SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): December 18, 2002
SURF GROUP INC.
(Exact name of registrant as specified in its charter)
New York 0-33513 11-3579554
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification
incorporation) Number)
One Riverfront Plaza, Newark, NJ 07102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (973) 643-7000
57 Main Street, East Hampton, New York, 11937
(Former name or address, if changed since last report)
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Item 1. Changes in Control of Registrant
On January 3, 2003, Surf Group Inc. (the "Company") issued a press
release reporting that Jeffrey R. Esposito, Surf Group's former President and
principal shareholder, and a majority of the shareholders of the Company,
consummated the sale of an aggregate of 4,760,250 shares, or 96%, of the
Company's common stock, to a group of individual purchasers from the United
Kingdom. The purchasers paid an aggregate purchase price of $260,000 for the
shares. The purchase agreement governing the sale, as subsequently amended to
increase the purchase price by $10,000(the "Purchase Agreement"), was executed
by the parties on November 6, 2002 and the closing under the Purchase Agreement
(the "Closing") occurred as of December 18, 2002. Each of the purchasers
utilized personal funds to purchase the shares. A copy of the Company's press
release is attached hereto as Exhibit 99.1.
At the Closing, pursuant to the Purchase Agreement, the Company's
existing officers and Board of Directors resigned and four persons designated by
the purchasers were elected as the new officers and directors of the Company
(this group is sometimes referred to herein as the "New Management Group"). The
New Management Group consists of the following individuals: Keith Freeman, Roger
Albert Coomber, Simon Anthony Michael Leatham and Robin Alistair Waterer.
In addition, at the Closing, certain shareholders of the Company
(other than the selling shareholders) granted to the purchasers or their
assignees, an option to purchase an aggregate of 165,445 additional shares of
common stock (the "Option"). Under the terms of the Option, the purchasers are
entitled to purchase: (1) an aggregate of up to 45,000 shares for $.30 per share
for a period of three months from the Closing; (2) an aggregate of up to 40,000
shares for $.50 per share for a period of six months from the Closing; (3) an
aggregate of up to 45,000 shares for $.625 per share for a period of nine months
from the Closing and (4) an aggregate of up to 35,445 shares at prices ranging
from $1.125 to $3.375 per share for the period ending July 7, 2003.
As a condition to the consummation of the Purchase Agreement, certain
shareholders holding an aggregate of 4,554 shares of common stock entered into a
lock-up agreement with the Company pursuant to which such shareholders agreed
not to sell their shares until after July 7, 2003.
Copies of the Purchase Agreement and the lock-up agreement are
attached as Exhibits 99.2 and 99.3, respectively, to the Company's Current
Report on Form 8-K dated November 6, 2002, and are incorporated by reference
into this Report.
Item 2. Acquisition or Disposition of Assets
Prior to the closing of the Purchase Agreement, the Company
distributed to its historic shareholders the shares of its wholly owned
subsidiary Espos Limited which operated the retail surf clothing business in
which the Company had been historically engaged.
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The Company also reported that immediately after the closing of the
Purchase Agreement, the Company, its wholly-owned subsidiary Surf Group
Acquisition Corp. ("Acquisition"), and tds (Telemedicine) Inc. ("TDS") completed
the merger of TDS with Acquisition as a result of which TDS has become a
wholly-owned subsidiary of the Company. The parties entered into an agreement
and plan of merger dated as of December 18, 2002 (the "Merger Agreement") as
reported in the Company's Current Report on Form 8-K dated November 14, 2002.
Prior to the merger, TDS was controlled directly by the New Management Group.
Pursuant to the Merger Agreement, the holders of TDS common stock received
an aggregate of 2,994,072 shares of common stock of the Company. Further, in
connection with the merger, the individual UK purchases contributed back to to
the Company 4,314,250 shares of Company Common Stock. A majority of the TDS
common stock holders consisted of the New Management Group. As a result of the
consummation of the merger, the New Management Group owns approximately 66.2% of
the Company's common stock.
A copy of the Merger Agreement is attached as Exhibit 99.2 to this
Current Report on Form 8-K and is incorporated by reference into this Report.
Concurrently with the closing of the Merger Agreement, the Company
completed the stock purchase agreement (the "Subsidiary Stock Purchase
Agreement") with Jeffrey Esposito by which the Company's wholly owned subsidiary
Pro Surf Inc. which operated the wholesale surf clothing business in which the
Company has historically been engaged. The purchase price for the sale of this
business was $10,000. As a result of the sale of the Company's wholesale
business, the Company is engaged solely in the business of TDS.
Upon the closing of the foregoing transactions, the Company's Board
of Directors declared a forward stock split to be effective December 30, 2002.
The forward stock split was on a one for eighteen basis on the
Company's issued and outstanding Common Stock, par value $.001. Every holder of
record of this Company's Common Stock, as of December 30, 2002 (the "Record
Date"), shall be entitled to seventeen (17) additional shares of the Company's
Common Stock for each share of Common Stock held. There shall be no change in
par value of the Company's Common Stock, which shall remain at $.001. All
shareholders of the Company's Common Stock, as of the Record Date, will be
issued 17 additional shares of Common Stock for each share owned. The additional
shares will be issued in the name as they appear of record.
As a result of the one into eighteen forward stock split, the Company
shall have 65,521,296 post forward-split shares of Common Stock issued and
outstanding instead of 3,640,072 pre forward-split shares. The Company shall
continue to have 100,000,000 post forward-split shares of Common Stock
authorized.
The Company's CUSIP number and trading symbol "SRFG" will not change
as a result of the forward stock split.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Business Acquired
The financial statements relating to TDS are not included in this report
and will be filed by amendment to this Current Report on Form 8-K on or before
March 4, 2003.
(c) Exhibits
99.1 Press Release dated January 3, 2003.
99.2 Agreement and Plan of Merger dated as of December 18, 2002.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SURF GROUP INC.
By: /s/ Roger Alber Coomber
________________________
Name: Roger Albert Coomber
Title: Chief Executive Officer
Dated: As of December 18, 2002
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EXHIBIT INDEX
Exhibit No. Exhibit
- ---------- -------
99.1 Press Release dated January 3, 2003.
99.2 Agreement and Plan of Merger dated as of December 18, 2002.
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Exhibit 99.1
UK Investors Purchase Control of Surf Group; Merger with Telemedicine
Company Completed; One For Eighteen Forward Stock Split
NEWARK, N.J.--Jan. 3, 2003--Surf Group Inc. (OTCBB: SRFG) today
announced that as a result of a series of corporate transactions
culminating in a one for eighteen forward stock split, the Company
shall have 65,521,296 post forward-split shares of Common Stock issued
and outstanding instead of 3,640,072 pre forward-split shares.
The Company shall continue to have 100,000,000 post forward-split
shares of Common Stock authorized. The Company is now solely engaged
in the telemedicine business where its wholly owned subsidiary TDS
(Telemedicine), Inc. has been in operation in England since 1996 and
will commence operations in Texas in the first quarter of 2003.
The transactions leading to this change in shares issued and line
of business arose from the following:
First, as previously announced Jeffrey R. Esposito, Surf Group's
former President and principal shareholder, and a majority of the
shareholders of the Company, had previously agreed to sell and has now
sold an aggregate of 4,760,250 shares, or 96%, of the Company's common
stock to a group of individual purchasers from the United Kingdom. The
purchasers paid an aggregate purchase price of $260,000 for the
shares.
The purchasers also received an option from certain other
shareholders of the Company to acquire an additional 165,445 shares of
Common Stock over the period ending July 7, 2003.
Second, in connection with the sale, the existing officers and
directors of Surf Group resigned and a new management team designated
by the purchasers was elected as the new officers and directors. The
new officers of the Company, all of whom were also elected as
directors, are: Roger Albert Coomber, Chief Executive Officer, Keith
Freeman, Chief Medical Officer, Simon Anthony Michael Leatham, Chief
Financial Officer and Robin Alistair Waterer, Secretary. The new
management team has been engaged in the ownership and operation of a
telemedical diagnostic service focused on dermatology in the United
Kingdom. This group formed TDS (Telemedicine) Inc., a Delaware
company, as part of its plan to expand the provision of telemedicine
services to the United States. TDS also serves as parent company for
the United Kingdom telemedicine business.
Third, in connection with the change of control, the Company
completed the agreement and plan of merger with TDS under which TDS
merged with the Company's wholly-owned acquisition subsidiary, as a
result of which TDS has become a wholly-owned subsidiary of the
Company. Prior to the merger, TDS was controlled by the Company's new
management team.
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Under the merger agreement, the common stockholders of TDS
received an aggregate of 2,994,072 shares of common stock of the
Company, which amounted to approximately 85.5% of the Company after
the merger and related transactions. Further, in connection with the
merger the individual UK purchasers contributed back to the Company
4,314,250 shares of Company Common stock. As a result of the merger,
the Company's new management team, which comprised a majority of the
TDS common stockholders, owns approximately 66% of the Company.
Concurrently with the completion of the merger agreement, the
Company consummated a subsidiary stock purchase agreement with
Jeffrey Esposito transferring to Mr. Esposito the Company's wholly
owned subsidiary Pro Surf Inc. which held the assets and liabilities
of the wholesale surf clothing business in which the Company had
historically been engaged. The purchase price for the sale of such
subsidiary was $10,000. As a result of the sale, the Company is
engaged solely in the business of telemedicine.
TDS (Telemedicine) Ltd. is a dermatological telemedicine service
provider in the United Kingdom and intends to commence similar
services in the United States as TDS (Telemedicine) Inc.
Finally, upon the closing of the foregoing transactions, the
Company's Board of Directors declared a forward stock split to be
effective December 30, 2002.
The forward stock split was on a one for eighteen basis on the
Company's issued and outstanding Common Stock, par value $.001. Every
holder of record of the Company's Common Stock, as of December 30,
2002 (the "Record Date"), is entitled to seventeen (17) additional
shares of the Company's Common Stock for each share of Common Stock
held. There shall be no change in par value of the Company's Common
Stock, which shall remain at $.001. All shareholders of the Company's
Common Stock, as of the Record Date, will be issued 17 additional
shares of Common Stock for each share owned. The additional shares
will be issued in the name as they appear of record.
As a result of the one for eighteen forward stock split, the
Company shall have 65,521,296 post forward-split shares of Common
Stock issued and outstanding instead of 3,640,072 pre forward-split
shares. The Company shall continue to have 100,000,000 post
forward-split shares of Common Stock authorized.
The Company's CUSIP number and trading symbol "SRFG" will not
change as a result of the forward stock split.
Forward Looking Statements
Some of the statements in this news release are forward looking
statements and we caution our shareholders and others that these
statements involve certain risks and uncertainties. Factors that may
cause actual results to differ from expected results include the
success of the Company in expanding the telemedicine business to the
United States, the effects of various health care rules and
regulations, the Company's ability to obtain necessary funding when
needed, and other business factors. Investors should also review other
risks and uncertainties discussed in company documents filed with the
Securities and Exchange Commission.
CONTACT: Surf Group Inc., Newark
Roger Coomber, 011-44-0-161-236-7850
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EXHIBIT 99.2
--------------------------------------------------
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
SURF GROUP, INC.
SURF GROUP ACQUISITION CORP.
AND
TDS (TELEMEDICINE) INC.
--------------------------------------------
Dated as of December 18, 2002
--------------------------------------------
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December 18,
2002, by and among (i) Surf Group, Inc., a New York corporation, whose address
is 57 Main Street, East Hampton, New York 11937("Parent"), (ii) Surf Group
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent, whose address is the same as Parent ("Acquisition") and (iii) tds
(Telemedicine) Inc. a Delaware corporation, whose address is c/o CORPORATION
SERVICE COMPANY 2711 Centerville Road, Suite 400,Wilmington, DE 19808 ("TDS").
BACKGROUND
A. TDS is a leading provider of dermatological telemedicine services. TDS
desires to raise capital to be used for working capital purposes for the
introduction of its dermatological telemedicine services into the Unites States.
B. Acquisition is a wholly-owned subsidiary of Parent and was formed to
merge with and into TDS so that as a result of the Merger, as defined below, TDS
will survive and become a wholly-owned subsidiary of Parent.
C. The Boards of Directors of each of Parent, Acquisition and TDS have
determined that this Agreement and the merger of Acquisition with and into TDS
(the "Merger") in accordance with the provisions of the Section 251 of DGCL, and
subject to the terms and conditions of this Agreement, is advisable and in the
best interests of Parent and TDS and their respective stockholders.
D. The Parties desire that the Merger and related transactions qualify as a
"plan of reorganization" under Section 368(a) of the Code and not subject the
holders of shares of TDS to tax under the Code.
E. Certain capitalized terms used in this Agreement without definition
shall have the respective meanings given them in Section 14.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto intending to be legally bound do hereby agree
as follows:
1. THE MERGER.
1.1 General.
(a) Upon the terms and subject to the conditions of this Agreement and in
accordance with the DGCL, at the Effective Time (as defined in Section 1.1(b)),
(i) Acquisition shall be merged with and into TDS, (ii) the separate corporate
existence of Acquisition shall cease, and (iii) TDS shall be the surviving
corporation (the "Surviving Corporation"). As a result of the Merger, the
outstanding shares of common stock of TDS shall be exchanged and cancelled in
the manner provided in Section 1.5. With respect to references in this Agreement
relating to any obligations or duties of TDS accruing after the Effective Time,
the usage of the defined term "TDS" as opposed to "Surviving Corporation" shall
not operate to negate any such obligations or duties.
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(b) The Merger shall become effective at the time of filing of a
certificate of merger (the "Certificate of Merger"), substantially in the form
attached hereto as Exhibit A, with the Secretary of State of the State of
Delaware in accordance with the provisions of Section 251 of the DGCL, or at
such later time as may be stated in the Certificate of Merger (the "Effective
Time"). Subject to the terms and conditions of this Agreement, TDS and
Acquisition shall duly execute and file the Certificate of Merger with the
Secretary of State of the State of Delaware at the time of the closing of the
Merger (the "Closing"). The Closing shall take place at the Newark, New Jersey
offices of Sills Cummis Radin Tischman Epstein & Gross, P.A., commencing at
10:00 a.m. or on such other date, (not later than the Expiration Date), time and
place as the parties may mutually agree (the "Closing Date").
(c) At the Effective Time, the effect of the Merger shall be as provided in
the applicable provisions of the DGBCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the property, rights,
privileges, powers and franchises of TDS and Acquisition shall vest in the
Surviving Corporation, and all debts, liabilities, obligations, restrictions,
disabilities and duties of TDS and Acquisition shall become the debts,
liabilities, obligations, restrictions, disabilities and duties of the Surviving
Corporation.
1.2 Certificate of Incorporation. The Certificate of Incorporation of
TDS, as in effect immediately prior to the Effective Time, shall
be the Certificate of Incorporation of the Surviving Corporation
until thereafter amended as provided therein or by applicable
law.
1.3 By-Laws. The By-laws of TDS, as in effect immediately prior to
the Effective Time, shall be the By-laws of the Surviving
Corporation until thereafter amended as provided therein or by
applicable law.
1.4 Directors and Officers. From and after the Effective Time, (a)
the directors of TDS at the Effective Time shall be the directors
of the Surviving Corporation, each to hold office in accordance
with the Certificate of Incorporation and By-laws of the
Surviving Corporation and, (b) the officers of TDS at the
Effective Time shall be the initial officers of the Surviving
Corporation, in each case, until their respective successors are
duly elected or appointed and qualified.
1.5 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of Parent, Acquisition,
TDS or the holders of any of the following securities:
(a) Each issued and outstanding share of common stock of
Acquisition shall be converted into one validly issued,
fully paid and nonassessable share of common stock, par
value $.001 per share, of the Surviving Corporation;
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(b) Each share of capital stock of TDS ("TDS Capital Stock") of
any class or series owned or held in treasury by TDS shall
be canceled and retired without any conversion thereof and
no payment or distribution shall be made with respect
thereto;
(c) All of the shares of TDS Common Stock, par value $.01 per
share ("TDS Common Stock") issued and outstanding
immediately prior to the Effective Time (other than shares
canceled in accordance with Section 1.5(b)) shall be
converted into shares of validly issued, fully paid and
nonassessable shares of Common Stock, par value $.001 per
share, of Parent (the "Parent Common Stock") on the basis of
0.36 shares of Parent Common Stock for each one share of TDS
Common Stock such that the aggregate of 8,316,867 shares of
TDS Common Stock shall be converted into an aggregate of
2,994,072 shares of Parent Common Stock. As of the Effective
Time, each share of TDS Common Stock shall no longer be
outstanding and shall automatically be canceled and retired,
and each holder of record of a certificate representing any
shares of TDS Common Stock shall cease to have any rights
with respect thereto, other than the right to receive such
holder's prorata portion of the shares of the Parent Common
Stock to be issued in consideration therefor upon the
surrender of such certificate, if and to the extent
requested by such holder;
(d) Each share of TDS Series A Preferred Stock, par value $.01
per share ("TDS Series A Preferred Stock") issued and
outstanding immediately prior to the Effective Time (other
than shares canceled in accordance with Section 1.5(b))
shall not converted and shall continue to remain validly
issued, fully paid and nonassessable.
1.6 Exchange Procedures; Distributions with Respect to Unexchanged
Shares; Stock Transfer Books.(a) From time to time after the
Effective Time until the date on which less than 1% of the TDS
Common Stock (calculated on a fully diluted basis) remain to be
surrendered, Parent shall make available to the TDS Holders,
certificates representing shares of the Parent Common Stock to be
issued pursuant to Section 1.5(c) to such TDS Holders in exchange
for their shares of TDS Common Stock. Such shares of Parent
Common Stock, are referred to herein as the "Exchange Fund."
(b) As soon as practicable after the Effective Time, Parent
shall send to each Person who shall have been, at the
Effective Time, a holder of record (the "TDS Holder") of
certificates which represented outstanding TDS Common Stock
(the "Certificates"), which shares were converted into the
right to receive Parent Common Stock pursuant to Section
1.5(c), a letter of transmittal which (i) shall specify that
delivery shall be effected, and risk of loss and title to
such Certificates shall pass, only upon actual delivery
thereof to Parent and (ii) shall contain instructions for
use in effecting the surrender of the Certificates. Upon
surrender to Parent of Certificates for cancellation,
together with such letter of transmittal duly executed and
such other documents as Parent may reasonably require, such
TDS Holder shall be entitled to receive in exchange therefor
a certificate representing the number of shares of Parent
Common Stock into which the applicable portion of TDS Common
Stock represented by the surrendered Certificate shall have
been converted at the Effective Time, and the Certificates
so surrendered shall then be canceled. Until surrendered as
contemplated by this Section 1.6(b), each Certificate from
and after the Effective Time shall be deemed to represent
only the right to receive, upon such surrender, the number
of shares of Parent Common Stock into which such TDS Common
Stock shall have been converted.
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(c) If any Certificate representing Parent Common Stock is to be
issued to any Person other than the registered holder of the
Certificate surrendered in exchange therefor, it shall be a
condition to such exchange that such surrendered Certificate
shall be properly endorsed and otherwise in proper form for
transfer and such Person either (i) shall pay to Parent any
transfer or other taxes required as a result of the issuance
of such certificates of Parent Common Stock and the
distribution of such cash payment to such Person or (ii)
shall establish to the satisfaction of Parent that such tax
has been paid or is not applicable. Parent shall be entitled
to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares
of TDS Common Stock such amounts as Parent is required to
deduct and withhold with respect to the making of such
payment under the Code, or any provision of any other
applicable tax law. To the extent that amounts are so
withheld by Parent, such withheld amounts shall be treated
for all purposes of this Agreement as having been paid to
the holder of the shares of TDS Common Stock in respect of
which such deduction and withholding was made by Parent. All
amounts in respect of taxes received or withheld by Parent
shall be disposed of by Parent in accordance with the Code
or such other applicable tax law.
(d) If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by
the Person claiming such Certificate to be lost, stolen or
destroyed and subject to such other customary conditions as
the board of directors of the Surviving Corporation and
Parent may impose, Parent shall issue in exchange for such
lost, stolen or destroyed Certificate the shares of Parent
Common Stock as determined under Section 1.5(c) in respect
of such Certificate; provided, that Parent may, in its
reasonable discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or
destroyed Certificate to deliver a bond in such sum as it
may reasonably require as indemnity against any claim that
may be made against Parent or the Surviving Corporation with
respect to the Certificate alleged to have been lost, stolen
or destroyed.
(e) From and after the Effective Time, the holders of shares of
TDS Common Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect
to such shares except as otherwise provided herein or by
applicable law.
1.7 Stock Certificate Legends. Each stock certificate delivered by
Parent to a stockholder of TDS (a "TDS Stockholder") will be
imprinted with legends substantially in the following form:
THE SHARES THIS CERTIFICATE REPRESENTS HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE
OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED,
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FILED BY THE ISSUER WITH THE SECURITIES AND EXCHANGE COMMISSION
COVERING SUCH SHARES UNDER THE SECURITIES ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.
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1.8 Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any
deeds, bills of sale, assignments or assurances or any other acts
or things are necessary, desirable or proper (a) to vest, perfect
or confirm, of record or otherwise, in the Surviving Corporation,
its right, title or interest in, to or under any of the rights,
privileges, powers, franchises, properties or assets of either
TDS or Acquisition or (b) otherwise to carry out the purposes of
this Agreement, the Surviving Corporation and its proper officers
and directors or their designees shall be authorized to execute
and deliver, in the name and on behalf of either TDS or
Acquisition, all such deeds, bills of sale, assignments and
assurances and do, in the name and on behalf of TDS or
Acquisition, all such other acts and things necessary, desirable
or proper to vest, perfect or confirm its right, title or
interest in, to or under any of the rights, privileges, powers,
franchises, properties or assets of TDS or Acquisition, as
applicable, and otherwise to carry out the purposes of this
Agreement.
2. REPRESENTATIONS AND WARRANTIES CONCERNING TDS.
TDS represents and warrants to Parent and Acquisition that the
statements contained in this Section 2 are correct and complete as of the date
of this Agreement and will be correct and complete as of the Closing Date (as
though made then and, except as expressly provided in a representation or
warranty, as though the Closing Date were substituted for the date of this
Agreement throughout this Section 2, except as set forth in the disclosure
schedules TDS has delivered to Parent on the date hereof).
2.1 Organization. TDS is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
creation, formation or organization and has all requisite
corporate power and authority and all necessary governmental
approval to carry on its business as it has been and is now being
conducted and any businesses in which it currently proposes to
engage. TDS is duly qualified or licensed as a foreign entity to
do business, and is in good standing, in each jurisdiction where
such qualification or license is required, except where the
failure so to qualify would not have a Material Adverse Effect.
2.2 Capitalization and Other Rights.
(a) The total authorized shares of capital stock of TDS consists
of (i) 20,000,000 shares of TDS Common Stock, of which (A)
8,316,867 shares are issued and outstanding, (B) 1,340,000
shares have been reserved for the conversion of TDS
Non-Voting Series A Preferred Stock (the "Reserved TDS
Common Shares"), and (ii) 2,000,000 shares of serial
preferred stock, par value $0.01 per share (the "TDS
Preferred Stock"), of which (A) 1,340,000 shares have been
designated as TDS Series A Preferred Stock, 699,400 shares
of which are issued and outstanding. All of the issued and
outstanding shares of TDS Common Stock have been duly and
validly authorized and issued and are fully paid and
nonassessable, and all of the Reserved TDS Common Shares,
when issued upon the conversion or exercise of the TDS
Preferred Stock will be duly and validly authorized and
issued and fully paid and nonassessable. All the issued and
outstanding shares of TDS Preferred Stock have been duly and
validly authorized and issued and are fully paid and
nonassessable. None of the TDS Common Stock has been issued,
and none of the TDS Common Stock will be issued in
violation, of the preemptive rights of any TDS Stockholder.
The issued and outstanding shares of TDS Common Stock and
issued and outstanding shares of TDS Preferred Stock have
been issued, and the shares of TDS Common Stock to be issued
upon the conversion of TDS Preferred Stock will be issued,
in compliance in all material respects with applicable
Federal and state securities laws and regulations.
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(b) Except as set forth in Schedule 2.2(b) there are no proxies,
agreements or understandings with respect to the voting of
any of the shares of TDS Common Stock or the direction of
the business operations or conduct of TDS, except as
contemplated by this Agreement.
(c) Schedule 2.2(c) sets forth a true and complete list of all
holders of TDS capital stock (including the amount and type
of security beneficially owned by such holder), together
with the address of each such stockholder as currently shown
on TDS's books and records.
2.3 Authority; No Conflicts; Consents.
(a) TDS has full corporate power and authority to execute,
deliver and perform this Agreement and the transactions
contemplated hereunder. Except as set forth on Schedule
2.3(a), the execution, delivery and performance of this
Agreement by TDS has been duly authorized and approved by
all necessary corporate or other action, and no other
corporate or other proceedings on the part of TDS are
necessary to authorize this Agreement and the transactions
contemplated hereby. This Agreement is the legal, valid and
binding obligation of TDS, enforceable in accordance with
its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors rights generally and by the effect of general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(b) The execution, delivery and performance by TDS of this
Agreement and the consummation of the Merger do not, and
will not, (i) violate or conflict with any provision of the
Certificate of Incorporation or By-laws of TDS, (ii) violate
any law, rule, regulation, order, writ, injunction, judgment
or decree of any court, governmental authority or regulatory
agency applicable to TDS, except for violations which,
individually or in the aggregate, would not have a Material
Adverse Effect, or (iii) result in a violation or breach of,
or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any note,
bond, indenture, lien, mortgage, lease, permit, guaranty or
other agreement, instrument or obligation to which TDS is a
party or by which any of its assets may be bound, except for
violations, breaches or defaults which, individually or in
the aggregate, would not have a Material Adverse Effect.
(c) The execution and delivery of this Agreement by TDS does
not, and the performance by TDS of this Agreement will not,
require any consent, approval, authorization or permission
of, or filing with or notification of any governmental or
regulatory authority, domestic or foreign, or any other
Person except for (i) the filing and recordation of
appropriate merger documents as required by the DGCL, (ii)
the approval of the TDS Stockholders and (iii) any such
consent, approval, authorization, permission, notice or
filing which, if not obtained or made, would not have a
Material Adverse Effect.
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(d) The Board of Directors of TDS has approved this Agreement
and the transactions contemplated hereby, has determined
that the terms of the Merger are in the best interests of
the TDS Stockholders, and has resolved to recommend the
approval of the Merger and the adoption of this Agreement
and the consummation of the transactions contemplated hereby
to the TDS Stockholders.
(e) Pursuant to the provisions of the DGCL, the Certificate of
Incorporation of TDS, the By-laws of TDS and any other
applicable law, the only approval of TDS Stockholders
required to approve the Merger and to approve and adopt this
Agreement and the transactions contemplated hereby is the
approval of a majority of the outstanding shares of TDS
Common Stock.
2.4 Charter Documents. TDS has previously furnished to Parent a true,
complete and correct copy of the Certificate of Incorporation and
By-laws of TDS as in effect as of the date of this Agreement.
2.5 Reorganization. TDS has not taken any action or failed to take
any action which action or failure would reasonably be expected
to jeopardize the qualification of the Merger as a reorganization
within the meaning of Section 368(a) of the Code.
3. REPRESENTATIONS AND WARRANTIES OF ACQUISITION AND PARENT.
Each of Acquisition and Parent represents and warrants to TDS as
follows:
3.1 Organization. Schedule 3.1 set forth the jurisdictions in
which Parent and Acquisition are incorporated. Each of
Parent and Acquisition is a corporation duly organized,
validly existing and in good standing under the laws of its
respective state of incorporation, and has all requisite
corporate and authority and all necessary governmental
approvals to enter into this Agreement and the transactions
contemplated hereby to be performed by it.
3.2 Capital Structure.
(a) Schedule 3.2(a) sets forth the authorized
capitalization of Parent and the number of shares of
each class or series of Parent's capital stock that are
issued and outstanding as of the date of this
Agreement, consisting of the number of shares of
Parent's common stock ("Parent Common Stock") that are
so issued and outstanding. All of the issued and
outstanding shares of Parent Common Stock have been
duly and validly authorized and issued and are fully
paid and nonassessable. None of the Parent Common Stock
has been issued and none of the Parent Common Stock
will be issued in violation of the preemptive rights of
any stockholder of Parent. The issued and outstanding
Parent Common Stock has been issued in compliance in
all material respects with all applicable Federal and
state securities laws and regulations. The shares of
Parent Common Stock to be issued pursuant to the Merger
will be duly and validly authorized and issued, will be
fully paid and nonassessable and will be issued in
compliance with all applicable Federal and state
securities laws and regulations. The authorized capital
stock of Acquisition consists of 1,000 shares of common
stock, $0.001 par value per share, of which 100 shares
are issued and outstanding.
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(b) Except as set forth in Schedule 3.2(b), there are no
existing agreements, subscriptions, options, warrants,
calls, commitments, trusts (voting or otherwise), or
rights of any kind whatsoever granting to any Person
any interest in or the right to purchase or otherwise
acquire from Parent or granting to Parent any interest
in or the right to purchase or otherwise acquire from
any Person, at any time, or upon the occurrence of any
stated event, any securities of Parent, whether or not
presently issued or outstanding, nor are there any
outstanding securities of Parent, or any other entity
which are convertible into or exchangeable for other
securities of Parent, nor are there any agreements,
subscriptions, options, warrants, calls, commitments or
rights of any kind granting to any Person any interest
in or the right to purchase or otherwise acquire from
Parent or any other Person any securities so
convertible or exchangeable, nor, to the best knowledge
of Parent, are there any proxies, agreements or
understandings with respect to the voting of the Parent
Common Stock or the direction of the business
operations or conduct of Parent, except as contemplated
by this Agreement.
3.3 Authority; No Conflicts; Consents.
(a) Each of Parent and Acquisition has full corporate power
and authority to execute, deliver and perform this
Agreement and the transactions contemplated hereunder.
The Board of Directors of Acquisition (the "Acquisition
Board") has declared the Merger advisable and approved
this Agreement and resolved to recommend the approval
of the Merger and adoption of this Agreement and the
consummation of the transactions contemplated hereby to
the sole stockholder of Acquisition. The execution,
delivery and performance of this Agreement by each of
Parent and Acquisition has been duly authorized and
approved (i) in the case of Acquisition, by the
Acquisition Board and Parent, its sole stockholder, and
(ii) in the case of Parent, by all necessary corporate
action and, except for (A) the adoption of this
Agreement by the stockholders of Acquisition and (B)
the filing of appropriate merger documents as required
by the DGCL, no other corporate proceedings other than
actions previously taken on the part of either Parent
or Acquisition are necessary to authorize this
Agreement and the transactions contemplated hereby.
This Agreement has been duly authorized, executed and
delivered by each of Parent and Acquisition and is the
legal, valid and binding obligation of each of Parent
and Acquisition enforceable in accordance with its
terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors rights generally and by the effect of general
principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(b) The execution, delivery and performance by each of
Parent and Acquisition of this Agreement and the
consummation of the Merger do not, and will not, (i)
violate or conflict with any provision of the
certificate of incorporation or by-laws of either
Parent or Acquisition, (ii) violate any law, rule,
regulation, order, writ, injunction, judgement or
decree of any court, governmental authority, or
regulatory agency, except for violations which,
individually or in the aggregate, will not have a
Material Adverse Effect on Parent or Acquisition taken
as a whole, or (iii) result in a violation or breach
of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right
of termination, cancellation or acceleration) under,
any note, bond, indenture, lien, mortgage, lease,
permit, guaranty or other agreement, instrument or
obligation, oral or written, to which Parent or
Acquisition is a party or by which any of the
properties of Parent or Acquisition may be bound,
except for violations, breaches or defaults which,
individually or in the aggregate, will not have a
Material Adverse Effect on Parent or Acquisition taken
as a whole.
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(c) The execution and delivery of this Agreement by each of
Parent and Acquisition does not, and the performance by
each of Parent and Acquisition of this Agreement will
not, require any consent, approval, authorization or
permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or
foreign, or any other Person except for (i) the filing
and recordation of appropriate merger documents as
required by the DGCL, (ii) any such consent, approval,
authorization, permission, notice or filing which is
required under the Securities Act, the Exchange Act and
applicable state securities laws, and (iii) any such
consent, approval, authorization, permission, notice or
filing which if not obtained or made would not have a
Material Adverse Effect on Parent and Acquisition or on
the transactions contemplated by this Agreement.
3.4 Charter Documents. Schedule 3.4 is a copy of the Certificate
of Incorporation and the By-laws of Parent, as in effect as
of the date of this Agreement. The Certificate of
Incorporation and By-laws of Parent are each in full force
and effect. Parent is not in violation of any provision of
its Certificate of Incorporation or By-laws.
4. TDS CONDUCT PENDING CLOSING.
4.1 Conduct of Business Pending Closing. From the date hereof
until the Closing, TDS shall:
(a) maintain its existence and remain in good standing;
(b) maintain the general character of its business and
properties and conduct its business in the ordinary and
usual manner consistent with past practices, except as
expressly permitted by this Agreement; and
(c) maintain its business and accounting records
consistently with its past practices.
5. PARENT AND ACQUISITION CONDUCT PENDING CLOSING.
5.1 Conduct of Business Pending Closing. From the date hereof
until the Closing, Parent will:
(a) maintain its existence in good standing;
(b) maintain the general character of its business and
properties and conduct its business in the ordinary and
usual manner consistent with past practices, except as
expressly permitted by this Agreement; and
(c) maintain its business and accounting records
consistently with its past practices.
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6. JOINT COVENANTS.
6.1 Notification of Certain Matters. TDS shall give prompt
notice to Parent, and Parent shall give prompt notice to
TDS, of (a) the occurrence, or non-occurrence, of any event
which would be likely to cause (i) any representation or
warranty contained in this Agreement to be untrue or
inaccurate in any material respect or (ii) any covenant,
condition or agreement contained in this Agreement not to be
complied with or satisfied and (b) any failure of any TDS,
or Parent or Acquisition, as the case may be, to comply with
or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, that
the delivery of any notice pursuant to this Section 6.1
shall not limit or otherwise affect the remedies available
to the party receiving such notice.
6.2 Reorganization. Each of Parent and TDS shall, both before
and after the Closing Date, use its reasonable best efforts
to cause the business combination of the Merger to be
qualified as a reorganization under Section 368(a) of the
Code.
6.3 Form 8-K; Other Filings. As promptly as practicable after
the date of this Agreement, Parent will with TDS's
cooperation prepare its current report on SEC Form 8-K (the
"Form 8-K") to be dated as of the Effective Time and any
other filings required to be filed by it under the Exchange
Act, the Securities Act or any other Federal, foreign or
blue sky or related laws relating to the Merger and the
transactions contemplated by this Agreement (the "Other
Filings"). Without limitation, Parent will comply with the
Accounting and Financial Reporting Interpretations and
Guidance issued by the Accounting Staff Members in the SEC's
Division of Corporate Finance on March 31, 2001 as the same
relate to "Reverse Acquisitions - Reporting Issues." TDS
will promptly review the Other Filings and confirm the
accuracy of all matters contained therein that are based on
written disclosures made by TDS. After obtaining consent of
Parent and TDS, Parent will file the Form 8-K on the date of
the Effective Time. After the Effective Time, Parent will
timely file all reports with the SEC, the stock exchange or
trading system on which the Parent's shares are listed or
quoted and such other governmental agencies as may require
the filing of Other Filings.
6.4 Actions by the Parties. Upon the terms and subject to the
conditions set forth in this Agreement, each of the Parties
will use its reasonable best efforts to take or cause to be
taken all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable law
and regulations to consummate and make effective in the most
expeditious manner practicable, the transactions
contemplated by this Agreement including (a) obtaining all
necessary actions and non-actions, waivers and consents, if
any, from any governmental agency or authority, making all
necessary registrations and filings and taking all
reasonable steps as may be necessary to obtain an approval
or waiver from, or to avoid an action or proceeding by, any
governmental agency or authority; (b) obtaining all
necessary consents, approvals or waivers from any other
Person; (c) defending any claim, investigation, action, suit
or other legal proceeding, whether judicial or
administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby; and
(d) executing additional instruments necessary to consummate
the transactions contemplated by this Agreement. Each Party
will promptly consult with the other and provide necessary
information (including copies thereof) with respect to all
filings made by such party with the any agency or authority
in connection with this Agreement and the transactions
contemplated hereby.
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7. CONDITIONS PRECEDENT
7.1 Conditions Precedent to Each Party's Obligation to Effect
the Merger. The respective obligations of each Party to
effect the Merger shall be subject to the fulfillment or
satisfaction, prior to or on the Closing Date, of the
following conditions:
(a) The Merger shall have been duly approved by the
requisite vote of the outstanding shares of TDS Capital
Stock and Acquisition Common Stock entitled to vote
thereon in accordance with the DGCL.
(b) All other authorizations, consents, orders,
declarations or approvals of, or filings with, or
terminations or expirations of waiting periods imposed
by, any governmental or regulatory authority, domestic
or foreign, which the failure to obtain, make or occur
would have the effect of making the Merger or any of
the transactions contemplated hereby illegal or would
have a Material Adverse Effect on Parent or TDS (as
Surviving Corporation), assuming the Merger had taken
place, shall have been obtained, made or occurred.
7.2 Conditions Precedent to Obligations of Parent. Parent's
obligation to effect the Merger and consummate the other
transactions contemplated to occur in connection with the
Closing and thereafter is subject to the satisfaction of
each condition precedent listed below:
(a) Each representation and warranty set forth in Section 2
shall have been accurate and complete in all material
respects (except with respect to any provisions
including the word "material" or words of similar
import), as of the date of this Agreement, and shall be
accurate and complete in all material respects (except
with respect to any provisions including the word
"material" or words of similar import) as of the
Closing Date, as if made on the Closing Date, after
giving full effect to any supplements to the schedules
as amended from time to time so long as such
modification does not constitute a Material Adverse
Effect.
(b) TDS shall have delivered unqualified audited financial
statements for the two years ended December 31, 2002 in
accordance with US generally accepted accounting
standards, consistently applied, in form satisfactory
to Parent.
(c) TDS shall have performed and complied in all material
respects with its covenants to be performed or complied
with at or prior to the Closing.
7.3 Conditions Precedent to Obligations of TDS. TDS's obligation
to effect the Merger and consummate the other transactions
contemplated to occur in connection with the Closing and
thereafter is subject to the satisfaction of each condition
precedent listed below:
(a) Each representation and warranty set forth in Article 3
shall have been accurate and complete in all material
respects (except with respect to any provisions
including the word "material" or words of similar
import, with respect to which such representations and
warranties shall have been accurate and complete) as of
the date of this Agreement, and shall be accurate and
complete in all material respects (except with respect
to any provisions including the word "material" or
words of similar import, with respect to which such
representations and warranties must have been accurate
and complete) as of the Closing Date, as if made on the
Closing Date.
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Parent shall have performed and complied in all
material respects with its covenants and obligations
required by this Agreement to be performed or complied
with at or prior to the Closing.
8. SURVIVAL OF REPRESENTATION AND WARRANTIES.
The representations and warranties of the Parties contained in
this Agreement (including the schedules to the Agreement which
are hereby incorporated by reference) or in any instrument
delivered pursuant to this Agreement shall not survive the
Effective Time. This Section shall not limit any claim for fraud
or any covenant or agreement by the parties which contemplates
performance after the Effective Time.
9. BROKERS' AND FINDERS' FEES.
Each of TDS, Parent and Acquisition represent and warrant that no
broker, investment banker or financial advisor is entitled to
receive a brokerage fee, financing commission or other commission
from TDS, Parent or Acquisition, respectively, in respect of the
execution of this Agreement or the consummation of the
transactions contemplated hereby.
10. PRESS RELEASES.
Upon the execution of this Agreement, Parent shall issue such
press release or announcement of the transactions contemplated by
this Agreement as may be required by the reporting requirements
of the Exchange Act, subject to the applicable requirements of
Rules 135a and 135c under the Securities Act. Parent and TDS
shall not issue any other press release or otherwise make public
any information with respect to this Agreement or the
transactions contemplated hereby, prior to the Closing, without
the prior written consent of the other Parties which consent
shall not be unreasonably withheld. Notwithstanding the
foregoing, if required by law, Parent or TDS may issue such a
press release or otherwise make public such information as long
as such disclosing Party notifies the other Parties of such
requirement and discusses with such other Parties in good faith
the contents of such disclosure.
11. CONTENTS OF AGREEMENT; PARTIES IN INTEREST; ETC.
This Agreement and the agreements referred to or contemplated
herein set forth the entire understanding of the parties hereto
with respect to the transactions contemplated hereby, and, except
as set forth in this Agreement, such other agreements and the
exhibits hereto, there are no representations or warranties,
express or implied, made by any party to this Agreement with
respect to the subject matter of this Agreement. Any and all
previous Agreements and understandings between or among the
parties regarding the subject matter hereof, whether written or
oral, are superseded by this Agreement and the Agreements
referred to or contemplated herein. All statements contained in
schedules, exhibits, certificates and other instruments attached
hereto shall be deemed representations and warranties (or
exceptions thereto) by tds, acquisition or parent, as the case
may be.
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12. ASSIGNMENT AND BINDING EFFECT.
All terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto.
13. TERMINATION.
13.1 Termination of Agreement. Parent and TDS may terminate this
Agreement as to all Parties by mutual written consent at any
time prior to the Closing.
13.2 Effect of Termination. If this Agreement is terminated under
this Section 13, then, all further obligations of the
Parties under this Agreement will terminate.
14. DEFINITIONS.
As used in this Agreement the terms set forth below shall have
the following meanings:
(a) "Affiliate" of a Person means any other Person who (i)
directly or indirectly through one or more
intermediaries Controls, is Controlled by or is under
common control with, such Person or (ii) owns more than
5% of the capital stock or equity interest in such
Person. "Control" means the possession of the power,
directly or indirectly, to direct or cause the
direction of the management and policies of a Person
whether through the ownership of voting securities, by
contract or otherwise.
(b) "Business Days" has the meaning given it in the General
Construction Law of the State of New York.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "DGCL" means the Delaware General Corporation Law.
(e) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(f) "Liens" means any mortgage, pledge, lien, security
interest, conditional or installment sale agreement,
encumbrance, charge or other claims of third parties of
any kind.
(g) "Material Adverse Effect" means (unless otherwise
specified), as to a Party, any condition or event that
may have a material adverse effect on the assets,
business, financial condition, operations of such Party
or Parties taken as a whole.
(h) "Permitted Liens" means (i) Liens for taxes,
assessments, or similar charges, incurred in the
ordinary course of business that are not yet due and
payable or are being contested in good faith; (ii)
pledges or deposits made in the ordinary course of
business; (iii) Liens of mechanics, materialmen,
warehousemen or other like Liens securing obligations
incurred in the ordinary course of business that are
not yet due and payable or are being contested in good
faith; and (iv) similar Liens and encumbrances which
are incurred in the ordinary course of business and
which do not in the aggregate materially detract from
the value of such assets or properties or materially
impair the use thereof in the operation of such
business.
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(i) "Person" means any individual, corporation,
partnership, limited partnership, limited liability
company, trust, association or entity or government
agency or authority.
(j) "Rule 144" means Rule 144 promulgated under the
Securities Act, as in effect from time to time.
(k) "SEC" means the U.S. Securities and Exchange
Commission..
(l) "Securities Act" means the Securities Act of 1933, as
amended.
(m) "Subsidiary" of a Person means any corporation,
partnership, joint venture or other entity in which
such Person (i) owns, directly or indirectly, 50% or
more of the outstanding voting securities or equity
interests or (ii) is a general partner.
(n) "Tax" (and, with correlative meaning, "Taxes" and
"Taxable") means (i) any United States, state, local,
municipal or foreign net income, gross income, gross
receipts, windfall profit, severance, property,
production, sales, use, license, excise, franchise,
employment, payroll, withholding, alternative or add-on
minimum, ad valorem, value-added, transfer, stamp, or
environmental tax, or any other tax, custom, duty,
tariff levy, import, governmental fee or other like
assessment or charge, together with any interest or
penalty, addition to tax or additional amount imposed
by any governmental authority; (ii) in the case of TDS
or any Subsidiary, liability for the payment of any
amount of the type described in clause (i) as a result
of being or having been before the Closing Date a
member of an affiliated, consolidated, combined or
unitary group; and (iii) liability of TDS or any
Subsidiary for the payment of any amount as a result of
being a party to any tax sharing or indemnification
agreement.
(o) "Tax Return" means any return, report or similar
statement required to be filed with respect to any Tax
(including any attached schedules), including, without
limitation, any information return, claim for refund,
amended return or declaration of estimated Tax
(p) "TDS Holder" means a holder of TDS Common Stock.
15. SCHEDULES.
(a) Disclosures in any schedule or any supplement thereto,
shall be deemed to relate to any other representation
or warranty in this Agreement.
(b) If there is any inconsistency between the statements in
the body of this Agreement and those in the schedules
(other than an exception expressly set forth in the
schedules with respect to a specifically identified
representation or warranty), the statements in the body
of this Agreement will control.
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16. SUCCESSORS.
All of the terms, agreements, covenants, representations,
warranties, and conditions of this Agreement are binding upon,
and inure to the benefit of and are enforceable by, the Parties
and their respective successors.
17. ASSIGNMENTS.
No Party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
consent of Parent and TDS.
18. NOTICES.
All notices, requests, demands, claims and other communications
hereunder will be in writing. Any notice, request, demand, claim
or other communication hereunder will be deemed duly given if
(and then three Business Days after) it is sent by registered or
certified mail (if sent from the United States to an addressee in
the United States), return receipt requested, postage prepaid,
and addressed to the intended recipient as set forth below:
If to Parent or Acquisition:
Surf Group, Inc.
c/o CORPORATION SERVICE COMPANY
80 State Street Albany, New York 12207 Tel:
1-(800) 833-9848
If to TDS:
tds (telemedicine) ltd.
Ducie House
Ducie Street
Manchester M1 2JW
England
Tel: 011-44-161-236-7850
Fax: 011-161-236-6654
Copy to (which will not constitute notice):
Stanley U. North, III, Esq.
Sills Cummis Radin Tischman Epstein & Gross
One Riverfront Plaza
Newark, New Jersey 07201-5400
Tel: 1-(973) 643-5081
Fax: 1-(973) 643-6500
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with a copy to:
Robert Manning, Esq.
Fox Hayes Solicitors
Bank House
150 Roundhay Road
Leeds LS8 5LD
England
Tel: 011-44-[0] 113-209-8923
Fax: 011-44-[0] 113-209-0466
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication will be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
19. SPECIFIC PERFORMANCE.
Each Party acknowledges and agrees that the other Parties would
be damaged irreparably if any provision of this Agreement is not
performed in accordance with its specific terms or is otherwise
breached. Accordingly, each Party agrees that the other Parties
will be entitled to seek an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce
specifically this Agreement and its terms and provisions in any
action instituted in any court of the United States or any state
thereof having jurisdiction over the Parties and the matter,
subject to Section 23, in addition to any other remedy to which
they may be entitled, at law or in equity.
20. SUBMISSION TO JURISDICTION; PROCESS AGENT; NO JURY TRIAL; BINDING
ARBITRATION.
Each Party submits to the jurisdiction of any state or federal
court sitting in the State of Delaware, in any action arising out
of or relating to this Agreement and agrees that all claims in
respect of the action may be heard and determined in any such
court. Each Party also agrees not to bring any action arising out
of or relating to this Agreement in any other court. Each Party
agrees that a final judgment in any action so brought will be
conclusive and may be enforced by action on the judgment or in
any other manner provided at law or in equity. Each Party waives
any defense of inconvenient forum to the maintenance of any
action so brought and waives any bond, surety, or other security
that might be required of any other Party with respect thereto.
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THE PARTIES EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO
JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS
AMONG THEM RELATING TO THE TRANSACTIONS. The scope of this waiver
is intended to be all encompassing of any and all actions that
may be filed in any court and that relate to the subject matter
of the transactions, including, contract claims, tort claims,
breach of duty claims, and all other common Law and statutory
claims. The Parties each acknowledge that this waiver is a
material inducement to enter into a business relationship and
that they will continue to rely on the waiver in their related
future dealings. Each Party further represents and warrants that
it has reviewed this waiver with its legal counsel, and that each
knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY
TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
HERETO. In the event of commencement of any action, this
Agreement may be filed as a written consent to trial by a court.
21. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each
of which will be deemed an original but all of which together
will constitute one and the same instrument.
22. HEADINGS.
The article and section headings contained in this Agreement are
inserted for convenience only and will not affect in any way the
meaning or interpretation of this Agreement.
23. GOVERNING LAW.
This Agreement and the performance of the transactions and
obligations of the Parties hereunder will be governed by and
construed in accordance with the laws of the State of New York,
without giving effect to any choice of law principles.
24. AMENDMENTS.
Parties may amend this Agreement by action taken by or on behalf
of the respective Boards of Directors of Parent, Acquisition and
TDS at any time prior to the Effective Time. Notwithstanding the
foregoing, after the TDS Stockholders approve and adopt this
Agreement and the Merger, no amendment to this Agreement may be
made that would reduce the amount of or change the Merger
Consideration or otherwise would require the TDS Stockholders to
approve such amendment under the DGCL, unless the TDS
Stockholders approve such amendment in accordance with the DGCL.
Amendments to this Agreement must be in writing and signed the
Parties.
25. SEVERABILITY.
The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect
the validity or enforceability of the other provisions hereof;
provided that if any provision of this Agreement, as applied to
any Party or to any circumstance, is adjudged by a governmental
body, arbitrator, or mediator not to be enforceable in accordance
with its terms, the Parties agree that the governmental body,
arbitrator, or mediator making such determination will have the
power to modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific
words or phrases, and in its reduced form, such provision will
then be enforceable and will be enforced.
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26. CONSTRUCTION.
The Parties have participated jointly in the negotiation and
drafting of this Agreement. If an ambiguity or question of intent
or interpretation arises, this Agreement will be construed as if
drafted jointly by the Parties and no presumption or burden of
proof will arise favoring or disfavoring any Party because of the
authorship of any provision of this Agreement. Any reference to
any federal, state, local, or foreign law will be deemed also to
refer to law as amended and all rules and regulations promulgated
thereunder, unless the context requires otherwise. The words
"include," "includes," and "including" will be deemed to be
followed by "without limitation." Pronouns in masculine,
feminine, and neuter genders will be construed to include any
other gender, and words in the singular form will be construed to
include the plural and vice versa, unless the context otherwise
requires. The words "this Agreement," "herein," "hereof,"
"hereby," "hereunder," and words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless
expressly so limited. The Parties intend that each
representation, warranty, and covenant contained herein will have
independent significance. If any Party has breached any
representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation,
warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the
Party has not breached will not detract from or mitigate the fact
that the Party is in breach of the first representation,
warranty, or covenant.
27. INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES.
The exhibits, annexes, schedules, and other attachments
identified in this Agreement are incorporated herein by reference
and made a part hereof.
28. REMEDIES.
Except as expressly provided herein, the rights, obligations and
remedies created by this Agreement are cumulative and in addition
to any other rights, obligations or remedies otherwise available
at law or in equity. Except as expressly provided herein, nothing
herein will be considered an election of remedies.
29. ELECTRONIC SIGNATURES.
(a) Notwithstanding the Electronic Signatures in Global and
National Commerce Act (15 U.S.C. Sec. 7001 et. seq.), the
Uniform Electronic Transactions Act, or any other law
relating to or enabling the creation, execution, delivery,
or recordation of any contract or signature by electronic
means, and notwithstanding any course of conduct engaged in
by the Parties, no Party will be deemed to have executed a
transaction document or other document contemplated thereby
(including any amendment or other change thereto) unless and
until such Party shall have executed such transaction
document or other document on paper by a handwritten
original signature or any other symbol executed or adopted
by a Party with current intention to authenticate such
transaction document or such other document contemplated.
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(b) Delivery of a copy of a transaction document or such other
document bearing an original signature by facsimile
transmission (whether directly from one facsimile device to
another by means of a dial-up connection or whether mediated
by the worldwide web), by electronic mail in "portable
document format" (".pdf") form, or by any other electronic
means intended to preserve the original graphic and
pictorial appearance of a document, will have the same
effect as physical delivery of the paper document bearing
the original signature. "Originally signed" or "original
signature" means or refers to a signature that has not been
mechanically or electronically reproduced.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Agreement as of the date first above
written.
SURF GROUP, INC.
By: /s/ Roger Coomber
__________________
Roger Coomber
SURF GROUP ACQUISITION CORP.
By: /s/ Roger Coomber
___________________
Roger Coomber
TDS (TELEMEDICINE), INC.
By:/s/ Keith Freeman
__________________
Keith Freeman
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