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EXHIBIT 10.33
DISBURSEMENT AGREEMENT
THIS DISBURSEMENT AGREEMENT (the "Agreement") is made and entered into
as of the 14th day of December, 1998, by and among WORLD ACCESS, INC., a
Delaware corporation ("World Access"), CHERRY COMMUNICATIONS INCORPORATED
(D/B/A RESURGENS COMMUNICATIONS GROUP), an Illinois corporation ("RCG"), and
WILLIAM H. CAUTHEN, ESQ. of the law firm of CAUTHEN & FELDMAN, P.A., a Florida
professional association ("Disbursing Agent").
W I T N E S S E T H:
WHEREAS, certain of the parties hereto have entered into an Agreement
and Plan of Merger and Reorganization dated as of May 12, 1998, as amended, a
copy of which is attached hereto as Exhibit A and incorporated herein by
reference (as so amended, the "Merger Agreement"), pursuant to which, among
other things, a wholly-owned subsidiary of World Access will merge with and
into RCG (the "Merger") at the Effective Time (as defined in the Merger
Agreement; all other capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement)
and RCG as the surviving corporation shall continue to exist as a wholly-owned
subsidiary of World Access;
WHEREAS, RCG has filed for bankruptcy protection under Chapter 11 of
Title 11 of the United States Code, sections 101 et seq. (the "Bankruptcy
Code") and is the Debtor-In-Possession (as defined in the Bankruptcy Code)
under the Debtor's Plan (defined below);
WHEREAS, RCG has filed with the Bankruptcy Court a Debtor's Second
Plan of Reorganization dated September 2, 1998, a copy of which is attached
hereto as Exhibit B and incorporated herein by reference (the "Debtor's Plan"),
which, among other things, provides for the resolution of RCG's outstanding
creditor claims and equity interests (the "Reorganization");
WHEREAS, the Debtor's Plan has been confirmed by the Bankruptcy Court;
WHEREAS, Section 5.1 of the Merger Agreement and Article VII of the
Debtor's Plan call for RCG to issue, at the Effective Time, 3,125,000 shares
(the "Creditor Shares") of its common stock, no par value per share (the
"Reorganized Debtor Stock"), to holders of, and in full satisfaction of,
Allowed Claims and Administrative Expense Claims (including the WNS DIP Loan
Claim (as such term is defined in the Debtor's Plan));
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WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, RCG
shall be deemed to have issued to each holder of an Allowed Claim and an
Administrative Expense Claim (including the WNS DIP Loan Claim) such holder's
pro-rata share of the Creditor Shares based upon the amount of each such claim
in exchange for the surrender of such claims;
WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, on
and concurrently with the Effective Time and the issuance of the Creditor
Shares, the Creditor Shares (being all the outstanding shares of Reorganized
Debtor Stock at such time as a result of the cancellation of all other equity
interests by the Bankruptcy Court as of the Confirmation Date (as defined in
the Debtor's Plan)) shall be deemed cancelled and retired and will cease to
exist and shall be deemed exchanged and converted into the right to receive the
Disbursed Stock (defined below) and the Contingent Payment Stock (defined
below) in accordance with the terms of the Merger Agreement and the Debtor's
Plan;
WHEREAS, Section 5.2 of the Merger Agreement and Sections 7.3 and 7.4
of the Debtor's Plan call for World Access to deliver to the Disbursing Agent,
immediately following the Effective Time, 3,125,000 shares (the "Disbursed
Stock") of the common stock, par value $.01 per share, of World Access (the
"World Access Common Stock") and 6,250,000 shares of World Access Common Stock
(the "Contingent Payment Stock"; together with the Disbursed Stock the
"Deposited Stock"), to hold and distribute such shares pursuant to Articles 5
and 6 of the Merger Agreement and in accordance with the terms and provisions
of the Debtor's Plan;
WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, after
the delivery of the Deposited Stock, the Disbursing Agent shall issue to each
holder of Creditor Shares its pro-rata share of Disbursed Stock based upon the
number of Creditor Shares held by each such holder;
WHEREAS, pursuant to Section 7.3 of the Debtor's Plan and the Merger
Agreement, the Disbursing Agent will then return to World Access shares of
Disbursed Stock equal to (x) the dollar amount of all Cash (as defined in the
Debtor's Plan) that the Reorganized Debtor (as defined in the Debtor's Plan) or
the Surviving Corporation must pay to holders of Allowed Priority Claims (as
defined in the Debtor's Plan) (including the principal amount of Priority Tax
Claims (as defined in the Debtor's Plan)) pursuant to the terms of the Debtor's
Plan, divided by (y) $32.00; and
WHEREAS, pursuant to the Debtor's Plan and the Merger Agreement, the
Disbursing Agent shall release to holders of Creditor Shares their pro-rata
share of Contingent Payment Stock, if, as, when and to the extent that the
Contingent Payment
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Stock (or any portion thereof) is released pursuant to the terms of Article 6
of the Merger Agreement and in accordance with the terms and provisions of the
Debtor's Plan;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DISBURSEMENT DEPOSIT. Subject to the terms and conditions of
the Merger Agreement and the Debtor's Plan, immediately following the Effective
Time, World Access shall cause to be delivered to the Disbursing Agent, to be
held and distributed as hereinafter provided, the Deposited Stock.
2. PROPERTY DISTRIBUTED IN RESPECT OF DEPOSITED STOCK. Any
dividends (within the meaning of Section 301(c)(1) of the Internal Revenue Code
of 1986, as amended (the "Code")) and any distribution which does not
constitute a dividend (within the meaning of Section 301(c)(1) of the Code) in
cash or other property paid with respect to any Disbursed Stock or Contingent
Payment Stock shall be added to the respective Disbursed Stock or Contingent
Payment Stock and shall become a part thereof (the "Stock Proceeds"). The
Deposited Stock shall be adjusted to appropriately reflect any stock dividend,
stock split, reverse stock split or the like.
3. VOTING OF DEPOSITED STOCK. Prior to the distribution of the
Deposited Stock by the Disbursing Agent, the Disbursing Agent will have full
voting rights with respect to the Deposited Stock; provided, however, that the
persons to whom the Contingent Payment Stock is to be released shall have the
right to instruct the Disbursing Agent as to the voting of such shares;
provided, further, that no such instructions may be given to the extent that
such person's ability to earn the Contingent Payment Stock has been permanently
lost pursuant to the provisions of the Debtor's Plan.
4. FEES OF DISBURSING AGENT. The Disbursing Agent shall be
entitled to a fee for its services hereunder (the "Disbursement Fee") equal to
the greater of (i) $20,000 and (ii) the amount based on its normal hourly
billing rate. Except as otherwise expressly provided herein, the Disbursement
Fee and all costs and expenses incurred by the Disbursing Agent in connection
with the establishment and maintenance of the escrow established hereby shall
be payable in one or more installments by World Access upon demand therefor
from the Disbursing Agent.
5. DISTRIBUTION OF DEPOSITED STOCK. The Disbursing Agent shall
distribute the Deposited Stock held by it under this Agreement in accordance
with the terms of Articles 5 and 6 of the Merger Agreement and Article VII of
the Debtor's Plan as set forth below. Unless
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otherwise indicated, all capitalized terms used in this Section 5 but not
otherwise defined in this Agreement shall have the meanings ascribed to such
terms in the Debtor's Plan.
(a) On and concurrently with the Effective Date, Holders of Allowed Class
3 Claims, Allowed Class 4 Claims, Allowed Class 5 Claims, the
Prepetition Arrearage (as that term is defined in the Stipulation and
Agreed Order) portion of the Allowed Class 7 Claim, the WNS DIP Loan
Claim, or any other Allowed Claim otherwise entitled, by agreement
with the Debtor or otherwise, to receive a Pro Rata distribution of
Creditor Shares and then Deposited Stock shall be deemed to have
received their Pro Rata distribution of Creditor Shares; provided,
however, that in lieu of receiving certificate representing shares of
Creditor Shares, such distributions shall be effected by means of
bookkeeping entries reflecting such Holders' ownership of such shares
of Creditor Shares; provided further, however, that on and
concurrently with the Effective Date, all such Holders entitled to
receive a Pro Rata distribution of Creditor Shares shall be and are
hereby immediately entitled to, and shall be deemed immediately to,
exchange their Pro Rata distribution of Creditor Shares for a Pro Rata
distribution of the Disbursed Stock and, if released by the Disbursing
Agent pursuant to Section 7.4 of the Debtor's Plan, the Contingent
Payment Stock.
(b) Immediately upon receipt of the Deposited Stock, the Disbursing Agent
shall issue to each holder of Creditor Shares such holder's pro-rata
share of Disbursed Stock based upon the number of Creditor Shares held
by each such holder as reflected on the stock ledger of RCG to be
delivered to the Disbursing Agent by the Surviving Corporation.
(c) The Disbursing Agent shall return to World Access, within sixty (60)
days after the Effective Date, shares of the Disbursed Stock having a
value that equals the dollar amount of Cash that the Surviving
Corporation must pay to Holders of Allowed Priority Claims and Allowed
Priority Tax Claims pursuant to the terms of the Debtor's Plan, which
amount shall be set forth in writing by the Surviving Corporation and
disclosed to the Disbursing Agent within fifty (50) days after the
Effective Date. In calculating the number of shares of the Disbursed
Stock that will be returned to World Access in accordance with the
preceding sentence, the value of each share of the Disbursed Stock
shall be deemed to equal $32.00, notwithstanding the closing price per
share of the World Access stock as reported by NASDAQ. For example, if
the Surviving Corporation is obligated under the Plan to pay $320,000
in cash on account of the principal amount of Allowed Priority Tax
Claims, the Disbursing Agent shall return 10,000 shares of the
Disbursed Stock to World Access even if the closing price per share of
World Access Stock as reported by NASDAQ is greater than or less than
$32.00.
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(d) (i) The Disbursing Agent will release the Contingent Payment
Stock to Holders of Allowed Claims, pursuant to the terms and
provisions of the Debtor's Plan, on a pro-rata basis, in the amounts
and on the dates specified below, if the sum of the EBITDA for (i) the
Surviving Corporation and (ii) Cherry U.K. for the performance periods
set forth below (each a "Performance Period") equals or exceeds the
Target EBITDA for such Performance Period as set forth below:
PERCENTAGE OF
CONTINGENT
PAYMENT
STOCK TO BE
PERFORMANCE PERIOD RELEASE DATE RELEASED TARGET EBITDA
------------------- ------------ ------------- -------------
July 1, 1998 to and including December 31,
1998 (the "First Performance Period") February 15, 1999 25% $ 7,500,000
January 1, 1999 to and including December
31, 1999 (the "Second Performance
Period") February 15, 2000 37.5% $29,000,000
January 1, 2000 to and including December
31, 2000 (the "Third Performance Period) February 15, 2001 37.5% $36,500,000
Notwithstanding the foregoing, if the Closing Date (as defined in the
Merger Agreement) is (a) on or after July 15, 1998 but prior to August
16, 1998, then the First Performance Period shall commence on August
1, 1998 and shall terminate on (and including) December 31, 1998 and
the Target EBITDA with respect thereto shall be reduced to $7,100,000,
(b) on or after August 16, 1998 but prior to September 30, 1998, then
the First Performance Period shall commence on September 1, 1998 and
shall terminate on (and including) December 31, 1998 and the Target
EBITDA with respect thereto shall be reduced to $6,700,000 or (c) on
or after September 30, 1998, then the First Performance Period shall
commence on the first day of the calendar month in which the Closing
(as defined in the Merger Agreement) occurs and shall terminate on
(and including) the last day of the sixth calendar month following the
month in which the Closing occurs, the release date shall be
forty-five (45) days after the end of such period and the Target
EBITDA shall be equal to the sum of (i) $2,100,000 for each calendar
month of 1998 included in the First Performance Period and (ii)
$2,400,000 for each calendar month of 1999 included in the First
Performance Period.
(ii) If the EBITDA for the Surviving Corporation and Cherry
U.K. is less than the Target EBITDA required for the release of
Contingent Payment Stock in either of the First or Second Performance
Periods (and with respect to the Second Performance Period is no less
than zero), then, notwithstanding the table above, the Contingent
Payment Stock shall be released by the Disbursing Agent if the actual
cumulative EBITDA for the Surviving Corporation and Cherry U.K. for
such Performance Period and any subsequent Performance Periods equals
or exceeds the cumulative Target EBITDA for such Performance Periods.
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(iii) Within forty (40) days of the end of each Performance
Period, World Access shall deliver to the Disbursing Agent a
Certificate of Instruction setting forth the EBITDA and the cumulative
EBITDA of (i) Cherry U.K. and (ii) the Surviving Corporation for each
such Performance Period and, in the event that such EBITDA or
cumulative EBITDA equals the Target EBITDA or the cumulative Target
EBITDA for such Performance Period set forth in Sections 5(c)(i) or
(ii) above (thus permitting the release of the Contingent Payment
Stock in accordance with this Section 5), directing the Disbursing
Agent to make the aforementioned pro-rata disbursement of Contingent
Payment Stock to Holders of Allowed Claims (together with the Stock
Proceeds, if any) specified in Sections 5(c)(i) or (ii) above and set
forth in such Certificate of Instruction. In the event there is a
disagreement or dispute with respect to the determination of the
EBITDA or the cumulative EBITDA of Cherry U.K. and the Surviving
Corporation or the number of shares of Contingent Payment Stock to be
released as a result thereof, World Access shall provide the
Disbursing Agent with one or more supplemental Certificates of
Instruction within five (5) days of any resolution of such
disagreement or dispute, directing the Disbursing Agent with respect
to the release of any Contingent Payment Stock in accordance with this
Section 5 which results from such resolution.
(e) Notwithstanding anything to the contrary, (i) if during any calendar
quarter of the Second Performance Period, the closing price per share
of the World Access Stock as reported by NASDAQ equals or exceeds
$65.00 for any five consecutive Trading Days during such calendar
quarter, then 25% of all of the shares of Contingent Payment Stock
shall be released on February 15, 2000, provided that if no shares of
Contingent Payment Stock are eligible for release during any such
calendar quarter, then such shares of Contingent Payment Stock shall
become eligible for release in a subsequent calendar quarter for the
Second Performance Period if the closing price per share of the World
Access Stock as reported by NASDAQ equals or exceeds $65.00 for a
total number of consecutive Trading Days during such subsequent
calendar quarter equal to or exceeding the total number of Trading
Days which such closing price was required to equal or exceed for (A)
such subsequent calendar quarter and (B) each of the previous calendar
quarters beginning with the calendar quarter for which such shares of
Contingent Payment Stock were not eligible for release; (ii) if the
combined EBITDA for the Surviving Corporation and Cherry U.K. for the
Second Performance Period equals or exceeds $52,775,000, then the
Contingent Payment Stock related to the Third Performance Period shall
be released on February 15, 2000; and (iii) all of the shares of
Contingent Payment Stock shall be released upon a Change of Control
(as defined in the Merger Agreement) (except to the extent that the
ability to earn such shares has been lost under this section) and the
restrictions set forth in Section 7.4(d) of the Debtor's Plan shall
not apply. World Access shall provide written notice to the Disbursing
Agent promptly upon
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the occurrence of any of the foregoing at which time the Disbursing
Agent shall take the action called for by each of the above.
(f) World Access shall provide written notice to the Disbursing Agent as
to the form and content of the restrictive legends (if any) referring
to the restrictions contained in Section 6.4 of the Merger Agreement
(and the waiver thereof pursuant to Section 6.5 of the Merger
Agreement) to be placed on the certificates representing the Disbursed
Stock and the Contingent Payment Stock to be released pursuant to this
Agreement.
(g) For purposes of distributions hereunder, the number of shares of
Disbursed Stock and Contingent Payment Stock shall, if necessary, be
rounded to the next greater or lower whole number of shares as
follows: (i) fractions of1/2or greater shall be rounded to the next
greater whole number; and (ii) fractions of less than1/2shall be
rounded to the next lower whole number; provided, however, that to the
extent that there are interim distributions, the number of shares of
Disbursed Stock or Contingent Payment Stock shall be rounded to the
next lower whole number for purposes of such distribution and in the
final distribution shall be rounded in accordance with the immediately
preceding clause based on the applicable aggregate number of shares of
Disbursed Stock or Contingent Payment Stock distributed to each holder
in all distributions. The total number of shares of Disbursed Stock or
Contingent Payment Stock shall be adjusted as necessary to account for
the rounding provided hereby. No consideration shall be paid in lieu
of fractional shares that are rounded down.
(h) In order to fund the Trust, on the Effective Date, 40,000 shares of
the Disbursed Stock that would otherwise be distributable to Trust
Creditors shall be distributed by the Disbursing Agent to the Trustee
and the Trustee may also request, and the Disbursing Agent shall cause
to be distributed to the Trustee contemporaneously with distributions
of the Contingent Payment Stock to Trust Creditors under the Debtor's
Plan, shares of the Contingent Payment Stock that would otherwise be
available for distribution to Trust Creditors (all the Disbursed Stock
and the Contingent Payment Stock distributed to the Trustee hereunder
is hereinafter referred to as the "Trust Property"). Any distribution
of the Contingent Payment Stock to the Trustee shall not exceed one
percent (1%) of all stock distributable to Trust Creditors for each
distribution of the Contingent Payment Stock provided in the Debtor's
Plan. The Trust Property shall be issued in the name of Scott Peltz,
as Trustee of the Cherry Communications, Inc. Postconfirmation
Monitoring Trust. The Trustee has the full authorization, power and
authority, at his discretion, to endorse, transfer, and sell all Trust
Property in order to fund the expenses incurred by the Trustee and
professionals, including but not limited to the Law Firm, retained by
him under Article VII of the Debtor's Plan, provided, however, that
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the Trust Property held by the Trustee shall be subject to all
transfer and other restrictions that apply to the Disbursed Stock and
the Contingent Payment Stock in Debtor's Plan and the Merger
Agreement.
(i) The Disbursing Agent shall take such other actions as required by the
Debtor's Plan or as requested by World Access and permitted by the
Debtor's Plan.
(j) As soon as practicable on or after the Effective Date, the Disbursed
Stock and the Contingent Payment Stock (if and to the extent it is
released by the Disbursing Agent pursuant to Section 7.4 of the
Debtor's Plan) shall be disbursed by the Disbursing Agent in the
manner and priority set forth in this Plan. The Disbursing Agent has
the authority to make such interim distributions as it may determine
to be appropriate pending a final distribution. The Disbursing Agent
shall hold sufficient Deposited Stock, as applicable, in reserve for
distribution to Holders of Claims to which an objection has been
filed. Upon final determination by the Bankruptcy Court of objections
to allowance of Claims, a final distribution shall be made to all
Holders of Allowed Claims entitled thereto.
(k) In the event that the provisions contained herein conflict in any way
with the provisions of the Debtor's Plan, the provisions contained in
the Debtor's Plan shall control.
6. DUTIES OF THE DISBURSING AGENT. The acceptance by the
Disbursing Agent of its duties under this Agreement is subject to the following
terms and conditions, which the parties to this Agreement hereby agree shall
fully govern and control with respect to the Disbursing Agent's rights, duties,
liabilities and immunities:
(a) The Disbursing Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other paper or document
which the Disbursing Agent believes in good faith emanates from both
World Access and RCG, not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein. The Disbursing
Agent is also relieved from the necessity of satisfying itself as to
the authority of the persons executing this Agreement in a
representative capacity.
(b) The Disbursing Agent shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it in good faith, or for
any mistake of fact or law, or for anything that it may do or refrain
from doing in connection herewith, except for its own gross negligence
or willful misconduct.
(c) The Disbursing Agent may consult with, and obtain advice from,
independent legal counsel selected by the Disbursing Agent in the
event of any question as to any of
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the provisions hereof or its duties hereunder (the cost of obtaining
such advice being borne by World Access in accordance with Section 4
hereof) and it shall incur no liability and shall be fully protected
in acting in accordance with the opinion and instructions of such
counsel.
(d) The Disbursing Agent shall have no duties except those set forth
herein and those set forth in the Debtor's Plan, and the Disbursing
Agent shall not be subject to, or obliged to recognize, any other
agreement between, or direction or instruction of, any of the parties
hereto unless signed by World Access and RCG. The Disbursing Agent
shall not be bound by any notice of a claim, demand or objection with
respect to the Deposited Stock or any waiver, modification,
termination or rescission of this Agreement, unless received by it in
writing signed by World Access and RCG, and, if its duties herein are
materially increased, unless it shall have given its consent thereto.
(e) The Disbursing Agent's acceptance of the appointment as Disbursing
Agent hereunder shall not prevent it from representing any party
hereto in any matter other than a dispute over disbursement of, or
conflicting claims to, the Deposited Stock and related Stock Proceeds,
or otherwise arising hereunder. If any dispute arises over
disbursement of, or conflicting claims to, the Deposited Stock and
related Stock Proceeds, then the Disbursing Agent may interplead such
contested Deposited Stock and related Stock Proceeds into a court of
proper jurisdiction of its choosing, and thereupon the Disbursing
Agent shall be fully and completely discharged of its duties as
disbursement agent with respect to such contested Deposited Stock and
Stock Proceeds.
7. INDEMNIFICATION AND EXPENSE REIMBURSEMENT OF THE DISBURSING
AGENT. World Access agrees to indemnify, defend and hold harmless the
Disbursing Agent from any and all costs, expenses, damages or liability of any
kind whatsoever (including reasonable legal fees) arising by virtue of its
services as disbursement agent hereunder, except for liabilities due to the
Disbursing Agent's gross negligence or willful misconduct, and to reimburse the
Disbursing Agent for all costs and expenses incurred by the Disbursing Agent in
connection with the performance of its duties hereunder other than such costs
and fees incurred in connection with the establishment and maintenance of the
escrow established hereby, which shall be reimbursed pursuant to Section 4
hereof.
8. NOTICE. All notices and other communications hereunder shall
be in writing and shall be deemed given if (a) delivered by hand, (b) mailed by
registered or certified mail (return receipt requested) or (c) telecommunicated
and immediately confirmed both orally and in writing, to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which so
hand-delivered or so telecommunicated or on the third Business Day following
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the date on which so mailed, if deposited in a regularly-maintained receptacle
for United States mail:
If to Disbursing Agent:
Cauthen & Feldman, P.A.
215 North Joanna Avenue
Tavares, Florida 32778-3200
Attn: William H. Cauthen, Esq.
Telecopier: (352) 343-7759
Telephone: (352) 343-2225
If to World Access or RCG:
World Access, Inc.
945 E. Paces Ferry Road
Suite 2200
Atlanta, Georgia 30326
Attn: Mr. Mark A. Gergel
Telecopier: (404) 262-2598
Telephone: (404) 231-2025
with a copy to (which will not constitute notice to World Access or
RCG):
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Steven E. Fox, Esq.
Telecopier: (404) 525-2224
Telephone: (404) 522-4700
and
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attn: Mark K. Thomas, Esq.
Telecopier: (312) 902-1061
Telephone: (312) 902-5200
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9. EXECUTION IN COUNTERPARTS. This Agreement may be executed by
facsimile, and may be executed in several counterparts, each of which shall be
an original, and all of which shall constitute one and the same instrument.
10. APPLICABLE LAW. This Agreement shall be construed and
governed exclusively by the laws of the State of Georgia, without giving effect
to its principles of conflicts of laws.
11. AMENDMENT. This Agreement may be amended or modified only in
a writing signed by all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed and sealed
this Agreement or have caused this Agreement to be duly executed under seal on
its behalf by an officer or representative thereto duly authorized, all as of
the date first above written.
DISBURSING AGENT
William H. Cauthen, Esq. of the law
firm of Cauthen & Feldman, P.A.
By: /s/ William A. Cauthen
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Its: President
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WORLD ACCESS, INC.
By: /s/ Mark A. Gergel
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Its: Executive Vice President
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CHERRY COMMUNICATIONS INCORPORATED
(D/B/A RESURGENS COMMUNICATIONS GROUP):
By: /s/ W. Tod Chmar
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Its: Executive Vice President/
Secretary
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