EXHIBIT 2.1
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AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into this 12th day of October, 1995 by and between Global Telephone and
Communications, Inc., a Nevada Corporation, (hereinafter referred to as "GTCI"),
and Visual Information Service Corp., an Illinois Corporation, (hereinafter
referred to as "VisCorp") and its Shareholders, as listed on Exhibit A and on
the signatory pages hereafter.
RECITALS:
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A. GTCI desires to acquire all of the issued and outstanding capital stock
of Viscorp and Viscorp desires to exchange all of its shares of VisCorp capital
stock for shares of GTCI authorized but unissued shares of stock as hereinafter
provided.
B. It is the intention of the parties hereto that: (i) GTCI shall acquire
all of the issued and outstanding capital stock of VisCorp in exchange solely
for the number of shares of GTCI authorized but unissued shares of Common Stock,
par value $.01, set forth below (the "Exchange"); (ii) the Exchange shall
qualify as a tax free reorganization under Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended, and related sections thereunder; and (iii) the
Exchange shall qualify as a transaction in securities exempt from registration
or qualification under the Securities Act of 1933, as amended, and under the
applicable securities laws of each state or jurisdiction where the Shareholders
reside.
C. The board of directors of GTCI deem it to be in the best interest of
GTCI and its shareholders to acquire all of the issued and outstanding capital
stock of VisCorp.
D. The board of directors of VisCorp deem it to be in the best interest of
its shareholders to exchange all of the capital stock of VisCorp for shares of
GTCI authorized but unissued shares of common stock, as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
0.0.XXXXXXXX OF SHARES. GTCI and the Shareholders hereby agree that the
Shareholders shall, on the Closing Date (as hereinafter defined), exchange all
of the issued and outstanding shares of the VisCorp capital stock in the ratio
of one (1) share of each VisCorp share for four (4) shares of GTCI stock (the
"Shares") so that if 100% of shares are Exchanged then 17,908,000 number of
shares of Common Stock, $.01 par value of GTCI (the "GTCI Shares") will be
issued as a result of the Exchange. The number of shares of VisCorp capital
stock owned by each Shareholder and the number of shares of Common Stock which
each will receive in Exchange is set forth in Exhibit A hereto.
1.2 DELIVERY OF SHARES. On the Closing Date, the Shareholders will deliver
to GTCI the certificates representing the Shares, duly endorsed (or with
executed stock powers) so as to make GTCI the sole owner thereof.
Simultaneously, GTCI will deliver certificates representing the GTCI Shares to
the Shareholders. The Exchange shall not be effected unless a minimum of eighty
(80 %) percent of VisCorp's outstanding shares of capital stock are delivered to
GTCI on the Closing Date.
1.3 INVESTMENT INTENT. The GTCI Shares have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be resold unless the
GTCI Shares are registered under the Act or an exemption from such registration
is available. The Shareholders represent and warrant that each of them is
acquiring the GTCI Shares for his own account, for investment, and not with a
view to the sale or distribution of the GTCI shares. Each certificate
representing the GTCI Shares will have a legend thereon incorporating language
as follows:
"THE SHARES REPRESENTED BY THE CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT UNLESS
IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, REGISTRATION IS NOT
REQUIRED UNDER THE ACT."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF VISCORP
VisCorp hereby represents and warrants as follows:
2.1 ORGANIZATION AND GOOD STANDING: OWNERSHIP OF SHARES.
VisCorp is a corporation duly organized, validly existing and in good standing
under the laws of the State of Illinois. There are no outstanding
subscriptions, rights, options, warrants or other agreements obligating VisCorp
to issue, sell or transfer any stock
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or other securities of VisCorp except the warrants and options listed on
Schedule 2.1 attached hereto and made a part hereof.
2.2 OWNERSHIP OF SHARES. The Shareholders are the owner of record and
beneficially of 4,477,000 shares of Common Stock of VisCorp, which shares are
free and clear of all rights, claims, liens and encumbrances, and have not been
sold, pledged, assigned or otherwise transferred except pursuant to this
Agreement. The Shares represent all of the outstanding capital stock of
VisCorp.
2.3 FINANCIAL STATEMENTS, BOOKS AND RECORDS. Schedule 2.3 consists of the
audited financial statements of VisCorp as at December 31, 1994 and the
unaudited as at August 31, 1995 (the "Financial Statements"). The Financial
Statements fairly represent the financial position of VisCorp as at such date
and the results of their operations for the periods then ended. The Financial
Statements were prepared in accordance with generally accepted accounting
principles applied on a consistent basis with prior periods except as otherwise
stated therein. The books of account and other financial records of VisCorp are
in all respects complete and correct in all material respects and are maintained
in accordance with good business and accounting practices.
2.4 NO MATERIAL ADVERSE CHANGES. Since the date of the Balance Sheet
there has not been:
(i) Since December 31, 1994, there has not been any material adverse
changes in the financial position of VisCorp except changes arising in the
ordinary course of business, which changes will in no event materially and
adversely affect the financial position of VisCorp;
(ii) any damage, destruction or loss materially affecting the assets
prospective business, operations or condition (financial or otherwise) of
VisCorp whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of VisCorp's capital
stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by VisCorp of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
2.5 TAXES. VisCorp by the Closing Date, will have filed all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed and has (or will
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have) paid or made adequate provisions for all taxes or assessments which have
become due as of the Closing Date.
2.6 COMPLIANCE WITH LAWS. VisCorp has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of VisCorp.
2.7 NO BREACH. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of VisCorp;
(ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which VisCorp is a party or by or to which it or any of its assets or properties
may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding upon,
VisCorp or upon the properties or business of VisCorp; or
(iv) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein which could have a materially
adverse effect on the business or operations of VisCorp.
2.8 ACTIONS AND PROCEEDINGS. VisCorp is not a party to any material
pending litigation or, to its knowledge, and governmental investigation or
proceeding not reflected in the VisCorp Financial Statements, and to its best
knowledge, no material litigation, claims, assessments or any governmental
proceedings are threatened against VisCorp except for one lawsuit, (including
the status thereof) set forth on Schedule 2.8 attached hereto and made a part
hereof.
2.9 AGREEMENTS. Schedule 2.9 sets forth any material contract or
arrangement to which VisCorp is a party or by or to which it or its assets,
properties or business are bound or subject, whether written or oral.
2.10 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
VisCorp in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by VisCorp or any of
its Shareholders except appearing
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on Schedule 2.10 and 3.14 as one Schedule attached hereto and made apart hereof.
2.11 REAL ESTATE. Except as set forth on Schedule 2.11, VisCorp owns no
real property or is a party to any leasehold agreement.
2.12 TANGIBLE ASSETS. VisCorp has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, projects,
owned or leased by VisCorp, any related capitalized items or other tangible
property material to the business of VisCorp (the "Tangible Assets"). VisCorp
holds all rights, title and interest in all the Tangible Assets owned by it on
the Balance Sheet or acquired by it after the date on the Balance Sheet free and
clear of all liens, pledges, mortgages, security interests, conditional sales
contracts or any other encumbrances. All of the Tangible Assets are in good
operating condition and repair and are usable in the ordinary course of business
of VisCorp and conform to all applicable laws, ordinances and government orders,
rules and regulations relating to their construction and operation.
2.13 LIABILITIES. VisCorp did not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any governmental charge
or lawsuit (all of the foregoing collectively defined to as "Liabilities"),
which are not fully, fairly and adequately reflected on the Financial Statement
except for a specific Liabilities set forth on Schedule 2.13 attached hereto and
made a part hereof. As of the Closing Date, VisCorp will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Financial Statements except for Liabilities incurred in the ordinary course of
business. To the best knowledge of the Shareholders, there is no circumstance,
condition, event or arrangement which may hereafter give rise to any Liabilities
not in the ordinary course of business.
2.14 OPERATIONS OF VISCORP. From the date of the Financial Statements
through the Closing Date hereof VisCorp has not and will not have:
(i) incurred any indebtedness or borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
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(iii) made any loan or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loan or
advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or assumed
any indebtedness or liability (whether or not currently due and payable);
(v) disposed of any assets of VisCorp except in the ordinary course
of business;
(vi) materially increased the annual level of compensation of any
executive employee of VisCorp;
(vii) increased, terminated, amended or otherwise modified any plan
for the benefit of employees of VisCorp.
(viii)issued any equity securities or rights to acquire such equity
securities; or
(ix) except in the ordinary course of business, entered into or
modified any contract, agreement or transaction.
2.15 CAPITALIZATION. The authorized capital stock of VisCorp consists of
10,000,000 shares of common stock of which 4,477,000 shares are presently issued
and outstanding. VisCorp has not granted, issued or agreed to grant, issue or
make any warrants, options, subscription rights or any other commitments of any
character relating to the issued or unissued shares of capital stock of VisCorp
except for the warrants and options set forth on Schedule 2.1 attached hereto
and made a part hereof.
2.16 FULL DISCLOSURE. No representation or warranty by VisCorp in this
Agreement or in any document or schedule to be delivered by them pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished GTCI pursuant hereto or in connection with the negotiation, execution
or performance of this Agreement contains or will contain any untrue statement
of a material fact or omits or will omit to state any fact necessary to make any
statement herein or therein not materially misleading or necessary to complete
and correct presentation of all material aspects of the business of VisCorp.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF GTCI
3.1 ORGANIZATION AND GOOD STANDING. GTCI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada. It
has the corporate power to own its own property and to carry on its business as
now being conducted and is duly qualified to do business in any jurisdiction
where so
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required except where the failure to so qualify would have no material negative
impact.
3.2 CORPORATE AUTHORITY. GTCI have the corporate power to enter into this
Agreement and to perform their respective obligations hereunder. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of GTCI
breach of any agreement, indenture, mortgage, license or other instrument or
document to which GTCI is a party and will not violate any judgment, decree,
order, writ, rule, statute, or regulation applicable to GTCI or its properties.
The execution and performance of this Agreement will not violate or conflict
with any provision of the respective Articles of Incorporation or by-laws of
GTCI.
3.3 THE GTCI SHARES. As of the Closing Date, the GTCI shareholders are
the owners of 970,000 shares of GTCI Common Stock, par value $.01, which shares
are free and clear of all rights, claims, liens and encumbrances and have not
been sold, pledged, assigned or otherwise transferred. There are no outstanding
warrants, issued stock options, stock rights or other commitments of any
character relating to the issued or unissued shares of capital stock of GTCI.
The GTCI shares represent all of the outstanding capital stock of GTCI.
At the Closing, the GTCI Shares to be issued and delivered to the VisCorp
Shareholders hereunder will when so issued and delivered, constitute valid and
legally issued shares of GTCI capital stock, fully-paid and nonassessable.
3.4 FINANCIAL STATEMENT: BOOKS AND RECORDS. Schedule 3.4 consists of the
audited financial statements of GTCI at December 31, 1994 and 1993 and the
unaudited as at August 31, 1995 and the related unaudited statements of
operations for the periods then ended (collectively the "Financial Statements").
The Financial Statements fairly represent the consolidated financial position of
GTCI as at such date and the results of their operations for the periods then
ended. The Financial Statements were prepared in accordance with generally
accepted accounting principles applied on a consistent basis with prior periods
except as otherwise stated therein. The books of account and other financial
records of GTCI are in all respects complete and correct in all material
respects and are maintained in accordance with good business and accounting
practices.
3.5 NO MATERIAL ADVERSE CHANGES.
(i) Since August 31, 1995 there has not been any material adverse
changes in the financial position of GTCI except changes arising in the ordinary
course of business, which changes will in no event materially and adversely
affect the financial
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position of GTCI.
(ii) any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of
VisCorp whether or not covered by insurance;
(iii) any declaration setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of GTCI capital stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage pledge by GTCI of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
3.6 TAXES. GTCI has (or by the Closing Date, will have filed) all
material tax, governmental and/or related forms and reports (or extensions
thereof) due or required to be filed and has (or will have) paid or made
adequate provisions for all taxes or assessments which have become due as of the
Closing Date.
3.7 COMPLIANCE WITH LAWS. GTCI has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, which, if not
complied with, would materially and adversely affect the business of GTCI or the
trading market for the GTCI Shares and specifically, GTCI complied with
provisions for registration under the Securities Act of 1933 and all applicable
blue sky laws in connection with its public stock offering and there are no
outstanding, pending or threatened stop orders or other actions or
investigations relating thereto.
3.8 ACTIONS AND PROCEEDINGS. GTCI is not a party to any material pending
litigation or, to its knowledge, any governmental proceedings are threatened
against GTCI.
3.9 PERIODIC REPORTS. GTCI has delivered to VisCorp true and complete
copies of its Rule 211 report pursuant to SEC Rule 15c2-11 (a) 5 under the
Securities Exchange Act of 1934, as amended. As of their respective dates, such
reports and statements did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstance under which they were
made, not misleading. GTCI has no subsidiaries.
3.10 DISCLOSURE. GTCI has (and at the Closing it will have) disclosed in
writing all events, conditions and facts materially affecting the business,
financial conditions or results of
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operation of GTCI. GTCI has not now and will not have, at the Closing, withheld
disclosure of any such events, conditions, and facts which they have knowledge
of or have reasonable grounds to know may exits.
3.11 CAPITALIZATION. The authorized Capital Stock of GTCI consists of
25,000,000 shares of common stock of which 970,000 shares of GTCI Common Stock
are issued and outstanding.
3.12 ACCESS TO RECORDS. The corporate financial records, minute books, and
other documents and records of GTCI have been made available to VisCorp prior to
the closing hereof.
3.13 NO BREACH. The execution, delivery and performance of this of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of GTCI;
(ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which GTCI is a party or by or to which it or any of its assets or properties
may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding upon,
GTCI or upon the securities, properties or business to GTCI; or
(iv) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein.
3.14 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
GTCI in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions of GTCI except
appearing of Schedule 2.10 and 3.14 as one Schedule attached hereto and made a
part hereof.
3.15 OTC BULLETIN BOARD. GTCI shares are listed on the OTC Bulletin Board
under the symbol "GTCI.OB". No representation is being made by GTCI of any
trading of the shares of GTCI. At the Closing Date, GTCI's Rule 15c2-11
documentation as discussed above shall have been updated and shall be current in
all material respects.
3.16 AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. GTCI has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to
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perform fully its obligations hereunder. This Agreement has been duly executed
and delivered and is the valid and binding obligation of GTCI enforceable in
accordance with its terms, except as may be limited by bankruptcy, moratorium,
insolvency or other similar laws generally affecting the enforcement of
creditors' rights. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and the performance by GTCI
of this Agreement, in accordance with its respective terms and conditions will
not:
(i) require the approval or consent of any governmental or
regulatory body or the approval or consent of any other person;
(ii) conflict with or result in any breach or violation of any of the
terms and conditions of, or constitute (or with any notice or lapse of time or
both would constitute) a default under, any order, judgment or decree applicable
to GTCI, or any instrument, contract or other agreement to which GTCI is a party
or by or to which GTCI is bound or subject; or
(iii) result in the creation of any lien or other encumbrance on the
assets or properties of GTCI
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF VISCORP. All obligations of
VisCorp under this Agreement are subject to the fulfillment, prior to or as of
the Closing Date, as indicated below, of each of the following conditions:
(a) The representations and warranties by or on behalf of GTCI
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of
Closing Date as though such representations and warranties were made at and as
of such time.
(b) GTCI shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by them prior to or at the Closing.
(c) On or before the Closing, the Board of Directors of GTCI shall
have approved in accordance with Nevada law the execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated herein and authorizing all of the necessary and proper action to
enable GTCI to comply with the terms of the Agreement including the election of
VisCorp's nominees to the Board of Directors of GTCI.
(d) The Exchange shall be permitted by Nevada law and
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GTCI shall have sufficient shares of GTCI's capital stock authorized to complete
the Exchange.
(e) On the Closing Date, the Board of Directors shall include persons
designated by VisCorp. Xxx X. Xxxxxx, and Xxxxx Xxxxxxxxxxx, shall resign as an
officer, director (and any other persons) shall resign as officers and directors
of GTCI.
(f) At the Closing, all instruments and documents delivered to
VisCorp Shareholders pursuant to provisions hereof shall be reasonably
satisfactory to legal counsel for VisCorp.
(h) At the Closing, GTCI shall have delivered to VisCorp an opinion
of counsel dated as of the Closing to the effect that:
(i) GTCI is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada;
(ii) This Agreement has been duly authorized executed and
delivered by GTCI and is a valid and binding obligation of GTCI
enforceable in accordance with its terms;
(iii) GTCI through its Board of Directors have taken all
corporate action necessary for performance under this Agreement;
(iv) The documents executed and delivered to VisCorp and
the VisCorp Shareholders hereunder are valid and binding in accordance
with their terms and vest in VisCorp any Notices of Notes, Warrants
and Options if any the case may be, all right, title and interest in
and to the shares of GTCI shares to be issued pursuant to section 1.1
hereof, and such shares of capital stock issued will be duly and
validly issued, fully-paid and nonassessable; and
(v) GTCI has the corporate power to execute, deliver and perform
under this Agreement.
(i) The shares of restricted GTCI capital stock to be issued to
VisCorp Shareholders at Closing will be validly issued, nonassessable and
full-paid under Nevada corporation law and will be issued in a non-public
offering and isolated transaction in compliance with all federal and state
securities laws, bearing a restrictive legend, as is more fully set forth above.
4.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF GTCI. All obligations of
GTCI under this Agreement are subject to the fulfillment, prior to or at
Closing, of each of the following conditions:
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(a) The representations and warranties by VisCorp and its
shareholders, contained in this Agreement or in any certificate or document
delivered pursuant to the provisions hereof shall be true in all material
respects at and as of the Closing as though such representations and warranties
were made at and as of such time;
(b) VisCorp shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by them prior to or at the Closing;
(c) VisCorp shall deliver on behalf of its shareholders to GTCI a
letter commonly known as an "Investment Letter," or investment representations
acknowledging that the shares of GTCI Common Stock are being acquired for
investment purposes.
(d) VisCorp shall deliver an opinion of its legal counsel to the
effect that:
(i) VisCorp is a corporation duly organized validly
existing and in good standing under the laws of the State of Illinois
and is duly qualified to do business in any jurisdiction where so
required except where the failure to so qualify would have no material
adverse impact on the company;
(ii) VisCorp has the corporate power to carry on its business
as now being conducted; and
(iii) This Agreement has been duly authorized, executed
and delivered by VisCorp.
SECTION 5. COVENANTS
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing Date,
the parties acknowledge that they have been entitled, through their employees
and representatives, to make such investigation of the assets, properties,
business and operations, books, records and financial condition of the other as
they each may reasonably require. No investigations, by a party hereto shall,
however, diminish or waive in any of the representations, warranties, covenants
or agreements of the party under this Agreement.
5.2 EXPENSES. Each party hereto agrees to pay its own costs and expenses
incurred in negotiating this Agreement and consummating the transactions
described herein.
5.3 FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof
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and the transactions contemplated hereby. Each such party shall use its best
efforts to fulfill or obtain the fulfillment of the conditions to the Closing,
including, without limitation, the execution and delivery of any documents or
other papers, the execution and delivery of which are necessary or appropriate
to the Closing.
5.4 CONFIDENTIALITY. In the event the transactions contemplated by this
Agreement are not consummated, GTCI, VisCorp and the Shareholders agree to keep
confidential any information disclosed to each other in connection therewith for
a period of two (2) years from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of the disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge (except
due to the action of the receiving party); or
(iii) the receiving party had within its possession at the time of
disclosure.
5.5 STOCK CERTIFICATES. At the Closing, the Shareholders shall have
delivered the certificates representing the Shares duly endorsed (or with
executed stock powers) so as to make GTCI the sole owner thereof. At such
Closing, GTCI shall issue to the Shareholders the GTCI Shares.
5.6 INVESTMENT LETTERS. The Shareholders shall have delivered to GTCI an
"Investment Letter" agreeing that the shares are being acquired for investment
purposes only and not with the view to public resale or distribution.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF GTCI
Notwithstanding any right of VisCorp and the Shareholders fully to
investigate the affairs of GTCI, the Shareholders have the right to rely fully
upon the representations, warranties, covenants and agreements of GTCI contained
in this Agreement or in any document delivered to VisCorp and the Shareholders
by GTCI or any of their representatives, in connection with the transactions
contemplated by this Agreement. All such representations, warranties, covenants
and agreements shall survive the execution and delivery hereof and the Closing
hereunder for twelve (12) months following the Closing.
SECTION 7. INDEMNIFICATION
For a period of two (2) years from the Closing, GTCI agrees to indemnify
and hold harmless VisCorp, and VisCorp agrees to indemnify and hold harmless
GTCI, at all times after the date of
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this Agreement against and in respect of any judgments, costs and expenses
including attorney's fees incident to any of the foregoing, resulting from any
material misrepresentations made by an indemnifying party to an indemnified
party, an indemnifying party's breach of covenant or warranty or an indemnifying
party's nonfulfillment of any agreement hereunder, or from any material
misrepresentation in or omission from any certificate furnished or to be
furnished hereunder.
SECTION 8. DOCUMENTS AT CLOSING
At the Closing, the following transactions shall occur, all of such
transactions being deemed to occur simultaneously:
(a) VisCorp will deliver, or will cause to be delivered, to GTCI the
following:
(i) a certificate executed by the President and Secretary
of VisCorp to the effect that all representations and warranties made
by VisCorp under this Agreement are true and correct as of the
Closing, the same as though originally given to GTCI on said date;
(ii) a certificate from the State of Illinois dated at or about
the Closing to the effect that VisCorp is in good standing under the
laws of said State;
(iii) Investment Letters or investment representations in the
form executed by each VisCorp Shareholder;
(iv) Stock certificates representing those shares of VisCorp
Shares to be exchanged for GTCI;
(v) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this
Agreement;
(b) GTCI will deliver or cause to be delivered to VisCorp and
the VisCorp Shareholders:
(i) stock certificates representing those shares of GTCI Shares
to be issued as a part of the Exchange as described in Section 1
hereof;
(ii) a certificate of the President/Secretary of GTCI, to the
effect that all representations and warranties of GTCI made under this
Agreement are true and correct as of the Closing, the same as though
originally given to VisCorp on said date;
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(iii) certified copies of resolutions by GTCI's Board of
Directors authorizing this transaction;
(iv) certificates from the Nevada Secretary of State dated at or
about the Closing Date that GTCI is in good standing under the laws of
said State;
(v) opinion of GTCI's counsel as described in Section 4.1 (h)
above;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignations of existing officers and directors of GTCI, as
set forth in the Agreement;
(viii)all other items, the delivery of which is a condition
precedent to the obligations of GTCI, as set forth in Section 4
hereof.
SECTION 8. THE CLOSING.
The Closing shall take place simultaneously with the execution of this
Agreement or at such other later time or place as may be agreed upon by the
parties hereto. At the Closing, the parties shall provide each other with such
documents as may be necessary or appropriate in order to consummate the
transactions contemplated hereby including evidence of due authorization of the
Agreement and the transactions contemplated hereby.
SECTION 9. MISCELLANEOUS
9.1 WAIVERS. The waiver of a breach of this Agreement or the failure of
any party hereto to exercise any right under this Agreement shall in no way
constitute waiver as to future breach whether similar or dissimilar in nature or
as to the exercise of any further right under this Agreement.
9.2 AMENDMENT. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
9.3 ASSIGNMENT. This Agreement is not assignable except by operation of
law.
9.4 NOTICE Until otherwise specified in writing, the mailing addresses of
both parties of this Agreement shall be as follows:
VisCorp 0000 X. Xxxxxxx Xxxxx - Xxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxxx
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Chairman
Shareholders: c/o Xxxxxxxx Xxxxxxx, Esquire
000 Xxxxx Xxxxxx Xxxxx -
Xxxxx 000
Xxxxxxx, XX 00000
GTCI Global Telephone and
0000 Xxxxxxxx Xxx
Xxxxxx, Xxxxxx 00000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
9.5 GOVERNING LAW. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Illinois, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
9.6 ARBITRATION.
(a) All disputes and differences arising in connection with or
relating to the provisions of this Agreement, including what constitutes a
dispute or difference, shall be settled and finally determined by arbitration
unless agreement in writing has been reached between the parties within ninety
(90) days after either party shall have given written notice to the other party
of the existence of a dispute or difference which it desires to have arbitrated.
Such notice shall state the point or points in dispute.
(b) Arbitration shall be conducted in accordance with the rules
of the American Arbitration Association by three (3) arbitrators, one of whom
shall be selected by the Seller, one by GTCI and a Chairman of the Arbitration
Court selected by the two arbitrators so selected. The applicable law shall be
as provided above. Each party shall notify the other party of the arbitrator
selected by it within sixty (60) days of the giving of written notice referred
to above. In the event that the two arbitrators selected by the parties are
unable to reach agreement as to the third arbitrator, the third arbitrator shall
be selected by the American Arbitration Association. Arbitration shall be held
in the jurisdiction of the party against which or whom the arbitration is
instituted. Each party shall be given the opportunity to present to the
arbitrators its evidence, witnesses and arguments, and the right to be
represented by counsel of its selection when the other party be represented by
counsel, of its selection when the other party presents its evidence, witnesses
and arguments. In the event
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one of the parties shall fail, after reasonable notice, to appear and
participate in the arbitration proceedings as normally interpreted by the
above-mentioned rules, the arbitrators shall be entitled to make their decision
and award on the basis of evidence, witnesses and arguments presented by the
party appearing.
(c) The decision and the award of the arbitrators shall be in writing
and shall be final and binding upon the parties hereto. Judgment upon the award
rendered my be entered in any court having jurisdiction thereof, or application
may be made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The expenses of arbitration shall be borne in
accordance with the determination of the arbitrators with respect thereto.
Pending decision by the arbitrators with respect to the dispute or difference
undergoing arbitration, all other obligations of the parties hereto shall
continue as stipulated herein, and all monies not directly involved in such
dispute or difference shall be paid when due.
9.7 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance by the other party.
9.8 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase and issuance of the
Shares and the GTCI Shares and related transactions, and supersede all prior
agreements, written or oral, with respect thereto.
9.9 HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way effect the meaning or interpretation of this
Agreement.
9.10 SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or the
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
9.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
9.12 BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
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9.13 TIME. Time is of the essence.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
Global Telephone and Communications, Inc.
By:
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Visual Information Service Corp.
By:
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SHAREHOLDERS
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Xxxxxx X. Xxxxxxxxx
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Xxxxx Xxxxxxxxx
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Xxxxxxx X. Xxxx
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SHAREHOLDERS (cont.)
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SHAREHOLDERS (cont.)
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