EXHIBIT 2.1
AGREEMENT OF STOCK EXCHANGE
THIS AGREEMENT OF STOCK EXCHANGE ("Agreement") is made as of this 19th
day of June, 2000, by and among Xxxxxxx X. Xxxx, Jolec Trading Limited, Xxxx
Xxxxxxx, FOG Investments, Ltd., Equation Ventures N.V., Xxxxxxx Capital Limited,
Heydael B.V., Henri B. G. Sijthoff, Xxxxxxx Xxxxxxxxx, Jouke V.J.P. Xxxxx, Xxxxx
X. van Wulfften Palthe, Xxxxxxx xxx Xxxxx, Xxxxxx X.X.X. Aarts, Xxxxx X. xxx
Xxxxx, Viewmont Holdings Limited, Moana Lake Finance Corp., Xxxxxxxx'x
Securities Ltd. and Hacken Investments Limited, (individually, a "Seller" and
collectively, the "Sellers"); ADVA International Inc., a Delaware corporation
("Buyer"); Global Information Group USA Inc., a Delaware corporation (the
"Company") and Biotel, Inc. ("Biotel").
WHEREAS, the Company is authorized to issue 10,000 shares of common
stock ("Company Shares"), par value $.01 per share, of which 1,000 shares are
presently issued and outstanding and, immediately prior to the Closing Date,
1,189.04 shares will be issued and outstanding, and
WHEREAS, the Company has outstanding Take Over Options and Subscription
Options to purchase 189.04 Company Shares and there exists an Executive Option
to acquire 300 Company Shares owned by Xxxxxxx X. Xxxx (collectively, the
"Company Options"), all of which will be exercised prior to Closing (as set
forth on Schedule "A"), and
WHEREAS, ADVA International Inc. is authorized to issue 20,000,000
shares of common stock (the "Buyer Shares"), par value $.001 per share, of which
716,250 shares are presently issued and outstanding and, immediately prior to
the Closing Date 716,250 shares will be issued and outstanding, and
WHEREAS, on the Closing Date, the Buyer shall issue 12,468,750 Buyer
Shares of the 13,185,000 outstanding Buyer Shares (the "Outstanding Buyer
Shares") to the Sellers (set forth on Schedule "A"), in return for all the
issued and outstanding Company Shares owned by the Sellers (this share exchange
shall be referred to herein as the "Stock Exchange"), with the result that: (a)
Sellers will own 94.57% of the Outstanding Buyer Shares (after giving effect to
the exercise of the Company Options), with the remaining Buyer Shares (716,250)
being owned by the present Shareholders of Buyer, and
WHEREAS, the Company shall pay in cash, immediately after Closing, to
Advanced Medical Products, Inc. Debtor-in-Possession Three Hundred Thousand
Dollars ($300,000) which shall be paid to creditors of Advanced Medical
Products, Inc. pursuant to Section 6.2.10 hereof, and
WHEREAS, the Stock Exchange shall be effected as a tax-free exchange
pursuant to Section 351 and/or Section 368 of the Internal Revenue Code of 1986,
as amended (the "Code"), and
WHEREAS, on the Closing Date there shall be no warrants, options, or
any other rights, either authorized or outstanding, which are convertible or
exercisable into the Company Shares.
NOW, THEREFORE, in consideration of the premises, the parties hereto do
mutually agree as follows:
ARTICLE I
EXCHANGE OF SHARES
1.1 Exchange of Company Shares and Cash for Buyer Shares.
1.1.1 On the Closing Date, Buyer shall (i) issue 12,468,750 Buyer
Shares to the Sellers (as set forth on Exhibit "A" hereto) and such shares when
issued shall be fully-paid and nonassessable, and no preemptive rights of
stockholders shall exist with respect to the shares or the issue or sale
thereof.
1.1.2 On the Closing Date, the Sellers shall deliver to Buyer all
of the Outstanding Company Shares, duly endorsed for transfer or with stock
powers attached.
1.1.3 Company shall have paid in cash Three Hundred Thousand
Dollars ($300,000) to Advanced Medical Products Inc., Debtor in Possession for
distribution to creditors and payment of expenses pursuant to Section 6.2.10
hereof.
1.2 Outstanding Buyer Shares. Each share of Buyer Common Stock which is
issued and outstanding immediately prior to the Closing Date shall by virtue of
this Agreement remain issued and outstanding thereafter.
1.3 Restrictions on Shares. The Buyer Shares and the Company Shares
being acquired by the respective parties are being acquired for investment only
and not with a view to the further sale or distribution thereof. Such Buyer
Shares issued hereunder constitute "restricted securities" as that term is
defined under Rule 144 of the Rules and Regulations promulgated under the
Securities Act of 1933 (the "Securities Act"). The Buyer Shares and the Company
Shares may not be sold, assigned or otherwise disposed of unless registered or
otherwise exempt from registration under the Securities Act and such other state
securities laws as may be applicable. The certificates representing such shares
shall contain an appropriate investment legend.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, for such Seller but not on behalf of any other Seller,
hereby represents and warrants to Buyer as follows:
2.1 Title of Company Shares. At the time of delivery of the Company
Shares to Buyer hereunder, Sellers will be the lawful owners of the Company
Shares in the amounts set forth in Exhibit A attached hereto and will have good
and marketable title thereto, and upon delivery as provided hereunder, Buyer
will receive good and marketable title thereto, free and clear of all liens,
pledges and encumbrances with no personal liability attaching to the ownership
thereof.
2.2 Authority to Execute and Perform Agreements. Each Seller which is a
corporation or other type of legal entity is, and on the Closing Date will be, a
duly organized and validly existing corporation (or other entity) in good
standing under the laws of its incorporation or organization. Each Seller has,
and on the Closing Date will have, the full legal right and power and all
authority and approval required to enter into, execute and deliver this
Agreement and to perform fully such Seller's respective obligations hereunder,
and this Agreement is the valid and binding obligation of each Seller
enforceable in accordance with its terms, except to the extent that: (a) the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally, (b) the remedies of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and general principles of equity and to the discretion of the
court before which any proceeding therefor may be brought, and (c) rights to
indemnity and contribution hereunder, if any, may be limited by state and
federal laws or the public policy underlying such laws.
2.3 No Conflict. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated by this Agreement will:
(a) conflict with, or result in a breach of, or constitute a default under (i)
in the case of Jolec Trading Limited, Fog Investments, Ltd., Equation Ventures
N.V., Xxxxxxx Capital Limited, Heydael B.V., Viewmont Holdings Limited, Moana
Lake Finance Corp., Xxxxxxxx'x Securities Ltd. and Hacken Investments Limited,
its charter or bylaws; (ii) any instrument or agreement to which any Seller is a
party, or by which any Seller is bound; or (iii) any governmental decree, order,
ruling, writ, permit or license to which any Seller is a party or by which any
Seller may be bound; (b) violate any law, statute, rule or regulation applicable
to any Seller or the transactions contemplated hereby; or (c) except as set
forth in Schedule 2.3, require the consent of any governmental or administrative
agency or any party to any contract to which any Seller is a party or by which
any Seller may be bound.
2.4 Broker's Fees. None of the Sellers has employed any broker or
finder or incurred any liability for any broker's fees, commissions or finder's
fees in connection with any of the transactions contemplated by this Agreement,
except as set forth in Schedule 2.4 hereto.
2.5 Investment Intent. Each of the Sellers are acquiring Buyer Shares
for investment only and not with a view to further distribution and do not have,
and will not have on the Closing Date, any commitment for the disposition of
such shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Buyer as follows:
3.1 Organization. The Company is, and on the Closing Date will be, a
duly organized and validly existing corporation in good standing under the laws
of the State of Delaware.
3.2 Capitalization. The authorized capital stock of the Company
consists only of the Company Shares. As of the Closing Date, the Outstanding
Company Shares will be issued and outstanding. There are no Company Shares
reserved for issuance upon the exercise of outstanding stock options, warrants
or similar rights, other than for the Company Options. All of the Outstanding
Company Shares have been duly authorized and validly issued, are fully paid,
nonassessable and free of preemptive rights, and are registered in the names of
the Sellers, free and clear of all actual liens and encumbrances. There are no,
and on the Closing Date there will be no, issued or outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for
the purchase or issuance of any shares of Company Common Stock, other than the
Company Options, or any other equity security of the Company or any securities
representing the right to purchase or otherwise receive any shares of Company
Common Stock or any other equity security of the Company.
3.3 Agreement; Authority. The Company has, and on the Closing Date will
have, the power and authority to enter into this Agreement and to consummate the
transactions contemplated thereby. This Agreement and the transactions
contemplated hereby have been, or on or prior to the Closing Date will be, duly
approved by appropriate corporate action of the Company.
3.4 Agreement: Enforceability. This Agreement has been duly authorized,
executed and delivered by the Company and is a legally valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except to the extent that: (a) the enforceability hereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights and remedies generally, (b)
the remedies of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and general principles of equity and
to the discretion of the court before which any proceeding therefor may be
brought, and (c) rights to indemnity and contribution hereunder, if any, may be
limited by state and federal laws of the public policy underlying such laws.
3.5 No Conflict. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated by this Agreement will:
(a) conflict with, or result in a breach of, or constitute a default under (i)
the Company's charter or bylaws, (ii) any instrument or agreement to which the
Company is a party, or by which it is bound; or (iii) any governmental decree,
order, ruling, writ, permit or license to which the Company is a party or by
which the Company may be bound; (b) violate any law, statute, rule or regulation
applicable to the Company or the transactions contemplated hereby; (c) except as
set forth in Schedule 3.5, require the consent of any governmental or
administrative agency or any other person not a party hereto; or (d) require the
consent of any party to any contract, agreement or commitment to which the
Company is a party or by which the Company may be bound, or result in a default
under or an acceleration of any obligation under any such contract, agreement or
commitment.
3.6 Subsidiaries. The Company has, and on the Closing Date will
have, no subsidiaries.
3.7 Doing Business. The Company is, and on the Closing Dates will be,
duly authorized, qualified and licensed under any and all applicable laws,
regulations, ordinances or orders of public authorities to carry on their
respective businesses in the places and in the manner as presently conducted or
as contemplated in this Agreement, except where the failure to be so authorized,
qualified or licensed would not have a materially adverse effect upon the
business of the Company.
3.8 Financial Statements. The financial statements of the Company,
consisting of a Balance Sheet as of March 31, 2000 and related Statement of
Income, and Statement of Shareholders' Equity for the year ended March 31, 2000
together with the accompanying notes, have been prepared by independent public
accountants. All such financial statements (collectively, the "Company Financial
Statements") were prepared in conformity with generally accepted accounting
principles, have been delivered to Buyer, and fairly present the financial
position and results of operations of the Company as of the dates and for the
periods shown.
3.9 No Adverse Change. Except as set forth in Schedule 3.9, since March
31, 2000, the business of the Company has only been operated in the normal
course. There has not been, and on the Closing Date there will not have been,
any material adverse change in the financial condition of the Company from that
set forth in the Company Financial Statements dated March 31, 2000.
3.10 Liabilities. Except as set forth on Schedule 3.10 hereof, there
are, and on the Closing Date will be, no liabilities (including, but not limited
to tax liabilities) or claims against the Company (whether such liabilities or
claims are contingent or absolute, direct or indirect, matured or unmatured) not
appearing on the Company Financial Statements, other than liabilities incurred
in the ordinary course of business or taxes accrued or incurred with regard to
earnings since March 31, 2000 or liabilities for expenses incurred in connection
with this Agreement.
3.11 Taxes. Except as set forth on Schedule 3.11 hereof, all federal,
state, county and local income, excise, property and other tax returns required
to be filed by the Company have been filed and all required taxes, fees or
assessments have been paid or an adequate reserve therefor has been set up in
the Company Financial Statements. No income tax returns of the Company have ever
been audited by any authority empowered to do so. There are no agreements or
waivers in effect that provide for an extension of time for the filing of any
tax returns by the Company or the assessment of any tax against the Company.
3.12 Title; Property. Except as set forth on Schedule 3.12 hereof, the
Company has, and on the Closing Date will have, all legal and beneficial
ownership of all of its real property, furniture, fixtures and equipment
excluding any leased real property, furniture, fixtures and equipment. Such
assets (excluding leased assets) are owned free and clear of all security
interests, pledges, liens, restrictions and encumbrances of every kind and
nature, except as stated in the Company Financial Statements.
3.13 Title; Inventory. The Company has, and on the Closing Date will
have, all legal and beneficial ownership of its inventory as set forth in the
Company Financial Statements, except for (a) inventory sold or leased in the
ordinary course of business since the date of the Company Financial Statements
and (b) inventory provided to the Company by certain suppliers under
arrangements pursuant to which title does not pass until the amounts owed to
such suppliers are paid in full. All of the Company's inventory is saleable in
the ordinary course of business.
3.14 Accounts Receivable. Except as set forth in Schedule 3.14, the
accounts receivable as set forth in the Company Financial Statements, except to
the extent already collected, represent amounts due for goods sold or services
rendered by the Company in the ordinary course of business. Except to the extent
of any reserve allowed therefor in the Company Financial Statements, such
accounts receivable, to the knowledge of the Company, are fully collectible in
the ordinary course of business.
3.15 Contracts and Commitments. All material agreements, contracts and
commitments to which the Company is, or on the Closing Date will be, a party, or
from which the Company does receive, or expects to receive on or after the
Closing Date, a substantial benefit, are set forth and briefly described in
Schedule 3.15 hereto. A true and complete copy of each such agreement, contract
or commitment has been delivered to Buyer. The Company is not, and on the
Closing Date will not be, and to the knowledge of the Company, each such other
party to each of such material agreements, contracts or commitments is not, in
default under any such material agreement, contract or commitment, the result of
which breach would have a materially adverse effect on the Company. True and
complete copies of all employment agreements or arrangements with employees of
the Company have been delivered to Buyer.
3.16 Litigation. Except as disclosed in Schedule 3.16 hereof, there
are, and on the Closing Date there will be, no claims, actions, suits or
proceedings pending, or to the best knowledge of the Company, threatened against
the Company.
3.17 Compensation and Loans. Except as disclosed in Schedule 3.17,
since March 31, 2000 there have been, and on the Closing Date there will be (i)
no bonuses or unusual compensation to any of the officers or directors of the
Company which are inconsistent with past practices, (ii) no loans made to any of
the officers or directors of the Company, (iii) except as may be consistent with
past practices, no dividends or other distributions declared or paid by the
Company, and (iv) no repurchase by the Company of any of its shares of capital
stock.
3.18 Additional Issuances of Equity. Except as set forth in Schedule
3.18, since March 31, 2000 or as otherwise disclosed herein, the Company has not
issued or committed itself to issue, and to the Closing Date will not issue or
commit itself to issue, any additional common shares or any options, rights,
warrants or other securities or instruments convertible into or exchangeable for
common shares, except as disclosed in or contemplated by this Agreement.
3.19 Broker's Fees. Except as set forth on Schedule 3.19, neither the
Company, nor any of its officers or directors, has employed any broker or finder
or incurred any liability for any broker's fees, commissions or finder's fees in
connection with any of the transactions contemplated by this Agreement.
3.20 Insurance. The Company has, and on the Closing Date will have,
coverage (which to its knowledge is adequate) against accident, damage, injury,
third party loss (including product liability), loss of profits and other risks
normally insured by persons carrying on the same business as that carried on by
it. A list of such insurance policies is set forth in Schedule 3.20 hereto.
3.21 Patents, etc. The Company has, and on the Closing Date will have,
no patents, patent applications, trademarks, trademark registrations or
applications therefor, tradenames, copyrights, copyright registrations or
applications therefor, except as set forth on Schedule 3.21 hereto (collectively
"Company Intellectual Property"). Except as set forth in Schedule 3.21: (a) the
Company, has the right to use the Company Intellectual Property in the manner in
which it is currently being used; (b) to the Company's knowledge, neither the
Company Intellectual Property nor the current uses thereof by the Company is
violating or infringing upon any intellectual property right of any person and
no claim to such effect has been made to the Company; and (c) to the Company's
knowledge, no other person is violating or infringing upon any of the Company
Intellectual Property listed on Schedule 3.21.
3.22 Business Conduct. The Company has, and on the Closing Date will
have, operated its business and conducted its affairs in compliance with all
applicable laws, rules and regulations of the United States, the State of
Delaware and all jurisdictions in which it now carries on business, except where
the failure to so comply would not have a materially adverse effect on the
Company.
3.23 Affiliated Transactions. There are, and on the Closing Date there
will be, no loans, leases or other contracts or arrangements outstanding between
(i) the Company, on the one hand, and (ii) any stockholder, officer, director or
key employee of the Company, or any person related to any of them, on the other
hand, except as set forth in Schedule 3.15 or Schedule 3.23 hereto.
3.24 Sanctions. During the past five year period, no officer or
director of the Company, and no person whom Sellers shall appoint as a director
of Buyer pursuant to Section 5.1 hereof, has been the subject of:
3.24.1 a petition for bankruptcy or other relief under United
States insolvency or creditor's rights laws, nor has a receiver, fiscal agent or
similar officer been appointed by a court for the business or property of such
person, or any partnership in which he was a partner at or within two years
before the time of such filing or appointment, or any corporation or business
association of which he was an executive officer at or within two years before
the time of such filing or appointment;
3.24.2 a conviction in a criminal proceeding or a named subject of
a pending criminal proceeding (excluding traffic violations and other minor
offenses);
3.24.3 any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining him from, or otherwise limiting, the following activities:
(i) Acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool operator, floor
broker, leverage transaction merchant, any other person regulated by
the United States Commodity Futures Trading Commission or an associated
person of any of the foregoing, or as an investment adviser,
underwriter, broker or dealer in securities, or as an affiliated
person, director or employee of any investment company, bank, savings
and loan association or insurance company, or engaging in or continuing
any conduct or practice in connection with activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection with the purchase
or sale of any security or commodity or in connection with any
violation of federal, state or other securities laws or commodities
laws.
3.24.4 any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any federal, state or local authority barring,
suspending or otherwise limiting for more than 60 days the right of such person
to engage in any activity described in the preceding sub-paragraph, or to be
associated with persons engaged in any such activity;
3.24.5 a finding by a court of competent jurisdiction in a civil
action or by the United States Securities and Exchange Commission to have
violated any securities law, and the judgment in such civil action or finding by
such Commission has not been subsequently reversed, suspended or vacated; or
3.24.6 a finding by a court of competent jurisdiction in a civil
action or by the Commodity Futures Trading Commission to have violated any
federal commodities law, and the judgment in such civil action or finding by the
Commodity Futures Trading Commission has not been subsequently reversed,
suspended or vacated.
3.25 Employee Benefit Plans. Except as set forth in Schedule
3.25, the Company has no pension plan, profit sharing or similar employee
benefit plan.
3.26 Questionable Payments. Neither the Company, nor any current or
former shareholder, partner, director or officer of it has (a) used any
corporate funds for any illegal contributions, gifts, entertainment or other
unlawful expenses relating to political activity; (b) used any corporate funds
for any direct or indirect unlawful payments to any foreign or domestic
government officials or employees; (c) established or maintained any unlawful or
unrecorded fund of corporate monies or other assets; (d) made any false or
fictitious entries on such corporation's books and records; (e) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment of any
nature using corporate funds or otherwise on behalf of the Company; (f) violated
any provision of the Foreign Corrupt Practices Act of 1977, if applicable; or
(g) made any material favor or gift that is not deductible for United States
income tax purposes using corporate funds or otherwise on behalf of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Sellers and the Company as
follows:
4.1 Organization. Buyer is, and on the Closing Date will be, a duly
organized and validly existing corporation in good standing under the laws of
the State of Delaware.
4.2 Capitalization. The authorized capital stock of Buyer consists of
20,000,000 Buyer Shares. As of the date of this Agreement, there are 716,250
Buyer Shares issued and outstanding, and no Buyer Shares are held in Buyer's
treasury. On the Closing Date (after giving effect to the stock exchange) there
will be 13,185,000 Buyer Shares issued and outstanding and no Buyer Shares will
be held in Buyer's treasury. It being understood that up to an additional 282
Buyer Shares may be issued as a result of Buyer's 1-for-10 reverse stock split
effected on March 13, 2000. There are no Buyer Shares reserved for issuance upon
the exercise of outstanding stock options, warrants or similar rights. All
issued and outstanding Buyer Shares have been duly authorized and validly issued
and are fully paid, nonassessable and free of preemptive rights. There are no,
and on the Closing Date there will be no, issued or outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for
the purchase or issuance of any shares of Buyer common stock or any other equity
security of Buyer or any securities representing the right to purchase or
otherwise receive any shares of Buyer common stock or any other equity security
of Buyer. All Outstanding Buyer Shares have been issued in compliance with
applicable Federal and state Securities Laws. No shareholders of the Company
have a right to receive dividends and no unpaid dividends are due and owing with
regard to the Buyer's capital stock.
4.3 Agreement; Authority. Buyer has, and on the Closing Date will have,
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the transactions
contemplated hereby have been, or on or prior to the Closing Date, will be duly
approved by appropriate corporate action of Buyer.
4.4 Agreement: Enforceability. This Agreement has been duly authorized,
executed and delivered by Buyer and is a legally valid and binding agreement of
Buyer, enforceable against Buyer in accordance with its terms, except to the
extent that: (a) the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and remedies generally, (b) the remedies of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and general principles of equity and to the
discretion of the court before which any proceeding therefor may be brought, and
(c) rights to indemnity and contribution hereunder, if any, may be limited by
state and federal laws of the public policy underlying such laws.
4.5 Doing Business. Buyer is, and on the Closing Date will be duly
authorized, qualified and licensed under any and all applicable laws,
regulations, ordinances or orders of public authorities to carry on its business
in the places and in the manner as presently conducted or as contemplated in
this Agreement, except where the failure to be so authorized, qualified or
licensed would not have a materially adverse effect upon the business of Buyer.
The business of Buyer does not require it to be registered as an Investment
Company or Investment Advisor as such terms are defined under the Investment
Company Act and the Investment Advisor Act of 1940, respectively.
4.6 No Conflict. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated by this Agreement will:
(a) conflict with, or result in a breach of, or constitute a default under (i)
Buyer's charter or bylaws, (ii) any instrument or agreement to which Buyer is a
party, or by which it is bound; or (iii) any governmental decree, order, ruling,
writ, permit or license to which Buyer is a party or by which Buyer may be
bound; (b) violate any law, statute, rule or regulation applicable to Buyer or
the transactions contemplated hereby; (c) except as set forth in Schedule 4.6,
require the consent of any governmental or administrative agency or any other
person not a party hereto; or (d) require the consent of any party to any
contract, agreement or commitment to which Buyer is a party or by which Buyer
may be bound, or result in a default under or an acceleration of any obligation
under any such contract, agreement or commitment.
4.7 Subsidiaries. Buyer has, and on the Closing Date will have, no
subsidiaries.
4.8 Financial Statements. The audited financial statements of Buyer,
consisting of its Balance Sheet as of June 30, 1999 and its Statement of Income,
Statement of Stockholders' Equity and Statement of Cash Flows as of June 30,
1999, together with accompanying notes, have been audited by independent public
accountants whose report thereon is without qualification. The unaudited
financial statements of Buyer, consisting of its Balance Sheet as of March 31,
2000, its Statement of Income, Statement of Stockholders' Equity and Statement
of Cash Flows for the three months ended March 31, 2000, together with
accompanying notes, have been prepared by the officers of Buyer, and have been
adjusted for all normal and recurring accruals necessary for a fair presentation
thereof. All such financial statements (collectively, the "Buyer Financial
Statements") have been prepared in accordance with generally accepted accounting
principles, have been delivered to the Company, and fairly present the financial
condition and results of operations of Buyer as of the dates and for the periods
shown.
4.9 No Adverse Change. Since June 30, 1999, the business of Buyer has
only been operated in the normal course. There has not been, and on the Closing
Date there will not have been, any material adverse change in the financial
condition of Buyer from that set forth in the Buyer Financial Statements dated
June 30, 1999.
4.10 Liabilities. There are, and on the Closing Date will be, no
liabilities (including, but not limited to tax liabilities) or claims against
Buyer (whether such liabilities or claims are contingent or absolute, direct or
indirect, matured or unmatured) not appearing on the Buyer Financial Statements,
other than liabilities incurred or made in the ordinary course of business,
taxes incurred with regard to earnings since June 30, 1999 or liabilities for
expenses incurred in connection with this Agreement.
4.11 Taxes. All federal, state, county and local income, excise,
property and other tax returns required to be filed by Buyer have been filed and
all required taxes, fees or assessments have been paid or an adequate reserve
therefor has been set up in the Buyer Financial Statements. No income tax
returns of Buyer have ever been audited by any authority empowered to do so.
There are no agreements or waivers in effect that provide for an extension of
time for the filing of any tax returns by Buyer or the assessment of any tax
against Buyer.
4.12 Properties. Buyer has, and on the Closing Date will have, no
fixtures, furniture, equipment, inventory or accounts receivable.
4.13 Contracts and Commitments. Buyer has, and on the Closing Date will
have, no agreements, contracts and commitments to which it is, or on the Closing
Date will be a party, except as described in Schedule 4.13. A true and correct
copy of each such agreement, contract or commitment has been delivered to the
Company. Buyer is not, and on the Closing Date will not be, and to the knowledge
of Buyer, each such other party to each of such agreements, contracts or
commitments is not, in default under any such agreement, contract or commitment,
the result of which breach would have a materially adverse effect on Buyer.
4.14 Litigation. There are, and on the Closing Date will be, no claims,
actions, suits or proceedings, pending, or to the best knowledge of Buyer,
threatened against Buyer.
4.15 Compensation and Loans. Except as disclosed in Schedule 4.15,
since June 30, 1999, there have been, and on the Closing Date will be, (i) no
salaried or otherwise compensated employees, officers or directors of Buyer,
(ii) no loans made to any officer or director of Buyer, (iii) no dividends or
other distributions declared or paid by Buyer, and (iv) no repurchase by Buyer
of any shares of capital stock.
4.16 Additional Issuances of Equity. Except as set forth on Schedule
4.16 hereof, since June 30, 1999, Buyer has not issued or committed itself to
issue, and to the Closing Date will not issue or commit itself to issue any
additional common shares or any options, rights, warrants or other securities or
instruments convertible into or exercisable for common shares, except as
contemplated by this Agreement.
4.17 Investment Intent. Buyer is acquiring Company Shares for
investment only and not with a view to further distribution and does not have,
and will not have on the Closing Date, any commitment for the disposition of
such shares.
4.18 Patents, etc. Buyer has no patents, patent applications,
trademark, trademark registrations, tradenames, copyrights, copyright
registrations or applications therefor. Buyer is not infringing upon any
intellectual property right of any person.
4.19 Business Conduct. The Company has, and on the Closing Date will
have, operated its business and conducted its affairs in compliance with all
applicable laws, rules and regulations of the United States, the State of
Delaware and all jurisdictions in which it now carries on its business, except
where the failure to so comply would not have a materially adverse effect on
Buyer.
4.20 Affiliated Transactions. There are, and on the Closing Date there
will be no loans, leases or other contracts outstanding between Buyer and any
officer or director of Buyer or any person related to any officer or director of
Buyer.
4.21 Sanctions. During the past five year period, except as set forth
on Schedule 4.21, no officer or director of Buyer has been the subject of:
4.21.1 a petition under the federal bankruptcy laws or any other
insolvency or creditor's rights laws, nor has a receiver, fiscal agent or
similar officer been appointed by a court for the business or property of such
person, or any partnership in which he was a general partner at or within two
years before the time of such filing or appointment, or any corporation or
business association of which he was an executive officer at or within two years
before the time of such filing or appointment;
4.21.2 a conviction in a criminal proceeding or a named subject of
a pending criminal proceeding (excluding traffic violations and other minor
offenses);
4.21.3 any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining him from, or otherwise limiting, the following activities;
(i) Acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool operator, floor
broker, leverage transaction merchant, any other person regulated by
the United States Commodity Futures Trading Commission or an associated
person of any of the foregoing, or as an investment adviser,
underwriter, broker or dealer in securities, or as an affiliated
person, director or employee of any investment company, bank, savings
and loan association or insurance company, or engaging in or continuing
any conduct or practice in connection with activity;
(ii) Engaging in any type of business practice; and
(iii) Engaging in any activity in connection with the
purchase or sale of any security or commodity or in connection with any
violation of federal, state or other securities laws or commodities
laws.
4.21.4 any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any federal, state or local authority barring,
suspending or otherwise limiting for more than 60 days the right of such person
to engage in any activity described in the preceding sub-paragraph, or to be
associated with persons engaged in any such activity;
4.21.5 a finding by a court of competent jurisdiction in a civil
action or by the United States Securities and Exchange Commission to have
violated any securities law, and the judgment in such civil action or finding by
such Commission has not been subsequently reversed, suspended or vacated; or
4.21.6 a finding by a court of competent jurisdiction in a civil
action or by the Commodity Futures Trading Commission to have violated any
federal commodities law, and the judgment in such civil action or finding by the
Commodity Futures Trading Commission has not been subsequently reversed,
suspended or vacated.
4.22 Buyer Representation. Buyer has not taken and will not take, and
to its knowledge, no officer, director or shareholder has taken, directly or
indirectly, any action designed to, or which has constituted, or which might
reasonably be expected to, cause or result in any violations of the federal
securities laws with regard to Buyer or its securities.
4.23 Employee Benefit Plans. Buyer has no pension plan, profit
sharing or similar employee benefit plan.
4.24 Broker's Fees. Buyer nor any of its officers or directors has
employed any broker or finder or incurred any liability for any broker's fees,
commissions or finder's fees in connection with any of the transactions
contemplated by this Agreement.
4.25 Questionable Payments. Neither Buyer, nor any current or former
shareholder, partner, director or officer of Buyer, has (a) used any corporate
funds for any illegal contributions, gifts, entertainment or other unlawful
expenses relating to political activity; (b) used any corporate funds for any
direct or indirect unlawful payments to any foreign or domestic government
officials or employees; (c) violated any provision of the Foreign Corrupt
Practices Act of 1977; (d) established or maintained any unlawful or unrecorded
fund of corporate monies or other assets; (e) made any false or fictitious
entries on such corporation's books and records; (f) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment of any nature
using corporate funds or otherwise on behalf of Buyer; or (g) made any material
favor or gift that is not deductible for federal income tax purposes using
corporate funds or otherwise on behalf of Buyer.
4.26 Blank Check Company Status. Buyer is not a "blank check company"
as defined in Section 7(b) of the Securities Act of 1933, as amended
("Securities Act"), and, accordingly, is not required to comply with Section
7(b) of the Securities Act or Rule 419 promulgated under the Securities Act.
4.27 Exchange Act Registration. At Closing, the Buyer Shares will be
registered under the Securities Exchange Act of 1934 and listed for trading on
the OTC Bulletin Board.
ARTICLE V
COVENANTS OF THE PARTIES
5.1 Buyer Special Board Meeting. On the Closing Date Buyer shall cause
a special meeting of the Board of Directors of Buyer to be held, at which
meeting the size of the Board of Directors of Buyer shall be set at six (6)
members. Three (3) designees of the Company (Xxxxxxx X. Xxxx, Prof. Xx. Xxxx
A.M. Pruijm R.A. and Xxxxxx X. van Wijngaarden) shall be appointed as new
directors of Buyer, and at which resignations from all of the present officers,
directors not continuing to serve and employees of Buyer which shall have been
tendered prior to the Closing Date shall be accepted. In addition, Xx. Xxxx
shall be appointed as President and Chief Executive Officer. At the special
meeting of the Board of Directors of Buyer referred to above, an advisory board
of Buyer shall be appointed to include up to three (3) members designated by the
Company, with such appointments effective as of the Closing Date.
5.2 Delivery of Registration Statement and Related Securities and
Corporate Documents by Buyer. Buyer has previously delivered to the Company true
and complete copies, including exhibits and, as applicable, amendments thereto,
of (i) all registration statements filed under the Securities Act of 1933; (ii)
the prospectuses contained therein; (iii) its Form 10-K Annual Reports for the
three years ended June 30, 1999; (iv) its Form 10-Q Quarterly Reports, for the
quarters during the three years ended June 30, 1999 and subsequent thereto to
the Closing Date; (v) its Form 8-K Current Reports for the three years ended
June 30, 1999 and subsequent thereto to the Closing Date; (vi) copies of all
material correspondence with the Securities and Exchange Commission, the OTC and
state blue sky commissions; (vii) all reports filed under Section 13 and 16 of
the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); (viii) all proxy
statements filed under the Exchange Act; (ix) a certified copy of the Buyer's
Certificate of Incorporation, as amended as of the Closing Date; and (x) a
certified copy of the Buyer's Bylaws, as amended, as of the Closing Date. All
such documents referred to herein, at the time filed with the Securities and
Exchange Commission ("SEC") complied with the Exchange Act and all applicable
rules and regulations of the SEC and were timely filed. No such registration
statement, prospectus, or other document specified herein, as of the date of
filing or the effective date, as the case may be, or as of any subsequent date
when Buyer was required to amend, supplement or update any such document
(regardless of whether it did so), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading.
5.3 Affirmative Covenants of Buyer. Buyer covenants and agrees that
prior to the Closing Date, it has or will file all reports and filings required
to be filed by Buyer under Sections 13, 14 and 15(d) of the Exchange Act,
together with all other reports and filings necessary to have available "current
public information" as defined in Rule 144 under the rules and regulations
promulgated under the Securities Act. Buyer knows of no reports or filings
required to be filed by officers, directors, shareholders or their affiliates
under the Exchange Act which have not been filed.
5.4 Negative Covenants of Buyer. Buyer agrees that from the date hereof
to the Closing Date, except as otherwise consented to or approved by the Sellers
and the Company in writing or as permitted or required by this Agreement, it
will not change any provision of its certificate of incorporation or bylaws.
5.5 Subsequent Interim Financial Statements of Buyer. As soon as
reasonably available, but in no event more than 45 days after the end of each
fiscal quarter ending after the Closing Date, Buyer will deliver to the Company
its Quarterly Report on Form 10-Q, as filed with the Securities and Exchange
Commission under the Exchange Act.
5.6 OTC Bulletin Board Eligibility. As of the Closing Date, after
giving effect to the Stock Exchange, Buyer shall satisfy all criteria for having
its Buyer Shares qualified for inclusion in the OTC Bulletin Board listing and
shall be so listed.
5.7 Affirmative Covenants of the Company. The Company covenants and
agrees that subsequent to the Closing Date, it will use its best efforts to see
that all reports and filings required to be filed by Buyer under Sections 13 and
15(d) of the Exchange Act, together with all other reports and filings necessary
to have available "current public information" as defined in Rule 144 under the
rules and regulations promulgated under the Securities Act are filed.
5.8 Access to Records; Confidentiality.
5.8.1 During the period from the date of this Agreement to the
Closing Date, Buyer and the Company shall each permit the other party and its
respective representatives, agents and designees reasonable access to its
properties and those of its subsidiaries, and shall disclose and make available
to them all books, papers and records relating to the assets, stock, ownership,
properties, operations, obligations and liabilities of it and its subsidiaries,
including, but not limited to, all books of accounts (including the general
ledger), tax records, minute books of directors' and stockholders' meetings,
organizational documents, bylaws, material contracts and agreements, filings
with any regulatory authority, accountants' work papers, litigation files, plans
affecting employees, and any other business activities or prospects in which
Buyer or the Company, as the case may be, may have an interest.
5.8.2. All information furnished by Buyer to the Company and by
the Company to Buyer pursuant hereto shall be treated as the sole property of
the party furnishing the information and, if the Stock Exchange shall not occur,
the party receiving the information shall return to the party furnishing the
information, all documents (in whatever form, including electronic) or other
materials containing, reflecting or referring to such information, shall use its
best efforts to keep confidential all such information, and shall not directly
or indirectly use such information for any competitive or other commercial
purpose. The obligation to keep such information confidential shall not apply to
(i) any information which: (w) the party receiving the information can establish
was already in its possession prior to the disclosure thereof by the party
furnishing the information; (x) was then generally known to the public; (y)
became known to the public through no fault of the party receiving the
information; or (z) was disclosed to the party receiving the information by a
third party not bound by an obligation of confidentiality or (ii) disclosures in
accordance with an order of a court of competent jurisdictions.
5.9 Buyer acknowledges the existence of that certain Share Purchase and
Shareholders' Agreement relating to Global Information Group USA Inc. dated
January 14, 2000 among Buyer, Chatelin Capital Partners Limited, Jolec Trading
Limited, Xxxxxxx X. Xxxx, Xxxxxx Invest AG and Newick Developments Limited and
the agreement between Invest B.V. and Global Information Group USA Inc. dated
May 14, 1998 and agrees to abide by the terms thereof.
5.10 Buyer shall deliver a registration rights agreement ("Registration
Rights Agreement") providing Sellers with registration rights in such form as
shall be reasonably satisfactory to Sellers.
5.11 Buyer agrees not to grant any registration rights which are
superior to those set forth in the Registration Rights Agreement or which could
otherwise adversely affect the rights granted thereunder.
5.12 Biotel, Inc. agrees to take any and all actions including voting
Buyer Shares owned in favor of the Stock Exchange and the transactions
contemplated thereby at any shareholders meeting, or if no shareholders meeting
is held, executing written consents in favor of such actions.
5.13 So long as this Agreement remains in effect, Buyer shall not and
Buyer shall not authorize or permit any of its directors, officers, employees or
agents, to directly or indirectly (i) respond to, solicit, initiate or encourage
any inquiries relating to, or the making of any proposal which relates to, an
Acquisition Transaction (as defined below), (ii) recommend or endorse an
Acquisition Transaction, (iii) participate in any discussions or negotiations
regarding an Acquisition Transaction, (iv) provide any third party (other than
the Company or an affiliate of the Company) with any non-public information in
connection with any inquiry or proposal relating to an Acquisition Transaction
or (v) enter into an agreement with any other party with respect to an
Acquisition Transaction. Buyer will immediately cease and cause to be terminated
any existing activities, discussions or negotiations previously conducted with
any parties other than the Company with respect to any of the foregoing, and
will take all actions necessary or advisable to inform the appropriate
individuals or entities referred to in the first sentence hereof of the
obligations undertaken in this Section 5.13. Buyer will notify the Company
orally (within one day) and in writing (as promptly as practicable) if any
inquiries or proposals relating to an Acquisition Transaction are received by,
any such information is requested from, or any such negotiations or discussions
are sought to be initiated or continued with Buyer. As used in this Agreement,
"Acquisition Transaction" shall mean one of the following transactions with a
party other than the Company of an affiliate of the Company (i) a merger,
consolidation, share exchange, or any similar transaction, involving Buyer, (ii)
a purchase, lease or other acquisition of all or a substantial portion of the
assets or liabilities of Buyer or, (iii) a purchase or other acquisition
(including by way of share exchange, tender offer, exchange offer or otherwise)
of a substantial interest in any class or series of equity securities of Buyer.
5.14 Further Assurances. In case at any time after the Closing Date any
further action is necessary or desirable to carry out the purposes of this
Agreement, each party to this Agreement shall take all such necessary action,
including but not limited to responding to SEC comments on any filings made with
the SEC and working to have such filings cleared by the SEC.
ARTICLE VI
CLOSING CONDITIONS
6.1 Conditions to the Obligations of Buyer under the Agreement. The
obligations of Buyer to perform this Agreement shall be further subject to the
satisfaction, at or prior to the Closing Date, of the following conditions, any
one or more of which may be waived by Buyer:
6.1.1 Each of the obligations of the Sellers and the Company
required to be performed at or prior to the Closing Date pursuant to the terms
of this Agreement shall have been performed and complied with in all material
respects and the representations and warranties of Sellers and the Company
contained in this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing Date as though made at
and as of the Closing Date, except with respect to changes permitted hereby and
for any such representations and warranties made as of a specific date and the
representations and warranties contained in Section 3.08 which shall be true and
correct with respect to all financial statements of the Company delivered to
Buyer prior to the Closing Date. Buyer shall have received a certificate to the
foregoing effect signed by an executive officer of the Company.
6.1.2 There shall have been no material adverse change in the
financial condition of the Company, since the date of this Agreement, whether or
not in the ordinary course of business.
6.1.3 All action required to be taken by, or on the part of, the
Company to authorize the execution, delivery and performance of this Agreement
and the consummation by the Company of the transactions contemplated hereby
shall have been duly and validly taken by the Company and Buyer shall have
received certified copies of the resolutions evidencing such authorization.
6.1.4 Any and all permits, consents, waivers, clearances,
approvals and authorizations of all third parties which are necessary in
connection with the consummation of the transactions contemplated hereby shall
have been obtained.
6.1.5 The Company shall not have suffered a loss on account of
fire, flood, accident or other calamity of such a character as to interfere
materially with the continuous operation of its business or materially adversely
affect their aggregate financial condition, regardless of whether or not such
loss shall have been insured.
6.1.6 Except as disclosed in Schedule 6.1.6 hereto that no
material transactions shall have been entered into by the Company other than
transactions in the ordinary course of business since March 31, 2000 or other
than as referred to in this Agreement, except with the written consent of Buyer.
6.1.7 That none of the properties or assets of the Company shall
have been sold or otherwise disposed of other than in the ordinary course of
business since March 31, 2000, where such has had a materially adverse affect on
the Company, except with the written consent of Buyer.
6.1.8 That Buyer shall have received an opinion from counsel to
the Company in form reasonably satisfactory to Buyer's counsel, that:
(a) The Company has been duly incorporated and is
a validly existing corporation under the laws of the State of
Delaware with a capitalization as represented in this
Agreement.
(b) All of the Outstanding Company Shares have
been duly authorized by appropriate corporate action of the
Company, as applicable, and are validly issued and represent
fully paid and nonassessable shares of the Company, free of
preemptive rights.
(c) This Agreement and the transactions
contemplated hereby have been duly authorized by necessary
corporate action of the Company.
(d) Upon delivery of the certificates and duly
executed stock transfer forms representing the
Company Shares pursuant to the terms of this
Agreement, Buyer will acquire legal and beneficial
ownership of such securities free and clear of all
liens, pledges and encumbrances; and, upon the
completion of the transactions contemplated by this
Agreement, Buyer shall be the owner of all of the
Outstanding Company Shares and, to the knowledge of
counsel, there shall be no outstanding options or
warrants to purchase any shares of the Company nor
any outstanding securities of any nature convertible
into such shares.
6.2 Conditions to the Obligations of Sellers and the Company under the
Agreement. The obligations of Sellers and the Company to perform this Agreement
shall be further subject to the satisfaction, at or prior to the Closing Date,
of following conditions any one or more of which may be waived by Sellers and
the Company:
6.2.1. Each of the obligations of Buyer required to be performed
by it at or prior to the Closing pursuant to the terms of this Agreement shall
have been performed and complied with in all material respects and the
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made at and as of the Closing Date, except with
respect to changes permitted hereby and for any such representations and
warranties made as of a specific date and the representations and warranties
contained in Section 4.8 which shall be true and correct with respect to all
financial statements of Buyer delivered to the Company prior to the Closing
Date. The Sellers and the Company shall have received a certificate to the
foregoing effect signed by an executive officer of Buyer.
6.2.2 There shall have been no material adverse change in the
financial condition of Buyer since the date of this Agreement, whether or not in
the ordinary course of business.
6.2.3 All action required to be taken by, or on the part of, Buyer
to authorize the execution, delivery and performance of this Agreement by Buyer
and the consummation by Buyer of the transactions contemplated hereby shall have
been duly and validly taken by the Board of Directors and stockholders of Buyer
and Sellers and the Company shall have received certified copies of the
resolutions evidencing such authorization.
6.2.4 Any and all permits, consents, waivers, clearances,
approvals and authorizations of all third parties which are necessary in
connection with the consummation of the transactions contemplated hereby shall
have been obtained.
6.2.5 The Sellers and the Company shall have received an opinion
of counsel or independent auditors to the effect that the Stock Exchange
qualifies as a tax-free exchange pursuant to Section 351 and or Section
368(a)(1)(B) of the Code.
6.2.6 That Buyer shall not have suffered any loss on account of
fire, flood, accident or other calamity of such a character as to interfere
materially with the continuous operation of its business or materially adversely
affect its financial condition, regardless of whether or not such loss shall
have been insured.
6.2.7 That no material transactions shall have been entered into
by Buyer other than transactions in the ordinary course of business between June
30, 1999 and the Closing Date, other than as contemplated by this Agreement,
except with the written consent of the Company.
6.2.8 That none of the properties or assets of Buyer shall have
been sold or otherwise disposed of other than in the ordinary course of business
since June 30, 1999, except with the written consent of the Company.
6.2.9 Buyer shall have received, by May 5, 2000, to the reasonable
satisfaction of the Company, an order (the "Order") of the Bankruptcy Court
(under Section 1127, 1142 or any other applicable section of the Bankruptcy Code
or applicable non-bankruptcy law), which shall become a final non-appealable
(and otherwise not the subject of a motion to modify, alter or amend the
judgment or be subject to reconsideration) and which deletes and/or renders null
and void the following sentences contained on page 8 of the Plan of
Reorganization dated March 23, 1999, a copy of which is attached hereto as
Exhibit "C." "The Corporation and the Corporation name, will be dissolved after
consummation of the sale and the appropriate bankruptcy court Order. The
shareholders of Advanced Medical will have their stock extinguished" and
replaces such language with the following: "ADVA will continue its corporate
existence and that the existing shares of stock remain valid."
6.2.10 Should the Bankruptcy Court, pursuant to the Order,
require that an amount up to $300,000 be paid to the creditors of Advanced
Medical Products, Inc. (administrative, priority and unsecured) and for related
costs, Buyer shall have complied with such order.
6.2.11 Buyer shall have delivered and executed a Registration
Rights Agreement in such form as shall be reasonably satisfactory to the Company
and the Shareholders.
6.2.12 Outstanding Buyer Shares, after giving effect to the
transactions contemplated hereunder, shall be listed for trading on the OTC
Bulletin Board.
6.2.13 That Sellers and the Company shall have received an opinion
from counsel to Buyer in form satisfactory to the Company's counsel, that:
(a) Buyer has been duly incorporated and is
a validly existing corporation in good standing under
the laws of the State of Delaware with a
capitalization as represented in this Agreement.
(b) All of the Outstanding Buyer Shares have
been duly authorized by appropriate corporate action
of Buyer, are validly issued and represent fully paid
and nonassessable capital shares of Buyer and the
Outstanding Buyer Shares have been registered under
the Securities Exchange Act of 1934 and have been
issued in compliance with applicable Federal and
state securities laws.
(c) This Agreement and the transactions
contemplated hereby have been duly authorized by
appropriate action of Buyer and, under applicable law
and Buyer stockholder approval is not required under
applicable law.
(d) The issuance of the Buyer Shares to
Sellers on the Closing Date pursuant to this
Agreement have been duly authorized by appropriate
corporate action of Buyer, and when issued, shall be
fully paid and nonassessable common shares of Buyer
free of preemptive rights.
(e) To such counsel's knowledge, after due
inquiry, Buyer has not been or is not required to be
registered as an investment company or an investment
adviser under the Investment Company Act of 1940 or
the Investment Advisers Act of 1940, respectively.
(f) Buyer is not a "blank check company" as
defined in Section 7(a) of the Securities Act and,
accordingly, is not required to comply with Section
7(b) of the Securities Act or Rule 419 promulgated
under the Securities Act.
(g) The Buyer Shares are qualified for
inclusion in the OTC Bulletin Board listing.
ARTICLE VII
CLOSING
7.1 Time and Place. Subject to the provisions of Articles 6 and 8
hereof, the Closing of the transactions contemplated hereby shall take place at
the offices of Blank Rome Comisky & XxXxxxxx LLP, One Xxxxx Square,
Philadelphia, Pennsylvania, at 9:00 A.M., local time, on the second (2nd)
business day after the date on which all of the conditions contained in Article
6, to the extent not waived, are satisfied; or at such other place, at such
other time, or on such other date as the Company and Buyer may mutually agree
upon for the Closing to take place.
7.2 Deliveries at the Closing. Subject to the provisions of Articles 6
and 8 hereof, at the Closing there shall be delivered to Sellers, the Company
and Buyer the opinions, certificates, and other documents and instruments
required to be delivered under Article 6 hereof.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
8.1.1 by mutual written consent of Sellers, the Company, Biotel
and Buyer, properly authorized;
8.1.2 by Sellers, the Company or Buyer, (i) if the Closing Date
shall not have occurred on or prior to July 15, 2000, unless the failure of such
occurrence shall be due to the failure of the party seeking to terminate this
Agreement to perform or observe its agreements and conditions set forth herein
to be performed or observed by such party at or before the Closing Date; or (ii)
if it has become reasonably certain that any condition specified in Article 6 of
this Agreement will not be satisfied and such condition has not been waived by
the party having the power to waive such condition. Notwithstanding the
foregoing, in the event the parties hereto do not receive assurances from the
NASDAQ, after giving effect to the transactions contemplated hereby, that Buyer
Shares shall continue to be deemed an "eligible security" under the OTC Bulletin
Board Eligibility Rules, the Closing Date shall be extended to such date as such
assurances are received, but in no event later than August 31, 2000. In
addition, the Closing Date may also be extended by mutual agreement by the
parties thereto;
8.1.3 by Sellers or the Company, if there shall have been any
material breach of any obligation of Buyer hereunder and such breach shall have
not been remedied within 10 days after receipt by Buyer of notice in writing
from Sellers or the Company specifying the nature of such breach and requesting
that it be remedied; and
8.1.4 by Buyer, if there shall have been any material breach of
any obligation of Sellers or the Company hereunder and such default shall not
have been remedied within 10 days after receipt by the defaulting Seller(s) or
the Company, as the case may be, of notice in writing from Buyer specifying the
nature of such breach and requesting that it be remedied.
8.2 Effect of Termination. In the event of termination of this
Agreement by either Buyer, Sellers or the Company as provided above, this
Agreement shall forthwith become void (other than Section 5.8 and 9.1 hereof
which shall remain in full force and effect), there shall be no further
liability on the part of Sellers, the Company or Buyer, except for liability
under Section 5.8.2 and 9.1. Nothing contained in this Section 8.2 shall relieve
any party hereto from liability for any breach of this Agreement.
8.3 Amendment, Extension and Waiver. Subject to applicable law, at any
time prior to the consummation of the transactions contemplated herein, Sellers,
the Company and Buyer may, (a) amend this Agreement, (b) extend the time for the
performance of any of the obligations or other acts of the other, (c) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto, or (d) waive compliance with any of the
covenants, agreements or conditions contained in Articles 5 and 6 hereof. This
Agreement may not be amended, except by an instrument in writing signed on
behalf of each of the parties hereto. Any agreement on the part of a party
hereto to any extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party, but such waiver or failure
to insist on strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby (including legal, accounting,
printing and investment banking fees and expenses) shall be borne by the party
incurring such costs and expenses. Buyer's costs and expenses shall be paid
prior to the Closing Date.
9.2 Survival. The respective representations and warranties of the
parties to this Agreement shall not survive the Closing Date, but shall
terminate as of the Closing Date.
9.3 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by prepaid
registered or certified mail (return receipt requested) or by cable, telegram or
telex addressed as follows:
(a) If to Sellers, to their respective addresses set
forth on Exhibit "A" hereto.
Copy to:
Xxxxx X. Xxxxxx, Esquire
BLANK ROME XXXXXXX & XxXXXXXX LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
(b) If to the Company, to:
Global Information Group USA, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX x0000
Fax No.: (000) 000-0000
Copy to:
Xxxxx X. Xxxxxx, Esquire
BLANK ROME COMISKY & XxXXXXXX LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
(c) If to Buyer, to:
ADVA INTERNATIONAL INC.
0 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Copy to:
Xxxxx X. Xxxxxxx, Esquire
Xxxxxx Tackabery Xxxxx & Xxxxxxxxx, P.A.
Stratford Point Building, 0xx Xxxxx
Xxxxx Xxxxxxxxx Xxxx
Xxxxxxx-Xxxxx, X.X. 00000-0000
Fax No.: (000) 0000-0000
or such other address as shall be furnished in writing by a party, and any such
notice or communication shall be deemed to have been given as of the date so
mailed.
9.4 Parties in Interest; Assignment. This Agreement shall be binding
upon and shall inure to the benefit of parties hereto and their respective
successors and assigns. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto without the prior
written consent of the other parties.
9.5 Complete Agreement. This Agreement, including the documents and
other writings referred to herein or delivered pursuant hereto, contains the
entire agreement and understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, warranties, covenants
or undertakings between the parties other than as expressly set forth herein.
This Agreement supersedes prior agreements and understandings between the
parties, both written and oral, with respect to its subject matter.
9.6 Neutral Construction. The parties have negotiated this Agreement
and all of the terms and conditions contained in this Agreement in good faith
and at arms' length, and each party has been represented by counsel during such
negotiations. No term, condition, or provision contained in this Agreement shall
be construed against any party or in favor of any party (i) because such party
or such party's counsel drafted, revised, commented upon, or did not comment
upon, such term, condition, or provision; or (ii) because of any presumption as
to any inequality of bargaining power between nor among the parties.
Furthermore, all terms, conditions, and provisions contained in this Agreement
shall be construed and interpreted in a manner which is consistent with all
other terms, conditions, and provisions contained in this Agreement.
9.7 Counterparts. This Agreement may be executed in one or more
counterparts all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
9.8 Governing Law. This Agreement shall be governed by the laws
of the State of Delaware, without giving effect to the principles of conflicts
of laws thereof.
9.9 Arbitration. All claims, demands, disputes, controversies,
differences, or misunderstandings between the parties arising out of, or by
virtue of, this Agreement shall be submitted to and determined by arbitration in
accordance with this Section. In the event of such a claim, demand, dispute,
controversy, difference, or misunderstanding, Buyer on the one hand, and the
Company and the Shareholders, on the other hand, shall each select one
artibtrator and shall together select a third arbitrator who is neutral
unbiased, and who shall serve as the chairman of the panel. If the parties are
unable to agree upon the third arbitrator, or if one of the parties is unable to
or fails to select an arbitrator in accordance with this Section, the American
Arbitration Association ("AAA") shall be designated by either party to appoint
such arbitrator(s) to arbitrate the matter in accordance with this Section. The
matter shall be arbitrated under the rules of the AAA applicable to commercial
arbitrations then obtaining, such arbitration to be held in New York, NY. At any
time before a decision of the arbitration panel has been rendered, the parties
may resolve the dispute by settlement. The decision of a majority of
arbitrator(s) shall be the aware of the panel of arbitrators and shall be made
in writing setting forth the award, the reasons for the decision and award shall
be binding and conclusive on all parties; shall not be appealable and shall
include a finding for payment of the costs of such arbitration. Judgment of a
court of competent jurisdiction may be entered upon the award and may be
enforced as such in accordance with the provisions of the award. This agreement
to arbitrate is specifically enforceable by the parties to this Agreement.
9.9 Headings. The Article and Schedule headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, individual Sellers have executed, and Biotel, the
Company and Buyer have caused this Agreement to be executed by their duly
authorized officers, all as of the day and year first above written.
SELLERS:
/s/ Xxxxxxx Xxxx, power-of-attorney for
/s/Xxxxxxx X. Xxxx Henri B. G. Sijthoff
----------------------------------------------- ------------------------------------------
XXXXXXX X. XXXX HENRI B.G. SIJTHOFF
JOLEC TRADING LIMITED
/s/ Xxxxxxx Xxxx, power-of-attorney for
/s/ Intertrust (Curacao) N.V. Xxxxxxx Xxxxxxxxx
----------------------------------------------- ------------------------------------------ .
By: Xxxxxxx Xxxxx XXXXXXX XXXXXXXXX
Managing Director
/s/ Xxxxxx X. van Wijngaarden, power-of- /s/ Xxxxxxx Xxxx, power-of-attorney for
attorney for Xxxx Xxxxxxx Jouke V.J.P. Brada
----------------------------------------------- ------------------------------------------
XXXX XXXXXXX JOUKE V.J.P. BRADA
FOG INVESTMENTS, LTD. VIEWMONT HOLDINGS, LTD.
/s/ Xxxxxxx X. Xxxx /s/ Intertrust (Curacao) N.V.
----------------------------------------------- ------------------------------------------
By: Xxxxxxx X. Xxxx, power-of-attorney for By: Xxxxxxx Xxxxx,
FOG Investments, ltd. Managing Director
GORILLA VENTURES N.V. MOANA LAKE FINANCING CORP.
/s/ Intertrust (Curacao) N.V. /s/ Intertrust (Curacao) N.V.
----------------------------------------------- ------------------------------------------
By: Xxxxxxx Xxxxx, By: Xxxxxxx Xxxxx,
Managing Director Managing Director
XXXXXXX CAPITAL LIMITED XXXXXXXX'X SECURITIES LTD.
/s/ Intertrust (Curacao) N.V. /s/ Intertrust (Curacao) N.V.
----------------------------------------------- ------------------------------------------
By: Xxxxxxx Xxxxx, By: Xxxxxxx Xxxxx,
Managing Director Managing Director
HEYDAEL B.V. HACKEN INVESTMENTS LIMITED
/s/ Xxxxxxx Xxxx /s/ Xxxxx X. Xxxxxx
----------------------------------------------- ------------------------------------------
By: Xxxxxxx Xxxx, By: Xxxxx X. Xxxxxx, power-of-attorney
Managing Director for Hacken Investments Limited
/s/ Xxxxxx X. van Wijngaarden, power-of- /s/ Xxxxxx X. van Wijngaarden, power-of-
attorney for Femia E. van Wulfften Palthe attorney for Xxxxxxx xxx Xxxxx
----------------------------------------------- ------------------------------------------
FEMIA E. VAN WULFFTEN PALTHE XXXXXXX XXX XXXXX
/s/ Xxxxxx X. van Wijngaarden, power-of- /s/ Xxxxxx X. van Wijngaarden, power-of-
attorney for Xxxxxx X.X.X. Aarts attorney for Xxxxx X. Xxx Xxxxx
---------------------------------------------- ------------------------------------------
XXXXXX X.X.X. XXXXX XXXXX X. XXX XXXXX
BIOTEL, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Title: President
GLOBAL INFORMATION GROUP USA, INC. ADVA INTERNATIONAL INC.
(the "Company"): (the "Buyer")
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Down
------------------ ---------------------------------
Title: President Title: President
EXHIBIT "A"
Global Information Number of
Group USA Inc. Global Information Number of ADVA
Shareholders and Group USA Inc. International Inc.
Addresses Shares Owned to be Received
--------- ------------ --------------
Xxxxxxx X. Xxxx 395.05 4,142,562
Jolec Trading Limited 36.75 385,439
Xxxx Xxxxxxx 55.03 577,095
FOG Investments, Ltd. 4.95 51,908
Gorilla (f/k/a Equation) Ventures N.V. 44.12 462,631
Xxxxxxx Capital Limited 50.00 524,354
Heydael B.V. 100.00 1,048,641
Henri B. G. Sijthoff 45.00 471,888
Xxxxxxx Xxxxxxxxx 45.00 471,888
Jouke V.J.P. Brada 10.00 104,864
Viewmont Holdings Limited 100.00 1,048,630
Moana Lake Finance Corp. 100.00 1,048,630
Xxxxxxxx'x Securities Ltd. 108.82 1,141,156
Femia E. van Wulfften Palthe 11.00 115,384
Xxxxxxx xxx Xxxxx 7.34 76,950
Xxxxxx X.X.X. Aarts 1.43 15,000
Xxxxx X. xxx Xxxxx 1.19 12,500
Hacken Investments Limited 73.36 769,230
----------- -----------
Total 1189.04 12,468,750
