AGREEMENT AND PLAN OF REORGANIZATION
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:
A. VISCORP desires to acquire all of the issued 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
1.1 EXCHANGE OF SHARES. VISCORP and the Shareholders of SKYSITE hereby
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 40CENTS 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
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
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
SKYSITE hereby represents and warrants as follows:
2.1 ORGANIZATION AND GOOD STANDING: OWNERSHIP OF SHARES.
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.
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2.2 CORPORATE AUTHORITY. SKYSITE has the corporate power to enter into
this Agreement and to perform its respective obligations hereunder. The
execution and delivery of this 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
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
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
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 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
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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
(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 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,
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
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
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
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attached hereto and made a part hereof.
2.11 AGREEMENTS. Schedule 2.11 sets forth any material contract or
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.
2.12 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
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
real property nor is a party to any leasehold agreement.
2.14 TANGIBLE ASSETS. SKYSITE has full title and interest in all
machinery, 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, 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
through April 30, 1997, hereof SKYSITE has not and will not have:
(i) incurred any indebtedness or borrowed money;
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(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loan
or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or assumed
any indebtedness or liability (whether or not currently due and payable);
(v) disposed of any assets of 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 contract, agreement or transaction.
2.17 CAPITALIZATION. The authorized capital stock of SKYSITE consists of
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.
(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
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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
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 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
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 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 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.
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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
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 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.
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
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.
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3.7 COMPLIANCE WITH LAWS. VISCORP has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, which, if not
complied with, would materially and adversely affect the business of VISCORP 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
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.
3.9 PERIODIC REPORTS. VISCORP has delivered to SKYSITE true and complete
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 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
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
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
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;
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(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.
3.14 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
VISCORP in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions 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
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
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
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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
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
4.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF VISCORP. All obligations of
VISCORP under this Agreement are subject to the fulfillment, prior to or as of
the Closing Date, as indicated below, of each of the following conditions:
(a) The representations and warranties by or on behalf of 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
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
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unsuspected, which any of them now or 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
14
Agreement are not consummated, VISCORP, SKYSITE and the Shareholders agree to
keep confidential any information disclosed to each other in connection
therewith for a period of two (2) years from the date hereof; provided, however,
such obligation shall not apply to information which:
(i) at the time of the disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge
(except due to the action of the receiving party); or
(iii) the receiving party had within its possession at the
time of disclosure.
5.5 STOCK CERTIFICATES. At the Closing, the Shareholders shall have
delivered the certificates representing the Shares duly endorsed (or with
executed stock powers) so as to make 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.
15
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 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 40CENTS 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;
16
(b) VISCORP will deliver or cause to be delivered to SKYSITE and the
SKYSITE Shareholders:
(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 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.
17
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:
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.
18
9.6 ARBITRATION.
(a) All disputes and differences arising in connection with or
relating to the provisions of this Agreement, including what constitutes a
dispute or difference, shall be settled and finally determined by arbitration
unless agreement in writing has been reached between the parties within
ninety (90) days after either party shall have given written notice to the
other party of the existence of a dispute or difference which it desires to
have arbitrated. Such notice shall state the point or points in dispute.
(b) Arbitration shall be conducted in 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 proceedings as normally interpreted by the above-mentioned rules,
the arbitrators shall be entitled to make their decision and award on the basis
of evidence, witnesses and arguments presented by the party appearing.
(c) The decision and the award of the arbitrators shall be in writing
and shall be final and binding upon the parties hereto. Judgment upon the award
rendered my be entered in any court having jurisdiction thereof, or application
may be made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The expenses of arbitration shall be borne in
accordance with the determination of the arbitrators with respect thereto.
Pending decision by the arbitrators with respect to the dispute or difference
undergoing arbitration, all other obligations of the parties hereto shall
continue as stipulated herein, and all monies not directly involved in such
dispute or difference shall be paid when due. 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
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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.
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: /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx, Chairman
(Print Name and Title)
ATTEST:
/s/ Xxxx Xxxxxx
-----------------------
Xxxx Xxxxxx, Secretary
SKYSITE COMMUNICATIONS CORPORATION
By: /s/ Xxx X. Xxxxxx, Xx.
--------------------------------
Xxx X. Xxxxxx, Xx., President
(Print Name and Title)
20
ATTEST:
ALL OF SKYSITE SHAREHOLDERS:
Intercontinental Technologies Group, Inc.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxx
/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
------------------------------------------
Ruban Kitary, Trustee
/s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
-------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------------
Xxxxxx Xxxxxx
21
EXHIBIT A
NAME OF SHAREHOLDER OF SKYSITE APPROXIMATE NUMBER OF NUMBER OF
PERCENTAGE SHARES OF OPTIONS TO
OF HOLDING VISCORP PURCHASE
COMMON STOCK VISCORP
COMMON STOCK
Intercontinental Technologies 45.37 341,800 202,786
Group, Inc.
Xxx Xxxxxx, Xx. 32.88 240,000 -0-
Xxxxxxx Ranch and Tennis Club, a 9.25 69,700 41,300
corporation (Xxxxxxx Xxxxxx)
Sinai Administrative Trust 7.50 56,500 33,522
(Xxxxx Xxxxx, Trustee)
Xxxxxx Xxxxxxxx 1.67 14,000 7,464
Xxxxx Xxxxxxxx 1.67 14,000 7,464
Xxxxxx Xxxxxx 1.67 14,000 7,464
TOTAL: 100.00 750,000 300,000
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EXHIBIT 2.10
(Actual and Potential Claims)
Xxxxxx Publishing vs. Skysite (actual)
Xxxxxxx Publishing vs. Skysite (actual)
Xxxxxxxx Xxxxxxx vs. Skysite (actual)
Xxxxxx Xxxxxxxx vs. Skysite (potential)
23
EXHIBIT 2.12
(Broker's Commissions)
200,000 options, at $0.40 per share, registered to "American Enterprises,
Ltd."
24
EXHIBIT 2.15 (ADDENDUM)
(Additional Liabilities)
The liability of Skysite to American Mobile Satellite Corporation is
guaranteed by Intercontinental Technologies Group ("ITG"), up to the
amount of the security deposit of $250,000, which is backed by a
collateral stock account at West America Securities. VisCorp agrees
to indemnify ITG for any losses occurring with respect to this
collateral guarantee, and to remove ITG from any further
responsibility as soon as possible, and by agreement, with any funds
raised in the Private Placement.
The following language from the Memorandum of Understanding -
Acquisition, is specifically incorporated into this agreement:
VisCorp will use good faith efforts in the exercise of its
business discretion to maintain the account with AMSC so as
to avoid any call on the collateral provided by the Skysite
Shareholders. If VisCorp breaches its obligation in this
paragraph 4, VisCorp will indemnify the Skysite Shareholders
for any damage arising from the loss of the collateral up to
the value of AMSC's claim against the collateral.
AGREED:
VISCORP, INC.
By: ---------------------------
Xxxxxxxx Xxxxxx, President
25
EXHIBIT 4.2(d)
The following claims by Shareholders are NOT being released as stated in
the Agreement:
Debts due Xxxxxxx Xxxxxx for expenses advanced to Skysite in the
period prior to the sale/transfer to VisCorp in an amount not to
exceed $10,000 and subject to audit for verification of their business
purpose as being relevant to Skysite. These debts will be paid at
Closing.
Debts due from Xxx Xxxxxx to Xxxxxxx Xxxxxx and/or Xxxxxxx Ranch on
individual loans, which are at least $10,000, and which are not
related to Skysite and not owed by Skysite, but are to be secured with
40,000 VisCorp shares pledged to Savage and held by VisCorp.
Attorneys fees due from Skysite to Xxxxxxxxx & Associates for their
representation of Skysite, Xxx Xxxxxx and Xxxxxx Xxxxxxxx in the
litigation sytled WITTER X. XXXXXXX, XX XX.,
00
