AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is
made this 27th day of February, 2004, among Chiropractic 21 International,
Inc., a Nevada corporation ("Chiropractic 21"); visionGATEWAY, Inc., a Nevada
corporation ("vision"); and the stockholders of vision (the "vision
Stockholders"), all of whom are listed on Exhibit A hereto and who execute and
deliver a copy of this Agreement.
WITNESSETH:
RECITALS
WHEREAS, the respective Boards of Directors of Chiropractic 21 and
vision have adopted resolutions pursuant to which Chiropractic 21 shall
acquire and the vision Stockholders shall exchange 100% of the outstanding
common stock of vision in exchange for the Chiropractic 21 shares as herein
provided; and
WHEREAS, the sole consideration for 100% of the outstanding common
stock of vision shall be the exchange of shares of $0.004 par value common
stock of Chiropractic 21 (which shares shall not be registered under the
Securities Act of 1933, as amended (the "Securities Act") and shall constitute
"restricted" securities as defined in Rule 144 promulgated under the
Securities Act as outlined in Exhibit A; and
WHEREAS, it is intended that the vision Stockholders shall acquire
in exchange such "unregistered" and "restricted" securities of Chiropractic 21
in a reorganization within the meaning of Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended, as applicable;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, it is agreed:
Section 1
Exchange of Stock
1.1 Transfer and Number of Shares. The vision Stockholders
agree to transfer to Chiropractic 21 at the closing (the "Closing") up to100%
of the outstanding common stock of vision, all as listed in Exhibit A, which
is attached hereto and incorporated herein by reference (the "vision Shares"),
in exchange for 36,040,500 shares of common stock of Chiropractic 21, pro
rata, also as outlined in Exhibit A, amounting to approximately 95.3% of the
post-Agreement outstanding common stock of Chiropractic 21. At the Closing,
and excluding the securities to be exchanged for the vision Shares, the
outstanding common stock of Chiropractic 21 will amount to approximately
1,777,717 shares or approximately 4.7% of the post-Agreement outstanding
common stock of Chiropractic 21, after taking into account (i) a reverse split
on the basis of one for three shares owned of the outstanding common stock of
Chiropractic 21 as outlined in Section 1.5 that was effective on the opening
of business on December 8, 2003, that is reflected in all computations
contained herein, along with the issuance of 1,576 shares for rounding up
fractional shares resulting from the reverse split to the nearest whole share;
(ii) and the issuance of (or the agreement to issue) an aggregate of 300,000
shares of common stock of Chiropractic 21 for and in consideration of non-
capital raising services to be rendered pursuant to a written Consulting
Agreement during the period that will commence on the Closing and which shall
be effective for a period of three months thereafter, and which shares shall
be registered on Form S-8 of the Securities and Exchange Commission on
Closing, provided that Chiropractic 21 shall be eligible to use Form S-8;
(iii) the cancellation of 260,000 shares of common stock of Chiropractic 21
that are held by certain principal stockholders of Chiropractic 21; and (iv)
the issuance at the Closing of 1,200,000 "unregistered" and "restricted"
securities as defined under Rule 144 that are shares of Chiropractic 21 common
stock to Xxxxxx Services, Inc. ("Xxxxxx Services") or its designated employees
or consultants as outlined in Section 1.8. Accordingly, and assuming all of
the vision Stockholders become party to the Agreement, there will be
approximately 37,818,219 post-Agreement outstanding shares of common stock of
the reorganized Chiropractic 21.
1.2 Extension of Offer to vision Stockholders. The offer to
the stockholders of vision to exchange their vision Shares for the shares of
Chiropractic 21 as contemplated by this Agreement shall be, to the extent not
exercised by the vision Stockholders at the Closing, extended for a period of
180 days from the date of Closing, so that at any time during that period of
180 days, the vision Stockholders shall have the opportunity to execute this
Agreement and exchange their vision Shares for shares of Chiropractic 21. At
the end of the180 day period the shares remaining shall be issued to vision to
be held in the treasury of vision for future issuance by the Board of
Directors of vision to the vision Stockholders.
1.3 Exchange of Certificates. The transfer of the vision Shares
shall be effected by the delivery to Chiropractic 21 at the Closing of stock
certificates representing the transferred shares duly endorsed in blank or
accompanied by stock powers executed in blank with all signatures witnessed or
guaranteed to the satisfaction of Chiropractic 21 and with all necessary
transfer taxes and other revenue stamps affixed and acquired at the vision
Stockholders' expense. All vision Shares so delivered will be free and clear
of all liens and encumbrances. Chiropractic 21, for its part, shall deliver
certificates in the name of each vision Stockholder electing for the exchange
duly issued and countersigned by the transfer agent, fully paid and non-
assessable shares of its common stock.
1.4 Further Assurances. At the Closing and from time to time
thereafter, the vision Stockholders shall execute such additional instruments
and take such other action as Chiropractic 21 may request in order to exchange
and transfer clear title and ownership of the vision Shares to Chiropractic
21.
1.5 Reverse Split of Chiropractic 21 Common Stock and Authority
to Change Name. Prior to the Closing, Chiropractic 21 shall have effected a
reverse split of its outstanding common stock on the basis of one (1) share
for each three (3) shares owned, which became effective on the opening of
business on December 8, 2003; and, at Closing, Chiropractic 21 shall effect a
name change to "visionGATEWAY, Inc." by Certificate of Amendment as authorized
by the Articles of Incorporation, as amended, of Chiropractic 21.
1.6 Share Cancellation by Chiropractic 21 Stockholders. In
consideration of the Closing of the Agreement, the canceling principal
stockholders of Chiropractic 21 that are named in Schedule 1.6.1 hereof shall:
(i) deliver at the Closing an aggregate of 260,000 shares of common stock of
Chiropractic 21 for cancellation to its treasury and for return to the
authorized but unissued capital stock of Chiropractic 21.
1.7 Execution and Delivery of Lock-Up/Leak-Out Agreement by
Certain Principal Stockholders of Chiropractic 21. As a condition of the
Closing, the principal stockholders that are named in Schedule 1.7.1 hereof
and any shareholder of Chiropractic 21 owning 5% or more of the outstanding
common stock at the Closing, shall execute and deliver to Chiropractic 21 the
Lock-Up/Leak-Out Agreement attached hereto as Schedule 1.7.2 covering the
shares of common stock of Chiropractic 21 that are owned by them or acquired
hereafter by them.
1.8 Adoption of Consulting Agreement, Filing of S-8 Registration
Statement Covering Common Stock of Chiropractic 21 to be Issued Thereunder and
Issuance of Common Stock. The reorganized Chiropractic 21 shall adopt and
ratify the Consulting Agreement attached hereto as Schedule 1.8.1 and shall
agree to the issuance of an aggregate of 300,000 shares of common stock of
Chiropractic 21 in consideration of non-capital raising services to be
rendered pursuant to the Consulting Agreement, and which shares shall be
registered on Form S-8 of the Securities and Exchange Commission promptly
after the Closing, to the extent that Chiropractic 21 shall be eligible to use
form S-8 and when the reorganized Chiropractic 21 is deemed to be "current" in
the filing of all reports that were required to be filed by it with the
Securities and Exchange Commission for the preceding 12 month period;
regardless, the common stock issuable under the Consulting Agreement shall be
deemed to be fully paid and non-assessable in accordance with the Consulting
Agreement at Closing.
1.9 Indemnification Agreement and Consideration. In
consideration of the execution and delivery by Xxxxxx Services of an Indemnity
Agreement, a copy of which is attached hereto, designated as Schedule 1.9.1
and incorporated herein by reference, regarding the payment and personal
indemnification of Chiropractic 21 and vision from and against any breach of
warranty or false representation made herein and any and all past liabilities
of any type or nature whatsoever of Chiropractic 21 existing immediately prior
to the Closing, and which will include but not be limited to the expenses of
Chiropractic 21 related to the negotiation and the Closing of this Agreement,
except for the sum of $15,000 that has been paid by vision for the legal fees
of Chiropractic 21 legal counsel, and the compromise and settlement of any
amounts due and owing to Xxxxxx Services for advances, loans or services or
otherwise that were incurred prior to Closing, vision shall pay Xxxxxx
Services the aggregate sum of $250,000, less the $15,000 paid to legal
counsel, payable at Closing; and the reorganized Chiropractic 21 shall issue
to Xxxxxx Services and /or its consultants and employees as designated by
Xxxxxx Services an aggregate of 1,200,000 shares of its common stock that are
unregistered shares and "restricted securities" as defined under Rule 144.
1.10 Resignations of Present Directors and Executive Officers of
Chiropractic 21 and Designation of New Directors and Executive Officers.
Atthe Closing, the present directors and executive officers of Chiropractic 21
shall designate the directors and executive officers nominated by vision to
serve in their place and stead, until the next respective annual meetings of
the stockholders and the Board of Directors of the reorganized Chiropractic
21, and until their respective successors shall be elected and qualified or
until their respective prior resignations or terminations, and with the
current directors and executive officers of Chiropractic 21 resigning as of
the Closing, in seriatim.
1.11 Limitations of Registration Statements on Forms S-8 of the
Securities and Exchange Commission. Except as provided in Section 1.8 hereof,
no shares of common stock or other securities of the reorganized Chiropractic
21 shall be registered on any registration statements on Forms S-8 of the
Securities and Exchange Commission for a minimum of 12 months following the
Closing without the prior written consent of the present directors of
Chiropractic 21.
1.12 Closing. This Agreement will be deemed to be completed on the
execution and delivery of the Agreement by the vision Stockholders
collectively owning not less than 50.1% of the outstanding vision Shares;
provided, however, vision and the vision Stockholders understand that the
acquisition of less than 80% of the outstanding vision Shares may have an
adverse effect on the tax free nature of the exchange of securities
contemplated hereunder.
Section 2
Closing
The Closing contemplated by Section 1 shall be held at the offices
of Xxxxxxx X. Xxxxxxxxxx, Esq., Suite 205, Hermes Building, 000 Xxxx 000
Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, on or before ten days following the
execution and delivery of this Agreement, unless another place or time is
agreed upon in writing by the parties. The Closing may also be accomplished by
wire, express mail or other courier service, conference telephone
communications or as otherwise agreed by the respective parties or their duly
authorized representatives.
Section 3
Representations and Warranties of Chiropractic 21
Chiropractic 21 represents and warrants to, and covenants with, the
vision Stockholders and vision as follows:
3.1 Corporate Status; Compliance with Securities Laws.
Chiropractic 21 is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and is licensed or qualified as
a foreign corporation in all states in which the nature of its business or the
character or ownership of its properties makes such licensing or qualification
necessary (Nevada only). Chiropractic 21 is a publicly-held company, having
previously and lawfully offered and sold a portion of its securities in
accordance with applicable federal and state securities laws, rules and
regulations. Its common stock is quoted on the OTC Bulletin Board of the
National Association of Securities Dealers, Inc. (the "NASD") under the symbol
"US:CRPL," though there is no "established trading market" for these
securities. Chiropractic 21 is a "reporting issuer" under the Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), has
presently filed all reports that have been required to be filed by it on a
timely basis during the past 12 months and is not in violation of any
applicable federal or state securities laws, rules or regulations. All
reports and registration statements that have been filed by Chiropractic 21
with the Securities and Exchange Commission do not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made, in light of the circumstances under which
they were made, not misleading. Chiropractic 21 is not subject to any
sanction, judgment, injunction or order of the Securities and Exchange
Commission.
3.2 Capitalization. The current pre-Agreement authorized capital
stock of Chiropractic 21 consists of 75,000,000 shares of $0.004 par value
common voting stock, of which 537,719 shares outstanding, all fully paid and
non-assessable. Except as provided herein in Sections 1.1, 1.8 and 1.9, there
are no outstanding options, warrants, convertible securities or calls pursuant
to which any person has the right to purchase any authorized and unissued
common stock or other securities of Chiropractic 21.
3.3 Financial Statements. The financial statements of
Chiropractic 21 furnished to the vision Stockholders and vision, consisting of
audited financial statements for the years ended April 30, 2003 and 2002, and
unaudited financial statements for the period ended October 31, 2003, attached
hereto as Exhibits B and B-1, respectively, and incorporated herein by
reference, are correct and fairly present the financial condition of
Chiropractic 21 at such dates and for the periods involved; such statements
were prepared in accordance with generally accepted accounting principles
consistently applied, and no material change has occurred in the matters
disclosed therein, except as indicated in Exhibit C, which is attached hereto
and incorporated herein by reference. Such financial statements do not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
3.4 Undisclosed Liabilities. Chiropractic 21 has no liabilities
of any nature except to the extent reflected or reserved against in its
balance sheets, whether accrued, absolute, contingent or otherwise, including,
without limitation, tax liabilities and interest due or to become due, except
as set forth in Exhibit C.
3.5 Interim Changes. Since the dates of its balance sheets,
except as set forth in Exhibit C, there have been no (i) changes in financial
condition, assets, liabilities or business of Chiropractic 21 which, in the
aggregate, have been materially adverse; (ii) damages, destruction or losses
of or to property of Chiropractic 21, payments of any dividend or other
distribution in respect of any class of stock of Chiropractic 21 or any direct
or indirect redemption, purchase or other acquisition of any class of any such
stock; or (iii) increases paid or agreed to in the compensation, retirement
benefits or other commitments to its employees; or (iv) declaration of any
dividends.
3.6 Title to Property. Chiropractic 21 has good and marketable
title to all properties and assets, real and personal, reflected in its
balance sheets, and the properties and assets of Chiropractic 21 are subject
to no mortgage, pledge, lien or encumbrance, except for liens shown therein or
in Exhibit C, with respect to which no default exists.
3.7 Litigation. There is no claim, litigation or proceeding
pending, or to the knowledge of Chiropractic 21, threatened, against or
relating to Chiropractic 21, its properties or business, except as set forth
in Exhibit C. Further, no officer, director or person who may be deemed to be
an "affiliate" of Chiropractic 21 is party to any material legal proceeding
which could have an adverse effect on Chiropractic 21 (financial or
otherwise), and none is party to any action or proceeding wherein any has an
interest adverse to Chiropractic 21. There are no pending judgments or
restraining orders or rulings against Chiropractic 21 to which Chiropractic 21
is subject or which have been previously entered against Chiropractic 21 and
which remain unsatisfied.
3.8 Books and Records. From the date of this Agreement to the
Closing, Chiropractic 21 will (i) give to the vision Stockholders and vision
or their respective representatives full access during normal business hours
to all of Chiropractic 21' offices, books, records, contracts and other
corporate documents and properties so that they or their respective
representatives may inspect and audit them; and (ii) furnish such information
concerning the properties and affairs of Chiropractic 21 as they or their
respective representatives may reasonably request.
3.9 Tax Returns. Chiropractic 21 has filed all federal and state
income or franchise tax returns that have been required to be filed by it or
has received currently effective extensions of the required filing dates.
3.10 Confidentiality. Until the Closing (and thereafter if there
is no Closing), Chiropractic 21 and its representatives will keep confidential
any information which they obtain from the vision Stockholders or from vision
concerning the properties, assets and business of vision. If the transactions
contemplated by this Agreement are not consummated by February 28, 2004,
Chiropractic 21 will return to vision all written matter with respect to
vision obtained by Chiropractic 21 in connection with the negotiation or
consummation of this Agreement.
3.11 Corporate Authority. Chiropractic 21 has full corporate power
and authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to the vision Stockholders and vision or their
respective representatives at the Closing a signed copy of resolutions of its
Board of Directors authorizing execution of this Agreement by Chiropractic
21's officers and performance thereunder, and that the directors adopting and
delivering such resolutions are the duly elected and incumbent directors of
Chiropractic 21.
3.12 Due Authorization. Execution of this Agreement and
performance by Chiropractic 21 hereunder have been duly authorized by all
requisite corporate action on the part of Chiropractic 21, and this Agreement
constitutes a valid and binding obligation of Chiropractic 21 and performance
hereunder will not violate any provision of the Articles of Incorporation,
Bylaws, agreements, mortgages or other commitments of Chiropractic 21, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application now or
hereafter in effect relating to or affecting the enforcement of creditors'
right generally and the application of general equitable principles in any
action, legal or equitable.
3.13 Environmental Matters. Chiropractic 21 has no knowledge of
any assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of Chiropractic 21.
In addition, to the best knowledge of Chiropractic 21, there are no substances
or conditions which may support a claim or cause of action against
Chiropractic 21 or any of Chiropractic 21's current or former officers,
directors, agents or employees, whether by a governmental agency or body,
private party or individual, under any Hazardous Materials Regulations.
"Hazardous Materials" means any oil or petrochemical products, PCB's,
asbestos, urea formaldehyde, flammable explosives, radioactive materials,
solid or hazardous wastes, chemicals, toxic substances or related materials,
including, without limitation, any substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous
materials" or "toxic substances" under any applicable federal or state laws or
regulations. "Hazardous Materials Regulations" means any regulations
governing the use, generation, handling, storage, treatment, disposal or
release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
3.14 Access to Information Regarding vision. Chiropractic 21
acknowledges that vision has delivered to it copies of what has been
represented to be documentation containing all material information respecting
vision and vision's present and contemplated business operations, potential
acquisitions, management and other factors; that it has had a reasonable
opportunity to review such documentation and discuss it, to the extent
desired, with its legal counsel, directors and executive officers; that it has
had, to the extent desired, the opportunity to ask questions of and receive
responses from the directors and executive officers of vision, and with the
legal and accounting firms of vision, with respect to such documentation; and
that to the extent requested, all questions raised have been answered to
Chiropractic 21's complete satisfaction.
Section 4
Representations, Warranties and Covenants of vision and
the vision Stockholders
vision and the vision Stockholders represent and warrant to, and
covenant with, Chiropractic 21 as follows (provided, however, that the vision
Stockholders whose beneficial stock ownership interest in vision is less than
5% as set forth in Exhibit A shall make only those representations and
warranties contained in Sections 4.1, 4.11, 4.12 and 4.16):
4.1 Ownership. The vision Stockholders respectively own the
vision Shares free and clear of any liens or encumbrances of any type or
nature whatsoever, and each has full right, power and authority to exchange
the vision Shares that are owned by each hereunder without qualification.
4.2 Corporate Status. vision is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada
and is licensed or qualified as a foreign corporation in all states in which
the nature of vision business or the character or ownership of vision
properties makes such licensing or qualification necessary. It has no
subsidiaries.
4.3 Capitalization. The authorized capital stock of vision
consists of 50,000,000 shares of common stock, $0.001 par value per share, of
which 36,040,500 shares are issued and outstanding, all fully paid and non-
assessable. There are no outstanding options, warrants or calls pursuant to
which any person has the right to purchase any authorized and unissued common
stock or other securities of vision.
4.4 Financial Statements. The financial statements of vision
furnished to Chiropractic 21, consisting of its unaudited balance sheet and
income statement for the year ended June 30, 2003, attached hereto as Exhibit
D and incorporated herein by reference, are correct and fairly present the
financial condition of vision as of such dates and for the periods involved;
such statements were prepared in accordance with generally accepted accounting
principles consistently applied, and no material change has occurred in the
matters disclosed therein, except as indicated in Exhibit E, which is attached
hereto and incorporated herein by reference. These financial statements do not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
4.5 Undisclosed Liabilities. vision has no material liabilities
of any nature except to the extent reflected or reserved against in its
balance sheets, whether accrued, absolute, contingent or otherwise, including,
without limitation, tax liabilities and interest due or to become due, except
as set forth in Exhibit E.
4.6 Interim Changes. Since the date of its balance sheets,
except as set forth in Exhibit E, there have been no (i) changes in the
financial condition, assets, liabilities or business of vision, which in the
aggregate, have been materially adverse; (ii) damages, destruction or loss of
or to the property of vision, payment of any dividend or other distribution in
respect of the capital stock of vision or any direct or indirect redemption,
purchase or other acquisition of any such stock; or (iii) increases paid or
agreed to in the compensation, retirement benefits or other commitments to
their employees.
4.7 Title to Property. vision has good and marketable title to
all properties and assets, real and personal, proprietary or otherwise,
reflected in its balance sheet, and the properties and assets of vision are
subject to no mortgage, pledge, lien or encumbrance, except as reflected in
its balance sheets or in Exhibit E, with respect to which no default exists.
4.8 Litigation. There is no litigation or proceeding
pending, or to the knowledge of vision, threatened, against or relating to
vision or its properties or business, except as set forth in Exhibit E.
Further, no officer, director or person who may be deemed to be an affiliate
of vision is party to any material legal proceeding which could have an
adverse effect on vision (financial or otherwise), and none is party to any
action or proceeding wherein any has an interest adverse to vision.
4.9 Books and Records. From the date of this Agreement to the
Closing, the vision Stockholders will cause vision to (i) give to Chiropractic
21 and its representatives full access during normal business hours to all of
vision offices, books, records, contracts and other corporate documents and
properties so that vision may inspect and audit them; and (ii) furnish such
information concerning the properties and affairs of vision as Chiropractic 21
may reasonably request.
4.10 Tax Returns. vision has filed all federal and state income
or franchise tax returns that have been required to be filed by it or has
received currently effective extensions of the required filing dates.
4.11 Confidentiality. Until the Closing (and continuously
thereafter if there is no Closing), vision and the vision Stockholders and
their representatives will keep confidential any information which they obtain
from Chiropractic 21 concerning its properties, assets and business. If the
transactions contemplated by this Agreement are not consummated by February
28, 2004, vision and the vision Stockholders will return to Chiropractic 21
all written matter with respect to Chiropractic 21 obtained by them in
connection with the negotiation or consummation of this Agreement.
4.12 Investment Intent. The vision Stockholders are acquiring the
Chiropractic 21 common stock to be exchanged and delivered to them under this
Agreement for "investment purposes and not with a view to the sale or
distribution thereof," and they have no commitment or present intention to
sell or distribute the Chiropractic 21 common stock to be received hereunder.
The vision Stockholders shall execute and deliver to Chiropractic 21 on the
Closing an Investment Letter attached hereto as Exhibit F and incorporated
herein by reference, pursuant to which, among other things, each vision
Stockholder will compromise and waive any pre-emptive rights or shareholder
agreements relating to the prior issuance of any of the vision Shares, and any
claims such vision Stockholder has or may have against vision arising out of
the purchase of any common stock of vision exchanged under this Agreement,
without qualification.
4.13 Corporate Authority. vision has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to Chiropractic 21 or its representative at the
Closing a signed copy of resolutions of its Board of Directors authorizing
execution of this Agreement by its officers and performance thereunder, and
that the directors adopting and delivering such resolutions are the duly
elected and incumbent directors of vision.
4.14 Due Authorization. Execution of this Agreement and
performance by vision hereunder have been duly authorized by all requisite
corporate action on the part of vision, and this Agreement constitutes a valid
and binding obligation of vision and performance hereunder will not violate
any provision of the Articles of Incorporation, Bylaws, agreements, mortgages
or other commitments of vision, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application now or hereafter in effect relating to or
affecting the enforcement of creditors' right generally and the application of
general equitable principles in any action, legal or equitable.
4.15 Environmental Matters. vision and the vision Stockholders
have no knowledge of any assertion by any governmental agency or other
regulatory authority of any environmental lien, action or proceeding, or of
any cause for any such lien, action or proceeding related to the business
operations of vision or its predecessors. In addition, to the best knowledge
of vision and the vision Stockholders, there are no substances or conditions
which may support a claim or cause of action against vision or any of its
current or former officers, directors, agents, employees or predecessors,
whether by a governmental agency or body, private party or individual, under
any Hazardous Materials Regulations. "Hazardous Materials" means any oil or
petrochemical products, PCB's, asbestos, urea formaldehyde, flammable
explosives, radioactive materials, solid or hazardous wastes, chemicals, toxic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," " hazardous materials" or "toxic substances" under any applicable
federal or state laws or regulations. "Hazardous Materials Regulations" means
any regulations governing the use, generation, handling, storage, treatment,
disposal or release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
4.16 Access to Information Regarding Chiropractic 21. vision and
the vision Stockholders acknowledge that Chiropractic 21 has provided them
with access to what has been represented to be documentation containing all
material information respecting Chiropractic 21 and its present and
contemplated business operations, potential acquisitions, management and other
factors, by personal delivery to them and/or by notification of access to the
reports and registration statements of Chiropractic 21 that contain such
information in the XXXXX Archives of the Securities and Exchange Commission at
xxx.xxx.xxx; that they have had a reasonable opportunity to review such
documentation and to discuss it, to the extent desired, with their legal
counsel, directors and executive officers; that they have had, to the extent
desired, the opportunity to ask questions of and receive responses from the
directors and executive officers of Chiropractic 21, and with the legal and
accounting firms of Chiropractic 21 , with respect to such documentation; and
that to the extent requested, all questions raised have been answered to their
complete satisfaction.
Section 5
Conditions Precedent to Obligations of vision
and the vision Stockholders
All obligations of vision and the vision Stockholders under this
Agreement are subject, at their option, to the fulfillment, before or at the
Closing, of each of the following conditions:
5.1 Representations and Warranties True at Closing. The
representations and warranties of Chiropractic 21 contained in this Agreement
shall be deemed to have been made again at and as of the Closing and shall
then be true in all material respects and shall survive the Closing.
5.2 Due Performance. Chiropractic 21 shall have performed and
complied with all of the terms and conditions required by this Agreement to be
performed or complied with by it before the Closing.
5.3 Officers' Certificate. vision shall have been furnished with
a certificate signed by the President of Chiropractic 21, in such capacity,
attached hereto as Exhibit G and incorporated herein by reference, dated as of
the Closing, certifying (i) that all representations and warranties of
Chiropractic 21 contained herein are true and correct; and (ii) that since the
date of the financial statements (Exhibits B and B-1 hereto), there has been
no material adverse change in the financial condition, business or properties
of vision, taken as a whole.
5.4 Assets and Liabilities of Chiropractic 21. Unless otherwise
agreed, Chiropractic 21 shall have no assets and no liabilities at Closing,
and all costs, expenses and fees incident to the Agreement shall have been
paid, or adequate provision for the payment of the foregoing shall have been
made.
5.5 Resignations of Present Directors and Executive Officers and
Designation of New Directors and Executive Officers. At or simultaneous with
the Closing, vision shall have received all of the resignations of the present
directors and executive officers of Chiropractic 21 and shall further receive
copies of corporate resolutions of Chiropractic 21 showing adoption of all
action necessary to accomplish the resignation of Chiropractic 21's directors
and executive officers, in seriatim, while designating the nominees of vision
to the Board of Directors.
5.6 Reverse Split. Prior to the Closing of this Agreement, the
Board of Directors of Chiropractic 21 shall have effected the reverse split of
its outstanding common stock on the basis of one for 3 shares owned of
Chiropractic 21 as outlined in Section 1.5 hereof.
5.8 Share Cancellation, Share Issuance and Lock-Up/Leak-Out
Agreement. (i) 260,000 shares of common stock of Chiropractic 21 shall have
been delivered to Chiropractic 21 for cancellation to its treasury and for
return to the authorized but unissued capital stock of Chiropractic 21 by
certain principal stockholders as outlined in Schedule 1.6.1 of Section
1.6hereof; (ii) Chiropractic 21 shall have adopted and ratified the Consulting
Agreement attached hereto as Schedule 1.8.1 and the issuance of an aggregate
of 300,000 shares of common stock of Chiropractic 21 for and in consideration
of non-capital raising services to be rendered pursuant to the Consulting
Agreement, and which shares shall be registered on Form S-8 of the Securities
and Exchange Commission as provided in Section 1.8 hereof subject to the
eligibility of Chiropractic 21 to use Form S-8; and (iii) the principal
stockholders that are named in Schedule 1.7.1 hereof shall execute and deliver
to Chiropractic 21 the Lock-Up/Leak-Out Agreement attached hereto as Schedule
1.7.2 covering the shares of common stock of Chiropractic 21 that are
currently owned by them or acquired hereafter by them.
5.9 Stockholders' Consent. Persons owing not less than 50.1% of
the outstanding vision Shares shall have executed and delivered the Agreement.
5.10 Litigation. No temporary restraining order, preliminary
or permanent injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint or provision challenging
the transactions proposed by this Agreement or limiting or restraining any
portion thereof prior to or after the Closing shall be in effect, nor shall
any proceeding by any administrative agency, commission or other governmental
authority or instrumentality, domestic or foreign, seeking any of the
foregoing shall be pending. There shall be no action, suit, claim or
proceeding of any nature pending or threatened against Chiropractic 21 or any
of its officers or directors that could materially and adversely affect the
business, assets, liabilities, financial condition or prospects of
Chiropractic 21.
5.11 Material Contracts. Any and all material contracts affecting
Chiropractic 21, except those specifically permitted by vision in writing or
otherwise permitted by this Agreement, shall be terminated and cancelled as of
the Closing Date.
Section 6
Conditions Precedent to Obligations of Chiropractic 21
All obligations of Chiropractic 21 under this Agreement are subject,
at Chiropractic 21's option, to the fulfillment, before or at the Closing, of
each of the following conditions:
6.1 Representations and Warranties True at Closing. The
representations and warranties of vision and the vision Stockholders contained
in this Agreement shall be deemed to have been made again at and as of the
Closing and shall then be true in all material respects and shall survive the
Closing.
6.2 Due Performance. vision, the vision Stockholders shall have
performed and complied with all of the terms and conditions required by this
Agreement to be performed or complied with by them before the Closing.
6.3 Officers' Certificate. Chiropractic 21 shall have been
furnished with a certificate signed by the President of vision, in such
capacity, attached hereto as Exhibit H and incorporated herein by reference,
dated as of the Closing, certifying (i) that all representations and
warranties of vision and the vision Stockholders contained herein are true and
correct; and (ii) that since the date of the financial statements (Exhibit D),
there has been no material adverse change in the financial condition, business
or properties of vision, taken as a whole.
6.4 Books and Records. The vision Stockholders or the Board of
Directors of vision shall have caused vision to make available all books and
records of vision, including minute books and stock transfer records;
provided, however, only to the extent requested in writing by Chiropractic 21
at Closing.
6.5 Compliance With Specific Conditions of Section 1. The final
satisfaction and compliance with all of the requirements of Section 1 hereof
are conditions precedent to the obligations of Chiropractic 21 hereunder as
they were all part of the negotiations that culminated in the execution and
delivery of this Agreement and must be fully satisfied at or within a
reasonable time of the Closing; and Section 1 contains conditions that the
current members of the Board of Directors of Chiropractic 21 may obtain
specific performance of in the event of default in any of the matters covered
thereby.
6.6 Stockholders' Consent. Persons owing not less than 50.1 of
the outstanding vision Shares shall have executed and delivered the Agreement.
Section 7
Termination
7.1 Termination of Agreement. Prior to the Closing, this
Agreement may be terminated (i) by mutual consent in writing; (ii) by either
the directors of Chiropractic 21 or vision, if there has been a material
misrepresentation or material breach of any warranty or covenant by the other
party; or (iii) by either the directors of Chiropractic 21 or vision and the
vision Stockholders, if the Closing shall not have taken place, unless
adjourned to a later date by mutual consent in writing, by the date fixed in
Section 2.
7.2 Survival of Representations, Warranties and Covenants. All
representations, warranties and covenants made by the parties hereto in or
pursuant to this Agreement or in any document delivered pursuant hereto shall
be deemed to have been made on the date of this Agreement (except as otherwise
provided herein) and, if a Closing occurs, as of the Closing date. The
representations and warranties made herein by any party shall survive the
Closing for a period of two years after the date of Closing.
Section 8
Indemnification
8.1 Chiropractic 21 Indemnification. Xxxxxx Services and
Chiropractic 21 shall indemnify, defend and hold harmless vision and its
directors, officers, employees, affiliates, agents and assigns, as well as the
vision Stockholders (collectively, the "Indemnified Persons) from and against
any and all losses, liabilities, damages, demands, claims, actions, judgments
or causes of action, assessments, costs and expenses including, without
limitation, interest, penalties and attorneys' and accountant's fees asserted
against, resulting to, or imposed upon or incurred or suffered by any
Indemnified Person, directly or indirectly, as a result of, or based upon or
arising from any material inaccuracy in or materials breach, non-fulfillment
or failure to perform, any of the representations, warranties, covenants or
agreements made by Chiropractic 21 in or pursuant to this Agreement.
8.2 vision Indemnification. vision shall indemnify, defend and
hold harmless Chiropractic 21 and its directors, officers, employees,
affiliates, agents and assigns (collectively, the "Indemnified Persons) from
and against any and all losses, liabilities, damages, demands, claims,
actions, judgments or causes of action, assessments, costs and expenses
including, without limitation, interest, penalties and attorneys' and
accountant's fees asserted against, resulting to, or imposed upon or incurred
or suffered by any Indemnified Person, directly or indirectly, as a result of,
or based upon or arising from any material inaccuracy in or materials breach,
non-fulfillment or failure to perform, any of the representations, warranties,
covenants or agreements made by vision in or pursuant to this Agreement.
Section 9
General Provisions
9.1 Further Assurances. At any time, and from time to time, after
the Closing, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the
intent and purposes of this Agreement.
9.2 Waiver. Any failure on the part of any party hereto to
comply with any its or their obligations, agreements or conditions hereunder
may be waived in writing by the party to whom such compliance is owed.
9.3 Brokers. Each party represents to the other parties that no
broker or finder has acted for each or any of them in connection with this
Agreement, and agrees to indemnify and hold harmless the other parties against
any fee, loss or expense arising out of claims by brokers or finders employed
or alleged to have been employed by each or any of them.
9.4 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first-class registered or certified mail, return receipt
requested, as follows:
If to Chiropractic 21: 5525 South 000 Xxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxxxxx, Esq.
455 East 000 Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
If to vision: 00000 Xxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
With a copy to: B. Xxxxx Xxxxxxx, Esq.
00-X Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
If to the vision To the addresses listed in Exhibit A.
Stockholders:
9.5 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
9.6 Severability. If any provision of this Agreement or the
application thereof to any person or circumstances is held invalid or
unenforceable in any jurisdiction, the remainder hereof, and the application
of such provision or circumstances in any other jurisdiction, shall not be
affected thereby, and to this end the provisions of this Agreement shall be
severable.
9.7 No Waiver. The failure of a party to strictly enforce any
provision of this Agreement shall not be deemed a waiver of any right or
remedy as to any continuing or future matter. The termination of this
Agreement by either party shall not affect or waive any other remedy or right.
9.8 Waiver of Jury Trial. The parties to this Agreement recognize
that this Agreement is a relatively complex business document, that it is
lengthy and technical in nature and may be susceptible to misinterpretation if
isolated provisions are the subject of review and that in the event of any
dispute as to the rights and obligations of the parties under this Agreement,
a judge rather than a jury would be the most efficient and best qualified
trier of the facts relating to this Agreement. Accordingly, the parties
hereto desire, acknowledge and mutually agree to waive their respective rights
to a jury trial with respect to any litigation or other legal proceeding based
upon this Agreement.
9.9 Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.10 Counterparts. This Agreement may be executed in any number
of counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
such counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more counterparts
taken together shall have been executed and delivered (which deliveries may be
by facsimile) by the parties.
9.11 Specific Performance; Remedies. Each party hereto
acknowledges that the other parties to this Agreement will be irreparably
harmed and that there will be no adequate remedy at law for any violation by
any of them of any of the covenants or agreements contained in this Agreement,
including, without limitation, the confidentiality obligations imposed by this
Agreement. It is accordingly agreed that, in addition to any other remedies
which may be available upon breach of any such covenants or agreements, each
party hereto shall have the right to obtain injunctive relief to restrain a
breach or threatened breach of, or otherwise obtain specific performance of,
the other parties, covenants and agreements contained in this Agreement.
9.12 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Nevada
without reference to or incorporation of any of such state's common or
statutory laws regarding conflicts of law, except to the extent pre-empted by
federal law, in which event (and to that extent only), federal law shall
govern. Any actions permitted hereunder shall be brought in the State of
Nevada in the county in which the principal executive offices of Chiropractic
21 are situated only.
9.13 Assignment. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their successors and assigns.
9.14 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
9.15 Default. In the event of any default hereunder, the
prevailing party in any action to enforce the terms and provisions hereof
shall be entitled to recover reasonable attorney's fees and related costs.
IN WITNESS WHEREOF, the parties have executed this Agreement and
Plan of Reorganization effective the latest date hereof.
CHIROPRACTIC 21 INTERNATIONAL, INC.
Date: 2/24/04. By/s/Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, President
VISIONGATEWAY, INC.
Date: 2/27/04. By/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
AGREEMENT AND PLAN OF REORGANIZATION
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain Agreement and Plan
of Reorganization (the "Agreement") dated as of the 27th day of February,
2004, among Chiropractic 21 International, Inc., a Nevada corporation
("Chiropractic 21"); visionGATEWAY, Inc., a Nevada corporation ("vision"); and
the vision stockholders (the "vision Stockholders"), by which the undersigned,
through execution and delivery of this Counterpart Signature page, intends to
be legally bound by the terms of the Agreement.
Aspen Capital Partners Limited
Name (Please Print)
000 Xxxxxxxxxx Xxxx
Street Address
Opotiki, North Island, New Zealand
City State Zip
/s/Xxxxxx Xxxxx Xxxxxx
(Signature)
27th February 2004
(Date)
EXHIBIT A
Number of Shares of
Number of Shares Chiropractic 21
Owned of to be
Name vision Received in Exchange
See attached list of vision stockholders. The exchange will be on the
basis of one share of Chiropractic 21 for each one share owned of vision.
EXHIBIT B
CHIROPRACTIC 21 INTERNATIONAL, INC.
FINANCIAL STATEMENTS
FOR THE YEARS ENDED
April 30, 2003 and 2002
See the 10KSB for the year ended April 30, 2003 for Chiropractic 21
International, Inc.
EXHIBIT B-1
CHIROPRACTIC 21 INTERNATIONAL, INC.
UNAUDITED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED
OCTOBER 31, 2003
See the 10QSB for the quarter ended October 31, 2003 for Chiropractic 21
International, Inc.
EXHIBIT C
None.
EXHIBIT D
visionGATEWAY, Inc.
UNAUDITED FINANCIAL STATEMENTS
FOR THE YEAR ENDED
JUNE 30, 2003
EXHIBIT E
None.
EXHIBIT F
Atlas Stock Transfer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Chiropractic 21 International, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Re: Exchange of shares of visionGATEWAY, Inc., a Nevada
corporation ("vision"), for shares of Chiropractic 21
International, Inc., a Nevada corporation
("Chiropractic 21" or "Company")
Dear Ladies and Gentlemen:
Pursuant to that certain Agreement and Plan of Reorganization (the
"Agreement") between the undersigned, vision, the other stockholders of vision
and Chiropractic 21, I acknowledge that I have approved this exchange; that I
am aware of all of the terms and conditions of the Agreement. I represent and
warrant that (i) I am an "accredited investor" or, either alone or with the
aid of a "purchaser representative" a "sophisticated investor"; (ii) I
understand the "unregistered" and "restricted" nature of the shares of
Chiropractic 21 being received under the Agreement in exchange for the vision
Shares; (iii) I have received and reviewed a copy of any and all material
documents regarding the Company, including, but not limited to all reports
filed with the Securities and Exchange Commission for the past 12 months;
(iv) I hereby compromise and waive any pre-emptive rights or shareholder
agreements relating to the prior issuance of any of the vision Shares, and any
claims I have or may have against vision arising out of the purchase of any
common stock of vision exchanged under the Agreement, without qualification.
I understand that you have and will make books and records of your
Company available to me for my inspection in connection with the contemplated
exchange of my shares, and that I have been encouraged to review the
information and ask any questions I may have concerning the information of any
director or officer of the Company or of the legal and accounting firms for
the Company. I understand that the accounting firm for Chiropractic 21 is
Xxxxxxx, XxXxxxxxxx & Associates, 0000 Xxxxx 000 Xxxx, #000, Xxxx Xxxx Xxxx,
Xxxx 00000; Telephone #000-000-0000; and that legal counsel for Chiropractic
21 is Xxxxxxx X. Xxxxxxxxxx, Esq., 000 Xxxx 0xx Xxxxx, Xxxxx 000, Xxxx Xxxx
Xxxx, Xxxx 00000, Telephone #000-000-0000.
I also understand that I must bear the economic risk of ownership
of any of the Chiropractic 21 shares for a long period of time, the minimum of
which will be one (1) year, as these shares are "unregistered" shares and may
not be sold unless any subsequent offer or sale is registered with the United
States Securities and Exchange Commission or otherwise exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Act"), or other applicable laws, rules and regulations.
I intend that you rely on all of my representations made herein
and those in the personal questionnaire (if applicable) I provided to vision
for use by Chiropractic 21 as they are made to induce you to issue me the
shares of Chiropractic 21 under the Plan, and I further represent (of my
personal knowledge or by virtue of my reliance on one or more personal
representatives), and agree as follows, to-wit:
1. That the shares being acquired are being received for
investment purposes and not with a view toward further distribution;
2. That I have a full and complete understanding of the phrase
"for investment purposes and not with a view toward further distribution";
3. That I understand the meaning of "unregistered shares" and
know that they are not freely tradeable;
4. That any stock certificate issued by you to me in connection
with the shares being acquired shall be imprinted with a legend restricting
the sale, assignment, hypothecation or other disposition unless it can be made
in accordance with applicable laws, rules and regulations;
5. I agree that the stock transfer records of your Company
shall reflect that I have requested the Company not to effect any transfer of
any stock certificate representing any of the shares being acquired unless I
shall first have obtained an opinion of legal counsel to the effect that the
shares may be sold in accordance with applicable laws, rules and regulations,
and I understand that any opinion must be from legal counsel satisfactory to
the Company and, regardless of any opinion, I understand that the exemption
covered by any opinion must in fact be applicable to the shares;
6. That I shall not sell, offer to sell, transfer, assign,
hypothecate or make any other disposition of any interest in the shares being
acquired except as may be pursuant to any applicable laws, rules and
regulations;
7. I fully understand that my shares which are being exchanged
for shares of the Company are "risk capital," and I am fully capable of
bearing the economic risks attendant to this investment, without
qualification; and
8. I also understand that without approval of counsel for
Chiropractic 21, all shares of Chiropractic 21 to be issued and delivered to
me in exchange for my shares of vision shall be represented by one stock
certificate only and which such stock certificate shall be imprinted with the
following legend or a reasonable facsimile thereof on the front and reverse
sides thereof:
The shares of stock represented by this certificate
have not been registered under the Securities Act of
1933, as amended, and may not be sold or otherwise
transferred unless compliance with the registration
provisions of such Act has been made or unless
availability of an exemption from such registration
provisions has been established, or unless sold
pursuant to Rule 144 under the Act.
Any request for more than one stock certificate must be
accompanied by a letter signed by the requesting stockholder setting forth all
relevant facts relating to the request. Chiropractic 21 will attempt to
accommodate any stockholders' request where Chiropractic 21 views the request
is made for valid business or personal reasons so long as in the sole
discretion of Chiropractic 21, the granting of the request will not facilitate
a "public" distribution of unregistered shares of common voting stock of
Chiropractic 21.
You are requested and instructed to issue a stock certificate as
follows, to-wit:
Aspen Capital Partners, Ltd. 23,000,000
(Name(s) and Number of Shares)
000 Xxxxxxxxxx Xxxx
(Address)
Opotiki, North Island, New Zealand
(City, State and Zip Code)
If joint tenancy with full rights of survivorship is
desired, put the initials JTRS after your names.
Dated this 27th day of February, 2004.
Very truly yours,
/s/Xxxxxx Xxxxx Xxxxxx, Director
EXHIBIT G
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF REORGANIZATION
The undersigned, the President of Chiropractic 21 International,
Inc., a Nevada corporation ("Chiropractic 21"), represents and warrants the
following as required by the Agreement and Plan of Reorganization (the "Plan")
between Chiropractic 21 and visionGATEWAY, Inc., a Nevada corporation
("vision"), and the stockholders of vision (the "vision Stockholders"):
1. That she is the President of Chiropractic 21 and has been
authorized and empowered by its Board of Directors to execute and deliver this
Certificate to vision and the vision Stockholders.
2. Based on her personal knowledge, information, belief and
opinions of counsel for Chiropractic 21 regarding the Plan:
(i) All representations and warranties of Chiropractic 21
contained within the Plan are true and correct;
(ii) Chiropractic 21 has complied with all terms and
provisions required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of Chiropractic 21 as set forth in its
financial statements for the periods ended April 30, 2003
and 2002, and October 31, 2003, except as set forth in
Exhibit C to the Plan.
CHIROPRACTIC 21 INTERNATIONAL, INC.
By/s/Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, President
EXHIBIT H
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF REORGANIZATION
The undersigned, the President of vision Industries, Inc., a
Delaware corporation ("vision"), represents and warrants the following as
required by the Agreement and Plan of Reorganization (the "Plan") between
vision, its stockholders (the "vision Stockholders") and Chiropractic 21
International, Inc., a Nevada corporation ("Chiropractic 21"):
1. That he is the President of vision and has been authorized
and empowered by its Board of Directors to execute and deliver this
Certificate to Chiropractic 21.
2. Based on his personal knowledge, information, belief:
(i) All representations and warranties of vision contained
within the Plan are true and correct;
(ii) vision has complied with all terms and provisions
required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of vision as set forth in its unaudited
balance sheet and income statement for the year ended June
30, 2003, except as set forth in Exhibit E to the Plan.
visionGATEWAY, INC.
By/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
Schedule 1.6.1
Canceling Principal Stockholders
Xxxx Xxxxxx 86,667
Xxxxxxx Xxxxxx 86,667
Xxxxxx Xxxxxx 86,667
Schedule 1.7.1
Chiropractic 21 Stockholders Signing Lock-Up/Leak-Out Agreement
Xxxxxx Services, Inc.
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Schedule 1.7.2
Lock-Up/Leak-Out Agreement
LOCK-UP/LEAK-OUT AGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (the "Agreement") is made and
entered into as of the 27th day of February, 2004, between Chiropractic 21
International, Inc., a Nevada corporation ("Chiropractic 21"), and Xxxxxx
Services, Inc., a Utah corporation ("Xxxxxx Services"), Xxxxxxx X. Xxxxxxxxxx,
Esq., Xxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxxx, Xxxxx X.
Xxxxxx, Xxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx,
shareholders of Chiropractic 21, and sometimes referred to herein as the
"Shareholders."
WHEREAS, Chiropractic 21 intends to enter into an Agreement and
Plan of Reorganization (the "Reorganization Agreement") between Chiropractic
21 and visionGATEWAY, Inc., a Nevada corporation ("vision"); and the
stockholders of vision (the "vision Stockholders"), pursuant to which the
execution and delivery of this Agreement is a condition precedent to the
closing of the Reorganization Agreement; and
WHEREAS, in order to facilitate the consummation of the
transactions contemplated by the Reorganization Agreement and to provide for
an orderly market for the Common Stock of Chiropractic 21 subsequent to the
closing of the Reorganization Agreement, the Shareholderss have agreed to
enter into this Agreement and to restrict the sale, assignment, transfer,
conveyance, hypothecation or alienation of the Common Stock, all on the terms
set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Notwithstanding anything contained in this Agreement, the
Shareholders may transfer their shares of Common Stock to their affiliates,
partners in a partnership, subsidiaries and trusts, or spouses and lineal
descendants for estate planning purposes, and any other person in a bona fide
private transaction, provided that the transferee (or the legal representative
of the transferee) executes an agreement to be bound by all of the terms and
conditions of this Agreement.
2. Except as otherwise expressly provided herein, and except as
the Shareholders may be otherwise restricted from selling shares of Common
Stock, the Shareholders may only sell Common Stock subject to the following
conditions for the twelve (12) month period from the closing of the
Reorganization Agreement (the "Lock-Up/Leak-Out Period"):
2.1 All public sales by the Shareholders shall be made in
"broker's transactions" as that term is defined in Rule 144
of the Securities and Exchange Commission, and that the
Shareholders shall comply with the "manner of sale"
requirements of Rule 144 of the Securities and Exchange
Commission.
2.2 If the Shareholders have an approved brokerage account
meaning an account with a broker/dealer who has executed and
delivered to Chiropractic 21 a broker/dealer agreement in a
form satisfactory to Chiropractic 21, a reasonable facsimile
of which is attached hereto as Exhibit A and incorporated
herein by reference (the "Broker/Dealer Agreement"), to the
effect that any such broker/dealer will comply with and
monitor the terms and conditions of this Agreement for the
benefit of Chiropractic 21 and the Shareholders (the
"Approved Broker/Dealer"); and the Shareholders have
executed and delivered to Chiropractic 21 a Seller's Resale
Agreement in a form satisfactory to Chiropractic 21, a
reasonable facsimile of which is attached hereto as Exhibit
B and incorporated herein by reference (the "Seller's Resale
Agreement"), then the Common Stock of the Shareholders that
can be sold or has qualified to be sold hereunder will be
delivered to the Shareholders' account at the Approved
Broker Dealer through the Depository Trust Corporation
("DTC") or by paper delivery; and provided, however, that if
the Shareholders do not have an account with an Approved
Broker/Dealer, the Common Stock of the Shareholders that can
be sold or has qualified to be sold hereunder will be
delivered to the Shareholders in the form of an actual stock
certificate that is imprinted with a legend indicating that
resale of the Common Stock is subject to the terms and
conditions of this Agreement, one of which shall be a resale
through an Approved Broker/Dealer.
2.3 The Shareholders shall be allowed to publicly sell 1/12th of
the Shareholders' shares of Common Stock per month during
the Lock-Up/Leak-Out Period, on a cumulative basis, meaning
that if no Common Stock was sold during one month while
Common Stock was qualified to be sold, up to 2/12ths of the
Shareholders' shares of Common Stock could be sold in the
next successive month and so forth. The Shareholders agree
that all sales will be made at no less than the best "asked"
prices, and no sales will be made at the "bid" prices for
the Common Stock.
2.4 The Shareholders agree that they will not engage in any
short selling of the Common Stock during the Lock-Up/Leak-
Out Period.
2.5 During the Lock-Up/Leak/Out Period, Chiropractic 21 shall
maintain its "reporting" status with the Securities and
Exchange Commission; file all reports that are required to
be filed by it during such period; and use its "best
efforts" to ensure that the Common Stock is continually
quoted for public trading on a nationally recognized medium
of no less significance than the OTC Electronic Bulletin
Board of the National Association of Securities Dealers,
Inc. (the "NASD"), the NASDAQ Small Cap or a recognized
national stock exchange.
3. By executing this Agreement, the Shareholders represent that
the Common Stock set forth in their respective Counterpart Signature Pages are
all of the shares of Chiropractic 21 Common Stock that the Shareholders
beneficially own as of the date hereof. In addition to the Common Stock set
forth in the Counterpart Signature Page, this Agreement shall apply to all
Chiropractic 21 Common Stock of which the Shareholders become the beneficial
owner of during the Lock-Up/Leak-Out Period.
4. Notwithstanding anything to the contrary set forth herein,
Chiropractic 21 may, in its sole discretion, at any time and from time to
time, waive any of the conditions or restrictions contained herein to increase
the liquidity of the Common Stock or if such waiver would otherwise be in the
best interests of the development of the trading market for the Common Stock.
5. In the event of a tender offer to purchase all or
substantially all of Chiropractic 21's issued and outstanding securities, or a
merger, consolidation or other reorganization with or into an unaffiliated
entity, and if the requisite number of the record and beneficial owners of
Chiropractic 21 securities then outstanding are voted in favor of such tender
offer, merger, consolidation or reorganization, and such tender offer, merger,
consolidation or reorganization is completed, this Agreement shall terminate
as of the closing of such event and the Common Stock restricted pursuant
hereto shall be released from such restrictions.
6. Except as otherwise provided in this Agreement or any other
agreements between the parties, the Shareholders shall be entitled to their
respective beneficial rights of ownership of the Common Stock, including the
right to vote the Common Stock for any and all purposes.
7. The Common Stock and per share price restrictions covered by
this Agreement shall be appropriately adjusted should Chiropractic 21 make a
dividend or distribution, undergo a forward split or a reverse split or
otherwise reclassify its shares of Common Stock.
8. No transfer of any of the shares of Common Stock that are
subject to this Agreement shall be made in any transaction other than a
"broker's transaction" unless the transferee executes and delivers a copy of
this Agreement prior to the transfer of any stock certificate representing any
of the Common Stock so transferred.
9. This Agreement may be executed in any number of counterparts
with the same force and effect as if all parties had executed the same
document.
10. All notices, instructions or other communications required
or permitted to be given pursuant to this Agreement shall be given in writing
and delivered by certified mail, return receipt requested, overnight delivery
or hand-delivered to all parties to this Agreement, to Chiropractic 21, at
0000 Xx. Xxxxxxxx Xxxxx, #000, Xxxx Xxxx Xxxx, Xxxx 00000, and to the
Shareholders, at the address in their respective Counterpart Signature Pages.
All notices shall be deemed to be given on the same day if delivered by hand
or on the following business day if sent by overnight delivery or the second
business day following the date of mailing.
11. The resale restrictions on the Common Stock set forth in
this Agreement shall be in addition to all other restrictions on transfer
imposed by applicable United States and state securities laws, rules and
regulations.
12. Chiropractic 21 or the Shareholders who fail to fully adhere
to the terms and conditions of this Agreement shall be liable to every other
party for any damages suffered by any party by reason of any such breach of
the terms and conditions hereof. The Shareholders agree that in the event of
a breach of any of the terms and conditions of this Agreement by the
Shareholders, that in addition to all other remedies that may be available in
law or in equity to the non-defaulting parties, a preliminary and permanent
injunction, without bond or other surety, and an order of a court requiring
the defaulting Shareholders to cease and desist from violating the terms and
conditions of this Agreement and specifically requiring the Shareholders to
perform their respective obligations hereunder, is fair and reasonable by
reason of the inability of the parties to this Agreement to presently
determine the type, extent or amount of damages that Chiropractic 21 or the
non-defaulting Shareholders may suffer as a result of any breach or
continuation thereof.
13. This Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof, and may not be
amended except by a written instrument executed by the parties hereto.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada applicable to contracts
entered into and to be performed wholly within said State; and Chiropractic 21
and the Shareholders agree that any action based upon this Agreement may be
brought in the United States and state courts of Nevada only, and each submits
himself or herself to the jurisdiction of such courts for all purposes
hereunder.
15. In the event of default hereunder, the non-defaulting
parties shall be entitled to recover reasonable attorney's fees incurred in
the enforcement of this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and
delivered this Agreement as of the day and year first above written.
CHIROPRACTIC 21 INTERNATIONAL, INC.
Date: 2/24/04. By/s/Xxxxx Xxxxxx
Its
LOCK-UP/LEAK-OUT AGREEMENT
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain Lock-Up/Leak-Out
Agreement (the "Agreement") dated as of the day of February, 2004, among
Chiropractic 21 International, Inc., a Nevada corporation ("Chiropractic 21");
and Xxxxxx Services, Inc., a Utah corporation ("Xxxxxx Services"), Xxxxxxx X.
Xxxxxxxxxx, Esq., Xxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxx and
Xxxxxxxx Xxxxxx, Shareholders of Chiropractic 21, by which the undersigned,
through execution and delivery of this Counterpart Signature Page, intends to
be legally bound by the terms of the Agreement, as the Shareholders, of the
number of shares of Chiropractic 21 set forth below or hereafter acquired
during the Lock-Up/Leak-Out Period as defined in the Agreement.
Xxxxxx Services, Inc.
/s/Xxxxxx Xxxxxx
0000 X. Xxxxxxxx Xxxxx #000
Xxxx Xxxx Xxxx, Xxxx 00000
2/25/04
Xxxxxxx X. Xxxxxxxxxx
/s/Xxxxxxx X. Xxxxxxxxxx
000 Xxxx 000 Xxxxx, Xxxxx #000
Xxxx Xxxx Xxxx, Xxxx 00000
60,000 shares
2/26/04
Xxxxx X Xxxxx
/s/Xxxxx X Xxxxx
0000 X. Xxxxxx Xxx, Xxxx X
Xxxxxx, XX 00000
10,000 shares
2/27/04
Xxxxxxx X. Xxxxxxx
/s/Xxxxxxx X. Xxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
February 24, 2004
Xxxxx Xxxxxxx
/s/Xxxxx Xxxxxxx
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxx 00000
2/1/04
Xxxxx Xxxxxxxxxx
/s/Xxxxx Xxxxxxxxxx
00000 Xxxxx Xxxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
24,000
2/24/04
Xxxxx Xxxxxx
/s/Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxx.
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
2/25/04
Xxxxxxxx X. Xxxxxxxx
/s/Xxxxxxxx X. Xxxxxxxx
00000 Xxxxxxxxx Xxxx Xxxx
Xxxxxx, Xxxx 00000
2/24/04
Xxxx X. Xxxxxx
/s/Xxxx X. Xxxxxx
00 Xxxx Xxxxxx
Xxxxx, Xxxx 00000
Xxxxxx Xxxxxx
/s/Xxxxxx Xxxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxx Xxxx, Xxxx
52,750
2/24/04
Xxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx
0000 X. Xxxxxxxx Xxxxx #000
Xxxx Xxxx Xxxx, Xxxx 00000
2/24/04
Xxxxxx X. Xxxxxxx
/s/Xxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxx 00000
52,750
2/24/04
Xxxx Xxxxxx
/s/Xxxx Xxxxxx
0000 X. Xxxxxxxx Xxxxx
Xxxxx, Xxxx 00000
2/25/04
Xxxxxxx Xxxxxx
/s/Xxxxxxx Xxxxxx
0000 X. Xxxxxxxx Xxxxx
Xxxxx, Xxxx 00000
2/24/04
Xxxxx Xxxxxx
/s/Xxxxx Xxxxxx
00 Xxxx Xxxxxx
Xxxxx, Xxxx 00000
February 24th, 2004
Exhibit A
Broker/Dealer Agreement
Atlas Stock Transfer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxx Xxxx
Re: Lock-Up/Leak-Out Agreement respecting the resale of
certain shares of common stock of Chiropractic 21
International, Inc., a Nevada corporation (the
"Company")
Dear Ladies and Gentlemen:
The undersigned broker hereby acknowledges receipt of stock
certificates representing shares of common stock of the Company that are
described in Exhibit A attached hereto and incorporated herein by reference
and owned by a "Shareholder" or "Shareholders" of the Company that are party
to the above referenced Lock-Up/Leak-Out Agreement.
In consideration of transferring these securities free of any
legend or other notation respecting the said Lock-Up/Leak-Out Agreement so
that the undersigned broker can effect a sale of each such Shareholders'
shares, the undersigned broker agrees:
(i) It will sell the securities in accordance with the
instructions of each such Shareholder only, solely in
compliance with the terms and conditions of the Lock-
Up/Leak-Out Agreement;
(ii) That all sales of these securities will be made in
"broker's
transactions" only during the period covered by the Lock-
Up/Leak-Out Agreement;
(iii) That there will be no journal entries or DTC's of any
securities of any Shareholder during the period covered by
the Lock-Up/Leak-Out Agreement;
(iv) That the undersigned broker will not allow any Shareholder
to maintain a "short" position in any of the securities of
the Company during the period of the Lock-Up/Leak-Out
Agreement;
(v) That the undersigned broker will not maintain a "short"
position in any of the securities of the Company during the
period of the Lock-Up/Leak-Out Agreement except for daily
transactions in our trading accounts, which shall all be
covered no later than the end of 21 trading days following
the occurrence of any such "short position"; and
(vi) That if any of the securities of the Company are ordered out
by any Shareholder for delivery prior to the expiration of
the Lock-Up/Leak-Out Agreement, that instructions will be
given to the Company's transfer agent to re-issue the stock
certificates for any such Shareholder with the appropriate
restriction or restrictions as are outlined in the Lock-
Up/Leak-Out Agreement.
The undersigned broker further agrees that we will provide you
with reasonable documentation on your request to verify our compliance with
this Letter Agreement.
Very truly yours,
_____________________________________
Broker/Dealer
_____________________________________
Address
_____________________________________
City, State, Zip
Date: ______________________ By___________________________________
Its___________________________________
Exhibit B
Seller's Resale Agreement
Chiropractic 21, Inc.
0000 Xx. Xxxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Atlas Stock Transfer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxx Xxxx
Dear Ladies and Gentlemen:
The undersigned agrees to effect all sales of shares of common
stock of Stock Certificate No. ______________ representing _______________
shares of common stock of Chiropractic 21 International, Inc. in accordance
with the "manner of sale" requirements of Rule 144 as outlined in Schedule 1
hereto until on or before _____________, 2004.
DATED this ________ day of _____________________, 20___.
Very truly yours,
_____________________________________
Date: ______________________ By___________________________________
Its___________________________________
_____________________________________
Address
_____________________________________
City, State, Zip
SCHEDULE 1
SELLER'S REQUIREMENTS IN "BROKERS' TRANSACTIONS"
RULE 144 "MANNER OF SALE" REQUIREMENTS
The securities shall be sold in "brokers' transactions" within the
meaning of Section 4(4) of the Securities Act or in transactions directly with
a "market maker," as that term is defined in Section 3(a)(38) of the
Securities Exchange Act of 1934, and the person selling the securities shall
not (1) solicit or arrange for the solicitation of orders to buy the
securities in anticipation of or in connection with such transaction, or (2)
make any payment in connection with the offer or sale of the securities to any
person other than the broker who executes the order to sell the securities.
Schedule 1.8.1
Consulting Agreement
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of the ___ day of
February, 2004, by and between Chiropractic 21 International, Inc., a Utah
corporation ("Chiropractic 21"); Xxxxxx Services, Inc., a Utah corporation
("Xxxxxx Services"); and Xxxxx Xxxxxxxxxx, Xxxxxxxx X. Xxxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Xxxxxx
Services' principals and/or employees or consultants, and Xxxxxxx X.
Xxxxxxxxxx, Esq., its legal counsel, who have and will be rendering the
services covered by this Agreement (collectively, the "Consultants").
RECITALS
WHEREAS, Xxxxxx Services is a financial consulting firm that has
substantial expertise in advising private and public companies respecting
business plans, corporate structure, reorganization, acquisitions and mergers,
and has access to all material historical information respecting Chiropractic
21 that would assist Chiropractic 21 in the transition period following the
completion of a planned Agreement and Plan of Reorganization between
Chiropractic 21, visionGATEWAY, Inc., a Nevada corporation ("vision"), and
all of the Vision stockholders and option and warrant holders (collectively,
the "vision Stockholders"); and
WHEREAS, Xxxxxx Services, by and through its Consultants, desires to
render services for and on behalf of Chiropractic 21; and
WHEREAS, Chiropractic 21 desires to engage the services of Xxxxxx
Services, by and through its Consultants, and
WHEREAS, Chiropractic 21 has provided Xxxxxx Services and the
Consultants with access to all material information concerning its
organization, financial condition, management, present and intended business
operations or other available information and has made its directors and
executive officers available to answer questions posed by Xxxxxx Services and
the Consultants regarding such information; and
WHEREAS, Xxxxxx Services and the Consultants are "accredited investors"
as that term in defined under Regulation D of the Securities and Exchange
Commission and have had access to all material information concerning
Chiropractic 21, its organization, financial condition, management, present
and intended business operations and other available information, and have had
the opportunity to ask questions of Chiropractic 21's directors and executive
officers with respect to such information and that all questions posed have
been answered to their complete satisfaction; and
WHEREAS, the parties desire to execute this Agreement to cover
compensation for these services that have and will be rendered by the
Consultants, and which Agreement shall have no affect on any other written
arrangements, written agreements or other written understandings between
Xxxxxx Services, the Consultants and Chiropractic 21 whatsoever;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants hereinafter set forth and the benefits to the parties to be derived
there from, it is hereby agreed as follows:
1. Services and Costs. The Consultants are hereby retained by
Chiropractic 21 to serve as independent Consultants to provide
advice and services to Chiropractic 21 in connection with the
foregoing recitation of services and related non-capital
raising services, to the maximum of an aggregate of 30 hours
during the term hereof, and shall be designated by Xxxxx X. Xxxxxx
of Xxxxxx Services. All direct out of pocket costs incurred by
the Consultants during the terms hereof shall be paid by
Chiropractic 21; provided, however, any individual costs in excess
of $100 shall be first approved by the Chief Executive Officer of
Chiropractic 21. The Consultants agree to provide such services
to Chiropractic 21 as Chiropractic 21 may from time to time
reasonably request, including, without limitation, advice and
services with respect to those matters as to which they have
special competence by reason of their business experience,
knowledge, and abilities. Xxxxxx Services shall make the
Consultants available during reasonable business hours to perform
all services reasonably requested by Chiropractic 21 under this
Agreement, with the exception of Xxxxxx Services' legal counsel,
Xxxxxxx X. Xxxxxxxxxx, Esq., whose services shall only relate to
advice to or for the benefit of Xxxxxx Services in providing the
services covered hereby, and the preparation and filing of the S-8
Registration Statement refered to in Section 3 hereof.
2. Term. This Agreement shall remain in full force and effect for a
period of six months from the Closing of the Agreement and Plan of
Reorganization between Chiropractic 21 and vision.
3. Compensation. Chiropractic 21 shall pay, and Consultants shall
accept, a fee of 300,000 shares of Chiropractic 21 common stock, all
to be issued pursuant to a Registration Statement on Form S-8 to be
filed as soon as practicable following the confirmation that the
reorganized Chiropractic 21 is current in its filings with the
Securities and Exchange Commission, and subject to the
availability of Form S-8 to Chiropractic 21. These shares shall
be issued as follows:
Xxxxx Xxxxxxxxxx 24,000
00000 Xxxxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Xxxxxxxx X. Xxxxxxxx 5,000
00000 Xxxxxxxxx Xxxx Xxxx
Xxxxxx, Xxxx 00000
Xxxxxx X. Xxxxxxx 52,750
0000 Xxxxx Xxxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxxx X. Xxxxxx 52,750
0000 Xxxxx Xxxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxxxx X. Xxxxxx 52,750
0000 Xxxxx Xxxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxx X. Xxxxxx 52,750
0000 Xxxxx X xxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxxxx X. Xxxxxxxxxx, Esq. 60,000
000 Xxxx 000 Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Total: 300,000
4. Independent Contractors. Xxxxxx Services and the Consultants are
retained under the terms of this Agreement as independent
contractors and nothing herein shall be construed as creating an
employer/employee relationship between the parties or their
principals or employees. Xxxxxx Services and the Consultants
shall be solely liable for the payment of any taxes imposed or
arising out of the payment of the compensation to it by
Chiropractic 21 as set forth in this Agreement.
5. Termination for Cause. Chiropractic 21 may not terminate this
Agreement during its term without cause which shall be established
by showing one or more of the following:
x. Xxxxxx Services or the Consultants have materially breached
the terms of this Agreement and, as a result, Chiropractic
21 has suffered damages;
x. Xxxxxx Services or the Consultants, in the determination of
the Board of Directors of Chiropractic 21, have been grossly
negligent in the performance of their duties hereunder;
x. Xxxxxx Services or the Consultants have substantially failed
to perform the duties requested in writing by Chiropractic
21, on action by the Board of Directors, under the terms of
this Agreement after 10 days written notice setting forth
the details of such alleged substantial failure; or
x. Xxxxxx Services or the Consultants have engaged in material,
willful, or gross misconduct in the performance of its
duties hereunder.
No termination under this Section shall have any affect on the
fees that are payable to the Consultants hereunder, and all shares
allocated to each of the Consultants hereunder shall vest and be
payable to the Consultants under this Agreement, without
qualification.
6. Lock-Up/Leak-Out Agreement. Chiropractic 21 is contemplating a
reorganization with vision, and the Shareholders have each agreed
to execute and deliver the Lock-Up/Leak-Out Agreement that is
attached hereto as Exhibit A and incorporated herein by reference
as a condition subsequent to the issuance of the securities of
Chiropractic 21 hereunder, in the event of the closing of this
reorganization.
7. Nondisclosure of Information. Xxxxxx Services and the Consultants
agree that during the term of this Agreement, none will, directly
or indirectly, disclose to any person not authorized by
Chiropractic 21 to receive or use such information, any of
Chiropractic 21's confidential or proprietary data, information,
or techniques, or give to any person not authorized by
Chiropractic 21 to receive it any information that is not
generally known to anyone other than Chiropractic 21 or that is
designated by Chiropractic 21 as "limited," "private,"
"confidential," or otherwise marked to indicate its confidential
nature.
8. Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party.
9. Entire Agreement. Except as indicated in the recitation at the
forefront of this Agreement, this Agreement supersedes any and all
other agreements, oral or written, between the parties with
respect to the subject matter hereof, and no other agreement,
statement or promise relating to the subject matter of this
Agreement which is not contained or referred to herein shall be
valid or binding.
10. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Utah, and
any action brought by any party to this Agreement shall only be
maintained in the federal and state court situated in Salt Lake
County, Utah.
11. Severability. If, and to the extent that, any court of competent
jurisdiction holds any provision of this Agreement to be invalid
or unenforceable, such holding shall in no way affect the validity
of the remainder of this Agreement.
12. Waiver. No failure by any party to insist on the strict
performance of any covenant, duty, agreement, or condition of this
Agreement, or to exercise any right or remedy consequent on a
breach thereof, shall constitute a waiver of any such breach or
any other covenant, agreement, term, or condition.
13. Default. In the event of any default hereunder, the non-
defaulting party shall be entitled to recover reasonable
attorney's fees and related costs in the enforcement
of this Agreement.
14. Current Status of Reports of Chiropractic 21. Following the
closing of the Agreement and Plan of Reorganization between
Chiropractic 21 and vision, Chiropractic 21 shall do everything in
its power and use its best efforts to immediately file all
information with the Securities and Exchange Commission that would
assist the Company in being deemed to be "current" in the filing
of its reports that are required to have been filed by it during
the previous twelve months, without qualification.
CHIROPRACTIC 21 INTERNATIONAL, INC.
Dated: 2/24/04 By/s/Xxxx Xxxxxx
Its X.X.
XXXXXX SERVICES, INC.
Dated: 2/24/04 By/s/Xxxx Xxxxxx
Its President
CONSULTANTS
Dated: 2/24/04 /s/Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxxxx
Dated: 2/24/04 /s/Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Dated: 2/24/04 /s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Dated: 2/25/04 /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Dated: 2/24/04 /s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Dated: 2/24/04 /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Dated: 2/24/04 /s/Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx, Esq.
PAGE>
Schedule 1.9.1
Xxxxxx Services, Inc. Indemnity Agreement
visionGATEWAY, Inc.
00000 Xxxx xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Chiropractic 21 International, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Re: Indemnity Agreement respecting Section 1.9 of the
Agreement and Plan of Reorganization ("Agreement"),
among Chiropractic International, Inc., a Nevada
corporation ("Chiropractic 21"), visionGATEWAY, Inc.,
a Nevada corporation ("vision"), and the stockholders
of vision ("vision Stockholders"), and payment of the
sum of $250,000 to Xxxxxx Services, Inc. ("Xxxxxx
Services")
Gentlemen:
Pursuant to the Agreement, and in consideration of Xxxxxx
Services' indemnification of Chiropractic 21, the vision Stockholders and
vision against any and all past liabilities of any type or nature whatsoever
of Chiropractic 21 existing at the Closing of the Agreement (as defined in the
Agreement), which will include all expenses related to the Agreement, and the
compromise and settlement of any amounts due and owing to Xxxxxx Services for
advances or otherwise that were incurred by Chiropractic 21 in this respect
prior to the Closing of the Agreement and as provided in the Agreement between
Chiropractic 21 and vision, Vision shall pay Xxxxxx Services $250,000 on the
Closing, less the $15,000 paid to legal counsel for Chiropractic 21.
Xxxxxx Services, and/or its employees and consultants, will also
be issued 300,000 shares of the Company's unregistered and "restricted
securities" that are shares of its common stock; provided, however, that all
such shares and any other shares acquired by Xxxxxx Services and/or its
employees or consultants shall be subject to the same Lock-Up/Leak-Out
Agreement that will be executed and delivered by Xxxxxx Services at Closing.
1. Xxxxxx Services hereby agrees to indemnify and hold vision, its
officers, directors, employees and agents and each person, if any,
who controls vision within the meaning of Section 15 of the
Securities Act of 1933, as amended (the "Securities Act") or
Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the stockholders of vision and, following the
Closing, Chiropractic 21 and all of its then officers, directors,
employees and agents and each person, if any, who then controls
Chiropractic 21 within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, harmless from and against
any and all past liabilities of any type or nature whatsoever of
Chiropractic 21 existing at the Closing, which includes all
expenses related to the Agreement (excluding the fees of Xxxxxxx
X. Xxxxxxxxxx, Esq. which vision has previously agreed to and has
paid in advance) and the compromise and settlement of any amounts
due and owing to Xxxxxx Services for advances or otherwise that
were incurred by Chiropractic 21 in this respect prior to the
Closing. This indemnity shall include indemnification for any
breach of warranty, false representation or other action as
provided in the Agreement between Chiropractic 21 and vision.
2. In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant hereto (the
"Indemnified Party"), the Indemnified Party shall promptly notify
the person against whom such indemnity may be sought (the
"Indemnifying Party") in writing. A delay in giving notice shall
only relieve the Indemnifying Party of liability to the extent the
Indemnifying Party suffers actual prejudice because of the delay.
The Indemnifying Party shall have the right, at its option and
expense, to participate in the defense of such a proceeding or
claim, but not to control the defense, negotiation or settlement
thereof, which control shall at all times rest with the
Indemnified Party, unless the proceeding or claim involves only
money damages or relates to a corporate restructuring,
recapitalization or stock issuance prior to the Closing, not an
injunction or other equitable relief, and unless the Indemnifying
Party:
(i) irrevocably acknowledges in writing complete responsibility
for and agrees to indemnify the Indemnified Party; and
(ii) furnishes satisfactory evidence of the financial ability to
indemnify the Indemnified Party;
in which case the Indemnifying Party may assume such control
through counsel of its choice and at its expense, but the
Indemnified Party shall continue to have the right to be
represented, at its own expense, by counsel of its choice in
connection with the defense of such a proceeding or claim. If the
Indemnifying Party does not assume control of the defense of such
a proceeding or claim, (i) the entire defense of the proceeding or
claim by the Indemnified Party, (ii) any settlement made by the
Indemnified Party, and (iii) any judgment entered in the
proceeding or claim shall be deemed to have been consented to by,
and shall be binding on, the Indemnifying Party as fully as though
it alone had assumed the defense thereof and a judgment had been
entered in the proceeding or claim in the amount of such
settlement or judgment, except that the right of the Indemnifying
Party to contest the right of the Indemnified Party to
indemnification under the Agreement with respect to the proceeding
or claim shall not be extinguished. If the Indemnifying Party
does assume control of the defense of such a proceeding or claim,
it will not, without the prior written consent of the Indemnified
Party settle the proceeding or claim or consent to entry of any
judgment relating thereto which does not include as an
unconditional term thereof the giving by the claimant to the
Indemnified Party a release from all liability in respect of the
proceeding or claim. The parties hereto agree to cooperate fully
with each other in connection with the defense, negotiation or
settlement of any such proceeding or claim.
3. The parties agree that all of the representations and warranties
contained herein shall survive the Closing and continue to be
binding regardless of any investigation made at any time by any
party.
4. At any time, and from time to time, each party will execute such
additional instruments and take such action as may be reasonably
requested by the other party to carry out the intent and purposes
of this Agreement.
5. Any failure on the part of any party hereto to comply with any of
its obligations, agreements or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
6. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given if delivered in person or
sent by prepaid first-class registered or certified mail, return
receipt requested, as follows:
If to Xxxxxx Services: 0000 Xxxxx Xxxxxxxx Xx., #000
Xxxx Xxxx Xxxx, Xxxx 00000
If to vision: 00000 Xxxx xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
If to Chiropractic 21: 0000 Xxxxx Xxxxxxxx Xx., #000
Xxxx Xxxx Xxxx, Xxxx 00000
7. This Agreement constitutes the entire agreement between the
parties and supersedes and cancels any other agreement,
representation or communication, whether oral or written, between
the parties hereto relating to the transaction contemplated herein
or the subject matter hereof.
8. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Utah, without giving
effect to principles of conflicts of laws.
9. This Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their successors and assigns.
10. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
11. In the event of default hereunder by either party, the prevailing
party in any proceeding to enforce this Agreement shall be
entitled to recover attorney's fees and costs and such other
damages as may have been caused by the default of the defaulting
party.
XXXXXX SERVICES, INC.
Dated: 2/24/04 By/s/Xxxx X. Xxxxxx
Its President
VISIONGATEWAY, INC.
Dated: 27th February 2004 By/s/Xxxxxx X. Xxxxxx
Its Chairman/President
