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Exhibit 10.13
GCA LTD.
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COMMON SHARE PURCHASE AGREEMENT
AUGUST 27, 1998
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TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF COMMON SHAREs ......................................1
1.1 Issuance of Common Shares ..........................................1
2. CLOSING DATE; DELIVERY ..................................................1
2.1 Closing ............................................................1
2.2 Delivery ...........................................................2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ...........................2
3.1 Organization .......................................................2
3.2 Capitalization .....................................................2
3.3 Authority ..........................................................2
3.4 Issuance of Shares .................................................2
3.5 No Conflict with Law or Documents ..................................2
3.6 Consents, Approvals and Private Offering ...........................3
3.7 Litigation .........................................................3
3.8 Conformity with Legal Requirements .................................3
3.9 No Brokers or Finders ..............................................3
3.10 Disclosures ........................................................3
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS ........................3
4.1 Legal Power ........................................................3
4.2 Due Execution ......................................................4
4.3 Investment Representations .........................................4
5. COVENANTS OF THE COMPANY ................................................6
5.1 Information ........................................................6
6. CONDITIONS TO CLOSING ...................................................6
6.1 Conditions to Obligations of the Purchaser .........................6
6.2 Conditions to Obligations of the Company ...........................7
7. MISCELLANEOUS ...........................................................8
7.1 Governing Law ......................................................8
7.2 Survival ...........................................................8
7.3 Successors and Assigns .............................................8
7.4 Entire Agreement ...................................................8
7.5 Separability .......................................................8
7.6 Amendment and Waiver ...............................................8
7.7 Notices ............................................................8
7.8 Fees and Expenses ..................................................9
7.9 Titles and Subtitles ...............................................9
7.10 Counterparts .......................................................9
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GCA LTD.
COMMON SHARE PURCHASE AGREEMENT
This Common Share Purchase Agreement (this "Agreement") is made as of
August 27, 1998 by and among GCA Ltd., a Bermuda corporation (the "Company"),
and each of the purchasers who are signatories hereto (individually, a
"Purchaser" and collectively, the "Purchasers").
In consideration of the mutual promises, representations, warranties and
conditions set forth in this Agreement, the Company and each Purchaser
(severally and not jointly), intending to be legally bound, agree as follows:
1. PURCHASE AND SALE OF COMMON SHARES.
1.1 Issuance of Common Shares.
(a) The Company has authorized the issuance and sale to the
Purchasers of its Common Shares, par value $1.00 per share (the "Common
Shares").
(b) In reliance upon each Purchaser's representations and warranties
contained in Section 4 hereof and subject to the terms and conditions set forth
herein, the Company hereby agrees to sell to each Purchaser the number of Common
Shares set forth below such Purchaser's signature on the signature page bearing
such Purchaser's name at the purchase price set forth on such signature page.
(c) In reliance upon the representations and warranties of the
Company contained in Section 3 hereof, and subject to the terms and conditions
set forth herein, each Purchaser hereby agrees to purchase the Common Shares set
forth on the signature page bearing such Purchaser's name. Each Purchaser shall
severally, and not jointly, be liable for only the purchase of the Common Shares
that appear on the signature page hereof that relates to such Purchaser.
(d) The Company's agreement with each of the Purchasers is a
separate agreement, and the sale of the Common Shares to each of the Purchasers
is a separate sale.
2. CLOSING DATE; DELIVERY.
2.1 Closing. The closing of the sale and purchase of the Common Shares
under this Agreement (the "Closing"), shall be held at 10:00 a.m. (Bermuda Time)
at the offices of the Company on the same date as the closing of the initial
public offering by the Company of its Common Shares (the "IPO"), or at such
other time or on such other date as the Purchasers and the Company may mutually
agree (the "Closing Date"). If the IPO shall not have occurred by December 31,
1998, any party may terminate its obligations hereunder.
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2.2 Delivery. At the Closing, subject to the terms and conditions hereof,
the Company shall deliver to each Purchaser Common Shares, registered in the
name of each Purchaser or its nominee, representing the Common Shares to be
purchased by each such Purchaser from the Company, dated as of the Closing Date,
against payment of the purchase price therefor by wire transfer, unless other
means of payment shall have been agreed upon by such Purchaser and the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each Purchaser as of the
date hereof and as of the Closing Date as follows:
3.1 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of Bermuda. The Company has all
requisite power and authority to own and lease its properties and to conduct its
business as now conducted.
3.2 Capitalization. On the date of this Agreement, the authorized capital
stock of the Company consists of 100,000,000 Common Shares, and 50,000,000
Preferred Shares, par value $1.00 per share, of which 12,000 Common Shares and
no Preferred Shares are issued and outstanding. All of the issued and
outstanding Common Shares have been duly authorized, validly issued and are
fully paid and nonassessable.
3.3 Authority. The Company has all requisite power and authority to enter
into this Agreement, and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company and constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditor's rights from time
to time in effect and subject to general equity principles.
3.4 Issuance of Shares. The Common Shares, when issued against payment
therefor pursuant to the terms of this Agreement will be duly and validly
authorized and issued, fully paid and nonassessable, and shall have been issued
in compliance with all applicable laws.
3.5 No Conflict with Law or Documents. The execution, delivery and
consummation of this Agreement and the transactions contemplated hereby will not
(a) conflict with any provisions of the Memorandum of Association or Bylaws of
the Company; or (b) result in any violation of or default or loss of a benefit
under, or permit the acceleration of any obligation under (in each case, upon
the giving of notice, the passage of time, or both) any mortgage, indenture,
lease, agreement or other instrument, permit, franchise, license, judgment,
order, decree, law, ordinance, rule or regulation applicable to the Company.
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3.6 Consents, Approvals and Private Offering. Except for any filings
required under applicable securities laws, all of which shall have been made as
of the Closing Date to the extent required as of such time, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any governmental authority is required to be made or obtained by the
Company in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
3.7 Litigation. There are no actions, suits, notices, hearings, inquiries,
proceedings or investigations pending or, to the Company's knowledge threatened,
against or affecting the Company that in the aggregate could reasonably be
anticipated to result in any material adverse effect on the Company. Neither the
Company nor, to the Company's knowledge, any of its officers or directors, is
subject to any order, writ, injunction or decree of any court or of any federal,
state, municipal or other domestic or foreign governmental department,
commission, board, bureau, agency or instrumentality.
3.8 Conformity with Legal Requirements. The operations of the Company as
now conducted are not in violation of, nor is the Company in default under, any
applicable law, statute, standard, ordinance, code, consent, registration,
order, rule, regulation, or judgement of any court, arbitrator, tribunal or
governmental authority (collectively, "Laws") presently in effect, except for
violations and defaults as do not and could not reasonably be expected to, in
the aggregate, have a material adverse effect on the Company.
3.9 No Brokers or Finders. No person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or claim
against or upon the Company for any commission, fee or other compensation as a
finder or broker because of any act or omission by the Company.
3.10 Disclosures. Neither this Agreement, any Schedule nor any Exhibit to
this Agreement contains any untrue statement of material fact or omits to state
any material fact necessary to make the statements contained herein or therein
not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby severally represents and warrants to, and
covenants with the Company as follows:
4.1 Legal Power. If such Purchaser is a corporation, partnership or trust,
it has the requisite corporate, partnership, trust or fiduciary power, as
appropriate, and is authorized, to enter into this Agreement to purchase the
Common Shares hereunder, and to carry out and perform its obligations under the
terms of this Agreement. If such Purchaser is an individual, it has full legal
right, power and authority to enter into this Agreement, to purchase the Common
Shares hereunder, and to carry out and perform its obligations under the terms
of this Agreement.
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4.2 Due Execution. This Agreement has been duly authorized (and, if such
Purchaser is a corporation, partnership, trust or fiduciary, executed and
delivered) by such Purchaser, and, upon due execution and delivery by the
Company, will be valid and binding agreements of such Purchaser, enforceable
against such Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws relating to
or affecting creditor's rights from time to time in effect and subject to
general equity principles.
4.3 Investment Representations. Each Purchaser acknowledges that:
(a) the availability of the exemption from registration under the
Act relied upon by the Company in issuing the Common Shares is dependent, in
part, upon the truth of the representations made herein;
(b) such Purchaser is thoroughly familiar with the proposed business
of the Company and has made all investigations thereof which such Purchaser
deems necessary or desirable;
(c) such Purchaser has such knowledge and experience in financial,
tax, and business matters in general, and investments and securities in
particular, as to enable such Purchaser to evaluate the merits and risks of an
investment in the Common Shares and to make an informed investment decision with
respect thereto;
(d) such Purchaser is familiar with the business, lack of past
performance, and prospects of the Company, including the risks associated
therewith;
(e) such Purchaser: (1) has had the opportunity to obtain all
information requested by him for any purpose related to this Agreement and the
transactions contemplated hereby; and (2) has had the opportunity to meet with
representatives of the Company and to have them answer any questions and provide
such additional information regarding the terms and conditions of the
transactions contemplated hereby and the business and prospects of the Company,
as deemed relevant by such Purchaser, all of which questions have been answered
and all of such requested information has been provided to the full satisfaction
of such Purchaser. Such Purchaser is aware that an investment in the Common
Shares is speculative and involves significant risks, including, among other
things, the risk of the loss of such Purchaser's entire investment in the Common
Shares;
(f) such Purchaser is an "accredited investor" as such term is
defined in Rule 501 of the Act and was not formed for the specific purpose of
acquiring the Common Shares. The definition of accredited investor appears as
Exhibit A to this Agreement;
(g) neither the Securities and Exchange Commission (the "SEC") nor
any state securities commission has approved the Common Shares to be received by
such Purchaser or passed upon or endorsed the merits of an investment therein or
confirmed the accuracy or adequacy of any information provided by the Company to
such Purchaser;
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(h) the Common Shares are not registered under the Act or under any
applicable state securities law and must be held indefinitely unless they are
subsequently so registered or unless an exemption from such registration is
available;
(i) the Company is under no obligation to register the Common Shares
under any circumstances or to attempt to make available any exemption from
registration under the Act or any applicable state securities law, at such
Purchaser's expense or otherwise;
(j) such Purchaser recognizes that he must bear the substantial
economic risks of his investment in the Common Shares and that such Common
Shares may not be sold, transferred, hypothecated or otherwise disposed of
unless they are subsequently registered under the Act pursuant to the filing of
an effective registration statement and under applicable state securities laws
or exemption from such registration is available and there is provided to the
Company by such Purchaser an opinion of counsel satisfactory to the Company or
no-action letters from the SEC and any appropriate state regulatory agencies to
the effect that registration under the Act and any applicable state securities
law is not required in connection with the transaction. Each certificate
representing Common Shares will bear the following legend, or one similar
thereto, drawing attention to the restrictions on its transferability:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE
WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS."
(k) if, at a time when registration is required, it is legally
permissible for the Purchaser to sell the Common Shares privately without
registration, the Common Shares so sold will be restricted in the hands of the
purchaser. In the event that there is a public market for the Common Shares at
that time, such purchaser may only be willing to pay a price less than the price
for unrestricted securities; and
(l) such Purchaser (1) is aware that any routine sales under Rule
144 of the SEC under the Act of the Common Shares may be made only in limited
amounts and in accordance with the terms and conditions of that Rule and that in
such cases where the Rule is not applicable, compliance with some other
registration exemption will be required; and (2) is aware that Rule 144 is not
presently available for use by the Purchaser for resale of such Common Shares;
and
(m) such Purchaser's principal residence is set forth next to such
Purchaser's name on the signature page to this Agreement.
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5. COVENANTS OF THE COMPANY
5.1 Information.
(a) If the Company becomes subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), pursuant to Sections 13 or 15(d), the Company shall deliver to each
holder of Common Shares all annual, quarterly or other reports to the extent
furnished to its public security holders.
(b) If the Company is not subject to the requirements of Sections 13
or 15(d) of the Exchange Act, the Company shall cause to be furnished promptly
to each holder of Common Shares, so long as such holder owns at least 5,000
Common Shares, (i) as soon as available, and in any event within 150 days after
the end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its consolidated subsidiaries, if any, as of the end of such fiscal
year and the related consolidated statements of income, stockholders' equity and
cash flows for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all prepared in accordance with
generally accepted accounting principles and reported on by independent
certified public accountants; and (ii) as soon as available, and in any event
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, a consolidated balance sheet of the Company and its
consolidated subsidiaries, if any, as of the end of such quarter and the related
consolidated statements of income and stockholder's equity (together with any
other quarterly financial statements being prepared by the Company at such
time), setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the Company's previous
fiscal year.
(c) At any reasonable time during normal business hours and from
time to time, the Company will permit any Purchaser who then owns at least 5,000
Common Shares, or any agent or representative of such Purchaser, to examine the
books and records and visit the properties of the Company and to discuss the
Company's affairs, finances and accounts with any of its officers or directors;
provided that any such Purchaser exercising its rights hereunder shall (i) use
all reasonable efforts to ensure that any such examination or visit results in a
minimum of disruption to the operations of the Company and (ii) agree in writing
to keep any and all proprietary information of the Company disclosed to such
Purchaser in the course of such examination or visit confidential and not use
such proprietary information for any purpose.
6. CONDITIONS TO CLOSING.
6.1 Conditions to Obligations of the Purchaser. Each Purchaser's
obligation to purchase the Common Shares at the Closing is subject to the
fulfillment, at or prior to the Closing, of all of the following conditions:
(a) Representations and Warranties True; Performance of Obligations.
The representations and warranties made by the Company in Section 3 hereof shall
be true and
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correct in all material respects and the Company shall have performed in all
material respects all obligations and conditions herein required to be performed
by it on or prior to the Closing Date.
(b) Qualifications, Legal Investment. All authorizations, approvals,
or permits, if any, of any applicable governmental authority or regulatory body
that are required in connection with the lawful sale and issuance of the Common
Shares pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing Date. No stop order or other order enjoining
the sale of the Common Shares shall have been issued and no proceedings for such
purpose shall be pending or, to the knowledge of the Company, threatened by the
SEC, or any commissioner of corporations or similar officer of any state having
jurisdiction over this transaction. At the time of the Closing, the sale and
issuance of the Common Shares shall be legally permitted by all laws and
regulations to which each Purchaser and the Company are subject.
(c) Initial Public Offering. There shall have been consummated the
IPO of not less than 14,000,000 Common Shares.
6.2 Conditions to Obligations of the Company. The Company's obligation to
issue and sell the Common Shares at the Closing is subject to the fulfillment to
the Company's satisfaction, on or prior to the Closing, of the following
conditions:
(a) Representations and Warranties True; Performance of Obligations.
The representations and warranties made by the Purchasers in Section 4 hereof
shall be true and correct in all material respects and the Purchasers shall have
performed all obligations and conditions herein required to be performed by them
on or prior to the Closing Date.
(b) Qualifications, Legal Investment. All authorizations, approvals,
or permits, if any, of any applicable governmental authority or regulatory body
that are required in connection with the lawful sale and issuance of the Common
Shares pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing Date. No stop order or other order enjoining
the sale of the Common Shares shall have been issued and no proceedings for such
purpose shall be pending or, to the knowledge of the Company, threatened by the
SEC, or any commissioner of corporations or similar officer of any state having
jurisdiction over this transaction.
(c) Lock-up Agreement. The Purchasers shall have entered into a
lock-up agreement in substantially the form attached as Exhibit D hereto.
(d) Initial Public Offering. There shall have been consummated the
IPO of not less than 14,000,000 Common Shares.
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7. MISCELLANEOUS.
7.1 Governing Law. This Agreement shall be governed by and construed under
the laws of Bermuda without regard to principles of conflict of laws.
7.2 Survival. The representations and warranties made by the parties in
this Agreement shall survive the consummation of the transactions herein
contemplated until the expiration of the statute of limitations with respect to
claims arising under Section 10(b) of the Exchange Act.
7.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto.
7.4 Entire Agreement. This Agreement and the Exhibits and Schedules
hereto, and the other documents delivered pursuant hereto, constitute the full
and entire understanding and agreement among the parties with regard to the
subjects hereof and no party shall be liable or bound to any other party in any
manner by any representations, warranties, covenants, or agreements except as
specifically set forth herein.
7.5 Separability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, it shall to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
7.6 Amendment and Waiver. Except as otherwise provided herein, any term of
this Agreement may be amended, and the observance of any term of this Agreement
may be waived (either generally or in a particular instance, either
retroactively or prospectively, and either for a specified period of time or
indefinitely), with the written consent of the Company and the Purchaser. Any
amendment or waiver effected in accordance with this section shall be binding
upon each future holder of any security purchased under this Agreement
(including securities into which such securities have been converted) and the
Company.
7.7 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
personal delivery, on the first business day following mailing by overnight
courier, delivery charges prepaid, or on the fifth day following mailing by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company and the Purchaser at the respective addresses included
herein, or at such other address, notice of which is given in accordance with
the provisions of this Section 7.7.
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7.8 Fees and Expenses. The Company and the Purchasers shall bear their own
expenses and legal fees incurred on its behalf with respect to this Agreement
and the transactions contemplated hereby.
7.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
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GCA LTD.
COMMON SHARE PURCHASE AGREEMENT
Xxxxxxxxx X. Xxxxxx
------------------------------------ ----------------------------------------
Purchaser's Name-Please Print Nominee Name (if appropriate)
------------------------------------ ----------------------------------------
Social Security/Tax I.D. Number Telephone Number
000 Xxxxxxxxxxx Xxxxxx Xxxxx, XX 00000
------------------------------------ ----------------------------------------
Address City, State and Zip Code
/s/ Xxxxxxxxx X. xxxxxx August 27, 1998
------------------------------------ ----------------------------------------
Signature Date
Number of Aggregate
Common Shares Purchase Price
12,500 $176,250
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Enclose check payable to: GCA LTD. or
FUNDS SHOULD BE WIRED TO:
AGREED TO AND ACCEPTED:
GCA LTD.
By: /s/ Xxxxxx X. Xxxxxxxx Date: August 27, 1998
------------------------------------------- -----------------
Xxxxxx X. Xxxxxxxx, Chief Executive Officer
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GCA LTD.
COMMON SHARE PURCHASE AGREEMENT
Xxxxxx X. Xxxxxxx
------------------------------------ ----------------------------------------
Purchaser's Name-Please Print Nominee Name (if appropriate)
------------------------------------ ----------------------------------------
Social Security/Tax I.D. Number Telephone Number
00 Xxxxxx Xxxx Xxxx Xxxxxxxxxx, XX 00000
------------------------------------ ----------------------------------------
Address City, State and Zip Code
/s/ Xxxxxx X. Xxxxxxx August 27, 1998
------------------------------------ ----------------------------------------
Signature Date
--------------------------------------------------------------------------------
Number of Aggregate
Common Shares Purchase Price
12,500 $176,250
------------------------ ----------
Enclose check payable to: GCA LTD. or
FUNDS SHOULD BE WIRED TO:
--------------------------------------------------------------------------------
AGREED TO AND ACCEPTED:
GCA LTD.
By: /s/ Xxxxxx X. Xxxxxxxx Date: August 27, 1998
------------------------------------------- -----------------
Xxxxxx X. Xxxxxxxx, Chief Executive Officer
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GCA LTD.
COMMON SHARE PURCHASE AGREEMENT
Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------------ ----------------------------------------
Purchaser's Name-Please Print Nominee Name (if appropriate)
------------------------------------ ----------------------------------------
Social Security/Tax I.D. Number Telephone Number
000 Xxxxxxxx Xxxxxx Xxxxxxx, XX 00000
------------------------------------ ----------------------------------------
Address City, State and Zip Code
/s/ Xxxxxxx X. Xxxxxxxx, Xx. August 27, 1998
------------------------------------ ----------------------------------------
Signature Date
Number of Aggregate
Common Shares Purchase Price
85,000 $1,198,500
------------------------ ----------
Enclose check payable to: GCA LTD. or
FUNDS SHOULD BE WIRED TO:
AGREED TO AND ACCEPTED:
GCA LTD.
By: /s/ Xxxxxx X. Xxxxxxxx Date: August 27, 1998
------------------------------------------- -----------------
Xxxxxx X. Xxxxxxxx, Chief Executive Officer
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GCA LTD.
COMMON SHARE PURCHASE AGREEMENT
Xxxxxx X. Xxxxxx
------------------------------------ ----------------------------------------
Purchaser's Name-Please Print Nominee Name (if appropriate)
------------------------------------ ----------------------------------------
Social Security/Tax I.D. Number Telephone Number
000 Xxxx 00xx Xxxxxx, Xxx. 0X Xxx Xxxx, XX 00000
------------------------------------ ----------------------------------------
Address City, State and Zip Code
/s/ Xxxxxx X. Xxxxxx August 27, 1998
------------------------------------ ----------------------------------------
Signature Date
Number of Aggregate
Common Shares Purchase Price
5,000 $ 70,500
------------------------ ----------
Enclose check payable to: GCA LTD. or
FUNDS SHOULD BE WIRED TO:
AGREED TO AND ACCEPTED:
GCA LTD.
By: /s/ Xxxxxx X. Xxxxxxxx Date: August 27, 1998
------------------------------------------- ----------------
Xxxxxx X. Xxxxxxxx, Chief Executive Officer