PART 2 OF AN INTERNAL, NOT FOR PUBLICATION DOCUMENT- THIS WAS A ROUGH DRAFT OR SOMETHING and I found it the other night and copied it- a must read
6.6 Fairness Opinion. The Parties agree to obtain promptly after Closing, but in no event later than fifteen (15) days after Closing, an opinion of a firm unaffiliated with any of the Parties as to the fairness of the Merger and the other transactions contemplated by this Agreement to Buyer and to its stockholders generally. To the extent said firm is unable to issue the fairness opinion because of one or more issues, the Parties agree to take all commercially reasonable measures to address such issues.
6.7 Reverse Stock Split; Conversion of Series C Preferred.
6.7.1 As soon as permitted following the Closing Date by applicable Law, including the Corporation Law and relevant federal securities laws, Buyer shall effect a reverse stock split at a ratio of one to 100 or as otherwise determined by Buyer's Board of Directors, in consultation with Mr. Pearlman, as Buyer's Chairman, to increase the trading price of Buyer's Stock for the purpose of potentially gaining admittance for such stock to trade on the NASDAQ National Market, NASDAQ SmallCap Market, or any of the national stock exchanges. Buyer may elect to effect said reverse stock split (i) upon such terms and conditions so as not to require approval of Buyer's stockholders pursuant to Section 78.207 of the Nevada Revised Statutes, in which case, Buyer shall promptly thereafter obtain the approval by written consent of Buyer's stockholders to increase the authorized shares of Buyer Stock to 500,000,000 (par value $0.001 per share) subject to compliance with the Requirement for an Information Statement or (ii) upon the approval by written consent of the holders of the required number of shares of the issued and outstanding capital stock of Buyer (without any reduction in the authorized share capital of Buyer), subject to compliance with
the Requirements for an Information Statement (the effective date of the increase of Buyer's authorized shares of Buyer Stock pursuant to clause (i) of this sentence or the effective date of such reverse stock split effected pursuant to clause (ii) of this sentence, the "Reverse Stock Split Effective Date").
6.7.2 Within five (5) business days following the Additional Share Distribution Date, Buyer and the Series C Holders agree that the Series C Preferred shall be converted into shares of Buyer Stock, at a rate reflecting said reverse stock split, in accordance with the terms and conditions of the Certificate of Designations.
6.8 Future Private Capital Raises. Mr. Pearlman shall use his best efforts to enable Buyer to facilitate one or two private debt or equity capital raises for Buyer in order to rapidly permit Buyer to achieve the financial and business objectives determined by Buyer's Board of Directors.
6.9 Series C Holders Standstill. Until such time as the reverse stock split provided for in Section 6.7.1 has been effected, but in no event later than December 31, 2002, the Series C Holders hereby (i) waive the requirement of Buyer that sufficient numbers of shares of Buyer Stock be reserved for issuance upon conversion of the Series C Preferred, (ii) agree not to enforce their respective rights to the payment upon liquidation set forth in Article Second, Section 4 of the Certificate of Designations solely to the extent such payment is payable as a result of the Merger, and (iii) agree not to enforce the adjustment to Conversion Price (as defined in the Certificate of Designations) set forth in Article Second, Section 6(d)(iv) of the Certificate of Designations solely to the extent such Conversion Price would be adjusted as a result of the Buyer Stock issued in the Merger.
Conditions to Closing
7.1 Conditions to Buyer's and Acquisition Sub's Obligations. The obligations of the Buyer and Acquisition Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of each and every one of the following conditions precedent, any one or more of which may be waived by the Buyer:
7.1.1 Each of the representations and warranties of the Company and the Stockholders set forth in Article 4 of this Agreement and each of the representations and warranties of the Stockholders set forth in Article 5 of this Agreement shall be true and correct in all material respects on and as of the date of this Agreement and as of the Closing Date with the same force and effect as though made on and as of the Closing Date, except for any representation or warranty limited by its terms to a specific date (which representation and warranty shall be correct in all material respects on the date so specified).
7.1.2 The Company and each Stockholder shall have performed and complied in all material respects with all of the other agreements, covenants and obligations required under this Agreement to be performed or complied with by such Person prior to or at the Closing.
7.1.3 The Company shall have delivered to the Buyer a certificate, executed by a duly authorized officer of the Company, in his capacity as such, certifying that the conditions specified in Sections 7.1.1 and 7.1.2 (insofar as they are to be performed by the Company) have been fulfilled. Each of the Stockholders shall have delivered to the Buyer a certificate certifying that the conditions specified in Sections 7.1.1 and 7.1.2 (insofar as they are to be performed by the such Stockholders) have been fulfilled.
7.1.4 There shall be in force no injunction, judgment, order, decree or ruling by or before any Authority of competent jurisdiction restraining, enjoining, prohibiting, invalidating or otherwise preventing the consummation of the transactions contemplated hereby and no action, suit, claim or
proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated hereby.
7.1.5 The Buyer shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Company as to the incumbency and signatures of the officers of the Company executing this Agreement, and certified copies of the Charter and bylaws, each as amended to date, and all relevant corporate actions, and (ii) a certificate issued by the Nevada Secretary of State, as of a date reasonably acceptable to the Buyer, as to the good standing (or non-dissolution, as applicable) of the Company.
7.1.6 Mark R. Tolner shall have entered into an amendment with Buyer to amend his Employment Agreement with Buyer, dated January 28, 2002, the form of which amendment is attached hereto as Exhibit E.
7.1.7 Mr. Pearlman and Mr. McDonald shall have executed and delivered to Buyer the Employment Agreements in the forms attached hereto as Exhibit F (the "Pearlman Employment Agreement") and Exhibit G (the "McDonald Employment Agreement"), respectively.
7.1.8 The Stockholders shall have executed and delivered the side letter agreement in the form attached hereto as Exhibit H (the "Side Letter") and the Lock-up and Escrow Agreement in the form attached hereto as Exhibit I (the "Lock-up and Escrow Agreement").
7.1.9 Louis J. Pearlman and his Affiliates, as applicable, shall have executed and delivered the License Agreement.
7.2 Conditions to Obligations of the Stockholders and the Company. The obligations of the Stockholders and the Company to consummate the transactions contemplated by this Agreement are subject to the satisfaction at or prior to the Closing of each and every one of the following conditions precedent, any of which may be waived only with the consent of the Stockholders:
7.2.1 Each of the representations and warranties of the Buyer set forth in Article 3 hereof shall be true and correct in all material respects on and as of the date of this Agreement and as of the Closing Date with the same force and effect as though made on and as of the Closing Date, except for any representation or warranty limited by its terms to a specific date (which representation and warranty shall be connect in all material respects on the date so specified).
7.2.2 The Buyer and Acquisition Sub shall have performed and complied in all material respects with all of the agreements, covenants and obligations required under this Agreement to be performed or complied with.
7.2.3 The Buyer and Acquisition Sub shall have delivered to the Stockholders a certificate, executed by a authorized officer of the Buyer and Acquisition Sub, in their respective capacities as such, certifying that the conditions specified in Sections 7.2.1 and 7.2.2 have been fulfilled.
7.2.4 There shall be in force no injunction, judgment, order, decree or ruling by or before any Authority of competent jurisdiction restraining, enjoining, prohibiting, invalidating on otherwise preventing the consummation of the transactions contemplated hereby and no action, suit, claim or proceeding shall be pending before any Authority which seeks to prohibit or enjoin the consummation of the transactions contemplated hereby.
7.2.5 The Company and Stockholders shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Buyer and Acquisition Sub as to the incumbency and signatures of the officers of the Buyer and Acquisition Sub executing this Agreement, and containing certified copies of the Charter and bylaws of Buyer and Acquisition Sub, each as amended to date, and all relevant corporate actions, and (ii) a certificate issued by the Nevada Secretary of State, as of a date reasonably acceptable to the Stockholders and the Company, as to the good standing (on non-dissolution, as applicable) of the Buyer and Acquisition Sub.
7.2.6 Buyer shall have executed and delivered the Pearlman Employment Agreement and the McDonald Employment Agreement.
7.2.7 The Series C Holders shall have executed and delivered a Unanimous Written Consent to the effect that such Series C Holders shall not, except as otherwise expressly permitted or required under this Agreement, exercise (i) any voting rights, (ii) any right to express consent or dissent in writing without a meeting or (iii) any right to convert the Series C Preferred into Buyer Stock, from the date hereof to the Additional Share Distribution Date.
8.1 Further Assurances. The Parties shall deliver any and all other instruments or documents required to be delivered pursuant to, or necessary or proper in order to give effect to all of the terms and provisions of this Agreement.
8.2 Publicity. No publicity release or announcement concerning this Agreement or the transactions contemplated hereby shall be made without advance approval thereof by the Buyer and the Stockholders. The Parties agree to cooperate in issuing any press release or other public announcement concerning this Agreement on the transactions contemplated hereby. Nothing contained in this Section 8.2 shall prevent any Party from (i) at any time furnishing any information to any Authority or from making any disclosures required under the Securities Exchange Act of 1934, as amended, or under the rules and regulations of any national securities exchange on which such Party's shares of capital stock are listed, or (ii) furnishing any information concerning the transactions contemplated hereby to such Party's officers, directors, stockholders, partners, Affiliates, lenders, accounts, counsel or representatives.
8.3 Transfer of Buyer Stock. Buyer and the Stockholders agree that no Stockholder shall transfer the shares of Buyer Stock acquired pursuant to this Agreement except where the transferee is an Affiliate of such transferring Stockholder, Buyer provides its written consent thereto (which consent shall not be unreasonably withheld) and provided such transfer complies with all U.S. federal securities laws and blue sky laws. With respect to a Stockholder, all shares of Buyer Stock held by such Stockholder and such Stockholder's Affiliates shall be aggregated together for the purpose of determining the availability of any right under this Agreement.
Remedies for Breach of this Agreement
9.1 Survival of Representations and Warranties. The representations and warranties of the Buyer contained in Article 3 of this Agreement, of the Company and the Stockholders contained in Article 4 and of the Stockholders contained in Article 5 of this Agreement, shall survive the Closing and continue in full force and effect until the first anniversary of the Closing Date.
9.2.1 Subsequent to the Closing Date, the Stockholders shall indemnify, defend and hold harmless the Buyer from, against and in respect of any Losses which the Buyer shall suffer, sustain or become subject to by virtue of or which arise out of, or result from, or relate in any way to, any breach of the pre-Closing covenants, representations and warranties of the Company and the Stockholders set forth in this Agreement.
9.2.2 Subsequent to the Closing Date, Mr. Louis J. Pearlman shall indemnify, defend and hold harmless the Buyer from against and in respect of any Losses which the Buyer shall suffer, sustain or become subject to by virtue of or which arise out of, or result from, or relate in any way to, any breach by Mr. Pearlman of any of his post-closing covenants and obligations under this Agreement.
9.2.3 No Person shall be liable for any claim for indemnification under Sections 9.2.1 or 9.2.2 unless written notice of a claim for indemnification is delivered by the Person seeking indemnification to the Person from whom indemnification is sought. All notices given pursuant to this Section 9.2.3 shall set forth with reasonable specificity the basis for the claim for indemnification.
9.2.4 Promptly after the assertion by any third party of any claim, demand or notice (a "Third Party Claim") against any Person or Persons entitled to indemnification under this Section 9.2 (the "Indemnified Parties") that results or may result in the incurrence by such Indemnified Parties of any Losses for which such Indemnified Parties would be entitled to indemnification pursuant to this Agreement, such Indemnified Parties shall promptly notify the parties from whom such indemnification could be sought (the "Indemnifying Parties") of such Third Party Claim. Thereupon, the Indemnifying Parties shall have the right, upon written notice (the "Defense Notice") to the Indemnified Parties within 30 days after receipt by the Indemnifying Parties of notice of the Third Party Claim (or sooner if such claim so requires) to conduct, at their own expense, the defense against the Third Party Claim in their own names or, if necessary, in the names of the Indemnified Parties. The Defense Notice shall specify the counsel the Indemnifying Parties shall appoint to defend such Third Party Claim (the "Defense Counsel") and the Indemnified Parties shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, conditioned or delayed. In the event the Indemnified Parties and the Indemnifying Parties cannot agree on such counsel within 10 days after the Defense Notice is given, then the Indemnifying Parties shall propose an alternate Defense Counsel, which shall be subject again to the Indemnified Parties' approval which approval shall not be unreasonably withheld, conditioned or delayed. Any Indemnified Party shall have the right to employ separate counsel in any such Third Party Claim and/or to participate in the defense thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by the Indemnified Party unless (i) the Indemnifying Parties shall have failed to give the Defense Notice within the prescribed period, (ii) such Indemnified Party shall have received an opinion of counsel, reasonably acceptable to the Indemnifying Parties, to the effect that the interests of the Indemnified Party and the Indemnifying Parties with respect to the Third Party Claim are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or (iii) the employment of such counsel at the expense of the Indemnifying Parties has been specifically authorized by the Indemnifying Parties. The party or parties conducting the defense of any Third Party Claim shall keep the other parties apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Claim unless the Buyer and the Stockholders consent, such consent not to be unreasonably withheld.
11.1 Notices. Any notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and, except as otherwise specified in writing, shall be given by personal delivery, facsimile transmission, FedEx or UPS (or other similar courier service) or by registered or certified mail, postage prepaid, return receipt requested (i) if prior to the Closing, to the Company, c/o Trans Continental, 7380 Sandlake Road, Suite 350, Orlando, Florida 32819, Attention: President, with a copy to Trans Continental, 7380 Sandlake Road, Suite 350, Orlando, Florida 32819, Attention: Mr. Louis J. Pearlman and (ii) if to the Stockholders or the Buyer, to the addresses for notices set forth on the signature pages hereto (with copies, as applicable, as set forth on such signature pages) and (iii) if to the Surviving Corporation after the Closing, to the address for notices to the Buyer set forth on the signature pages hereto (with copies, as applicable, as set forth on such signature pages), or to such other addresses as any Party may from time to time give notice of (complying as to delivery with the terms of this Section 11.1) to the other. Notice by registered or certified mail shall be effective three days after deposit in the United States mail. Notice by any other permitted means will be effective upon receipt.
11.2 Entire Agreement. This Agreement and the Documents constitute the entire agreement among the Parties with respect to the transactions contemplated hereby and supersede all prior agreements, understandings, negotiations and discussions, both written and oral, among the Parties with respect thereto. This Agreement may not be altered or otherwise amended except pursuant to an instrument in writing signed by the Parties hereto.
11.3 Benefits; Binding Effect; Assignment. This Agreement shall be for the benefit of and binding upon the Parties, their respective successors and, where applicable, assigns. No Party may assign this Agreement or any of its rights, interests or obligations hereunder without the prior approval of the other Party.
11.4 Waiver. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly so provided.
11.5 No Third Party Beneficiary. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any Person other than the Parties and their respective successors and permitted assigns.
11.6 Severability. It is the desire and intent of the Parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
11.7 Expenses. Except as otherwise provided in this Agreement, all legal, accounting and other costs and expenses incurred in connection with this Agreement and the other Documents and the
transactions contemplated hereby and thereby shall be paid by the Parties incurring such expenses, except that the expenses of the Company shall be paid by the Stockholders. No Party shall have the power or authority to incur any costs, fees or expenses for or on the part of any other Party, without the latter's express, advance written consent.
11.8 Section Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of any provisions of this Agreement.
11.9 Counterparts. This Agreement may be executed in any number of counterparts and by the several Parties in separate counterparts, each of which shall be deemed to be one and the same instrument,
11.10 Governing Law; Waiver of Jury Trial.
11.10.1 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF FLOIRDA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF FLORIDA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF FLORIDA.
11.10.2 EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
11.11 Survival. The provisions of this Agreement that either by their express provision or by their sense and context are intended to survive the expiration, performance, cancellation or termination hereof shall so survive the completion of the expiration, performance, cancellation or termination of this Agreement.
11.12 Construction; Counsel.
11.12.1 The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any Party irrespective of which Party caused such provisions to be drafted. Each of the Parties acknowledge that it, he or she has been represented by an attorney in connection with the preparation and execution of this Agreement.
11.12.2 THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THEY HAVE BEEN ADVISED TO SEEK ADVICE OF LEGAL COUNSEL, AND THAT GREENBERG TRAURIG, LLP SERVES AS LEGAL COUNSEL ONLY TO BUYER.
IN WITNESS WHEREOF, the Parties have each executed and delivered this Agreement and Plan of Merger as of the day and year first above written,
TRANS CONTINENTAL CLASSICS, INC.
OPTIONS TALENT GROUP
With a copy to:
TRANS CONTINENTAL ACQUISITION CORP.
With a copy to:
Louis J. Pearlman
With a copy to:
With a copy to:
Louis J. Pearlman 50,000 shares of common stock of Trans Continental Classics, Inc.
50,000 shares of common stock of Trans Continental Classics, Inc.
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is made effective as of the 5th day of September, 2002 by and between Options Talent Group, a Nevada corporation f/k/a Sector Communications, Inc. ("Employer") and Mark R. Tolner (the "Employee").
A. Employer and Employee are parties to that certain Employment Agreement dated January 28, 2002 as amended prior to the date hereof ("Original Employment Agreement").
B. Employer has entered into that certain Agreement and Plan of Merger, of even date herewith, by and among Employer, Trans Continental Classics, Inc. and the other parties named therein (the "Merger Agreement").
C. As a condition to the closing of the Merger Agreement, the parties thereto have agreed that this Amendment be executed by Employer and Employee.
NOW, THEREFORE, in consideration of the foregoing, the parties agree to amend the Original Employment Agreement as follows:
1. Capitalized terms used in this Amendment but not otherwise defined herein shall have the meanings ascribed to them in the Original Employment Agreement.
2. Section 2 of the Original Employment Agreement is hereby deleted and replaced in its entirety with:
"2. The employment of Employee by Employer pursuant to this Agreement shall be for a five (5) year period commencing as of January 28, 2002 (hereinafter referred to as the "Service Period")."
3. Section 3 of the Original Employment Agreement is hereby deleted and replaced in its entirety with:
"3. DUTIES. Employee shall, subject to overall direction of the Board of Directors (the "Board"), serve as, and have all power and authority inherent in the offices of Chief Executive Officer of Employer and each of its subsidiaries and shall be responsible for those areas in the conduct of the business reasonably assigned to him by the Board of the Company; provided, however, not withstanding that Employee is not serving as Employer's president, Employee shall continue the management and operation of Employer and its operating subsidiaries and to represent Employer and its operating subsidiaries in connection with any inquires thereof by the Securities and Exchange Commission. Employee shall devote such of his business time and efforts to the business of Employer as is necessary to discharge his responsibilities.
4. Section 5(C) of the Original Employment Agreement is hereby deleted and replaced in its entirety with:
"(c) SEVERANCE PAYMENTS AND BENEFITS. For purposes of this Agreement, the term "Severance Payments and Benefits" shall mean:
(1) A lump sum payment in immediately available funds on the date of the Triggering Event equal to the product of (A) Employee's highest annual base salary divided by 12, multiplied by (B) the number of full and partial calendar months in the period commencing on the date of such termination through January 28, 2007 (such period, the "Severance Period");
(2) Payment of $10 per model enrolled by Employer and/or its subsidiaries during each full or partial month of the Severance Period, payable in arrears on a monthly basis within 5 business days of the end of any such month ("Severance Bonus Payments"); provided, however, Employer
may elect to pay the estimated net present value of the Severance Bonus Payments upon terms and conditions to be negotiated by the parties in good faith; provided further, however, that during any such negotiation Employer shall continue to make any Severance Bonus Payments as required hereunder; and
(3) Full medical coverage for the Employee and his owner's spouse and minor children until Employee reaches age 65;
(4) All stock options, warrants and other stock appreciation rights issued to Employee by Employer shall immediately vest and become exercisable, and any conditions applicable to contingently issuable options, warrants or other stock appreciation rights shall be waived by Employer; and Employer shall provide Employee written documentation evidencing such accelerated vesting and exercisability and waivers promptly upon Employee's request;
(5) All benefits applicable to Employee as described in Section 4(b) of the Agreement shall continue for a period of one (1) year following the Triggering Event or through the expiration of the Service Period (as if the Triggering Event had not occurred), whichever is later;
(6) Severance Payments and Benefits will not be subject to mitigation in any respect; and
(7) The non-competition and non-solicitation periods described in Section 10 of the Agreement shall be reduced from eighteen (18) months to twelve (12) months."
5. The parties hereto agree that notwithstanding any termination of the Original Employment Agreement, as amended, upon the mutual agreement of the parties hereto the Employee may provide consulting services to Employer at a rate of $300.00 per hour. Any amounts payable as provided in the first sentence of this Section 5 shall be in addition to, and not in lieu of, any other amounts payable by Employer to the Employee under the Original Employment Agreement, as amended.
6. The parties hereto agree that the merger and other transactions contemplated by the Merger Agreement shall not be deemed a "Change of Control" as that term is defined in Section 5(B) of the Original Employment Agreement.
7. Except as expressly set forth in this Amendment, the Original Employment Agreement shall remain in full force and effect.
8. This Amendment may be executed by facsimile and in one or more counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Employment Agreement as of the day and year first above written.
OPTIONS TALENT GROUP
a Nevada corporation
Mark R. Tolner