Call Genie Inc. and The Goldman Sachs Group, Inc.: Early Warning Report and Press Release
Market Wire, May, 2007
Early WARNING REPORT AND PRESS RELEASE
Report Pursuant to
SECTION 111 OF THE SECURITIES ACT (BRITISH COLUMBIA)
SECTION 176 OF THE SECURITIES ACT (ALBERTA)
NATIONAL INSTRUMENT 62-103
1. Name and address of the offeror
The Goldman Sachs Group, Inc. ("GS Group"),
85 Broad Street, New York, NY, 10004
Goldman, Sachs & Co. ("GS & Co."),
85 Broad Street, New York, NY, 10004
GS Group and GS & Co. are hereinafter referred to collectively as the "Offeror".
2. The designation and number or principal amount of securities and the offeror's securityholding percentage in the class of securities of which the offeror acquired ownership or control in the transaction or occurrence giving rise to the obligation to file the news release, and whether it was ownership or control that was acquired in those circumstances.
On May 15, 2007 (the "Closing Date") the Offeror completed the acquisition of ownership and control of 9,661,835 common shares (the "Acquired Shares") of Call Genie Inc. (the "Company"). The Acquired Shares represent approximately 13.21% of the issued and outstanding common shares of the Company.
3. The designation and number or principal amount of securities and the offeror's securityholding percentage in the class of securities immediately after the transaction or occurrence giving rise to the obligation to file a news release.
After giving effect to the acquisition noted in item 2 above, the Offeror owned and controlled 9,661,835 common shares in the capital of the Company (the "Shares") representing approximately 13.21% of the issued and outstanding common shares of the Company.
4. The designation and number or principal amount of securities and the percentage of outstanding securities of the class of securities referred to in paragraph 3 over which:
(i) the offeror, either alone or together with joint actors, has ownership and control,
After giving effect to the acquisition noted in item 2 above, the Offeror owned and controlled 9,661,835 Shares representing approximately 13.21% of the issued and outstanding common shares of the Company. See item 8, below.
(ii) the offeror, either alone or together with joint actors, has ownership but control is held by other persons or companies other than the offeror or any joint actor.
Not applicable.
(iii) the offeror, either alone or together with joint actors, has exclusive or shared control but does not have ownership.
Not applicable.
5. The name of the market in which the transaction or occurrence that gave rise to the news release took place.
The Acquired Shares were issued by the Company from treasury and were acquired by the Offeror by way of private placement.
6. The purpose of the offeror and any joint actors in effecting the transaction or occurrence that gave rise to the news release, including any future intention to acquire ownership of, or control over, additional securities of the reporting issuer.
The securities were acquired in the ordinary course of the Offeror's investment activities. Subject to compliance with applicable securities laws in respect of resale of the Acquired Shares, the Offeror may purchase or sell securities of the Company in the future on the open market or in private transactions, depending on market conditions and other factors material to the Offeror's investment decisions.
7. The general nature and the material terms of any agreement, other than lending arrangements, with respect to securities of the reporting issuer, entered into by the offeror, or any joint actor, and the issuer of the securities or any other entity in connection with the transaction or occurrence giving rise to the news release, including agreements with respect to the acquisition, holding, disposition or voting of any securities.
Pursuant to the subscription agreement between the Company and the Offeror dated May 15, 2007 (the "Subscription Agreement") the Company has agreed not to issue any common shares or financial instruments convertible or exercisable into common shares of the Company, other than: (i) in respect of stock options granted pursuant to the Company's stock option plan or stock options otherwise granted to new employees in accordance with the policies of the TSX Venture Exchange; or (ii) with respect to securities outstanding that are convertible or exchangeable into common shares of the Company (or securities convertible or exchangeable for common shares of the Company), until the date that is 120 days following the Closing Date without the prior consent of the Offeror, such consent not to be unreasonably withheld or delayed. In accordance with the terms of the Subscription Agreement, the directors and officers of the Company have delivered written undertakings in favour of the Offeror agreeing not to sell, transfer, assign, pledge or otherwise dispose of any securities of the Company owned, directly or indirectly, by such directors or officers, for a period of 120 days following the Closing Date, without the prior written consent of the Offeror, such consent not to be unreasonably withheld or delayed.
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