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KRAUTH v. TELECARD

June 20, 1995

WALTER K. KRAUTH, JR., WILLIAM MILLER, DAVID E. LEGERE, Plaintiffs, against EXECUTIVE TELECARD, LTD., Defendant.


The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D.J.

 In this control contest version of the current Bosnian conflict, the Defendant Executive Telecard, Ltd. ("EXTL," "TeleCard" or the "Company") has moved under Rules 12(b)1 and 12(b)6, Fed. R. Civ. P., to dismiss this action on a jurisdictional basis, for lack of a federal question or, in the alternative, for summary judgment under Rule 56, Fed. R. Civ. P. Plaintiffs, Walter K. Krauth, Jr. ("Krauth"), William Miller ("Miller") and David E. Legere ("Legere") (collectively, the "Shareholders Protective Committee" or the "SPC") have moved under Rule 65, Fed. R. Civ. P. for injunctive relief to bar the distribution of an EXTL proxy statement and to enforce a settlement of the proxy contest between the parties based upon an agreement in principle. For the reasons discussed below, the Defendants' motion to dismiss is denied and Plaintiffs' motion is granted in part and denied in part.

 Parties

 Plaintiff Krauth is a resident of Jonesboro, Georgia. He and Miller, a resident of Bayside, New York, and Legere, a resident of Williamsburg, Virginia, formed the EXTL Shareholders Protective Committee, in September 1994 for the purpose of soliciting proxies for the election of a slate of directors opposed to those being proposed by management of EXTL.

 Defendant EXTL is a corporation incorporated in Delaware. It started operating in 1989 and now has a substantial world-wide business.

 EXTL has a single class of stock authorized, issued and outstanding -- common stock with a par value of $ .001. This common stock is registered pursuant to ยง 12(b) of the Exchange Act and is listed and traded on the NASDAQ -- National Market System. 12,345,362 shares of this common stock were outstanding as of January 31, 1995.

 EXTL's principal business is the provision of telecommunications services that enable customers, when placing phone calls within and between phone companies, to avoid high surcharges imposed by hotel switchboards. EXTL operates through agreements with over 60 Postal, Telegraph and Telephone Authorities ("PTTs") and other telecommunications administrations outside the United States to deliver these services. The agreements with PTTs authorize EXTL to install its own hardware and proprietary software at or near each of the PTTs' telephone-switching sites, thus allow EXTL customers to make calls from one country to another without necessarily having to be routed through the United States.

 In the United States, EXTL has offices in New York and Colorado. Abroad, EXTL maintains office space in France, Belgium, Hong Kong, Singapore, Argentina, Anguilla and Switzerland. The Corporation provides services in over fifty countries throughout the world.

 Prior Proceedings

 The prior proceedings in this action (the "Fifth Action" or "Krauth V") are fully set forth in the opinions of October 21, 1994 (the "October 21 Decision"), Krauth v. Executive Telecard, 1994 U.S. Dist. LEXIS 15255, 1994 WL 584556 (S.D.N.Y.) and December 13, 1994, Krauth v. Executive Telecard, 870 F. Supp. 543 (S.D.N.Y. 1994) in the first Krauth action, 94 Civ. 7337 (RWS) (Krauth I); May 8, 1995 in Krauth v. Executive Telecard, 1995 U.S. Dist. LEXIS 6184, 1995 WL 272556, 95 Civ. 106 (the "Third Action" or "Krauth III"); and May 31, 1995, Krauth v. Executive Telecard, 887 F. Supp. 641, 1995 U.S. Dist. LEXIS 7421, 1995 WL 3329052, 95 Civ. 3491 ("May 31 Opinion" in "Krauth IV"), familiarity with which is assumed. A review of the prior proceedings relevant to this motion follows:

 On October 7, 1994 EXTL commenced an action against Krauth, 94 Civ. 7282 (MHM), in this district and obtained an order to show cause which set down a date for hearing its motion for preliminary injunction to bar the distribution of proxies until after that hearing. On October 11, EXTL extended the date for its shareholders' meeting to October 28 and voluntarily dismissed its action.

 On October 12, the SPC commenced an action, Krauth I, 94 Civ. 7337, seeking to enjoin EXTL from soliciting proxies in violation of the Securities and Exchange Act of 1934. EXTL sought similar relief with respect to the Committee's proposed proxies, by way of a counterclaim, mirroring its original complaint. The parties were advised that the Court would consider the consolidation of a trial on the merits with the hearing on the preliminary injunctions. Expedited discovery proceeded.

 On October 18, an evidentiary hearing consolidated with the trial was held in the course of which the state law counterclaims against counterclaim defendant Mayer, aligned as a plaintiff, were severed.

 In Krauth I, Krauth challenged the EXTL proxy statement for omitting material information concerning the role of Richard O. Bertoli ("Bertoli") in the management and affairs of the company. Bertoli is a former advisor to the company and at that time and at present a convicted and incarcerated felon. Krauth also attacked the EXTL proxy solicitation for failing to include material facts concerning a proposed restructuring of EXTL.

 In the counterclaim, EXTL challenged the Krauth proxy statement for inaccurately describing EXTL's July 29, 1994 board meeting, failing to identify accurately the role of Theodore J. Mayer *fn1" ("Mayer"), including a deceptive chart and stating that the effect of the restructuring would be to remove assets from the jurisdiction of the United States.

 In the October 21 Opinion, the Court found that:

 
EXTL's proxy statement had failed to disclose the consultations between Bertoli and the corporate officers on pending issues of corporate management, including the proposed restructuring and the proxy contest, consultations which were conducted while Bertoli [was] serving a criminal sentence of obstructing an investigation into his conduct related to an alleged securities fraud. The omission violates Rule 14a-9, False and Misleading Statements, which charges: "No solicitation subject to this regulations shall be made by means of any proxy statement ... containing any statement which, at the time and in light of the circumstances under which it is made, is false and misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading ...." (emphasis added).

 Krauth, 1994 U.S. Dist. LEXIS 15255, 1994 WL 584556 at *6.

 In finding a violation of Rule 14a-9, the Court stated that:

 
issues of management integrity are central to the election of directors, and the fact that certain of the current directors and officers chose to review corporate affairs, share confidential documents, and seek the advice of a person with Bertoli's criminal history is material to the discharge of their fiduciary obligations. (citations omitted).

 Id. at *7

 
In concluding that Opinion, the Court stated that:
 
For the reasons discussed above, EXTL will be enjoined from soliciting proxies without disclosing the consultation by certain officers and directors with Bertoli concerning confidential and pending corporate matters. The Committee will be enjoined from soliciting proxies without clarifying the jurisdictional effect of the proposed spin-off. Leave is granted to make any further applications to obtain relief consistent with these findings and conclusions.

 All other challenges to the parties' respective proxy statements were not sustained. No appeals or motions for reconsideration were filed in that action. On November 2, 1994 there was a hearing on a letter motion requesting that the Court order Defendants to set a date for the next Annual Shareholders meeting. Prior to that hearing, Defendants set a meeting date of January 5, 1995. The motion was "denied as moot in view of the action taken by the defendants." Memo Endorsed Order, November 2, 1994. Judgment was entered on December 12, 1994 dismissing Krauth II.

 On December 9, EXTL filed a complaint alleging security act violations by the Committee and moved by order to show cause for a preliminary injunction to bar the Committee from solicitation based on the alleged omission of material facts. Executive Telecard, Ltd. v. Krauth, 94 Civ. 8911 (RWS) (Krauth II). A hearing on that application was scheduled for December 15 with expedited discovery granted. The Court was informed on the 15th by the parties that the action would be dismissed. A notice of voluntary dismissal, signed by the Court, was filed on December 16, 1994.

 On December 30, 1994, EXTL began distributing its revised proxy statement with a transmittal letter to shareholders.

 On January 6, 1995, the SPC filed a complaint in the third action, 95 Civ 106 (Krauth III). The complaint alleged violations of the Exchange Act and the rules and regulations promulgated thereunder and sought various forms of injunctive relief, damages, and other forms of relief. Specifically, the complaint stated 23 deficiencies in the transmittal letter and the proxy statement which it alleged were false and misleading, in violation of federal securities law.

 The SPC also moved by order to show cause for expedited discovery, a temporary restraining order and a preliminary injunction. Expedited discovery was granted and a hearing on the motions was held on January 16, 1995.

 On January 20, counsel to the SPC wrote to the Court informing the Court that the Third Action would be dismissed pursuant to Rule 41(a) Fed. R. Civ. P. with prejudice pursuant to a settlement agreement between the parties. The Court so ordered the dismissal on January 23, 1995.

 On March 1, EXTL and Plaintiffs filed a joint motion asking the Court to vacate the judgment and opinion in Krauth I. In their motion, the parties stated to the Court that:

 
On February 15, 1995, a "Settlement Agreement-Summary of Terms" was executed, memorializing the material terms of the settlement. A copy of that document is annexed hereto as Exhibit A *fn2" ...

 The Court denied the motion on March 2, 1995.

 On March 29, 1995 the Plaintiffs filed an order to show cause to bring on a motion to set aside this dismissal. The motion sought an order: 1) vacating the dismissal of The Third Action and its reopening pursuant to Rule 60(b); 2) granting Plaintiffs leave to amend their complaint to state a claim for enforcement of the settlement agreements; 3) directing EXTL to comply with the terms of the settlement agreements including to require it to issue proxy materials with the compromise slate of nominees to the Board of Directors, to establish a record date, and to schedule and conduct its annual shareholders meeting; and 4) appointing a special master to effectuate the terms of the settlement and compliance with this Court's Orders by EXTL until the annual shareholders meeting can be held.

 EXTL opposed the motions on jurisdictional grounds and a hearing was held on April 13, 1995. By opinion of May 8, 1995, it was held that an independent basis of jurisdiction would be required in order to hear the breach of settlement agreement claims, in accordance with the Supreme Court's decision in Kokkonen v. Guardian Life Ins. Co. of Am., 128 L. Ed. 2d 391, 114 S. Ct. 1673 (1994) and that additional proof on the issue of the citizenship of EXTL was required to determine if complete diversity existed at the time the motion to set aside the order of dismissal was filed. A hearing date was set for May 16, 1995.

 On May 15, 1995 a new action was filed by Plaintiffs (95 Civ. 3491 (RWS)) (Krauth IV) which sought: damages for breach of contract; specific performance of the settlement agreement; appointment of a special master to effectuate the terms of the settlement agreement; an order setting the date of the next shareholder's meeting; and attorney's fees. Subject matter jurisdiction of that action was based on an assertion of complete diversity of the parties. Krauth IV was accepted as related to Krauth III.

 The parties in the Third Action appeared before the Court on May 17. The Court then memo endorsed the motion in the Third Action, "this motion is marked withdrawn as set forth in open court this date," and that action was closed.

 In Krauth IV, Defendants brought on a motion to dismiss for lack of subject matter jurisdiction by order to show cause. Argument and the testimony of Edward J. Gerrity ("Gerrity"), then and current Chair of EXTL, was heard on May 30, 1995.

 In an opinion dated May 31, the motion to dismiss was granted, and on a finding that Plaintiffs failed to establish Denver as EXTL's principal place of business, Krauth IV was dismissed.

 On May 24, 1995 the Company disseminated a 44-page Proxy Statement announcing a June 30, 1995 Shareholders meeting to elect a new slate of directors which included: Gerrity, the Current Chair of the Board and of the Independent Committee; Anthony Balinger ("Balinger"), the Acting President and Chief Financial Officer, Stig Sonnerberg ("Sonnerberg"), an incumbent independent director, who had replaced Corcoran as a member of the Independent Committee; and three unaffiliated nominees, including David Warnes ("Warnes") and Ebrahim Ali Abdul Aal, to ratify the appointment of BDO Seidman to serve as independent public accountants to the Company for Fiscal 1995, and to transact any other necessary corporate business.

 A complaint in this action (the "Fifth Action," "Krauth V," or the "Action") was filed on June 1, 1995. An amended complaint was filed on June 6, 1995 and, with leave of the Court, a Second Amended Complaint was filed on June 8, 1995, a Third Amended Complaint (the "Complaint") was filed on June 15, 1995, which added alleged violations found in the revised proxy materials.

 The Defendants' present motion to dismiss, or in the alternative for summary judgment, was filed on June 1 and brought on by an order to show cause made returnable on June 7, 1995 and Plaintiffs' motion for preliminary and permanent injunction was brought on by order to show cause returnable June 8, 1995.

 Argument on both motions was heard on June 8, 1995. After hearing argument on the motion to dismiss, the Court stated that it would convert the 12(b)(6) motion into one for summary judgment and that it would reserve decision on the summary judgment motion. The Court also stated that it would "try the allegations of false and misleading proxy statements and the contract case."

 Witnesses were heard on June 8, 12, 13, and 15, and final argument was heard on June 16.

 A supplemental proxy statement was issued by the Company on June 12.

 The Complaint

 The Complaint alleges breach of contract (Count One); seeks injunctive relief and specific performance of the contract (Count Two); alleges 25 violations of Section 14(A) of the Exchange Act and Rule 14A-9 (Count Three); alleges Violations of Section 211 of the Delaware General Corporate Law for failure to have a timely shareholders meeting (Count Four); asserts counts one and two on behalf of Krauth individually, particularly because, it alleges, the Company seeks to deny his seat on the Board (Count Five); and asserts violations of Section 14A-6 for failure to timely file the proxy materials with the SEC within the proscribed time frames.

 Under these counts, Plaintiffs seek:

 
(1) an order requiring EXTL to immediately amend its proxy solicitation to reflect the matters set forth in this Complaint and notifying its shareholders of the rescheduled annual meeting and to distribute said amended proxy statement to its record shareholders in sufficient time to allow said shareholders to vote their proxies at the June 30, 1995 shareholders meeting;
 
(2) preliminary and permanent injunction enjoining EXTL, and its officers, directors, agents, consultants and advisors from filing or disseminating any false or misleading proxy materials, or making any other untrue statements of fact to any shareholder of EXTL;
 
(3) For a preliminary and permanent injunction ordering EXTL, its agents, officers, directors, employees, consultants and advisors, to comply with the requirements of Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder;
 
(4) Directing that any proxies solicited or obtained by EXTL, its agents, servants, employees, affiliated and related persons or entities and by all persons who are entities acting in concert or participation with EXTL, as a result of or because of EXTL's misleading proxy statement materials shall be considered null, void and unenforceable;
 
(5) For a preliminary and permanent injunction directing EXTL, its agents, servants, officers, directors, employees and consultants to comply with all the terms and conditions set forth in the settlement agreements, and enjoining them from acting in any manner inconsistent with the terms thereof;
 
(6) That this Court appoint a Special Master to effectuate the terms of the Settlement Agreements and to maintain the status quo pending the annual shareholders meeting;
 
(7) For an Order compelling EXTL to hold its meeting on June 30, 1995 at 10:00 A.M. in New York City;
 
(8) For all attorneys' fees and costs of this action incurred in connection with this action; and
 
(9) For such additional and further relief as the Court deems just and proper.

 The final itemization of alleged deficiencies of the Proxy Statement includes the following:

 
(b) On page 6 of its proxy materials, EXTL represents that "the SPC Summary of Terms also allows for an additional payment over $ 600,000 by the Company to the company controlled by Mr. Krauth's financial adviser, Lee McClurkin." Lee McClurkin is not now nor has he ever been "Mr. Krauth's financial advisor". Moreover, the Krauth settlement agreement provides that TeleCard's new board of directors "will review the Providence Agreement to determine whether any additional payments are due thereunder . . ." The settlement agreement contains no agreement, either express or implied, to pay any additional monies to Providence. Therefore, the aforesaid representations are false and misleading.
 
(c) Throughout its proxy materials, EXTL represents that "no such definitive Settlement Agreement or related documentation was ever executed by the Company or any purported representative of it." In fact, the Company executed valid, binding settlement agreements which it ratified at its board meeting on January 31, 1995, and thereafter reported the settlement both to the investing public and to the SEC in its Form 10-Q filed on February 21, 1995. Further, Corcoran and Engelman executed a Settlement Agreement and Mutual Release with Krauth.
 
(d) EXTL's proxy materials continue to propose Gerrity as a Director Nominee, and fails to include any of the New Board members as Director Nominees. In so doing, EXTL omits to inform the shareholders of its prior agreement to propose the New Board, and misrepresents that there is no binding agreement with Plaintiffs.
 
(e) EXTL's proxy materials fail to disclose that the staff of the NASDAQ stock market has commenced an inquiry relating to, among other things, certain of the events and circumstances relating to false and misleading proxy materials disseminated by EXTL, including Management's association with Bertoli. EXTL's proxy materials further fail to disclose that the NASDAQ stock market is considering, as a possible sanction, the delisting of EXTL's stock on its exchange.
 
(f) On pages 8 and 11 of its amended proxy materials, EXTL represents that Engelman "disclosed confidential information to and communicated with Richard Bertoli numerous times prior to the fall of 1994 using the alias "Ernie Schuck". The foregoing representation is false and misleading in that it implies that Engelman knowingly communicated with Bertoli, when, in fact, Bertoli's true identity actually was concealed from Engelman by Moore, Schuck and Gerrity. Upon learning of "Ernie Schuck's" true identity, Engelman consulted with an outside attorney to determine the effect of this deception. At no time did Engelman knowingly communicate with Bertoli in prison.
 
(g) The proxy materials are further misleading in that they fail to disclose that Bertoli, when interviewed by former counsel to the Special Committee at Allenwood Federal Penitentiary, advised that he had a personal relationship with Gerrity who visited him while incarcerated at the Allenwood facility and Union County New Jersey prison to "cheer him up".
 
(h) On page 36 of its amended proxy materials, EXTL represents that Bertoli "recently" was convicted of obstruction of justice and is incarcerated. The foregoing representation is false and misleading and is in violation of this Court's Order of October 21, 1994, in that it fails to disclose that Bertoli is a persistent securities law violator who first was convicted of felony securities laws violations in 1978, and later was convicted in 1993 of obstruction of justice.
 
(i) On page 9 of its amended proxy materials, EXTL alleges that Krauth is known to have associated with convicted felons, as well as a variety of securities laws violators. This representation is based upon information supplied directly to EXTL by Bertoli, and the foregoing representations violate Rule 14a-9 in that it directly or indirectly impugns character, integrity or personal reputation. Furthermore, said allegation has been made in an attempt to detract attention away from the fact that EXTL's senior management regularly consulted with Bertoli concerning the corporation's most confidential and sensitive corporate matters.
 
(j) On page 9 of its amended proxy materials, EXTL represents that the Court "ordered that the SPC's application be withdrawn based on jurisdictional objections raised by the Company." The aforesaid representation is false in that no such order ever was entered.
 
(k) On page 9 of its amended proxy materials, EXTL represents that the SPC has failed to disclose that Theodore Mayer, John Nugent, Tom Walsh and Lee McClurkin allegedly have tried to take over TeleCard's Board, have traded in TeleCard stock, and that Mr. Mayer and Mr. Walsh have had "extensive business contacts" with Bertoli. However, none of these individuals is a member of the SPC, the foregoing representations are designed to confuse and mislead TeleCard's shareholders, and further violates Rule 14a-9 in that it directly and indirectly impugns character, integrity or personal reputation.
 
(l) On page 16 of its amended proxy statement, EXTL includes a statement regarding this Court's Opinion of November 22, 1994. However, EXTL fails to disclose to its shareholders that the Company was held in contempt of Court due to the mailing of the so-called "Newsletter" after entry of the Court's October 21 Order.
 
(m) In its amended proxy materials, EXTL fails to disclose that its stock has been delisted by the Philadelphia Stock Exchange because the proxy materials previously issued by Management were "false and misleading". Consequently, EXTL's amended proxy statement fails to disclose the basis for the delisting of its stock by the Philadelphia Stock Exchange.
 
(n) On page 10 of its amended proxy materials, EXTL alleges that Carl Corcoran failed to investigate financial improprieties of EXTL. In fact, EXTL has prevented an investigation into said financial improprieties by terminating Messrs. Engelman and Mell, and by excluding Corcoran from a position of authority within the corporation after he raised concerns to Gerrity, who advised him to not investigate too deeply.
 
(o) In its amended proxy materials, TeleCard fails to disclose that Network Data Systems ("NDS"), which is controlled by William Moore, has liquidated large blocks of TeleCard stock over the past two years, and that many of the aforesaid sales in late 1993 and early 1994, upon information and belief, were placed by Richard O. Bertoli, acting through Stuart Dounn, with the physical stock certificates delivered at Bertoli's direction by Dounn to Wien Securities. Further, the sales since October 1, 1994 are part of a scheme by NDS to manipulate the price of TeleCard stock, and that NDS has experienced short selling profits from these trades in violation of Section 16 of the Exchange Act. Further, NDS has either paid the retainer fee for EXTL's current legal counsel, or has lent money to EXTL for the purpose of retaining counsel.
 
(p) On page 6, the proxy materials reflect that "No such definitive Settlement Agreement or related documentation was ever executed by the Company or any purported representative of it." This statement is false as a "Settlement Agreement and Mutual General Release" was executed by Corcoran, as the then Chairman and Engelman, as the then President and COO, on behalf of EXTL, with Krauth as of March 3, 1995.
 
(r) On page 9 of its amended proxy materials, TeleCard states "by this proxy, the Company proposes to end all of the litigation between Mr. Krauth, the SPC and the Company by putting it to the stockholders of the Company, rather than by private agreement with select shareholders, the determination of who should sit on the board, representing the interests of the stockholders and directing the future operations of the Company." It is false and misleading and said representations violate Rule 14a-9 in that it fails to disclose that EXTL has previously entered into Settlement Agreements with the Plaintiffs for an agreed upon slate of members for election to the Board of Directors to be voted upon by the shareholders.
 
(s) On Page 17 of the amended proxy materials, EXTL states that "On January 23, 1995 and January 25, 1995, the Court signed Orders, voluntarily prepared and submitted by counsel for Mr. Krauth and the SPC dismissing, respectively, Krauth I and Krauth II with prejudice." No such Order ever was entered with respect to Krauth I. The effect of this misrepresentation is to imply that the Orders entered in Krauth are no longer binding on EXTL.
 
(t) On page 23 of its amended proxy materials, EXTL represents that "Mr. Engelman is a member of the slate of directors proposed by Mr. Krauth and the SPC". This representation is false, because Mr. Engelman was originally proposed by EXTL as a director nominee in its December 30, 1994 proxy.
 
(u) On page 18 of its amended proxy materials, EXTL represents that "Mr. Corcoran failed to investigate alleged financial improprieties involving the Company . . ." This representation is false, because Mr. Corcoran did try to investigate, but was prevented from doing so by the Bertoli Clique.
 
(v) On page 17 of its amended proxy materials, EXTL represents that its Special Committee, through "independent counsel", has concluded that the settlement agreements are "not in the best interests of the shareholders of the Company", and thus should not be implemented. EXTL omits to inform its shareholders that 1) De Martino, prior "independent counsel" to the Special Committee, has testified that the settlement agreements are valid and binding, and were ratified at EXTL's board meeting on January 31, 1995, and 2) that Mr. Gerrity, the chair of the Special Committee, voted in favor of the agreements at the January 31, 1995 board meeting and moved the Board to vote in favor of ratification.
 
(w) EXTL has failed to disclose that De Martino resigned as counsel to the Special Committee, indicating his belief that the Special Committee "has became merely a facade . . ."
 
(x) EXTL has failed to disclose that on March 1, 1995, its counsel filed with the United States District Court for the Southern District of New York a "Joint Motion to Vacate Judgment and Opinion", wherein it represents that the parties have entered into a settlement agreement, attached a copy of the February 15, 1995 "Settlement Agreement - Summary of Terms" with the representation that the document memorialized "the material terms of the settlement", and that "the parties have agreed that a further proxy statement will be disseminated to the shareholders of Executive TeleCard, Ltd. announcing a combined slate of nominees for election to its board of directors, which proxy statement shall be reviewed and approved by plaintiffs and their counsel prior to its dissemination."
 
(y) In its June 12, 1995 proxy materials, Telecard asks its shareholders to vote for its "six director nominees", but only identifies five such nominees, which will cause further confusion among Telecards' shareholders, especially in light of the representation that Richard Krinsley, a nominee in the May 24, 1995 proxy, has "retired."
 
(z) In its May 24, 1995 and June 12, 1995 proxy materials, TeleCard represents that the materials are being disseminated "By Order of the Board of Directors." In fact, TeleCard's Board has not met nor voted its approval for the dissemination of the aforesaid materials.

 FACTS

 Management at EXTL

 Effective December 7, 1994, William V. Moore ("Moore"), the President of EXTL and Chairman of its Board, resigned. Corcoran was appointed Chairman of the Board and Chief Executive Officer of the Company on December 16, 1994.

 The current Board of Directors is composed of Edward J. Gerrity, Jr. ("Gerrity"), Anthony Balinger ("Balinger"), Robert N. Schuck ("Schuck"), Stig Sonnerberg ("Sonnerberg"), Corcoran and Daryl Engelman ("Engelman").

 Gerrity has been Chair of the Board since March 17, 1995 and Chair of the Independent Committee consisting of himself and Sonnerberg. He has been a Director of the Company since its inception in 1987.

 Schuck, a current Director, is also Vice President of EXTL.

  Balinger has been acting Chief Executive Officer and President of EXTL since March or April 1995.

  Engelman was the President and Chief operating Officer of the Company from late December 1994 or early January 1995 until April 25, 1995 when he was dismissed by the Board. Engelman remains a director of the Board. He and Corcoran were on the Independent Committee of the Board. Engelman was removed from that Committee on April 25, 1995. Sonnerberg replaced Corcoran as a member of the Special Independent Committee when Corcoran resigned that office on March 29, 1995. That Committee is now made up of Sonnerberg and Gerrity.

  Inquiry By the Exchanges

  On November 2, 1994 and November 8, 1994 EXTL received letters from the Philadelphia Stock Exchange concerning the October 21 Opinion of this Court. The Company did not answer the letters and effective January 3, 1995 the Philadelphia Exchange delisted EXTL. The Proxy Statement discloses the fact of the delisting, but not the full circumstances.

  On November 11, 1994 Karen A. Tustin ("Tustin"), the Director of NASDAQ Market Services sent a letter to Schuck, as Vice President and Secretary, requesting:

  
... a detailed response regarding the release of [the October 21 Opinion]...[including] a description, including dates, of all correspondence, telephone conversations, meetings, visits, etc., between Bertoli and [EXTL] representatives...[Please provide a description of Bertoli's present and past relationships...with EXT and its officers, directors and significant shareholders;...A statement as to Bertoli's share ownership, direct and indirect, in [EXTL]...
  
This request is made in accordance with Part II, Section 3(c) of Schedule D of the NASD By-Laws which states that the Association may request any additional information or documentation, public or non-public, deemed necessary to make a ...

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