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 (Date of earliest event reported) June 19, 2000
ADVA International Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
0-16341 16-1284228
(Commission File Number) (IRS Employer Identification No.)
6 Woodcross Drive, Columbia, SC 29212
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (803) 407-3044
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
ADVA International Inc. ("ADVA" or the "Company") has entered
into a definitive agreement of Stock Exchange (the "Agreement")
to acquire all of the outstanding shares of common stock of
Global Information Group USA, Inc. ("GIG") in exchange for
12,468,750 common shares of ADVA, or 94.57% of the total capital
stock outstanding after giving effect to the transaction. The
existing stockholders of ADVA will own the remaining approximate
5%. As a result of the transaction GIG will become a wholly
owned subsidiary of ADVA. The Agreement includes representations,
warranties, covenants and conditions to closing typical of transactions
of this nature. The transaction is also conditioned upon qualifying
as a tax-free exchange under Section 351 of the Internal Revenue Code.
Shareholders of GIG who are not officers or directors of GIG or the
Company will be entitled to one demand registration right, and all GIG
shareholders and Biotel Inc., the Company's largest shareholder prior
to the transaction, will be entitled to certain piggy-back registration
rights. It is contemplated that the present officers of the Company
will resign at Closing and Anthony E. Mohr, President of GIG, will
be appointed President and Chief Executive Officer of the Company.
The Company has agreed, through its board of directors, to approve
a resolution prior to Closing setting the number of directors of the
Company at six, with three designees of GIG to be appointed as
directors, along with the three present directors of ADVA, to serve
until the next election of directors.
The United States Bankruptcy Court for the District of South
Carolina has issued an order on May 5, 2000 approving a
modification to the confirmed Plan of Reorganization of Advanced
Medical Products, Inc., debtor-in-possession (whose name was
changed to ADVA International Inc. following the sale of its
assets and closing of its Chapter 11 bankruptcy case in November
1999). The modification to the confirmed Plan of Reorganization
deletes the provisions for dissolution of the corporation and the
extinguishment of the existing shares of ADVA stock, and
substitutes provisions stating that the corporation will continue
its existence and the existing shares of stock will remain valid.
The court re-opened the case and issued the order approving and
amending the Plan of Reorganization in order that a $300,000
transaction fee, to be funded by GIG at Closing, could be
realized for the benefit of creditors of Advanced Medical
Products, Inc. and the payment of certain related expenses. The
transaction fee will first be used for the payment of certain
expenses with the remaining payments to the priority and unsecured
creditors of Advanced Medical Products, Inc., debtor in possession.
It is expected that priority claims will be paid in full, and
unsecured creditors will receive approximately 70 percent of the
amounts owed. Distribution to undisputed creditors is expected
to be completed within 30 to 45 days of Closing. The satisfactory
resolution of this matter is also a condition to Closing.
GIG develops and markets applications software that runs on the
LINUX Operating System. The current GIG software is believed to
be the only complete 3D solid modeling, animation and rendering
system currently available on the LINUX OS and is used by Digital
Media professionals in the production of film and video special
effects; animation; Computer Aided Design (CAD) and scientific
visualization; website and print graphics; game development; and
virtual television. The LINUX OS is "open-source" software
distributed free on the Internet and developed, debugged and
improved by an international community of programmers in
cooperation with companies such as VA Linux, RedHat, SGI, IBM
and many other major concerns in the computer industry. The
application software market targeted by GIG is the high
volume/low price segment of the computer market where users are
rapidly embracing LINUX as a robust, stable and lower cost
alternative to both UNIX and MS Windows.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired:
None required.
(b) Pro forma financial information: None required.
(c ) Exhibits
Exhibit 1 Press Release, June 19, 2000
Exhibit 2 Agreement of Stock Exchange among the
Sellers, ADVA International Inc., Global Information
Group USA Inc. and Biotel Inc.
SIGNATURES
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 hereunto duly authorized.
ADVA International Inc.
Date: June 19, 2000 By:/s/GEORGE L. DOWN
George L. Down, President
EXHIBIT 1
PRESS RELEASE
ADVA INTERNATIONAL INC. ENTERS INTO DEFINITIVE AGREEMENT TO
EXCHANGE SHARES WITH GLOBAL INFORMATION GROUP USA, INC.
Columbia, SC. June 19, 2000 -ADVA International Inc. (OTC BB -
ADII) today announced that the Company has entered into a
definitive agreement to acquire all of the outstanding common
shares of Global Information Group USA, Inc. (GIG) in exchange
for 12,468,750 common shares of ADVA International Inc., or
approximately 95% of the total number of common shares
outstanding. This gives effect to a 10 for 1 reverse stock split
effected by the Company in March 2000. The remaining 716,250
shares, approximately 5%, will continue to be held by the
existing shareholders of the Company. Biotel Inc., (OTC - BTEL),
ADVA's largest shareholder, has also approved the Agreement. As
a result of the transaction GIG will become a wholly-owned
subsidiary of the Company. The agreement contemplates that
Anthony E. Mohr, President of GIG, will be appointed President
and Chief Executive Officer of ADVA International Inc. and three
new members, appointed by GIG, will be appointed to the ADVA
board of directors, which shall consist of six members. Closing,
which is subject to various conditions, is expected to occur by
July 15th, (subject to extension under certain circumstances.
A federal bankruptcy court issued an order on May 5, 2000
approving an amendment to a previously approved Plan of
Reorganization to accommodate this stock exchange transaction for
the benefit of the ADVA creditors and shareholders. GIG will pay
a transaction fee at closing of $300,000 which will be used for
payment of certain expenses, with the balance to be paid to priority
claims and unsecured creditors of Advanced Medical Products, Inc.
Global Information Group develops and markets application
software that runs on the LINUX Operating System. Its present
software product, first developed for the UNIX OS, is believed to
be the only complete 3D solid modeling, animation, and rendering
system currently available on the LINUX OS. GIG software is used
by Digital Media professionals in the production of: film and
video special effects; animation; Computer Aided Design (CAD) and
scientific visualization; Internet web site and print graphics;
game development; and virtual television. Future GIG plans
include the further development and acquisition of other LINUX-
based applications and software products.
The LINUX OS is "open-source" software, distributed free on the
Internet and via established market channels. It is developed,
debugged and improved by an international community of
programmers in cooperation with companies such as VA Linux
(LNUX), Red Hat (RHAT), Silicon Graphics (SGI), IBM and many
other major concerns in the computer industry. The application
software market targeted by GIG can be characterized as the "high
volume/low price" segment of the computer market where users are
rapidly embracing LINUX as a robust, stable and lower cost
alternative to both UNIX and MS Windows. LINUX is widely
believed to be the fastest growing computer operating system and
the de facto alternative to both UNIX and Microsoft Windows, with
continued growth in market share predicted by many industry analysts.
=======================================================
LINUX is the trademark of Linus Torvalds. GIG is the trademark of
Global Information Group USA, Inc., VA Linux, Red Hat, SGI, IBM
and all others are the trademarks of their respective owners.
Statements contained in this press release that are not
historical fact are "forward-looking" statements and involve
important risks and uncertainties. Such risks and uncertainties
could cause Global Information Group's and ADVA International
Inc.'s consolidated results to differ materially from current
expectations as expressed or implied in this press release.
Exhibit 2
AGREEMENT OF STOCK EXCHANGE
THIS AGREEMENT OF STOCK EXCHANGE ("Agreement") is made as
of this 19th day of June, 2000, by and among Anthony E. Mohr,
Jolec Trading Limited, Hugo Heerema, FOG Investments, Ltd.,
Equation Ventures N.V., Linares Capital Limited, Heydael B.V.,
Henri B. G. Sijthoff, Charles Langereis, Jouke V.J.P. Brada,
Femia E. van Wulfften Palthe, Leonard van Hulst, Nicole E.A.M.
Aarts, Fiona N. van Hulst, Viewmont Holdings Limited, Moana Lake
Finance Corp., Sorensen's Securities Ltd. and Hacken Investments
Limited, (individually, a "Seller" and collectively, the
"Sellers"); ADVA International Inc., a Delaware corporation
("Buyer"); Global Information Group USA Inc., a Delaware
corporation (the "Company") and Biotel, Inc. ("Biotel").
WHEREAS, the Company is authorized to issue 10,000 shares
of common stock ("Company Shares"), par value $.01 per share, of
which 1,000 shares are presently issued and outstanding and,
immediately prior to the Closing Date, 1,187 shares will be
issued and outstanding, and
WHEREAS, the Company has outstanding Take Over Options and
Subscription Options to purchase 187 Company Shares and there
exists an Executive Option to acquire 300 Company Shares owned by
Anthony E. Mohr (collectively, the "Company Options"), all of
which will be exercised prior to Closing (as set forth on
Schedule "A"), and
WHEREAS, ADVA International Inc. is authorized to issue
20,000,000 shares of common stock (the "Buyer Shares"), par value
$.001 per share, of which 716,250 shares are presently issued and
outstanding and, immediately prior to the Closing Date 716,250
shares will be issued and outstanding, and
WHEREAS, on the Closing Date, the Buyer shall issue
12,468,750 Buyer Shares of the 13,185,000 outstanding Buyer
Shares (the "Outstanding Buyer Shares") to the Sellers (set forth
on Schedule "A"), in return for all the issued and outstanding
Company Shares owned by the Sellers (this share exchange shall be
referred to herein as the "Stock Exchange"), with the result
that: (a) Sellers will own 94.57% of the Outstanding Buyer Shares
(after giving effect to the exercise of the Company Options),
with the remaining Buyer Shares (716,250) being owned by the
present Shareholders of Buyer, and
WHEREAS, the Company shall pay in cash, immediately after
Closing, to Advanced Medical Products, Inc. Debtor-in-Possession
Three Hundred Thousand Dollars ($300,000) which shall be paid to
creditors of Advanced Medical Products, Inc. pursuant to Section
6.2.10 hereof, and
WHEREAS, the Stock Exchange shall be effected as a tax-free
exchange pursuant to Section 351 and/or Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code"), and
WHEREAS, on the Closing Date there shall be no warrants,
options, or any other rights, either authorized or outstanding,
which are convertible or exercisable into the Company Shares.
NOW, THEREFORE, in consideration of the premises, the
parties hereto do mutually agree as follows:
ARTICLE I
EXCHANGE OF SHARES
1.1 Exchange of Company Shares and Cash for Buyer Shares.
1.1.1 On the Closing Date, Buyer shall (i) issue
12,468,750 Buyer Shares to the Sellers (as set forth on Exhibit
"A" hereto) and such shares when issued shall be fully-paid and
nonassessable, and no preemptive rights of stockholders shall
exist with respect to the shares or the issue or sale thereof.
1.1.2 On the Closing Date, the Sellers shall deliver
to Buyer all of the Outstanding Company Shares, duly endorsed for
transfer or with stock powers attached.
1.1.3 Company shall have paid in cash Three Hundred
Thousand Dollars ($300,000) to Advanced Medical Products Inc.,
Debtor in Possession for distribution to creditors and payment of
expenses pursuant to Section 6.2.10 hereof.
1.2 Outstanding Buyer Shares. Each share of Buyer Common
Stock which is issued and outstanding immediately prior to the
Closing Date shall by virtue of this Agreement remain issued and
outstanding thereafter.
1.3 Restrictions on Shares. The Buyer Shares and the
Company Shares being acquired by the respective parties are being
acquired for investment only and not with a view to the further
sale or distribution thereof. Such Buyer Shares issued hereunder
constitute "restricted securities" as that term is defined under
Rule 144 of the Rules and Regulations promulgated under the
Securities Act of 1933 (the "Securities Act"). The Buyer Shares
and the Company Shares may not be sold, assigned or otherwise
disposed of unless registered or otherwise exempt from
registration under the Securities Act and such other state
securities laws as may be applicable. The certificates
representing such shares shall contain an appropriate investment
legend.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, for such Seller but not on behalf of any other
Seller, hereby represents and warrants to Buyer as follows:
2.1 Title of Company Shares. At the time of delivery of
the Company Shares to Buyer hereunder, Sellers will be the lawful
owners of the Company Shares in the amounts set forth in Exhibit
A attached hereto and will have good and marketable title
thereto, and upon delivery as provided hereunder, Buyer will
receive good and marketable title thereto, free and clear of all
liens, pledges and encumbrances with no personal liability
attaching to the ownership thereof.
2.2 Authority to Execute and Perform Agreements. Each
Seller which is a corporation or other type of legal entity is,
and on the Closing Date will be, a duly organized and validly
existing corporation (or other entity) in good standing under the
laws of its incorporation or organization. Each Seller has, and
on the Closing Date will have, the full legal right and power and
all authority and approval required to enter into, execute and
deliver this Agreement and to perform fully such Seller's
respective obligations hereunder, and this Agreement is the valid
and binding obligation of each Seller enforceable in accordance
with its terms, except to the extent that: (a) the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and remedies generally,
(b) the remedies of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and general principles of equity and to the discretion of the
court before which any proceeding therefor may be brought, and
(c) rights to indemnity and contribution hereunder, if any, may
be limited by state and federal laws or the public policy
underlying such laws.
2.3 No Conflict. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions
contemplated by this Agreement will: (a) conflict with, or result
in a breach of, or constitute a default under (i) in the case of
Jolec Trading Limited, Fog Investments, Ltd., Equation Ventures
N.V., Linares Capital Limited, Heydael B.V., Viewmont Holdings
Limited, Moana Lake Finance Corp., Sorensen's Securities Ltd. and
Hacken Investments Limited, its charter or bylaws; (ii) any
instrument or agreement to which any Seller is a party, or by
which any Seller is bound; or (iii) any governmental decree,
order, ruling, writ, permit or license to which any Seller is a
party or by which any Seller may be bound; (b) violate any law,
statute, rule or regulation applicable to any Seller or the
transactions contemplated hereby; or (c) except as set forth in
Schedule 2.3, require the consent of any governmental or
administrative agency or any party to any contract to which any
Seller is a party or by which any Seller may be bound.
2.4 Broker's Fees. None of the Sellers has employed any
broker or finder or incurred any liability for any broker's fees,
commissions or finder's fees in connection with any of the
transactions contemplated by this Agreement, except as set forth
in Schedule 2.4 hereto.
2.5 Investment Intent. Each of the Sellers are acquiring
Buyer Shares for investment only and not with a view to further
distribution and do not have, and will not have on the Closing
Date, any commitment for the disposition of such shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Buyer as follows:
3.1 Organization. The Company is, and on the Closing
Date will be, a duly organized and validly existing corporation
in good standing under the laws of the State of Delaware.
3.2 Capitalization. The authorized capital stock of
the Company consists only of the Company Shares. As of the
Closing Date, the Outstanding Company Shares will be issued and
outstanding. There are no Company Shares reserved for issuance
upon the exercise of outstanding stock options, warrants or
similar rights, other than for the Company Options. All of the
Outstanding Company Shares have been duly authorized and validly
issued, are fully paid, nonassessable and free of preemptive
rights, and are registered in the names of the Sellers, free and
clear of all actual liens and encumbrances. There are no, and on
the Closing Date there will be no, issued or outstanding
subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance
of any shares of Company Common Stock, other than the Company
Options, or any other equity security of the Company or any
securities representing the right to purchase or otherwise
receive any shares of Company Common Stock or any other equity
security of the Company.
3.3 Agreement; Authority. The Company has, and on the
Closing Date will have, the power and authority to enter into
this Agreement and to consummate the transactions contemplated
thereby. This Agreement and the transactions contemplated hereby
have been, or on or prior to the Closing Date will be, duly
approved by appropriate corporate action of the Company.
3.4 Agreement: Enforceability. This Agreement has been
duly authorized, executed and delivered by the Company and is a
legally valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the
extent that: (a) the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights and remedies generally, (b) the remedies of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and general principles of
equity and to the discretion of the court before which any
proceeding therefor may be brought, and (c) rights to indemnity
and contribution hereunder, if any, may be limited by state and
federal laws of the public policy underlying such laws.
3.5 No Conflict. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions
contemplated by this Agreement will: (a) conflict with, or result
in a breach of, or constitute a default under (i) the Company's
charter or bylaws, (ii) any instrument or agreement to which the
Company is a party, or by which it is bound; or (iii) any
governmental decree, order, ruling, writ, permit or license to
which the Company is a party or by which the Company may be
bound; (b) violate any law, statute, rule or regulation
applicable to the Company or the transactions contemplated
hereby; (c) except as set forth in Schedule 3.5, require the
consent of any governmental or administrative agency or any other
person not a party hereto; or (d) require the consent of any
party to any contract, agreement or commitment to which the
Company is a party or by which the Company may be bound, or
result in a default under or an acceleration of any obligation
under any such contract, agreement or commitment.
3.6 Subsidiaries. The Company has, and on the Closing Date will have,
no subsidiaries.
3.7 Doing Business. The Company is, and on the
Closing Dates will be, duly authorized, qualified and licensed
under any and all applicable laws, regulations, ordinances or
orders of public authorities to carry on their respective
businesses in the places and in the manner as presently conducted
or as contemplated in this Agreement, except where the failure to
be so authorized, qualified or licensed would not have a
materially adverse effect upon the business of the Company.
3.8 Financial Statements. The financial statements
of the Company, consisting of a Balance Sheet as of March 31,
2000 and related Statement of Income, and Statement of
Shareholders' Equity for the year ended March 31, 2000 together
with the accompanying notes, have been prepared by independent
public accountants. All such financial statements (collectively,
the "Company Financial Statements") were prepared in conformity
with generally accepted accounting principles, have been
delivered to Buyer, and fairly present the financial position and
results of operations of the Company as of the dates and for the
periods shown.
3.9 No Adverse Change. Except as set forth in
Schedule 3.9, since March 31, 2000, the business of the Company
has only been operated in the normal course. There has not been,
and on the Closing Date there will not have been, any material
adverse change in the financial condition of the Company from
that set forth in the Company Financial Statements dated March 31, 2000.
3.10 Liabilities. Except as set forth on Schedule 3.10
hereof, there are, and on the Closing Date will be, no
liabilities (including, but not limited to tax liabilities) or
claims against the Company (whether such liabilities or claims
are contingent or absolute, direct or indirect, matured or
unmatured) not appearing on the Company Financial Statements,
other than liabilities incurred in the ordinary course of
business or taxes accrued or incurred with regard to earnings
since March 31, 2000 or liabilities for expenses incurred in
connection with this Agreement.
3.11 Taxes. Except as set forth on Schedule 3.11 hereof,
all federal, state, county and local income, excise, property and
other tax returns required to be filed by the Company have been
filed and all required taxes, fees or assessments have been paid
or an adequate reserve therefor has been set up in the Company
Financial Statements. No income tax returns of the Company have
ever been audited by any authority empowered to do so. There are
no agreements or waivers in effect that provide for an extension
of time for the filing of any tax returns by the Company or the
assessment of any tax against the Company.
3.12 Title; Property. Except as set forth on Schedule
3.12 hereof, the Company has, and on the Closing Date will have,
all legal and beneficial ownership of all of its real property,
furniture, fixtures and equipment excluding any leased real
property, furniture, fixtures and equipment. Such assets
(excluding leased assets) are owned free and clear of all security
interests, pledges, liens, restrictions and encumbrances of every
kind and nature, except as stated in the Company Financial Statements.
3.13 Title; Inventory. The Company has, and on the
Closing Date will have, all legal and beneficial ownership of its
inventory as set forth in the Company Financial Statements,
except for (a) inventory sold or leased in the ordinary course of
business since the date of the Company Financial Statements and
(b) inventory provided to the Company by certain suppliers under
arrangements pursuant to which title does not pass until the
amounts owed to such suppliers are paid in full. All of the
Company's inventory is saleable in the ordinary course of business.
3.14 Accounts Receivable. Except as set forth in
Schedule 3.14, the accounts receivable as set forth in the
Company Financial Statements, except to the extent already
collected, represent amounts due for goods sold or services
rendered by the Company in the ordinary course of business.
Except to the extent of any reserve allowed therefor in the Company
Financial Statements, such accounts receivable, to the knowledge of
the Company, are fully collectible in the ordinary course of business.
3.15 Contracts and Commitments. All material agreements,
contracts and commitments to which the Company is, or on the
Closing Date will be, a party, or from which the Company does
receive, or expects to receive on or after the Closing Date, a
substantial benefit, are set forth and briefly described in
Schedule 3.15 hereto. A true and complete copy of each such
agreement, contract or commitment has been delivered to Buyer.
The Company is not, and on the Closing Date will not be, and to
the knowledge of the Company, each such other party to each of
such material agreements, contracts or commitments is not, in
default under any such material agreement, contract or
commitment, the result of which breach would have a materially
adverse effect on the Company. True and complete copies of all
employment agreements or arrangements with employees of the
Company have been delivered to Buyer.
3.16 Litigation. Except as disclosed in Schedule 3.16
hereof, there are, and on the Closing Date there will be, no
claims, actions, suits or proceedings pending, or to the best
knowledge of the Company, threatened against the Company.
3.17 Compensation and Loans. Except as disclosed in
Schedule 3.17, since March 31, 2000 there have been, and on the
Closing Date there will be (i) no bonuses or unusual compensation
to any of the officers or directors of the Company which are
inconsistent with past practices, (ii) no loans made to any of
the officers or directors of the Company, (iii) except as may be
consistent with past practices, no dividends or other
distributions declared or paid by the Company, and (iv) no
repurchase by the Company of any of its shares of capital stock.
3.18 Additional Issuances of Equity. Except as set forth
in Schedule 3.18, since March 31, 2000 or as otherwise disclosed
herein, the Company has not issued or committed itself to issue,
and to the Closing Date will not issue or commit itself to issue,
any additional common shares or any options, rights, warrants or
other securities or instruments convertible into or exchangeable for
common shares, except as disclosed in or contemplated by this Agreement.
3.19 Broker's Fees. Except as set forth on Schedule 3.19,
neither the Company, nor any of its officers or directors, has
employed any broker or finder or incurred any liability for any
broker's fees, commissions or finder's fees in connection with
any of the transactions contemplated by this Agreement.
3.20 Insurance. The Company has, and on the Closing
Date will have, coverage (which to its knowledge is adequate)
against accident, damage, injury, third party loss (including
product liability), loss of profits and other risks normally insured
by persons carrying on the same business as that carried on by it.
A list of such insurance policies is set forth in Schedule 3.20 hereto.
3.21 Patents, etc. The Company has, and on the Closing
Date will have, no patents, patent applications, trademarks,
trademark registrations or applications therefor, tradenames,
copyrights, copyright registrations or applications therefor,
except as set forth on Schedule 3.21 hereto (collectively
"Company Intellectual Property"). Except as set forth in
Schedule 3.21: (a) the Company, has the right to use the Company
Intellectual Property in the manner in which it is currently
being used; (b) to the Company's knowledge, neither the Company
Intellectual Property nor the current uses thereof by the Company
is violating or infringing upon any intellectual property right
of any person and no claim to such effect has been made to the
Company; and (c) to the Company's knowledge, no other person is
violating or infringing upon any of the Company Intellectual
Property listed on Schedule 3.21.
3.22 Business Conduct. The Company has, and on the
Closing Date will have, operated its business and conducted its
affairs in compliance with all applicable laws, rules and regulations
of the United States, the State of Delaware and all jurisdictions
in which it now carries on business, except where the failure to
so comply would not have a materially adverse effect on the Company.
3.23 Affiliated Transactions. There are, and on the
Closing Date there will be, no loans, leases or other contracts
or arrangements outstanding between (i) the Company, on the one
hand, and (ii) any stockholder, officer, director or key employee
of the Company, or any person related to any of them, on the
other hand, except as set forth in Schedule 3.15 or Schedule 3.23 hereto.
3.24 Sanctions. During the past five year period, no
officer or director of the Company, and no person whom Sellers
shall appoint as a director of Buyer pursuant to Section 5.1
hereof, has been the subject of:
3.24.1 a petition for bankruptcy or other relief under
United States insolvency or creditor's rights laws, nor has a
receiver, fiscal agent or similar officer been appointed by a
court for the business or property of such person, or any
partnership in which he was a partner at or within two years
before the time of such filing or appointment, or any corporation
or business association of which he was an executive officer at
or within two years before the time of such filing or
appointment;
3.24.2 a conviction in a criminal proceeding or a
named subject of a pending criminal proceeding (excluding traffic
violations and other minor offenses);
3.24.3 any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining him from, or
otherwise limiting, the following activities:
(i) Acting as a futures commission merchant,
introducing broker, commodity trading advisor,
commodity pool operator, floor broker, leverage
transaction merchant, any other person regulated by
the United States Commodity Futures Trading
Commission or an associated person of any of the
foregoing, or as an investment adviser, underwriter,
broker or dealer in securities, or as an affiliated
person, director or employee of any investment
company, bank, savings and loan association or
insurance company, or engaging in or continuing any
conduct or practice in connection with activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection
with the purchase or sale of any security or
commodity or in connection with any violation of
federal, state or other securities laws or
commodities laws.
3.24.4 any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any federal, state or local
authority barring, suspending or otherwise limiting for more than
60 days the right of such person to engage in any activity
described in the preceding sub-paragraph, or to be associated
with persons engaged in any such activity;
3.24.5 a finding by a court of competent jurisdiction
in a civil action or by the United States Securities and Exchange
Commission to have violated any securities law, and the judgment
in such civil action or finding by such Commission has not been
subsequently reversed, suspended or vacated; or
3.24.6 a finding by a court of competent jurisdiction
in a civil action or by the Commodity Futures Trading Commission
to have violated any federal commodities law, and the judgment in
such civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended or vacated.
3.25 Employee Benefit Plans. Except as set forth in
Schedule 3.25, the Company has no pension plan, profit sharing or
similar employee benefit plan.
3.26 Questionable Payments. Neither the Company, nor
any current or former shareholder, partner, director or officer
of it has (a) used any corporate funds for any illegal
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (b) used any corporate funds for
any direct or indirect unlawful payments to any foreign or
domestic government officials or employees; (c) established or
maintained any unlawful or unrecorded fund of corporate monies or
other assets; (d) made any false or fictitious entries on such
corporation's books and records; (e) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment of
any nature using corporate funds or otherwise on behalf of the
Company; (f) violated any provision of the Foreign Corrupt
Practices Act of 1977, if applicable; or (g) made any material
favor or gift that is not deductible for United States income tax
purposes using corporate funds or otherwise on behalf of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Sellers and the
Company as follows:
4.1 Organization. Buyer is, and on the Closing Date
will be, a duly organized and validly existing corporation in
good standing under the laws of the State of Delaware.
4.2 Capitalization. The authorized capital stock of
Buyer consists of 20,000,000 Buyer Shares. As of the date of
this Agreement, there are 716,250 Buyer Shares issued and
outstanding, and no Buyer Shares are held in Buyer's treasury.
On the Closing Date (after giving effect to the stock exchange)
there will be 13,185,000 Buyer Shares issued and outstanding and
no Buyer Shares will be held in Buyer's treasury. It being
understood that up to an additional 282 Buyer Shares may be
issued as a result of Buyer's 1-for-10 reverse stock split
effected on March 13, 2000. There are no Buyer Shares reserved
for issuance upon the exercise of outstanding stock options,
warrants or similar rights. All issued and outstanding Buyer
Shares have been duly authorized and validly issued and are fully
paid, nonassessable and free of preemptive rights. There are no,
and on the Closing Date there will be no, issued or outstanding
subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance
of any shares of Buyer common stock or any other equity security
of Buyer or any securities representing the right to purchase or
otherwise receive any shares of Buyer common stock or any other
equity security of Buyer. All Outstanding Buyer Shares have been
issued in compliance with applicable Federal and state Securities
Laws. No shareholders of the Company have a right to receive
dividends and no unpaid dividends are due and owing with regard
to the Buyer's capital stock.
4.3 Agreement; Authority. Buyer has, and on the
Closing Date will have, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
This Agreement and the transactions contemplated hereby have
been, or on or prior to the Closing Date, will be duly approved
by appropriate corporate action of Buyer.
4.4 Agreement: Enforceability. This Agreement has been
duly authorized, executed and delivered by Buyer and is a legally
valid and binding agreement of Buyer, enforceable against Buyer
in accordance with its terms, except to the extent that: (a) the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and remedies generally, (b) the
remedies of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and
general principles of equity and to the discretion of the court
before which any proceeding therefor may be brought, and (c)
rights to indemnity and contribution hereunder, if any, may be
limited by state and federal laws of the public policy underlying such laws.
4.5 Doing Business. Buyer is, and on the Closing
Date will be duly authorized, qualified and licensed under any
and all applicable laws, regulations, ordinances or orders of
public authorities to carry on its business in the places and in
the manner as presently conducted or as contemplated in this
Agreement, except where the failure to be so authorized,
qualified or licensed would not have a materially adverse effect
upon the business of Buyer. The business of Buyer does not
require it to be registered as an Investment Company or
Investment Advisor as such terms are defined under the Investment
Company Act and the Investment Advisor Act of 1940, respectively.
4.6 No Conflict. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions
contemplated by this Agreement will: (a) conflict with, or result
in a breach of, or constitute a default under (i) Buyer's charter
or bylaws, (ii) any instrument or agreement to which Buyer is a
party, or by which it is bound; or (iii) any governmental decree,
order, ruling, writ, permit or license to which Buyer is a party
or by which Buyer may be bound; (b) violate any law, statute,
rule or regulation applicable to Buyer or the transactions
contemplated hereby; (c) except as set forth in Schedule 4.6,
require the consent of any governmental or administrative agency
or any other person not a party hereto; or (d) require the
consent of any party to any contract, agreement or commitment to
which Buyer is a party or by which Buyer may be bound, or result in
a default under or an acceleration of any obligation under any such
contract, agreement or commitment.
4.7 Subsidiaries. Buyer has, and on the Closing Date
will have, no subsidiaries.
4.8 Financial Statements. The audited financial
statements of Buyer, consisting of its Balance Sheet as of June
30, 1999 and its Statement of Income, Statement of Stockholders'
Equity and Statement of Cash Flows as of June 30, 1999, together
with accompanying notes, have been audited by independent public
accountants whose report thereon is without qualification. The
unaudited financial statements of Buyer, consisting of its
Balance Sheet as of March 31, 2000, its Statement of Income,
Statement of Stockholders' Equity and Statement of Cash Flows for
the three months ended March 31, 2000, together with accompanying
notes, have been prepared by the officers of Buyer, and have been
adjusted for all normal and recurring accruals necessary for a
fair presentation thereof. All such financial statements
(collectively, the "Buyer Financial Statements") have been
prepared in accordance with generally accepted accounting
principles, have been delivered to the Company, and fairly
present the financial condition and results of operations of
Buyer as of the dates and for the periods shown.
4.9 No Adverse Change. Since June 30, 1999, the business
of Buyer has only been operated in the normal course. There has
not been, and on the Closing Date there will not have been, any
material adverse change in the financial condition of Buyer from
that set forth in the Buyer Financial Statements dated June 30, 1999.
4.10 Liabilities. There are, and on the Closing Date will
be, no liabilities (including, but not limited to tax
liabilities) or claims against Buyer (whether such liabilities or
claims are contingent or absolute, direct or indirect, matured or
unmatured) not appearing on the Buyer Financial Statements, other
than liabilities incurred or made in the ordinary course of
business, taxes incurred with regard to earnings since June 30,
1999 or liabilities for expenses incurred in connection with this Agreement.
4.11 Taxes. All federal, state, county and local
income, excise, property and other tax returns required to be
filed by Buyer have been filed and all required taxes, fees or
assessments have been paid or an adequate reserve therefor has
been set up in the Buyer Financial Statements. No income tax
returns of Buyer have ever been audited by any authority
empowered to do so. There are no agreements or waivers in effect
that provide for an extension of time for the filing of any tax
returns by Buyer or the assessment of any tax against Buyer.
4.12 Properties. Buyer has, and on the Closing Date will
have, no fixtures, furniture, equipment, inventory or accounts receivable.
4.13 Contracts and Commitments. Buyer has, and on the
Closing Date will have, no agreements, contracts and commitments
to which it is, or on the Closing Date will be a party, except as
described in Schedule 4.13. A true and correct copy of each such
agreement, contract or commitment has been delivered to the
Company. Buyer is not, and on the Closing Date will not be, and
to the knowledge of Buyer, each such other party to each of such
agreements, contracts or commitments is not, in default under any
such agreement, contract or commitment, the result of which
breach would have a materially adverse effect on Buyer.
4.14 Litigation. There are, and on the Closing Date will
be, no claims, actions, suits or proceedings, pending, or to the
best knowledge of Buyer, threatened against Buyer.
4.15 Compensation and Loans. Except as disclosed in
Schedule 4.15, since June 30, 1999, there have been, and on the
Closing Date will be, (i) no salaried or otherwise compensated
employees, officers or directors of Buyer, (ii) no loans made to
any officer or director of Buyer, (iii) no dividends or other
distributions declared or paid by Buyer, and (iv) no repurchase
by Buyer of any shares of capital stock.
4.16 Additional Issuances of Equity. Except as set forth
on Schedule 4.16 hereof, since June 30, 1999, Buyer has not
issued or committed itself to issue, and to the Closing Date will
not issue or commit itself to issue any additional common shares
or any options, rights, warrants or other securities or
instruments convertible into or exercisable for common shares,
except as contemplated by this Agreement.
4.17 Investment Intent. Buyer is acquiring Company Shares
for investment only and not with a view to further distribution
and does not have, and will not have on the Closing Date, any
commitment for the disposition of such shares.
4.18 Patents, etc. Buyer has no patents, patent
applications, trademark, trademark registrations, tradenames,
copyrights, copyright registrations or applications therefor. Buyer
is not infringing upon any intellectual property right of any person.
4.19 Business Conduct. The Company has, and on the
Closing Date will have, operated its business and conducted its
affairs in compliance with all applicable laws, rules and
regulations of the United States, the State of Delaware and all
jurisdictions in which it now carries on its business, except
where the failure to so comply would not have a materially
adverse effect on Buyer.
4.20 Affiliated Transactions. There are, and on the
Closing Date there will be no loans, leases or other contracts
outstanding between Buyer and any officer or director of Buyer or
any person related to any officer or director of Buyer.
4.21 Sanctions. During the past five year period, except
as set forth on Schedule 4.21, no officer or director of Buyer
has been the subject of:
4.21.1 a petition under the federal bankruptcy laws
or any other insolvency or creditor's rights laws, nor has a
receiver, fiscal agent or similar officer been appointed by a
court for the business or property of such person, or any
partnership in which he was a general partner at or within two
years before the time of such filing or appointment, or any
corporation or business association of which he was an executive
officer at or within two years before the time of such filing or
appointment;
4.21.2 a conviction in a criminal proceeding or a
named subject of a pending criminal proceeding (excluding traffic
violations and other minor offenses);
4.21.3 any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining him from, or
otherwise limiting, the following activities;
(i) Acting as a futures commission merchant,
introducing broker, commodity trading advisor, commodity
pool operator, floor broker, leverage transaction merchant,
any other person regulated by the United States Commodity
Futures Trading Commission or an associated person of any
of the foregoing, or as an investment adviser, underwriter,
broker or dealer in securities, or as an affiliated person,
director or employee of any investment company, bank,
savings and loan association or insurance company, or
engaging in or continuing any conduct or practice in
connection with activity;
(ii) Engaging in any type of business practice;
and
(iii) Engaging in any activity in connection with
the purchase or sale of any security or commodity or in
connection with any violation of federal, state or other
securities laws or commodities laws.
4.21.4 any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any federal,
state or local authority barring, suspending or otherwise
limiting for more than 60 days the right of such person to engage
in any activity described in the preceding sub-paragraph, or to
be associated with persons engaged in any such activity;
4.21.5 a finding by a court of competent jurisdiction
in a civil action or by the United States Securities and Exchange
Commission to have violated any securities law, and the judgment
in such civil action or finding by such Commission has not been
subsequently reversed, suspended or vacated; or
4.21.6 a finding by a court of competent jurisdiction
in a civil action or by the Commodity Futures Trading Commission
to have violated any federal commodities law, and the judgment in
such civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended or
vacated.
4.22 Buyer Representation. Buyer has not taken and will
not take, and to its knowledge, no officer, director or
shareholder has taken, directly or indirectly, any action
designed to, or which has constituted, or which might reasonably
be expected to, cause or result in any violations of the federal
securities laws with regard to Buyer or its securities.
4.23 Employee Benefit Plans. Buyer has no pension plan,
profit sharing or similar employee benefit plan.
4.24 Broker's Fees. Buyer nor any of its officers or
directors has employed any broker or finder or incurred any
liability for any broker's fees, commissions or finder's fees in
connection with any of the transactions contemplated by this Agreement.
4.25 Questionable Payments. Neither Buyer, nor any
current or former shareholder, partner, director or officer of
Buyer, has (a) used any corporate funds for any illegal
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (b) used any corporate funds for
any direct or indirect unlawful payments to any foreign or
domestic government officials or employees; (c) violated any
provision of the Foreign Corrupt Practices Act of 1977;
(d) established or maintained any unlawful or unrecorded fund of
corporate monies or other assets; (e) made any false or
fictitious entries on such corporation's books and records;
(f) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment of any nature using corporate funds or
otherwise on behalf of Buyer; or (g) made any material favor or
gift that is not deductible for federal income tax purposes using
corporate funds or otherwise on behalf of Buyer.
4.26 Blank Check Company Status. Buyer is not a "blank
check company" as defined in Section 7(b) of the Securities Act
of 1933, as amended ("Securities Act"), and, accordingly, is not
required to comply with Section 7(b) of the Securities Act or
Rule 419 promulgated under the Securities Act.
4.27 Exchange Act Registration. At Closing, the
Buyer Shares will be registered under the Securities Exchange Act
of 1934 and listed for trading on the OTC Bulletin Board.
ARTICLE V
COVENANTS OF THE PARTIES
5.1 Buyer Special Board Meeting. On the Closing Date
Buyer shall cause a special meeting of the Board of Directors of
Buyer to be held, at which meeting the size of the Board of
Directors of Buyer shall be set at six (6) members. Three (3)
designees of the Company (Anthony E. Mohr, Prof. Dr. Ruud A.M.
Pruijm R.A. and Philip L. van Wijngaarden) shall be appointed as
new directors of Buyer, and at which resignations from all of the
present officers, directors not continuing to serve and employees
of Buyer which shall have been tendered prior to the Closing Date
shall be accepted. In addition, Mr. Mohr shall be appointed as
President and Chief Executive Officer. At the special meeting of
the Board of Directors of Buyer referred to above, an advisory
board of Buyer shall be appointed to include up to three (3)
members designated by the Company, with such appointments
effective as of the Closing Date.
5.2 Delivery of Registration Statement and Related
Securities and Corporate Documents by Buyer. Buyer has
previously delivered to the Company true and complete copies,
including exhibits and, as applicable, amendments thereto, of (i)
all registration statements filed under the Securities Act of
1933; (ii) the prospectuses contained therein; (iii) its Form 10-
K Annual Reports for the three years ended June 30, 1999; (iv)
its Form 10-Q Quarterly Reports, for the quarters during the
three years ended June 30, 1999 and subsequent thereto to the
Closing Date; (v) its Form 8-K Current Reports for the three
years ended June 30, 1999 and subsequent thereto to the Closing
Date; (vi) copies of all material correspondence with the
Securities and Exchange Commission, the OTC and state blue sky
commissions; (vii) all reports filed under Section 13 and 16 of
the Securities Exchange Act of 1934 (the "Exchange Act"); (viii)
all proxy statements filed under the Exchange Act; (ix) a
certified copy of the Buyer's Certificate of Incorporation, as
amended as of the Closing Date; and (x) a certified copy of the
Buyer's Bylaws, as amended, as of the Closing Date. All such
documents referred to herein, at the time filed with the
Securities and Exchange Commission ("SEC") complied with the
Exchange Act and all applicable rules and regulations of the SEC
and were timely filed. No such registration statement,
prospectus, or other document specified herein, as of the date of
filing or the effective date, as the case may be, or as of any
subsequent date when Buyer was required to amend, supplement or
update any such document (regardless of whether it did so),
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
5.3 Affirmative Covenants of Buyer. Buyer covenants and
agrees that prior to the Closing Date, it has or will file all
reports and filings required to be filed by Buyer under Sections
13, 14 and 15(d) of the Exchange Act, together with all other
reports and filings necessary to have available "current public
information" as defined in Rule 144 under the rules and
regulations promulgated under the Securities Act. Buyer knows of
no reports or filings required to be filed by officers,
directors, shareholders or their affiliates under the Exchange
Act which have not been filed.
5.4 Negative Covenants of Buyer. Buyer agrees that from
the date hereof to the Closing Date, except as otherwise
consented to or approved by the Sellers and the Company in
writing or as permitted or required by this Agreement, it will
not change any provision of its certificate of incorporation or bylaws.
5.5 Subsequent Interim Financial Statements of Buyer. As
soon as reasonably available, but in no event more than 45 days
after the end of each fiscal quarter ending after the Closing
Date, Buyer will deliver to the Company its Quarterly Report on
Form 10-Q, as filed with the Securities and Exchange Commission
under the Exchange Act.
5.6 OTC Bulletin Board Eligibility. As of the Closing
Date, after giving effect to the Stock Exchange, Buyer shall
satisfy all criteria for having its Buyer Shares qualified for
inclusion in the OTC Bulletin Board listing and shall be so listed.
5.7 Affirmative Covenants of the Company. The Company
covenants and agrees that subsequent to the Closing Date, it will
use its best efforts to see that all reports and filings required
to be filed by Buyer under Sections 13 and 15(d) of the Exchange
Act, together with all other reports and filings necessary to
have available "current public information" as defined in Rule
144 under the rules and regulations promulgated under the
Securities Act are filed.
5.8 Access to Records; Confidentiality.
5.8.1 During the period from the date of this
Agreement to the Closing Date, Buyer and the Company shall each
permit the other party and its respective representatives, agents
and designees reasonable access to its properties and those of
its subsidiaries, and shall disclose and make available to them
all books, papers and records relating to the assets, stock,
ownership, properties, operations, obligations and liabilities of
it and its subsidiaries, including, but not limited to, all books
of accounts (including the general ledger), tax records, minute
books of directors' and stockholders' meetings, organizational
documents, bylaws, material contracts and agreements, filings
with any regulatory authority, accountants' work papers,
litigation files, plans affecting employees, and any other
business activities or prospects in which Buyer or the Company,
as the case may be, may have an interest.
5.8.2. All information furnished by Buyer to the
Company and by the Company to Buyer pursuant hereto shall be
treated as the sole property of the party furnishing the
information and, if the Stock Exchange shall not occur, the party
receiving the information shall return to the party furnishing
the information, all documents (in whatever form, including
electronic) or other materials containing, reflecting or
referring to such information, shall use its best efforts to keep
confidential all such information, and shall not directly or
indirectly use such information for any competitive or other
commercial purpose. The obligation to keep such information
confidential shall not apply to (i) any information which: (w)
the party receiving the information can establish was already in
its possession prior to the disclosure thereof by the party
furnishing the information; (x) was then generally known to the
public; (y) became known to the public through no fault of the
party receiving the information; or (z) was disclosed to the
party receiving the information by a third party not bound by an
obligation of confidentiality or (ii) disclosures in accordance
with an order of a court of competent jurisdictions.
5.9 Buyer acknowledges the existence of that certain
Share Purchase and Shareholders' Agreement relating to Global
Information Group USA Inc. dated January 14, 2000 among Buyer,
Chatelin Capital Partners Limited, Jolec Trading Limited, Anthony
E. Mohr, Koenig Invest AG and Newick Developments Limited and the
agreement between Invest B.V. and Global Information Group USA
Inc. dated May 14, 1998 and agrees to abide by the terms thereof.
5.10 Buyer shall deliver a registration rights agreement
("Registration Rights Agreement") providing Sellers with
registration rights in such form as shall be reasonably
satisfactory to Sellers.
5.11 Buyer agrees not to grant any registration rights which are
superior to those set forth in the Registration Rights Agreement or
which could otherwise adversely affect the rights granted thereunder.
5.12 Biotel, Inc. agrees to take any and all actions
including voting Buyer Shares owned in favor of the Stock
Exchange and the transactions contemplated thereby at any
shareholders meeting, or if no shareholders meeting is held,
executing written consents in favor of such actions.
5.13 So long as this Agreement remains in effect, Buyer
shall not and Buyer shall not authorize or permit any of its
directors, officers, employees or agents, to directly or
indirectly (i) respond to, solicit, initiate or encourage any
inquiries relating to, or the making of any proposal which
relates to, an Acquisition Transaction (as defined below), (ii)
recommend or endorse an Acquisition Transaction, (iii)
participate in any discussions or negotiations regarding an
Acquisition Transaction, (iv) provide any third party (other than
the Company or an affiliate of the Company) with any non-public
information in connection with any inquiry or proposal relating
to an Acquisition Transaction or (v) enter into an agreement with
any other party with respect to an Acquisition Transaction.
Buyer will immediately cease and cause to be terminated any
existing activities, discussions or negotiations previously
conducted with any parties other than the Company with respect to
any of the foregoing, and will take all actions necessary or
advisable to inform the appropriate individuals or entities
referred to in the first sentence hereof of the obligations
undertaken in this Section 5.13. Buyer will notify the Company
orally (within one day) and in writing (as promptly as
practicable) if any inquiries or proposals relating to an
Acquisition Transaction are received by, any such information is
requested from, or any such negotiations or discussions are
sought to be initiated or continued with Buyer. As used in this
Agreement, "Acquisition Transaction" shall mean one of the
following transactions with a party other than the Company of an
affiliate of the Company (i) a merger, consolidation, share
exchange, or any similar transaction, involving Buyer, (ii) a
purchase, lease or other acquisition of all or a substantial
portion of the assets or liabilities of Buyer or, (iii) a purchase
or other acquisition (including by way of share exchange, tender
offer, exchange offer or otherwise) of a substantial interest in
any class or series of equity securities of Buyer.
5.14 Further Assurances. In case at any time after the
Closing Date any further action is necessary or desirable to
carry out the purposes of this Agreement, each party to this
Agreement shall take all such necessary action, including but not
limited to responding to SEC comments on any filings made with
the SEC and working to have such filings cleared by the SEC.
ARTICLE VI
CLOSING CONDITIONS
6.1 Conditions to the Obligations of Buyer under the
Agreement. The obligations of Buyer to perform this Agreement
shall be further subject to the satisfaction, at or prior to the
Closing Date, of the following conditions, any one or more of
which may be waived by Buyer:
6.1.1 Each of the obligations of the Sellers
and the Company required to be performed at or prior to the
Closing Date pursuant to the terms of this Agreement shall have
been performed and complied with in all material respects and the
representations and warranties of Sellers and the Company
contained in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and as of the
Closing Date as though made at and as of the Closing Date, except
with respect to changes permitted hereby and for any such
representations and warranties made as of a specific date and the
representations and warranties contained in Section 3.08 which
shall be true and correct with respect to all financial
statements of the Company delivered to Buyer prior to the Closing
Date. Buyer shall have received a certificate to the foregoing
effect signed by an executive officer of the Company.
6.1.2 There shall have been no material adverse
change in the financial condition of the Company, since the date
of this Agreement, whether or not in the ordinary course of business.
6.1.3 All action required to be taken by, or on
the part of, the Company to authorize the execution, delivery and
performance of this Agreement and the consummation by the Company
of the transactions contemplated hereby shall have been duly and
validly taken by the Company and Buyer shall have received
certified copies of the resolutions evidencing such authorization.
6.1.4 Any and all permits, consents, waivers,
clearances, approvals and authorizations of all third parties
which are necessary in connection with the consummation of the
transactions contemplated hereby shall have been obtained.
6.1.5 The Company shall not have suffered a
loss on account of fire, flood, accident or other calamity of
such a character as to interfere materially with the continuous
operation of its business or materially adversely affect their
aggregate financial condition, regardless of whether or not such
loss shall have been insured.
6.1.6 Except as disclosed in Schedule 6.1.6
hereto that no material transactions shall have been entered into
by the Company other than transactions in the ordinary course of
business since March 31, 2000 or other than as referred to in
this Agreement, except with the written consent of Buyer.
6.1.7 That none of the properties or assets of
the Company shall have been sold or otherwise disposed of other
than in the ordinary course of business since March 31, 2000,
where such has had a materially adverse affect on the Company,
except with the written consent of Buyer.
6.1.8 That Buyer shall have received an opinion
from counsel to the Company in form reasonably satisfactory to
Buyer's counsel, that:
(a) The Company has been duly
incorporated and is a validly existing corporation
under the laws of the State of Delaware with a
capitalization as represented in this Agreement.
(b) All of the Outstanding Company
Shares have been duly authorized by appropriate
corporate action of the Company, as applicable, and
are validly issued and represent fully paid and
nonassessable shares of the Company, free of
preemptive rights.
(c) This Agreement and the transactions
contemplated hereby have been duly authorized by
necessary corporate action of the Company.
(d) Upon delivery of the certificates and
duly executed stock transfer forms representing the
Company Shares pursuant to the terms of this
Agreement, Buyer will acquire legal and beneficial
ownership of such securities free and clear of all
liens, pledges and encumbrances; and, upon the
completion of the transactions contemplated by this
Agreement, Buyer shall be the owner of all of the
Outstanding Company Shares and, to the knowledge of
counsel, there shall be no outstanding options or
warrants to purchase any shares of the Company nor
any outstanding securities of any nature convertible
into such shares.
6.2 Conditions to the Obligations of Sellers and the
Company under the Agreement. The obligations of Sellers and the
Company to perform this Agreement shall be further subject to the
satisfaction, at or prior to the Closing Date, of following
conditions any one or more of which may be waived by Sellers and
the Company:
6.2.1. Each of the obligations of Buyer required to be
performed by it at or prior to the Closing pursuant to the terms
of this Agreement shall have been performed and complied
with in all material respects and the representations and
warranties of Buyer contained in this Agreement shall be true and
correct in all material respects as of the date of this Agreement
and as of the Closing Date as though made at and as of the
Closing Date, except with respect to changes permitted hereby and
for any such representations and warranties made as of a specific
date and the representations and warranties contained in Section
4.8 which shall be true and correct with respect to all financial
statements of Buyer delivered to the Company prior to the Closing
Date. The Sellers and the Company shall have received a
certificate to the foregoing effect signed by an executive
officer of Buyer.
6.2.2 There shall have been no material adverse
change in the financial condition of Buyer since the date of this
Agreement, whether or not in the ordinary course of business.
6.2.3 All action required to be taken by, or on
the part of, Buyer to authorize the execution, delivery and
performance of this Agreement by Buyer and the consummation by
Buyer of the transactions contemplated hereby shall have been
duly and validly taken by the Board of Directors and stockholders
of Buyer and Sellers and the Company shall have received
certified copies of the resolutions evidencing such
authorization.
6.2.4 Any and all permits, consents, waivers,
clearances, approvals and authorizations of all third parties
which are necessary in connection with the consummation of the
transactions contemplated hereby shall have been obtained.
6.2.5 The Sellers and the Company shall have
received an opinion of counsel or independent auditors to the
effect that the Stock Exchange qualifies as a tax-free exchange
pursuant to Section 351 and or Section 368(a)(1)(B) of the Code.
6.2.6 That Buyer shall not have suffered any
loss on account of fire, flood, accident or other calamity of
such a character as to interfere materially with the continuous
operation of its business or materially adversely affect its
financial condition, regardless of whether or not such loss shall
have been insured.
6.2.7 That no material transactions shall have
been entered into by Buyer other than transactions in the
ordinary course of business between June 30, 1999 and the Closing
Date, other than as contemplated by this Agreement, except with
the written consent of the Company.
6.2.8 That none of the properties or assets of
Buyer shall have been sold or otherwise disposed of other than in
the ordinary course of business since June 30, 1999, except with
the written consent of the Company.
6.2.9 Buyer shall have received, by May 5,
2000, to the reasonable satisfaction of the Company, an order
(the "Order") of the Bankruptcy Court (under Section 1127, 1142
or any other applicable section of the Bankruptcy Code or
applicable non-bankruptcy law), which shall become a final non-
appealable (and otherwise not the subject of a motion to modify,
alter or amend the judgment or be subject to reconsideration) and
which deletes and/or renders null and void the following
sentences contained on page 8 of the Plan of Reorganization dated
March 23, 1999, a copy of which is attached hereto as Exhibit
"C." "The Corporation and the Corporation name, will be
dissolved after consummation of the sale and the appropriate
bankruptcy court Order. The shareholders of Advanced Medical
will have their stock extinguished" and replaces such language
with the following: "ADVA will continue its corporate existence
and that the existing shares of stock remain valid."
6.2.10 Should the Bankruptcy Court, pursuant to
the Order, require that an amount up to $300,000 be paid to the
creditors of Advanced Medical Products, Inc. (administrative,
priority and unsecured) and for related costs, Buyer shall have
complied with such order.
6.2.11 Buyer shall have delivered and executed a
Registration Rights Agreement in such form as shall be reasonably
satisfactory to the Company and the Shareholders.
6.2.12 Outstanding Buyer Shares, after giving effect
to the transactions contemplated hereunder, shall be listed for
trading on the OTC Bulletin Board.
6.2.13 That Sellers and the Company shall have
received an opinion from counsel to Buyer in form satisfactory to
the Company's counsel, that:
(a) Buyer has been duly incorporated and
is a validly existing corporation in good
standing under the laws of the State of
Delaware with a capitalization as represented
in this Agreement.
(b) All of the Outstanding Buyer Shares
have been duly authorized by appropriate
corporate action of Buyer, are validly issued
and represent fully paid and nonassessable
capital shares of Buyer and the Outstanding
Buyer Shares have been registered under the
Securities Exchange Act of 1934 and have been
issued in compliance with applicable Federal
and state securities laws.
(c) This Agreement and the transactions
contemplated hereby have been duly authorized
by appropriate action of Buyer and, under
applicable law and Buyer stockholder approval
is not required under applicable law.
(d) The issuance of the Buyer Shares to
Sellers on the Closing Date pursuant to this
Agreement have been duly authorized by
appropriate corporate action of Buyer, and when
issued, shall be fully paid and nonassessable
common shares of Buyer free of preemptive
rights.
(e) To such counsel's knowledge, after
due inquiry, Buyer has not been or is not
required to be registered as an investment
company or an investment adviser under the
Investment Company Act of 1940 or the
Investment Advisers Act of 1940, respectively.
(f) Buyer is not a "blank check
company" as defined in Section 7(a) of the
Securities Act and, accordingly, is not
required to comply with Section 7(b) of the
Securities Act or Rule 419 promulgated under
the Securities Act.
(g) The Buyer Shares are qualified for
inclusion in the OTC Bulletin Board listing.
ARTICLE VII
CLOSING
7.1 Time and Place. Subject to the provisions of
Articles 6 and 8 hereof, the Closing of the transactions
contemplated hereby shall take place at the offices of Blank Rome
Comisky & McCauley LLP, One Logan Square, Philadelphia,
Pennsylvania, at 9:00 A.M., local time, on the second (2nd)
business day after the date on which all of the conditions
contained in Article 6, to the extent not waived, are satisfied;
or at such other place, at such other time, or on such other date
as the Company and Buyer may mutually agree upon for the Closing
to take place.
7.2 Deliveries at the Closing. Subject to the provisions
of Articles 6 and 8 hereof, at the Closing there shall be
delivered to Sellers, the Company and Buyer the opinions,
certificates, and other documents and instruments required to be
delivered under Article 6 hereof.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any
time prior to the Closing Date:
8.1.1 by mutual written consent of Sellers, the
Company, Biotel and Buyer, properly authorized;
8.1.2 by Sellers, the Company or Buyer, (i) if the
Closing Date shall not have occurred on or prior to July 15,
2000, unless the failure of such occurrence shall be due to the
failure of the party seeking to terminate this Agreement to
perform or observe its agreements and conditions set forth herein
to be performed or observed by such party at or before the
Closing Date; or (ii) if it has become reasonably certain that
any condition specified in Article 6 of this Agreement will not
be satisfied and such condition has not been waived by the party
having the power to waive such condition. Notwithstanding the
foregoing, in the event the parties hereto do not receive
assurances from the NASDAQ, after giving effect to the
transactions contemplated hereby, that Buyer Shares shall
continue to be deemed an "eligible security" under the OTC
Bulletin Board Eligibility Rules, the Closing Date shall be
extended to such date as such assurances are received, but in no
event later than August 31, 2000. In addition, the Closing Date
may also be extended by mutual agreement by the parties thereto;
8.1.3 by Sellers or the Company, if there shall
have been any material breach of any obligation of Buyer
hereunder and such breach shall have not been remedied within 10
days after receipt by Buyer of notice in writing from Sellers or
the Company specifying the nature of such breach and requesting
that it be remedied; and
8.1.4 by Buyer, if there shall have been any
material breach of any obligation of Sellers or the Company
hereunder and such default shall not have been remedied within 10
days after receipt by the defaulting Seller(s) or the Company, as
the case may be, of notice in writing from Buyer specifying the
nature of such breach and requesting that it be remedied.
8.2 Effect of Termination. In the event of termination
of this Agreement by either Buyer, Sellers or the Company as
provided above, this Agreement shall forthwith become void (other
than Section 5.8 and 9.1 hereof which shall remain in full force
and effect), there shall be no further liability on the part of
Sellers, the Company or Buyer, except for liability under Section
5.8.2 and 9.1. Nothing contained in this Section 8.2 shall
relieve any party hereto from liability for any breach of this Agreement.
8.3 Amendment, Extension and Waiver. Subject to
applicable law, at any time prior to the consummation of the
transactions contemplated herein, Sellers, the Company and Buyer
may, (a) amend this Agreement, (b) extend the time for the
performance of any of the obligations or other acts of the other,
(c) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto, or
(d) waive compliance with any of the covenants, agreements or
conditions contained in Articles 5 and 6 hereof. This Agreement
may not be amended, except by an instrument in writing signed on
behalf of each of the parties hereto. Any agreement on the part
of a party hereto to any extension or waiver shall be valid only
if set forth in an instrument in writing signed on behalf of such
party, but such waiver or failure to insist on strict compliance
with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby (including legal, accounting, printing and investment
banking fees and expenses) shall be borne by the party incurring
such costs and expenses. Buyer's costs and expenses shall be
paid prior to the Closing Date.
9.2 Survival. The respective representations and
warranties of the parties to this Agreement shall not survive the
Closing Date, but shall terminate as of the Closing Date.
9.3 Notices. All notices or other communications
hereunder shall be in writing and shall be deemed given if
delivered personally or mailed by prepaid registered or certified
mail (return receipt requested) or by cable, telegram or telex
addressed as follows:
(a) If to Sellers, to their respective addresses
set forth on Exhibit "A" hereto.
Copy to:
Barry H. Genkin, Esquire
BLANK ROME COMISKY & McCAULEY LLP
One Logan Square
Philadelphia, PA 19103
Fax No.: (215) 988-6910
(b) If to the Company, to:
Global Information Group USA, Inc.
One Rockefeller Plaza
New York, NY l0020
Fax No.: (240) 266-6261
Copy to:
Barry H. Genkin, Esquire
BLANK ROME COMISKY & McCAULEY LLP
One Logan Square
Philadelphia, PA 19103
Fax No.: (215) 988-6910
(c) If to Buyer, to:
ADVA INTERNATIONAL INC.
6 Woodcross Drive
Columbus, SC 29212
Fax No.: (803) 407-1967
Copy to:
Brian L. Herndon, Esquire
Blanco Tackabery Combs & Matamoros, P.A.
Stratford Point Building, 5th Floor
South Stratford Road
Winston-Salem, N.C. 27104-4255
Fax No.: (336) 7761-1250
or such other address as shall be furnished in writing by a
party, and any such notice or communication shall be deemed to
have been given as of the date so mailed.
9.4 Parties in Interest; Assignment. This Agreement
shall be binding upon and shall inure to the benefit of parties
hereto and their respective successors and assigns. Neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any party hereto without the prior
written consent of the other parties.
9.5 Complete Agreement. This Agreement, including the
documents and other writings referred to herein or delivered pur-
suant hereto, contains the entire agreement and understanding of
the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or
undertakings between the parties other than as expressly set
forth herein. This Agreement supersedes prior agreements and
understandings between the parties, both written and oral, with
respect to its subject matter.
9.6 Neutral Construction. The parties have negotiated
this Agreement and all of the terms and conditions contained in
this Agreement in good faith and at arms' length, and each party
has been represented by counsel during such negotiations. No
term, condition, or provision contained in this Agreement shall
be construed against any party or in favor of any party (i)
because such party or such party's counsel drafted, revised,
commented upon, or did not comment upon, such term, condition, or
provision; or (ii) because of any presumption as to any
inequality of bargaining power between nor among the parties.
Furthermore, all terms, conditions, and provisions contained in
this Agreement shall be construed and interpreted in a manner
which is consistent with all other terms, conditions, and
provisions contained in this Agreement.
9.7 Counterparts. This Agreement may be executed in one
or more counterparts all of which shall be considered one and the
same agreement and each of which shall be deemed an original.
9.8 Governing Law. This Agreement shall be governed by
the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws thereof.
9.9 Arbitration. All claims, demands, disputes,
controversies, differences, or misunderstandings between the
parties arising out of, or by virtue of, this Agreement shall be
submitted to and determined by arbitration in accordance with
this Section. In the event of such a claim, demand, dispute,
controversy, difference, or misunderstanding, Buyer on the one
hand, and the Company and the Shareholders, on the other hand,
shall each select one artibtrator and shall together select a
third arbitrator who is neutral unbiased, and who shall serve as
the chairman of the panel. If the parties are unable to agree
upon the third arbitrator, or if one of the parties is unable to
or fails to select an arbitrator in accordance with this Section,
the American Arbitration Association ("AAA") shall be designated
by either party to appoint such arbitrator(s) to arbitrate the
matter in accordance with this Section. The matter shall be
arbitrated under the rules of the AAA applicable to commercial
arbitrations then obtaining, such arbitration to be held in New
York, NY. At any time before a decision of the arbitration panel
has been rendered, the parties may resolve the dispute by
settlement. The decision of a majority of arbitrator(s) shall be
the aware of the panel of arbitrators and shall be made in
writing setting forth the award, the reasons for the decision and
award shall be binding and conclusive on all parties; shall not
be appealable and shall include a finding for payment of the
costs of such arbitration. Judgment of a court of competent
jurisdiction may be entered upon the award and may be enforced as
such in accordance with the provisions of the award. This
agreement to arbitrate is specifically enforceable by the parties
to this Agreement.
9.9 Headings. The Article and Schedule headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, individual Sellers have executed, and
Biotel, the Company and Buyer have caused this Agreement to be
executed by their duly authorized officers, all as of the day and
year first above written.
SELLERS: /s/Henri B G. Sijthoff
HENRI B.G. SIJTHOFF
/s/Anthony_E. Mohr
ANTHONY E. MOHR
/s/Charles Lagereis
CHARLES LANGEREIS
JOLEC TRADING LIMITED
/s/Jouke V.J.P. Brada
By: /s/Jolec Trading Limited JOUKE V.J.P. BRADA
/s/Hugo Heerema VIEWMONT HOLDINGS LIMITED
HUGO HEEREMA
By: /s/Viewnont Holdings Limited
FOG INVESTMENTS, LTD.
MOANA LAKE FINANCING CORP.
By: /s/Fog Investments, Ltd.
By: /s/Moana Lake Financing Corp.
EQUATION VENTURES N.V.
SORENSEN'S SECURITIES LTD.
By: /s/Equation Ventures N.V.
By: /s/Sorensen's Securities Ltd.
LINARES CAPITAL LIMITED
/s/Femia E. Van Wulfften Palthe
By: /s/Linares Capital Limited FEMIA E. VAN WULFFTEN PALTHE
/s/Leonard Van Hulst
HEYDAEL B.V. LEONARD VAN HULST
/s/Nicole E. A. M. Aarts
By: /s/Heydael B.V. NICOLE E.A.M. AARTS
/s/Fiona N. Van Hulst
FIONA N. VAN HULST
HACKEN INVESTMENTS LIMITED
By: /s/Hacken Investments Limited
BIOTEL, INC.
By: /s/Ronald G. Moyer
RONALD G. MOYER
Title: President
GLOBAL INFORMATION GROUP USA, INC. ADVA INTERNATIONAL INC.
(the "Company"): (the "Buyer")
By: /s/Anthony E. Mohr_______ By: /s/George L. Down___
ANTHONY E. MOHR GEORGE L. DOWN
Title: President Title: President
EXHIBIT "A"
Global Information Number of
Group USA Inc. Global Information Number of ADVA
Shareholders and Group USA Inc. International Inc.
Addresses Shares Owned to be Received
Anthony E. Mohr 394.35 4,142,562
Jolec Trading Limited 36.69 385,439
Hugo Heerema 54.93 577,095
FOG Investments, Ltd. 4.95 51,957
Equation Ventures N.V. 44.04 462,631
Linares Capital Limited 49.96 524,354
Heydael B.V. 99.83 1,048,630
Henri B. G. Sijthoff 44.92 471,883
Charles Langereis 44.92 471,883
Jouke V.J.P. Brada 9.98 104,863
Viewmont Holdings Limited 99.83 1,048,630
Moana Lake Finance Corp. 99.83 1,048,630
Sorensen's Securities Ltd. 108.63 1,141,156
Femia E. van Wulfften Palthe 10.98 115,384
Leonard van Hulst 7.32 76,923
Nicole E.A.M. Aarts 1.43 15,000
Fiona N. van Hulst 1.19 12,500
Hacken Investments Limited 73.23 769,230
Total 1187.01 12,468,750
