EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of this 20th day of June, 1997 by and between VISCORP, a Nevada
corporation, (hereinafter referred to as "VISCORP"), and SKYSITE COMMUNICATIONS
CORPORATION, a Delaware corporation, (hereinafter referred to as "SKYSITE") and
the holders of all of the outstanding shares of SKYSITE (the "Shareholders"), as
listed on Exhibit A and on the signatory pages hereafter.
RECITALS:
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A. VISCORP desires to acquire all of the issues and outstanding capital
stock of SKYSITE and the Shareholders of SKYSITE desire to exchange all of
their shares of SKYSITE capital stock for shares of VISCORP authorized but
unissued shares of stock as hereinafter provided.
B. It is the intention of the parties hereto that: (i) VISCORP shall
acquire all of the issued and outstanding capital stock of SKYSITE in exchange
solely for the number of shares of VISCORP authorized but unissued shares of
Common Stock, par value $.01 ("Common Stock"), 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 VISCORP deem it to be in the best interest of
VISCORP and its shareholders to acquire all of the issued and outstanding
capital stock of SKYSITE.
D. The board of directors of SKYSITE deem it to be in the best interest of
its shareholders to exchange all of the capital stock of SKYSITE for shares of
VISCORP 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
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1.1 Exchange of Shares. VISCORP and the Shareholders of SKYSITE hereby
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agree that the Shareholders shall, on the Closing Date (as hereinafter defined),
exchange all of the issued and outstanding shares of SKYSITE into 2 groups of
shareholders as follows: (a) 510,000 shares of Common Stock proportionately to
all the SKYSITE shareholders, except Xxx X. Xxxxxx, Xx.
("Xxxxxx"), and (b) 240,000 shares of Common Stock to Xxxxxx, (together referred
to as the "Shares"). As further consideration to certain SKYSITE Shareholders
the parties hereto agree that the ones listed on Exhibit A who shall be entitled
to certain options to purchase a maximum of 500,000 shares of VISCORP Common
Stock at 40c per share for a period of 3 years from the Closing Date (the
"Options"). The number of shares of SKYSITE capital stock owned by each
Shareholder and the number of shares of VISCORP Common Stock and Options which
each will receive in the Exchange are set forth in Exhibit A hereto.
1.2 Delivery of Shares. On the Closing Date, the Shareholders will deliver
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to VISCORP the certificates representing the Shares, duly endorsed (or with
executed stock powers) so as to make VISCORP the sole owner thereof.
Simultaneously, VISCORP will deliver certificates representing the VISCORP
Shares to the Shareholders subject to certain conditions as set forth in Section
8 of this Agreement or in escrow with VISCORP. The Exchange shall not be
effected unless a minimum of ninety (90%) percent of SKYSITE's outstanding
shares of capital stock are delivered to VISCORP on the Closing Date (as is more
fully set forth in Section 8 of this Agreement).
1.3 Investment Intent. The VISCORP Shares have not been registered under
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the Securities Act of 1933, as amended (the "Act"), and may not be resold unless
the VISCORP 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 VISCORP Shares for his own account, for investment, and
not with a view to the sale or distribution of the VISCORP shares. Each
certificate representing the VISCORP Shares will have a legend thereon
incorporating language or substantially similar 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 SKYSITE
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SKYSITE hereby represents and warrants as follows:
2.1 Organization and Good Standing: Ownership of Shares.
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SKYSITE is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. There are no outstanding subscriptions,
rights, options, warrants or other agreements obligating SKYSITE to issue, sell
or transfer any stock or other securities of SKYSITE except the warrants and
options listed on Schedule 2.1 attached hereto and made a part hereof.
2.2 Corporate Authority. SKYSITE has the corporate power to enter into this
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Agreement and to perform its respective obligations hereunder. The execution and
delivery of this
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Agreement and the consummation of the transaction contemplated hereby have been
duly authorized by the Board of Directors of SKYSITE. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
SKYSITE is a party and will not violate any judgment, decree, order, writ, rule,
statute, or regulation applicable to SKYSITE or its properties. The execution
and performance of this Agreement will not violate or conflict with any
provision of the respective Certificate of Incorporation or by-laws of SKYSITE.
2.3 Ownership of Shares. The Shareholders are the owner of record and
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beneficially of all of the issued and outstanding shares of capital stock of
SKYSITE, 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 SKYSITE.
2.4 Financial Statements, Books and Records. Schedule 2.4 consists of the
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unaudited financial statements of SKYSITE as of April 30, 1997 and for all
previous fiscal years prior thereto from the beginning of SKYSITE (the
"Financial Statements"). The Financial Statements fairly represent the financial
position of SKYSITE as at such dates 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 SKYSITE are in all respects complete and correct in all
material respects and are maintained in accordance with good business and
accounting practices.
2.5 Access to Records. The corporate financial records, minute books and
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other documents and records of SKYSITE have been made available to VISCORP prior
to the Closing hereof.
2.6 No Material Adverse Changes. Since the date of the Financial Statements
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there has not been:
(i) any material adverse change in the financial position of SKYSITE
except changes arising in the ordinary course of business, which changes
will in no event materially and adversely affect the financial position of
SKYSITE;
(ii) any damage, destruction or loss materially affecting the assets
prospective business, operations or condition (financial or otherwise) of
SKYSITE 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 SKYSITE's
capital stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by SKYSITE of any properties or
assets; or
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(v) adoption of any pension, profit sharing, retirement, stock bonus,
stock option or similar plan or arrangement.
2.7 Taxes. SKYSITE as of April 30, 1997, had filed or will timely file all
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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 had become due as of
April 30, 1997.
2.8 Compliance with Laws. SKYSITE has complied with all federal, state,
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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 SKYSITE.
2.9 No Breach. The execution, delivery and performance of this Agreement
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and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Certificate of Incorporation or
By-Laws of SKYSITE;
(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 SKYSITE 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, SKYSITE or upon the properties or business of SKYSITE; 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 SKYSITE.
2.10 Actions and Proceedings. SKYSITE is not a party to any material
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pending litigation or, to its knowledge, any governmental investigation or
proceeding not reflected in the SKYSITE Financial Statements, and to its best
knowledge, no material litigation, claims, assessments or any governmental
proceedings are threatened against SKYSITE except as set forth on Schedule
2.10 attached hereto and made a part hereof.
2.11 Agreements. Schedule 2.11 sets forth any material contract or
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arrangement to which SKYSITE is a party or by or to which it or its assets,
properties or business are bound or subject, whether written or oral.
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2.12 Brokers or Finders. No broker's or finder's fee will be payable by
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SKYSITE in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by SKYSITE or any of
its Shareholders except appearing on Schedule 2.12 and 3.14 as one Schedule
attached hereto and made a part hereof.
2.13 Real Estate. Except as set forth on Schedule 2.13, SKYSITE owns no
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real property nor is a party to any leasehold agreement.
2.14 Tangible Assets. SKYSITE has full title and interest in all machinery,
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equipment, furniture, leasehold improvements, fixtures, projects, owned or
leased by SKYSITE, any related capitalized items or other tangible property
material to the business of SKYSITE (the "Tangible Assets"). SKYSITE 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
SKYSITE and conform to all applicable laws, ordinances and government orders,
rules and regulations relating to their construction and operation, except as
set forth on Schedule 2.14 hereto.
2.15 Liabilities. SKYSITE did not have any direct or indirect indebtedness,
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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 2.15 attached hereto and made a part hereof.
As of April 30, 1997, SKYSITE 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.
2.16 Operations of SKYSITE. From the date of the Financial Statements
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through April 30, 1997, hereof SKYSITE 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 acquisitions of any shares in its
capital stock;
(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.
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(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 SKYSITE except in the ordinary course
of business;
(vi) materially increased the annual level of compensation of any
executive employee of SKYSITE;
(vii) increased, terminated, amended or otherwise modified any plan
for the benefit of employees of SKYSITE.
(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 contact, agreement or transaction.
2.17 Capitalization. The authorized capital stock of SKYSITE consists of
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3,000 shares of common stock, no par value, of which 1,000 shares are presently
issued and outstanding. SKYSITE 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 SKYSITE except for the warrants and options set forth on
Schedule 2.1 attached hereto and made a part hereof. SKYSITE has no subsidiaries
or other entities except as listed on Schedule 2.17 attached hereto, setting
forth the shares or percentage interest owned by SKYSITE.
2.18 Private Placement of VISCORP Common Stock.
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(a) The Shareholders have agreed to assist VISCORP in a Private
Placement ("Private Placement") of a certain number of shares of Common Stock of
VISCORP, so as to raise a minimum of $100,000 plus the costs and expenses of
said Private Placement.
(b) The parties agree that one of the purposes of the Private
Placement would be for VISCORP to raise funds of at least $100,000 plus all
costs and expenses of the Private Placement. VISCORP agrees to apply the first
net proceeds of $100,000 so raised, to replace a security deposit of
certain collateral of shares provided by certain of SKYSITE Shareholders to
American Mobile Satellite Corporation ("AMSC"). SKYSITE and its Shareholders
agree that VISCORP has made no assurance that such funds will be raised from the
Private Placement.
2.19 Full Disclosure. No representation or warranty by SKYSITE in this
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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 SKYSITE 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
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statement herein or therein not materially misleading or necessary to a complete
and correct presentation of all material aspects of the business of SKYSITE.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF VISCORP
----------------------------------------------------
VISCORP hereby represents and warrants as follows:
3.1 Organization and Good Standing. VISCORP is a corporation duly
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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 required except where the failure to so qualify would have
no material negative impact.
3.2 Corporate Authority. VISCORP has the corporate power to enter into this
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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
VISCORP. The execution and performance of this Agreement will not constitute a
material breach of any agreement, indenture, mortgage, license or other
instrument or document to which VISCORP is a party and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to
VISCORP 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 VISCORP.
3.3 The VISCORP Shares. As of the Closing Date, there are approximately 130
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shareholders of record that are the owners of 22,178,000 shares of VISCORP
Common Stock, and 2,031,832 shares of Preferred Stock, none of whom owns in
excess of 5% of the issued and outstanding shares, except as may be set forth on
Schedule 3.3 attached hereto and made a part hereof. There are outstanding
warrants, issued stock options, stock rights or other commitments of any
character relating to the issued or unissued shares of capital stock both Common
Stock and Preferred Stock of VISCORP all of which are set forth on Schedule 3.3
attached hereto. The VISCORP shares on said schedule 3.3 represent all of the
outstanding capital stock of VISCORP.
At the Closing, the VISCORP Shares to be issued and delivered to the
SKYSITE Shareholders hereunder will when so issued and delivered, constitute
valid and legally issued shares of VISCORP Common Stock, fully paid and
nonassessable.
3.4 Financial Statement: Books and Records. Schedule 3.4 consists of the
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audited financial statements of VISCORP for the fiscal year ended December 31,
1996 and interim unaudited financial statements ended at March 31, 1997
(collectively 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
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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.
3.5 No Material Adverse Changes.
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Since the dates of the interim unaudited financial statements on Schedule
3.4;
(i) 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 and the past audit for the fiscal year
ended December 31, 1996 will be consistent with the representations made by
Xxxxxxxx Xxxxxxx Xxxxxxxxxxx, LLP to 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
capital stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage 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.
3.6 Taxes. VISCORP has (or by the Closing Date, will have filed) all
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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. VISCORP has complied with all federal, state,
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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 or
the trading market for the VISCORP Shares and specifically, and to the best of
its knowledge VISCORP 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. VISCORP is not a party to any material
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pending litigation or, to its knowledge, any governmental proceedings are
threatened against VISCORP, except as set forth on Schedule 3.8 attached hereto
and made a part hereof.
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3.9 Periodic Reports. VISCORP has delivered to SKYSITE true and complete
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copies of Forms 10-K and 10-Q report pursuant to SEC Rules and Regulations for
reporting companies 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. VISCORP presently has
one subsidiary (incorporated in Illinois). Schedule 3.9 sets forth all of the
documentation of such reports VISCORP has delivered to SKYSITE.
3.10 Disclosure. VISCORP has (and at the Closing it will have) disclosed in
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writing all events, conditions and facts materially affecting the business,
financial conditions or results of operation of VISCORP all of which have been
set forth herein. VISCORP has not now and will not have, at the Closing,
withhold 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 VISCORP consists of
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50,000,000 shares of Common Stock of which 22,128,000 shares of Common Stock are
issued and outstanding and has authorized 10,000,000 shares of Preferred Stock,
par value $.01 per share, of which 2,031,832 shares are issued and outstanding.
3.12 Access to Records. The corporate financial records, minute books, and
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other documents and records of VISCORP have been made available to SKYSITE prior
to the Closing hereof.
3.13 No Breach. The execution, delivery and performance of this of this
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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 securities, properties or business to VISCORP; or
(iv) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein.
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3.14 Brokers or Finders. No broker's or finder's fee will be payable by
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VISCORP in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions of VISCORP except
appearing of Schedule 2.12 and 3.14 as one Schedule attached hereto and made a
part hereof.
3.15 OTC Bulletin Board. VISCORP shares are listed on the OTC Bulletin
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Board under the symbol "VICP". No representation is being made by VISCORP of any
trading of the shares of VISCORP. At the Closing Date, VISCORP's Rule 15c2-11
documentation and reports required to be filed with the SEC as discussed above
shall have been updated and shall be current in all material respects, except as
may appear on Schedule 3.15, attached hereto which exceptions shall be permitted
only by the written consent of SKYSITE.
3.16 Authority to Execute and Perform Agreements. VISCORP has the full
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legal right and power and all authority and approval required to enter into,
execute and deliver this Agreement and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of VISCORP 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 VISCORP 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 VISCORP, or any instrument, contract or other agreement to
which VISCORP is a party or by or to which VISCORP is bound or subject; or
(iii) result in the creation of any lien or other encumbrance on the
assets or properties of VISCORP.
3.17 Full Disclosure. No representation or warranty by VISCORP in this
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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 by VISCORP 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.
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SECTION 4. CONDITIONS PRECEDENT
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4.1 Conditions Precedent to the Obligation of VISCORP. All obligations of
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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 VISCORP
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) VISCORP shall have performed and complied in all material
respects, 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 VISCORP 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 authorized all of the necessary and proper action to
enable VISCORP to comply with the terms of the Agreement.
(d) The Exchange shall be permitted by Nevada law and VISCORP shall
have sufficient shares of VISCORP's Common Stock authorized to complete the
Exchange.
(e) At the Closing, all instruments and documents delivered to
SKYSITE and the Shareholders pursuant to provisions hereof shall be reasonably
satisfactory to legal counsel for SKYSITE.
(f) At the Closing, VISCORP shall have delivered to SKYSITE an
opinion of counsel dated as of the Closing to the effect that:
(i) VISCORP 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 VISCORP and is a valid and binding obligation of
VISCORP enforceable in accordance with its terms;
(iii) VISCORP through its Board of Directors has taken all
corporate action necessary for performance under this Agreement;
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(iv) The documents executed and delivered to SKYSITE and the
SKYSITE Shareholders hereunder are valid and binding in accordance
with their terms to the shares of VISCORP Shares to be issued
pursuant to section 1.1 hereof, and such Shares will be duly and
validly issued, fully paid and non-assessable; and
(v) VISCORP has the corporate power to execute, deliver the
Shares and perform under this Agreement.
(i) The shares of restricted VISCORP Common Stock to be issued to the
Shareholders of SKYSITE at Closing will be validly issued, nonassessable and
fully 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 SKYSITE and SKYSITE
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Shareholders. All obligations of SKYSITE and SKYSITE Shareholders under this
------------
Agreement are subject to the fulfillment, prior to or at Closing, of each of the
following conditions:
(a) The representations and warranties by SKYSITE 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) SKYSITE shall have performed and complied with, in all material
respects, 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 or executed and delivered by them prior to or
at the Closing;
(c) SKYSITE shall deliver on behalf of its Shareholders to VISCORP a
letter commonly known as an "Investment Letter," or investment
representations acknowledging that the shares of VISCORP Common Stock are
being acquired for investment purposes.
(d) Except for the obligations and liabilities set forth on the
Schedules attached to this Agreement the Shareholders, and each of them and
their respective successors, heirs, executors and assigns shall execute
General Releases in favor of VISCORP and SKYSITE and their respective
officers, directors, partners, predecessors and successors of and from any
and all liabilities, liens, debts, accounts, accounting, payments, due,
demands, obligations, promises, acts, agreements, costs and expenses
(including attorneys' fees) damages, actions and causes of action of
whatever kind or nature, whether known or unknown, suspected or
unsuspected, which any of them now or
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hereafter own or hold or has at any time heretofore owned or held against
the other by reason of any matter, cause or thing whatsoever, which
occurred, was done, omitted or was suffered to be done through the date of
execution of this Agreement and to the date of the closing.
(e) Resignation of all of SKYSITE's officers and director except
Xxxxxx, Jr. (or any present officer and/or director of VISCORP).
(f) SKYSITE and its Shareholders shall deliver an opinion of its
legal counsel to viscorp to the effect that:
(i) SKYSITE is a corporation duly organized validly existing
and in good standing under the laws of the State of Delaware 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) SKYSITE 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 SKYSITE.
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 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 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, VISCORP, SKYSITE and the Shareholders agree to
keep confidential any
13
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 VISCORP the sole owner thereof. At such
Closing, VISCORP shall issue to the Shareholders the VISCORP Shares.
5.6 Investment Letters. The Shareholders shall have delivered to VISCORP
-------------------
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 SKYSITE
----------------------------------------------------------------
(a) Notwithstanding any right of VISCORP to investigate the affairs
of SKYSITE and its Shareholders, VISCORP has the right to rely fully upon
representations, warranties, covenants and agreements of SKYSITE and its
Shareholders contained in this Agreement or in any document delivered to VISCORP
by SKYSITE and its Shareholders 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, SKYSITE and its
Shareholders agree to indemnify and hold harmless VISCORP, and VISCORP agrees
to indemnify and hold harmless SKYSITE and its Shareholders, at all times after
the date of this Agreement against and in respect of any liability, damage, or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses, including attorneys' fees, incident to any of the foregoing,
resulting from any material misrepresentation made by any 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 or omission from any certificate furnished or to be
furnished hereunder.
In the event any Shareholder listed on Exhibit A to this Agreement breaches
this indemnification in this Section 7 of the Agreement, in addition to all
other remedies, which
14
VISCORP may have and said breach was discoverable within 90 days from April 30,
1997, by the use of reasonable diligence, the number of Shares contemplated to
be distributed to said Shareholder, pursuant to the terms and conditions of this
Agreement shall be reduced by the dollar value of such breach as determined by
VISCORP, in its sole discretion, with the responsibility being allocated solely
to the aforesaid breaching Shareholder's share holdings.
SECTION 8. DOCUMENTS AT CLOSING AND THE CLOSING
-----------------------------------------------
8.1 Documents at Closing. At the Closing, the following transactions
--------------------
shall occur, all of such transactions being deemed to occur simultaneously:
(a) SKYSITE will deliver, or will cause to be delivered, to VISCORP
the following:
(i) a certificate executed by the President and Secretary of
SKYSITE to the effect that all representations and warranties made by
SKYSITE under this Agreement are true and correct as of the Closing,
the same as though originally given to VISCORP on said date;
(ii) a certificate from the State of Delaware dated at or about
the Closing to the effect that SKYSITE is in good standing under the
laws of said State;
(iii) Investment Letters or investment representations in the
form executed by each SKYSITE Shareholder;
(iv) General Releases of all its Shareholders;
(v) Stock certificates representing those shares of SKYSITE
Shares to be exchanged for VISCORP Shares will be delivered; and
(vi) Stock option agreement to certain SKYSITE Shareholders
listed on Exhibit A for a maximum of 500,000 shares of VISCORP Common
Stock at 40c per share for a 3 year period from the Closing Date.
(vii) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of
this Agreement, including but not limited to certified copies of
resolutions of SKYSITE's Board of Directors authorizing this
transaction and an opinion of counsel of SKYSITE as described herein
including but not limited to such items set forth in Section 4
hereof;
(viii) resignation of its officers and directors, except for
Xxxxxx and Xxxxxx;
(b) VISCORP will deliver or cause to be delivered to SKYSITE and the
SKYSITE Shareholders:
15
(i) stock certificates representing those shares of VISCORP
Shares to be issued as a part of the Exchange as described in Section
1 hereof;
(ii) a certificate from VISCORP executed by the President or
Secretary of VISCORP, to the effect that all representations and
warranties of VISCORP made under this Agreement are true and correct
as of the CLosing, the same as though originally given to SKYSITE on
said due date;
(iii) certified copies of resolutions by VISCORP's Board of
Directors authorizing this transaction;
(iv) certificates from the Nevada Secretary of State dated at
or about the Closing Date that VISCORP is in good standing under the
laws of said State;
(v) opinion of VISCORP'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) all other items, the delivery of which is a condition
precedent to the obligations of VISCORP, as set forth in Section 4
hereof.
8.2 The Closing. The CLosing shall take place on or before June 23, 1997
-----------
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 and
------
fax numbers of the parties of this Agreement shall be as follows:
16
To: VISCORP: VisCorp
Attention: Xxxxxxxx Xxxxxx
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Phone (000) 000-0000
Fax (000) 000-0000
cc: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone (000) 000-0000
Fax (000) 000-0000
To: SKYSITE: Xx. Xxx X. Xxxxxx, Xx.
Skysite Communications Corp.
00000 Xxxxxxx Xxx - Xxxx. 0
Xxxxx Xxxxxxxxx, XX 00000
Phone (800) Skysite
Fax
To: The Shareholders:
Xxxxx Xxxxxxxxx, Esq.
0000 00xx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Phone (000) 000-0000
Fax (000) 000-0000
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
Nevada, 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
17
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 Los Angeles, California in
accordance with the rules of the American Arbitration Association augmented by
the rights of Civil Discovery included in the Federal Rules of Civil Procedure
by three (3) arbitrators, one of whom shall be selected by VISCORP, one by
SKYSITE 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 one of the parties
shall fail, after reasonable notice, to appear and participate in the
arbitration preceedings as normally interpreted by the above-mentioned rules,
the arbitrators shall be entitled to make their decision and award on the basis
of the 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 may 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. All parties will have the right to
appeal as if the award had been rendered in Federal District Court.
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 VISCORP Shares and related transactions, and supersede all prior
agreements, written or oral, with respect thereto, including but not limited to
the Memoranda of Understanding entered into by the parties hereto on May 2,
1997.
18
9.9 Headings. The headings in this Agreement are for reference purposes
--------
only and shall not in any way affect 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 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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
VISCORP
By:
-----------------------------------
Xxxxxx Xxxxxxx, Chairman
-----------------------------------
(Print Name and Title)
ATTEST:
-----------------------------------
Xxxx Xxxxxx, Secretary
SKYSITE COMMUNICATIONS CORPORATION
By:
-----------------------------------
Xxx X. Xxxxxx, Xx., President
-----------------------------------
(Print Name and Title)
ATTEST:
-----------------------------------
19
SKYSITE COMMUNICATIONS CORPORATION
By: /s/ Xxx X. Xxxxxx, Xx.
--------------------------------------------
Xxx X. Xxxxxx, Xx., President
--------------------------------------------
(Print Name and Title)
ATTEST:
/s/ Xxxxxxx Xxxxxx
------------------------
ALL OF SKYSITE SHAREHOLDERS:
Intercontinental Technologies Group, Inc.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxx, Secretary/General Counsel
/s/ Xxx X. Xxxxxx, Xx.
--------------------------------------------
Xxx X. Xxxxxx, Xx.
Xxxxxxx Ranch and Tennis Club, a corporation
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
Sinai Administrative Trust
By: /s/ Ruban Kitary, Trustee Attorney-in-fact
--------------------------------------------
Ruban Kitary
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx
20
AMENDMENT TO AGREEMENT AND PLAN
OF REORGANIZATION
(May 28, 1998)
The parties to this Agreement are U.S. Digital Communications, Inc.
(formerly VisCorp), a Nevada corporation ("USDI"), and each of the following
former shareholders of Skysite Communications Corporation ("Skysite"), a
Delaware corporation: Intercontinental Technologies Group, Inc. ("ITG"), Xxxxxxx
Ranch and Tennis Club, Inc., by Xxxxxxx Xxxxxx, its president ("Xxxxxxx"), Sinai
Administrative Trust, in favor of Xxxxx Xxxxx, its trustee ("Sinai"), Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx and Xxxxxx Xxxxxx. Collectively, this group will be
identified as the "Selling Shareholders".
This Amendment Agreement is intended to modify the Agreement and Plan of
Reorganization ("Merger Agreement"), executed by all of the above Selling
Shareholders on or before June 6, 1997, and between USDI, Skysite, the Selling
Shareholders and Xxx Xxxxxx, also a former shareholder of Skysite, but not a
party to this Amendment Agreement.
Recitals
Whereas, disputes have arisen between USDI and Xxxxxx, and these disputes
have been focused on the value of Skysite at the time of its transfer to USDI,
causing USDI to dispute the value of the transfers to the Selling Shareholders,
arguably as participants in the valuation (or lessening of valuation) of
Skysite, and
Whereas, the parties to this Amendment Agreement desire to resolve their
outstanding differences and deal only with the misrepresentations and
inaccuracies attributable to Xxxxxx,
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Amendment Agreement, the
parties hereto agree as follows:
Section 1.0 Modified Consideration
1.1 The consideration originally set forth in the June 6, 1997, Merger
Agreement as to the Selling Shareholders (510,000 shares of common stock, plus
500,000 options exercisable at $0.40 per share) will remain as the consideration
to be delivered to the Selling Shareholders, subject to 1.2 below.
1.2 The Selling Shareholders will pay to USDI, as compensation for the
errors, misrepresentations and/or inaccuracies of Xxxxxx, the sum of $200,000,
said sum to be deducted from any sales of the common stock being delivered to
the Selling Shareholders under (S) 1.1.
1.3 An escrow account at the Xxxxx Xxxxxx (New York) brokerage firm will
be
established for purposes of executing the terms of this Section 1.0. All of the
shares of common stock and all of the option rights will be deposited by USDI
into that escrow, along with instructions to pay to USDI the first $200,000
realized by any sales of the stock. Furthermore, USDI will be paid the first
$0.40 on the exercise of any of the options, pursuant to the terms and
conditions set forth within the options themselves. Once the initial $200,000
has been tendered to USDI, the remainder of the common shares still contained in
the account will be free of further USDI-imposed restrictions under this Section
1.3 and may be distributed to the Selling Shareholders according to any
agreement satisfactory to them (subject to any restrictive legends as provided
for in Section 4.1 below) and USDI will have no further interest in these
shares. The options, if unexercised, may also be distributed to the Selling
Shareholders.
Section 2.0 Assignment of Claims
2.1 In consideration for the payment of $200,000 to USDI by the Selling
Shareholders, USDI hereby assigns to the Selling Shareholders all claims USDI
has arising out of the Merger Agreement and the transactions contemplated
therein. Nevertheless, USDI will retain any claims it has against Xxxxxx (i) for
the use of USDI's trade secrets and other proprietary information for the
conduct of a competing business, and (ii) the conversion by Xxxxxx of certain
property of USDI. Should the Selling Shareholders institute an action against
Xxxxxx to recover any portion of the $200,000 paid to USDI, which is being paid
against a total claim by USDI of $480,000 in losses caused by Xxxxxx, then USDI
will be entitled to 33.3% of all funds actually recovered from Xxxxxx by the
Selling Shareholders. The recovery will be net of actual costs for attorneys'
fees, costs advanced, expert or lay witnesses, and other similar and reasonable
charges arising in litigation or arbitration.
2.2 Notwithstanding (P) 2.1 above, USDI will retain the right to raise
as a defense, counterclaim, set off or recoupment, to any claims or action
brought by Xxxxxx against USDI, all damages caused by the misrepresentations
made by Skysite and Xxxxxx in the Merger Agreement and the related transactions,
including all negotiations related thereto. The parties will agree prior to any
settlement with Xxxxxx pursuant to this (P) 2.2 as to the allocation, by either
of the parties, of the "offsets" or the "recovered" amounts, since these amounts
may have an impact on the other party's litigation efforts against Xxxxxx.
Section 3.0 Assistance of USDI/ITG Personnel
3.1 USDI and ITG agree to assist each other in the anticipated
litigation against Xxxxxx.
3.2 The Selling Shareholders agree to assist USDI in any litigation
resulting from the Merger Agreement or this Amendment Agreement in any
subsequent litigation or arbitration between Xxxxxx and USDI.
3.3 Neither USDI nor ITG can commit to provide the assistance of any
individuals who are no longer in its employ.
3.4 Both ITG and USDI shall provide reasonable notice prior to scheduling
any matter requiring the use of USDI or ITG personnel. In addition, USDI and/or
ITG shall be reimbursed for any out of pocket expenditures, travel expenses, and
attorneys fees incurred by the non-litigating party in responding to requests of
the litigating party. The reimbursement of these items will be made out of the
first proceeds of the respective litigation.
Section 4.0 Legal Opinion Concerning the Tradeability of Shares
4.1 Any legal opinion obtained by the Selling Shareholders regarding the
tradeability of shares must be obtained from counsel approved by USDI in its
reasonable discretion. In addition, any such counsel shall have sufficient
experience in security matters to render an opinion (at least 10 years
experience) and shall have malpractice insurance with with limits of no less
than three million dollars ($3,000,000). All shares of stock issued to Selling
Shareholders shall contain all appropriate restrictions.
4.2 USDI will aid in the documentation of any factual representations
necessary to provide the counsel providing the opinion with assurances as to the
events or dates and times in question, the number of issued and outstanding
securities, the identification of officers, directors and/or affiliates and any
other information reasonably requested by the opining counsel. Notwithstanding
any other provisions of this Amendment, the Selling Shareholders agree not to
sell any shares received pursuant to this Agreement on or before June 7, 1998.
Section 5.0 Miscellaneous
5.1 Waiver. The waiver of a breach of this Amendment Agreement or the
failure of any party hereto to exercise any right under this Amendment 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.
5.2 Further Actions and Assurances. At any time and from time to time,
each party agrees to take actions and to execute and deliver documents as may
be reasonably necessary to effectuate the purposes of this Agreement.
5.3 Assignment. Neither this Agreement nor any right created by it shall
be assignable by the parties without the prior written consent of the other
parties.
5.4 Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly given when
delivered in person to an officer of the other party, when deposited in the
United States mails for transmittal by certified or registered mail, postage
paid, or when deposited with a public telegraph company for transmittal, charges
prepaid, provided the communication is addressed:
Selling Shareholders:
c/o Dieterich & Associates
Attorneys-in-fact for the Selling Shareholder(s)
00000 X. Xxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
U.S. Digital, Inc.:
c/o Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxxxxxx
Counsel to USDI
0 Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
or to any such person or address designated by the parties, in writing, to
receive notice.
5.5 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.
5.6 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.
5.7 Governing Law. This Agreement shall be governed by the laws of the
State of Nevada, notwithstanding any conflict-of-law provision to the contrary.
Should any aspect of this agreement be subject to litigation or arbitration, the
prevailing party in such dispute will be entitled to, in addition to all other
damages, an award of its reasonable attorneys and accountant's fees.
5.8 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.
5.9 Agency. The law offices of Xxxxxxxxx & Associates will function as the
trustee for the distribution of the shares and options under this Amendment
Agreement, and each of the signing Selling Shareholders hereby appoints
Xxxxxxxxx & Associates as their agent for purposes of carrying out the terms
and conditions of this Amendment Agreement.
5.10 Facsimile Counterparts. A facsimile telecopy, or other reproduction
of this Agreement may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto, all
parties agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
5.11 Time is of the Essence. Time is of the essence of this Agreement and
of each and every position hereof.
5.12 Representation. All parties acknowledge that they have been
represented by counsel of their own choosing and that they have received advice
and guidance from their respective counsel. Based upon this representation, no
party will be construed to have been the drafting party for this Agreement, and
no party will be adjudged unrepresented for purposes of interpreting ambiguities
in the Agreement.
5.13 Publicity. No publicity release or announcement concerning this
Amendment 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 forma and substance by the other party.
5.14 Entire Agreement. This Amendment Agreement, the Merger Agreement, and
all of the collateral agreements referenced in (P)9.8 of the Merger Agreement
contain the entire agreement among the parties to this Amendment Agreement with
respect to the transactions set forth herein, and supersede all prior
agreements, written or oral, with respect thereto, including but not limited to
the Memoranda of Understanding entered into by the parties hereto on May 2,
1997.
5.15 Mutual Release. All signatories to this Amendment Agreement hereby
agree that execution of this document, and compliance with the terms and
conditions contained within this Amendment Agreement by the respective party
charged with such compliance, will effect a full and complete mutual release of
any and all claims they might have against the parties signatory to this
Agreement. Each party hereby fully releases and discharges each other, and each
and all of their attorneys and principals, from any and all obligations,
liabilities, claims, costs, expenses, demands, charges, debts, actions and
causes of action which either any of them may now have, or hereinafter have, by
reason of or arising from the matters embraced in the Merger Agreement and this
Amendment Agreement, both known and unknown, other than as to performance agreed
to but not yet completed under this Amendment Agreement and the Merger
Agreement, which will also be released upon timely performance according to the
terms of this Agreement and the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment Agreement to
be effective the 27th of May, 1998.
U.S. DIGITAL COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
INTERCONTINENTAL TECHNOLOGIES
GROUP, INC.
By:
--------------------------
Xxxxxx X. Xxxxx
President
/s/Xxxxxx Xxxxxxxx
-----------------------------
Xxxxxx Xxxxxxxx, Individually
/s/Xxxxx Xxxxxxxx
-----------------------------
Xxxxx Xxxxxxxx, Individually
/s/Xxxxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxx, Individually
XXXXXXX RANCH AND TENNIS
CLUB, INC.
By: /s/Xxxxxxx Xxxxxx
--------------------------
Xxxxxxx Xxxxxx
President
/s/Xxxxx Xxxxx
-----------------------------
Sinai Administrative Trust,
Xxxxx Xxxxx, Trustee
Agency Accepted:
XXXXXXXXX & ASSOCIATES
By: /s/Xxxxxxxxxxx Xxxxxxxxx
--------------------------
Xxxxxxxxxxx Xxxxxxxxx
Counsel to Selling Shareholders
INTERCONTINENTAL TECHNOLOGIES
GROUP, INC.
By:/s/Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
President
-----------------------------
Xxxxxx Xxxxxxxx, Individually
-----------------------------
Xxxxx Xxxxxxxx, Individually
-----------------------------
Xxxxxx Xxxxxx, Individually
XXXXXXX RANCH AND TENNIS
CLUB, INC.
By:
--------------------------
Xxxxxxx Xxxxxx
President
/s/Xxxxx Xxxxx
-----------------------------
Sinai Administrative Trust,
Xxxxx Xxxxx, Trustee
Agency Accepted:
XXXXXXXXX & ASSOCIATES
By: /s/Xxxxxxxxxxx Xxxxxxxxx
--------------------------
Xxxxxxxxxxx Xxxxxxxxx
Counsel to Selling Shareholders
