SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report: September 30, 1998
GS TELECOM LIMITED.
(Exact name of registrant as specified in its charter)
COLORADO 0-13313 36-3296861
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
C/O 10200 W. 44TH AVE., #400, WHEAT RIDGE, CO 80033
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 011-44-171-404-9442
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Item 1. CHANGES IN CONTROL OF REGISTRANT
None.
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
None.
Item 3. BANKRUPTCY OR RECEIVERSHIP
None.
Item 4. CHANGES IN ACCOUNTANTS
None.
Item 5. OTHER EVENTS
The Company, which is in the process of changing its name to
Ecom International Inc., has agreed to acquire all the shares
of Masstech Inc., a Delaware Corporation, whose principal
assets are Software or Intellectual Property Rights (IPR)
acquired from the leading special effects studios of Manex
Entertainment (ME) and Manex Visual Effects (MVE).
The consideration for this acquisition is 50,000,000 shares of
GST common stock and a two year 8% US$ 2.5 million loan note.
(See Exhibit 7.1 - Share Exchange Agreement).
The Company will be dedicated to exploiting the commercial
potential of its software. The merger brings together the IPRs
of two highly innovative companies. The two business divisions
of the Company are:
The Energy Saving Division which designs and markets a range
of high technology, low cost heating control systems that
materially reduce energy consumption and CO2 emissions. These
systems are designed to save energy commercially and
domestically, reduce pollution and contribute towards a
"greener" environment. These systems will form the basis of
the Ecological Division with a much expanded product range.
Ecom's - Software (IPR) Division will exploit, through
Masstech Inc., the wide-ranging commercial opportunities
arising from the highly sophisticated software created or
being created by MVE, a creative, special effects studio with
credits for major movies such as Die Hard, Eraser, Judge Dredd
and Predator.
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The Masstech Software has development potential for many
commercial applications, including the media, games and
entertainment, architecture and engineering, education, the
Web and business presentations, defence, medical and digital
warehousing. The products include VPLA, Visual Effects,
Computer Games, World Wide Web, 3-Dimensional Graphic Toolkits
for motion analysis and Photo Reality.
Item 6. BOARD OF DIRECTORS
Upon the closing of the acquisition of Masstech Inc. and the
filing of the required Section 14f Notice to Shareholders the
Company will re-organize it's Board of Directors and
management to reflect the management skills needed to maximize
its commercial opportunities.
Accordingly the following persons may then be appointed to the
Board of Directors:
Andrew Castle - Chairman and President
Dr. Steven Gillam - Chief Executive Officer
Gary Botha - Finance Director and Secretary is
currently a Director of GS Telecom Limited.
The other current Directors of GS Telecom Limited, David
Innes, Gordon Bliss and Joslin Bennett will resign after
appointment of new directors and compliance with notice
requirements of Section 14f of the Securities Exchange Act of
1934. Marshall Kaye had previously resigned as a Director on
July 29 1998.
Item 7. FINANCIAL STATEMENTS PRO FORMA FINANCIAL & EXHIBITS
7.1 Agreement and Plan of Reorganization
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: September 30, 1998 GS TELECOM LIMITED
By:/s/Gary Botha
--------------------------
Secretary
Exhibit 7.1
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Agreement and Plan of Reorganization
by and among
MASSTECH, INC.
a Delaware corporation
and
GS TELECOM LIMITED
a Colorado corporation
and
the Shareholders of Masstech Inc.
dated: September ____ , 1998
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
MASSTECH, INC.
and
GS TELECOM LIMITED
This Agreement and Plan of Reorganization ("Agreement"), dated as of
September ___, 1998, among MASSTECH, INC. ("MASSTECH"), a Delaware Corporation,
GS TELECOM LIMITED ("GST"), a Colorado Corporation, and the shareholders of
MASSTECH, INC. ("MASSTECH Shareholders") who will join this agreement by
execution.
W I T N E S S E T H:
A. WHEREAS, MASSTECH and GST are corporations duly organized under the
laws of the State of Delaware and Colorado, respectively.
B. PLAN OF REORGANIZATION. The MASSTECH Shareholders are the owners of
100% of the issued and outstanding common stock of MASSTECH. It is the intention
that 100% of the issued and outstanding stock of MASSTECH shall be acquired by
GST in exchange solely for GST voting stock and for the issue TO: - STEVEN
CHARLES GILLAM AND DAVID ANDREW CASTLE:- A Redeemable Note in the sum of
$2,150,000 (Two Million One Hundred and Fifty Thousand) bearing interest at 8%
annually, due 2 years from the date hereof (the First Note); and TO MR. ROBERT
BOBO : A Redeemable Note in the sum of $350,000 (Three Hundred and Fifty
Thousand) bearing interest at 8% annually, due 2 years from the date hereof (the
Second Note);(collectively referred to as "the Notes") _ For Federal Income Tax
purposes it is intended that this exchange shall qualify as a reorganization
within the meaning of SEC 368 (a)(1)(B) of the Internal Revenue Code of 1986, as
amended (the "Code").
C. EXCHANGE OF SHARES. GST and the MASSTECH Shareholders agree that
all of the common shares issued and outstanding of MASSTECH shall be exchanged
with GST for 50,000,000 (Fifty Million) shares of the common stock of GST and
for the issue of the Notes. The pro rata numbers of the GST shares and the Notes
on the closing date, shall be delivered to the individual shareholders in
exchange for their MASSTECH shares as hereinafter set forth.
D. WHEREAS, the parties hereto wish to enter into this Agreement,
pursuant to the provisions of the Delaware Statutes.
NOW, THEREFORE, it is agreed among the parties as follows:
<PAGE>
ARTICLE I
THE CONSIDERATION
1.1 Subject to the conditions set forth herein on the "Closing Date"
(as herein defined), Shareholders of MASSTECH shall exchange 100% of the
outstanding common shares of MASSTECH for 50,000,000 (Fifty Million) common
shares of GST stock and the Notes redeemable to cash under the terms as
contained, in the form of Notes attached as Exhibit "C". The transactions
contemplated by this Agreement shall be completed at a closing ("Closing") on a
closing date ("Closing Date") which shall be as soon as possible after all
shareholder approvals are obtained in accordance with law as set forth in this
Agreement, and subject to negotiation of Employment Agreements with the
Shareholders of MASSTECH who are joining the Board of GST, but no later than 30
days after date hereof (the "Closing Date").
On the Closing Date, all of the documents, shares and notes to be
furnished to GST and MASSTECH shareholders, including the documents to be
furnished pursuant to Article VII of this Agreement, shall be delivered to M.A.
Littman, to be promptly distributed to the parties as specified in this
Agreement.
1.2 At the Closing Date, MASSTECH shall become a wholly owned
subsidiary of GST. MASSTECH's shareholders shall receive pro rata shares of no
par value voting common stock as follows:
GST shall issue 50,000,000 (Fifty Million ) of its shares of
common stock for 100% of the outstanding common shares of
MASSTECH, pro rata to the shareholders of MASSTECH; b) GST
shall issue the Notes in the form attached as Exhibit "C",
subject to the written instructions of MASSTECH.
1.3 If this Agreement is duly adopted by the holders of the requisite
number of shares, in accordance with the applicable laws and subject to the
other provisions hereof, such documents as may be required by law to accomplish
the Agreement shall be delivered and filed as required by law to effectuate
same, and it shall become effective. The time of filing the last document
required by law and delivery of shares and notes shall be the Closing Date for
the Agreement. For accounting purposes, the Agreement shall be effective as of
12:01 a.m., on the last day of the month preceding the Closing Date.
1.4 Two of the Shareholders of MASSTECH shall become executive
directors of the Board of GST at the Closing Date namely, Steven Charles Gillam
of West Barn, Somersall Hall Drive, Chesterfield, Derbyshire and David Andrew
Castle of Orchard Cottage, New Road, Woolley, Wakefield, Yorkshire on terms to
be comprised and agreed in Employment Agreements with GST before the Closing
Date.
1.5 At the Closing Date all of the Directors of GST shall resign from
the Board with the exception of Gary Botha of Boundary Road, Chatham, Kent,
without any compensation for loss of office.
<PAGE>
ARTICLE II
ISSUANCE AND EXCHANGE OF SHARES
2.1 The shares of no par value common stock of GST shall be issued by
it to MASSTECH shareholders at closing and the Note specified in 1.1 shall be
delivered as instructed by MASSTECH shareholders.
2.2 Other than those previously disclosed in writing, GST represents
that
a. no outstanding options or warrants for its unissued shares
exist;
b. all preferred stock of GST due for redemption as of the date
hereof shall have been redeemed as of closing date, if any;
and
c. that there are no loans or other instruments which carry
conversion rights giving the holder rights to voting shares
in GST at any time after closing.
2.3 The stock transfer books of MASSTECH shall be closed on the Closing
Date, and thereafter no transfers of the stock of MASSTECH shall be made.
2.4 No fractional shares of GST stock shall be issued as a result of
the Agreement. Shares shall be rounded up to nearest whole share.
2.5 At the Closing Date, each holder of a certificate or certificates
representing common shares of MASSTECH, upon presentation and surrender of such
certificate or certificates to the Exchange Agent, shall be entitled to receive
the consideration set forth herein, except that holders of those shares as to
which dissenters' rights shall have been asserted and perfected pursuant to
Delaware law shall not be converted into shares of GST common stock, but shall
represent only such dissenters' rights. Upon such presentation, surrender, and
exchange as provided in this Section 2.5, certificates representing shares of
MASSTECH previously held shall be cancelled. Until so presented and surrendered,
each certificate or certificates which represented issued and outstanding shares
of MASSTECH at the Closing Date shall be deemed for all purposes to evidence the
right to receive the consideration set forth in Section 1.2 of this Agreement.
If the certificates representing shares of MASSTECH have been lost, stolen,
mutilated or destroyed, GST shall require the submission of an indemnity
agreement and may require the submission of a bond in lieu of such certificate.
ARTICLE III
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF MASSTECH, INC.
No representations or warranties are made by any director, officer,
employee or shareholder of MASSTECH as individuals, MASSTECH hereby represents,
warrants and covenants to GST, as follows:
<PAGE>
3.1 MASSTECH is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has the corporate
power and authority to own or lease its property and to carry on its business in
accordance with the Articles of Incorporation and Bylaws of MASSTECH which are
complete and accurate, and the minute books of MASSTECH contain a record, which
is complete and accurate in all material respects, of all meetings, and all
corporate actions of the shareholders and board of directors of MASSTECH.
3.2 The aggregate number of shares which MASSTECH is authorized to
issue is 1,000 (One Thousand) shares of common stock with no par value of which
all shares are issued and outstanding. No Preferred shares are authorized or
thereby outstanding.
3.3 MASSTECH has complete and unrestricted power to enter into and,
upon the appropriate approvals as required by law, to consummate the
transactions contemplated by this Agreement.
3.4 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by MASSTECH will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of MASSTECH.
3.5 The execution, delivery and performance of this Agreement has been
duly authorized and approved by MASSTECH's Board of Directors.
3.6 MASSTECH has never traded and has no liabilities
3.7 There are no legal proceedings or regulatory proceedings involving
material claims pending, or to the knowledge of the officers of MASSTECH,
threatened against MASSTECH or affecting any of its assets or properties, and
MASSTECH is not in any material breach or violation of or default under any
contract or instrument to which MASSTECH is a party, and no event has occurred
which with the lapse of time or action by a third party could result in a
material breach or violation of or default by MASSTECH under any contract or
other instrument to which MASSTECH is a party or by which it or any of its
properties may be bound or affected, or under its respective Articles of
Incorporation or Bylaws, nor is there any court or regulatory order pending,
applicable to MASSTECH.
3.8 The representations and warranties of MASSTECH are true and correct
as of the date hereof.
3.9 MASSTECH has no employee benefit plan, including non-qualified
stock awards, options, and consulting fees for independent contractors.
3.10 No representation or warranty by MASSTECH in this Agreement, or
any certificate delivered pursuant hereto contains any untrue statement of a
material fact or omits to state any material fact necessary to make such
representation or warranty not misleading.
<PAGE>
3.11 INTELLECTUAL PROPERTY. All trade names, inventions, discoveries,
ideas, research, engineering, methods, practices, processes, systems, formulae,
designs, drawings, products, projects, improvements, developments, know-how, and
trade secrets which are used in the conduct of MASSTECH's business, whether
registered or unregistered (collectively the "Proprietary Rights") are owned by
or licensed to MASSTECH. Such Proprietary Rights are not subject to any
restriction, lien, encumbrance, right, title or interest in others. All of the
foregoing Proprietary Rights that are not in the public domain stand or are
licensed as the case may be, solely in the name of MASSTECH and not in the name
of any shareholder, director, officer, agent, partner or employee or anyone else
known to MASSTECH and none of the same have any right, title, interest,
restriction, lien or encumbrance therein or thereon or thereto. To the knowledge
of MASSTECH, MASSTECH's ownership and use of the Proprietary Rights do not and
will not infringe upon, conflict with or violate in any material respect any
patent, copyright, trade secret or other lawful proprietary right of any other
party, and no claim is pending or, to the knowledge of MASSTECH, threatened to
the effect that the operations of MASSTECH infringe upon or conflict with the
asserted rights of any other person under any of the Proprietary Rights, and to
the knowledge of MASSTECH there is no reasonable basis for any such claim
(whether or not pending or threatened). No claim is pending, or to the knowledge
of MASSTECH, threatened to the effect that any such Proprietary Rights owned or
licensed by MASSTECH, or which MASSTECH otherwise has the right to use, is
invalid or unenforceable by MASSTECH and there is no reasonable basis for any
such claim (whether or not pending or threatened). MASSTECH has not granted or
assigned to any other person or entity any right to manufacture, have
manufactured, assemble or sell the products or proposed products or to provide
the services or proposed services of MASSTECH.
3.12 a. LIENS. Except as disclosed on Schedule 3.13(a), there is no
claim to any right, title, interest, lien, claim, security
interest, restriction or encumbrance in, on or to MASSTECH's
assets.
b. MATERIAL CONTRACTS. Other than as disclosed on Schedule
3.15(b), there is no material obligation, contract, agreement,
lease, sublease, commitment or understanding of any kind,
nature or description, oral or written, fixed or contingent
due or to become due, existing or inchoate.
c. NO UNDISCLOSED LIABILITIES. MASSTECH does not have any
material liabilities or obligations, including, without
limitation, contingent liabilities for the performance of any
obligation not in excess of $2,000 in the aggregate.
d. ENVIRONMENTAL MATTERS. (i) MASSTECH has not received notice
of any violation of or investigation relating to any environ-
mental or pollution law, regulation, or ordinance with respect
to assets now or previously owned or operated by MASSTECH
that has not been fully and finally resolved; (ii) All permits
licenses and other authorizations which are required under
United States, federal, state, provincial and local laws with
respect to pollution or protection of the environment
("Environmental Laws") relating to assets now owed or operated
by MASSTECH or any of its subsidiaries, including
<PAGE>
Environmental Laws relating to actual or threatened emissions,
discharges or releases of pollutants, contaminants or
hazardous or toxic materials or wastes ("Pollutants"), have
been obtained and are effective, and, with respect to assets
previously owned or operated by MASSTECH, were obtained and
were effective during the time of MASSTECH's operation; (iii)
To the knowledge of MASSTECH, no conditions exist on, in or
about the properties now or previously owned or operated by
MASSTECH or any third-party properties to which any Pollutants
generated by MASSTECH were sent or released that could give
rise on the part of MASSTECH to liability under any
Environmental Laws, claims by third parties under
Environmental Laws or under common law or the occurrence of
costs to avoid any such liability or claim; and (iv) to the
knowledge of MASSTECH, all operators of MASSTECH's assets are
in compliance with all terms and conditions of such
Environmental Laws, permits, licenses and authorizations, and
are also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained
in such laws or contained in any regulation, code, plan,
order, decree, judgement, notice or demand letter issued,
entered, promulgated or approved thereunder, relating to
MASSTECH's assets.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF GS TELECOM LIMITED
No representations or warranties are made by any director, officer,
employee or shareholder of GST as individuals, except as and to the extent
stated in this Agreement or in a separate written statement.
GST hereby represents, warrants and covenants to MASSTECH, except as
stated in the GST Disclosure Statement, as follows both for itself and it's
subsidiary and associated companies:
4.1 (a) GST is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado, and has the corporate
power and authority to own or lease its properties and to carry on its business
as it is now being conducted. The Articles of Incorporation and Bylaws of GST,
copies of which have been delivered to MASSTECH, are complete and accurate, and
the minute books of GST contain a record, which is complete and accurate in all
material respects, of all meetings, and all corporate actions of the
shareholders and Board of Directors of GST.
(b) All subsidiary and associated companies of GST have been
formed and have conducted their business in accordance with the laws of the
country and/or state in which they are resident.
4.2 The aggregate number of shares which GST is authorized to issue is
100,000,000 (One Hundred Million) shares of common stock with no par value per
share, of which 16,828,220 ( Sixteen Million Eight Hundred and Twenty Eight
Thousand Two Hundred and Twenty ) shares of such common stock will be issued and
outstanding, fully paid and non-assessable, prior to closing under this
agreement.
<PAGE>
GST has no outstanding options, warrants or other rights to purchase, or
subscribe to, or securities convertible into or exchangeable for any shares of
capital stock, except for the notes with conversion privileges listed in
Schedule 4.2. No preferred stock of GST is outstanding.
4.3 GST has complete and unrestricted power to enter into and, upon the
appropriate approvals as required by law, to consummate the transactions
contemplated by this Agreement.
4.4 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by GST will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of GST or the rules of N.A.S.D.A.Q. and/or
the Securities Exchange Commission (S.E.C.) where appropriate.
4.5 The execution of this Agreement has been duly authorized and
approved by the GST's Board of Directors.
4.6 GST has delivered to MASSTECH audited financial statements of GST
and all subsidiary and associated companies dated June 30, 1997. All such
statements, herein sometimes together called "GST Financial Statements" are (and
will be) complete and correct in all material respects and, together with the
notes to these financial statements, present fairly the financial position and
results of operations of GST of the periods indicated. All statements of GST and
its subsidiary and associated companies will have been prepared in accordance
with generally accepted accounting principles.
4.7 Since the dates of the GST Financial Statements, there have not
been any material adverse changes in the business or condition, financial or
otherwise of GST or any subsidiary or associated company. GST does not have any
material liabilities or obligations, secured or unsecured except as shown on
updated financials (whether accrued, absolute, contingent or otherwise)
disclosed to the MASSTECH shareholders in writing prior to the closing and the
Closing Date.
4.8 GST has delivered to MASSTECH a full list and description of all
existing pending legal proceedings involving GST, none of which will materially
adversely affect them, and, except for these proceedings, there are no legal
proceedings or regulatory proceedings involving material claims pending, or, to
the knowledge of the officers of GST and its subsidiary and associated
companies, threatened against any of these companies or affecting any of its
assets or properties, and none have committed any material breach or violation
of or default under any contract or instrument to which any of these companies
is a party, and no event has occurred which with the lapse of time or action by
a third party could result in a material breach or violation of or default under
any contract or other instrument to which any of these companies is a party or
by which they or any of their respective properties may be bound or affected, or
under their respective Articles of Incorporation or Bylaws, nor is there any
court or regulatory order pending, applicable to any of these companies.
<PAGE>
4.9 Neither GST or any subsidiary or associated company or agent
thereof shall not enter into or consummate any transactions prior to the Closing
Date other than in the ordinary course of business and will pay no dividend, or
increase the compensation of officers and will not enter into any agreement or
transaction which would adversely affect its financial condition, or issue any
new shares.
4.10 GST or any subsidiary or associated company is not a party to any
contract performable in the future, except as shown in Schedule 4.10.
4.11 The representations and warranties of GST are true and correct as
of the date hereof.
4.12 GST has delivered, or will deliver within four weeks of the date
of this Agreement, to MASSTECH, all of its corporate books and records for
review, true and correct copies of GST tax return since 1996, if any. GST will
also deliver to MASSTECH on or before the Closing Date any reports relating to
the financial and business condition of GST which occur after the date of this
Agreement and any other reports sent generally to its shareholders after the
date of this Agreement.
4.13 GST has no employee benefit plan in effect at this time.
4.14 No representation or warranty by GST in this Agreement, the GST
Disclosure Statement or any certificate delivered pursuant hereto contains any
untrue statement of a material fact or omits to state any material fact
necessary to make such representation or warranty not misleading.
4.15 GST agrees that all rights to indemnification now existing in
favor of the employees, agents, directors or officers of MASSTECH and its
subsidiaries, as provided in the Articles of Incorporation or Bylaws or
otherwise in effect on the date hereof shall survive the transactions
contemplated hereby in accordance with their terms, and GST expressly assumes
such indemnification obligations of MASSTECH.
ARTICLE V
OBLIGATIONS OF THE PARTIES PENDING THE CLOSING DATE
5.1 This Agreement shall be duly submitted to the shareholders of
MASSTECH for the purpose of considering and acting upon this Agreement in the
manner required by law at a meeting of shareholders on a date selected by
MASSTECH, such date to be the earliest practicable date. The Board of Directors
of MASSTECH, subject to its fiduciary obligations to shareholders, shall use its
best efforts to obtain the requisite approval of MASSTECH shareholders of this
Agreement and the transactions contemplated herein. MASSTECH and GST shall take
all reasonable and necessary steps and actions to comply with and to secure
MASSTECH shareholder approval of this Agreement under the Delaware General Laws.
5.2 At all times prior to the Closing Date during regular business
hours, each party will permit the other to examine its books and records and the
<PAGE>
books and records of its subsidiaries and will furnish copies thereof on
request. It is recognized that, during the performance of this Agreement, each
party may provide the other parties with information which is confidential or
proprietary information. During the term of this Agreement, and for four years
following the termination of this Agreement, the recipient of such information
shall protect such information from disclosure to persons, other than members of
its own or affiliated organizations and its professional advisers, in the same
manner as it protects its own confidential or proprietary information from
unauthorized disclosure, and not use such information to the competitive
detriment of the disclosing party. In addition, if this Agreement is terminated
for any reason, each party shall promptly return or cause to be returned all
documents or other written records of such confidential or proprietary
information, together with all copies of such writings and, in addition, shall
either furnish or cause to be furnished, or shall destroy, or shall maintain
with such standard of care as is exercised with respect to its own confidential
or proprietary information, all copies of all documents or other written records
developed or prepared by such party on the basis of such confidential or
proprietary information. No information shall be considered confidential or
proprietary if it is (a) information already in the possession of the party to
whom disclosure is made, (b) information acquired by the party to whom the
disclosure is made from other sources, or (c) information in the public domain
or generally available to interested persons or which at a later date passes
into the public domain or becomes available to the party to whom disclosure is
made without any wrongdoing by the party to whom the disclosure is made.
5.3 GST and MASSTECH shall promptly provide each other with information
as to any significant developments in the performance of this Agreement, and
shall promptly notify the other if it discovers that any of its representations,
warranties and covenants contained in this Agreement or in any document
delivered in connection with this Agreement was not true and correct in all
material respects or became untrue or incorrect in any material respect.
5.4 All parties to this Agreement shall take all such action as may be
reasonably necessary and appropriate and shall use their best efforts in order
to consummate the transactions contemplated hereby as promptly as practicable.
ARTICLE VI
PROCEDURE FOR EXCHANGE
6.1 At the Closing Date, the exchange shall be effected as set forth in
Colorado Laws with common stock certificates and the Notes of GST being
exchanged for MASSTECH common stock certificates.
ARTICLE VII
CONDITIONS PRECEDENT TO THE
CONSUMMATION OF THE EXCHANGE
The following are conditions precedent to the consummation of the
Agreement on or before the Closing Date:
<PAGE>
7.1 MASSTECH shall have performed and complied with all of its
respective obligations hereunder which are to be complied with or performed on
or before the Closing Date and GST and MASSTECH shall provide one another at the
Closing with a certificate to the effect that such party has performed each of
the acts and undertakings required to be performed by it on or before the
Closing Date pursuant to the terms of this Agreement.
7.2 This Agreement, the transactions contemplated herein shall have
been duly and validly authorized, approved and adopted, at meetings of the
shareholders of MASSTECH duly and properly called for such purpose in accordance
with the applicable laws.
7.3 No action, suit or proceeding shall have been instituted or shall
have been threatened before any court or other governmental body or by any
public authority to restrain, enjoin or prohibit the transactions contemplated
herein, or which might subject any of the parties hereto or their directors or
officers to any material liability, fine, forfeiture or penalty on the grounds
that the transactions contemplated hereby, the parties hereto or their directors
or officers, have violated any applicable law or regulation or have otherwise
acted improperly in connection with the transactions contemplated hereby, and
the parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
7.4 All actions, proceedings, instruments and documents required to
carry out this Agreement and the transactions contemplated hereby and the form
and substance of all legal proceedings and related matters shall have been
approved by counsel for MASSTECH and GST.
7.5 The representations and warranties made by MASSTECH and GST in this
Agreement shall be true as though such representations and warranties given by
each to the other at closing had been made or given on and as of the Closing
Date, except to the extent that such representations and warranties may be
untrue on and as of the Closing Date because of (1) changes caused by
transactions suggested or approved in writing by MASSTECH or (2) events or
changes (which shall not, in the aggregate, have materially and adversely
affected the business, assets, or financial condition of GST or MASSTECH)
occurring or arising after the date of this Agreement.
7.6 MASSTECH shall have furnished GST with:
(1) a certified copy of a resolution or resolutions
duly adopted by the Board of Directors of MASSTECH approving
this Agreement and the transactions contemplated by it and
directing the submission thereof to a vote of the shareholders
of MASSTECH;
(2) a certified copy of a resolution or resolutions
duly adopted by a majority of all of the classes of
outstanding shares of MASSTECH capital stock approving this
Agreement and the transactions contemplated by it;
<PAGE>
(3) an agreement from each "affiliate" of MASSTECH as
defined in the rules adopted under the Securities Act of 1933,
as amended, to the effect that (a) the affiliate is familiar
with SEC Rules 144 and 145; (b) none of the shares of GST
common stock will be transferred by or through the affiliate
in violation of the Federal Securities Laws; (c) the affiliate
will not sell or in any way reduce his risk relative to any
GST common stock received pursuant to this Agreement until
such time as financial results covering at least 30 days of
post-closing date combined operations shall have been
published by GST on SEC Form 10-Q or otherwise; and (d) the
affiliate acknowledges that GST is under no obligation to
register the sale, transfer, or the disposition of GST common
stock by the affiliate or to take any action necessary in
order to make an exemption from registration available to the
affiliate, but understands that GST will satisfy the public
information requirements of Rules 144 and 145 during the
three-year period following the Closing Date.
(4) Each U.S. citizen shareholder of MASSTECH shall sign a
Consent/Subscription Agreement as contained on Exhibit "A".
7.7 GST shall furnish MASSTECH with a certified copy of a resolution or
resolutions duly adopted by the Board of Directors of GST, approving this
Agreement and the transactions contemplated by it.
7.8 The Shareholders of MASSTECH who are joining the Board of GST as
Directors shall have agreed to the form and content of their respective Service
Agreements with GST or any UK subsidiary or associated company thereof as the
case may be for a duration of no less than two years upon terms that are
acceptable to them and to the Board of GST which shall have been signed and held
in escrow pending the Closing Date.
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.1 Anything contained in this Agreement to the contrary
notwithstanding, the Agreement may be terminated and abandoned at any time
(whether before or after the approval and adoption thereof by the shareholders
of MASSTECH) prior to the Closing Date:
(a) By mutual consent in writing of MASSTECH and GST;
(b) By MASSTECH, or GST, if any condition set forth
in Article VII relating to the other party has not been met or
has not been waived;
(c) By MASSTECH, or GST, if any suit, action or other
proceeding shall be pending or threatened by the federal or a
state government before any court or governmental agency, in
which it is sought to restrain, prohibit or otherwise affect
the consummation of the transactions contemplated hereby;
<PAGE>
(d) By any party, if there is discovered any material
error, misstatement or omission in the representations and
warranties of another party;
(e) By any party if the Agreement Effective Date is
not within 30 days from the date hereof; or
(f) MASSTECH shall have the right to assign this
agreement to any other entity, at any time, subject to the due
diligence terms herein, provided that it may assign only once
at which time the 30 days contemplated in (e) above shall
begin to run again.
8.2 Any of the terms or conditions of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, by action taken
by its Board of Directors provided; however, that such action shall be taken
only if, in the judgement of the Board of Directors taking the action, such
waiver will not have a materially adverse effect on the benefits intended under
this Agreement to the party waiving such term or condition.
ARTICLE IX
TERMINATION OF REPRESENTATION AND
WARRANTIES AND CERTAIN AGREEMENTS
9.1 The respective representations and warranties of the parties hereto
shall expire with, and be terminated and extinguished by consummation of the
Agreement; provided, however, that the covenants and agreements of the parties
hereto shall survive in accordance with their terms.
ARTICLE X
MISCELLANEOUS
10.1 This Agreement embodies the entire agreement between the parties,
and there have been and are no agreements, representations or warranties among
the parties other than those set forth herein or those provided for herein.
10.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument. Counterparts shall include the execution of the
Consent/Subscription Agreement and Representations by all shareholders of
MASSTECH.
10.3 All parties to this Agreement agree that if it becomes necessary
or desirable to execute further instruments or to make such other assurances as
are deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
10.4 This Agreement may be amended upon approval of the Board of
Directors of each party provided that the shares issuable hereunder shall not be
amended without approval of the requisite shareholders of MASSTECH.
<PAGE>
10.5 Any notices, requests, or other communications required or
permitted hereunder shall be delivered personally or sent by overnight courier
service, fees prepaid, addressed as follows:
To MASSTECH, Inc.:
c/o Fox Brooks Marshall (D.A.Castle)
Century House, St. Peter's Square
Manchester,
England
To GS Telecom Limited:
33 Great James Street
London, England
WC1N 3HB
or such other addresses as shall be furnished in writing by any party,
and any such notice or communication shall be deemed to have been given
as of the date received.
10.6 No press release or public statement will be issued relating to
the transactions contemplated by this Agreement without prior approval of
MASSTECH and GST. However, either MASSTECH or GST may issue at any time any
press release or other public statement it believes on the advice of its counsel
it is obligated to issue to avoid liability under the law relating to
disclosures, but the party issuing such press release or public statement shall
make a reasonable effort to give the other party prior notice of and opportunity
to participate in such release or statement.
IN WITNESS WHEREOF, the parties have set their hands and seals this
_____ day of September, 1998.
MASSTECH, Inc. GS TELECOM LIMITED
By:__________________________ By:_________________________
President President
Attest:________________________ By:__________________________
Director Secretary
<PAGE>
MASSTECH, Inc., SHAREHOLDERS (by signature below or pursuant to execution of the
Exchange Agreement and Representations incorporating this Agreement by
reference.)
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