AGREEMENT
This Agreement is entered into as of November 7, 1997 by and among PT-1
Communications, Inc., a New York Corporation (the "Company" ), Xxxxxx Xxxxxx
("Xxxxxx"), Xxxxxx Xxxxxx Trust U/A dated September 9, 1997 ("Xxxxxx Trust"),
Xxxxx Xxxxxx ("Xxxxxx"), Xxxxx Xxxx ("Vita"), Xxxxxxx Xxxxxx ("Barley"),
Xxxxxx Xxxxxxxx ("Xxxxxxxx") and Xxxx Xxxxxxxxx ("Xxxxxxxxx").
RECITALS
A. The Company, Hickey, Tawfik, Vita and Barley are parties to that
certain PhoneTime Inc. Share Purchase Agreement (the "Share Purchase
Agreement") dated as of March 26, 1997.
B. Section 8.7 of the Share Purchase Agreement is a "non-competition"
provision that restricts the ability of Xxxxxx to engage in certain activities
in competition with the Company for a period commencing on March 26, 1997 and
terminating on March 26, 1998 (the "Non-Compete Term").
C. The Company desires to (a) issue additional shares of common stock
of the Company, no par value (the "Common Stock") to Xxxxxx and (b) cause the
delivery of certain releases to Xxxxxx and the Xxxxxx Trust in consideration
of (i) the execution of a new Non-Competition Agreement providing for a term
of three (3) years from March 26, 1998 through Xxxxx 00, 0000, (xx) the
execution and delivery of certain releases by Xxxxxx and the Xxxxxx Trust and
of (iii) certain additional agreements and undertakings by Xxxxxx and the
Xxxxxx Trust, and for other good and valuable consideration, all on the terms
and subject to the conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties, the parties agree as follows:
1. Agreements Regarding Ownership of Common Stock.
The parties hereto hereby acknowledge and agree that, as of the date of
this Agreement (the "Effective Date") and without giving effect to the filing
of the Company's Restated Certificate of Incorporation (the "Restated
Certificate"), which was approved by all of the Company's shareholders on
October 20, 1997:
(a) the Company's authorized capital stock consists of 200 shares of
Common Stock, of which 68.4465 are issued and outstanding and held of
record as set forth under the heading "Initial Shares of Common Stock" in
the table on Exhibit A attached hereto and incorporated herein by
reference;
(b) all issued and outstanding shares of Common Stock have been duly
and validly authorized and issued;
(c) the Company has duly and validly granted certain options to
certain of its employees and has duly and validly issued certain warrants
to certain third parties, a complete list of which is attached hereto as
Exhibit E; and
(d) no shareholder has any preemptive or other right (or any such
existing preemptive or other right is hereby waived) to acquire any
shares of Common Stock (or any options, warrants, or other instruments
that are convertible into or exchangeable for such shares) as a result of
the issuance of such shares, options or warrants.
2. Acknowledgments Regarding Common Stock.
Xxxxxx and the Xxxxxx Trust acknowledge that: (a) except as expressly
provided in Section 3 below, they have no other shares of Common Stock or any
options, warrants, rights or instruments convertible into or exchangeable for
any Common Stock or other equity interest in the Company except as set forth
on Exhibit A; and (b) they have no preemptive, anti-dilutive, or other right
to acquire any shares of Common Stock (or any options, warrants, or other
instruments that are convertible into or exchangeable for such shares) as a
result of (i) the issuance of the shares, options or warrants set forth in
Exhibits A and E, or (ii) any other shares, options, warrants or other equity
interests in the Company, in each case outstanding as of the date hereof.
3. Issuance of Common Stock to Xxxxxx.
Concurrently with the execution of this Agreement, the Company shall
issue 0.6914 shares of Common Stock to Xxxxxx and shall deliver a stock
certificate to Xxxxxx reflecting such issuance. As a result of such issuance,
the parties hereto hereby agree that the issued and outstanding shares of
Common Stock of the Company shall be owned beneficially and of record as set
forth under the heading "Post Issuance" in the table on Exhibit A attached
hereto and incorporated herein by reference.
4. Releases.
Concurrently with the execution of this Agreement each of the parties
shall execute and deliver the releases attached hereto as Exhibit B which are
incorporated herein by reference and shall for all purposes be deemed to
constitute part of this Agreement.
5. Non-Competition Agreement.
Xxxxxx hereby agrees to execute and deliver a Non-Competition Agreement
("Non-Competition Agreement") for a period of three (3) years from March 26,
1998 until March 26, 2001, and the Company shall, in order to effect such Non-
Competition Agreement, execute and deliver the Non-Competition Agreement in
the form attached hereto as Exhibit C which is incorporated herein by
reference and shall for all purposes be deemed to constitute part of this
Agreement.
6. Unanimous Consent of Shareholders To Action in Lieu of a Meeting.
Concurrently with the execution of this Agreement, Xxxxxx and the Xxxxxx
Trust, Xxxxxx, Xxxx, Barley, Xxxxxxxx and Xxxxxxxxx shall execute and deliver
the Unanimous Consent of Shareholders To Action in Lieu of a Meeting attached
hereto as Exhibit D which is incorporated herein by reference and shall for
all purposes be deemed to constitute part of this Agreement, pursuant to which
such parties, inter alia, authorize and ratify certain actions by the Company,
its Board of Directors and its officers, including the granting of certain
options and the issuance of certain warrants to acquire Common Stock, in
addition to waiving any and all preemptive rights any such party might have
with respect to the granting or issuance of such options and warrants.
7. Covenants.
Xxxxxx and the Xxxxxx Trust agree and covenant on behalf of themselves
and any successor, assignee or beneficiary of any of the shares of Common
Stock owned by any of them as of the date of this Agreement and as a result of
the consummation of the transactions contemplated hereby to use their best
efforts to cooperate with the Company with respect to the Company's efforts to
obtain any pending or future public or private financing, merger, acquisition,
sale or other corporate reorganization (a "Financing Transaction"). Without
limiting the generality of the foregoing, Xxxxxx and the Xxxxxx Trust agree to
(i) make themselves and their counsel available in person upon reasonable
prior notice for interviews, (ii) execute any requested underwriting or
similar agreements containing customary representations, warranties and
covenants, such execution to occur no later than five (5) business days after
Xxxxxx and/or the Xxxxxx Trust have been provided with any such agreement,
(iii) execute any "lockup" or similar agreement limiting Xxxxxx'x and/or the
Xxxxxx Trust's ability to sell or otherwise transfer or dispose of any of
their shares of Common Stock following the effective date of a Financing
Transaction for a period of 180 days thereafter (or such other shorter period
as may be specified with relation to a particular Financing Transaction), such
execution to occur no later than five (5) business days after Xxxxxx and/or
the Xxxxxx Trust have been provided with any such agreement, provided such
holdback is requested of all shareholders holding the same number of shares as
Xxxxxx and/or the Xxxxxx Trust, and (iv) execute and deliver such other
certificates, agreements and documents and undertake such other acts and deeds
as may be reasonably requested by the Company in connection with a Financing
Transaction.
8. Remedies.
(a) Each of the parties to this Agreement shall be entitled to
enforce any rights under this Agreement to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights at
law or equity existing in his or its favor. The parties hereto agree and
acknowledge that money damages will not be an adequate remedy for any breach
of the provisions of this Agreement and that any party may in his or its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement and any opposing party waives
any right to argue or assert lack of irreparable harm.
(b) The rights and remedies specified in any provision of this
Agreement are in addition to all other rights and remedies a party may have
available under any other agreement or applicable law, including any right to
equitable relief and any right to xxx for damages as a result of a breach of
this Agreement, and all such rights and remedies are cumulative. Without
limiting the foregoing, no exercise of a remedy shall be deemed an election
excluding any other remedy (any such claim by any other party being hereby
waived). A party who prevails in enforcing rights or remedies under this
Agreement shall (in addition to any other relief hereunder) be paid by the
other party all costs, fees and expenses, including attorneys' fees incurred
by the prevailing party in enforcing such rights and remedies.
(c) Any breach of this Agreement by any party hereto, or any breach
of the Non-Competition Agreement by Xxxxxx, shall be deemed to be a breach
under the Share Purchase Agreement, and in such event, in addition to the
rights and remedies set forth in this Agreement, the non-breaching parties
shall be entitled to exercise any and all rights and remedies set forth in the
Share Purchase Agreement (including the right to set-off against any payments
made pursuant to that certain Secured Promissory Note by the Company payable
to the order of Xxxxxx dated March 26, 1997). In addition, each party to this
Agreement agrees to indemnify and hold harmless every other party to this
Agreement for any claims, causes of action, actions, suits, judgments,
liabilities, losses, damages, obligations, costs, and expenses (including,
without limitation, attorneys' fees and court costs) suffered or incurred by
every other party to this Agreement as a result of a party's breach of this
Agreement.
9. Governing Law.
All questions concerning the construction, validity and interpretation
of, and the performance of the obligations imposed by this Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and wholly to be performed in that state.
10. Final Agreement.
This Agreement (together with the Exhibits attached hereto) and the Share
Purchase Agreement constitute the final agreements of the parties concerning
the matters referred to herein, and supersede all prior oral and written
agreements and understandings.
11. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, and such
counterparts together shall constitute one instrument.
12. Supersedure.
This Agreement supersedes in its entirety that certain letter agreement
dated October 30, 1997, from Xxxxx X. Xxxxxx, Esq. of Xxxxxx Xxxxxx Xxxxxx &
Xxxx to Xxxxxxx X. Xxxxxxx, Esq. of Xxxxxxx Xxxxxxx & Xxxxxxxx.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, this Agreement was executed and delivered or caused
to be executed and delivered in the name of and on behalf of the parties
hereto as of the date first set forth above.
PT-1 COMMUNICATIONS, INC.
By:
----------------------------------
Name:
--------------------------------
Its:
--------------------------------
--------------------------------
Xxxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxx
--------------------------------
Xxxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx Trust U/A
dated September 9, 1997
--------------------------------
Xxxxxx Xxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx
EXHIBIT A
Shareholder Initial Shares Post
Shares of Received Issuance
Common Stock
----------- -------------- ----------- ---------
Xx. Xxxxx Xxxxxx 43.5000 0.0000 43.5000
Xx. Xxxxx Xxxx 12.5000 0.0000 12.5000
Xx. Xxxxxxx Xxxxxx 5.0000 0.0000 5.0000
Xx. Xxxxxx Xxxxxxxx 1.4980 0.0000 1.4980
Xx. Xxxx Xxxxxxxxx 2.7380 0.0000 2.7380
Mr. Xxxxxx Xxxxxx 1.2105 0.6914 1.9019
Xxxxxx Xxxxxx Trust U/A
dated September 9, 1997 2.0000 0.0000 2.0000
Total 68.4465 0.6914 69.1379
EXHIBIT B
RELEASE
This release (the "Release") is given as of November 7, 1997 by PT-1
Communications, Inc., a New York Corporation, formerly known as PhoneTime Inc.
(collectively with its officers and directors hereinafter the "Company"),
Xxxxx Xxxxxx ("Tawfik"), Xxxxx Xxxx ("Vita"), Xxxxxxx Xxxxxx ("Barley"),
Xxxxxx Xxxxxxxx ("Xxxxxxxx") and Xxxx Xxxxxxxxx ("Xxxxxxxxx") (collectively
the "Releasing Parties") in exchange for valuable consideration, the adequacy
and receipt of which are hereby acknowledged.
The Releasing Parties hereby and forever remit, release, exculpate,
acquit, and discharge Xxxxxx Xxxxxx ("Xxxxxx") and the Xxxxxx Xxxxxx Trust U/A
dated September 9, 1997 ("Xxxxxx Trust"), and their present and former
officers, directors, members, partners, employees, shareholders, agents,
servants, outside consultants, advisers, bankers, accountants, investment
bankers, attorneys, subsidiaries, affiliates, successors in interest,
trustees, heirs, beneficiaries, executors, administrators, representatives,
assigns, parents, divisions, and predecessors and successors of any kind
(collectively the "Releasees") from any and all claims, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
judgments, variances, trespasses, demands, liabilities, losses, damages,
obligations, promises, rights, costs, expenses, compensations, suits, and
actions, known or unknown, fixed or contingent, suspected or unsuspected, of
every kind and nature whatsoever, in law or in equity, in any capacity in any
court or tribunal, from the beginning of the world to the date hereof
(collectively "Claims"), including without limitation Claims arising out of,
in connection with, or in any way relating to, the business relationship
between Xxxxxx and/or the Xxxxxx Trust and the Releasees, including, but not
limited to, the PhoneTime Inc. Share Purchase Agreement executed on March 26,
1997 by the Company, Hickey, Tawfik, Vita, and Barley (the "Share Purchase
Agreement"); Xxxxxx'x and/or the Xxxxxx Trust's ownership interest in the
securities of the Company, and all disclosures, negotiations, transactions,
discussions, meetings, or documents related thereto; the common stock, options
and warrants of the Company; any disclosures regarding the valuation of the
Company or its business or property; any and all employment agreements,
financings, or contracts entered into by the Company; the process of
underwriting the common stock for the contemplated initial public offering of
the Company (the "IPO"); and all transactions, facts, occurrences and
negotiations related to the foregoing (collectively, the "Released Claims").
The Releasing Parties execute this Release and all components of this
document for themselves and on behalf of their successors, family members,
heirs, and assigns, and, in so doing, expressly acknowledge, represent,
affirm, concede, agree, and warrant that:
(1) Facts with respect to which this Release is executed may turn out
to be other than or different from the facts now known to or
believed by the undersigned, and the undersigned, therefore,
expressly assume the risk of the facts turning out to be
different and agree that this Release shall be in all respects
effective and not subject to modification or termination by
reason of any different facts.
(2) The undersigned expressly waive any and all rights the
undersigned may have under the provisions of any statute or any
principle of the common law to the effect that the Release does
not extend to claims which the Releasing Parties do not know or
suspect to exist in their favor at the time of executing the
Release. The Releasing Parties agree that subsequent changes in
either statutory or common law shall not alter the provisions of
this Release.
(3) The undersigned have consulted with counsel of their choosing and
their own financial advisers to the extent that they deem
necessary and have had both time and opportunity to consult with
any other kind of expert or adviser they may deem necessary with
regard to the terms of this Release and the underlying facts
relating to the IPO and the Share Purchase Agreement.
(4) In the event that legal action is brought to enforce, defend, or
construe any of the provisions of this Release, the party whose
position does not prevail will indemnify the other party or
parties for all expenses and costs, including, but not limited
to, attorneys' fees and costs, court costs, and expert fees and
costs.
(5) The Releasing Parties have no reservations, objections,
complaints or claims relating to the Share Purchase Agreement or
any disclosures, negotiations, transactions, discussions,
meetings, or documents related thereto, and the Releasing Parties
hereby irrevocably reaffirm the Share Purchase Agreement. The
Releasing Parties have consulted with their own attorneys and
other financial advisers, but the Releasing Parties have not
relied on the books, records, and IPO documents in reaffirming
the Share Purchase Agreement.
(6) The Releasing Parties understand all terms of the Release and
have executed the Release voluntarily. The Releasing Parties
have no claims of conflict of interest, nondisclosure, fraud,
fraud in the inducement, or coercion whatsoever in connection
with (i) this Release, (ii) the Share Purchase Agreement, (iii)
the Agreement dated the date hereof among Xxxxxx, Xxxxxx Trust,
Xxxxxx, Xxxx, Barley, Pannullo, and Klusaritz, (iv) the Non-
Competition Agreement dated the date hereof, or (v) the Unanimous
Consent of Shareholders to Action in Lieu of a Meeting dated the
date hereof.
(7) The Releasing Parties agree that they will not bring, commence,
institute, maintain, prosecute, or voluntarily aid any action at
law, claim in arbitration, or proceeding in equity, or otherwise
prosecute or xxx any of the Releasees either affirmatively or by
way of cross-complaint, defense, or counterclaim or by any other
way or manner at all, in any court or other legal forum, as to
any of the Released Claims.
(8) Notwithstanding anything to the contrary contained in this
Release, this Release shall not operate, or be deemed, to release
or relieve any party from any rights and obligations continuing
after the date hereof under (a) the Share Purchase Agreement or
under (i) the Note, (ii) the Escrow Agreement, (iii) the Pledge
Agreement, or (iv) the Co-Sale Agreement, each as defined in and
delivered pursuant to the Share Purchase Agreement, or (b) the
Agreement dated the date hereof among Xxxxxx, Xxxxxx Trust,
Xxxxxx, Xxxx, Barley, Pannullo, and Klusaritz, or (c) the Non-
Competition Agreement dated the date hereof, and this Release
shall not apply to any breach arising after the date hereof of
any of the foregoing.
(9) This Release constitutes the entire agreement concerning the
matters referred to herein.
(10) If any part of this Release shall be held to be invalid or
unenforceable, such findings shall not affect the validity or
enforceability of the balance of this Release.
(11) This Release shall not be altered or modified in any way except
by written consent of the Releasing Parties and the Releasees or
of their authorized representatives.
(12) This Release shall be governed by and interpreted in accordance
with the substantive laws of the State of New York without regard
to its conflict of laws provisions.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, this Release was executed and delivered or caused to
be executed and delivered in the name of and on behalf of the parties hereto
as of the date first set forth above.
PT-1 COMMUNICATIONS, INC.
By:
----------------------------------
Name:
--------------------------------
Its:
--------------------------------
--------------------------------
Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxx
--------------------------------
Xxxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx
EXHIBIT C
NON-COMPETITION AGREEMENT
This Non-Competition Agreement ("Non-Competition Agreement") is entered
into as of November 7, 1997 by and between PT-1 Communications, Inc., formerly
known as PhoneTime, Inc., a New York Corporation (the "Corporation"), and
Xxxxxx Xxxxxx (an individual residing at 000 Xxxxx Xxxxx Xxxx, Xxxxxxx Xxxxxx,
Xxxxxxx, 00000).
RECITALS
Concurrently with the execution of this Non-Competition Agreement, the
parties to this Non-Competition Agreement and certain other parties are
entering into that certain agreement dated as of November 7, 1997 titled
Agreement (and to which this Non-Competition Agreement is attached as Exhibit
C and which provides for the execution of this Non-Competition Agreement).
AGREEMENTS
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties, the parties agree as follows:
1. For a period of three years commencing on March 26, 1998 and
ending on March 26, 2001, Xxxxxx Xxxxxx agrees that he will not, singly,
jointly, or as a partner, member, employee, agent, officer, director,
stockholder (except as a holder of not more than five percent (5 percent) of
any class of the outstanding stock of any company listed on a national
securities exchange, or actively traded in a national over-the-counter
market), investor, consultant, independent contractor, or joint venturer of
any other person, corporation, partnership, association, trust, joint venture,
joint stock company, or other unincorporated entity (each, a "Person"), or in
any other capacity, directly, indirectly or beneficially, (i) own, manage,
operate, join, control, or participate in the ownership, management, operation
or control of, or permit the use of his name by, or work for, or provide
consulting, financial, distribution services, other information, or assistance
to, or be connected in any manner with, any business located in the
continental United States that is engaged in providing long distance telephone
services through the use of prepaid calling cards or any business that intends
to engage in the same anywhere in the world, or (ii) induce or attempt to
induce any Person which is a customer of the Company, or which otherwise is a
contracting party with the Company, as of the date hereof, to terminate any
written or oral agreement or understanding or business relationship with the
Company.
2. Xxxxxx Xxxxxx acknowledges and agrees that any breach of this Non-
Competition Agreement by him shall be deemed to be a breach by him under that
certain PhoneTime Inc. Share Purchase Agreement dated as of March 26, 1997
(the "Share Purchase Agreement"), and that in such event, in addition to the
rights and remedies set forth in this Non-Competition Agreement, the non-
breaching parties shall be entitled to exercise any and all rights and
remedies set forth in the Share Purchase Agreement (including the right to
set-off against any payments made pursuant to that certain Secured Promissory
Note by the Company payable to the order of Xxxxxx Xxxxxx dated March 26,
1997).
3. All questions concerning the construction, validity and
interpretation of, and the performance of the obligations imposed by this Non-
Competition Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and wholly to
be performed in that state.
4. This Non-Competition Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one instrument.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, this Non-Competition Agreement was executed and
delivered or caused to be executed and delivered in the name of and on behalf
of the parties hereto as of the date first set forth above.
PT-1 COMMUNICATIONS, INC.
By:
----------------------------------
Name:
--------------------------------
Its:
--------------------------------
--------------------------------
Xxxxxx Xxxxxx
EXHIBIT D
PT-1 COMMUNICATIONS, INC.
(A New York Corporation)
UNANIMOUS CONSENT OF SHAREHOLDERS
TO ACTION
IN LIEU OF A MEETING
The undersigned, constituting all of the shareholders (the
"Shareholders") of PT-1 Communications, Inc., a New York corporation (the
"Company"), hereby waive all notice of time, place or purpose of a meeting and
consent to, approve and adopt the following resolutions pursuant to Section
615 of the Business Corporation Law of the State of New York:
I. RATIFICATION OF CERTAIN ACTIONS
A. GRANTING OF OPTIONS
WHEREAS, on May 9, 1997, in connection with his employment by the
Company, options to acquire 1.498 shares of Common Stock of the Company were
granted to Xxxxxx Xxxxxxxx, at an exercise price of $0.01, which options were
exercised by Xx. Xxxxxxxx on May 20, 1997; and
WHEREAS, on May 26, 1997, in connection with his employment by the
Company, options to acquire 2.738 shares of Common Stock of the Company were
granted to Xxxx Xxxxxxxxx, at an aggregate exercise price of $3.57 million,
which options were exercised by Xx. Xxxxxxxxx on October 15, 1997; and
WHEREAS, the Company has granted options to certain other employees of
the Company as set forth on the attached Schedule A.
NOW, THEREFORE, BE IT:
RESOLVED, that the granting of such options, the reservation of all
shares of Common Stock necessary for the exercise of such options, all of the
terms and conditions of each of the aforementioned options, the issuance of
such shares upon the proper exercise of such options (subject to any
restrictions imposed by the New York Business Corporation Law, including,
without limitation, Section 505 thereof), and all actions taken by the
Company's officers in connection therewith, including without limitation the
execution and delivery of option agreements, are hereby approved, ratified and
confirmed, and each Shareholder hereby irrevocably waives any preemptive
right, right of participation, or right to prior notice of the granting of
such options.
B. ISSUANCE OF WARRANTS
WHEREAS, on June 29, 1997, the Company entered into an agreement (the "IX
Agreement") with InterExchange, Inc. ("IX"), pursuant to which IX agreed,
inter alia, to operate the Company's Debit Card Platform located in Edison,
New Jersey, activating PINs (at the direction of the Company), decrementing
Prepaid Card dollar balances and generating management reports and other
information; and
WHEREAS, in connection with the execution of the IX Agreement, the
Company granted warrants for the purchase of shares of Common Stock to certain
employees of IX (collectively, the "IX Warrants") that are exercisable for
shares of Common Stock with a fair market value (as defined) equal to (i) $1.0
million, at an exercise price equal to $.01 and (ii) $2.0 million, at an
aggregate exercise price equal to $1.0 million (collectively, the "Warrant
Shares"); and
WHEREAS, IX Warrants with respect to 1/3 of the Warrant Shares vest and
become exercisable upon each of: (i) the earlier to occur of the closing of
the Offering (as defined in the IX Warrants) or Xxxxx 00, 0000, (xx) January
l, 1999 and (iii) December l, 1999, in each case if and only if the IX
Agreement has not been terminated on or before such date (other than as a
result of a breach by the Company).
NOW, THEREFORE, BE IT:
RESOLVED, that the granting of the IX Warrants, the reservation of all
shares of Common Stock necessary for the exercise of such IX Warrants, the
issuance of such shares upon the proper exercise of the IX Warrants (subject
to any restrictions imposed by the New York Business Corporation Law), all of
the terms and conditions of the IX Warrants, and all actions taken by the
Company's officers in connection therewith, including without limitation the
execution and delivery of the IX Warrants, are hereby approved, ratified and
confirmed, and each Shareholder hereby irrevocably waives any preemptive
right, right of participation, or right to prior notice of the granting of the
IX Warrants.
II. GENERAL AUTHORIZATION RESOLUTIONS
RESOLVED, that in addition to the specific authorizations set forth in
any of the foregoing resolutions, the Company's officers be, and each of them
hereby is, authorized and directed in the name and on behalf of the Company to
take any and all actions and to execute and deliver from time to time any and
all instruments, requests, receipts, notes, applications, reports,
certificates and other documents as may be necessary or desirable in their
opinion, or in the opinion of any of them, to effectuate, consummate and
comply with the purposes and intent of any of the foregoing resolutions; and
RESOLVED, FURTHER, that whenever it is provided in the foregoing
resolutions that any person or persons may execute any document with such
changes as such person or persons deems necessary or appropriate, the
execution of such document shall be deemed conclusive evidence that the
execution is deemed by such person or persons to be necessary or appropriate;
and
RESOLVED, FURTHER, that any and all actions and all certificates,
agreements and documents executed by any member of the Board or any officer of
the Company, or by any person or persons designated and authorized to act by
any officer or a member of the Board, in the name of or on behalf of the
Company, in connection with the aforesaid matters or otherwise prior to the
date of this Consent are hereby approved, affirmed, ratified and confirmed as
the acts of the Company.
[SIGNATURE PAGE FOLLOWS.]
This Consent shall be filed with the minutes of the Company and may be
executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one instrument.
Dated as of ____________________, 1997.
SHAREHOLDERS:
-------------------------------
Xxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
-------------------------------
Xxxxx Xxxx
-------------------------------
Xxxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxxxx
--------------------------------
Xxxx Xxxxxxxxx
---------------------------------
Xxxxxx Xxxxxx Trust U/A
dated September 9, 1997
