MERGER AGREEMENT AND PLAN OF REORGANIZATION
THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION, (hereinafter
the "Agreement") is made and entered into this 10th day of
February, 1997, by and between In-Touch Interactive Multimedia,
Inc., a Utah corporation (hereinafter the "Company"), and
Worldwide Applied Telecom Technology, Inc., a Delaware corporation
(hereinafter "WWATT").
RECITALS
WHEREAS, the Company desires to merge WWATT with and into the
Company whereby the Company shall be the surviving corporate entity
pursuant to the terms and conditions set forth herein;
WHEREAS, all current shareholders of WWATT desire to exchange
all of their shares of WWATT common stock for shares of the
Company's common stock; and
WHEREAS, the parties hereto desire to reorganize the
management and operations of the Company, to change the corporate
name to Synaptix Worldwide, Inc., and to engage in the current
business of WWATT.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the
parties hereby agree as follows:
ARTICLE I
MERGER AND EXCHANGE OF SHARES
SECTION 1.1 Merger and Plan of Reorganization.
(a) The parties hereby agree that the Company shall merge
WWATT with and into the Company with the Company to be the
surviving corporation (hereinafter the "Merger"), and whereby
all the shares of WWATT common stock currently issued and
outstanding at the Effective Time of the Merger, as defined in
Section 1.2 below, shall, by action of the Merger and without
any action on the part of the holder thereof, automatically be
converted into an aggregate of three million six hundred
thousand (3,600,000) shares of authorized but previously
unissued common stock of the Company, par value $.001 per
share and post split as set forth in Section 1.5(d) below,
which shares shall be issued to the shareholders of WWATT or
their assigns on a pro rata basis representing each respective
shareholder's percentage ownership in WWATT.
(b) In connection with the consummation of the Merger, the
parties hereby agree that an additional seven hundred ninety
thousand (790,000) shares of the Company's authorized but
previously unissued common stock, par value $.001 per share
and post-split as per Section 1.5(d) below, shall be issued to
Solutions Partnership, Inc. as a fee for services related to
the Merger and as set forth in Section 6.4 below.
(c) The parties hereto hereby further agree that at or
prior to the Effective Time
of the Merger:
(i) management of the Company shall be reorganized so as
to seat the new Board of Directors of the Company to
consist of those persons elected at the Special Meeting
of Shareholders of the Company held February 10, 1997 and
as set forth in Section 1.5(f) below;
(ii) the Company's corporate name shall be changed to
Synaptix Worldwide, Inc.;
(iii) the corporate identity, existence, purposes,
powers, franchises, rights, and immunities of WWATT shall
be merged into the Company and the Company shall be fully
vested therewith;
(iv) the separate corporate existence of WWATT, except as
specifically otherwise provided by law, shall cease,
whereupon WWATT and the Company shall become a single
corporation; and
(v) the necessary steps shall be taken in order to
reflect that the Company will be principally engaged in
the current business of WWATT and in any other act or
activity for which a corporation may be organized under
the laws of the State of Utah.
SECTION 1.2 Effective Time of the Merger. Subject to satisfaction
of the terms and conditions of this Agreement, the parties hereto
shall cause the Articles of Merger in substantially the form set
forth in Exhibit 1.2 annexed hereto and by this reference made a
part hereof (the "Articles of Merger"), to be signed, verified and,
immediately upon its execution, delivered to the Secretary of State
of the State of Utah. The Effective Time of the Merger shall be
the date the Articles of Merger shall have been filed with the
State of Utah and at such time the Company shall have merged WWATT
with and into the Company and the separate existence of WWATT shall
cease.
SECTION 1.3 Issuance of Shares.
(a) Upon the Effective time of the Merger, all shares of
WWATT common stock issued and outstanding shall by action of
the Merger and without any action on the part of the holder
thereof, automatically be converted into an aggregate of
3,600,000 shares of the Company's common stock, post-split,
which shares shall be issued to the shareholders of WWATT or
their assigns on a pro rata basis representing each respective
shareholder's percentage ownership in WWATT.
(b) The shares of the Company's common stock to be
issued hereunder are authorized but previously unissued shares
of common stock of the Company and shall be, when issued,
properly authorized, validly issued, fully paid and
nonassessable.
(c) All shares of the Company's common stock to be
issued hereunder are deemed "restricted securities" as defined
by Rule 144 of the Securities Act of 1933 (the "1933 Act") and
the recipients thereof, or their designees or assigns, shall
represent that they are acquiring said shares for investment
purposes only and without the intent to make a further
distribution of the shares. All shares of the Company's
common stock to be issued under the terms of this Agreement
shall be issued pursuant to an exemption from the registration
requirements of the 1933 Act, under Section 4(2) of the 1933
Act and the rules and regulations promulgated thereunder. All
certificates representing the Company's common stock to be
issued hereunder shall bear the following legend:
The shares represented by this certificate have not
been registered under the Securities Act of 1933,
as amended, and may not be offered for sale, sold
or otherwise transferred except in compliance with
the registration provisions of such Act or pursuant
to an exemption from such registration provisions,
the availability of which is to be established to
the satisfaction of the Company.
SECTION 1.4 Closing. The closing of this Agreement and the
transactions contemplated hereby (the "Closing") shall take place
on or prior to the 3rd day of March, 1997 (the "Closing Date"),
unless extended by the mutual assent of the parties hereto, at a
time and place to be mutually agreed upon by the parties hereto,
and shall be subject to the provisions of Article X of this
Agreement. At the Closing or within thirty (30) days thereafter:
(a) Holders of WWATT common stock shall deliver to the
Company all stock certificates representing all of the issued
and outstanding shares of WWATT common stock, duly endorsed,
so as to make the Company the sole holder thereof, free and
clear of all claims and encumbrances, and which certificates
shall be, upon the issuance of the Company's common stock as
per Section 1.3 above, canceled and deemed void and of no
further effect;
(b) The Company shall deliver to the holders of WWATT
common stock, stock certificates representing an aggregate of
three million six hundred thousand (3,600,000) shares of the
Company's common stock, and to Solutions Partnership, Inc. an
aggregate of seven hundred ninety thousand (790,000) shares of
the Company's common stock, and each certificate representing
such shares shall bear a restrictive legend in a form
customarily used with restricted securities and substantially
as set forth in Section 1,3(c) above;
(c) WWATT shall deliver to the Company all deeds,
mortgages, agreements and other pertinent documents evidencing
WWATT's title, interest and ownership of all of its assets and
property;
(d) The Company shall deliver an Officer's Certificate
as described in Sections 9.1, 9.2 and 9.4 hereof, dated the
Closing Date, that all representations, warranties, covenants
and conditions set forth herein by the Company are true and
correct as of, or have been fully performed and complied with
by, the Closing Date; and
(e) WWATT shall deliver an Officer's Certificate as
described in Sections 8.1, 8.2 and 8.4 hereof, dated the
Closing Date, that all representations, warranties, covenants
and conditions set forth herein by WWATT are true and correct
as of, or have been fully performed and complied with by, the
Closing Date.
SECTION 1.5 Special Meeting of Shareholders of the Company.
In anticipation of this Agreement and the transactions contemplated
hereby, the Company has taken all necessary and requisite action to
call for and hold a Special Meeting of Shareholders on February 10,
1997, at which meeting the following business is to be transacted
and proposals ratified by the shareholders:
(a) To ratify this Agreement and all transactions
contemplated hereby;
(b) To ratify the rescission of the Company's proposed
acquisition of Healthcare 2000 International, Inc., a Florida
corporation, which transaction was previously approved by the
Company's shareholders but was never finalized and closed, and
to further rescind certain other proposals related to the
acquisition which were also approved by the shareholders;
(c) To ratify the proposed amendment to the Articles of
Incorporation to change the authorized capitalization to
25,000,000 shares of common stock, par value $.001 per share,
and 10,000,000 shares of preferred stock, par value $.001 per
share;
(d) To effect a reverse stock split of the Company's issued
and outstanding shares of common stock on a one (1) share for
one and three-fourths (1.75) shares basis;
(e) To ratify the amendment to the Articles of Incorporation
to change the corporate name to Synaptix Worldwide, Inc., or
any other name deemed suitable by the shareholders attending
the meeting; and
(f) To accept the resignation of the Company's current
directors and to nominate and elect a new Board of Directors
consisting of the following four nominees: Xxxxxx X.
Xxxxxxxxx, D. Xxxx Xxxxxxx, Xxxxxxx X. Xxxxxx, Xx. and Xxxxx
X. Xxxxx.
SECTION 1.6 Consummation of Transaction. If at the Closing, no
condition exists which would permit any of the parties to terminate
this Agreement, or a condition then exists and the party entitled
to terminate because of that condition elects not to do so, then
the transactions herein contemplated shall be consummated upon such
date, and then and thereupon, the Company will file the Articles of
Merger and all other requisite documents with the State of Utah.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents, warrants and agrees that:
SECTION 2.1 Organization of the Company. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Utah, is duly qualified and in good
standing as a foreign corporation in every jurisdiction in which
such qualification is necessary, and has the corporate power and
authority to own its properties and assets and to transact the
business in which it is engaged. There are no corporations or
other entities with respect to which (i) the Company owns any of
the outstanding stock or other interest, or (ii) the Company may be
deemed to be in control because of factors or relationships other
that the quantity of stock or other interest owned. The Company
has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement is the legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its respective terms except to the extent that
such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights
generally.
SECTION 2.2 Capitalization of the Company. Prior to the action to
be taken at the Company's Special Meeting of Shareholders and the
transactions contemplated by this Agreement, the authorized capital
stock of the Company consisted of 25,000,000 shares of common
stock, par value $.00004 per share, of which 1,150,000 shares were
issued and outstanding. Taking into consideration the effect of
the proposed change of capitalization and proposed one share for
1.75 shares reverse stock split, the number of shares of common
stock issued and outstanding shall be approximately 657,143 shares,
par value $.001 per share, without giving effect of the rounding of
fractional shares. All shares of the Company's common stock
presently issued and outstanding have been duly authorized and
validly issued and are fully paid and non-assessable. There are no
other options, warrants, rights, calls, commitments or agreements
of any character obligating the Company to issue any shares of its
capital stock or any security representing the right to purchase or
otherwise receive any such stock. Shares of the Company's common
stock to be issued pursuant to this Agreement, when so issued, will
be duly authorized, validly issued, fully paid and non-assessable.
SECTION 2.3 Charter Documents. Complete and correct copies of the
Articles of Incorporation and By-Laws of the Company and all
amendments thereto, have been or will be delivered to WWATT prior
to the Closing.
SECTION 2.4 Corporate Documents. The Company's shareholders' list
and corporate minute books to be delivered at the Closing are
complete and accurate as of the date hereof and the corporate
minute books contain the recorded minutes of all corporate meetings
of shareholders and directors.
SECTION 2.5 Financial Statements. The Company's financial
statements for the period ended February 10, 1997 and the years
ended December 31, 1996 and 1995, a copy of which is to be annexed
hereto as Exhibit 2.5 and by this reference made a part hereof, are
true and complete in all material respects, having been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis for the periods covered by such statements, and
fairly present, in accordance with generally accepted accounting
principles, the financial condition of the Company, and results of
its operations for the periods covered thereby. Except as otherwise
disclosed to WWATT as set forth herein, there has been no material
adverse change in the business operations, assets, properties,
prospects or condition (financial or otherwise) of the Company
taken as a whole from that reflected in the financial statements
referred to in this Section 2.5, or which WWATT based its decision
to enter into this Agreement.
SECTION 2.6 Absence of Certain Changes or Events. Since the date
of the Company's financial report for the period ended February 10,
1997 (see Exhibit 2.5), and except as disclosed otherwise herein,
the Company has not (i) issued or sold any promissory note, stock,
bond, option or other corporate security of which it was an issuer
or other obligor, (ii) discharged or satisfied any lien or
encumbrance or paid any obligation or liability, absolute or
contingent, direct of indirect, (iii) incurred or suffered to be
incurred any liability or obligation whatsoever, (iv) caused or
permitted any lien, encumbrance or security interest to be created
or arise on or in any of its properties or assets, (v) declared or
made any dividend, payment or distribution to stock holders or
purchased or redeemed or agreed to purchase or redeem any shares of
its capital stock, (vi) reclassified its shares of capital stock,
or (vii) entered into any agreement or transaction except in
connection with the execution and performance of this Agreement.
SECTION 2.7 Assets and Liabilities. The Company does not have any
material assets as reflected in the financial statements included
as Exhibit 2.5. As of the date hereof, the Company does not have
any material debts, liabilities or obligations of any nature,
whether accrued, absolute, contingent, or otherwise, whether due or
to become due, that are not fully reflected in the Company's
financial statements.
SECTION 2.8 Tax Returns and Payments. The Company has filed with
the appropriate governmental authority tax returns, whether based
upon income, sales or franchise, as required by law to be filed on
or before the date of this Agreement. The Company represents that
immediately upon the Closing it will prepare and file those
required federal tax returns that may be due. The Company has paid
all taxes to be due on said returns, any assessments made against
the Company and all other taxes, fees and similar charges imposed
on the Company by any governmental authority. No tax liens have
been filed and no claims are being assessed and no returns are
under audit with respect to any such taxes, fees or other similar
charges.
SECTION 2.9 Contracts. The Company is not a party to or bound by
any contract or commitment, whether written or oral, except as
otherwise disclosed herein.
SECTION 2.10 Required Authorizations. There have been or will be
timely filed, given, obtained or taken, all applications, notices,
consents, approvals, orders, registrations, qualifications waivers
or other actions of any kind required by virtue of execution and
delivery of this Agreement by the Company or the consummation by it
of the transactions contemplated hereby. Prior to the Closing, the
shareholders of the Company shall have approved this Agreement and
the transactions contemplated hereunder and the appropriate
corporate filings shall have been made with the State of Utah.
SECTION 2.11 Compliance with Law and Government Regulations. The
Company is in compliance with and is not in violation of,
applicable federal, state, local or foreign statutes, laws and
regulations (including without limitation, any applicable building,
zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business.
SECTION 2.12 Litigation. There is no litigation, arbitration,
proceeding or investigation pending or threatened to which the
Company is a party or which may result in any material change in
the business or condition, financial or otherwise, of the Company
or in any of its properties or assets, or which might result in any
liability on the part of the Company, or which questions the
validity of this Agreement or of any action taken or to be taken
pursuant to or in connection with the provisions of this Agreement,
and to the best knowledge of the Company, there is no basis for any
such litigation, arbitration, proceeding or investigation.
SECTION 2.13 Trade Names and Rights. The Company does not use any
trademark, service xxxx, trade name, or copyright in its business,
nor does it own any trademark, trademark registration or
application, trade name, service xxxx, copyright, copyright
registration or application. No person owns any trademark,
trademark registration or application, service xxxx, trade name,
copyright, or copyright registration or application, the use of
which is necessary or contemplated in connection with the operation
of the Company's business.
SECTION 2.14 Governmental Consent. With the exception of the
filing specified in Section 1.2 hereof, no consent, approval,
authorization or order of, or registration, qualification,
designation, declaration or filing with, any governmental authority
on the part of the Company is required in connection with the
execution and delivery of this Agreement or the carrying out of any
transactions contemplated hereby.
SECTION 2.15 Previous Proposed Transactions. The Company has
previously entered into two separate transactions whereby it
intended to acquire MLK Industries Limited, a United Kingdom
corporation, and Healthcare 2000 International, Inc., a Florida
corporation. Although both proposed transactions were approved by
the Company's shareholders, neither transaction resulted in a
definitive agreement and neither transaction was finalized and
closed. The Company has no further commitments, obligations or
liabilities as a result of the two previous proposed transactions.
SECTION 2.16 Authority. The Company and its shareholders have, or
will prior to the Closing, approved the Merger, this Agreement and
the transactions contemplated hereby and duly authorized the
execution and delivery hereof. The Company has full power,
authority and legal right to enter into this Agreement and to
consummate the transactions contemplated hereby, and all corporate
action necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby has been duly and validly taken. The execution and delivery
of this Agreement, the consummation of the transactions
contemplated hereby and compliance by the Company with the
provisions hereof will not (i) conflict with or result in a breach
of any provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the
Company under, any of the terms, conditions or provisions of the
Articles of Incorporation or By-Laws of the Company, or any note,
bond, mortgage, indenture, license, lease, agreement or any
instrument or obligation to which the Company is party or by which
it is bound; or (ii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company or any of its
properties or assets.
SECTION 2.17 Investigation of Financial Condition. In addition to
making available for review by WWATT all financial statements,
books and records of the Company, and without in any manner
reducing or otherwise mitigating the representations contained
herein, WWATT shall have the opportunity to meet with the Company's
accountants and attorneys to discuss the financial condition of the
Company and to make whatever further independent investigation
deemed necessary and prudent.
SECTION 2.18 Full Disclosure. None of the representations and
warranties made by the Company herein, or in any exhibit,
certificate or memorandum furnished or to be furnished by the
Company, on its behalf pursuant hereto, contains or will contain
any untrue statement of material fact, or omits any material fact,
the omission of which would be misleading.
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Conduct Prior to the Closing. Between the date
hereof and the Closing:
(a) The Company will not enter into any material
agreement, contract or commitment, whether written or oral, or
engage in any transaction without the prior written consent of
WWATT;
(b) The Company will not declare any dividends or
distributions with respect to its capital stock or amend its
Articles of Incorporation or By-Laws without the prior written
consent of WWATT;
(c) The Company will not authorize, issue, sell,
purchase or redeem any shares of its capital stock without the
prior written consent of WWATT;
(d) The Company will comply with all requirements which
federal or state law may impose on it with respect to this
Agreement and the transactions contemplated hereby, and will
promptly cooperate with and furnish information to WWATT in
connection with any such requirements imposed upon the parties
hereto in connection therewith;
(e) The Company will not incur any indebtedness for
money borrowed, or issue or sell any debt securities, incur or
suffer to be incurred any liability or obligation of any
nature whatsoever, or cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of its
properties or assets, acquire or dispose of fixed assets,
change employment terms, enter into any material or long-term
contract, guarantee obligations of any third party, settle or
discharge any balance sheet receivable for less than its
stated amount or enter into any other transaction other than
in the regular course of business, except to comply with the
terms of this Agreement, without the prior written
consent of WWATT;
(f) The Company shall grant to WWATT and its counsel,
accountants and other representatives, full access during
normal business hours during the period prior to the Closing
to all its respective properties, books, contracts,
commitments and records and, during such period, furnish
promptly to WWATT and such representatives all information
relating to the Company as WWATT may reasonably request; and
(g) Except for the transactions contemplated by this
Agreement, the Company will conduct its business in the normal
course, and shall not sell, pledge or assign any of its assets
without the prior written consent of WWATT.
SECTION 3.2 Affirmative Covenants. Prior to Closing, the Company
will do the following:
(a) Use its best efforts to accomplish all actions
necessary to consummate this Agreement including satisfaction
of all the conditions contained in this Agreement;
(b) Promptly notify WWATT in writing of any material
adverse change in the financial condition, business,
operations or key personnel of the Company, any breach of its
representations or warranties contained herein, and any
material contract, agreement, license or other agreement
which, if in effect on the date of this Agreement, should have
been included in this Agreement or in an exhibit annexed
hereto and made a part hereof;
(c) Obtain approval of this Agreement from a majority of its
shareholders;
(d) Nominate at the its Special Meeting of Shareholders a new
Board of Directors, nominees to be Xxxxxx X. Xxxxxxxxx, D.
Xxxx Xxxxxxx, Xxxxxxx X. Xxxxxx, Xx. and Xxxxx X. Xxxxx;
(e) Reserve, and promptly after the Closing, issue and
deliver to the shareholders of WWATT or their designees and to
Solutions Partnership, Inc. the number of shares of the
Company's common stock required hereunder;
(f) Take the necessary corporate action to file with the
State of Utah, Articles of Amendment to its Articles of
Incorporation which will change its corporate name to Synaptix
Worldwide, Inc.; and
(e) Take all other necessary corporate actions to
accomplish all transactions contemplated herein.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WWATT
WWATT hereby represents, warrants and agrees that:
SECTION 4.1 Organization of WWATT. WWATT is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and is duly qualified and in good standing in
every jurisdiction in which such qualification is necessary.
Unless otherwise set forth herein or in any financial statements or
in Exhibit 4.1 annexed hereto and by this reference made a part
hereof, and with the exception of Xxxxxxx Partners, Inc. and North
American Telco Cable Representatives, Inc., there are no
corporations or other entities with respect to which (i) WWATT
owns any of the outstanding stock or other interest, or (ii) WWATT
may be deemed to be in control because of factors or relationships
other than the percentage of outstanding stock or other interest
owned in such entity. WWATT has all requisite corporate power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
SECTION 4.2 Charter Documents. Complete and correct copies of the
Articles of Incorporation and By-Laws of WWATT and all amendments
thereto, have been or will be delivered to the Company prior to the
Closing.
SECTION 4.3 Financial Statements / Assets and Liabilities.
WWATT's financial statements for the period ended August 31, 1996,
a copy of which is annexed hereto as Exhibit 4.3 and by this
reference made a part hereof, are true and complete in all material
respects, having been prepared in accordance with generally
accepted accounting principles applied on a consistent basis for
the periods covered by such statements, and fairly present the
financial condition of WWATT and results of its operations for the
periods covered thereby. WWATT has good and marketable title to
all of its assets and property, free and clear of any and all
liens, claims and encumbrances except as may be otherwise set forth
herein or in its audited financial statements annexed hereto as
Exhibit 4.3.
SECTION 4.4 Tax Returns and Payments. All of WWATT's tax returns
(federal, state, city, county or foreign) which are required by law
to be filed on or before the date of this Agreement, have been duly
filed or extended with the appropriate governmental authority.
WWATT has paid or accrued all taxes to be due on said returns, any
assessments made against WWATT and all other taxes, fees and
similar charges imposed on WWATT by any governmental authority
(other than those, the amount or validity of which is being
contested in good faith by appropriate proceedings). No tax liens
have been filed and no claims are being assessed with respect to
any such taxes, fees or other similar charges.
SECTION 4.5 Required Authorizations. There have been or will be
timely filed, given, obtained or taken, all applications, notices,
consents, approvals, orders, registrations, qualifications waivers
or other actions of any kind required by virtue of execution and
delivery of this Agreement by WWATT or the consummation by it of
the transactions contemplated hereby.
SECTION 4.6 Compliance with Law and Government Regulations. WWATT
is in compliance with all applicable statutes, regulations,
decrees, orders, restrictions, guidelines and standards, whether
mandatory or voluntary, affecting its properties and operations,
imposed by State of Delaware, and any state or foreign country or
government to which WWATT is subject.
SECTION 4.7 Litigation. There is no material litigation,
arbitration, proceeding or investigation pending or threatened to
which WWATT is a party or which may result in any material change
in the business or condition, financial or otherwise, of WWATT or
in any of its properties or assets, or which might result in any
liability on the part of WWATT, or which questions the validity of
this Agreement or of any action taken or to be taken pursuant to or
in connection with the provisions of this Agreement, and to the
best knowledge of WWATT, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 4.8 Trade Names and Rights. If applicable, Exhibit 4.8
annexed hereto and by this reference made a part hereof, contains
a complete list of all trademarks, service marks, trademark and
service xxxx registrations, applications and licenses with respect
to the foregoing owned or held by WWATT. WWATT has no knowledge of
any facts and nothing has come to its attention that would lead it
to believe that it has infringed or misappropriated or is
infringing upon any trademark, copyright, patent or other similar
right of any person. No claim relating thereto is pending or to
the knowledge of WWATT is threatened.
SECTION 4.9 Governmental Consent. With the exception of any
filing specified herein, no consent, approval, authorization or
order of, or registration, qualification, designation, declaration
or filing with, any governmental authority on the part of WWATT is
required in connection with the execution and delivery of this
Agreement or the carrying out of any transactions contemplated
hereby.
SECTION 4.10 Authority. WWATT and its shareholders have approved
the Merger, this Agreement and duly authorized the execution and
delivery hereof. WWATT has full power, authority and legal right
to enter into this Agreement and to consummate the transactions
contemplated hereby, and all corporate action necessary to
authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby has been duly
and validly taken. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and
compliance by WWATT with the provisions hereof will not (i)
conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the
creation of any lien, security interest, charge or encumbrance upon
any of the properties or assets of WWATT under, any of the terms,
conditions or provisions of the Articles of Incorporation or
By-Laws of WWATT, or any note, bond, mortgage, indenture, license,
agreement or any instrument or obligation to which WWATT is party
or by which it is bound; or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to WWATT
or any of its properties or assets.
SECTION 4.11 Investigation of Financial Condition. In addition to
making available for review by the Company certain corporate
documents, books and records of WWATT, and without in any manner
reducing or otherwise mitigating the representations contained
herein, the Company shall have the opportunity to meet with WWATT's
accountants and attorneys to discuss the financial condition of
WWATT and to make whatever further independent investigation
reasonably deemed necessary and prudent.
SECTION 4.12 Options and Warrants. WWATT has authorized pursuant
to its 1996 Stock Option Plan, up to 500,000 stock options that may
be issued for the purchase of WWATT common stock pursuant to
certain terms and conditions. As of the date hereof, WWATT has
issued 295,000 options pursuant to such Plan entitling the holders
thereof to purchase up to an aggregate of 295,000 shares of WWATT
common stock at prices ranging from $.10 to $1.10 per share prior
to the year 2001. WWATT also has issued and outstanding 181,725
stock purchase warrants entitling the holders thereof to purchase
up to an aggregate of 106,725 shares of WWATT common stock at
prices ranging from $.50 to $1.50 per share. The aforementioned
options and warrants will remain issued and outstanding and will be
exercisable for the purchase of the Company's common stock
following the Merger pursuant to terms and conditions to be
determined by the parties.
SECTION 4.13 Investment Purpose. Those persons receiving shares
of the Company's common stock hereunder shall execute appropriate
documents to represent and warrant that they, or their designees,
are acquiring the shares of the Company's common stock for
investment purposes only and not with a view for further
distribution or resale, and each such recipient shall individually
further represent and acknowledge that the securities issued
hereunder are "restricted securities" and may not be sold, traded
or otherwise transferred without registration under the 1933 Act or
exemption therefrom.
SECTION 4.14 Full Disclosure. None of the representations and
warranties made by WWATT herein, or in any exhibit, certificate or
memorandum furnished or to be furnished by the Company, on its
behalf pursuant hereto, contains or will contain any untrue
statement of material fact, or omits any material fact, the
omission of which would be misleading.
ARTICLE V
COVENANTS OF WWATT
SECTION 5.1 Conduct Prior to the Closing. Between the date
hereof and the Closing:
(a) Except within the regular course of business, WWATT
and its subsidiaries will not enter into any material
agreement, contract or commitment, whether written or oral, or
engage in any transaction without the prior written consent of
the Company;
(b) WWATT and its subsidiaries will not sell, assign,
transfer or otherwise divest any of the assets depicted in
Exhibit 4.3 hereto without the prior written consent of the
Company;
(c) WWATT and its subsidiaries will not declare any
dividends or distributions with respect to its capital stock
or amend its Articles of Incorporation or By-Laws without the
prior written consent of the Company;
(d) Except within the regular course of business, WWATT
and its subsidiaries will not incur any indebtedness for money
borrowed or issue to sell any debt securities, or incur or
suffer to be incurred any liability or obligation of any
nature whatsoever, or cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of its
properties or assets without the prior written consent of the
Company;
(e) WWATT will comply with all requirements which
federal or state law may impose on it with respect to this
Agreement and the transactions contemplated hereby, and will
promptly cooperate with and furnish information to the Company
in connection with any such requirements imposed upon the
parties hereto in connection therewith; and
(f) WWATT shall grant to the Company and its counsel,
accountants and other representatives, full access during
normal business hours during the period prior to the Closing
to all its respective properties, books, contracts,
commitments and records and, during such period, furnish
promptly to the Company and such representatives all
information relating to WWATT as the Company may reasonably
request.
SECTION 5.2 Affirmative Covenants. Prior to Closing, WWATT will
do the following:
(a) Obtain the approval of its Board of Directors and a
majority of its shareholders to proceed with this Agreement;
(b) Use its best efforts to accomplish all actions
necessary to consummate this Agreement including satisfaction
of all the conditions contained in this Agreement;
(c) Cause to be prepared and delivered to the Company,
if applicable, all deeds, contracts, agreements, mortgages,
encumbrances and other documents relating to the ownership and
title and/or interest in WWATT's assets and property; and
(d) Promptly notify the Company in writing of any
materially adverse change in the financial condition,
business, operations or key personnel of WWATT, any breach of
its representations or warranties contained herein, and any
material contract, agreement, license or other agreement
which, if in effect on the date of this Agreement, should have
been included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions
contemplated in this Agreement are consummated, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expense or as otherwise agreed to herein.
SECTION 6.2 Brokers and Finders. Each of the parties hereto
represents, as to itself, that no agent, broker, investment banker
or other firm or person is or will be entitled to any broker's or
finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement, except
as may be otherwise set forth herein and in Section 6.4 below.
SECTION 6.3 Necessary Actions. Subject to the terms and
conditions herein provided, each of the parties hereto agree to use
all reasonable efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement. In
the event at any time after the Closing, any further action is
necessary or desirable to carry out the purposes of this Agreement,
the proper officers and/or directors of the Company or WWATT, as
the case may be, shall take all such necessary action.
SECTION 6.4 Consulting Agreement. For services rendered in
connection with the negotiation and execution of this Agreement and
the consummation of the transactions contemplated herein, the
parties have entered into a separate agreement whereby at the
Closing, a fee of seven hundred ninety thousand (790,000) shares of
the Company's authorized but previously unissued common stock
(post-split) shall be issued to Solutions Partnership, Inc. Such
shares shall be deemed restricted securities as defined by Rule 144
of the 1933 Act.
SECTION 6.5 Indemnification.
(a) WWATT agrees to defend and hold the Company harmless
against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries
and deficiencies, including interest, penalties, and
reasonable attorney fees, that the Company shall incur or
suffer, which arise out of, result from or relate to any
material breach of, or failure by WWATT to perform any of its
representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or
to be furnished by WWATT under this Agreement.
(b) The Company agrees to defend and hold WWATT harmless
against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries
and deficiencies, including interest, penalties, and
reasonable attorney fees, that WWATT shall incur or suffer,
which arise out of, result from or relate to any material
breach of, or failure by the Company to perform any of its
representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or
to be furnished by the Company under this Agreement.
SECTION 6.6 Confidentiality. All parties hereto agree to keep
confidential this Agreement and all information and documents
relating to this Agreement until such time as the Agreement and the
transactions contemplated hereunder are made public by means of an
appropriate press release or by any other means reasonably assured
to make such information publicly available.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are
subject to the fulfillment and satisfaction of each of the
following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction
or other order by any federal or state court which prevents the
consummation of this Agreement or any of the transactions
contemplated by this Agreement shall have been issued and remain in
effect.
SECTION 7.2 Absence of Termination. The obligations to consummate
the transactions contemplated hereby shall not have been canceled
pursuant to Article X hereof.
SECTION 7.3 Required Approvals. The Company and WWATT shall have
received all such approvals, consents, authorizations or
modifications as may be required to permit the performance by the
Company and WWATT of the respective obligations under this
Agreement and the consummation of the transactions herein
contemplated, whether from governmental authorities or other
persons, and the Company and WWATT shall each have received any and
all permits and approvals from any regulatory authority having
jurisdiction required for the lawful consummation of this
Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been obtained
any and all permits, approvals and consents of the Securities or
"Blue-Sky" Commissions of any jurisdictions, and of any other
governmental body or agency, which counsel for the Company may
reasonably deem necessary or appropriate so that consummation of
the transactions contemplated by this Agreement may be in
compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
All obligations of the Company under this Agreement are
subject to the fulfillment and satisfaction by WWATT prior to or at
the time of the Closing, of each of the following conditions, any
one or more of which may be waived by the Company.
SECTION 8.1 Representations and Warranties True at the Closing.
All representations and warranties of WWATT contained in this
Agreement will be true and correct at and as of the time of the
Closing and WWATT shall have delivered to the Company a
certificate, dated the date of the Closing, to such effect and in
the form and substance satisfactory to the Company and signed, in
the case of WWATT, by its president and secretary.
SECTION 8.2 Performance. The obligations of WWATT to be performed
on or before the Closing pursuant to the terms of this Agreement
shall have been duly performed at such time, and WWATT shall have
delivered to the Company a certificate, dated the date of the
Closing, to such effect and in form and substance satisfactory to
the Company.
SECTION 8.3 Authority. All action required to be taken by or on
the part of WWATT to authorize the execution, delivery and
performance of this Agreement by WWATT and consummation of the
transactions contemplated hereby, shall have been duly and validly
taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not
have occurred since the date hereof any adverse change in the
business, condition (financial or otherwise), assets or liabilities
of WWATT or any event or condition of any character adversely
affecting WWATT, and it shall have delivered to the Company
certificates dated the date of the Closing, to such effect and in
form and substance satisfactory to the Company and signed in the
case of WWATT, by its president and secretary.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF WWATT
All obligations of WWATT under this Agreement are subject to
the fulfillment and satisfaction by the Company prior to or at the
time of Closing, of each of the following conditions any one or
more of which may be waived by WWATT.
SECTION 9.1 Representations and Warranties True at the Closing.
All representations and warranties of the Company contained in this
Agreement will be true and correct at and as of the time of the
Closing, and the Company shall have delivered to WWATT a
certificate, dated the date of the Closing, to such effect and in
the form and substance satisfactory to WWATT and signed, in the
case of the Company, by its president and secretary.
SECTION 9.2 Performance. Each of the obligations of the Company
to be performed on or before the Closing pursuant to the terms of
this Agreement shall have been duly performed at the time of the
Closing, and the Company shall have delivered to WWATT a
certificate, dated the date of the Closing, to such effect and in
form and substance satisfactory to WWATT and signed, in the case of
the Company, by its president and secretary.
SECTION 9.3 Authority. All action required to be taken by or on
the part of the Company to authorize the execution, delivery and
performance of this Agreement by the Company and consummation of
the transactions contemplated hereby shall be duly and validly
taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not
have occurred since the date hereof any adverse change in the
business, condition (financial or otherwise), assets or liabilities
of the Company or any event or condition of any character adversely
affecting the Company and it shall have delivered to WWATT
certificates dated the date of the Closing, to such effect and in
form and substance satisfactory to WWATT and signed in the case of
the Company, by its president and secretary.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or
elsewhere to the contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any
time.
(b) By the board of directors of the Company at any time
prior to the Closing if:
(i) a condition to performance by the Company under this
Agreement or a covenant of WWATT contained herein shall
not be fulfilled on or before the time of the Closing or
at such other time and date specified for the fulfillment
for such covenant or condition; or
(ii) a material default or breach of this Agreement is
made by WWATT; or
(iii) if the Closing shall not have taken place on or
prior to March 31, 1997.
(c) By the board of directors of WWATT at any time prior
to the Closing if:
(i) a condition to WWATT's performance under this
Agreement or a covenant of the Company contained in this
Agreement shall not be fulfilled on or before the Closing
or at such other time and date specified for the
fulfillment of such covenant or conditions; or
(ii) a material default or breach of this Agreement is
made by the Company; or
(iii) if the Closing shall not have taken place on or
prior to March 31, 1997.
SECTION 10.2 Effect of Termination. In the event this Agreement
is terminated, the Agreement, except as to Sections 11.1 and 11.2
hereof, shall no longer be of any force or effect and there shall
be no liability on the part of any party or its respective
directors, officers or shareholders; provided however, that in the
case of a Termination without cause by a party or a termination
pursuant to Sections 10.1(b)(i) or 10.1(c)(i) hereof because of a
prior material default under or a material breach of this Agreement
by another party, the damages which the aggrieved party or parties
may recover from the defaulting party or parties shall in no event
exceed the amount of out-of-pocket costs and expenses incurred by
such aggravated party or parties in connection with this Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Costs and Expenses. All costs and expenses incurred
in connection with this Agreement will be paid by the party
incurring such expenses. In the event of any termination of this
Agreement pursuant to Section 10.1, subject to the provisions of
Section 11.2, the Company and WWATT will each bear their own
respective expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior to
the Closing date:
(a) The Company may (i) extend the time for the
performance of any of the obligations or other acts of WWATT,
(ii) waive any inaccuracies in the representations and
warranties of WWATT contained herein or in any document
delivered pursuant hereto by WWATT and (iii) waive compliance
with any of the agreements or conditions contained herein to
be performed by WWATT. Any agreement on the part of the
Company to any such extension or waiver shall be valid only if
set forth in an instrument, in writing and signed on behalf of
the Company.
(b) WWATT may (i) extend the time for the performance of
any of the obligations or other acts of the Company, (ii)
waive any inaccuracies in the representations and warranties
of the Company contained herein or in any document delivered
pursuant hereto by the Company and (iii) waive compliance with
any of the agreements or conditions contained herein to be
performed by the Company. Any agreement on the part of WWATT
to any such extension or waiver shall be valid only if set
forth in an instrument, in writing and signed on behalf of
WWATT.
SECTION 11.3 Notices. Any notice to any party hereto pursuant to
this Agreement shall be given by Certified or Registered Mail,
addressed as follows:
In-Touch Interactive Multimedia, Inc. Copy to:
4700 South 000 Xxxx Xxxxxxx X. Xxxxxxx
Xxxxx 00 X Attorney at Law
Xxxx Xxxx Xxxx, Xxxx 00000 1121 East 0000 Xxxxx, Xxx. 000
Xxxx Xxxx Xxxx, Xxxx 00000
Worldwide Applied Telecom Technology, Inc. Copy to:
0000 Xxxxxx Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000 c/x Xxxx & Priest
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Additional notices are to be given as to each party, at such
other address as should be designated in writing complying as to
delivery with the terms of this Section 11.3. All such notices
shall be effective when sent, addressed as aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and the
respective successors and assigns. Nothing in this Agreement is
intended to confer, expressly or by implication upon any other
person, any rights or remedies under or by reason of this
Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and
together shall constitute one document. The delivery by facsimile
of an executed counterpart of this Agreement shall be deemed to be
an original and shall have the full force and effect of an original
executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm
that none of the provisions herein is dependent upon the validity
of any other provision and, if any part of this Agreement is deemed
to be unenforceable, the remainder of the Agreement shall remain in
full force and effect.
SECTION 11.7 Headings. The Article and Section headings are
provided herein for convenience of reference only and do not
constitute a part of this Agreement.
SECTION 11.8 Governing Law. This Agreement shall be governed by
the laws of the State of Utah.
SECTION 11.9 Survival of Representations and Warranties. All
terms, conditions, representations and warranties set forth in this
Agreement or in any instrument, certificate, opinion, or other
writing provided for herein, shall survive the Closing and the
delivery of the shares of the Company's common stock issued
hereunder at the Closing, for a period of one year from the Closing
regardless of any investigation made by or on behalf of any of the
parties hereto.
SECTION 11.10 General Release. Each of the parties to this
Agreement hereby releases and discharges the other party together
with such other party's officers, directors, employees, agents,
assigns, attorneys, accountants and affiliates, whether or not
herein named or referred to, of and from any and all claims, causes
of action, debts, duties, liabilities and obligations of any and
every sort or nature, wherever and however arising, which against
the other party it now has or ever had or which it or its assigns
hereafter may or can have, from any time up to and including the
Closing of this Agreement and the Effective Time of the Merger
contemplated hereby.
SECTION 11.11 Assignability. This Agreement shall not be
assignable by any of the parties hereto without the prior written
consent of the other parties.
SECTION 11.12 Amendment. This Agreement may be amended with the
approval of the boards of directors of the Company and WWATT at any
time before or after approval thereof by shareholders of the
Company and, if required, of WWATT; but after such approval by the
Company's shareholders, no amendment shall be made which
substantially and adversely changes the terms hereof. This
Agreement may not be amended except by an instrument, in writing,
signed on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement in a manner legally binding upon them as
of the date first above written.
"Company"
IN-TOUCH INTERACTIVE MULTIMEDIA, INC. ATTEST:
By: __________________________ ___________________________
Its: President Its: Secretary
"WWATT"
WORLDWIDE APPLIED TELECOM
TECHNOLOGY, INC. ATTEST:
By: ________________________ __________________________
Its: President Its: Secretary
