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EXHIBIT 2.3
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of February 21,
1997, by and between VISITORS SERVICES INTERNATIONAL CORP., a Florida
corporation ("VSIC"), GUARANTEE TIME, INC., a Wisconsin corporation ("GTI"),
and Xxxxxx X. Pink, Xxxxxx X. Xxxxxx, Xxxxxx X. Cien, Xxxxxx X. Xxxxx, Xxxxx X.
Pink, Xxxxxx X. Xxxxxxxx, X. Xxxxx Xxxxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxxx,
Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx (the "Stockholders", and each
individually a "Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholders are the owners of all of the issued and
outstanding capital stock of GTI, which is principally engaged in answering
toll-free telephone call requests for information regarding the availability of
reserving starting tee times at golf courses and reserving such tee times at a
selected golf course;
WHEREAS, the Stockholders desire to sell to VSIC and VSIC desires to
purchase from the Stockholders all of the issued and outstanding capital stock
owned by the Stockholders in GTI (the "Stock"), all in the manner and subject
to the terms and conditions hereinafter set forth; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated hereby, to prescribe the terms thereof and to impose various
conditions precedent thereto.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, the
parties hereby agree as follows:
1.TERMS OF ACQUISITION
1.1 Initial Acquisition Stock. On the terms and subject to the
conditions of this Agreement, on the Closing Date (as hereinafter defined),
each Stockholder shall sell, convey, transfer, assign and deliver to VSIC, and
VSIC shall purchase and acquire from each such Stockholder, all right, title
and interest of such Stockholders, legal or equitable, in and to the number of
shares of Stock set forth opposite such Stockholder's name on Annex 1 hereto
under the caption "Shares of Stock to be Sold." The certificates evidencing
the Stock shall be delivered at the
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Closing (as hereinafter defined) to VSIC, free and clear of all liens, claims,
security interests and encumbrances, accompanied by duly executed stock powers.
The purchase price to be paid to each Stockholder listed on Annex 1 in
consideration of the Stock of such Stockholder shall be paid by the issuance to
the Stockholders of a total of 100,000 shares of restricted VSIC common stock,
par value $.0001 per share (the "VSIC Stock"), as such shares may be adjusted
for any stock splits, stock dividends or similar adjustments by VSIC from the
date hereof until the Closing Date (the "Initial Acquisition Stock").
Certificates representing the Initial Acquisition Stock shall be delivered to
the Stockholders at the Closing and shall be allocated to the Stockholders in
the amounts set forth on Annex 1. Except as set forth in Section 1.2(f) below,
the Initial Acquisition Stock shall be fully vested as of the date of issuance.
1.2 Additional Acquisition Stock.
(a) Additional Stock Amounts. In addition to the Initial
Acquisition Stock, the Stockholders shall, subject to Sections 1.2(b) and
1.2(g) below, be issued certificates representing shares of VSIC Stock as
follows: (i) 100,000 shares (the "1998 Share Grant") of VSIC Stock if GTI's
Gross Revenue (as defined herein) for the fiscal year ended March 31, 1998
equals or exceeds $1,504,000 (the "Required 1998 Revenue"), (ii) 200,000 shares
(the "1999 Share Grant") of VSIC Stock if GTI's Net Income (as defined herein)
for the fiscal year ended March 31, 1999 equals or exceeds $309,000 (the
"Required 1999 Income"), (iii) 200,000 shares (the "2000 Share Grant") of VSIC
Stock if GTI's Net Income for the fiscal year ended March 31, 2000 equals or
exceeds $2,281,000 (the "Required 2000 Income") and (iv) an additional number
of shares of VSIC Stock (the "2001 Share Grant") which is potentially available
from a pool of shares of VSIC Stock (the "Rollover Shares") to be established
and issued to the Stockholders pursuant to the terms of Section 1.2(b)(iii)
below, if GTI's Net Income for the fiscal year ended March 31, 2001 equals or
exceeds $5,100,000 (the "Required 2001 Income").
The 1998 Share Grant, the 1999 Share Grant, the 2000 Share
Grant and the 2001 Share Grant shall be collectively referred to herein as the
"Additional Share Grant" and each annual Share Grant shall sometimes be
referred to herein individually as a "Share Grant".
(b) Failure to Attain Gross Revenue or Net Income
Projections.
(i) If GTI fails to attain actual Gross Revenue
in fiscal year 1998 or actual Net Income in either of fiscal years 1999 or
2000, at least equal to 50% of the Required 1998 Revenue, the Required 1999
Income or the Required 2000 Income as set forth in Section 1.2(a) above for the
corresponding fiscal year, then the Stockholders shall forfeit the Share Grant
described in Section 1.2(a) above for such fiscal year.
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(ii) If GTI attains actual Gross Revenue in fiscal
year 1998 or actual Net Income in either of fiscal years 1999 or 2000 that is
greater than 50% but less than 100% of the Required 1998 Revenue, the Required
1999 Income or the Required 2000 Income as set forth in Section 1.2(a) above for
the corresponding fiscal year, then the Share Grant for such fiscal year shall
be proportionally reduced by the percentage the actual Gross Revenue or actual
Net Income for such fiscal year is below the Required 1998 Revenue, the Required
1999 Income or the Required 2000 Income as set forth in Section 1.2(a) above for
the corresponding fiscal year.
(iii) Any shares of VSIC Stock reserved in any
fiscal year's Share Grant that have not been forfeited pursuant to Section
1.2(b)(i) above or issued to the Stockholders pursuant to Sections 1.2(a) or
1.2(b)(ii) above shall be reserved for issuance as Rollover Shares for the 2001
Share Grant. The shares of VSIC Stock available for the 2001 Share Grant shall
only be issued to the Stockholders if GTI's Net Income for the fiscal year
ended March 31, 2001 equals or exceeds Required 2001 Income; provided, that, if
GTI's actual Net Income for fiscal year 2001 is greater than 50% but less than
100% of the Required 2001 Income, then the amount of Rollover Shares which
shall be issued to the Stockholders shall equal the amount of Rollover Shares
multiplied by the percentage the actual Net Income for fiscal year 2001 bears
to the Required 2001 Income. Any Rollover Shares not granted to the
Stockholders pursuant to this Section 1.2(b)(iii) shall be forfeited.
(c) Definition of Gross Revenue and Net Income. For purposes
of this Agreement, the term "Gross Revenue" shall be defined as gross sales
revenue of GTI excluding (i) sales taxes from any sales of computer hardware or
software and (ii) revenues generated from tee time reservation or other golf
related projects pursuant to Sections 2.2 and 2.3 of this Agreement, and the
term "Net Income" shall be defined as net income before taxes as determined
using generally accepted accounting principles, provided, that any amounts
owing to any person pursuant to that certain GTI Incentive Bonus Agreement
between VSIC and the Stockholders shall not be deducted from GTI's net income
in determining Net Income hereunder.
(d) Determination of Gross Revenue and Net Income;
Delivery of Shares. Certificates representing shares of VSIC Stock to be
issued pursuant to any Share Grant that may be
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due under this Section 1.2 shall be delivered to the Stockholders in accordance
with Section 1.2(g) within 30 days of receipt by VSIC of a certificate of
VSIC's independent accountants certifying the attainment by GTI of an
applicable Gross Revenue or Net Income threshold set forth in Section 1.2(a) or
(b) above for a particular fiscal year. Such certificate shall be delivered to
VSIC within 10 days after VSIC's independent accountants complete their fiscal
year end audit of GTI for such fiscal year.
(e) Registration Rights. If, during any five year period
following the receipt by the Stockholders of the Initial Acquisition Stock or
any Share Grant, VSIC shall propose to file a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") in connection with
the proposed offer and sale of any of its equity securities (other than a
registration statement on a form, such as Form S-4 and Form S-8, that does not
permit the inclusion of shares by its securities holders), VSIC will give
notice in writing to such effect to the Stockholders at least 30 days prior to
such filing, and, at the written request of any Stockholder made within 10 days
after the receipt of such notice, will include therein at VSIC's cost and
expense (except for the fees and expenses of counsel to such Stockholders and
underwriting discounts, commissions and filing fees attributable to the
Stockholders' securities included in such registration statement), such of the
Initial Acquisition Shares or any shares received pursuant to any Share Grant
(the "Registrable Securities") as any Stockholder thereof shall request.
Notwithstanding the foregoing, if the offering being registered by VSIC is
underwritten, and if in the good faith judgment of the representative of the
underwriters of such offering, the inclusion therein of all or any of such
Registrable Securities would reduce the number of shares to be offered by VSIC,
the number of Registrable Securities otherwise to be included in the
underwritten public offering may be reduced pro rata among the Stockholders
thereof requesting such registration and any other selling security holders
having piggyback registration rights.
(f) Buyout Option. Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxx and
Xxxxx X. Xxxxxxxx (the "Buyout Stockholders") shall, jointly and not severally,
have the one time right (the "Buyout Right") to return all shares of VSIC Stock
received by them pursuant to Section 1.1 of this Agreement and receive in lieu
of such VSIC Stock the following amounts: (i) Xxxxxx X. Xxxxxx - $25,000;
(ii) Xxxxx X. Xxxxxxxx - $50,000; and (iii) Xxxxxxx X. Xxxx - $50,000 (the
"Buyout Payment"). The Buyout Right may only be exercised by the Buyout
Stockholders providing VSIC written notice of their intent to exercise the
Buyout Right contained in this Section 1.2(f) at least ten days prior to the
one year anniversary date of the Closing Date (the "Buyout Date") (but in any
event prior to the receipt by any of the Buyout Stockholders
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of any Additional Share Grant). Upon (i) exercise by the Buyout Stockholders
of the Buyout Right contained in this Section 1.2(f), (ii) return to VSIC of
the certificates of VSIC Stock issued to the Buyout Stockholders pursuant to
Section 1.1 of this Agreement and (iii) receipt by the Buyout Stockholders of
the Buyout Payment (which payment shall not be made until the VSIC Stock issued
to the Buyout Stockholders pursuant to this Agreement shall have been returned
to VSIC), the Buyout Stockholders shall, subject to Sections 7(a), 7(b) and
7(i) of this Agreement, be released from and shall no longer be considered a
party to (x) this Agreement, (y) to that certain GTI Contingent Stock Option
Agreement between VSIC and the Stockholders or (z) to that certain GTI
Incentive Bonus Agreement between VSIC and the Stockholders and any reference
to "Stockholders" in such agreements shall be construed to not include the
Buyout Stockholders. The Buyout Stockholders acknowledge and agree that upon
receipt of the Buyout Payment they shall not be entitled to receive any amounts
of VSIC Stock or other property or money pursuant to such GTI Contingent Stock
Option Agreement, GTI Incentive Bonus Agreement or this Agreement.
The Buyout Right contained in this Section 1.2(f) shall only
be a joint right of the Buyout Stockholders and no individual Buyout
Stockholder may separately exercise any Buyout Right pursuant to this Section
1.2(f).
If the Buyout Stockholders (i) do not jointly exercise their
Buyout Right under this Section 1.2(f) by the Buyout Date or (ii) if the Buyout
Stockholders exercise their Buyout Right by the Buyout Date but do not return
their shares of VSIC Stock to VSIC by the one year anniversary of the Closing
Date, then the Buyout Stockholders will be considered to have forfeited the
Buyout Right contained in this Section 1.2(f) and will continue to be parties
to this Agreement bound by, subject to and entitled to the terms, conditions
and benefits of this Agreement.
(g) Allocation of Additional Acquisition Stock to
Stockholders. Certificates representing shares of VSIC Stock which may be
issued as the 1998 Share Grant, 1999 Share Grant, the 2000 Share Grant or the
2001 Share Grant shall be issued in the name of each Stockholder according to
the percentages set forth opposite such Stockholders name on Annex 2 or 3
hereto, as applicable.
1.3 Closing Date. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of VSIC, 000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, XX 00000, at 10:00 A.M.,
February 21, 1997, or at such other place and/or on such other date and time as
shall be agreed upon by VSIC and the Stockholders (the "Closing Date").
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2. OPERATIONAL STATUS AND FUNDING OF GTI
2.1 Books and Records. To enable VSIC to ascertain the Gross
Revenue and Net Income attained by GTI following the Closing for purposes of
determining whether any Share Grant is due to the Stockholders pursuant to
Section 1.2 hereof, VSIC hereby agrees, so long as any Additional Share Grant
is potentially outstanding under Section 1.2 hereof, to operate GTI following
the Closing as a wholly-owned subsidiary with its own separate books and
records sufficient to determine the Gross Revenue or Net Income derived solely
from operations of GTI.
2.2 Scope of GTI Operations. Subject to reasonable oversight by
VSIC, the management of GTI shall have the ability and responsibility to manage
the daily operations of GTI including the ability to expand the operations of
GTI to achieve the projections set forth herein. It is intended by the parties
hereto that subsequent to the Closing, the operations of GTI will encompass and
the Gross Revenue and Net Income of GTI will include all commissions, income
and revenue associated with any golf related operations and projects of VSIC
and its subsidiaries or affiliates, other than any commissions, income and
revenue generated by travel management provided by VSIC or its subsidiaries and
affiliates for major golf events or tournaments, provided, that VSIC reserves
the right to exclude, in its sole discretion, any commission, income or revenue
generated or derived from any one particular or from any category of golf
related projects, packages or operations of any of its subsidiaries or
affiliates from being included in the determination of Gross Revenue or Net
Income, as applicable, of GTI.
2.3 Derivative Operations. With the prior approval of VSIC, GTI may
(i) modify its existing software ("Software Modifications") so that such
Software Modifications may be used to generate commissions, income and revenue
from non-golf related recreations, activities and properties and (ii) implement
such Software Modifications for any non- golf related recreations, activities
and properties that VSIC shall permit. Any commissions, income and revenue
generated or derived from the permitted implementation of such Software
Modifications shall be included in the determination of Gross Revenue or Net
Income, as applicable, of GTI.
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2.4 Funding of GTI.
(a) 1997 Funding Commitments. VSIC acknowledges that in
order for GTI to attain the revenue and/or income projections set forth in
Section 1.2(a) hereof it must provide funds to GTI during calendar year 1997.
VSIC hereby agrees to provide funds to GTI as capital contributions in an
amount equal to the amounts scheduled below, provided, that VSIC and GTI hereby
acknowledge and agree that the amounts scheduled below represent the intended
required amounts for the periods set forth below and if the parties mutually
agree that fewer funds are actually required for any period, then such lesser
amount shall replace the amount stated below as VSIC's funding commitment for
such period. VSIC's intended funding commitment for the calendar year 1997
shall be as follows:
Month Amount
----- ------
January 1997 $160,000
February 1997 $125,000
March 1997 $105,000
April 1997 $ 90,000
May 1997 $ 80,000
June 1997 $ 50,000
July 1997 $ 50,000
August 1997 $ 50,000
September 1997 $ 50,000
October 1997 $ 50,000
November 1997 $ 50,000
December 1997 $ 40,000
VSIC shall have no further funding commitment to GTI under the terms
of this Agreement after calendar year 1997.
(b) Time of Funding. Any funds required to be given to
GTI pursuant to Section 2.4(a) above shall be delivered to GTI in the month
next succeeding the month stated above in reasonably sufficient time after a
request for such funds has been made so as not to adversely impact the
operations of GTI.
(c) Failure to Fund. Notwithstanding anything to the
contrary set forth herein, if VSIC fails to fund amounts either set forth above
or the amount mutually agreed upon between VSIC and GTI as the required funding
commitment for any period, and if due to such failure to fund GTI fails to
achieve the Required 1998 Revenue, then the amount of VSIC Stock to be received
by GTI pursuant to the 1998 Share Grant shall be calculated as the product of
the amount of shares in the 1998 Share Grant multiplied by a percentage derived
by dividing (i) the percentage the actual 1998 revenue bears to the Required
1998
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Revenue (the "Actual 1998 Revenue Percentage") by (ii) the percentage the
actual funding amounts made by VSIC to GTI bears to the funding amounts
required to have been made in calendar 1997 either as set forth in Section
2.4(a) above or as mutually agreed to between VSIC and GTI, provided, that if
the Actual 1998 Revenue Percentage is 40% or less then GTI shall not receive
any 1998 Share Grant despite any failure to fund any amount on the part of
VSIC; provided, further, that the Stockholders shall never receive as the 1998
Share Grant pursuant to this Section 2.4(c) more shares of VSIC Stock than is
set forth in Section 1.2(a) as the 1998 Share Grant.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of GTI and the Stockholders.
GTI and the Stockholders hereby, jointly and severally, represent and warrant
to, and covenant and agree with, VSIC as follows:
(a) Organization, Standing and Power. GTI is a
corporation duly organized, validly existing and in good standing and
authorized to exercise its corporate powers, rights and privileges under the
laws of the State of Wisconsin with full corporate power and authority to own,
lease and operate its properties and to carry on its business as presently
conducted by it. Schedule 3.1(a) hereto sets forth all states and other
jurisdictions in which GTI is duly qualified and in good standing to do
business as a foreign corporation. There are no other states or jurisdictions
in which the character and location of the properties owned or leased by it, or
the conduct of its business, make such qualification necessary. Copies of
GTI's Articles of Incorporation and all amendments thereto, and of GTI's
By-Laws as amended to date, are attached to Schedule 3.1(a) and are complete
and correct. GTI's minute books contain complete and accurate records of all
meetings and other corporate actions, including, without limitation, actions by
unanimous written consent of the stockholders and board of directors of GTI
(including committees of its board of directors).
(b) Capitalization. The authorized capital stock of GTI
consists solely of 9,000 shares of common stock, par value $1.00 per share, of
which 5,525 shares are issued and outstanding. All issued shares of Stock have
been duly authorized and validly issued and are fully paid and nonassessable,
subject to the limitation contained in Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law ("WBCL"), as judicially interpreted, which provides
that shareholders of a Wisconsin corporation, such as GTI, may be personally
liable for all debts owing to employees of the corporation for services
performed for such corporation for up to six months service in any one case,
but not in an amount
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greater than the consideration paid for such shares. All prior offerings and
sales of the capital stock of GTI have been made in accordance with all Federal
and state securities laws. There are no options, warrants, rights, calls,
commitments, conversion rights, plans or other agreements of any character to
which GTI is a party or otherwise bound which provide for the purchase or
issuance by GTI of any authorized but not outstanding, or authorized and
outstanding, shares of capital stock of GTI. Except as set forth in Section
180.0622(2)(b) of the WBCL, there is no personal liability attached to the
Stock. No person has any preemptive or similar rights in respect of any
securities of GTI.
(c) Interests in Other Entities. Except as set forth in
Schedule 3.1(c) hereto, GTI does not (i) own, directly or indirectly, of record
or beneficially, any shares of voting stock or other equity securities of any
other corporation or entity, (ii) have any ownership interest, direct or
indirect, of record or beneficially, in any unincorporated entity, or (iii)
have any obligation, direct or indirect, present or contingent, to purchase or
subscribe for any interest in, advance or loan monies to, or in any way make
investments in, any person or entity, or to share any profits or capital
investments in other persons or entities, or both.
(d) Authority. The execution and delivery by GTI and the
Stockholders of this Agreement and all of the agreements, schedules, exhibits,
documents and instruments specifically provided for hereunder to be executed
and/or delivered by any or all of them (all of the foregoing, including this
Agreement, being hereinafter sometimes collectively referred to as the
"Executed Agreements"), the performance by GTI and any or all of the
Stockholders (to the extent that they are parties thereto) of their respective
obligations under the Executed Agreements, and the consummation of the
transactions contemplated by the Executed Agreements, have been duly and
validly authorized by all necessary corporate action on the part of GTI and by
the Stockholders, and GTI has all necessary corporate power with respect
thereto. The Executed Agreements are, or when executed and delivered by the
delivering parties shall be, the valid and binding obligations of the
delivering parties, enforceable in accordance with their respective terms,
except to the extent that enforceability may be limited by the operation of
bankruptcy, insolvency or similar laws. Neither the execution and delivery by
GTI and any or all of the Stockholders (to the extent that they are parties
thereto) of the Executed Agreements, nor the consummation of the transactions
contemplated thereby, nor the performance by GTI and any or all of the
Stockholders (to the extent that they are parties thereto) of their respective
obligations under the Executed Agreements, shall (nor with the giving of notice
or the lapse of time or both would) (i) conflict with or result in a breach of
any provision of the
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Articles of Incorporation or By-Laws of GTI, (ii) give rise to a default, or
any right of termination, cancellation or acceleration, or otherwise result in
a loss of contractual benefits to GTI, under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which GTI or any Stockholder is a party or by which
it or any of its properties or assets may be bound, (iii) violate any order,
writ, injunction, decree, law, statute, rule or regulation applicable to GTI or
any of the Stockholders or any of their respective properties or assets, (iv)
result in the creation or imposition of any lien, claim, restriction, charge or
encumbrance upon any of the properties or assets of GTI, or (v) interfere with
or otherwise materially and adversely affect the ability of GTI to carry on its
business as now conducted.
(e) Financial Statements. GTI has delivered to VSIC true
and complete copies of its consolidated unaudited balance sheet as of December
31, 1996 (the "Balance Sheet"), and the related unaudited statements of income,
retained earnings and cash flows for the period ending December 31, 1996
(collectively, with the Balance Sheet, the "Interim Financial Statements"), and
true and complete copies of its unaudited balance sheets and the related
unaudited statements of income, retained earnings and cash flows for the period
ended December 31, 1995. All of such financial statements, including any notes
thereto, were prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved subject, in respect to the Interim Financial
Statements, to normal year-end audit adjustments, none of which are material
(except as may be otherwise expressly stated in said financial statements and
notes thereto or in Schedule 3.1(e) hereto) and such financial statements
fairly present the financial position of GTI at the dates thereof and the
results of its operations for the periods as indicated. The books and records
of GTI are in all material respects complete and correct, have been maintained
in accordance with good business practices, and accurately reflect the basis
for the financial condition and results of operations of GTI as set forth in
the financial statements referred to herein.
(f) Absence of Undisclosed Liabilities. GTI does not
have any liabilities, commitments or obligations, whether accrued, absolute,
contingent or otherwise which have not been (i) in the case of liabilities,
commitments and obligations of a type customarily reflected on the corporate
balance sheet of GTI, reflected on the Balance Sheet in accordance with GAAP,
(ii) in the case of all other types of liabilities and obligations, described
in Schedule 3.1(f) hereto, or (iii) incurred, consistent with past practice, in
the ordinary course of business since the
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date of the Balance Sheet and which are not material either individually or in
the aggregate.
(g) Properties. Except as set forth in Schedule 3.1(g)
hereto, GTI has good title to all of the properties and assets (real, personal
and mixed, tangible and intangible) reflected on the Balance Sheet or
thereafter acquired or which it purports to own (except properties or assets
sold or otherwise disposed of in the ordinary course of business subsequent to
the date of the Balance Sheet), free and clear of all mortgages, liens,
pledges, charges or encumbrances of any nature whatsoever, except those
referred to in the Balance Sheet. Schedule 3.1(g) also contains an accurate
list setting forth all (i) real property owned, leased (whether as lessor or
lessee) or subject to contract or commitment of purchase or sale or lease
(whether as lessor or lessee) by GTI and (ii) significant personal property
leased by or to GTI or subject to a title retention or conditional sales
agreement or other security device. All leases listed in Schedule 3.1(g) are
valid, binding and enforceable in accordance with their terms, and are in full
force and effect, except to the extent that enforceability may be limited by
the operation of bankruptcy, insolvency or similar laws; there are no existing
defaults by GTI thereunder; no event of default has occurred which (whether
with or without notice, lapse of time or both) would constitute a default by
GTI thereunder; and all lessors under such leases have consented (where such
consent is necessary) to the consummation of the transactions contemplated by
this Agreement without requiring modification of the rights and obligations of
GTI under such leases.
(h) Accounts Receivable. The accounts receivable
reflected on the Balance Sheet are good and collectible in the ordinary course
of business at the aggregate recorded amounts thereof, less the amount of the
reserve for bad accounts reflected therein, and are not subject to any offsets.
The accounts receivable of GTI which were thereafter added are good and
collectible in the ordinary course of business at the aggregate amounts
recorded on the books of account, less the amount of the reserve for bad
accounts reflected therein (which reserve has been established on a basis
consistent with prior practice and in accordance with GAAP) and are not subject
to any offsets.
(i) Absence of Certain Changes. Except as and to the
extent set forth in Schedule 3.1(i) hereto, since the date of the Balance
Sheet, GTI has not:
(i) suffered any material adverse change in its working
capital, condition (financial or otherwise), assets, liabilities, business,
operations or prospects;
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(ii) incurred any material liabilities or obligations
except items incurred in the ordinary course of business and consistent with
past practice, none of which exceeds $5,000 (counting obligations or
liabilities arising from one transaction or a series or similar transactions,
and all periodic installments or payments under any lease or other agreement
providing for periodic installments or payments, as a single obligation or
liability), or experienced any increase in, or change in any assumption
underlying or methods of calculating, any bad debt, contingency or other
reserves;
(iii) paid, discharged or satisfied any claim, liabilities
or obligations (absolute, accrued, contingent or otherwise) other than the
payment, discharge or satisfaction in the ordinary course of business and
consistent with past practice of liabilities and obligations reflected or
reserved against in the Balance Sheet or incurred in the ordinary course of
business and consistent with past practice since the date of the Balance Sheet;
(iv) permitted or allowed any of its property or assets
(real, personal or mixed, tangible or intangible) to be subjected to any
mortgage, pledge, lien, security interest, encumbrance, restriction or charge
of any kind, except those disclosed pursuant to Section 3.1(g) hereof;
(v) written down the value of any inventory or written
off as uncollectible any notes or accounts receivable, except for write-downs
and write-offs in the ordinary course of business and consistent with past
practice, none of which are material;
(vi) canceled any debts or waived any claims or rights of
substantial value, or sold, transferred, or otherwise disposed of any of its
properties or assets (real, personal or mixed, tangible or intangible), except
in the ordinary course of business and consistent with past practice;
(vii) disposed of or permitted to lapse any rights to use
any toll-free telephone number, patent, trademark, trade name or copyright, or
disposed of or disclosed (except as necessary in the conduct of its business)
to any person any trade secret, formula, process or know-how;
(viii) granted any general increase in the compensation of
officers or employees (including any such increase pursuant to any bonus,
pension, profit-sharing or other plan or commitment) or any increase in the
compensation payable or to become payable to any officer or employee, and,
unless otherwise
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set forth in Schedule 3.1(i), no such increase is customary on a periodic basis
or is required by agreement or understanding;
(ix) made any single capital expenditure or commitment in
excess of $5,000 for additions to property, plant, equipment or intangible
assets or made aggregate capital expenditures and commitments in excess of
$5,000 (on a consolidated basis) for additions to property, plant, equipment or
intangible assets;
(x) declared, paid or set aside for payment any dividend
or other distribution in respect of its capital stock;
(xi) made any change in any method of accounting or
accounting practice;
(xii) paid, loaned or advanced any amount to, or sold,
transferred or leased any properties or assets (real, personal or mixed,
tangible or intangible) to, or entered into any agreement or arrangement with,
any of its officers, directors, debtholders, stockholders or employees or any
"affiliate" or "associate" of any of its officers, directors, noteholders,
stockholders or employees (as such terms are defined in Rules 405 promulgated
under the Securities Act and as used herein "Associate" and "Affiliate"),
except for compensation to officers and employees at rates not materially
exceeding the rates of compensation paid during the year ended December 31,
1996; and
(xiii) agreed, whether in writing or otherwise, to take any
action described in this Section unless such action is specifically excepted
from this Section or described in Schedule 3.1(i).
(j) Tax Matters. Except as set forth in Schedule 3.1(j)
hereto, GTI has filed with the appropriate governmental agencies all federal,
state, local or foreign tax returns and reports required to be filed by it
("Returns"), and has paid in full or made adequate provision for the payment
of, all taxes of every nature, including, but not limited to, income, sales,
franchise and withholding taxes ("Taxes"), together with interest, penalties,
assessments and deficiencies shown to be due or claimed to be due on such
Returns. The provisions for income and other taxes reflected on the Balance
Sheet are adequate for all accrued and unpaid taxes of GTI as of the date of
the Balance Sheet, whether (i) incurred in respect of or measured by income of
GTI for any periods prior to the close of business on that date, or (ii)
arising out of transactions entered into, or any state of facts existing, on or
prior to that date. The provision for Taxes reflected on the books of account
of GTI is adequate for all Taxes
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of said entity which accrued since the date of the Balance Sheet. There are no
filed or other known tax liens upon any property or assets of GTI. GTI has not
executed or filed with any governmental authority any agreement extending the
period for the assessment or collection of any Taxes, and it is not a party to
any pending or, to GTI's or any Stockholder's best knowledge, threatened action
or proceeding by any governmental authority for the assessment or collection of
Taxes. To the best knowledge of GTI and the Stockholders, no issue has arisen
in any examination of GTI by any governmental authority that if raised with
respect to any other period not so examined would, if upheld, result in a
material deficiency for any other period not so examined. There is no
unresolved written claim by a governmental authority in any jurisdiction where
GTI does not file Returns that it is or may be subject to taxation by such
jurisdiction. There has been no examination or audit with respect to Taxes
with respect to any year. GTI is not required to make any adjustment pursuant
to Section 481 of the Internal Revenue Code of 1986, as amended (the "Code"),
by reason of a change in accounting method or otherwise and, to the best
knowledge of GTI and the Stockholders, neither the Internal Revenue Service nor
any other governmental authority has proposed any such adjustment or change in
accounting method in respect of GTI, which proposal is currently pending and
GTI does not have an application pending with any governmental authority
requesting permission for any change in accounting method that relates to its
business and/or operations. There shall be no unpaid corporate surcharges at
the Closing Date for which GTI shall be liable.
(k) Litigation. Except as set forth in Schedule 3.1(k)
hereto, there are no suits or actions, or administrative, arbitration or other
proceedings or governmental investigations, pending, or to the best knowledge
of GTI and the Stockholders, threatened against or affecting, or which may
affect, GTI or any of its properties, assets or businesses or the transactions
contemplated hereby. To the best knowledge of GTI and the Stockholders, there
are no outstanding judgments, orders, stipulations, injunctions, decrees or
awards against GTI which are not satisfied.
(l) No Violation of Law. GTI is neither engaged in any
activity nor omitting to take any action as a result of which it is or would be
in violation of any law, rule, regulation, statute, order, injunction or
decree, or any other requirement of any court or governmental or administrative
body or agency, applicable to GTI or any of its properties, products,
operations, businesses, pension or other employee benefit plans, labor
practices, or employees, except for failures to comply which have not had and
cannot reasonably be expected to have a material adverse effect on the business
or condition of GTI.
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(m) Intellectual Property. Schedule 3.1(m) hereto lists
all licenses, toll free telephone numbers, patents, copyrights, or trademarks
owned or used by GTI in the conduct of its business and all applications
therefor (the "Intellectual Property"). No officer or director, stockholder or
employee of GTI nor any of their Affiliates or Associates has any ownership or
other interest in any of the Intellectual Property. To the best knowledge of
GTI and the Stockholders, none of the Intellectual Property is being infringed
upon by, or infringes, any licenses, patents, copyrights, trademarks or other
intellectual property rights of any other person or entity. Except as set
forth in Schedule 3.1(m), the validity of the Intellectual Property and the
title thereto of GTI have not been questioned in any litigation or governmental
inquiry or proceeding to which GTI, is a party, and, to the best knowledge of
GTI and the Stockholders, no such litigation, governmental inquiry or
proceeding is threatened. The conduct of the business of GTI as presently
conducted does not conflict with valid licenses, trademarks, trademark rights,
trade names, trade name rights, service marks or patents of others in any way
likely to affect adversely, in any material respect, the Intellectual Property.
(n) Insurance. Schedule 3.1(n) hereto contains a
complete and correct list and copies of all policies of insurance in which GTI
or its officers or directors (in such capacity) is an insured party,
beneficiary or loss payable payee. Such policies are in full force and effect
and in the reasonable judgment of GTI and the Stockholders provide the type and
amount of coverage reasonably required for the business of GTI.
(o) Bank Accounts and Powers of Attorney. Schedule
3.1(o) hereto contains a complete and correct list showing (i) the name of each
bank in which GTI has an account or safe deposit box and the names of all
persons authorized to draw thereon or have access thereto, and (ii) the names
of all persons, if any, holding powers of attorney from GTI.
(p) Employee Arrangements; ERISA. GTI has (i) no union,
collective bargaining, employment, management, severance or consulting
agreements to which GTI is a party or is otherwise bound, and (ii) no
compensation plans, bonus plans, deferred compensation agreements, pension and
retirement plans, profit-sharing plans, stock purchase and stock option plans.
Schedule 3.1(p) hereto contains a complete and correct list and copies of GTI's
hospitalization, insurance plans or arrangements providing for benefits for
employees of GTI. Such Schedule also lists the names and compensation of all
persons whose total annual compensation (direct and indirect) from GTI (whether
salary, bonus or otherwise) during the last fiscal year was $30,000 or more, or
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who are presently scheduled to receive compensation of at least $30,000 during
the current fiscal year or whose employment is not terminable at will by GTI.
GTI has no employee benefits plans established or maintained by GTI which are
qualified for federal income tax exemption under Sections 401 and 501 of the
Code.
(q) Certain Business Matters. Except as set forth in
Schedule 3.1(q) hereto (i) GTI is not a party to or bound by any
distributorship, dealership, sales agency, franchise or similar agreement which
relates to the sale or distribution of its products and services, (ii) GTI does
not have any sole-source supplier of significant goods or services (other than
utilities) with respect to which practical alternative sources are not
available on comparable terms and conditions, (iii) there are not pending and,
to GTI's and the Stockholders' best knowledge there are not threatened, any
labor negotiations involving or affecting GTI and, to GTI's and the
Stockholders' best knowledge, no organizing activities involving union
representation exist in respect of any of its employees, (iv) GTI neither gives
nor is bound by any express warranties relating to its products or services
and, to the best knowledge of GTI and the Stockholders, there has been no
assertion of any breach of product warranties which could have a material
adverse effect on the business or condition (financial or otherwise) of GTI
and, to the best knowledge of GTI and the Stockholders, there are no problems
or potential problems with respect to any product sold or services provided by
GTI, (v) GTI is not a party to or bound by any agreement which limits its
freedom to compete in any line of business or with any person, and (vi) GTI is
not a party to or bound by any agreement or involved in any transaction in
which any officer, director, debtholder or Stockholder, or any Affiliate or
Associate of any such person has, or had when made, a direct or indirect
material interest.
(r) Certain Contracts. Schedule 3.1(r) hereto contains a
complete and correct list of all contracts, commitments, obligations and
undertakings, written or oral, to which GTI is a party or otherwise bound.
Complete and correct copies of all contracts, commitments, obligations and
undertakings set forth in Schedule 3.1(r) hereto have been furnished to VSIC,
and except as expressly stated in Schedule 3.1(r), each of them is in full
force and effect, no person or entity which is a party thereto or otherwise
bound thereby is, to the best knowledge of GTI and the Stockholders, in default
thereunder, and no event, occurrence, condition or act exists which, with the
giving of notice or the lapse of time or both, would give rise to a default or
right of cancellation thereunder, and GTI is not in default thereunder and no
event, occurrence, condition or act exists by or on behalf of GTI which, with
the giving of notice or the lapse of time or both would give rise to a default
by GTI thereunder, and
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to GTI's and Stockholders' best knowledge, there have been no threatened
cancellations thereof and there are no outstanding disputes thereunder.
(s) Approvals. GTI has obtained and there remain in
effect, all governmental and administrative consents, permits, appointments,
approvals, licenses, certificates and franchises necessary for the operation of
its business as presently conducted by it, and the continued operation thereof
on substantially the same basis immediately following the Closing.
(t) Brokers. No agent, broker, person or firm acting on
behalf of GTI or the Stockholders or under the authority of any of the
foregoing, is or shall be entitled to a brokerage commission, finder's fee, or
other like payment in connection with any of the transactions contemplated
hereby, from GTI or any of the Stockholders.
(u) Stockholders. Schedule 3.1(u) hereto accurately sets
forth the names of each of the Stockholders, their respective addresses,
including the state in which each is a resident and the number of shares of
Stock owned by each. All such shares of Stock are, and at the Closing Date
will be, free and clear of any and all liens, claims, charges, security
interests or other encumbrances, including, without limitation, voting or
stockholder agreements and trusts, first refusal rights, options or similar
rights. Each Stockholder is either (i) an "accredited investor", as such term
is defined in Rule 501 in Regulation D under the Securities Act or (ii) has
such knowledge and experience in financial and business matters and is capable
of evaluating the merits and risks of an investment in the respective VSIC
Stock to be received by such Stockholder. Each Stockholder acknowledges that
it has received and reviewed the corporate filings of VSIC filed with the
Securities and Exchange Commission for the past year. Each Stockholder further
acknowledges that VSIC has made available to such Stockholder the opportunity
to ask questions of and receive satisfactory answers from VSIC concerning VSIC
and the VSIC Stock. All such questions have been answered to the satisfaction
of each of the Stockholders. Shares of VSIC Stock issued are being acquired by
each Stockholder for such Stockholder's own account, for investment and not
with a view to, or for resale in connection with, any distribution of such
shares within the meaning of the Securities Act except in accordance with all
applicable Federal and state laws. The Stockholders understand that they may
be required to bear the economic risk of the investment in the VSIC Stock
indefinitely since such VSIC Stock may not be sold unless such VSIC Stock is
registered under the Securities Act or an exemption therefrom is available
thereunder.
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(v) Disclosure. No representation or warranty made by
GTI or the Stockholders in any of the Executed Agreements contains any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements therein not misleading.
(w) Affiliated Transactions. Except as set forth in
Schedule 3.1(w) hereto, no Stockholder (i) is a party to any agreement,
transaction or arrangement (oral or written) with or involving GTI or any
Associate or Affiliate of GTI or any of the Stockholders, or (ii) has any
claim, monetary or otherwise, of any sort against GTI. Notwithstanding
anything to the contrary contained herein, each Stockholder hereby releases and
discharges GTI from all claims, actions or suits that any of them now has or
may hereafter have against GTI.
(x) Claims Against GTI. Except as set forth in Schedule
3.1(x) hereto, GTI has no debts, obligations or liabilities owing to the
Stockholders and, to the best knowledge of GTI, nothing exists that could give
rise to a claim by the Stockholders of any such debts, obligation or liability
of GTI to the Stockholders.
(y) Governmental Authorizations; Third Party Consents.
Except as set forth in Schedule 3.1(y) hereto, no approval, consent,
compliance, exemption, authorization or other action by, or notice to or filing
with, any governmental authority or any other entity, and no lapse of a waiting
period, is necessary or required to be obtained by GTI or any Stockholder in
connection with the execution, delivery or performance by any of them, of this
Agreement, any of the Executed Agreements or the transactions contemplated
hereby.
3.2 Representations and Warranties of VSIC. VSIC hereby
represents and warrants to, and covenants and agrees with, the Stockholders as
follows:
(a) Organization, Standing and Power. VSIC is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, with full corporate power and authority to own,
lease and operate its properties and to carry on its business as presently
conducted by it and is qualified in each other jurisdiction in which
qualification is required for it to own, lease and operate its properties and
carry on its business as presently conducted by it, except to the extent that
failure to so qualify would not have a material adverse effect on the financial
condition, business or operations of VSIC.
(b) Capitalization. The authorized capital stock of VSIC
consists of 100,000,000 shares of common stock, par value
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$.0001 per share, of which, as of December 31, 1996, approximately 17,750,387
shares were issued and outstanding, and 10,000,000 shares of preferred stock,
par value $.001 per share, of which none were issued and outstanding. The
shares of VSIC Stock for which the outstanding shares of Stock shall be
exchanged on the Closing Date shall be, upon receipt of the exchanged Stock in
payment therefor, duly and validly issued and fully paid and nonassessable.
There is no personal liability, and there are no preemptive or similar rights,
attached to the VSIC Stock.
(c) Authority. The execution and delivery by VSIC of
this Agreement and of each of the other Executed Agreements to which it shall
be a party, the performance by VSIC of its obligations under this Agreement or
such Executed Agreements and the consummation of the transactions contemplated
hereby and thereby, have been duly and validly authorized by all necessary
corporate action on the part of VSIC, and VSIC has all necessary corporate
power with respect thereto. This Agreement and the Executed Agreements are, or
when executed and delivered by VSIC shall be, the valid and binding obligations
of VSIC, enforceable in accordance with their respective terms, except to the
extent that enforceability may be limited by the operation of bankruptcy,
insolvency or similar laws. Neither the execution and delivery by VSIC of the
Executed Agreements, nor the consummation of the transactions contemplated
thereby, nor the performance by VSIC of its obligations under the Executed
Agreements, shall (nor with the giving of notice or the lapse of time or both
would) (i) conflict with or result in a breach of any provision of the Articles
of Incorporation or By-Laws of VSIC, (ii) violate any order, writ, injunction,
decree, law, statute, rule or regulation or (iii) interfere with or otherwise
materially and adversely affect the ability of VSIC to carry on its business as
now conducted.
(d) Brokers. No agent, broker, person or firm acting on
behalf of VSIC or under its authority is or shall be entitled to a brokerage
commission, finder's fee, or other like payment in connection with any of the
transactions contemplated hereby.
(e) Reports filed with the Securities and Exchange
Commission. VSIC and its predecessor, Dynasty Capital Corporation ("Dynasty"),
have, since September 30, 1996, filed all reports required to be filed by them
pursuant to the Securities Act and Exchange Act. Each such report required to
be so filed contains all information required by such report. Each report
filed by VSIC or Dynasty with the Securities and Exchange Commission pursuant
to the Exchange Act since September 30, 1996, did not, on the date of such
report, contain an untrue statement of a material fact or omit to state a
material fact required to be
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stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. All financial
statements and schedules included in the reports referred to in the preceding
sentence were prepared in accordance with generally accepted accounting
principles, applied on a consistent basis except as noted therein, and fairly
present the information purported to be shown therein.
(f) Disclosure. No representation, warranty or other
statement by VSIC herein or in any other document made in connection with this
Agreement, contains or will contain an untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
4. COVENANTS
4.1 Covenants of the Stockholders and GTI. The Stockholders and
GTI jointly and severally covenant and agree to perform or take any and all
such actions to effectuate the following from the date hereof until the Closing
Date:
(a) Investigation by VSIC. VSIC may, prior to the
Closing Date, through its representatives (including its counsel, accountants
and consultants) make such investigations of the properties, offices and
operations of GTI and such audit of the financial condition of GTI as it deems
necessary or advisable in connection with the transactions contemplated hereby,
including, without limitation, any investigation enabling it to familiarize
itself with such properties, offices, operations and financial condition; such
investigation shall not, however, affect GTI's or the Stockholders'
representations, warranties and agreements hereunder. GTI and the Stockholders
shall permit VSIC and its authorized representatives to have, after the date
hereof, full access to the premises and to all books and records and tax
returns of GTI and VSIC shall have the right to make copies thereof and
excerpts therefrom. GTI and the Stockholders shall furnish VSIC with such
financial and operating data and other information with respect to GTI as VSIC
may from time to time reasonably request.
(b) Carry on in Ordinary Course. Except with VSIC's
prior written consent, GTI shall carry on its business diligently and
substantially in the same manner as heretofore conducted, and shall not (i)
institute any unusual or novel methods of lease, management, accounting or
operation, (ii) make any material change in the character of the business of
GTI, (iii) amend any material contract, lease or agreement utilized in the
business of GTI, (iv) enter into any material contract or
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commitment or (v) agree, or incur any obligation, to do any of the foregoing.
(c) Other Transactions. GTI and the Stockholders shall
not, and shall cause GTI's directors, officers, employees, agents and
Affiliates or Associates not to, directly or indirectly, solicit or initiate
the submission of proposals from, or solicit, encourage, entertain or enter
into any arrangement, agreement or understanding with, or engage in any
negotiations with, or furnish any information to, any person, other than VSIC
or a representative thereof, with respect to the acquisition of all or any part
of the business or assets of GTI or any of its securities. Should GTI or any
of its Affiliates or Associates, during such period, receive any offer or
inquiry relating to such acquisition, or obtain information that such an offer
is likely to be made, they will provide VSIC with immediate written notice
thereof, which notice will include the identity of the prospective offeror and
the price and terms of any offer.
(d) Consents. The Stockholders shall cause GTI to, and
GTI shall, use its best efforts to obtain in writing, prior to the Closing
Date, all consents, approvals, waivers, authorizations and orders necessary or
reasonably required in order to permit it to effectuate this Agreement and to
consummate the transactions contemplated hereby (collectively, "Consents").
All such Consents will be in writing and copies thereof will be delivered to
VSIC promptly after GTI's receipt thereof but no later than immediately prior
to Closing.
(e) Supplemental Disclosure. The Stockholders and GTI
agree that, with respect to their representations and warranties made in this
Agreement, they will have a continuing obligation to supplement or amend the
Schedules hereto with respect to any matter hereafter arising or discovered
which, if existing or known at the date of this Agreement, would have been
required to be set forth or described in the Schedules hereto.
4.2 Covenants of VSIC. VSIC covenants and agrees to perform or
take any and all such actions to effectuate the following from the date hereof
until the Closing Date:
(a) Investigation by GTI and the Stockholders. GTI and
the Stockholders may, prior to the Closing Date, through its representative
(including its counsel, accountants and consultants) make such reasonable
investigations of the properties, offices and operations of VSIC and review the
financial condition of VSIC as they deem necessary or advisable in connection
with the transactions contemplated hereby. Such investigation shall not affect
VSIC's representations, warranties or agreements hereunder. VSIC shall permit
GTI, the Stockholders
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and their authorized representatives to have, after the date hereof, reasonable
access, during normal business hours, to the premises and to all books and
records and tax returns of VSIC. VSIC shall furnish GTI, the Stockholders and
their authorized representatives with such financial and operating data and
other information with respect to VSIC as they may from time to time reasonably
request, including but not limited to a copy of VSIC's quarterly report on Form
10-Q for the quarter ended December 31, 1996.
(b) Supplemental Disclosure. VSIC agrees that, with
respect to its representations and warranties made in this Agreement, it will
have a continuing obligation to supplement or amend the Schedules hereto with
respect to any matter hereafter arising or discovered which, if existing or
known at the date of this Agreement, would have been required to be set forth
or described in the Schedules hereto.
4.3 Post-Closing Covenants.
(a) Public Announcements. The Stockholders and VSIC
agree that they will consult with each other before issuing any press releases
or otherwise making any public statements with respect to this Agreement or the
transactions contemplated hereby and any press release or any public statement
shall be subject to mutual agreement of the parties, except as may be required
by the disclosure obligations of VSIC under applicable securities laws.
(b) Restriction on Sale of VSIC Stock. The Stockholders
acknowledge that the VSIC Stock is restricted stock and that VSIC is not
obligated to register such stock under the Securities Act except as provided in
Section 1.2(e) hereof. The Stockholders agree that they shall only transfer
such restricted stock pursuant to applicable Federal or state securities laws
and any transfer of such VSIC Stock shall be accompanied by (i) an opinion of
counsel, which counsel and opinion shall be reasonably acceptable to VSIC, that
an exemption from registration of such VSIC Stock under the Act is available
for such transfer and (ii) an acknowledgement from such transferee that it is
acquiring such VSIC Stock as an investment and not with a view to distribution
thereof.
(c) Filings and Reports. VSIC covenants and agrees that
following the Closing, it shall file all reports required to be filed by it
under the Securities Act and the Exchange Act.
5. CONDITIONS TO CLOSING
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5.1 Conditions of VSIC's Obligation to Close. The obligation of
VSIC to close under this Agreement is subject to the following conditions any
of which may be waived by VSIC in writing at or prior to Closing:
(a) Agreements and Conditions. On or before the Closing
Date, the Stockholders and GTI shall have complied with and duly performed all
agreements and conditions on their part to be complied with and performed
pursuant to or in connection with this Agreement on or before the Closing Date.
(b) Representations and Warranties. The representations
and warranties of the Stockholders and GTI contained in this Agreement, or
otherwise made in connection with the transactions contemplated hereby, shall
be true and correct in all material respects on and as of the Closing Date with
the same force and effect as though such representations and warranties had
been made on and as of the Closing Date.
(c) Loss, Damage or Destruction. Between the date hereof
and the Closing Date there shall not have been any loss, damage or destruction
to or of any of the assets, property or business of GTI in excess of $2,000 in
the aggregate, whether or not covered by insurance, nor shall the assets,
properties, business or prospects of GTI have been adversely affected in any
way as a result of any fire, accident, or other casualty, war, civil strife,
riot or act of God or the public enemy or otherwise.
(d) No Legal Proceedings. No court or governmental
action or proceeding shall have been instituted or threatened to restrain or
prohibit the transactions contemplated hereby, and on the Closing Date there
will be no court or governmental actions or proceedings pending or threatened
against or affecting GTI which involve a demand for any judgment or liability,
whether or not covered by insurance, and which may result in any material
adverse change in the business, operations, properties or assets or in the
condition, financial or otherwise, of GTI.
(e) Certificate. VSIC shall have received a certificate
dated the Closing Date and executed by the Stockholders and an authorized
officer of GTI to the effect that the conditions expressed in Sections 5.1(a),
5.1(b), 5.1(c) and 5.1(d) have been fulfilled.
(f) Consents. VSIC shall have received all Consents
necessary to effectuate this Agreement and to consummate the transactions
contemplated hereby.
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(g) Employment Agreement. VSIC or GTI shall have
entered into Employment or Consulting Agreements substantially in the form set
forth as Exhibit A hereto with Xxxxxx X. Pink, Xxxxxx X. Xxxxxx, Xxxxxx X.
Cien, Xxxxxx X. Xxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxxx X. Pink
(collectively, the "GTI Management").
(h) Exemption From Securities Act. The issuance to the
Stockholders by VSIC of the VSIC Stock shall, based upon information provided
to VSIC by GTI and the Stockholders, qualify as an offering and sale exempt
from registration under the Securities Act pursuant to Section 4(2) and
Regulation D of said Securities Act and shall comply with the requirements of
all states and other regulations currently in effect relating to "private
offerings" of the type to be made by VSIC hereunder.
(i) Certificate of Status. VSIC shall have received a
certificate from the Wisconsin Department of Financial Institutions providing
that GTI has filed its most recent annual report, has not filed articles of
dissolution and is in good standing in the State of Wisconsin.
5.2 Conditions of the Stockholders' and GTI's Obligations to
Close. The obligations of the Stockholders and GTI to close under this
Agreement are subject to the following conditions any of which may be waived by
GTI in writing at or prior to Closing:
(a) Agreements and Conditions. On or before the Closing
Date, VSIC shall have complied with and duly performed all agreements and
conditions on its part to be complied with and performed pursuant to or in
connection with this Agreement on or before the Closing Date.
(b) Representations and Warranties. The representations
and warranties of VSIC contained in this Agreement, shall be true and correct
in all material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and as of
the Closing Date.
(c) No Legal Proceedings. No court or governmental
action or proceeding shall have been instituted or threatened to restrain or
prohibit the transactions contemplated hereby and on the Closing Date there
will be no court or governmental action or proceeding pending or, to the best
knowledge of VSIC, threatened against VSIC which involve a demand for any
judgment or liability, not covered by insurance, which may result in any
material adverse change in the business, operations or financial condition of
VSIC.
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(d) Employment Agreement. VSIC and the GTI Management
shall have entered into Employment Agreements substantially in the form set
forth as Exhibit A hereto.
(e) GTI Contingent Stock Option Agreement. VSIC and the
Stockholders shall have entered into the GTI Contingent Stock Option Agreement
substantially in the form set forth as Exhibit B hereto.
(f) GTI Incentive Bonus Agreement. VSIC and the
Stockholders shall have entered into the GTI Bonus Agreement substantially in
the form set forth as Exhibit C hereto.
(g) Stock Option Agreement. VSIC and the GTI Management
shall have entered into Stock Option Agreements substantially in the form set
forth as Exhibit D hereto.
(h) Loss, Damage or Destruction. Between the date hereof
and the Closing Date, there shall not have been any loss, damage or destruction
to or of any of the assets, property or business of VSIC in excess of
$1,000,000, in the aggregate, whether or not covered by insurance.
(i) Certificate. GTI and the Stockholders shall have
received a certificate dated the Closing Date and executed by an authorized
officer of VSIC to the effect that the conditions expressed in Sections 5.2(a),
5.2(b), 5.2(c) and 5.2(h) have been fulfilled.
(j) Funding Assurances. GTI and the Stockholders shall
be satisfied, in their sole discretion, that VSIC shall have the financial
resources to meet its funding commitments to GTI as provided in Section 2.4
hereof.
6. INDEMNIFICATION
6.1 Indemnitors; Indemnified Persons. For purposes of this
Section 6, each party which, pursuant to this Section 6, shall agree to
indemnify any other person or entity shall be referred to, as applicable, as
the "Indemnitor", and each such person and entity who is entitled to be
indemnified by any Indemnitor shall be referred to as the "Indemnified Person"
with respect to such Indemnitor.
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6.2 Indemnity of GTI.
(a) Indemnity. The Stockholders and, with respect to
covenants to be performed and representations and warranties made prior to the
Closing, GTI, hereby jointly and severally agree to indemnify, hold harmless
and reimburse VSIC and its respective directors, officers, agents and employees
from and against any and all claims, liabilities, losses, damages and expenses
incurred by such Indemnified Persons (including reasonable attorneys' fees and
disbursements) which shall be caused by or related to or shall arise out of any
breach or alleged breach of any representation, warranty, covenant or agreement
of GTI contained in this Agreement and shall reimburse such Indemnified Persons
for all costs and expenses (including reasonable attorneys' fees and
disbursements) as they shall be incurred, in connection with paying,
investigating, preparing for or defending any action, claim, investigation,
inquiry or other proceeding, whether or not in connection with pending or
threatened litigation, which shall be caused by or related to or shall arise
out of such breach or alleged breach, whether or not any such Indemnified
Person shall be named as a party thereto and whether or not any liability shall
result therefrom, provided, that the Stockholders and GTI shall not be required
to reimburse any Indemnified Person until such time as the aggregate
reimbursable costs and expenses owing to all Indemnified Persons pursuant to
this Section 6.2(a) shall exceed $5,000. The Stockholders and GTI further
agree that they shall not, without the prior written consent of VSIC settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder unless such settlement, compromise or consent shall include an
unconditional release of each Indemnified Person under this Section 6.2(a) from
all liability arising out of such claim, action, suit or proceeding.
(b) Set-off. In addition to any remedies available to
VSIC at law or equity, VSIC shall be entitled to set off any amounts owed by
the Stockholders or GTI to VSIC pursuant to Section 6.2(a) hereof against
distributions of (i) Additional Share Grant, if any, which the Stockholders may
be entitled to receive from VSIC pursuant to Section 1.2 of this Agreement and
(ii) distributions of options to purchase VSIC Stock which the Stockholders may
be entitled to receive pursuant to that certain GTI Contingent Stock Option
Agreement between VSIC and the Stockholders.
6.3 Indemnity of VSIC. VSIC hereby agrees to indemnify, hold
harmless and reimburse the Stockholders and GTI from and against any and all
claims, liabilities, losses, damages and expenses incurred by them (including
reasonable attorneys' fees
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and disbursements) which shall be caused by or related to or shall arise out of
any breach or alleged breach of any representation, warranty, covenant or
agreement of VSIC contained in this Agreement and shall reimburse the
Stockholders and GTI for all costs and expenses (including reasonable
attorneys' fees and disbursements) as shall be incurred, in connection with
paying investigating, preparing for or defending any action, claim,
investigation, inquiry or other proceeding, whether or not in connection with
pending or threatened litigation, which shall be caused by or related to or
shall arise out of such breach or alleged breach, whether or not the
Stockholders and GTI shall be named as a party thereto and whether or not any
liability shall result therefrom. VSIC further agrees that it shall not,
without the prior written consent of the Stockholders and GTI, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder unless such settlement, compromise or consent shall include an
unconditional release of the Stockholders and GTI under this Section 6.3 from
all liability arising out of such claim, action, suit or proceeding.
6.4 Procedures for Indemnification; Defense. Promptly after
receipt by an Indemnified Person of notice of the commencement of any action or
proceeding with respect to which indemnification may be sought hereunder, such
Indemnified Person shall notify the Indemnitor of the commencement of such
action or proceeding, but failure to so notify the Indemnitor shall not relieve
the Indemnitor from any liability which the Indemnitor may have hereunder or
otherwise, unless the Indemnitor shall be materially prejudiced by such
failure. If the Indemnitor shall so elect, the Indemnitor shall assume the
defense of such action or proceeding, including the employment of counsel
reasonably satisfactory to such Indemnified Person, and shall pay the fees and
disbursements of such counsel. In the event, however, that such Indemnified
Person shall reasonably determine in its judgment that having common counsel
would present such counsel with a conflict of interest or alternative defenses
shall be available to an Indemnified Person or if the Indemnitor shall fail to
assume the defense of the action or proceeding in a timely manner, then such
Indemnified Person may employ separate counsel to represent or defend it in any
such action or proceeding and the Indemnitor shall pay the reasonable fees and
disbursements of such counsel; provided, however, that the Indemnitor shall not
be required to pay the fees and disbursements of more than one separate counsel
for all Indemnified Persons in any jurisdiction in any single action or
proceeding. In any action or proceeding the defense of which the Indemnitor
shall assume, the Indemnified Person shall have the right to participate in
such litigation and to retain its own counsel at such Indemnified Person's own
expense except as
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otherwise provided above in this Section 6.4, so long as such participation
does not interfere with the Indemnitor's control of such litigation.
7. MISCELLANEOUS PROVISIONS.
(a) Public Announcements. GTI, the Stockholders and VSIC
agree that they will consult with each other before issuing any press releases
or otherwise making any public statements with respect to this Agreement or the
transactions contemplated hereby and any press release or any public statement
shall be subject to mutual agreement of the parties, except as may be required
by the disclosure obligations of VSIC under applicable securities law.
(b) Confidentiality. GTI, the Stockholders and VSIC
agree not to, directly or indirectly, without the prior written consent of the
other, use or disclose to any person, firm or corporation, any of the terms of
this Agreement, except as may be required by the disclosure obligations of VSIC
under applicable securities laws or as may be required to be disclosed to the
attorneys and/or accountants of the parties hereto in connection with the
transactions contemplated hereby.
(c) Notification. Each party hereto shall give the other
party or parties hereto prompt written notice of (i) the existence of any fact
or the occurrence of any event which constitutes, or with the giving of notice
or the passage of time or both would constitute, a breach of any representation
or warranty of the party giving such notice made herein or pursuant hereto and
(ii) the taking of any action by the party giving such notice that would breach
or violate, or constitute a default under, any agreement or covenant of such
party made herein or pursuant hereto. The giving of any such notice shall not
affect, modify or limit in any way any representation, warranty, agreement or
covenant of the parties made herein or pursuant hereto.
(d) Execution in Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
(e) Notices. All notices, requests, demands and other
communications which are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be deemed duly given when delivered by
hand, telecopied or posted in the United States mail by registered or certified
mail with postage pre-paid, return receipt requested, (i) if to VSIC, to 000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, XX 00000, Attention: Xxxx
Xxxxxxx, facsimile number: (000) 000-0000; and
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(ii) if to the Stockholders or GTI, to Guarantee Time, Inc., 00000 Xxxxxxxx
Xxxx, Xxxxx 0, Xxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx X. Pink,
facsimile number: (000) 000-0000, or to such other address(es) as shall be
specified by like notice to the other parties.
(f) Amendments. This Agreement may be amended or
modified at any time prior to the Closing Date, but only by a written
instrument executed by all of the parties hereto.
(g) Entire Agreement. This Agreement (together with the
other agreements, certificates, instruments and documents delivered pursuant
hereto) constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof, and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
(h) Applicable Law. This Agreement and the legal
relations among the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be wholly performed therein.
(i) Survival of Representations. The parties hereto
agree that the representations and warranties contained herein or in any
certificate, instrument or other document delivered pursuant to this Agreement
or in connection with the transactions contemplated hereby shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
(j) Termination. This Agreement may be terminated at any
time prior to the Closing Date by any of the following:
(i) By mutual written agreement of VSIC, the
Stockholders and GTI;
(ii) By either VSIC or the Stockholders, if the
Closing has not occurred by April 1, 1997, upon written notice by such
terminating party, provided that at the time such notice is given a material
breach of this Agreement by such terminating party shall not be the principal
reason for the Closing's failure to occur;
(iii) Subject to the provisions of Section 7(k)
hereof, by VSIC, by written notice to the Stockholders and GTI, if there has
been a material violation or breach of any of the Stockholders's or GTI's
covenants or agreements made herein or in connection herewith or if any
representation or warranty of the
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Stockholders or GTI made herein or in connection herewith proves to be
materially inaccurate or misleading; or
(iv) Subject to the provisions of Section 7(k)
hereof, by the Stockholders, by written notice to VSIC, if there has been a
material violation or breach of any of VSIC's covenants or agreements made
herein or in connection herewith or if any representation or warranty of VSIC
made herein or in connection herewith proves to be materially inaccurate or
misleading.
(k) Effects of Termination. If this Agreement is
terminated as provided in Section 7(j) hereof, then this Agreement shall
forthwith become void and there shall be no liability or obligation on the part
of any party hereto (or any of their respective stockholders, officers,
directors or employees), except based upon the agreements contained in Sections
7(a) and 7(b) hereof; provided, however, that if VSIC terminates this Agreement
pursuant to Section 7(j)(iii) hereof, or the Stockholders terminate this
Agreement pursuant to Section 7(j)(iv) hereof, the non- terminating party shall
remain liable for any breach hereof.
(l) Headings. The headings contained herein are for the
sole purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions of this
Agreement.
(m) Fees and Disbursements. VSIC shall pay its own
expenses, and the fees and disbursements of the counsel, accountants or
auditors retained by it in connection with the preparation, execution and
delivery of this Agreement and the fees and expenses and disbursements of the
counsel to GTI and the Stockholders shall be paid out of revenue of GTI.
(n) Transfer Taxes. Any Taxes in the nature of a sales or
transfer tax (including any realty transfer tax or realty gains transfer tax),
and any stock transfer tax, payable on the sale or transfer of all or any
portion of the Stock or the consummation of any other transaction contemplated
hereby shall be paid by the Stockholders.
(o) Assignment. This Agreement may not be assigned by GTI
or any Stockholder without the prior written consent of VSIC. This Agreement
may not be assigned by VSIC, except for an assignment by VSIC to any subsidiary
or affiliate, without the prior written consent of the Stockholders.
(p) Binding Effect; Benefits. This Agreement shall inure
to the benefit of, and be binding upon, the parties hereto and their respective
heirs, legal representatives,
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successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
(q) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement the day and year first above written.
VISITORS SERVICES INTERNATIONAL CORP.
By:
-------------------------
GUARANTEE TIME, INC.
By:
-------------------------
STOCKHOLDERS:
----------------------------
Xxxxxx X. Pink
----------------------------
Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X.Cien
----------------------------
Xxxxxx X. Xxxxx
----------------------------
Xxxxx X. Pink
----------------------------
Xxxxxx X. Xxxxxxxx
----------------------------
C. Xxxxx Xxxxxx
----------------------------
Xxxxxxx X. Xxxx
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----------------------------
Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxx
