
M 2.3(b) Buyer's Settlement Agreement
N 2.3(b) List of Existing Agreements Obligating Buyer to
Distribute Assets, Income or Profits
O 2.3(g) Abstract of Recent Material Contracts of Buyer
P 2.3(i) Employees, Salaries and Benefits of Buyer
Q 2.3(i) Employment, Pension or Retirement Agreements of
Buyer
R 4.4(b) Certificate of Company and Bylaws; Delaware
Franchise Tax Certificate
<PAGE>
EXHIBIT N
List of Existing Agreements Obligating Struthers Industries, Inc. to
Distribute Assets, Income or Profits:
NONE
Exhibit 7.b
JOINT FILING AGREEMENT
Pursuant to Rule
13d-1(f)(1)
The undersigned agree that a Joint Statement on Schedule 13D
and any and all amendments thereto may be filed on behalf of each
of them to report their acquisition of beneficial ownership of
Common Stock, $.10 par value, of Struthers Industries, Inc.
Each person on whose behalf such joint statement is filed is
responsible for the timely filing of such statement and any
amendments thereto and for the completeness and accuracy of the
information concerning such person contained thereon and is not
responsible for the completeness and accuracy of the information
concerning the other filing persons, unless such person knows or
has reason to believe that such information is inaccurate in any
material respect.
September 16, 1996 WINCO Corp.
Date
By: /s/ William A. Shea, Jr.
Signature
William A. Shea, Jr., Director
Name and Title
September 11, 1996 Northwest Asian Territory
Date Family Trust III
By: /s/ J. A. Gommel
Signature
J. A. Gommel
Trustee
September 11, 1996 /s/ J. A. Gommel
Date Signature
J. A. Gommel
Name
Exhibit 7.c
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement) is made as of this 3rd
day of September, 1996, by and among WINCOM CORP., a Delaware corporation (the
"Company"), WINCO CORP., a Delaware corporation, and all those holders of
common stock of the Company whose names are set forth on the signature pages
hereto. Each of those persons whose names are set forth on the signature
pages hereto may be referred to individually as a "Shareholder" or
collectively as the "Shareholders".
WITNESSETH
WHEREAS, the Shareholders own rights to a total of 7,761,992 shares of
common stock of the Company as of the date of this Agreement; and
WHEREAS, WINCO Corp. owns approximately 66,270,000 shares out of a total
of 74,031,992 shares of common stock of the Company issued and outstanding as of
September 3, 1996; and
WHEREAS, the Company and the majority shareholder of the Company, WINCO
Corp. desire to enter into an Agreement and Plan of Reorganization with
Struthers Industries, Inc. ("Struthers"), which will provide for the
acquisition of one hundred percent (100%) of the issued and outstanding
shares of Common Stock of the Company from WINCO Corp. by Struthers
(the "Agreement"); and
WHEREAS, in connection with the Agreement, the corporate name of
Struthers will be changed to "WINCOM Corp." ("WINCOM '); and
WHEREAS, upon the closing of the transactions contemplated by the
Agreement (the "Closing Date), WINCO Corp. shall receive a total of
138,490,856 shares of common stock of WINCOM ("WINCOM Common Stock") in
exchange for one hundred percent of the issued and outstanding shares of
Common Stock of the Company; and
WHEREAS, in order to comply with the provisions of the Agreement, it
will be necessary for WINCO Corp. to be the sole shareholder of the Company
from whom Struthers will be purchasing all the issued and outstanding shares
of common stock of the Company; and
WHEREAS, the Shareholders are willing to surrender to the Company their
respective share certificates representing their respective ownership
interests in the Company, and
WHEREAS, in consideration for such surrender of share certificates,
WINCO Corp. is willing to place in the custody and control of an independent
escrow agent for the benefit of the Shareholders, their respective
proportionate shares of common stock of WINCOM (formerly Struthers) which they
would have otherwise received directly from Struthers in exchange for their
shares of common stock of the Company; and
WHEREAS, the Shareholders and the Company desire to limit the
transferability of the WINCOM Common Stock to be received by the Shareholders
upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follow:
1. Surrender of Company Share Certificates. Upon the execution of
this Agreement, the Shareholders shall surrender to the Company their share
certificates representing their respective ownership interests in the common
stock of the Company, which the Company shall immediately cancel. In
consideration, upon its receipt from Struthers of the now WINCOM share
certificates, WINCO Corp. shall deposit with an independent escrow agent for
the benefit of the Shareholders, their respective proportionate shares of
common stock of WINCOM (formerly Struthers) which they would have otherwise
received directly from Struthers in exchange for their shares of common stock
of the Company. Attached hereto as Exhibit "A" and incorporated herein by
reference is a schedule of the shares presently issued to Shareholder and the
shares that will be issued to Shareholder in the entity that will survive the
merger.
2. Right of Shareholders Upon Surrender. Upon the delivery by each
of the Shareholders to the Company of their respective share certificates
representing their ownership interests in the Company, each such Shareholder
shall have no further obligation to the Company with respect to such shares
and shall be entitled to receive his or her respective certificates
representing shares of common stock of the new WINCOM in accordance with the
provisions of this Agreement.
3. Obligations of WINCO Corp. After Release of Shares. Upon its
delivery of the new WINCOM share certificates to the Shareholders out of
escrow in accordance with the provisions of this Agreement, WINCO Corp. shall
have no further obligation to the Shareholders with respect to their
respective ownership interests in the common stock of the Company.
4. Restriction Against Transfer. No Shareholder shall sell,
transfer, assign, pledge, hypothecate, encumber or in any way alienate any
WINCOM Common Stock he receives, or any right or interest therein, whether
voluntarily, involuntarily, by gift, bankruptcy, operation of law, winding up
of the Company or otherwise, except in accordance with the terms of this
Agreement and any such action taken or occurring in violation of this
Agreement shall be null, void and of no effect.
5. Legend on Stock Certificates. Each certificate representing
shares of WINCOM Common Stock to be received by the Shareholders shall bear a
legend substantially as follows:
THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION OR ENCUMBRANCE OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE TERMS AND CONDITIONS OF A CERTAIN SHAREHOLDERS' AGREEMENT DATED
SEPTEMBER 3, 1996, AMONG WINCOM CORP., WINCO CORP. AND CERTAIN HOLDERS
OF OUTSTANDING CAPITAL STOCK OF WINCOM CORP. PURSUANT TO SUCH
AGREEMENT, NO SALE, TRANSFER, PLEDGE, HYPOTHECATION OR ENCUMBRANCES OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE PRIOR TO
___________________. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE
TO THE SECRETARY OF WINCOM CORP.
The above legend, when affixed to each share certificate, shall include
(i) the date of this Agreement and (ii) the applicable date upon which the
shares represented by such certificate become freely tradable in accordance
with Section 6 below. In addition, each share certificate shall contain a
legend setting forth restrictions on transfer imposed by the Securities Act of
1933, as amended.
6. Removal of Restrictions: Issuance of Shares Certificates. The
WINCOM Common Stock to be received by the Shareholders shall cease to be
subject to the restrictions of Section 4 above in accordance with the
following schedule. On the dates set forth below, the stated percentage of
each Shareholders' WINCOM Common Stock shall become freely tradable, subject
to the applicable state and federal securities laws and shall hereunder be
referred to as "Nonrestricted Shares".
A. 10% of the shares of WINCOM Common Stock owned by each
Shareholder shall become Nonrestricted Shares ninety days from the
closing date;
B. an additional 10% of the shares of WINCOM Common Stock owned
by each Shareholder shall become Nonrestricted Shares on the first
anniversary of the Closing Date;
C. an additional 10% of the shares of WINCOM Common Stock owned
by each Shareholder shall become Nonrestricted Shares on second
anniversary of the Closing Date;
D. an additional 20% of the shares of WINCOM Common Stock owned
by each Shareholder shall become Nonrestricted Shares on the third
anniversary of the Closing Date;
E. an additional 25% of the shares of WINCOM Common Stock owned
by each Shareholder shall become Nonrestricted Shares on the
fourth anniversary of the Closing Date;
F. an additional 25% of the shares of WINCOM Common Stock owned by
each Shareholder shall become Nonrestricted Shares on the fifth
anniversary of the Closing Date.
Within sixty (60) days from the date of the closing of the Agreement, the
Company shall issue six (6) WINCOM Common Stock certificates and deliver to
the Escrow Agent, ____________________, for the benefit of each Shareholder,
which certificates shall, in the aggregate, represent 100% of the shares of
WINCOM Common Stock to be received by each Shareholder. The six (6)
certificates issued to each Shareholder shall represent the respective
percentages of the shares of WINCOM Common Stock to be received by such
Shareholder as are set forth in subsection (a) through (g) above.
7. Company Right of Repurchase. The occurrence of a Repurchase Event
(as defined below) as to any Shareholder will create in the Company the right
to purchase the shares of WINCOM Common Stock held by such Shareholder which
have not yet become Nonrestricted Shares ("Restricted Shares"). A "Repurchase
Event" shall occur if, at any time during the term of this Agreement, any
Shareholder directly or indirectly owns any interest in, controls or is an
employee of, any person or entity which directly competes with WINCOM in the
IVDS spectrum, provided that the foregoing shall not prohibit any Shareholder
from owning less than 2% of a publicly traded company.
In the event of a Repurchase Event with respect to a Shareholder, the Company
shall have the option to purchase all or any portion of the Restricted Shares
of WINCOM Common Stock owned by such Shareholder or held by the Escrow Agent
and to be received by the Shareholder at the time of the Repurchase Event, at
a price of $.01 per share. The Company may exercise this option at any time
within six (6) months after it has actual notice of the occurrence of the
Repurchase Event. Any controversy or claim arising out of or relating to this
Section 7 shall be settled by arbitration in accordance with Section 17
hereof, and not under Section 14 hereof.
8. Rights to Shares. Except as specifically provided in Section 7 of
this Agreement, each Shareholder shall be entitled to receive his shares of
WINCOM Common Stock as provided herein. In the event a Shareholder is
deprived of his right to receive his shares of WINCOM Common Stock for any
reason other than as specifically stated in Section 7, such Shareholder shall
be entitled to Specific Performance of such rights to receive his WINCOM
Common Stock as provided in Section 14 of this Agreement.
9. Successors Bound. Shares of WINCOM Common Stock which remain
subject to the restrictions of Section 4 above may be transferred to a
successor (a "Successor") under the following circumstances: (i) upon the
death or dissolution of a Shareholder, (ii) upon the marital dissolution of a
Shareholder; or (iii) by operation of law. All shares of WINCOM Common Stock
transferred to a Successor shall for all purposes, be subject to the terms of
this Agreement, whether or not such Successor has executed a consent to be
bound by this Agreement. The Company shall not be required to issue new
certificates representing shares of WINCOM Common Stock in the name of a
Successor unless such Successor executes a consent to be bound by this
Agreement in form satisfactory to the Company.
10. Further Assurances. The Company represents and warrants that all
corporate action on the part of the Company necessary for the authorization,
execution, delivery and performance by the Company of this Agreement in
accordance with the provisions hereof have been taken.
11. Termination of this Agreement. This Agreement shall terminate
upon the earlier to occur of: (i) the written agreement of all of the parties
hereto; (ii) the liquidation and dissolution of the Company; or (iii) the
insolvency of the Company or the making of a voluntary assignment for the
benefit of creditors of the Company.
12. Representation and Warranty. Each of the Shareholders represents
and warrants that he or she has reviewed all provisions of this Agreement,
that he or she understands the implications thereof and that he or she has
independently concluded that all of such provisions are in his or her beat
interest, and are fair, just and equitable.
13. Entire Agreement; Amendment; Waiver. This Agreement and all
documents and instruments executed pursuant hereto merge and integrate all
prior agreements and representations respecting the transactions contemplated
herein, whether written or oral, and constitute the sole agreement of the
parties in connection therewith. No amendment, alteration or modification of
this Agreement shall be valid unless in each instance such amendment,
alteration or modification is expressed in a written instrument executed by
the parties hereto. No waiver of any provision of this Agreement shall be
valid unless it is expressed in a written instrument duly executed by the
party or parties making such waiver. The failure of any party to insist, in
any one or more instances, on performance of any of the terms and conditions
of this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such term,
covenant or condition but the obligation of any party with respect thereto
shall continue in full force and effect.
14. Specific Performance. The parties hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of a failure, to perform any of the obligations under this
Agreement. Therefore, all parties hereto shall have the right to specific
performance of obligations of the other parties under this Agreement, and if
any party hereto shall institute an action or proceeding to enforce the
provisions hereof, any person (including the Company) against whom such action
or proceeding is brought hereby waives the claim or defense therein that such
a party has an adequate remedy at law, and such person shall not urge in any
such action or proceeding the claim or defense that such remedy at law exists.
Each party agrees that an action for specific performance must be brought in
the court of competent jurisdiction in Los Angeles County, California, and
each party hereto agrees to submit to the jurisdiction of such court and that
such court is the appropriate venue for any such action.
15. Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective transferees, successors and assigns of the parties hereto,
whether so expressed or not.
16. Governing Law. This Agreement is to be governed by and
interpreted under the laws of the State of Delaware without giving effect to
the principles of conflicts of laws thereof.
17. Arbitration. Except as otherwise provided in Section 14 hereof
with respect to the rights of each party hereto to specific performance of the
obligations of the other parties under this Agreement, any controversy or
claim arising out of or relating to this Agreement, including but not limited
to, any controversy or claim as to the arbitrability of any controversy or
claim, shall be settled by arbitration in Los Angeles County, California in
accordance with the then rules of the American Arbitration Association
("AAA"); provided, however, that the AAA shall be directed by the parties to
appoint or designate a single arbitrator, who shall apply the laws of the
State of Delaware as set forth in Section 16 hereof. The award of such
arbitrator may be confirmed or enforced in any court of competent
jurisdiction. With respect to any such arbitration proceeding, the parties
shall have all rights of discovery available pursuant to the California Code
of Civil Procedure, and they hereby incorporate the provisions of California
Code of Civil Procedures Section 1283.05 into this Agreement. Either party
may request the arbitrator to prepare findings of fact and conclusions of law,
and if either party does so request, the arbitrator shall prepare such
findings and conclusions. The decision of the arbitrator shall be appealable
by either party as if it were the decision of any court of competent
jurisdiction.
18. Attorney's Fees and Litigation Costs. If any arbitration
proceeding or other legal action is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful of prevailing party shall be entitled to recover its attorney's
fees and other costs incurred in such arbitration proceeding or other legal
action, in addition to any other relief to which it may be entitled.
19. Titles and Subtitles. The titles of the sections of this
Agreement are for the convenience of reference only and are not to be
considered in construing this Agreement.
20. Defense and Indemnification. In the event that the Internal
Revenue Service of the United States or any state taxing authority challenges
the transactions covered by this Agreement for the purposes of assessing tax
of any kind upon any Shareholder, the Company agrees to provide legal counsel
to defend the Shareholder against such challenge, to bear the cost and
attorneys' fees reasonably attributable to the defense, and to indemnify the
Shareholder with respect to any such cost and attorneys' fees.
21. Severability. The invalidity or unenforceability of any
provisions of this Agreement shall not be deemed to affect the validity or
enforceability of any other provision of this Agreement.
22. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
With the execution of this Agreement, I hereby acknowledge that I have read
the foregoing paragraphs and understand that the terms of this Agreement may
be construed as an alteration of the terms of prior agreement(s) under which
either I was issued, or was to be issued, stock of the Company, WINCO CORP.,
or Struthers Industries and hereby waive any and all claims that are either
related to, or arising from, the terms of this Agreement or the consummation
of this transaction. Further say, any warrants associated with the stock
issued are hereby canceled.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of
the date first above written.
THE COMPANY:
WINCOM CORP.
By:_______________________
Sean P. O'Keefe, President
WINCO CORP.
By:_______________________
Brett W. O'Keefe, President
THE SHAREHOLDERS:
By:_______________________
Cynthia Barreras - _____ Shares
By:_______________________
Dan Biggs - ______ Shares
By:_______________________
Jacob Canceli - _____ Shares
By:_____________________
Raoul Carroll - ______ Shares
By:_________________________
Jarius De Walt - ______ Shares
By:_____________________
Ernest George, Jr. - ______ Shares
Gorry & Meyer, L.L.P.
By:_______________________
_____________- Shares
Gorry & Meyer Trust Account
By:_______________________
_________________- Shares
Garry & Meyer WINCOM Corp.
Retirement Account
By:_______________________
___________________- Shares
By:_______________________
Lidia Holubinsky - ____ Shares
By:_______________________
Richard Hylen - _____ Shares
By:_________________________
Randy Jones - ______ Shares
By:_______________________
Saad Khayat - ______ Shares
By:_____________________
Joseph Lombardo - ________ Shares
By:_______________________
Michael Muldavin -______ Shares
By:_______________________
Grier Newlin - ________ Shares
By:_________________________
Brett O'Keefe - ______ Shares
Pueblo Trust
By:_______________________
________________ - Shares
By:_______________________
John K. Pierson - _______ Shares
By:_________________________
William Shea - ________ Shares
By:_________________________
Richard Wade - ________ Shares
By:_________________________
Robert S. Wainwright _______ Shares
By:_________________________
Beryl Wolk - ________ Shares
By:_________________________
Andy Yan - ______ Shares
By:_________________________
Don Lounibos - _______ Shares
By:_________________________
Anthony Curreri - _______ Shares
By:_________________________
Daniel Fitzgerald - ______ Shares
By:_________________________
Dale Smith - _______ Shares
By:_________________________
Jo Gommel - _______ Shares
AZ Investment Associates
By:_______________________
_________________ - Shares
