U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________
Commission File Number 0-14279
INTERCONTINENTAL TECHNOLOGIES GROUP, INC., NV
_________________________________________________________________
(Exact name of small business issuer as specified in its charter)
Nevada 88-0199585
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
310 South Carson Street, Carson City, Nevada 89701
(Address of principal executive offices) (Zip Code)
(702) 882-6629
(Issuer's telephone number, including area code)
N/A
(Former name, former address and former fiscal year, if changed
since last report)
Check whether the Issuer (1) filed all reports required to be
filed by Section 13 or 15(d) of the Exchange Act during the past
12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
The aggregate number of shares outstanding of the Issuer's Common
Stock, its sole class of common equity, was 5,191,593 as of
September 30, 1997.
This report consists of 32 pages.<PAGE>
Part I. Item 1. FINANCIAL STATEMENTS
(attached at end of Part 1)
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR
PLAN OF OPERATION
Current Operations
ITG Energy, Inc. Energy continued its oil production
business during the third quarter, selling approximately $22,500
of crude oil as the oil field maintenance completed earlier
finally showed anticipated results.
International Semiconductor Investment
ITG currently owns 1,355,000 shares of the common stock of
International Semiconductor Corp., which is in the business of
producing gallium arsenide diodes for use in the high-tech
electronics industry, and is based in Migdal Haemek, Israel. ISC
is a Nevada corporation, publicly held, and currently trading on
the over-the-counter market. At the time of the filing of this
report, ISC has been trading in the range of $0.10 to $0.05 per
share.
Skysite Investment
During the first quarter, 1997, ITG entered into a series of
negotiations with both Skysite and outside investors to alleviate
the continuing growth capital requirements of Skysite. This
resulted in the investment, by third parties, directly into
Skysite during the first quarter, and then, during the Second
Quarter, an outright sale of ITG's interest in Skysite's shares
to VisCorp, a publicly traded corporation based in Chicago,
Illinois. VisCorp will continue the business as developed,
although Viscorp has since changed its name to "US Digital". ITG
received 341,800 shares of VisCorp common stock during the third
quarter and an option to acquire an additional 300,000 for an
exercise price of $0.40 per share for a period of four years
following closing. ITG was relieved of its obligation to provide
collateral guarantees of airtime usage to Skysite's contracted
supplier, American Mobile Satellite Corporation. This
transaction was not completed until the 23rd of June, 1997 and
resulted in a temporary loss, as the $263,750 investment
allocated to Skysite was converted into shares and options
cumulatively valued at $0.50 per share as of the date of closing,
or a loss of $80,850 on the transaction. VisCorp (US Digital)
stock, with the acquisition of Skysite, rose to $1.00 per share
at the end of the third quarter, 1997, and is reflected at the
higher market value in this quarterly report ending September 30,
1997. At November 15, 1997, US Digital's stock was quoted at
$1.68/$1.75.
US Automotive
US Automotive is involved in the sales and marketing of
improved oil filtration systems for combustion engines, primarily
heavy trucks and busses. Negotiations began for exclusive
representation in the US and certain European and Southeast Asian
territories. US Automotive, a newly-formed Nevada corporation,
is owned jointly by ITG and the former principals of GTI. It
entered into an exclusive representation contract with Radale
Imports, Inc., in the U.S. and European markets. US Automotive
has complete rights to the technology in Indonesia, the European
Economic Community and Korea, and limited rights with respect to
automotive, marine and aviation power plants in the United
States. US Automotive received its first purchase order (500
filters), from the distributor based in Indonesia, earning a
profit of $7,500, in September, 1997.
Reno River Plaza Development Corporation
During the first quarter, the Company was asked, by a local
architectural firm, which had been engaged by the City of Reno
for municipal planning purposes, to aid in the planning for the
redevelopment of the Truckee river corridor, within the city
limits of Reno, Nevada. The Company formed a subsidiary, Reno
River Plaza Development Corporation, and initiated a study aimed
at creation of a total development plan. During the second
quarter, the development plan was completed and presented to the
City of Reno. The city, after reviewing the presentation,
requested the development of further information concerning the
plan. The final plan was prepared and filed with the City on
September 2, 1997. ITG's prospective teaming partners in this
project: Birtcher Construction Services, Inc., S.J. Ameroso
Construction Co., Inc., and Arciero Brothers Contractors, Inc.,
with financial support provided by CitiCorp, Union Labor Life and
Miller & Schroeder, who have committed their time and energies to
the Reno River Plaza Redevelopment Corp. at cost, or in some
cases at their own expense.
During the third quarter, ITG entered into option agreements
on properties located within the targeted development zone.
Further sums were committed to analysis, development and
presentation of the overall project to the City Council of Reno,
and to various interested developer and investor groups.
On Time Data
The company entered into a convertible loan agreement with
On Time Data, Inc., a recently formed start-up that promotes
computer software and tracking to control and virtually eliminate
home-healthcare, provider fraud. The system operates using
identification software, keyed to each individual provider of
services, and a cross-referencing of the location from which that
individual telephones the master record-keeping system. Each
service provider contacts the main system upon arrival at their
assigned client/patient, and generally again upon departure. The
computer then compares all accumulated data to the pre-programmed
schedule and confirms that the service provider is at the correct
location and with the contracted patient. This system provides
double confirmation of services performed, thereby meeting New
York State requirements in existence already, and projected to be
the law in other jurisdictions in the future. Cost of the
service is effectively 25 cents per phone call to the provider,
and On Time Data can provide instantaneous record-keeping and
billing services to the providers. All data is available to the
clients over the Internet, and each client maintains its own
Internet capacity for tracking and monitoring. On Time has been
in existence for approximately six months and is adding clients
at the rate of 2 to 3 per month. Break even is estimated to
occur in February or March of 1998 at the current rate of growth,
and sooner if more capital is invested. ITG loaned On Time
$50,000 with a credit line potential of an additional $50,000, in
exchange for 25% of the common stock of On Time Data, and a
return of the capital out of alternate funding or profits.
Chinese Joint Venture Developments
On May 16, 1997, the company loaned $100,000 to John Reed
International, Inc., a Nevada corporation, having contract
interests in the Provinces of Shandong and Hunan, China, with the
intent of further development of coal mining properties that
currently exist in the City of Zaozhuang. JRI has the exclusive
contract to locate, identify, and contract with firms providing
capital equipment to the Zaozhuang Coal Mining Bureau, a Chinese
Governmental entity, owned by the City of Zaozhuang. Capital
equipment estimates are in the range of $110,000,000, with 10% of
the funding to be provided in cash by the City of Zaozhuang. The
remainder is to be guaranteed by the Provincial and Federal
Governments. In Hunan Province, JRI has been tasked with
providing increased access to cellular telephony technology, and
has been granted a license to purchase equipment to establish a
cellular phone system, primarily for the railway company
communications system operating through central China. ITG can
convert its loan into 25% of the equity of JRI, or obtain an
additional 25% of JRI common (up to 50% total equity
participation) for an additional $150,000 of capital investment.
This decision is not required until execution of a contract
between the Chinese corporation and the equipment supplier.
During the third quarter, JRI was approached by Korean and
Japanese investment interests desirous of underwriting the
tinplate manufacturing project conceptualized by JRI in 1995,
with executed contracts established between JRI, Pacific Vista
Industries and Hesei Construction as foreign parties and
providers, and the City of Tangshan, Hebei Province, China as the
Chinese Joint Venture partner. The total project contemplates
the investment of US$90,000,000 into the construction of an
ultra-modern tinplate manufacturing facility to be located at the
port city of JingTang, itself a joint venture between the cities
of Tangshan and Beijing.
Capital Resources and Liquidity of ITG
Operating Loans During the third quarter, ITG repaid an
additional $14,033 on its loans secured by the Gita Temple Ashram
Mortgage, with the balance at September 30, 1997 reduced to
$138,281 on the "first" and remaining at $40,000 on the "second".
ITG had sufficient cash resources resulting from the sale by its
subsidiary, Aero and repayment of sums advanced to Aero, to
satisfy all immediate creditors and commitments coming current
during the third quarter.
Employee Stock Transactions None. The officers that have served
the company for the previous 3 years remain unpaid, and will
defer any compensation until such time as the company is in
satisfactory financial condition. Tom Hanson, the new Chief
Operating Officer, began his employment during the first quarter,
and receives $3,000 per month for his services.
Manufacturing The company has no manufacturing operations, and
has had none since the sale of the Continental Connector
subsidiary's operations during the summer of 1993.
Selling and Marketing The Company currently has no marketing
plans, pending analysis of the Reno project and the result of
sales of its Skysite and Aero subsidiaries.
Part 1. Item 1. (continued) FINANCIAL STATEMENTS:
The unaudited financial statements for the Second Quarter
follow:
Consolidated Balance Sheet Page 5
Statements of Cash Flows Page 6
Statements of Opertions Page 7
Notes to Financial Statements Page 8
<PAGE>
Intercontinental Technologies Group, Inc.
Unaudited Balance Sheet
September 30, 1997
ASSETS
Current assets:
Cash $ 405,636
Trading Securities 363,800
Accounts receivable, other 56,950
Notes receivable - current portion 30,477
----------
Total current assets 856,863
Property and equipment, at cost, less
accumulated depreciation of $138,279 187,497
Notes receivable - non-current 675,262
Deposits 60,000
----------
1,779,622
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable 12,500
Current portion of long-term debt 181,314
Accounts payable 35,425
Accrued expenses 325,763
Amount due officer 89,632
---------
Total current liabilities 644,634
Advances from affiliates 292,521
Long-term debt 54,750
Stockholders' equity:
Common stock $.001 par value,
750,000,000 shares authorized,
5,191,593 shares issued and
outstanding 5,192
Additional paid-in capital 4,041,680
Accumulated deficit ( 3,259,155)
---------
787,717
---------
1,779,622
=========
See accompanying notes to financial statements.
<PAGE>
Intercontinental Technologies Group, Inc.
Statements of Cash Flows
For the Nine Months Ended September 30, 1997 and 1996
Nine Months Nine Months
Ended Ended
September 30, September 30,
1997 1996
------------ ------------
Net cash provided by (used in)
operating activities $ (563,534) $ (330,430)
Cash flows from investing activities
Acquisition of property and equip (25,435) ( 3,285)
Increase in deposits ( 9,000) -
Sale of leasehold interest 1,000,000 -
Advances to unconsolidated
subsidiaries 0 (456,882)
Sale of investment securities 0 499,668
Notes receivable issued (100,000) -
Collection of notes receivable 22,616 323,828
------------ ------------
Net cash provided by (used in)
financing activities 888,181 363,329
Cash flows from financing activities:
Increase in stockholder loans 79,632 47,168
Advances from affiliates - -
Repayment of affiliate advances 39,964 -
Proceeds from notes payable 0 12,500
Repayment of notes payable (39,754) (33,696)
------------ ------------
Net cash provided by (used in)
financing activities 79,842 25,972
------------ ------------
Increase (decrease) in cash 404,489 58,871
Cash and cash equivalents,
beginning of period 1,147 9,629
------------ ------------
Cash and cash equivalents,
end of period $ 405,636 $ 68,500
============ ============
See accompanying notes to financial statements.
<PAGE>
Intercontinental Technologies Group, Inc.
Statements of Operations
For the Three months and Nine Months Ended September 30,
1997 and 1996
<TABLE>
<S> <C> <C> <C> <C>
Three Mo. Three Mo. Nine Mo. Nine
Mo.
Ended Ended Ended Ended
Sept 30, Sept 30, Sept 30, Sept
30,
1997 1996 1997 1996
------------ ------------ --------- ---------
Sales $ 22,605 $ 33,438 48,282 116,523
Cost of sales 21,119 2,905 44,325 19,318
------------ ------------ --------- ---------
Gross profit (loss) 1,486 30,533 3,957 97,205
Other costs and
Expenses: General
and administrative 127,128 116,213 517,772 412,066
------------ ------------ --------- ---------
Income (loss)
from operations (125,642) (85,680) (513,815) (314,861)
------------- ------------ --------- ---------
Other inc(expense):
Gain (loss) on
sale of leasehold (7,061) - 651,925 -
Gain from sale
of investments 0 0 (80,850) 499,668
Interest income 13,639 9,712 41,133 30,913
Interest expense (7,181) (14,332) (26,001) (40,990)
Equity in losses of
unconsolidated
subsidiaries 0 ( 82,023) 0 (206,335)
------------ ------------ --------- ---------
170,297 (86,643) 757,107 283,256
------------ ------------ --------- ---------
Income (loss) before
income taxes 44,655 (172,323) 243,292 (31,605)
Provision for
income taxes 0 0 0 0
------------ ------------ --------- ---------
Net income (loss) 44,655 (172,323) 243,292 (31,605)
============ ============ ========= =========
Earnings (loss) per
Share Net income
(loss): $ 0.01 $ (0.03) 0.05 (0.01)
============ ============ ========= =========
Weighted average
shares outstanding 5,191,593 5,178,260 5,191,593 5,160,482
============ ============ ========= =========
</TABLE>
Intercontinental Technologies Group, Inc.
Notes to Consolidated Financial Statements
The accompanying unaudited financial statements have been
prepared in accordance with generally accepted accounting
principles for interim financial information and with the
instructions to form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management,
all adjustments (consisting of normal recurring adjustments)
considered necessary for a fair presentation have been included.
The results of operations for the periods presented are not
necessarily indicative of the results to be expected for the full
year. The accompanying financial statements should be read in
conjunction with the Company's form 10-KSB filed for the year
ended December 31, 1996.
Income (loss) per share was computed using the weighted average
number of common shares outstanding.
Federal and state income taxes amounting to approximately $18,000
applicable to net income for the nine months ended September 30,
1997, have been reduced to zero due to the availability of net
operating loss carryforwards. The Company has unused loss
carryforwards of approximately $3,424,000 at September 30, 1997.
The federal tax benefit of the accumulated losses of
approximately $1,164,000 has been fully reserved as their
ultimate realization has not been assured.
During January 1997, the Company sold its interest in the Aero
lease to an independent third party for a gross sales price of
$1,100,000. After expenses of the sale, the Company received net
proceeds of $1,026,450 during the period from February to May of
1997. The Company received $1,000,000 of the proceeds during the
nine months ended September 30, 1997.
The lease sale is subject to a claim by the lender for repayment
of the loan amount. The Company expects that the actual amount
due will be determined by litigation or arbitration and has
estimated the possible range of the claim to be from $150,000 to
$1,500,000 and has recorded $310,000, the expected settlement
amount, as a liability and in determining the gain on the sale.
This amount is included in accrued expenses in the accompanying
balance sheet. The Company recorded a gain from the sale of
$651,925 during the nine months ended September 30, 1997.
On April 30, 1997, the Company agreed to sell its interest in the
Skysite joint venture to VisCorp for 341,800 shares of its
restricted common stock and options to purchase 300,000
additional shares at $0.40 per share. Subsequent to the
transaction date, VisCorp informed the Company that the stock
purchase option would not be eercisable until certain issues
regarding the assets of Skysite are resolved. The Company may
record additional income from the sale if the options become
exercisable and such income is expected to be based on the fair
market value of the options at the date of grant. The stock
received had a market value as of the June 28, 1997, closing date
of $0.50 per share. The Company recorded a loss from the
transaction of $80,850 during the quarter ended June 30, 1997.
The Company considers it's investment in VisCorp shares to be
temporary in nature and, accordingly, has classified the
investment as a trading security in the accompanying balance
sheet. VisCorp shares had a market value of $1.00 on September
30, 1997, and, accordingly, the Company recorded an unrealized
gain on the securities of $170,900 during the three months ended
September 30, 1997. No recognition of the increase in the market
value of the stock purchase option has been made due to the
contingency regarding the exercisability of the option. The
Company was relieved of its responsibilities to provide
additional funding to Skysite as a result of the sale.
Part II. Other Information
Item 1. Legal Proceedings
None
Item 2. Changes in Securities
None
Item 3. Default Upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 5. Other Information
None
Item 6. Exhibits and Reports of Form 8-K
Exhibit 10.13 Final Contract with VisCorp for
sale of Skysite shareholdings, with exhibit pages.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, Registrant has duly caused this Report to be signed on its
behalf by the undersigned, thereunto duly authorized.
INTERCONTINENTAL TECHNOLOGIES GROUP, INC.
(Registrant)
Dated: November 18, 1997
By: /s/ Robert M. Terry
Robert M. Terry, President
By: /s/ Robert M. Terry
Robert M. Terry, Treasurer
<PAGE>
Exhibit 10.13
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement")
is made and entered into as of this 23rd dayy 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
$.Ol ("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 shareholdersto exchange all of the capital
stock of skysite for shares of viscorp authorized but
unissuedshares of Common Stock, as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, repre sentations and warranties contained in this
Agreement, the parties hereto agree as follows:
<PAGE>
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 Tom D. Soumas, Jr.
("Soumas"), and (b) 240,000 shares of Common Stock to Soumas,
(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 40 cents 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.
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 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 Nongovernmental
proceedings are threatened against skysite except as set forth on
Schedule 2.10 attached hereto and made a part hereof.
2.11 Agreements. Schedule 2.11 sets forth any material
contract or 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 confonn 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;
(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 skysrm 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 S100,000 plus all costs and expenses of the Private
Placement. viscorp agrees to apply the first net proceeds of
$100,000 so raised, to replace a security deposit of certain
collateral of shares provided by certain of skysite Shareholders
to American Mobile Satellite Corporation ("AMSC"). skysite and
its Shareholders agree that viscorp has made no assurance that
such funds will be raised from the Private Placement.
2.19 Full Disclosure. No representation or warranty by
skysite in this 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
Aqreement will not violate or conflict with any provision of the
respective Articles of Incorporation or by-la",s 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.
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
Blackman Kallick Bartelstein, 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.
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
$.0l 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;
(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 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 perfomance of this Agreement contains or will contain any
untrue statement of a material fact or omits or will omit to
state any fact necessary to make any statement herein or therein
not materially misleading or necessary to complete and correct
presentation of all material aspects of the business of viscorp.
SECTION 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;
(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.
(g) 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 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 Soumas, Jr. (or any present officer and/or
director of viscorp).
(f) skysite and its Shareholders shall deliver an
opinion of its legal counsel to viscorp to the effect that:
(i) skysite is a corporation duly organized
validly existing and in good standing under the laws of the State
of Delaware and is duly qualified to do business in any
jurisdiction where so required except where the failure to so
qualify would have no material adverse impact on the company;
(ii) skysite has the corporate power to carry
on its business as now being conducted; and
(iii) This Agreement has been duly
authorized, executed and delivered by skysite.
SECTION 5. COVENANTS
5.1 Corporate Examinations and Investigations. Prior to
the Closing Date, the parties acknowledge that they have been
entitled, through their employees and representatives, to make
such investigation of the assets, properties, business and
operations, books, records and financial condition of the other
as they each may reasonably require. No investigations, by a
party hereto shall, however, diminish or waive any of the
representations, warranties, covenants or agreements of the party
under this Agreement.
5.2 Expenses. Each party hereto agrees to pay its own
costs and expenses incurred in negotiating this Agreement and
consummating the transactions described herein.
5.3 Further Assurances. The parties shall execute such
documents and other papers and take such further actions as may
be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby. Each such party
shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to the Closing, including, without limitation,
the execution and delivery of any documents or other papers, the
execution and delivery of which are necessary or appropriate to
the Closing.
5.4 Confidentiality. In the event the transactions
contemplated by this Agreement are not consummated, viscorp,
skysite and the Shareholders agree to keep confidential any
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
Notwithstanding any right of viscorp to investigate the
affairs of skysite and its Shareholders, viscorp has the right to
rely fully upon representations, warranties, covenants and
agreements of skysite and its Shareholders contained in this
Agreement or in any document delivered to viscorp by skysite and
its Shareholders or any of their representatives, in connection
with the transactions contemplated by this Agreement. All such
representations, warranties, covenants and agreements shall
survive the execution and delivery hereof and the closing
hereunder for twelve (12) months following the Closing.
SECTION 7. INDEMNIFICATION
For a period of two (2) years from the Closing, skysite and
its Shareholders agree to indemnify and hold harmless viscorp,
and viscorp agrees to indemnify and hold harmless skysite, and
its Shareholders, at all times after the date of this Agreement
against and in respect of any liability, damage, or deficiency,
all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses, including attorneys' fees, incident to any of
the foregoing, resulting from any material misrepresentation made
by any indemnifying party to an indemnified party, an
indemnifying party's breach of covenant or warranty or an
indemnifying party's nonfulfillment of any agreement hereunder,
or from any material misrepresentation or omission from any
certificate furnished or to be furnished hereunder.
In the event any Shareholder listed on Exhibit A to this
Agreement breaches this indemnification in this Section 7 of the
Agreement, in addition to all other remedies, which 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 Closingto 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 to be exchanged for viscorp Shares will be delivered.
(vi) Stock option agreement to certain skysite
Shareholders listed on Exhibit A for a maximum of 500,000 shares
of viscorp, Common Stock at 40 cents 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 Soumas and Siegel;
(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 I 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.
SECTION 9. MISCELLANEOUS
9. 1 Waivers. The waiver of a breach of this Agreement or
the failure of any party hereto to exercise any right under this
Agreement shall in no way constitute waiver as to future breach
whether similar or dissimilar in nature or as to the exercise of
any further right under this Agreement.
9.2 Amendment. This Agreement may be amended or modified
only by an instrument of equal formality signed by the parties or
the duly authorized representatives of the respective parties.
9.3 Assignment. This Agreement is not assignable except by
operation of law.
9.4 Notice. Until otherwise specified in writing, the
mailing addresses and fax numbers
of the parties of this Agreement shall be as follows:
To: viscorp: VisCorp
Attention: Lawrence Siegel
4764 Park Granada
Calabasas, CA 91302
Phone (818) 225-0000
Fax (818) 591-2720
cc: Stuart D. Pearlman, Esq.
Defrees & Fiske
200 South Michigan Avenue
Suite 1100
Chicago, IL 60604
Phone (312) 372-4000
Fax (312) 939-5617
To: skysite: Mr. Tom D. Soumas, Jr.
Skysite Communications Corp.
11500 Sherman Way - Bldg. 2
North Hollywood, CA 91506
Phone (800) SKYSITE
Fax
To: The Shareholders: Chris Dieterich, Esq.
11300 W. Olympic Blvd.
Suite 800
Los Angeles, CA 90064
Phone (310) 312-6888
Fax (310) 312-6680
Any notice or statement given under this Agreement shall be
deemed to have been given if sent by registered mail addressed to
the other party at the address indicated above or at such other
address which shall have been furnished in writing to the
addressor.
9.5 Governing Law. This Agreement shall be construed, and
the legal relations be the parties determined, in accordance with
the laws of the State of Nevada, thereby precluding any choice of
law rules which may direct the application of the laws of any
other jurisdiction.
9.6 Arbitration.
(a) All disputes and differences arising in connection
with or relating to the provisions of this Agreement, including
what constitutes a dispute or difference, shall be settled and
finally determined by arbitration unless agreement in writing has
been reached between the 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 bome in accordance with the determination of
the arbitrators with respect thereto. Pending decision by the
arbitrators with respect to the dispute or difference undergoing
arbitration, all other obligations of the parties hereto shall
continue as stipulated herein, and all monies not directly
involved in such dispute or difference shall be paid when due.
All parties will have the right to appeal as if the award had
been rendered in Federal District Court.
9.7 Publicity. No publicity release or announcement
concerning this Agreement or the transactions contemplated hereby
shall be issued by either party hereto at any time from the
signing hereof without advance approval in writing of the form
and substance by the other party.
9.8 Entire Agreement. This Agreement (including the
Exhibits and Schedules hereto) and the collateral agreements
executed in connection with the consummation of the transactions
contemplated herein contain the entire agreement among the
parties with respect to the purchase and issuance of the Shares
and the viscorp Shares and related transactions, and supersede
all prior agreements, written or oral, with respect thereto,
including but not limited to the Memoranda of Understanding
entered into by the parties hereto on May 2, 1997.
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/ Lawrence Siegel
Lawrence Siegel, President
(Print Name and Title)
ATTEST:
/s/ Hugh Jencks
Hugh Jencks, Secretary
SKYSITE COMMUNICATIONS CORP.
By: /s/ Tom Soumas
Tom D. Soumas, Jr., President
(Print Name and Title)
ALL OF SKYSITE SHAREHOLDERS:
Intercontinental Technologies
Group, Inc.
By: /s/ Christopher Dieterich
Chris Dieterich, Secretary
/s/ Tom Soumas
Tom D. Soumas, Jr.,
Individually
Cochran Ranch and Tennis Club,
a corporation
By: /s/ Michael Savage
Michael Savage, President
Sinai Administrative Trust
By: /s/ Ruben Kitay
Ruben Kitay, Trustee
/s/ George Straayer
George Straayer, Individually
/s/ Carol Anderson
Carol Anderson, Individually
/s/ Howard Garber
Howard Garber
<PAGE>
EXHIBIT A
Listing: (by shareholder)of:
Name of Shareholder of Skysite
Approximate Percentage of Holding
Number of Shares of VisCorp Common Stock
Number of Options to Purchase VisCorp Common Stock
Intercontinental Technologies Group, Inc.
45.37
341,800
300,000
Tom Soumas, Jr.
32.88
240,000
- -0-
Cochran Ranch and Tennis Club, a corporation (Michael Savage)
9.25
69,700
0
Sinai Administrative Trust
(Ruben Kitay, Trustee)
7.50
56,500
0
George Straayer
1.67
14,000
- -0-
Carol Anderson
1.67
14,000
- -0-
Howard Garber
1.67
14,000
- -0-
TOTAL:
100.00
750,000
300,000
<PAGE>
EXHIBIT 2.10
(Actual and Potential Claims)
Witter Publishing vs. Skysite (actual)
Penwell Publishing vs. Skysite (actual)
Geoffrey Stevens vs. Skysite (actual)
Leslie Valencia vs. Skysite (potential)
<PAGE>
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.
<PAGE>
EXHIBIT 4.2(d)
The following claims by Shareholders are not being released
as stated in the Agreement:
Debts due Michael Savage 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 Tom Soumas to Michael Savage and/or Cochran
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 Dieterich & Associates
for their representation of Skysite, Tom Soumas and George
Straayer in the litigation styled Witter vs. Skysite, et. al.
<PAGE>
[ARTICLE] 5
<TABLE>
<S> <C>
[PERIOD-TYPE] 9-MOS
[FISCAL-YEAR-END] DEC-31-1997
[PERIOD-END] SEP-30-1997
[CASH] 405636
[SECURITIES] 363800
[RECEIVABLES] 87427
[ALLOWANCES] 0
[INVENTORY] 0
[CURRENT-ASSETS] 856863
[PP&E] 325776
[DEPRECIATION] 138279
[TOTAL-ASSETS] 1779622
[CURRENT-LIABILITIES] 644634
[BONDS] 193814
[COMMON] 5192
[PREFERRED-MANDATORY] 0
[PREFERRED] 0
[OTHER-SE] 0
[TOTAL-LIABILITY-AND-EQUITY] 1779622
[SALES] 48282
[TOTAL-REVENUES] 48282
[CGS] 44325
[TOTAL-COSTS] 44325
[OTHER-EXPENSES] 517772
[LOSS-PROVISION] 0
[INTEREST-EXPENSE] 26001
[INCOME-PRETAX] 243292
[INCOME-TAX] 0
[INCOME-CONTINUING] 243292
[DISCONTINUED] 0
[EXTRAORDINARY] 0
[CHANGES] 0
[NET-INCOME] 243292
[EPS-PRIMARY] .05
[EPS-DILUTED] .05
</TABLE>
