Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
dated as of
December 31, 2003
among
VISTA EXPLORATION CORPORATION (a Nevada corporation)
ICOP ACQUISITION CORPORATION (a Colorado corporation),
and
ICOP DIGITAL, INC. (a Nevada corporation)
Table of Contents
Page
ARTICLE I THE MERGER...........................................................1
Section 1.1. The Merger..........................................1
Section 1.2. Closing.............................................2
Section 1.3. Effective Time......................................2
Section 1.4. Effects of the Merger...............................2
Section 1.5. Certificate of Incorporation........................2
Section 1.6. Bylaws..............................................2
Section 1.7. Directors of Surviving Corporation and VISTA........2
Section 1.8. Officers of Surviving Corporation and VISTA.........2
Section 1.9. Effect on Capital Stock.............................2
(a) Conversion of ICOP Common Stock.....................2
(b) Capital Stock of Merger Sub.........................3
Section 1.10. Exchange of Certificates............................3
(a) Exchange at Closing.................................3
(b) No Further Ownership Rights in ICOP Capital Stock...3
(c) Further Assurances..................................3
ARTICLE II COVENANTS RELATING TO CONDUCT OF BUSINESS...........................3
Section 2.1. Covenants of ICOP...................................3
Section 2.2. Covenants of VISTA and Merger Sub...................5
Section 2.3. Advice of Changes; Governmental Filings.............6
ARTICLE III REPRESENTATIONS AND WARRANTIES.....................................6
Section 3.1. Representations and Warranties of ICOP..............6
(a) Organization and Standing of ICOP...................6
(b) Authority; No Conflicts.............................6
(c) Capitalization of ICOP and Indebtedness for
Borrowed Moneys.....................................7
(d) ICOP Financial Statements...........................7
(e) Present Status......................................8
(f) Litigation..........................................8
(g) Compliance With the Law and Other Instruments.......8
(h) Title to Properties and Assets......................8
(i) Records.............................................8
(j) Absence of Certain Changes or Events................9
(k) Taxes...............................................9
(l) ICOP Benefit Plans..................................9
(m) Finders and Advisors................................9
(n) Vote Required.......................................9
(o) Full Disclosure.....................................9
Section 3.2. Representations and Warranties by VISTA.............9
(a) Organization and Standing of VISTA.................10
(b) Authority; No Conflicts............................10
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(c) Capitalization of VISTA and Indebtedness for
Borrowed Moneys....................................11
(d) VISTA SEC Reports and Financial Statements.........11
(e) Present Status.....................................11
(f) Litigation.........................................11
(g) Compliance With the Law and Other Instruments......12
(h) Records............................................12
(i) Absence of Certain Changes or Events...............12
(j) Taxes..............................................12
(k) VISTA Benefit Plans................................12
(l) Finders and Advisors...............................12
(m) Vote Required......................................12
(n) Full Disclosure....................................12
Section 3.3. Representations and Warranties of VISTA and
Merger Sub.........................................13
(a) Organization and Standing of Merger Sub............13
(b) Authority..........................................13
(c) Non-Contravention..................................13
(d) No Business Activities by Merger Sub...............13
ARTICLE IV ADDITIONAL AGREEMENTS..............................................13
Section 4.1. Due Diligence......................................13
Section 4.2. Commercially Reasonable Efforts....................13
Section 4.3. Restrictions on Transfer of VISTA Stock............14
Section 4.4. Expenses...........................................14
Section 4.5. Reorganization.....................................14
Section 4.6. Continuity of Business.............................14
Section 4.7. Cancellation of VISTA Securities...................14
Section 4.8. 144 Opinions.......................................15
Section 4.9. VISTA Board of Directors...........................15
Section 4.10. ICOP Options.......................................15
ARTICLE V INDEMNIFICATION.....................................................15
Section 5.1. Indemnification....................................15
Section 5.2. Notice and Defense of Third-Party Claims...........15
Section 5.3. Exclusivity........................................16
Section 5.4. Waiver of Consequential Damages....................16
ARTICLE VI CONDITIONS TO CLOSING..............................................16
Section 6.1. Conditions to Each Party's Obligation to Effect
the Merger.........................................16
(a) Shareholder Approval...............................16
(b) No Injunctions, Restraints or Illegality...........16
Section 6.2. Additional Conditions to Obligations of VISTA......16
(a) Representations and Warranties.....................16
(b) Performance of Obligations of ICOP.................16
(c) No ICOP Shareholder Litigation.....................16
(d) Certificate of Officer.............................17
Section 6.3. Additional Conditions to Obligations of ICOP.......17
(a) Representations and Warranties.....................17
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(b) Performance of Obligations of VISTA................17
(c) Certificate of Officer.............................17
ARTICLE VII TERMINATION AND AMENDMENT.........................................17
Section 7.1. Termination........................................17
Section 7.2. Effect of Termination..............................18
Section 7.3. Amendment..........................................18
Section 7.4. Extension; Waiver..................................18
ARTICLE VIII MISCELLANEOUS....................................................18
Section 8.1. Nature of Representations and Warranties; Survival.18
Section 8.2. Counterparts and Facsimile Signatures..............18
Section 8.3. Assignment.........................................18
Section 8.4. Entire Agreement...................................19
Section 8.5. Governing Law......................................19
Section 8.6. Severability.......................................19
Section 8.7. Notices............................................19
Section 8.8. Attorney Fees......................................20
Section 8.9. Certain Definitions................................20
SCHEDULES/EXHIBITS
2.1 ICOP Shareholder List
3.1 ICOP Disclosure Schedule - None
3.1(m) Finders and Advisors
3.2 VISTA Disclosure Schedule - None
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is entered into
this 31st day of December 2003, among VISTA Exploration Corporation, a Colorado
corporation ("VISTA"), ICOP Acquisition Corporation, a Colorado corporation and
newly formed first-tier wholly owned subsidiary of VISTA ("Merger Sub"), and
ICOP Digital, Inc., a Nevada corporation ("ICOP").
RECITALS
WHEREAS, the respective Boards of Directors of VISTA, Merger Sub, and
ICOP have each determined that the merger of Merger Sub with and into ICOP (the
"Merger") is advisable and is in their best interests and in the best interests
of their respective shareholders, and such Boards of Directors have approved
such Merger, upon the terms and subject to the conditions set forth in this
Agreement, pursuant to which VISTA will issue pro rata to the shareholders of
ICOP, shares of no par value common stock, of VISTA ("VISTA Common Stock") as
set forth in Section 2.1;
WHEREAS, VISTA, Merger Sub, and ICOP desire to make certain
representations, warranties, covenants and agreements in connection with the
transactions contemplated hereby and also to set forth various conditions to the
transactions contemplated hereby; and
WHEREAS, for federal income tax purposes it is intended that the
Merger qualify as a tax-free reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder, and VISTA, Merger Sub and ICOP intend, by
approving resolutions authorizing this Agreement, to adopt this Agreement as a
plan of reorganization within the meaning of Section 368(a) of the Code and the
regulations promulgated thereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the corporate laws of Nevada
and Colorado, Merger Sub shall be merged with and into ICOP at the Effective
Time (as defined in Section 1.3). Following the Merger, the separate corporate
existence of Merger Sub shall cease and ICOP shall continue as the surviving
corporation (the "Surviving Corporation") under the name ICOP Digital, Inc. and
shall succeed to and assume all the rights and obligations of Merger Sub in
accordance with the corporate laws of Nevada and Colorado and become a wholly
owned subsidiary of VISTA.
Section 1.2. Closing. The closing of the Merger (the "Closing") will
take place at 2:00 p.m. Denver, Colorado time on the first business day after
the satisfaction or waiver (subject to applicable law) of the conditions set
forth in Article VII of this Agreement (the "Closing Date"), at the offices of
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, 0000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx, unless another date or place is agreed to in writing by the parties
hereto. The parties agree to use all reasonable efforts to close the Merger as
soon as practicable, subject to Article VI hereof.
Section 1.3. Effective Time. Immediately following the Closing, the
parties shall execute and file a certificate of merger or other appropriate
documents (in any such case, the "Certificate of Merger") in accordance with the
relevant provisions of the corporate laws of Nevada and Colorado and shall make
all other filings or recordings required under the corporate laws of Nevada and
Colorado. The Merger shall become effective at such time as the Certificate of
Merger is duly filed with the Nevada Secretary of State and the Colorado
Secretary of State, or at such subsequent time as the parties shall agree, which
subsequent time shall be specified in the Certificate of Merger (the time the
Merger becomes effective being hereinafter referred to as the "Effective Time").
Section 1.4. Effects of the Merger. At and after the Effective Time,
the Merger shall have the effects set forth in the corporate laws of Nevada and
Colorado. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time all the property, rights, privileges, powers and
franchises of ICOP and Merger Sub shall be vested in the Surviving Corporation,
and, except as set forth herein, all debts, liabilities and duties of ICOP and
Merger Sub shall become the debts, liabilities and duties of the Surviving
Corporation.
Section 1.5. Certificate of Incorporation. At the Effective Time, the
certificate of incorporation of the Surviving Corporation shall consist of the
provisions of the articles of incorporation of ICOP.
Section 1.6. Bylaws. The bylaws of ICOP as in effect at the Effective
Time shall be the bylaws of the Surviving Corporation until thereafter changed
or amended as provided therein or by applicable law.
Section 1.7. Directors of Surviving Corporation and VISTA. The
directors of ICOP immediately prior to the Effective Time shall be appointed as
the directors of the Surviving Corporation and VISTA, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
Section 1.8. Officers of Surviving Corporation and VISTA. The officers
of ICOP immediately prior to the Effective Time shall be the officers of the
Surviving Corporation and VISTA, until the earlier of their resignation or
removal or until their respective successors are duly elected and qualified, as
the case may be.
Section 1.9. Effect on Capital Stock. At the Effective Time, by virtue
of the Merger:
(a) Conversion of ICOP Common Stock. The total number of shares of
ICOP Common Stock issued and outstanding immediately prior to the Effective Time
shall be automatically converted into the right to receive the same number of
shares of VISTA Common
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Stock (the "VISTA Share Issuance"). Certificates representing the shares of
VISTA Common Stock to be issued hereby shall be delivered pro rata to the
shareholders of ICOP at the Closing in exchange for their surrender of all ICOP
Common Stock certificates. At the Effective Time, all such shares of ICOP Common
Stock shall cease to be outstanding and shall automatically be canceled and
retired and shall cease to exist, and ICOP and the shareholders of ICOP shall
thereafter cease to have any rights with respect to such shares of ICOP Common
Stock except to receive a like number of shares of VISTA Common Stock upon
surrender for exchange of the ICOP Common Stock certificates.
(b) Capital Stock of Merger Sub. Each share of no par value common
stock, of Merger Sub issued and outstanding immediately prior to the Effective
Time shall be automatically converted into and become one fully paid and
nonassessable share of common stock, par value $.01 per share, of the Surviving
Corporation.
Section 1.10. Exchange of CertificatesExchange at Closing. At or
after the Closing, VISTA shall deliver pro rata to the shareholders of ICOP
certificates aggregating the number of shares of VISTA Common Stock set forth in
Section 2.1(a) and the shareholders of ICOP shall surrender to VISTA all
certificates representing all issued and outstanding shares of ICOP Common
Stock.
(b) No Further Ownership Rights in ICOP Capital Stock. All shares of
VISTA Common Stock issued upon the surrender of ICOP Common Stock certificates
in accordance with the terms of this Article II shall be deemed to have been
issued and paid in full satisfaction of all rights pertaining to the shares of
ICOP Common Stock theretofore represented by such certificates.
(c) Further Assurances. If at any time after the Effective Time, any
further assignments or assurances in law or any other things are necessary or
desirable to vest or to perfect or confirm of record in the Surviving
Corporation the title to any property or rights of either ICOP or Merger Sub, or
otherwise to carry out the purposes and provisions of this Agreement, the
officers and directors of the Surviving Corporation are hereby authorized and
empowered, in the name of and on behalf of ICOP and Merger Sub, to execute and
deliver any and all things necessary or proper to vest or perfect or confirm
title to such property or rights in the Surviving Corporation, and otherwise to
carry out the purposes and provisions of this Agreement.
ARTICLE II
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 2.1. Covenants of ICOP. During the period from the date of
this Agreement and continuing until the Effective Time, ICOP (except as
expressly contemplated or permitted by this Agreement or as otherwise indicated
on the ICOP Disclosure Schedule or as required by a governmental entity of
competent jurisdiction or to the extent that VISTA shall otherwise consent in
writing) will:
(a) Conduct its affairs and business only in the ordinary course of
business;
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(b) Not create or incur any material liabilities other than current
liabilities incurred in the ordinary course of business;
(c) Not create or incur, or suffer to exist, any mortgage, lien,
pledge, hypothecation, charge, encumbrance, or restriction of any kind which is
not otherwise disclosed in this Agreement;
(d) Not make any capital expenditures, or capital additions or
betterment, except as many be involved in ordinary repairs, maintenance, and
replacement;
(e) Not enter into any contract or commitment, except in the ordinary
course of business;
(f) Maintain its assets and properties in good condition and repair,
and not sell, or otherwise dispose of, any of its material assets or properties,
except sales in the ordinary course of business;
(g) Not declare or pay any dividend on, or make any other distribution
upon, or purchase, retire, or redeem, any shares of VISTA common stock, or set
aside any funds for any such purpose other than for purposes of consummation of
this Agreement and with the express written consent of ICOP;
(h) Except as necessary to accomplish the transactions contemplated
herein, not amend its articles of incorporation or bylaws;
(i) Not issue or sell, or obligate itself to issue or sell any
additional shares of its common or preferred stock, whether or not such shares
have been previously authorized or issued, or issue or sell any warrants,
rights, or options to acquire any such shares, or acquire any stock of any
corporation or any interest in any business enterprise;
(j) Not amend its certificate of incorporation or bylaws;
(k) Not discharge or satisfy any material lien, charge, or
encumbrance, nor pay any obligation or liability, absolute or contingent, except
(i) current liabilities shown on ICOP's Financial Statements or current
liabilities incurred since the date of ICOP's Financial Statements in the
ordinary course of business, and (ii) expenses incurred in connection with the
transactions contemplated by this Agreement (including, without limitation,
reasonable attorneys' fees, accounting fees, and costs);
(l) Use reasonable commercial efforts to preserve its business
organization intact;
(m) Use reasonable commercial efforts to preserve the goodwill of its
suppliers, customers, and those having business relations with it;
(n) Except with respect to this transaction, not merge or consolidate,
or obligate itself to do so, with, or into any other entity;
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(o) Not enter into any transactions, or take any acts which if
effected or performed prior to the date of this Agreement, would constitute a
breach of the representations, warranties, and agreements contained herein; and
(p) Not institute, settle, or agree to settle any action or proceeding
before any court or governmental body.
Section 2.2. Covenants of VISTA and Merger Sub. During the period from
the date of this Agreement and continuing until the Effective Time, VISTA and
Merger Sub (except as expressly contemplated or permitted by this Agreement or
as otherwise indicated on the VISTA Disclosure Schedule or as required by a
governmental entity of competent jurisdiction or to the extent that ICOP shall
otherwise consent in writing) will each:
(a) Conduct its affairs and business only in the ordinary course of
business;
(b) Not create or incur any liabilities other than current liabilities
incurred in the ordinary course of business;
(c) Not create or incur, or suffer to exist, any mortgage, lien,
pledge, hypothecation, charge, encumbrance, or restriction of any kind;
(d) Not make any capital expenditures or capital additions or
betterment except as many be involved in ordinary repairs, maintenance, and
replacement;
(e) Not enter into any contract or commitment, except in the ordinary
course of business;
(f) Not declare or pay any dividend on or make any other distribution
upon, or purchase, retire or redeem, any shares of VISTA Common Stock, or set
aside any funds for any such purpose other than for purposes of consummation of
this Agreement or with the express written consent of ICOP;
(g) Except as necessary to accomplish the transactions contemplated
herein, not amend its articles of incorporation or bylaws;
(h) Not issue or sell, or obligate itself to issue or sell any
additional shares of its common or preferred stock, whether or not such shares
have been previously authorized or issued, or issue or sell any warrants,
rights, or options to acquire any such shares, or acquire any stock of any
corporation or any interest in any business enterprise;
(i) Not pay, or agree to pay, conditionally or otherwise, any bonus,
extra compensation, pension, or severance pay to any director, stockholder,
officer, consultant, agent, or employee under any pension plan or otherwise, or
increase the compensation paid by it to any officer, director, agent,
consultant, or employee other than the expenses in connection with the Merger
and the transactions contemplated herein;
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(j) Not enter into any transactions, or take any acts which if
effected or performed prior to the date of this Agreement, would constitute a
breach of the representations, warranties, and agreements contained herein; and
(k) Not institute, settle, or agree to settle any action or proceeding
before any court or governmental body.
Section 2.3. Advice of Changes; Governmental Filings. Each party shall
keep the other parties apprised of any material adverse change with respect to
the operation and conduct of its business prior to the Closing Date. VISTA shall
file all reports required to be filed with the SEC and any other governmental
entities between the date of this Agreement and the Effective Time and shall
deliver to ICOP copies of all such reports promptly after the same are filed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of ICOP. Except as set
forth in the ICOP Disclosure Schedule attached to this Agreement as Schedule 3.1
(the "ICOP Disclosure Schedule") (each section of which qualifies the
correspondingly numbered representation and warranty to the extent specified
therein) represents and warrants to VISTA as follows:
(a) Organization and Standing of ICOP. ICOP is a corporation duly
organized and validly existing and in good standing under the laws of the state
of Nevada has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted and is duly
qualified to do business and in good standing in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties makes such
qualification necessary other than in such jurisdictions where the failure to so
qualify would not, either individually or in the aggregate, have a material
adverse effect on ICOP. ICOP has all requisite power and authority to enter into
this Agreement and to carry out and perform the terms and provisions of this
Agreement. ICOP has no direct or indirect interest, either by way of stock
ownership or otherwise, in any other firm, corporation, association or business.
The copies of the certificate of incorporation and bylaws of ICOP which were
previously furnished to VISTA are true, complete and correct copies of such
documents as in effect on the date of this Agreement.
(b) Authority; No Conflicts.
(i) The execution, delivery and performance of this
Agreement have been duly authorized by all requisite corporate
action on the part of ICOP. This Agreement has been executed and
delivered by ICOP and constitutes valid and binding obligations
of ICOP enforceable in accordance with its terms (except as
limited by bankruptcy, insolvency, or other laws affecting the
enforcement of creditors' rights).
(ii) The execution and delivery of this Agreement by ICOP
does not, and the consummation of the Merger pursuant to this
Agreement and the other transactions contemplated hereby will
not, conflict with or result in any violation
6
of, or constitute a default (with or without notice or lapse of
time, or both) under, any provision of (A) the certificate of
incorporation or bylaws of ICOP or (B) any loan or credit
agreement, note, mortgage, bond, indenture, lease, benefit plan
or other agreement, obligation, instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to ICOP or any of its
properties or assets, except as would not have a material adverse
effect on ICOP, subject to obtaining the Required Consents
(defined below).
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity
is required by or is necessary with respect to ICOP in connection
with its execution and delivery of this Agreement or the
consummation of the Merger and the other transactions
contemplated thereby, except for those required under or in
relation to the corporate laws of Nevada and Colorado with
respect to the filing of the Articles of Merger with the Colorado
Secretary of State and Certificate of Merger with the Nevada
Secretary of State, and such consents, approvals, and filings the
failure of which to make or obtain would not have a material
adverse effect on any party hereto. Consents, approvals, and
filings required under or in relation to any of the foregoing are
referred to as the "Required Consents."
(iv) Except as set forth in the ICOP Disclosure Schedule,
all material contracts of ICOP shall remain in full force and
effect following, and notwithstanding the consummation of, the
Merger.
(c) Capitalization of ICOP and Indebtedness for Borrowed Moneys. ICOP
is duly and lawfully authorized by its articles of incorporation to issue (i)
50,000,000 shares of ICOP common stock, $.01 par value per share, of which as of
the date hereof there are issued and outstanding 14,539,500 shares, and (ii)
5,000,000 shares of ICOP preferred stock, $.01 par value per share, of which as
of the date hereof none are issued and outstanding. The issued and outstanding
shares are held by the ICOP shareholders identified in Schedule 2.1. All the
outstanding shares of ICOP common and preferred stock have been duly authorized
and validly issued and are fully paid and nonassessable and free of preemptive
rights. ICOP has no treasury stock and no other authorized series or class of
stock. ICOP has an employee stock option plan for the issuance of up to
2,500,000 shares of ICOP common stock. ICOP has issued options for 2,500,000
shares under the plan all of which are vested. ICOP is not obligated to issue
any additional capital stock or voting securities as a result of any options,
warrants, rights, conversion rights, obligations upon default, subscription
agreements or other obligations of any kind. ICOP is not presently liable on
account of any indebtedness for borrowed moneys, except as reflected in the ICOP
Financial Statements (as defined below) or the ICOP Disclosure Schedule.
(d) ICOP Financial Statements. ICOP has furnished to VISTA its audited
balance sheet as of December 31, 2002, its audited statements of income and
retained earnings and cash flows for each of the two years ended December 31,
2002 and its unaudited balance sheet as of September 30, 2003, and its unaudited
statements of income and cash flows for the nine months ended September 30, 2003
(collectively, the "ICOP Financial Statements"). All of the ICOP
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Financial Statements present fairly, in all material respects, the financial
position of ICOP as of the respective balance sheet dates and the results of its
operations and cash flows for the respective periods specified therein. The ICOP
Financial Statements have been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis.
(e) Present Status. Except as otherwise disclosed in the ICOP
Disclosure Schedule, from September 30, 2003 to the date of this Agreement, ICOP
has not incurred any liabilities that are of a nature that would be required to
be disclosed on a balance sheet of ICOP or the notes thereto prepared in
accordance with GAAP, other than liabilities incurred in the ordinary course of
business of ICOP and which do not have a material adverse effect on ICOP.
(f) Litigation. Except as disclosed in the ICOP Financial Statements
or Schedule 3.1(f) hereto, there are no legal actions, suits, arbitrations or
other legal or administrative proceedings pending or, to the knowledge of ICOP,
threatened against ICOP which are material to ICOP. In addition, ICOP is not
aware of any facts, which to the best of its knowledge would reasonably be
expected to result in any action, suit, arbitration or other proceeding, which
would reasonably be expected to be material to ICOP. ICOP is not in default of
any judgment, order or decree of any court or, in any material respect of, any
requirements of a government agency or instrumentality, except as set forth in
the ICOP Financial Statements or on the ICOP Disclosure Schedule.
(g) Compliance With the Law and Other Instruments. The business
operations of ICOP have been and are being conducted in all material respects in
compliance with all applicable laws, rules, and regulations. ICOP is not in
violation of, or in default under, any term or provision of its certificate of
incorporation or its bylaws or in any material respect of any lien, mortgage,
lease, agreement, instrument, order, judgment or decree.
(h) Title to Properties and Assets. Except as set forth on Schedule
3.1(h), ICOP has good and defensible title to all of its material properties and
assets including, without limitation, those reflected in the ICOP Financial
Statements and those used or located on property controlled by ICOP in its
business (except assets leased or sold in the ordinary course of business),
subject to no mortgage, pledge, lien, charge, security interest, encumbrance or
restriction except those which (a) are disclosed in the ICOP Financial
Statements as securing specified liabilities; or (b) do not materially adversely
affect the use thereof. Except as set forth on Schedule 3.1(h), ICOP owns, free
and clear of any liens, claims, encumbrances, royalty interests, or other
restrictions or limitations of any nature whatsoever, intellectual property,
including trade secrets, copyrights, procedures, techniques, business plans,
methods of management, or other information, used in connection with ICOP's
business. The products and services ICOP markets, or plans to market, and its
plan of operation do not infringe on the patents, copyrights, trade secrets, or
other proprietary rights of any third person.
(i) Records. To the best of ICOP's knowledge, the books of account and
other records of ICOP are complete and correct in all material respects, and
there have been no material transactions involving the business of ICOP which
properly should have been set forth in such records, other than those set forth
therein.
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(j) Absence of Certain Changes or Events. Except as set forth in
Schedule 3.1(j), since September 30, 2003 (i) there has not been any material
adverse change in the condition (financial or otherwise), properties, assets,
liabilities or, to the best of ICOP's knowledge, the present or prospective
status of the business of ICOP, and (ii) ICOP has not declared or paid any
dividend or made any other distribution in respect of any of its capital stock
or repurchased or redeemed or otherwise acquired any shares of its capital stock
or obligated itself to do any of the foregoing.
(k) Taxes. Except as set forth in Schedule 3.1(k) hereto, ICOP has
duly filed all federal, state, county, local and foreign income, franchise,
excise, real and personal property and other tax returns and reports (including,
but not limited to, those relating to social security, withholding, unemployment
insurance and occupation (sales) and use taxes) required to have been filed up
to the date hereof. All of the foregoing returns are true and correct in all
material respects and ICOP has paid or provided for all taxes, interest and
penalties shown on such returns or reports as being due. ICOP has no liability
for any amount of taxes, interest or penalties of any nature whatsoever, except
for those taxes which may have arisen up to the Closing Date in the ordinary
course of business and are properly accrued on the books of ICOP as of the
Closing Date.
(l) ICOP Benefit Plans. ICOP has employee Benefit Plans subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
(m) Finders and Advisors. Except as set forth in Schedule 3.1(m),
there are no investment bankers, brokers, finders or other intermediaries which
have been retained by or are authorized to act on behalf of ICOP who might be
entitled to any fee or commission in connection with the transactions
contemplated by this Agreement.
(n) Vote Required. The affirmative vote of the holders of 50% of the
outstanding shares of ICOP common stock (the "Required ICOP Vote") is the only
vote of the shareholders of ICOP required to approve the Merger. ICOP has
already obtained the Required ICOP Vote as of the date of this Agreement
pursuant to a shareholder consent as provided by the general Corporation Laws of
Nevada.
(o) Full Disclosure. This Agreement and any schedules and certificates
delivered by ICOP in connection herewith or with the transactions contemplated
hereby, taken as a whole, neither contain any untrue statement of a material
fact nor omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. To the best of ICOP's knowledge,
there are no facts which (individually or in the aggregate) materially adversely
affect the business, prospects, assets, liabilities, financial condition or
operations of ICOP that have not been set forth in this Agreement, the schedules
hereto or in other documents delivered by ICOP in connection herewith which ICOP
should reasonably recognize (i) are not known to VISTA, and (ii) would if known
be material to VISTA with respect to this Agreement and the transactions
provided for herein.
Section 3.2. Representations and Warranties by VISTA. Except as set
forth in the VISTA Disclosure Schedule attached to this Agreement as Schedule
3.2 (the "VISTA Disclosure
9
Schedule") (each section of which qualifies the correspondingly numbered
representation and warranty or covenant to the extent specified therein), VISTA
hereby represents and warrants to ICOP as follows:
(a) Organization and Standing of VISTA. VISTA is a corporation duly
organized and validly existing and in good standing under the laws of the State
of Colorado, has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, and is duly
qualified to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties make
such qualification necessary other than in jurisdictions where the failure to so
qualify would not, either individually or in the aggregate, be materially
adverse to VISTA. VISTA has all requisite power and authority to enter into this
Agreement and to carry out and perform the terms and provisions of this
Agreement. VISTA has no direct or indirect interest, either by way of stock
ownership or otherwise, in any other firm, corporation, association or business
other than Merger Sub. The copies of the articles of incorporation and bylaws of
VISTA which were previously furnished to ICOP are true, complete and correct
copies of such documents as in effect on the date of this Agreement.
(b) Authority; No Conflicts.
(i) The execution, delivery and performance of this
Agreement have been duly authorized by all requisite corporate
action on the part of VISTA. This Agreement has been executed and
delivered by VISTA and constitutes a valid and binding obligation
of VISTA enforceable in accordance with its terms (except as
limited by bankruptcy, insolvency, or other laws affecting the
enforcement of creditors' rights).
(ii) The execution and delivery of this Agreement by VISTA
does not, and the consummation by VISTA of the Merger and the
other transactions contemplated hereby will not, conflict with or
result in a violation or constitute a default (with or without
notice or lapse of time, or both) under, any provision of (A) any
provision of the articles of incorporation or bylaws of VISTA,
(B) any loan or credit agreement, note, mortgage, bond,
indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation
applicable to VISTA or any of its properties or assets, except as
would not be materially adverse to VISTA.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, a governmental entity
is required by or with respect to VISTA in connection with the
execution and delivery of this Agreement by VISTA or the
consummation of the Merger and the other transactions
contemplated hereby, except for such consents, approvals, orders,
authorizations, registrations, declarations and filings the
failure of which to make or obtain would not be materially
adverse to VISTA.
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(iv) Except as set forth in the VISTA Disclosure Schedule,
all material contracts of VISTA, if any, shall remain in full
force and effect following, and notwithstanding the consummation
of, the Merger.
(c) Capitalization of VISTA and Indebtedness for Borrowed Moneys.
VISTA is duly and lawfully authorized by its articles of incorporation to issue
50,000,000 shares of VISTA Common Stock, of which as of the date hereof there
are 1,790,000 shares issued and outstanding (after the sale and cancellation of
VISTA Common Stock referred to in Section 4.7). All the outstanding shares of
VISTA Common Stock have been duly authorized and validly issued and are fully
paid and nonassessable and free of preemptive rights. VISTA is authorized by its
articles of incorporation to issue 5,000,000 shares of VISTA Preferred Stock, of
which as of the date hereof, there are no shares outstanding. VISTA has no other
authorized class of stock. VISTA has issued options to purchase 2,000,000 shares
of VISTA Common Stock for $.10 per share which options are to be cancelled
pursuant to Section 4.7 of this Agreement. Except with respect to this
Agreement, VISTA is not obligated to issue any additional capital stock or
voting securities as a result of any options, warrants, rights, conversion
rights, obligations upon default, subscription agreement or other obligation of
any kind. VISTA is not presently liable on account of any indebtedness for
borrowed moneys.
(d) VISTA SEC Reports and Financial Statements. VISTA is current with
all reports, schedules, forms, statements and other documents required to be
filed with the SEC (collectively, including all exhibits thereto, the "VISTA SEC
Reports") other than filings the failure of which to make would not be
materially adverse to VISTA. None of the VISTA SEC Reports, as of their
respective dates (and, if amended or superseded by filings prior to the date of
this Agreement or the Closing Date, then on the date of such filing), contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Each of
the financial statements (including the related notes) included in the VISTA SEC
Reports presents fairly, in all material respects, the financial position of
VISTA as of the respective dates or for the respective periods set forth
therein, all in accordance with GAAP consistently applied during the periods
involved except as otherwise noted therein. All of such VISTA SEC Reports, as of
their respective dates (and as of the date of any amendment to the respective
VISTA SEC Report), complied as to form in all material respects with the
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder.
(e) Present Status. Except as otherwise disclosed in the VISTA SEC
Reports or the VISTA Disclosure Schedule, from September 30, 2003 to the date of
this Agreement, VISTA has not incurred any liabilities that are of a nature that
would be required to be disclosed on a balance sheet of VISTA or the notes
thereto prepared in accordance with GAAP, other than liabilities incurred in the
ordinary course of business of VISTA and which do not have a material adverse
effect on VISTA.
(f) Litigation. There are no legal actions, suits, arbitrations, or
other legal or administrative proceedings pending or, to the knowledge of VISTA,
threatened against VISTA
11
which are material to VISTA. VISTA is not in default of any judgment, order or
decree of any court or, in any material respect of, any requirements of a
government agency or instrumentality.
(g) Compliance With the Law and Other Instruments. The business
operations of VISTA have been and are being conducted in compliance in all
material respects with all applicable laws, rules, and regulations of all
authorities. VISTA is not in violation of, or in default under, any term or
provision of its articles of incorporation or its bylaws or in any material
respect of any lien, mortgage, lease, agreement, instrument, order, judgment or
decree.
(h) Records. To the best of VISTA's knowledge, the books and other
records of VISTA are complete and correct in all material respects, and there
have been no material transactions involving the business of VISTA which
properly should have been set forth in such records, other than those set forth
therein.
(i) Absence of Certain Changes or Events. Since September 30, 2003,
(i) there has not been any material adverse change in the condition (financial
or otherwise), properties, assets, liabilities or, to the best of VISTA's
knowledge, the present or prospective status of the business of VISTA, and (ii)
VISTA has not declared or paid any dividend or made any other distribution in
respect of any of its capital stock.
(j) Taxes. VISTA has duly filed all federal, state, county, local and
foreign income, franchise, excise, real and personal property and other tax
returns and reports (including, but not limited to, those relating to social
security, withholding, unemployment insurance, and occupation (sales) and use
taxes) required to have been filed by VISTA up to the date hereof.
(k) VISTA Benefit Plans. VISTA has no employee Benefit Plans subject
to ERISA.
(l) Finders and Advisors. There are no investment bankers, brokers,
finders or other intermediaries which have been retained by or are authorized to
act on behalf of VISTA who might be entitled to any fee or commission in
connection with the transactions contemplated by this Agreement.
(m) Vote Required. The affirmative vote of the holders of the majority
of the outstanding shares of Merger Sub common stock (the "Required Merger Sub
Vote") is the only vote of the shareholders of Merger Sub required to approve
the Merger. Merger Sub has already obtained the Required Merger Sub Vote as of
the date of this Agreement.
(n) Full Disclosure. To the best of VISTA's knowledge, this Agreement,
and any Schedules and certificates delivered by VISTA in connection herewith or
with the transactions contemplated hereby, taken as a whole, neither contain any
untrue statement of a material fact nor omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. To the
best of VISTA's knowledge, there are no facts which (individually or in the
aggregate) materially adversely affect the business, prospects, assets,
liabilities, financial condition or operations of VISTA that have not been set
forth in this Agreement, the Schedules hereto, the VISTA SEC Reports or in other
documents delivered by VISTA in connection herewith which VISTA should
reasonably recognize (i) are not known to ICOP, and (ii) would if known be
material to ICOP with respect to this Agreement and the transactions provided
for herein.
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Section 3.3. Representations and Warranties of VISTA and Merger Sub.
VISTA and Merger Sub represent and warrant to ICOP as follows:
(a) Organization and Standing of Merger Sub. Merger Sub is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Colorado. Merger Sub is a wholly owned subsidiary of VISTA.
(b) Authority. Merger Sub has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by Merger Sub of
this Agreement and the consummation by Merger Sub of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Merger Sub. This Agreement has been duly executed and delivered
by Merger Sub and constitutes a valid and binding agreement of Merger Sub,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors generally.
(c) Non-Contravention. The execution, delivery and performance by
Merger Sub of this Agreement and the consummation by Merger Sub of transactions
contemplated hereby do not and will not contravene or conflict with the articles
of incorporation or bylaws of Merger Sub.
(d) No Business Activities by Merger Sub. Merger Sub has not conducted
any activities other than in connection with the organization of Merger Sub, the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1. Due Diligence. Each party shall provide the others with
adequate opportunity to conduct such reviews and examinations of the business,
properties and conditions (financial and otherwise) of the others as each party
shall deem prudent, provided that such investigations shall not interfere
unreasonably with the normal operations of the party being reviewed.
Section 4.2. Commercially Reasonable Efforts.
(a) Subject to the terms and conditions of this Agreement, each party
will use its commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate the Merger and the
other transactions contemplated by this Agreement as soon as practicable after
the date hereof.
(b) In furtherance and not in limitation of the covenants of the
parties contained in Section 4.2(a), if any administrative or judicial action or
proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by this
Agreement, each of the parties shall cooperate in all respects with each
13
other and use its respective commercially reasonable efforts to contest and
resist any such action or proceeding and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the transactions contemplated by this Agreement.
Section 4.3. Restrictions on Transfer of VISTA Stock. The VISTA Common
Stock to be issued to the shareholders of ICOP listed on Schedule 2.1 are not
registered under the Securities Act and are being issued pursuant to an
exemption from registration. The certificates representing the shares of VISTA
Common Stock to be issued to the shareholders of ICOP pursuant to this Agreement
shall be stamped or otherwise imprinted with a legend substantially similar to
the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED
SECURITIES" AS THAT TERM IS DEFINED IN RULE
144 OF THE ACT. THE SHARES MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER ACT, THE
AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
Section 4.4. Expenses. Each party shall be responsible for its own
expenses including, but not limited to, legal and accounting fees, incurred with
respect to this Agreement and the transactions provided for herein.
Section 4.5. Reorganization. Each party shall each use commercially
reasonable efforts to cause the Merger to be treated as a reorganization within
the meaning of Section 368(a) of the Code. From and after the date of this
Agreement and after the Effective Time, each party shall use its commercially
reasonable efforts to cause the Merger to qualify as such and shall not
knowingly take any actions or cause any actions to be taken which could prevent
the Merger from qualifying as a reorganization under the provisions of Section
368(a) of the Code.
Section 4.6. Continuity of Business. Following the Merger, VISTA
intends to cause the Surviving Corporation to continue to a significant extent
the historic business of ICOP or to use a significant portion of the historic
business assets of ICOP in the business substantially the same as the business
conducted by ICOP prior to the Closing.
Section 4.7. Cancellation of VISTA Securities. On or before closing,
Xxxxxxx X. Xxxx, Xx., Xxxx Enterprises, LLC and Laredo Enterprises, LLC shall
collectively cancel all options issued to them by VISTA totaling 2,000,000
options. Additionally, Xxxxxxx X. Xxxx, Xx., shall return to VISTA for
cancellation all VISTA shares owned by him totaling 500,000 shares.
14
Section 4.8. 144 Opinions. Any time after the Effective Date, VISTA
shall promptly, upon request of any shareholder holding VISTA stock
certificate(s) containing a Rule 144 legend, issue or have issued necessary
opinions and instructions to the transfer agent to permit removal of such legend
from the stock certificate(s) as may be requested in accordance with Rule 144.
The requesting shareholder shall be required to pay any reasonable expenses of
such removal including attorney's fees for the necessary opinions.
Notwithstanding anything to the contrary herein, for purposes of this Section
4.8, shareholders requesting 144 legend removal shall be deemed to be third
party beneficiaries under this Agreement and the provisions of this Section 4.8
shall survive any termination of this Agreement.
Section 4.9. VISTA Board of Directors. At the Effective Time, VISTA
shall cause the Board of Directors of VISTA to consist of Xxxxxxx X. Xxxx, Xx.,
Xxxxx X. Xxxx, Xxxxxxx X. XxXxx and Xxxxx X. Xxxxx.
Section 4.10. ICOP Options. At the Effective Time, VISTA shall cause
the Board of Directors to take all actions necessary and proper to convert the
ICOP Options to rights in VISTA Common Stock pursuant to any of the agreements,
contracts or plans governing the ICOP Options.
ARTICLE V
INDEMNIFICATION
Section 5.1. Indemnification. Each party agrees to and shall defend,
indemnify and hold harmless each of the other parties and each of the other
parties' stockholders, officers, directors, employees, counsel, agents,
successors, assigns and legal representatives (each of the other parties and
such other persons collectively referred to as the "Indemnified Persons") from
and against, and shall reimburse the Indemnified Persons for, each and every
Loss (defined in Section 8.9(c)) paid, imposed on or incurred by the Indemnified
Persons, or any claim by a third party against an Indemnified Person, resulting
from or arising out of any inaccuracy in any representation or warranty of the
Indemnifying Party (defined below) under this Agreement, the Disclosure or other
schedules hereto, or any certificate delivered or to be delivered by the
Indemnifying Party pursuant hereto.
Section 5.2. Notice and Defense of Third-Party Claims. If any
proceeding shall be brought or asserted under this Article against an
Indemnified Person in respect of which indemnity may be sought under this
Article from another party or any successor thereto (the "Indemnifying Party"),
the Indemnified Person shall give prompt written notice of such proceeding to
the Indemnifying Party who shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Person and the
payment of all expenses; provided, that any delay or failure to so notify the
Indemnifying Party shall relieve the Indemnifying Party of its obligations
hereunder only to the extent, if at all, that the Indemnifying Party is
prejudiced by reason of such delay or failure. In no event shall any Indemnified
Person be required to make any expenditure or bring any cause of action to
enforce the Indemnifying Party's obligations and liability under and pursuant to
the indemnifications set forth in this Article. Actual or threatened action is
not a condition or prerequisite to the Indemnifying Party's obligations under
this Article.
15
Section 5.3. Exclusivity. After the Effective Time, the provisions of
this Article shall be the exclusive basis for the assertion of claims by or
imposition of liability on the parties hereto arising under or as a result of
this Agreement; provided, however, nothing herein shall preclude a party from
asserting a claim for equitable non-monetary remedies.
Section 5.4. Waiver of Consequential Damages. With respect to any and
all Losses for which indemnification may be available, each party hereby
expressly waives any consequential and punitive damages with respect to a claim
against the Indemnifying Party; provided, however, that this waiver shall not
apply to the extent such consequential or punitive damages are awarded in a
proceeding brought or asserted by a third party against an Indemnified Person.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1. Conditions to Each Party's Obligation to Effect the
Merger. Except as may be waived in writing by the parties, all of the
obligations of the parties under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
(a) Shareholder Approval. ICOP shall have obtained the Required ICOP
Vote and Merger Sub shall have obtained the Required Merger Sub Vote in
connection with the approval of the Merger.
(b) No Injunctions, Restraints or Illegality. No laws shall have been
adopted or promulgated, and no temporary restraining order, preliminary or
permanent injunction or other order issued by a court or other governmental
entity of competent jurisdiction shall be in effect, having the effect of making
the Merger illegal or otherwise prohibiting consummation of the Merger,
provided, however, that the provisions of this Section 6.1(b) shall not be
available to any party whose failure to fulfill its obligations pursuant to
Section 4.2 shall have been the cause of, or shall have resulted in, such order
or injunction.
Section 6.2. Additional Conditions to Obligations of VISTA. The
obligations of VISTA to effect the Merger are subject to the satisfaction of, or
waiver by VISTA, on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and warranties
of ICOP set forth in Sections 3.1 shall be true and correct in all material
respects as of the Closing Date as if made on the Closing Date subject to any
changes contemplated by this Agreement.
(b) Performance of Obligations of ICOP. ICOP shall have performed or
complied in all material respects with all agreements and covenants required to
be performed by it under this Agreement at or prior to the Closing Date.
(c) No ICOP Shareholder Litigation. There shall be no legal actions,
suits, arbitrations or other proceedings brought by one or more shareholder of
ICOP pending or threatened by which the Merger could be materially delayed or
prevented.
16
(d) Certificate of Officer. ICOP shall have delivered to VISTA
certificates dated as of the Closing Date, and verified by the oath of its
president, certifying to the fulfillment of the conditions specified in
subsections (a), (b) and (c) of this Section 6.2.
Section 6.3. Additional Conditions to Obligations of ICOP. The
obligations of ICOP to effect the Merger are subject to the satisfaction of, or
waiver by ICOP, on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and warranties
of VISTA set forth in Section 3.2 and the representations and warranties of
VISTA and Merger Sub set forth in Section 3.3 shall be true and correct in all
respects as of the Closing Date as if made on the Closing Date, subject to any
changes contemplated by this Agreement.
(b) Performance of Obligations of VISTA. VISTA shall have performed or
complied in all material respects with all agreements and covenants required to
be performed by it under this Agreement at or prior to the Closing Date.
(c) Certificate of Officer. VISTA shall have delivered to ICOP a
certificate dated as of the Closing Date and verified by the oath of its
president certifying to the fulfillment of the conditions specified in
subsections (a) and (b) of this Section 6.3.
ARTICLE VII
TERMINATION AND AMENDMENT
Section 7.1. Termination. This Agreement may be terminated at any time
prior to the Effective Time whether before or after approval of the Merger by
the shareholders of ICOP, as follows:
(a) by mutual written consent of VISTA, Merger Sub and ICOP, by action
of their respective Boards of Directors;
(b) by ICOP or by VISTA if the Effective Time shall not have occurred
on or before January 31, 2004 (the "Termination Date"); provided, however, that
the right to terminate this Agreement under this Section 7.1(b) shall not be
available to a party whose failure to fulfill any obligation under this
Agreement (including without limitation Section 4.2) has to any extent been the
cause of, or resulted in, the failure of the Effective Time to occur on or
before the Termination Date;
(c) By VISTA if there has been a material breach of a representation,
warranty, covenant or agreement contained in this Agreement on the part of ICOP,
and as a result of such breach the conditions precedent set forth in Section 6.1
or Section 6.2, as the case may be, would not then be satisfied; provided,
however, that if such breach is curable by ICOP through the exercise of
commercially reasonable efforts within the earlier of (i) thirty days from the
receipt of notice of breach by ICOP from VISTA or (ii) January 31, 2004, then
for so long as ICOP continues to exercise such commercially reasonable efforts,
VISTA may not terminate this Agreement under this Section 7.1(c) unless the
breach is not cured in full within such time period; and
17
(d) By ICOP if there has been a material breach of a representation,
warranty, covenant or agreement contained in this Agreement on the part of
VISTA, and as a result of such breach the conditions precedent set forth in
Section 6.1 or Section 6.3, as the case may be, would not then be satisfied;
provided, however, that if such breach is curable by VISTA through the exercise
of commercially reasonable efforts within the earlier of (i) thirty days from
receipt of notice of breach by VISTA from ICOP or (ii) January 31, 2004, then
for so long as VISTA continues to exercise such commercially reasonable efforts,
ICOP may not terminate this Agreement under this Section 7.1(d) unless the
breach is not cured in full within such time period.
Section 7.2. Effect of Termination.
(a) In the event of termination of this Agreement by ICOP or by VISTA
as provided in Section 7.1, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of VISTA or ICOP or their
respective employees, officers, directors or counsel, except with respect to
this Section 7.2.
Section 7.3. Amendment. This Agreement may be amended by the parties,
by action taken or authorized by their respective Boards of Directors, at any
time but no amendment shall be made which by law requires approval by
shareholders of ICOP or VISTA. This Agreement may not be amended except by an
instrument in writing signed on behalf of all of the parties.
Section 7.4. Extension; Waiver. At any time prior to the Effective
Time, the parties, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties, (ii)
waive any inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto and (iii) waive compliance with any of
the agreements or conditions contained herein. Any agreement on the part of a
party to any such extension or waiver shall be valid only if set forth in a
written instrument signed by that party. The failure of a party to assert any of
its rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Nature of Representations and Warranties; Survival. The
representations and warranties of the parties under this Agreement shall survive
for a period of one year from the Closing Date.
Section 8.2. Counterparts and Facsimile Signatures. In order to
facilitate the execution of this Agreement, the same may be executed in any
number of counterparts and signature pages may be delivered by telefax, with
original executed signature pages to be furnished promptly thereafter.
Section 8.3. Assignment. Neither this Agreement nor any right created
hereby shall be assignable by any party without the prior written consent of the
other parties. Other than as provided in Section 4.8, nothing in this Agreement,
express or implied, is intended to confer
18
upon any person, other than the parties hereto and their respective successors
and assigns, any rights or remedies under or by reason of this Agreement.
Section 8.4. Entire Agreement. This Agreement, the schedules and
exhibits hereto, and the other documents delivered hereunder constitute the full
and entire understanding and agreement among the parties with regard to the
subject hereof and no party shall be liable or bound to any other in any manner
by any representations, warranties, covenants or agreements except as
specifically set forth herein. All prior agreements and understandings are
superseded by this Agreement and the schedules and exhibits hereto.
Section 8.5. Governing Law. This Agreement shall be governed by the
laws of the State of Colorado.
Section 8.6. Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 8.7. Notices. Any notice, communication, request, reply or
advice, hereinafter severally and collectively called "notice," in this
Agreement provided or permitted to be given, made or accepted by a party to
another must be in writing and may be given by personal delivery or U.S. mail or
confirmed telefax. If given by mail, such notice must be sent by registered or
certified mail, postage prepaid, mailed to the party at the respective address
set forth below, and shall be effective only if and when received by the party
to be notified. For purposes of notice, the addresses of the parties shall,
until changed as hereinafter provided, be as follows:
If to VISTA or ICOP Acquisition Corporation:
Xx. Xxxxxxx X. Xxxx, Xx.
00000 Xxxxxx.
Xxxxxxx Xxxxxxx, Xxxxxx 00000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
If to ICOP:
Xxxxx X. Xxxx, CFO
ICOP Digital, Inc.
00000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
With copies to:
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Xxxx X. Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxx Pepar Xxxxxx, LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or at such other address or telefax number as any party may have advised the
others in writing.
Section 8.8. Attorney Fees. In the event any party hereto institutes a
proceeding against any other party hereto for a claim arising out of or to
enforce this Agreement, the parties agree that the judge in any such proceeding
shall be entitled to determine the extent to which any party shall pay the
reasonable attorneys' fees incurred by the other party in connection with such
proceeding, which determination shall take into consideration the outcome of
such proceeding and such other factors as the judge may determine to be
equitable in the circumstances.
Section 8.9. Certain Definitions.
(a) "Person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (as defined in the Exchange Act).
(b) "Knowledge" means (i) with respect to ICOP, the actual conscious
knowledge of the officers of ICOP, and (ii) with respect to VISTA, the actual
conscious knowledge of Xxxxxxx X. Xxxx, Xx.
(c) "Loss" means any loss, damage, injury, diminution in value,
liability, claim, demand, proceeding, judgment, punitive damage, fine, penalty,
tax, cost or expense (including reasonable costs of investigation and the fees,
disbursements and expenses of attorneys, accountants and other professionals
incurred in proceedings, investigations or disputes involving third parties,
including governmental agencies).
[SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Agreement is hereby duly executed by each
party hereto as of the date first written above.
VISTA Merger Sub
VISTA EXPLORATION CORPORATION ICOP ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Xx. Xxxxxxx X. Xxxx, Xx.
Its President Its President
ICOP
ICOP Digital, Inc.
By: /s/ Xxxxx X. Xxxx
----------------------------------
Xxxxx X. Xxxx
Its Chief Financial Officer
21
SCHEDULE 2.1
ICOP SHAREHOLDERS
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Name # of Shares of Common Stock
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2.1 - 1
Schedule 3.1
ICOP DISCLOSURE SCHEDULE: none
3.1 - 1
SCHEDULE 3.1(m)
FINDERS AND ADVISORS: none
3.1(m) - 1
Schedule 3.2
VISTA DISCLOSURE SCHEDULE:
5.9 - 1
